EXHIBIT 3(A)

 

 

 

                              AMENDED AND RESTATED

                            ARTICLES OF INCORPORATION

                                       OF

 

                             MYERS INDUSTRIES, INC.

 

                            Effective April 29, 1999

 

 

                                    ARTICLE I

                                      NAME

                                      ----

 

          The name of the corporation shall be "Myers Industries, Inc."

 

 

                                   ARTICLE II

                                PRINCIPAL OFFICE

                                ----------------

 

         The place in the State of Ohio where the principal office of the

corporation is to be located is the City of Akron, Summit County, Ohio.

 

 

                                   ARTICLE III

                                     PURPOSE

                                     -------

 

         The purpose or purposes for which the corporation is formed are:

 

                  To engage in the business of manufacturing, developing,

         supplying, promoting, distributing, leasing and selling at wholesale

         and retail the following:

 

                           (1)      Materials, tools, supplies, machinery and

                  equipment for the servicing, repairing, recapping, vulcanizing

                  and maintaining of tires;

 

                           (2)      Equipment and supplies as an aid to the

                  selling of tires and tubes;

 

                           (3)      Automotive parts, supplies and accessories;

 

                           (4)      Cements and adhesives;

 

 

 

 

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                           (5)      Chemicals for vulcanizing and other

                  purposes;

 

                           (6)      Rubber, plastic and metal parts and

                  products;

 

                           (7)      Other products and merchandise of every kind

                  and description.

 

         To carry on any activity for the purposes above stated, either directly

or indirectly, and to do such further acts and things which the Board of

Directors of the corporation may deem necessary or incidental to the foregoing

purposes, and, in general, to carry on any other lawful business whatsoever in

connection with the foregoing which the Board of Directors deems to be in

furtherance of the foregoing purposes.

 

         The corporation reserves the right at any time and from time to time to

change its purposes in any manner now or hereafter permitted by statue. Any

change of the purposes of the corporation, whether substantial or not,

authorized or approved by the holders of shares entitled to exercise that

proportion of the voting power of the corporation now or hereafter required for

such authorization or approval, shall be binding and conclusive upon every

shareholder of the corporation as fully as if such shareholder had voted

therefor; and no shareholder, notwithstanding that he may have voted against

such change of purposes or may have objected in writing thereto, shall be

entitled to payment of the fair cash value of his shares.

 

         In furtherance of and not in limitation of the general powers conferred

by the laws of the State of Ohio and the objects and purposes herein set forth,

this corporation shall also have the following powers, to-wit:

 

         To purchase, acquire, hold, convey, lease, manage, improve, use,

exchange, encumber, mortgage, dispose of or deal in property, real or personal,

tangible or intangible; to purchase, acquire, guarantee, hold, dispose of or

deal in shares, bonds, or any other evidence of ownership or indebtedness or

contracts of any other person, firm or corporation; to acquire the good will,

rights and property and to undertake to hold all or any part of the assets or to

assume the liabilities of any person, firm or corporation; to do any or all of

the things herein set forth to the same extent as natural persons might or could

do as principals, agents, trustees or otherwise, directly or indirectly, alone

or with others insofar as such acts are permitted to be done by a corporation

authorized under and by virtue of the General Corporation Laws of the State of

Ohio.

 

         To do any and all other acts to the extent permitted by the General

Corporation Law of the State of Ohio and which are not in violation of the laws

of the State of Ohio.

 

 

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                                   ARTICLE IV

                                AUTHORIZED STOCK

                                ----------------

 

         The maximum number of shares which the Company is authorized to issue

and to have outstanding at any time shall be Sixty-One Million (61,000,000)

which shall be classified as follows:

 

         A.       Sixty Million (60,000,000) of said shares shall be Common

         Stock, without par value; and

 

         B.       One Million (1,000,000) of said shares shall be Serial

         Preferred Stock, without par value, the express terms of which are set

         forth herein.

 

                  1. ISSUANCE. The shares of Serial Preferred Stock (herein

                  called "Serial Preferred Stock") may be issued in series. The

                  Board of Directors is hereby empowered to cause the entire

                  unissued One Million (1,000,000) shares of Serial Preferred

                  Stock to be issued in one or more series, from time to time,

                  with such of the variations permitted by clauses (a) to (i),

                  both inclusive, of section 2, as shall have been determined by

                  the Board of Directors with respect to any shares prior to the

                  issuance of such series; subject, however, to the provisions

                  of sections 3 to 5, both inclusive, which provisions shall

                  apply to all shares of Serial Preferred Stock.

 

                  2. SERIES. Serial Preferred Stock of different series may vary

                  as to:

 

                             (a)     The designation of the series, which may be

                           by distinguishing number, letter or title.

 

                             (b)     The number of shares of the series.

 

                             (c)     The dividend rates of the series.

 

                             (d) The dates at which dividends, if

                           declared, shall be payable.

 

                             (e) The redemption terms, rights and price or

                           prices per share of the series.

 

                             (f) The terms and amount of any sinking fund

                           provided for the purchase or redemption of shares of

                           any series.

 

                             (g) Whether the shares of the series shall be

                           convertible into Common Shares and, if so, the

                           conversion price or prices and the adjustments

                           thereof, if any, and all other terms and conditions

                           upon which such conversion may be made.

 

 

                                       3

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                             (h) The liquidation price of the series.

 

                             (i) Restrictions on issuance of shares of

                                 the same series or of any other class or

                                 series.

 

                           The Board of Directors is expressly authorized to

                  adopt from time to time amendments to the Articles of

                  Incorporation of the corporation fixing, with respect to said

                  unissued shares of Serial Preferred Stock, or any series

                  thereof, the items specified in clauses (a) to (i), both

                  inclusive.

 

                  3. DIVIDEND RIGHTS. The holders of the Serial Preferred Stock

                  of each series shall be entitled to receive if, as and when

                  declared by the Board of Directors of the corporation out of

                  any funds legally available therefor, dividends at the rate

                  (and no more) and payable on the dates fixed for such series.

                  Such dividends shall accrue and be cumulative from the first

                  day of the dividend period in which each such share of Serial

                  Preferred Stock is issued. A "dividend period" in respect of

                  any share is the period between any two consecutive dividend

                  payment dates, including the first of such dates as fixed for

                  the series to which such share shall belong. Dividends in full

                  shall not be declared and set apart for payment or paid on

                  Serial Preferred Stock of any series for any dividend period

                  unless dividends in full have been or are contemporaneously

                  declared and set apart for payment or paid on Serial Preferred

                  Stock of all series for the dividend periods terminating on

                  the same or an earlier date. Dividends shall not be paid

                  exclusively upon any one or more series of Serial Preferred

                  Stock, but dividends shall be paid ratably upon all

                  outstanding Serial Preferred Stock in the proportion to any

                  one series that the annual dividend requirements of such

                  series bear to the total annual dividend requirements of all

                  outstanding Serial Preferred Stock. Accumulations of dividends

                  shall not bear interest.

 

                           As long as any Serial Preferred Stock is outstanding,

                  the corporation shall not declare or pay dividends (other than

                  dividends payable in shares of the corporation ranking junior

                  to the Serial Preferred Stock) on Common Shares or on any

                  shares ranking junior to the Serial Preferred Stock, or

                  purchase, redeem or retire any Common Shares or any such

                  junior shares, or distribute any of its assets to the holders

                  thereof at any time, (1) when the corporation is in default in

                  the payment of any dividend on any Serial Preferred Stock, or

                  (2) when the corporation is in default in any way with respect

                  to any retirement or sinking fund provided with respect to any

                  series of Serial Preferred Stock.

 

                  4. LIQUIDATION RIGHTS. Upon any liquidation, dissolution or

                  winding up of the corporation, the holders of Serial Preferred

                  Stock of each series shall be entitled, before any

                  distribution is made to the Common Shares or any shares

                  ranking junior to the Serial Preferred Stock, to be paid out

                  of funds available for distribution to shareholders such

                  liquidation price as may be fixed in the amendments to the

                  Articles of Incorporation adopted by the Board of Directors

                  with respect to each such series,

 

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                  plus, in each case, an amount equivalent to dividends accrued

                  or in arrears thereon to the date full payment of such

                  specified preferential amount is made to the holders thereof,

                  and the Serial Preferred Stock shall not be entitled to any

                  further payment. Neither the consolidation nor merger of the

                  corporation with or into any other corporation or

                  corporations, nor the sale of all or substantially all of its

                  assets, shall be deemed to be a liquidation, dissolution or

                  winding up of the corporation within the meaning of this

                  section.

 

                  5. VOTING RIGHTS. The holders of Serial Preferred Stock shall

                  be entitled to one vote for each share; and except as

                  otherwise provided herein or required by law, the holders of

                  Serial Preferred Stock and the holders of Common Shares shall

                  vote together as one class on all matters. No adjustment of

                  the voting rights of holders of Serial Preferred Shares shall

                  be made for an increase or decrease in the number of Common

                  Shares authorized or issued or for share splits or

                  combinations of the Common Shares or for share dividends on

                  any class of shares payable solely in Common Shares.

 

                           If, and so often as, the corporation shall be in

                  default in dividends in an amount equivalent to six full

                  quarterly dividends on any series of Serial Preferred Stock at

                  the time outstanding, whether or not earned or declared, the

                  holders of Serial Preferred Stock of all series, voting

                  separately as a class and in addition to all other rights to

                  vote for Directors, shall be entitled to elect, as herein

                  provided, two members of the Board of Directors of the

                  corporation; provided, however, that the holders of Serial

                  Preferred Stock shall not have or exercise such special class

                  voting rights except at meetings of the shareholders for the

                  election of Directors at which the holders of not less than 50

                  percent of the outstanding Serial Preferred Shares of all

                  series then outstanding are present in person or by proxy; and

                  provided further that the special class voting rights provided

                  for herein when the same shall have become vested shall remain

                  so vested until all accrued and unpaid dividends on the Serial

                  Preferred Stock of all series then outstanding shall have been

                  paid, whereupon the holders of Serial Preferred Stock shall be

                  divested of their special class voting rights in respect of

                  subsequent elections of Directors, subject to the revesting of

                  such special class voting rights in the event hereinabove

                  specified in this paragraph.

 

                           In the event of default entitling the holders of

                  Serial Preferred Stock to elect two Directors as above

                  specified, a special meeting of the shareholders for the

                  purpose of electing such Directors shall be called by the

                  Secretary of the corporation upon written request of, or may

                  be called by, the holders of record of at least 15 percent of

                  the Serial Preferred Stock of all series at the time

                  outstanding, and notice thereof shall be given in the same

                  manner as that required for the annual meeting of

                  shareholders; provided, however, that the corporation shall

                  not be required to call such special meeting if the annual

                  meeting of shareholders shall be held within 90 days after the

                  date of receipt of the foregoing written request from the

                  holders of Serial Preferred Stock. At any meeting at which the

                  holders of Serial Preferred Stock shall be entitled to elect

                  Directors, the holders of 50 percent of the then outstanding

 

                                        5

 

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                  Serial Preferred Stock of all series, present in person or by

                  proxy, shall be sufficient to constitute a quorum for the

                  purpose of such election, and the vote of the holders of a

                  majority of such shares so present at any such meeting at

                  which there shall be such a quorum shall be sufficient to

                  elect the members of the Board of Directors which the holders

                  of Serial Preferred Stock are entitled to elect as hereinabove

                  provided.

 

                           The two Directors who may be elected by the holders

                  of Serial Preferred Stock pursuant to the foregoing provision

                  shall be in addition to any other Directors then in office or

                  proposed to be elected otherwise than pursuant to such

                  provisions, and nothing in such provisions shall prevent any

                  change otherwise permitted in the total number of Directors of

                  the corporation or require the resignation of any Director

                  elected otherwise than pursuant to such provisions.

 

 

                                    ARTICLE V

                                PREEMPTIVE RIGHTS

                                -----------------

 

         The shareholders of the corporation shall have no preemptive rights to

purchase, subscribe for or otherwise acquire any securities of the corporation

which are now or may be authorized and issued from time to time and the

authorized but unissued Common Shares and Serial Preferred Stock may be issued

from time to time by the Board of Directors of the corporation, at such prices

and upon such terms as said Board of Directors may determine.

 

 

                                   ARTICLE VI

                               PURCHASE OF SHARES

                               ------------------

 

         The corporation may purchase or otherwise acquire, hold, redeem,

cancel, retire, reissue and in any other manner deal in and with, and dispose

of, from time to time and to the extent permitted by the laws of the State of

Ohio, shares of any class issued by it. Such purchases may be made either in the

open market or at private or public sale, and in such manner and amounts from

such holder or holders of outstanding shares of the corporation and at such

prices as the Board of Directors of the corporation shall from time to time

determine, and the Board of Directors is hereby empowered to authorize such

purchases from time to time without any vote or other action of the holders of

any class of shares now or hereafter authorized and outstanding at the time of

any such purchase.

 

 

                                   ARTICLE VII

                                  VOTING POWER

                                  ------------

 

         Notwithstanding any provisions of the laws of the State of Ohio now or

hereafter in force requiring the affirmative vote of the holders of shares

entitling them to exercise two-thirds of the voting power of the corporation or

of any class or classes of shares thereof on any proposal to effect a merger,

consolidation, combination or majority share acquisition as such terms are

defined in the laws of the State of Ohio, any such proposal may be approved by

the affirmative vote of the holders of shares entitling them to exercise a

majority of the voting power of the corporation or of such class or classes.

 

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                                  ARTICLE VIII

                       DEALING WITH OFFICERS AND DIRECTORS

                       -----------------------------------

 

         A Director or Officer of the corporation shall not be disqualified by

his office from dealing or contracting with the corporation as a lessor, vendor,

purchaser, employee, agent or otherwise.

 

         No transaction, contract or other act of the corporation shall be void

or voidable or in any way affected or invalidated by reason of the fact that any

Director or Officer, or any firm, partnership or other corporation in which such

Director or Officer is a member or is a partner, shareholder, director or

officer, is in any way interested in such transaction, contract or other act,

provided that the interest of such Director, Officer, firm, partnership, or

other corporation is disclosed or known to the Board of Directors or such

members thereof as shall be present at any meeting of the Board of Directors at

which action upon any such transaction, contract or other act shall be taken;

nor shall any such Director or Officer be accountable or responsible to the

corporation for or in respect of any such transaction, contract or other act of

the corporation or for any gains or profits, realized by him by reason of the

fact that he or any firm or partnership of which he is a member of partner, or

any other corporation of which he is a shareholder, Director or Officer, is

interested in such transaction, contract or other act; and any such Director may

be counted in determining the existence of a quorum at any meeting of the Board

of Directors of the corporation which shall authorize or take action in respect

of any such transaction, contract or other act, and may vote thereat to

authorize, ratify or approve any such transaction, contract or other act with

like force and effect as if he or any firm or partnership of which he is a

member or partner or any other corporation of which he is a shareholder,

Director or Officer, were not interested in such transaction, contract or other

act.

 

 

                                   ARTICLE IX

                                CUMULATIVE VOTING

                                -----------------

 

         No shareholder shall have the right to vote cumulatively in the

election of Directors.