MYE Myers Industries Inc

As filed with the Securities and Exchange Commission on May 7, 2024

Registration No. 333-

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM S-8

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

 

 

MYERS INDUSTRIES, INC.

(Exact name of registrant as specified in its charter)

 

OHIO		34-0778636
(State or other jurisdiction of incorporation or organization)		(I.R.S. Employer Identification No.)
1293 S. Main Street, Akron, Ohio		44301
(Address of Principal Executive Offices)		(Zip Code)

 

Myers Industries, Inc. 2024 Long-Term Incentive Plan

(Full title of the plan)

 

Michael P. McGaugh President and Chief Executive Officer 1293 South Main Street Akron, Ohio 44301 (Name and address of agent for service)		Copy to: J. Bret Treier, Esq. Vorys, Sater, Seymour and Pease LLP 50 South Main Street, Suite 1200 Akron, Ohio 44308

 

(330) 253-5592

(Telephone number, including area code, of agent for service)

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer	☐		Accelerated filer	☒
Non-accelerated filer	☐		Smaller reporting company	☐
			Emerging growth company	☐

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐

 

 

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EXPLANATORY NOTE

This Registration Statement on Form S-8 (the “Registration Statement”) is being filed by Myers Industries, Inc., an Ohio corporation (“Registrant”, “Company” and commonly referred to as “us”, “we” and “our”), for the purposes of registering a total of 2,500,000 shares of its Common Stock, without par value, to be issued pursuant to the Myers Industries, Inc. 2024 Long-Term Incentive Plan.

 

PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

The documents containing the information specified in Part I of Form S-8 will be sent or given to participants in the Myers Industries, Inc. 2024 Long-Term Incentive Plan as specified by Rule 428(b)(1) under the Securities Act of 1933, as amended (the “Securities Act”). In accordance with the instructions to Part I of Form S-8, such documents will not be filed with the Securities and Exchange Commission (the “Commission”) either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act. These documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II of this Registration Statement, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3. Incorporation of Documents by Reference.

The Commission allows the Company to “incorporate by reference” in this Registration Statement the information in the documents that we file with the Commission, which means that important information can be disclosed to you by referring you to those documents. The information incorporated by reference is considered to be a part of this Registration Statement. The following documents, filed by us with the Commission pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof:

All documents which may be filed by us with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date hereof and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, also shall be deemed to be incorporated herein by reference and to be made a part hereof from the date of filing of such documents. Information furnished to the Commission by us under any Current Report on Form 8-K shall not be incorporated by reference into this Registration Statement.

Any statement contained herein or in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is incorporated or deemed to be incorporated

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by reference herein modifies or supersedes such earlier statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.

Item 4. Description of Securities.

Not Applicable.

Item 5. Interests of Named Experts and Counsel.

Not Applicable.

Item 6. Indemnification of Directors and Officers.

Myers Industries, Inc.’s Amended and Restated Code of Regulations

Pursuant to Article Six of the Amended and Restated Code of Regulations of the Company, the Company shall indemnify any director or officer and any former director or officer of the Company and any such director or officer who is or has served at the request of the Company as a director, officer or trustee of another corporation, partnership, joint venture, trust or other enterprise (and his heirs, executors and administrators) against expenses, including attorney’s fees, judgments, fines and amounts paid in settlement, actually and reasonably incurred by him by reason of the fact that he is or was such director, officer or trustee in connection with any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative to the full extent permitted by applicable law. Article Six further provides that the indemnification provided for therein shall not be deemed to restrict the right of the Company (i) to indemnify employees, agents and others to the extent not prohibited by such law, (ii) to purchase and maintain insurance or furnish similar protection on behalf of or for any person who is or was a director, officer, employee or agent of the Company, or any person who is or was serving at the request of the Company as a director, officer, trustee, employee or agent of another corporation, joint venture, partnership, trust or other enterprise against any liability asserted against him or incurred by him in any such capacity or arising out of his status as such, and (iii) to enter into agreements with persons of the class identified in clause (ii) above indemnifying them against any and all liabilities (or such lesser indemnification as may be provided in such agreements) asserted against or incurred by them in such capacities.

The rights provided in Article Six are in addition to any rights provided by contract or as a matter of law.

Ohio General Corporation Law

Ohio General Corporation Law Section 1701.13(E) includes indemnification provisions similar to Article Six of the Company’s Amended and Restated Code of Regulations. Section 1701.13(E)(1) of the Ohio General Corporation Law provides that a corporation may indemnify or agree to indemnify any person who was or is a party, or is threatened to be made a party, to any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative, other than an action by or in the right of the corporation, by reason of the fact that he is or was a director, officer, employee, or agent of the corporation, or is or was serving at the request of the corporation as a director, trustee, officer, employee, member, manager, or agent of another corporation, domestic or foreign, nonprofit or for profit, a limited liability company, or a partnership, joint venture, trust, or other enterprise, against expenses, including attorneys’ fees, judgments, fines, and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit, or proceeding, if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, if he had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit, or proceeding by judgment, order, settlement, or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, that he had reasonable cause to believe that his conduct was unlawful.

Section 1701.13(E)(2) further specifies that a corporation may indemnify or agree to indemnify any person who was or is a party, or is threatened to be made a party, to any threatened, pending, or completed action or suit by or in the right of the corporation to procure a judgment in its favor, by reason of the fact that he is or was a director, officer, employee, or agent of the corporation, or is or was serving at the request of the corporation as a director, trustee,

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officer, employee, member, manager, or agent of another corporation, domestic or foreign, nonprofit or for profit, a limited liability company, or a partnership, joint venture, trust, or other enterprise, against expenses, including attorneys’ fees, actually and reasonably incurred by him in connection with the defense or settlement of such action or suit, if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall be made in respect of (a) any claim, issue, or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of his duty to the corporation unless, and only to the extent, that the court of common pleas or the court in which such action or suit was brought determines, upon application, that, despite the adjudication of liability, but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses as the court of common pleas or such other court shall deem proper, and (b) any action or suit in which the only liability asserted against a director is pursuant to Section 1701.95 of the Ohio General Corporation Law concerning unlawful loans, dividends and distribution of assets.

In addition, Section 1701.13(E)(5)(a) requires a corporation to pay any expenses, including attorneys’ fees, of a director in defending an action, suit, or proceeding referred to above as they are incurred, in advance of the final disposition of the action, suit, or proceeding, upon receipt of an undertaking by or on behalf of the director in which he agrees to both (i) repay such amount if it is proved by clear and convincing evidence that his action or failure to act involved an act or omission undertaken with deliberate intent to cause injury to the corporation or undertaken with reckless disregard for the best interests of the corporation and (ii) reasonably cooperate with the corporation concerning the action, suit, or proceeding. Section 1701.13(E)(7) and (F)(2) further authorizes a corporation to enter into contracts regarding indemnification and to purchase and maintain insurance on behalf of any director, trustee, officer, employee or agent for any liability asserted against him or arising out of his status as such.

Indemnification Agreements

We have also entered into indemnification agreements with our directors providing for contractual indemnification and procedures for indemnification by us to the fullest extent permitted by Ohio law and the Company’s Articles of Incorporation or Code of Regulations, as amended. The indemnification agreements provide for advancements by us of certain expenses and costs relating to claims, actions, suits or proceedings arising from their service to us, subject to a written undertaking to repay as provided for under Ohio law. The Company presently maintains insurance for the benefit of persons entitled to indemnification.

Item 7. Exemption from Registration Claimed.

Not Applicable.

Item 8. Exhibits.

A list of exhibits filed with this registration statement on Form S-8 is set forth on the Exhibit Index and is incorporated herein by reference.

Item 9. Undertakings.

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Provided, however, that paragraphs A(1)(i) and A(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement.

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SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Akron, State of Ohio, on May 7, 2024.

 

MYERS INDUSTRIES, INC.

/s/ Michael P. McGaugh

Michael P. McGaugh

President and Chief Executive Officer

 

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.

 

Signature		Title		Date
/s/ Michael P. McGaugh		President, Chief Executive Officer and Director		May 7, 2024
Michael P. McGaugh		(Principal Executive Officer)
/s/ Grant E. Fitz		Executive Vice President and Chief Financial Officer		May 7, 2024
Grant E. Fitz		(Principal Financial and Accounting Officer)
*		Chairman, Director		May 7, 2024
F. Jack Liebau, Jr.
*		Director		May 7, 2024
Yvette Dapremont Bright
*		Director		May 7, 2024
Ronald M. De Feo
*		Director		May 7, 2024
William A. Foley
*		Director		May 7, 2024
Jeffrey Kramer
*		Director		May 7, 2024
Bruce M. Lisman
*		Director		May 7, 2024
Lori Lutey

* The undersigned, as attorney-in-fact, signs this document on behalf of the above-named directors and officers pursuant to a Power of Attorney duly executed by such directors and officers and filed with this Registration Statement as Exhibit 24.1.

 

/s/ Michael P. McGaugh		Date: May 7, 2024
Michael P. McGaugh
Title: Attorney-in-Fact

 

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EXHIBIT INDEX

 

Exhibit Number	Description
4.1	Myers Industries, Inc. Second Amended and Restated Articles of Incorporation. Reference is made to Exhibit 3.1 to Form 8-K filed with the Commission on April 29, 2021.
4.2	Myers Industries, Inc. Amended and Restated Code of Regulations. Reference is made to Exhibit 3.2 to Form 8-K filed with the Commission on April 29, 2021.
5.1*	Opinion of Vorys, Sater, Seymour and Pease LLP
23.1*	Consent of Ernst & Young LLP
23.2*	Consent of RSM US LLP
23.3*	Consent of Vorys, Sater, Seymour and Pease LLP (included in Exhibit 5.1)
24.1*	Power of Attorney
99.1	Myers Industries, Inc. 2024 Long-Term Incentive Plan. Reference is made to Exhibit 10.2 to Form 8-K filed with the Commission on April 25, 2024.
107.1*	Calculation of Filing Fee Table

 

* Filed herewith

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Exhibit 5.1

50 South Main Street, Suite 1200 Akron, Ohio 44308 330.208.1000 | vorys.com

Founded 1909

May 7, 2024

Board of Directors

Myers Industries, Inc.

1293 South Main Street

Akron, OH 44301

Re:	Form S-8 Registration Statement

Ladies and Gentlemen:

 

We have acted as counsel to Myers Industries, Inc., an Ohio corporation (the “Company”), in connection with the Registration Statement on Form S-8 filed by the Company under the Securities Act of 1933, as amended (the “Act”), with the Securities and Exchange Commission (the “Commission”) on the date hereof (the “Registration Statement”), in order to register under the Act 2,500,000 shares of common stock, without par value (the “Shares”) of the Company to be issued and delivered pursuant to the Myers Industries, Inc. 2024 Long-Term Incentive Plan (the “Plan”).

In connection with rendering this opinion, we have examined, to the extent deemed necessary, originals or copies, the authenticity of which has been established to our satisfaction, of: (i) the Registration Statement; (ii) the Plan; (iii) the articles of incorporation of the Company, as currently in effect; (iv) the code of regulations of the Company, as currently in effect; and (v) the resolutions adopted by the Board of Directors of the Company (the "Board") and the Compensation and Management Development Committee of the Board and the proposal approved by the shareholders of the Company, relating to the approval and adoption of the Plan and the reservation and issuance of the Shares as contemplated thereunder. In addition, we have examined such authorities of law and other documents and matters as we have deemed necessary or appropriate for purposes of this opinion. We have also relied upon such oral or written statements and representations of officers and other representatives of the Company and examined such certificates of public officials and authorities of law as we have deemed relevant as a basis for this opinion.

In our examinations of the aforesaid documents and in rendering the opinion set forth below, we have assumed, without independent investigation or examination: (i) the genuineness of all signatures; (ii) the legal capacity of all individuals who have executed and delivered any of the aforesaid documents; (iii) the authority of all individuals entering and maintaining records; (iv) the authenticity and completeness of all documents submitted to us as originals; (v) the conformity to original documents of all documents submitted to us as copies; and (vi) the authenticity of the originals of such latter documents. In addition, we have assumed that the agreements that accompany each award under the Plan will be consistent with the terms of the Plan and will not expand, modify or otherwise affect the terms of the Plan or the respective rights or obligations of the participants thereunder. Further, we have assumed the accuracy of all information provided to us by the Company, orally or in writing, during the course of our investigations and all statements in certificates of public officials.

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We have relied solely upon the examinations and inquiries recited herein, and, except for the examinations and inquiries recited herein, we have not undertaken any independent investigation to determine the existence or absence of any facts, and no inference as to our knowledge concerning such facts should be drawn.

Based upon and subject to the foregoing and the further qualifications and limitations set forth below, as of the date hereof, we are of the opinion that the Shares have been duly authorized by all necessary corporate action of the Company and that, when the Registration Statement has become effective under the Act and the Shares have been issued, delivered and paid for, as appropriate, in the manner provided for and for the consideration prescribed under the terms of the Plan and in any award agreements entered into by participants in the Plan with the Company as contemplated by the Plan, the Shares will be validly issued, fully paid and non-assessable.

This opinion is limited to the substantive laws and legal interpretations under the Ohio General Corporation Law in effect, and the facts and circumstances existing, on the date hereof, and we express no opinion as to the laws of any other jurisdiction and we assume no obligation to revise or supplement this opinion should any such law or legal interpretation be changed by legislative action, judicial interpretation or otherwise or should there be any change in such facts or circumstances.

This opinion is furnished by us solely for the benefit of the Company in connection with the Registration Statement and may not be relied upon or used by any other person or for any other purpose. Notwithstanding the foregoing, we consent to the filing of this opinion as an exhibit to the Registration Statement. By giving such consent, we do not thereby admit that we come within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission promulgated thereunder.

Except in connection with the Registration Statement as aforesaid, no portion of this opinion may be quoted or otherwise used by any person without our prior written consent.

Very truly yours,

/s/ Vorys, Sater, Seymour and Pease LLP

Vorys, Sater, Seymour and Pease LLP

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Exhibit 23.1

 

Consent of Independent Registered Public Accounting Firm

 

We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the Myers Industries, Inc. 2024 Long-Term Incentive Plan of our reports dated March 5, 2024, with respect to the consolidated financial statements of Myers Industries, Inc. and Subsidiaries and the effectiveness of internal control over financial reporting of Myers Industries, Inc. and Subsidiaries included in its Annual Report (Form 10-K) for the year ended December 31, 2023, filed with the Securities and Exchange Commission.

 

/s/ Ernst & Young LLP

Akron, Ohio

May 7, 2024

 

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Exhibit 23.2

 

Consent of Independent Auditor

 

We consent to the incorporation by reference in the Registration Statement on Form S-8 of Myers Industries, Inc. of our report dated April 5, 2024, with respect to the consolidated financial statements of Signature CR Intermediate Holdco, Inc., appearing in the Current Report on Form 8-K/A filed by Myers Industries, Inc. with the Securities and Exchange Commission on April 19, 2024.

 

/s/ RSM US LLP

Dallas, Texas

May 7, 2024

 

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Exhibit 24.1

Limited Power of Attorney

Registration Statement on Form S-8

 

 

KNOW ALL MEN BY THESE PRESENTS, that the undersigned directors and officers of Myers Industries, Inc., an Ohio corporation, which is about to file with the Securities and Exchange Commission, Washington, D.C., under the provisions of the Securities Act of 1933, as amended, a Registration Statement on Form S-8 for the registration of certain of its shares of common stock, without par value, for offering and sale pursuant to the Myers Industries, Inc. 2024 Long-Term Incentive Plan, hereby constitutes and appoints Michael P. McGaugh and Grant E. Fitz, and each of them, as his or her true and lawful attorneys-in-fact and agents with full power of substitution and re-substitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign such Registration Statement and any and all amendments and documents related thereto, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission and the New York Stock Exchange, and grants unto each of said attorneys-in-fact and agents, and substitute or substitutes, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, and hereby ratifies and confirms all things that each of said attorneys-in-fact and agents, or either of them or his or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

 

IN WITNESS WHEREOF, we have hereunto set our hands effective as of the 7th day of May, 2024.

 

 

/s/ Michael P. McGaugh		/s/ Grant E. Fitz
Michael P. McGaugh President, Chief Executive Officer and Director (Principal Executive Officer)		Grant E. Fitz Executive Vice President and Chief Financial Officer (Principal Financial and Principal Accounting Officer)
/s/ F. Jack Liebau, Jr.		/s/ Yvette Dapremont Bright
F. Jack Liebau, Jr.		Yvette Dapremont Bright
Chairman, Director		Director
/s/ Ronald M. De Feo		/s/ William A. Foley
Ronald M. De Feo		William A. Foley
Director		Director
/s/ Jeffrey Kramer		/s/ Bruce M. Lisman
Jeffrey Kramer		Bruce M. Lisman
Director		Director
/s/ Lori Lutey
Lori Lutey
Director

 

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Exhibit 107.1

Calculation of Filing Fee Tables

 

Form S-8

(Form Type)

 

Myers Industries, Inc.

(Exact Name of Registrant as Specified in its Charter)

 

Table 1: Newly Registered Securities

 

 

Security Type	Security Class Title	Fee Calculation Rule	Amount Registered(1) (2)	Proposed Maximum Offering Price Per Share(3)	Maximum Aggregate Offering Price(3)	Fee Rate	Amount of Registration Fee
Equity	Common Stock, without par value	Rules 457(c) and 457(h)	2,500,000	$22.94	$57,350,000	$0.0001476	$8,464.86
Total Offering Amounts					$57,350,000		$8,464.86
Total Fee Offsets							N/A
Net Fee Due							$8,464.86

 

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