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As Of Filer Filing For·On·As Docs:Size Issuer Agent 9/26/17 Myers Industries Inc S-3 9/25/17 8:725K Donnelley … Solutions/FA Ameri Kart Holding Corp Scepter Manufacturing, LLC Jamco Products Inc. Ameri-Kart (MI) Corp. Patch Rubber Co Buckhorn Inc. Myers Tire Supply Distribution, Inc. Scepter US Holding Co |
Document/Exhibit Description Pages Size
1: S-3 Registration Statement for Securities Offered HTML 264K
Pursuant to a Transaction
2: EX-4.4 Instrument Defining the Rights of Security Holders HTML 185K
3: EX-5.1 Opinion re: Legality HTML 29K
4: EX-5.2 Opinion re: Legality HTML 21K
5: EX-5.3 Opinion re: Legality HTML 22K
6: EX-5.4 Opinion re: Legality HTML 13K
7: EX-12.1 Statement re: Computation of Ratios HTML 20K
8: EX-23.2 Consent of Experts or Counsel HTML 8K
| EX-5.1 |
Exhibit 5.1
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200 Public Square, Suite 2300 Direct Dial: 216.363.4500 Fax: 216.363.4588 |
Myers Industries, Inc.
1293 S. Main Street
Re: Form S-3 Registration Statement
Ladies and Gentlemen:
We have acted as special counsel to Myers Industries, Inc., an Ohio corporation (the “Company”), in connection with the Company’s registration statement on Form S-3 (the “Registration Statement”) to be filed by the Company with the Securities and Exchange Commission (the “Commission”) on or about the date hereof, including a base prospectus (the “Base Prospectus”), which provides that it will be supplemented by one or more prospectus supplements (each such prospectus supplement, together with the Base Prospectus, a “Prospectus”), under the Securities Act of 1933, as amended (the “Act”), and proposed offer, issuance and sale from time to time on a delayed or continuous basis pursuant to Rule 415 under the Act, of up to $250,000,000 aggregate offering price of the following securities of the Company, Scepter US Holding Company, an Ohio corporation and a wholly-owned subsidiary of the Company (“Scepter US”), Buckhorn Inc., an Ohio corporation and a wholly-owned subsidiary of the Company (“Buckhorn”), Ameri-Kart Corp., a Kansas corporation and a wholly-owned subsidiary of the Company (“Ameri-Kart”), Patch Rubber Company, a North Carolina corporation and a wholly-owned subsidiary of the Company (“Patch Rubber”), Myers Tire Supply Distribution, Inc., an Ohio corporation and a wholly-owned subsidiary of the Company (“MTS Distribution”), Ameri-Kart (MI) Corp., a Michigan corporation and a wholly-owned subsidiary of the Company (“Ameri-Kart (MI)”), Jamco Products Inc., an Illinois corporation and a wholly-owned subsidiary of the Company (“Jamco”) and Scepter Manufacturing, LLC, a Delaware limited liability company and a wholly owned subsidiary of Scepter US (“Scepter Manufacturing”) and other subsidiaries of the Company as may become guarantors under the Indenture (as defined below) from time to time in accordance with the respective terms thereof (together with Scepter US, Buckhorn, Ameri-Kart, Patch Rubber, MTS Distribution, Ameri-Kart (MI), Jamco and Scepter Manufacturing, the “Subsidiary Guarantors”), as applicable:
(i) shares of common stock of the Company, without par value (the “Common Stock”);
(ii) shares of preferred stock of the Company, without par value (the “Preferred Stock”);
(iii) depositary shares representing a fraction of a share of the particular series of Preferred Stock (the “Depositary Shares”) evidenced by depositary receipts (the “Receipts”);
(iv) debt securities, in one or more series (the “Debt Securities”), which will be issued under a form of Indenture filed as an exhibit to the Registration Statement (as amended or supplemented, the “Indenture”) to be entered into by and among the Company and the trustee (the “Trustee”);
(v) guarantees of the Debt Securities issued by the Subsidiary Guarantors (the “Guarantees”);
(vi) warrants to purchase the Common Stock, Preferred Stock or Debt Securities (the “Warrants”);
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(vii) subscription rights to purchase the Debt Securities, Preferred Stock, Common Stock or other securities (the “Subscription Rights”);
(viii) purchase contracts for the purchase of Debt Securities, Common Stock, Preferred Stock, Depositary Shares or any combination thereof (the “Purchase Contracts”); and
(ix) units of any combination of the types of securities offered by the Company (the “Units”, and together with the Common Stock, the Preferred Stock, the Depositary Shares, the Debt Securities, the Guarantees, the Warrants, the Subscription Rights, and the Purchase Contracts, the “Securities”).
It is understood that the opinions set forth below are to be used only in connection with the offer, issuance and sale of the Securities while the Registration Statement is in effect. The Registration Statement provides that the Securities may be offered in amounts, at prices and on terms to be set forth in one or more prospectus supplements or free writing prospectuses.
This opinion letter is being delivered in accordance with the requirements of Item 601(b)(5) of Regulation S-K promulgated under the Act.
In rendering the opinions set forth below, we have examined and are familiar with originals or copies, certified or otherwise identified to our satisfaction, of:
(i) the Amended and Restated Articles of Incorporation of the Company, as in effect on the date hereof (the “Company Articles”);
(ii) the Amended and Restated Code of Regulations of the Company, as in effect on the date hereof (the “Company Regulations”);
(iii) the Articles of Incorporation of Scepter US, as in effect on the date hereof (the “Scepter US Articles”);
(iv) the Code of Regulations of Scepter US, as in effect on the date hereof (the “Scepter US Code”);
(v) the Articles of Incorporation of Buckhorn, as in effect on the date hereof (the “Buckhorn Articles”);
(vi) the Code of Regulations of Buckhorn, as in effect on the date hereof (the “Buckhorn Code”);
(vii) the Articles of Incorporation of Ameri-Kart, as in effect on the date hereof (the “Ameri-Kart Articles”);
(viii) the Bylaws of Ameri-Kart, as in effect on the date hereof (the “Ameri-Kart Bylaws”);
(ix) the Articles of Incorporation of Patch Rubber, as in effect on the date hereof (the “Patch Rubber Articles”);
(x) the Bylaws of Patch Rubber, as in effect on the date hereof (the “Patch Rubber Bylaws”);
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(xi) the Articles of Incorporation of MTS Distribution, as in effect on the date hereof (the “MTS Distribution Articles”);
(xii) the Code of Regulations of MTS Distribution, as in effect on the date hereof (the “MTS Distribution Code”);
(xiii) the Articles of Incorporation of Ameri-Kart (MI), as in effect on the date hereof (the “Ameri-Kart (MI) Articles”);
(xiv) the Bylaws of Ameri-Kart (MI), as in effect on the date hereof (the “Ameri-Kart (MI) Bylaws”);
(xv) the Articles of Incorporation of Jamco, as in effect on the date hereof (the “Jamco Articles”);
(xvi) the Bylaws of Jamco, as in effect on the date hereof (the “Jamco Bylaws”);
(xvii) the Certificate of Formation of Scepter Manufacturing, as in effect on the date hereof (the “Scepter Manufacturing Certificate”);
(xviii) the Operating Agreement of Scepter Manufacturing, as in effect on the date hereof (the “Scepter Manufacturing Operating Agreement” and together with the Company Articles, the Company Regulations, the Scepter US Articles, the Scepter US Code, the Buckhorn Articles, the Buckhorn Code, the Ameri-Kart Articles, the Ameri-Kart Bylaws, the Patch Rubber Articles, the Patch Rubber Bylaws, the MTS Distribution Articles, the MTS Distribution Code, the Ameri-Kart (MI) Articles, the Ameri-Kart (MI) Bylaws, the Jamco Articles, the Jamco Bylaws and the Scepter Manufacturing Certificate, the “Organizational Documents”);
(xix) the Registration Statement;
(xx) the Indenture; and
(xxi) resolutions of the Board of Directors of the Company relating to, among other matters, the issuance of the Securities and the filing of the Registration Statement.
We are familiar with the various corporate proceedings heretofore taken and additional proceedings proposed to be taken by the Company in connection with the authorization, registration, issuance and sale of the Securities. We have also examined originals, or copies certified to our satisfaction, of such corporate records of the Company and other instruments, certificates of public officials and representatives of the Company and other documents as we have deemed necessary as a basis for the opinions hereinafter expressed. In such examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals and the conformity with the originals of all documents submitted to us as copies. We have also assumed that the Company and each of the Subsidiary Guarantors that is organized under the laws of Ohio, Illinois or Delaware is and will remain duly organized, validly existing and in good standing under Ohio, Illinois or Delaware law. We also have assumed that the Subsidiary Guarantors organized under the laws of Kansas, North Carolina or Michigan are validly existing, have the power to create the applicable Guarantees and have taken, or will take, all requisite steps to authorize entering into the applicable Guarantees under the laws of the state of Kansas, North Carolina or Michigan, as applicable. As to certain facts material to this opinion letter, we have relied without independent verification upon oral and written statements and representations of officers and other representatives of the Company.
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On the basis of the foregoing, and subject to (i) the Registration Statement and any amendments thereto being effective under the Act, (ii) the applicable Indenture under which Debt Securities are issued having been validly executed and delivered by the Company and the other parties thereto, (iii) a prospectus supplement having been filed with the Commission describing the Securities being offered thereby and (iv) all Securities being issued and sold in the manner stated in the Registration Statement and the applicable prospectus supplement and in accordance with a duly executed and delivered purchase, underwriting or similar agreement with respect to such Securities, we are of the opinion that:
1. With respect to the Common Stock, assuming (i) the Board of Directors of the Company or a duly constituted and acting committee thereof (such Board of Directors or committee being hereinafter referred to as the “Board”) has taken all corporate action necessary to approve the final terms of the issuance and sale of the shares of the Common Stock, (ii) that the total issued shares of Common Stock will not exceed the number of authorized shares in the Company Articles, and (iii) the Company has received the consideration therefor (and such consideration per share is not less than the par value per share of the Common Stock), the Common Stock will be validly issued, fully paid and non-assessable.
2. With respect to any series of Preferred Stock, assuming (i) the Board has taken all corporate action necessary to approve the final terms of the issuance and sale of such Preferred Stock, (ii) the terms of the series of the Preferred Stock have been duly established in conformity with the applicable Organizational Documents, (iii) that the total issued shares of Preferred Stock will not exceed the number of authorized shares in the Company Articles, (iv) the due filing of an amendment to the Company Articles, certificate of designation or other applicable document authorizing and establishing the terms of the Preferred Stock, and (v) the Company has received the consideration therefor, the Preferred Stock will be validly issued, fully paid and non-assessable.
3. With respect to the Depositary Shares, assuming (i) the Board has taken all corporate action necessary to authorize and approve the issuance and terms of the related Preferred Stock, (ii) that the total issued shares of Preferred Stock will not exceed the number of authorized shares in the Company Articles, (iii) the due filing of an amendment to the Company Articles, certificate of designation or other applicable document authorizing and establishing the terms of the Preferred Stock, (iv) that the terms of the Depositary Shares and of their issuance and sale have been duly established in conformity with the terms of a valid and legally binding deposit agreement conforming to the description thereof in the Prospectus or Prospectus Supplement, (v) the due issuance and delivery of the related Preferred Stock upon payment of the consideration therefor provided in the applicable definitive purchase, underwriting or similar agreement approved by the Board, and (vi) the due issuance and delivery of Receipts evidencing the Depositary Shares against the deposit of the Preferred Stock in accordance with the deposit agreement, such Depositary Shares will be validly issued and will entitle the holders thereof to the rights specified in the deposit agreement.
4. With respect to the Debt Securities and the Guarantees, assuming (i) the Board and the boards of directors, managers or other governing body, as applicable, of any Subsidiary Guarantors have taken all necessary corporate or limited liability company action to approve the final terms of the issuance and sale of the Debt Securities and any Guarantees, as applicable, (ii) the applicable Indenture has been duly authorized, executed and delivered, (iii) the terms of the Debt Securities and any related Guarantees have been duly established in conformity with the applicable Indenture and do not violate any applicable law or result in a default under, or breach of, an agreement or instrument binding upon the Company and comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company, (iv) such Debt Securities and Guarantees have been duly executed and
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delivered by the Company and the Subsidiary Guarantors, as applicable, and the Debt Securities have been authenticated by the Trustee in accordance with the applicable Indenture, and (v) the Company and the Subsidiary Guarantors have received the consideration therefor, such Debt Securities and Guarantees will constitute valid and legally binding obligations of the Company and such Subsidiary Guarantors enforceable in accordance with their terms.
5. With respect to the Warrants, assuming (i) the Board has taken all necessary corporate action to approve the final terms of the issuance and sale of the Warrants, (ii) the applicable warrant agreement relating to the Warrants has been duly authorized, executed and delivered, (iii) the Warrants are executed, countersigned and delivered in accordance with the applicable warrant agreement against payment therefor, (iv) the applicable warrant agreement is the valid and binding obligation of the applicable warrant agent, enforceable against such warrant agent in accordance with its terms, and (v) the Company has received the consideration therefor, the Warrants will constitute valid and legally binding obligations of the Company enforceable in accordance with their terms.
6. With respect to the Subscription Rights, assuming (i) the Board has taken all necessary corporate action to approve the final terms of the issuance and sale of the Subscription Rights, (ii) the subscription rights agreement relating to the Subscription Rights has been duly authorized, executed and delivered, (iii) the certificates representing the Subscription Rights have been executed, countersigned and delivered in accordance with the applicable subscription rights agreement against payment therefor, (iv) the applicable subscription rights agreement is the valid and binding obligation of the applicable rights agent or other applicable party(ies), enforceable against such rights agent and other applicable party(ies) in accordance with its terms, and (v) the Company has received the consideration therefor, the Subscription Rights will constitute valid and legally binding obligations of the Company enforceable in accordance with their terms.
7. With respect to the Purchase Contracts, assuming (i) the Board has taken all necessary corporate action to approve the final terms of the issuance and sale of the Purchase Contracts, (ii) the purchase agreement relating to the Purchase Contracts has been duly authorized, executed and delivered, (iii) the Purchase Contracts have been executed, countersigned and delivered in accordance with the applicable purchase agreement against payment therefor, (iv) the applicable purchase agreement is the valid and binding obligation of the applicable purchase contracts agent or other applicable party(ies), enforceable against such purchase contracts agent and other applicable party(ies) in accordance with its terms and (v) the Company has received the consideration therefor, the Purchase Contracts will constitute valid and legally binding obligations of the Company enforceable in accordance with their terms.
8. With respect to the Units, assuming (i) the Board has taken all necessary corporate action to approve the final terms of the issuance and sale of the Units, (ii) the purchase agreement relating to the Units has been duly authorized, executed and delivered, (iii) the Units have been executed, countersigned and delivered in accordance with the applicable purchase agreement against payment therefor, (iv) the applicable purchase agreement is the valid and binding obligation of the applicable purchase agent or other applicable party(ies), enforceable against such purchase agent and other applicable party(ies) in accordance with its terms, and (v) the Company has received the consideration therefor, the Units will constitute valid and legally binding obligations of the Company enforceable in accordance with their terms.
Our opinions are subject to the following qualifications:
(xxii) limitations imposed by bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, preference, moratorium or other laws relating to or affecting the rights of creditors generally;
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(xxiii) rights to indemnification, contribution, exculpation, release or waiver, which may be limited by applicable law or equitable principles;
(xxiv) limitations with respect to the enforceability of any provision contained in any applicable agreement to the extent that such provision purports to bind any party to the exclusive jurisdiction of any particular federal court or courts;
(xxv) that irrespective of the agreement of the parties to any applicable agreement, a court may decline to hear a case on grounds of forum non conveniens or other doctrine limiting the availability of such court as a forum for resolution of disputes (and we express no opinion with respect to the subject matter jurisdiction of the federal courts of the United States in any action arising out of or relating to any applicable agreement); and
(xxvi) general principles of equity, including without limitation concepts of materiality, reasonableness, good faith and fair dealing, and the possible unavailability of specific performance or injunctive relief and limitation of rights of acceleration, regardless of whether such enforceability is considered in a proceeding in equity or at law.
The opinions expressed herein are based upon and limited to the laws of the State of New York, the Ohio General Corporation Law, the Illinois Business Corporation Act of 1983 and the Limited Liability Company Act of the State of Delaware (including the applicable provisions of the Delaware Constitution and reported judicial decisions interpreting these laws). We express no opinion herein as to any other laws, statutes, regulations or ordinances. The opinions expressed herein that are based on the laws of the State of New York are limited to the laws generally applicable in transactions of the type covered by the Registration Statement.
We hereby consent to the filing of this opinion letter as Exhibit 5.1 to the Registration Statement and to the reference to our firm under the caption “Legal Matters” in the prospectus included in the Registration Statement. In giving such consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission.
Very truly yours,
/s/ Benesch, Friedlander, Coplan & Aronoff LLP
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| This ‘S-3’ Filing | Date | Other Filings | ||
|---|---|---|---|---|
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| Filed as of: | 9/26/17 | None on these Dates | ||
| Filed on: | 9/25/17 | |||
| List all Filings | ||||
As Of Filer Filing For·On·As Docs:Size Issuer Filing Agent 10/17/17 SEC UPLOAD¶ 11/29/17 1:44K Ameri Kart Holding Corp. |