<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
NACCO Industries, Inc.
- -------------------------------------------------------------------------------
(Name of Issuer)
Class B Common, par value $1.00 per share
- -------------------------------------------------------------------------------
(Title of Class of Securities)
629579 20 02
---------------------------
(CUSIP Number)
Alfred M. Rankin, Jr.
5875 Landerbrook Drive
Mayfield Heights, Ohio 44124-4017
(216) 449-9600
- -------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
November 14, 1996
-------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Amended and Restated Schedule 13D,
and is filing this schedule because of Rule 13d-1(b)(3) or (4), check the
following box [ ].
Check the following box if a fee is being paid with the statement [ ]. (A fee is
not required only if the reporting person: (1) has a previous statement on file
reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are to
be sent.
* The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
<PAGE> 2
CUSIP 629579 20 0 13D Page 2 of 21 Pages
------------ -- --
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
CTR Family Associates, L.P.
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [X]
(b) [ ]
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
00 - See Item 3
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO [ ] ITEMS 2(D) OR 2(E)
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Georgia
- -------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
NUMBER OF ------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY 0
EACH REPORTING ------------------------------------
PERSON WITH 9 SOLE DISPOSITIVE POWER
0
------------------------------------
10 SHARED DISPOSITIVE POWER
0
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0
- -------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN
SHARES* [ ]
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
0%
- -------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
- -------------------------------------------------------------------------------
*SEE INSTRUCTION BEFORE FILLING OUT!
<PAGE> 3
CUSIP 629579 20 0 13D Page 3 of 21 Pages
------------ -- --
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Rankin Management, Inc.
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) G
(b) O
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
00 - See Item 3
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO G ITEMS 2(D) OR 2(E)
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Georgia
- -------------------------------------------------------------------------------
7 SOLE VOTING POWER
426,371
- -------------------------------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY 0
OWNED BY -----------------------------------
EACH REPORTING 9 SOLE DISPOSITIVE POWER
PERSON WITH
0
-----------------------------------
10 SHARED DISPOSITIVE POWER
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
426,371
- -------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN SHARES
* / /
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
25.1%
- -------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
- -------------------------------------------------------------------------------
*SEE INSTRUCTION BEFORE FILLING OUT!
<PAGE> 4
CUSIP 629579 20 0 13D Page 4 of 21 Pages
------------ -- --
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Clara L. T. Rankin
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) / /
(b) X
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
00 - See Item 3
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO G ITEMS 2(D) OR 2(E)
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
USA
- -------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
- -------------------------------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY 7,000
OWNED BY -----------------------------------
EACH REPORTING
PERSON WITH 9 SOLE DISPOSITIVE POWER
0
-----------------------------------
0 SHARED DISPOSITIVE POWER
433,371
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
433,371
- -------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN SHARES
* / /
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
25.5%
- -------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- -------------------------------------------------------------------------------
*SEE INSTRUCTION BEFORE FILLING OUT!
<PAGE> 5
CUSIP 629579 20 0 13D Page 5 of 21 Pages
------------ -- --
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Alfred M. Rankin, Jr.
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) / /
(b) /X/
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
00 - See Item 3
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO G ITEMS 2(D) OR 2(E)
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
USA
- -------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
- -------------------------------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY 16,000
OWNED BY -----------------------------------
EACH REPORTING 9 SOLE DISPOSITIVE POWER
PERSON WITH
0
-----------------------------------
10 SHARED DISPOSITIVE POWER
442,371
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
442,371
- -------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN SHARES
* / /
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
26.1%
- -------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- -------------------------------------------------------------------------------
*SEE INSTRUCTION BEFORE FILLING OUT!
<PAGE> 6
CUSIP 629579 20 0 13D Page 6 of 21 Pages
------------ -- --
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Thomas T. Rankin
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) / /
(b) / /
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
00 - See Item 3
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO / /
ITEMS 2(D) OR 2(E)
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
USA
- -------------------------------------------------------------------------------
7 SOLE VOTING POWER
71,516
- -------------------------------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY 0
OWNED BY -----------------------------------
EACH REPORTING
PERSON WITH 9 SOLE DISPOSITIVE POWER
71,516
-----------------------------------
10 SHARED DISPOSITIVE POWER
426,371
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
497,887
- -------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN SHARES
* / /
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
29.3%
- -------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- -------------------------------------------------------------------------------
*SEE INSTRUCTION BEFORE FILLING OUT!
<PAGE> 7
CUSIP 629579 20 0 13D Page 7 of 21 Pages
------------ -- --
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Claiborne R. Rankin
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) / /
(b) /X/
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
00 - See Item 3
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO / /
ITEMS 2(D) OR 2(E)
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
USA
- -------------------------------------------------------------------------------
7 SOLE VOTING POWER
77,318
- -------------------------------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY 0
OWNED BY ----------------------------------
EACH REPORTING 9 SOLE DISPOSITIVE POWER
PERSON WITH
77,318
----------------------------------
10 SHARED DISPOSITIVE POWER
426,371
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
503,689
- -------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES
CERTAIN SHARES* / /
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
29.7%
- -------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- -------------------------------------------------------------------------------
*SEE INSTRUCTION BEFORE FILLING OUT!
<PAGE> 8
CUSIP 629579 20 0 13D Page 7 of 21 Pages
------------ -- --
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Roger F. Rankin
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) / /
(b) /X/
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
00 - See Item 3
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO G ITEMS 2(D) OR 2(E)
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
USA
- -------------------------------------------------------------------------------
7 SOLE VOTING POWER
78,198
- -------------------------------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY 0
OWNED BY -----------------------------------
EACH REPORTING 9 SOLE DISPOSITIVE POWER
PERSON WITH
78,198
-----------------------------------
10 SHARED DISPOSITIVE POWER
426,371
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
504,569
- -------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN SHARES
* / /
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
29.7%
- -------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- -------------------------------------------------------------------------------
*SEE INSTRUCTION BEFORE FILLING OUT!
<PAGE> 9
CUSIP 629579 20 0 13D Page 7 of 21 Pages
------------ -- --
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Bruce T. Rankin
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) / /
(b) /X/
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
00 - See Item 3
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO G ITEMS 2(D) OR 2(E)
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
USA
- -------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
- -------------------------------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY 0
OWNED BY ------------------------------------
EACH REPORTING 9 SOLE DISPOSITIVE POWER
PERSON WITH
0
------------------------------------
10 SHARED DISPOSITIVE POWER
426,371
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
426,371
- -------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN SHARES
* / /
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
25.1%
- -------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- -------------------------------------------------------------------------------
*SEE INSTRUCTION BEFORE FILLING OUT!
<PAGE> 10
CUSIP 629579 20 0 13D Page 7 of 21 Pages
------------ -- --
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Victoire G. Rankin
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) / /
(b) /X/
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
00 - See Item 3
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO G ITEMS 2(D) OR 2(E)
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
USA
- -------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
- -------------------------------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY 0
OWNED BY ------------------------------------
EACH REPORTING 9 SOLE DISPOSITIVE POWER
PERSON WITH
0
------------------------------------
10 SHARED DISPOSITIVE POWER
426,371
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
426,371
- -------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN SHARES
* / /
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
25.1%
- -------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
- -------------------------------------------------------------------------------
IN
- -------------------------------------------------------------------------------
*SEE INSTRUCTION BEFORE FILLING OUT!
<PAGE> 11
SCHEDULE 13D
CUSIP NO. 629579 20 02 Page 11 of 21 Pages
------------ --- --
The undersigned Reporting Persons hereby file this Schedule 13D (this
"Schedule 13D") in connection with (a) the formation of CTR Family Associates,
L.P., a Georgia limited partnership (the "Partnership"), (b) the organization of
Rankin Management, Inc., a Georgia corporation ("RMI"), (c) the execution and
delivery of the Limited Partnership Agreement of CTR Family Associates, L.P.
(the "Partnership Agreement"), dated as of November 14, 1996, among RMI and the
limited partners of the Partnership (collectively, the "Partners"), (d) the
execution and delivery of the Shareholders' Agreement (the "RMI Shareholders'
Agreement"), dated as of November 14, 1996, among RMI and its shareholders, and
(e) the Partners' contribution, in the aggregate, of 426,371 shares of Class B
Common Stock, par value $1.00 per share, of NACCO Industries, Inc. to the
Partnership as initial capital contributions in exchange for partnership
interests in the Partnership (the "Partnership Interests") proportionate to such
contributions, and with respect to shareholders of RMI, shares of the Class A
Common Stock, without par value, of RMI ("RMI Shares").
ITEM 1. SECURITY AND ISSUER
This statement relates to Class B Common Stock, par value $1.00 per
share ("NACCO Class B Common"), of NACCO Industries, Inc. (the "Company"). The
principal executive offices of the Company are located at 5875 Landerbrook
Drive, Mayfield Heights, Ohio 44124-4017.
ITEM 2. IDENTITY AND BACKGROUND
(a)-(c) Pursuant to Rules 13d-1(f)(1)-(2) of Regulation 13D-G of the
General Rules and Regulations under the Securities Exchange Act of 1934 (the
"Act"), this Schedule 13D is filed on behalf of the Partnership and its Partners
as identified below (collectively, the "Reporting Persons"). The Partners may be
deemed as a group, pursuant to Rule 13d-5(b)(1), to have acquired beneficial
ownership of the NACCO Class B Common of the Company which was contributed to
the capital of the Partnership when the Partners executed and delivered the
Partnership Agreement.
Although the Reporting Persons are making this joint filing, except as
otherwise set forth in this filing, neither the fact of this filing nor anything
contained herein shall be deemed to be an admission by the Reporting Persons
that a group exists within the meaning of the Act.
The name, state of organization, principal business, address of the
principal business and the address of the principal office for each of the
Partnership and RMI, are as follows:
CTR FAMILY ASSOCIATES, L.P., is a Georgia limited partnership.
Its principal business is to hold under common management certain of the NACCO
Class B Common beneficially owned by the Reporting Persons. The address of its
principal business and its principal office is Suite 300, 5875 Landerbrook
Drive, Mayfield Heights, Ohio 44124-4017.
<PAGE> 12
SCHEDULE 13D
CUSIP NO. 629579 20 02 Page 12 of 21 Pages
------------ --- --
RANKIN MANAGEMENT, INC., is a Georgia corporation and the
general partner of the Partnership. The principal business of RMI is to act as a
general and managing partner of the Partnership. The address of its principal
business and its principal office is Suite 300, 5875 Landerbrook Drive, Mayfield
Heights, Ohio 44124-4017. The shareholders, executive officers and directors of
RMI consist of Alfred M. Rankin, Jr., Thomas T. Rankin, Claiborne R. Rankin and
Roger F. Rankin, all of whom are Reporting Persons.
The names, and, for purposes of this filing, the business address, and
present principal occupation or employment, and the name, principal business and
address of any corporation or other organization in which such employment is
conducted, for the Reporting Persons, other than RMI or the Partnership
(hereinafter, the "Reporting Individuals"), are as follows:
CLARA L. T. RANKIN. Ms. Rankin's business address is 5875
Landerbrook Drive, Mayfield Heights, Ohio 44124-4017. She is not employed.
ALFRED M. RANKIN, Jr. Mr. Rankin's business address is 5875
Landerbrook Drive, Mayfield Heights, Ohio 44124-4017. He is Chairman, President
and Chief Executive Officer of the Company at 5875 Landerbrook Drive, Mayfield
Heights, Ohio 44124-4017.
THOMAS T. RANKIN. Mr. Rankin's business address is 2100 West
Laburnam Avenue, Interstate Center, Suite 102, Richmond, Virginia 23227. He is
the owner of Cross-Country Marketing, 2100 West Laburnam Avenue, Interstate
Center, Suite 102, Richmond, Virginia 23227.
CLAIBORNE R. RANKIN. Mr. Rankin's business address is 5875
Landerbrook Drive, Mayfield Heights, Ohio 44124-4017. He is self-employed.
ROGER F. RANKIN. Mr. Rankin's is employed as a Vice President
at Society Asset Management, Inc., a wholly owned subsidiary of KeyCorp, Inc.,
having a business address at 127 Public Square, Cleveland, Ohio 44115.
BRUCE T. RANKIN. Mr. Rankin's business address is 5875
Landerbrook Drive, Mayfield Heights, Ohio 44124-4017. He is not employed.
VICTOIRE G. RANKIN. Ms. Rankin's business address is 5875
Landerbrook Drive, Mayfield Heights, Ohio 44124-4017. She is not employed.
(d) None of the persons identified in this Item 2 has, during the last
five years, been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors).
(e) None of the persons identified in this Item 2 has, during the last
five years, been a party to any civil proceeding of a judicial or administrative
body of competent jurisdiction as a result of which such person was or is
subject to a judgment, decree, or final order enjoining
<PAGE> 13
SCHEDULE 13D
CUSIP NO. 629579 20 02 Page 12 of 21 Pages
------------ --- --
future violations of, or prohibiting or mandating activities subject to, federal
or state securities laws or finding any violation with respect to such laws.
(f) All of the Reporting Individuals identified in this Item 2 are
citizens of the United States of America.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
The NACCO Class B Common held by the Reporting Individuals was acquired
by such Reporting Individuals when The North American Coal Corporation, an Ohio
corporation, was reorganized as the Company in 1986, or subsequently, as
recipients of gifts or bequests of NACCO Class B Common, and with respect to
16,000 shares of NACCO Class B Common held by Alfred M. Rankin, Jr. when he
became successor trustee for the trust created under the Agreement with Clara L.
T. Rankin dated July 12, 1967, creating a trust for the benefit of her
grandchildren. The reorganization included the distribution of one share of
NACCO Class B Common for each two shares of Class A Common Stock, par value
$1.00 per share ("NACCO Class A Common"), of the Company received in the
reorganization.
RMI acquired its interest in the NACCO Class B Common when, in
connection with the formation of the Partnership, the four shareholders of RMI,
Alfred M. Rankin, Jr., Thomas T. Rankin, Claiborne R. Rankin and Roger F.
Rankin, each transferred 2,000 shares of NACCO Class B Common to the Partnership
in fulfillment of RMI's initial capital contribution to the Partnership. In
consideration for the fulfillment of RMI's obligation to contribute to the
initial capital of the Partnership, each of these individuals acquired 2,000 RMI
Shares.
The Partnership acquired the NACCO Class B Common held by the
Partnership as capital contributions from the Partners in connection with the
formation of the Partnership and the execution and delivery of the Partnership
Agreement.
ITEM 4. PURPOSE OF TRANSACTION
The purpose of the formation of RMI and the Partnership, RMI and the
Reporting Individuals entering into and delivering the RMI Shareholders'
Agreement and the Partnership Agreement, and the acquisition by the Partnership
of the NACCO Class B Common is to (a) provide the Reporting Individuals with a
mechanism for consolidating the management of their holdings of NACCO Class B
Common in a manner that will allow coordinated family management of such NACCO
Class B Common, and (b) to facilitate the estate planning objectives of the
Reporting Individuals.
The Reporting Persons do not have any present plans or proposals which
relate to or would result in: (a) the acquisition by any person of additional
securities of the Company or the disposition of securities of the Company; (b)
an extraordinary corporate transaction, such as a merger, reorganization or
liquidation, involving the Company or any of its subsidiaries; (c) a sale or
transfer of a material amount of assets of the Company or any of its
subsidiaries;
<PAGE> 14
SCHEDULE 13D
CUSIP NO. 629579 20 02 Page 14 of 21 Pages
(d) any change in the present Board of Directors or management of the Company,
including any plans or proposals to change the number or term of directors or to
fill any existing vacancies on the Board; (e) any material change in the present
capitalization or dividend policy of the Company; (f) any other material change
in the Company's business or corporate structure; (g) changes in the Company's
charter, by-laws, or other instruments corresponding thereto or other actions
which may impede the acquisition of control of the Company by any person; (h)
causing a class of common stock of the Company to be delisted from a national
securities exchange or to cease to be authorized to be quoted in an inter-dealer
quotation system of a registered national securities association; (i) a class of
equity securities of the Company becoming eligible for termination of
registration pursuant to Section 12(g)(4) of the Act; or (j) any action similar
to any of those enumerated above.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
(a)-(b) Pursuant to the Act and regulations thereunder the Reporting
Persons may be deemed as a group to have acquired beneficial ownership of
426,371 shares of the NACCO Class B Common, the aggregate number of shares of
NACCO Class B Common which are held by the Partnership, representing 25.1% of
the outstanding NACCO Class B Common as of November 13, 1996.
Each of the Reporting Persons has, as of November 22, 1996, sole or
shared power to vote or to direct the vote and sole or shared power to dispose
or to direct the disposition of NACCO Class B Common as follows:
CTR FAMILY ASSOCIATES, L.P. Although the Partnership holds the
426,371 shares of NACCO Class B Common contributed by the Partners, it does not
have any power to vote or to dispose of shares of NACCO Class B Common. Voting
control of the NACCO Class B Common is held by RMI and the power to dispose of
the NACCO Class B Common is shared by RMI and the Partners, all as more fully
described below.
RANKIN MANAGEMENT, INC. RMI has the sole power to vote 426,371
shares of NACCO Class B Common, and has shared power to dispose of the same
426,371 shares of NACCO Class B Common, which constitutes approximately 25.1% of
the outstanding Class B Common. RMI exercises such powers by action of its board
of directors which acts by majority vote.
CLARA L. T. RANKIN. Ms. Rankin shares the power to dispose of
426,371 shares of NACCO Class B Common with RMI and the Reporting Individuals.
In addition, Ms. Rankin has a reversionary interest in 7,000 shares of NACCO
Class B Common held by the an irrevocable trust created by the Agreement dated
December 18, 1963, with National City Bank, a national banking association
("NCB"), as trustee, for the benefit of Elizabeth E. Brown. Ms. Rankin, as an
advisor to such trust, shares with NCB the power to vote and dispose of such
7,000 shares. Collectively, the shares of NACCO Class B Common in which Ms.
Rankin shares the power to dispose constitute approximately 25.5% of the
outstanding NACCO Class B
<PAGE> 15
SCHEDULE 13D
CUSIP NO. 629579 20 02 Page 15 of 21 Pages
Common. NCB is a national banking association with its principal location at
1900 East 9th Street, Cleveland, Ohio 44113. During the last five years, NCB has
not been convicted in a criminal proceeding (excluding traffic violations or
similar misdemeanors), has not been a party to any civil proceeding of a
judicial or administrative body of competent jurisdiction as a result of which
NCB was or is subject to a judgment, decree, or final order enjoining future
violations of, or prohibiting or mandating activities subject to, federal or
state securities laws or finding any violation with respect to such laws.
ALFRED M. RANKIN, Jr. Mr. Rankin (a) shares with NCB the power
to vote and dispose of 16,000 shares of NACCO Class B Common pursuant to the
Agreement with Clara L. T. Rankin dated July 12, 1967, creating a trust for the
benefit of her grandchildren; and (b) shares the power to dispose of 426,371
shares of NACCO Class B Common with RMI and the Reporting Individuals; which
together constitute approximately 26.1% of the outstanding NACCO Class B Common.
THOMAS T. RANKIN. Mr. Rankin has the sole power to vote and to
dispose of 71,516 shares of NACCO Class B Common, including 3,187 shares of
NACCO Class B Common held as custodian for a minor son, and has shared power to
dispose of 426,371 shares of NACCO Class B Common, which together constitute
approximately 29.3% of the outstanding NACCO Class B Common.
CLAIBORNE R. RANKIN. Mr. Rankin has the sole power to vote and
to dispose of 77,318 shares of NACCO Class B Common, including 650 shares of
NACCO Class B Common held as custodian for a minor daughter, 2,408 shares of
NACCO Class B Common held as custodian for a daughter and 1,630 shares of NACCO
Class B Common held as custodian for a minor son, and has shared power to
dispose of 426,371 shares of NACCO Class B Common, which together constitute
approximately 29.7% of the outstanding NACCO Class B Common.
ROGER F. RANKIN. Mr. Rankin has the sole power to vote and to
dispose of 78,198 shares of NACCO Class B Common, and has shared power to
dispose of 426,371 shares of NACCO Class B Common, which together constitute
approximately 29.7% of the outstanding NACCO Class B Common.
BRUCE T. RANKIN. Mr. Rankin has shared power to dispose of
426,371 shares of NACCO Class B Common, which constitutes approximately 25.1% of
the outstanding NACCO Class B Common.
VICTOIRE G. RANKIN. Mrs. Rankin has shared power to dispose of
426,371 shares of NACCO Class B Common, which constitutes approximately 25.1% of
the outstanding NACCO Class B Common.
<PAGE> 16
SCHEDULE 13D
CUSIP NO. 629579 20 02 Page 16 of 21 Pages
(c) Except for the contribution of NACCO Class B Common by the
Reporting Persons to the Partnership, there have been no transactions in NACCO
Class B Common by any of the persons named in response to Item 2 hereof during
the 60 days prior to November 22, 1996.
(d) No other person is known by the undersigned to have the right to
receive or the power to direct the receipt of dividends from, or the proceeds
from the sale of, the NACCO Class B Common which is held by the Partnership.
(e) It is inapplicable for the purposes herein to state the date on
which a Reporting Person ceased to be the beneficial owner of more than five
percent of the class of securities.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO
SECURITIES OF THE ISSUER
(a) Under the terms of the Partnership Agreement, RMI has the sole
power to vote the NACCO Class B Common held by the Partnership. Further under
such terms, RMI exercises such power by a majority vote of its board of
directors.
(b) Under the terms of the Partnership Agreement, the Partnership may
not dispose of NACCO Class B Common without the consent of RMI and the approval
of the holders of more than 75% of all Partnership Interests. Under such terms,
RMI exercises such power of consent by a majority vote of its board of
directors.
(c) The RMI Shareholders' Agreement, the Articles of Incorporation of
RMI (the "Articles") and the Partnership Agreement restrict the transfer of RMI
Shares and Partnership Interests by RMI's shareholders and the Partners and
provide such persons with a right of first refusal to acquire RMI Shares or
Partnership Interests which an RMI shareholder or a Partner desires to sell and
a call right to compel the sale of RMI Shares or Partnership Interests by RMI
Shareholders or the Partners who are not members of a "Family Group," consisting
of one of Clara L. T. Rankin's sons, his spouse and their descendants. These
transfer restrictions, rights of first refusal and call options are more fully
set forth in the RMI Shareholders' Agreement, the Articles and the Partnership
Agreement, copies of which are attached hereto as Exhibits 2, 3, and 4,
respectively, and incorporated herein in their entirety.
(d) Each of the Reporting Individuals is a party to the Stockholders'
Agreement dated as of March 15, 1990, as amended (the "NACCO Stockholders'
Agreement;" a copy of which is attached hereto as Exhibit 5 and is incorporated
herein in its entirety), among the Company, KeyCorp Shareholder Services, Inc.,
as successor depository (the "Depository") and the individuals, custodianships
and trusts listed therein and thus is a "Participating Stockholder" within the
meaning of the NACCO Stockholders' Agreement.
Effective as of November 13, 1996, each of the Company, the
Depository and the Participating Stockholders executed and delivered the First
Revision to Stockholders Agreement amending the NACCO Stockholders Agreement so
as to permit corporations and
<PAGE> 17
SCHEDULE 13D
CUSIP NO. 629579 20 02 Page 17 of 21 Pages
limited partnerships, all of the capital stock or partnership interests of which
are owned by Participating Stockholders, to themselves be Participating
Stockholders. A copy of the First Revision to Stockholders Agreement is attached
hereto as Exhibit 6 and is hereby incorporated herein in its entirety.
On November 14, 1996, RMI and the Partnership each executed
and delivered to the Company, the other Participating Stockholders and the
Depository an Amendment to the NACCO Stockholders' Agreement pursuant to which
RMI and the Partnership became to be Participating Stockholders. Copies of the
Amendments to the NACCO Stockholders' Agreement for RMI and the Partnership are
attached hereto as Exhibits 7 and 8, respectively, and are incorporated herein
in their entirety.
The NACCO Stockholders' Agreement requires a Participating
Stockholder to offer the shares of NACCO Class B Common beneficially owned by
such Participating Stockholder to all of the other Participating Stockholders
upon the occurrence of either of the following: (a) the proposed conversion of
shares of NACCO Class B Common by such Participating Stockholder into shares of
Class A Common Stock, par value $1.00 per share, of the Company ("NACCO Class A
Common"), and (b) the proposed sale, transfer or other disposition of NACCO
Class B Common by such Participating Stockholder to any permitted transferee
(under the terms of the NACCO Class B Common) who is not a signatory to the
NACCO Stockholders' Agreement. In either of these cases, the Participating
Stockholder proposing to enter into one of these transactions must notify all
other Participating Stockholders of such proposed transaction and then must
allow each such other Participating Stockholder the opportunity to purchase such
Participating Stockholder's prorata portion of the shares of NACCO Class B
Common which are subject to the proposed transaction in accordance with the
procedures described below. The NACCO Stockholders' Agreement, however, does not
restrict transfers of NACCO Class B Common among the Participating Stockholders
or any other permitted transferee who becomes a signatory to the Agreement.
A Participating Stockholder proposing to engage in a
transaction triggering a right of first refusal must first give written notice
of the proposed transaction by registered mail to the Depository. The
Depository, in turn, is required to send such notice promptly to all of the
other Participating Stockholders and to the Company. Following receipt of such
notice, each other Participating Stockholder will have seven (7) business days
to elect whether or not to purchase his, her or its prorata portion of the
shares of the NACCO Class B Common which have triggered right of first refusal.
A Participating Stockholder's prorata portion will be determined by dividing the
number of shares of NACCO Class B Common which such person owns by the number of
shares of NACCO Class B Common which are owned by all of the other Participating
Stockholders who similarly may elect to purchase the shares of NACCO Class B
Common which have triggered the right of first refusal. A notice electing to
purchase a prorata portion of the shares of NACCO Class B Common must be sent to
the Depository by the end of the seven (7) business day period. If the other
Participating Stockholders electing to purchase do not elect to purchase all of
the shares of NACCO Class B Common being offered, then such other Participating
Stockholders have an additional five (5) business days to agree
<PAGE> 18
SCHEDULE 13D
CUSIP NO. 629579 20 02 Page 18 of 21 Pages
among themselves how to allocate the shares not purchased. If they cannot reach
any agreement, the allocation shall be prorata. If there are still shares of
NACCO Class B Common which are not purchased following such allocation, then the
Company shall have an additional three (3) business days to decide whether or
not to purchase the remaining shares. The Company, however, is under no
obligation to purchase any such shares.
Following the completion of such procedures, the Participating
Stockholder who has triggered the right of first refusal is free, for a period
of thirty (30) business days, to convert the shares of NACCO Class B Common, if
any, which remain, into shares of NACCO Class A Common. If the Participating
Stockholder had originally proposed to transfer the shares, such Participating
Stockholder would be free to transfer shares of NACCO Class A Common in
accordance with the originally proposed transaction.
Participating Stockholders who elect to exercise the right of
first refusal and purchase shares of NACCO Class B Common may pay for such
shares in cash, an equivalent number of shares of NACCO Class A Common, or in a
combination of cash and shares of NACCO Class A Common. The purchase price to be
paid is the higher of what is specified in the notice sent by the Participating
Stockholder who has triggered the right of first refusal and the average of the
last sales price of NACCO Class A Common on the New York Stock Exchange for the
five (5) days prior to the date of such notice.
The NACCO Stockholders' Agreement only restricts the
conversion, or the sales or other disposition outside of the NACCO Stockholders'
Agreement, of shares of NACCO Class B Common held by each Participating
Stockholder. The NACCO Stockholders' Agreement does not restrict in any respect
how a Participating Stockholder may vote the shares of NACCO Class B Common
which are subject to the terms of the NACCO Stockholders' Agreement.
(e) Except as set forth above in this Schedule 13D or the exhibits
hereto, none of the persons named in response to Item 2 hereof have any
contracts, arrangements, understandings or relationships (legal or otherwise)
with any person with respect to any securities of the Company, including but not
limited to transfer or voting of any such securities, finder's fees, joint
ventures, loan or option arrangements, puts or calls, guarantees of profits or
loss, or the giving or withholding of proxies.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
(Exhibit 1) Agreement pursuant to Rule 13d-1(f)(1)(iii), at page 1 of
the manually signed and sequentially paginated copy of this
Statement.
(Exhibit 2) Shareholders' Agreement of Rankin Management, Inc., dated
as of November 14, 1996.
(Exhibit 3) Articles of Incorporation or Rankin Management, Inc.
<PAGE> 19
SCHEDULE 13D
CUSIP NO. 629579 20 02 Page 19 of 21 Pages
(Exhibit 4) Limited Partnership Agreement of CTR Family Associates,
L.P., dated as of November 14, 1996.
(Exhibit 5) Stockholders Agreement dated as of March 15, 1990, as
amended, among the Company and certain of its shareholders.
(Exhibit 6) First Revision to Stockholders Agreement dated as of November
13, 1996.
(Exhibit 7) Amendment to Stockholders Agreement dated as of November 14,
1996 adding Rankin Management, Inc. as a Participating
Stockholder under the NACCO Stockholders' Agreement.
(Exhibit 8) Amendment to Stockholders Agreement dated as of November 14,
1996 adding CTR Family Associates, L.P. as a Participating
Stockholder under the NACCO Stockholders' Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK. SIGNATURES BEGIN ON NEXT PAGE.]
<PAGE> 20
SCHEDULE 13D
CUSIP NO. 629579 20 02 Page 20 of 21 Pages
After reasonable inquiry and to the best of our knowledge and
belief, we certify that the information set forth in this statement is true,
complete and correct.
Dated: November __, 1996
Name: CTR Family Associates, L.P.
By: Rankin Management, Inc.,
its Managing Partner
By: /s/ Alfred M. Rankin
-----------------------------------
Alfred M. Rankin, Jr., President
Name: Rankin Management, Inc.
By /s/ Alfred M. Rankin
---------------------------------
Alfred M. Rankin, Jr., President
-----------------------------------
Name: Alfred M. Rankin, Jr.
Name: Rankin Management, Inc.
By:
------------------------------------------
Alfred M. Rankin, Jr., President
Attorney-in-Fact for Clara L. T. Rankin*
Attorney-in-Fact for Victoire G. Rankin*
Attorney-in-Fact for Thomas T. Rankin*
Attorney-in-Fact for Claiborne R. Rankin*
Attorney-in-Fact for Roger F. Rankin*
Attorney-in-Fact for Bruce T. Rankin*
- ------------------------------
* The power of attorney authorizing the above named individual to act on
behalf of each of the foregoing Reporting Persons is included in
Exhibit 2 at page 16 and in Exhibit 3 at pages 28 through 29.
<PAGE> 1
SCHEDULE 13D
CUSIP NO. 629579 20 02 Page 21 of 21 Pages
Pursuant to Rule 13d-1(f)(1)(iii) of Regulation 13D-G of the
General Rules and Regulations under the Securities and Exchange Act of 1934, the
undersigned agree that the statement to which this Exhibit is attached is filed
on behalf of each of the undersigned.
Dated: November __, 1996
Name: CTR Family Associates, L.P.
By: Rankin Management, Inc.,
its Managing Partner
By: /s/ Alfred M. Rankin
-----------------------------------
Alfred M. Rankin, Jr., President
Name: Rankin Management, Inc.
By /s/ Alfred M. Rankin
---------------------------------
Alfred M. Rankin, Jr., President
-----------------------------------
Name: Alfred M. Rankin, Jr.
Name: Rankin Management, Inc.
By:
------------------------------------------
Alfred M. Rankin, Jr., President
Attorney-in-Fact for Clara L. T. Rankin*
Attorney-in-Fact for Victoire G. Rankin*
Attorney-in-Fact for Thomas T. Rankin*
Attorney-in-Fact for Claiborne R. Rankin*
Attorney-in-Fact for Roger F. Rankin*
Attorney-in-Fact for Bruce T. Rankin*
- ------------------------------
* The power of attorney authorizing the above named individual to act on
behalf of each of the foregoing Reporting Persons is included in
Exhibit 2 at page 16 and in Exhibit 3 at pages 28 through 29.
<PAGE> 1
Exhibit 2
SHAREHOLDERS' AGREEMENT
of
RANKIN MANAGEMENT, INC.
Dated as of November 14, 1996
<PAGE> 2
<TABLE>
<CAPTION>
TABLE OF CONTENTS
PAGE
----
<S> <C> <C>
1. Definitions................................................................................... 1
1.1 "Act"................................................................................ 1
1.2 "Agreement".......................................................................... 1
1.3 "Board of Directors"................................................................. 2
1.4 "Authorized Transferee".............................................................. 2
1.5 "Call Notice"........................................................................ 2
1.6 "Call Option"........................................................................ 2
1.7 "Charitable Organization"............................................................ 2
1.8 "Code"............................................................................... 2
1.9 "Company"............................................................................ 2
1.10 "Election"........................................................................... 2
1.11 "Fair Market Value".................................................................. 2
1.12 "Family Group"....................................................................... 2
1.13 "Family Member"...................................................................... 2
1.14 "Family Shareholder"................................................................. 3
1.15 "Final Valuation".................................................................... 3
1.16 "First Appraised Value".............................................................. 3
1.17 "Independent Appraiser"..................................................... 3
1.18 "Initial Appraiser".................................................................. 3
1.19 "Initial Value"...................................................................... 3
1.20 "NACCO".............................................................................. 3
1.21 "NACCO Class A Shares"............................................................... 3
1.22 "NACCO Class B Shares"............................................................... 3
1.23 "NACCO Stockholders' Agreement"...................................................... 3
1.24 "NACCO Restated Certificate"......................................................... 3
1.25 "Objecting Party"........................................................... 3
1.26 "Original Shareholder"............................................................... 3
1.27 "Offered Shares"..................................................................... 4
1.28 "Option Shares"...................................................................... 4
1.29 "Original Holders"................................................................... 4
1.30 "Outside Shareholder"................................................................ 4
1.31 "Outstanding Remaining Shares"....................................................... 4
1.32 "Permitted Transferee"............................................................... 4
1.33 "Person"............................................................................. 4
1.34 "Proportionate Part"................................................................. 4
1.35 "Purchase Price"..................................................................... 4
(a) Initial Value............................................................... 4
(b) Appraised Value............................................................. 4
(c) Mutually Agreed Upon Purchase Price......................................... 5
(d) Cooperation with Appraisers................................................. 5
1.36 "Purchase Right"..................................................................... 5
1.37 "Qualified Fiduciary"................................................................ 5
1.38 "Remaining Shares"................................................................... 5
</TABLE>
-i-
<PAGE> 3
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
1.39 "Seller's Notice".................................................................... 5
1.40 "Selling Shareholder"................................................................ 5
1.41 "Shares"............................................................................. 5
1.42 "Shareholder"........................................................................ 5
1.43 "Starting Date"...................................................................... 6
1.44 "Transfer"........................................................................... 6
1.45 "Valuation Notice"................................................................... 6
2. Management of the Company..................................................................... 6
2.2 Composition of Board of Directors.................................................... 6
2.3 Election of Directors................................................................ 6
2.4 Board Deadlock....................................................................... 6
3. Shareholder Relations......................................................................... 7
3.1 Shareholder Approval................................................................. 7
3.2 Access to Business Information....................................................... 7
3.3 Pre-emptive Rights................................................................... 7
4. Restrictions on Transfers of Shares........................................................... 7
4.1 Restriction on Transfers............................................................. 7
4.2 Unrestricted Transfers............................................................... 8
4.3 Purchase Right....................................................................... 8
4.4 Call Options to Purchase Shares...................................................... 8
4.5 Allocation of Offered Shares and Option Shares....................................... 9
(a) Allocation to Original Holders of Offered Shares............................ 10
(b) Allocation among Family Groups.............................................. 10
(c) Allocation to the Company................................................... 11
(d) Allocation of Shares among Family Group Members............................. 11
5. General Restrictions/Covenants on Transfer.................................................... 11
5.1 Securities Law Restrictions.......................................................... 11
5.2 Legends.............................................................................. 12
5.3 Stock Transfer Record................................................................ 12
6. Closing....................................................................................... 13
6.1 Terms of Sale........................................................................ 13
6.2 Closing.............................................................................. 13
6.3 Legal Requirements................................................................... 13
6.4 Removal of Shareholder From Personal Obligation...................................... 13
7. Agreements by the Company..................................................................... 13
</TABLE>
-ii-
<PAGE> 4
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
8. Shareholder Covenants......................................................................... 14
8.1 Voting of Shares..................................................................... 14
8.2 No Contrary Action................................................................... 14
8.3 Shareholder Status................................................................... 14
9. Subchapter S Corporation Status............................................................... 14
9.1 Maintenance of Election.............................................................. 14
9.2 Shareholder Actions to Preserve Election............................................. 14
9.3 Revocation of Election............................................................... 15
9.4 Inadvertent Termination of Election.................................................. 15
9.5 Tax Distributions.................................................................... 15
10. Termination................................................................................... 15
10.1 Term................................................................................. 15
10.2 Removal of Legends Upon Termination.................................................. 16
11. Power of Attorney............................................................................. 16
12. Arbitration................................................................................... 16
13. General Provisions............................................................................ 16
13.1 Waivers and Amendments............................................................... 16
13.2 Successors and Assigns............................................................... 17
13.3 Counterparts......................................................................... 17
13.4 Notices.............................................................................. 17
13.5 Entire Agreement..................................................................... 17
13.6 Governing Law........................................................................ 17
13.7 Severability......................................................................... 17
13.8 No Third Party Beneficiaries......................................................... 17
13.9 Specific Performance................................................................. 18
13.10 Titles and Headings.................................................................. 18
13.11 Conflicts............................................................................ 18
</TABLE>
-iii-
<PAGE> 5
SHAREHOLDERS' AGREEMENT
-----------------------
THIS SHAREHOLDERS' AGREEMENT (this "Agreement"), dated as of
November 14, 1996 is made by and among RANKIN MANAGEMENT, INC., a Georgia
corporation (the "Company"), and each of the Shareholders.
RECITALS
--------
A. Each of the Original Shareholders holds 1000 Shares and collectively
with the other Original Shareholders hold all of the issued and
outstanding Shares.
B. The Company has elected, or will elect (the "Election"), to be taxed as
an S corporation pursuant to Section 1362 of the Code and all of the
Original Shareholders have duly consented, or will duly consent, to the
Election.
C. The parties to this Agreement desire to keep the Election in force
until it may be revoked or otherwise terminated pursuant to this
Agreement.
D. The parties to this Agreement desire to ensure that the Company will
make sufficient distributions to pay the individual income taxes
payable by the Shareholders with respect to the income of the Company
during the period that the Election is in effect.
E. The parties to this Agreement desire to ensure that each Family Group
shall continue to own its Proportionate Part of the Shares, as
increased or reduced pursuant to the terms of this Agreement.
F. The parties to this Agreement desire to provide for stability of the
ownership and operation of the Company and to promote continuity in the
Company's management and policies.
AGREEMENTS
----------
NOW, THEREFORE, in consideration of the foregoing premises and
the mutual covenants hereinafter set forth, and other good and valuable
consideration had and received, the parties to this Agreement agree as follows:
1. DEFINITIONS. The following terms when used in this Agreement shall
have the meanings set forth below:
1.1 "ACT" shall mean the Securities Act of 1933, as amended.
1.2 "AGREEMENT" shall have mean this Agreement as it may be
amended from time to time.
<PAGE> 6
1.3 "BOARD OF DIRECTORS" means the Board of Directors of the Company.
1.4 "AUTHORIZED TRANSFEREE" with respect to a Shareholder means the
Family Group of such Shareholder, the Original Shareholder of such Family Group,
and any Family Member of such Family Group who (a) is a Permitted Transferee,
(b) is a "Participating Stockholder" under Section 1.12 of the NACCO
Stockholders Agreement, and (c) has executed and delivered to the Company a
counterpart of this Agreement agreeing to be subject to the restrictions and
obligations of a Shareholder hereunder and to hold all Shares then owned or
later acquired by such Family Member in accordance with the terms of this
Agreement.
1.5 "CALL NOTICE" shall have the meaning set forth in
Section 1.44, 4.4(a).
1.6 "CALL OPTION" shall have the meaning set forth in
Section 4.4.
1.7 "CHARITABLE ORGANIZATION" means any organization contributions to
which are deductible for federal income, estate or gift tax purposes. A
Charitable Organization shall be an Outside Shareholder unless prior to the
Transfer of Shares to such Charitable Organization, the Board of Directors has
designated such Charitable Organization as eligible to be considered a Family
Member, in which event a Charitable Organization so designated shall, with
respect to the Shares transferred to it by any Shareholder, be considered a
Family Member of and a member of the Family Group of such Shareholder.
1.8 "CODE" shall mean the Internal Revenue Code of 1986, as amended.
References to specific sections of the Code shall be deemed to include
references to corresponding provisions of any succeeding internal revenue law of
the United States of America.
1.9 "COMPANY" shall mean Rankin Management, Inc., a Georgia
corporation.
1.10 "ELECTION" shall have the meaning set forth in Recital B to this
Agreement.
1.11 "FAIR MARKET VALUE" means the price at which the subject Shares
would change hands between a willing buyer and a willing seller, neither being
under any compulsion to buy or sell and both being reasonably informed of the
relevant factors and in light of the circumstances and prospects surrounding the
business of the Company. A determination of the Fair Market Value of the subject
Shares shall take into consideration appropriate discounts for lack of
marketability and minority interest related to such Shares, but will not take
into consideration the affect of any liquidity provided by the provisions of
Section 4.3.
1.12 "FAMILY GROUP" shall mean an Original Shareholder, and his Family
Members so long as such Original Shareholder or any such Family Members own any
Shares.
1.13 "FAMILY MEMBER" shall mean a spouse or surviving spouse of an
Original Shareholder, any descendant of an Original Shareholder, a spouse or
surviving spouse of any
2
<PAGE> 7
such descendant, or any Qualified Fiduciary. Notwithstanding anything to the
contrary contained herein:
(a) the surviving spouse of an Original Shareholder or of a
descendent of an Original Shareholder shall cease to be a Family Member upon the
remarriage of such person to other than an Original Shareholder or descendent of
an Original Shareholder; and
(b) the spouse of an Original Shareholder or of a descendent
of an Original Shareholder shall cease to be a Family Member upon legal
separation, divorce or dissolution of such spouse's marriage to said Original
Shareholder or descendent; and
(c) a Qualified Fiduciary shall cease to be a Family Member
from and after any event or lapse of time which causes such fiduciary to no
longer qualify as a Qualified Fiduciary as defined in Section 1.37.
1.14 "FAMILY SHAREHOLDER" shall mean a Shareholder who is, and only so
long as such Shareholder is, an Original Shareholder or a Family Member.
1.15 "FINAL VALUATION" shall have the meaning set forth in
Section 1.35(b).
1.16 "FIRST APPRAISED VALUE" shall have the meaning set forth in
Section 1.35(b).
1.17 "INDEPENDENT APPRAISER" shall have the meaning set forth in
Section 1.35(b).
1.18 "INITIAL APPRAISER" shall have the meaning set forth in
Section 1.35(b).
1.19 "INITIAL VALUE" shall have the meaning set forth in
Section 1.35(a).
1.20 "NACCO" means NACCO Industries, Inc., a Delaware corporation.
1.21 "NACCO CLASS A SHARES" means shares of Class A Common Stock, par
value $1.00 per share, of NACCO.
1.22 "NACCO CLASS B SHARES" means shares of Class B Common Stock, par
value $1.00 per share, of NACCO.
1.23 "NACCO STOCKHOLDERS' AGREEMENT" means the Stockholders' Agreement
dated as of March 15, 1990 by and among the Participating Stockholders, NACCO
and Ameritrust Company National Association, a national banking association, as
depository, as amended from time to time.
1.24 "NACCO RESTATED CERTIFICATE" means the Restated Certificate of
Incorporation of NACCO, as amended from time to time.
1.25 "OBJECTING PARTY" shall have the meaning set forth in
Section 1.35(a).
3
<PAGE> 8
1.26 "ORIGINAL SHAREHOLDER" shall mean each of Alfred M. Rankin, Jr.,
Claiborne R. Rankin, Roger F. Rankin and Thomas T. Rankin.
1.27 "OFFERED SHARES" shall have the meaning set forth in Section
4.3(a).
1.28 "OPTION SHARES" shall have the meaning set forth in Section 4.4.
1.29 "ORIGINAL HOLDERS" shall have the meaning set forth in Section
4.5(a).
1.30 "OUTSIDE SHAREHOLDER" shall mean a Shareholder, other than Clara
T. Rankin, who is not then a member of a Family Group, including, without
limitation, a Shareholder who has ceased to be a Family Member pursuant to the
terms of Sections 1.13(a), 1.13(b) or 1.13(c).
1.31 "OUTSTANDING REMAINING SHARES" shall have the meaning set forth in
Section 4.5(b)(iii).
1.32 "PERMITTED TRANSFEREE" means a "Permitted Transferee" as defined
under Article FOURTH, Section 4 of the NACCO Restated Certificate.
1.33 "PERSON" means any individual, estate, trust, corporation,
partnership, limited liability company, joint venture, unincorporated
organization or other entity, association or organization.
1.34 "PROPORTIONATE PART" means a fraction, the numerator of which is
the number of Shares held by a Family Group and the denominator of which is the
number of Shares held by all Family Groups.
1.35 "PURCHASE PRICE" shall mean the Fair Market Value of the Offered
Shares or Option Shares, as the case may be, determined as follows:
(a) INITIAL VALUE. The Board of Directors shall from time to
time determine a per share value for the Shares (the "Initial Value") based upon
such considerations as the Board of Directors, in its sole discretion,
determines to be relevant to such valuation. If a Selling Shareholder or Outside
Shareholder (for purposes of this Section 1.35, the "Objecting Party") does not
provide written objections to the Company concerning the Initial Value set forth
in the Valuation Notice within 10 days after the date of such Valuation Notice,
the Purchase Price shall be equal to the Initial Value.
(b) APPRAISED VALUE. If an Objecting Party objects in writing
to the Initial Valuation within 10 days after its receipt of the Valuation
Notice, the Objecting Party, within fourteen (14) days from the date of such
written objection, shall engage an appraiser (the "Initial Appraiser") to
determine within 30 days of such appointment the Fair Market Value of the Shares
(the "First Appraised Value"). The cost of the First Appraiser shall be borne by
the Objecting Party. If the First Appraised Value is at least eighty percent
(80%) of the Initial Value, then the Purchase Price shall be the average of the
Initial Value and the First
4
<PAGE> 9
Appraised Value. If the First Appraised Value is less than eighty percent (80%)
of the Initial Value, then the Company and the Objecting Party shall, within
fourteen (14) days from the date of the First Appraised Value, mutually agree on
an appraiser (the "Independent Appraiser"). The cost of the Independent
Appraiser shall be borne equally by the Company and the Objecting Party. The
Independent Appraiser shall determine within 14 days after its appointment the
Fair Market Value of the Shares (the "Final Valuation"), but such Final
Valuation shall be not less than the smaller of the Initial Value and the First
Appraised Value nor greater than the larger of the Initial Value and the First
Appraised Value. The Purchase Price shall be equal to the Final Valuation and
shall be final and binding upon the parties to this Agreement for purposes of
the subject transaction.
(c) MUTUALLY AGREED UPON PURCHASE PRICE. Notwithstanding the
procedure set forth above, the Company and an Objecting Party may, prior to or
at any time during the appraisal process, mutually agree on a single independent
appraiser to determine the Purchase Price, which determination shall be binding
on all of the parties, or may agree in writing upon a Purchase Price.
(d) COOPERATION WITH APPRAISERS. The Company shall cooperate
in assisting the appraisers in determining the Purchase Price, including
providing reasonable access to the books and records of the Company and to such
other information as the appraisers reasonably request in connection with such
determination; PROVIDED, HOWEVER, that nothing in this Agreement shall require
the Company to disclose privileged or proprietary information; and PROVIDED
FURTHER, that the Company may require such appraisers to enter into such
confidentiality and non-disclosure agreements as the Company reasonably believes
to be necessary to protect the interests of the Company and its Shareholders.
1.36 "PURCHASE RIGHT" shall have the meaning set forth in Section 4.3.
1.37 "QUALIFIED FIDUCIARY" means (a) the trustee of any trust
(including without limitation a voting trust) if and as long as the trust is
held for the benefit of one or more Permitted Transferees and no other Person,
or (b) the executor, administrator, guardian, personal representative or other
fiduciary of a deceased, incompetent, bankrupt or insolvent Permitted
Transferee; PROVIDED that any such trust must prohibit the transfer of Shares to
any Persons other than (x) the Person or Persons who established the trust, and
(y) Authorized Transferees of the Person or Persons who established such trust.
1.38 "REMAINING SHARES" shall have the meaning set forth in Section
4.5(b).
1.39 "SELLER'S NOTICE" shall have the meaning set forth in Section
4.3(a).
1.40 "SELLING SHAREHOLDER" shall have meaning set forth in Section 4.3.
1.41 "SHARES" means shares of the Common Stock, par value $_____ per
share, of the Company.
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1.42 "SHAREHOLDER" shall mean each Original Shareholder, each
Authorized Transferee who acquires Shares and any other Person who becomes a
party to this Agreement as the result of a Transfer of Shares to such Person.
1.43 "STARTING DATE" means, with respect to any Seller's Notice or Call
Notice, the date of the final determination of the Purchase Price relating to
such notice.
1.44 "TRANSFER" means any sale, assignment, pledge, hypothecation,
encumbrance, disposition, transfer (including, without limitation, a transfer by
will or intestate distribution), gift or attempt to create or grant a security
interest in Shares, whether voluntary, involuntary, by operation of law or
otherwise. Without limiting the rights of the Company and the Family Groups
under Section , the occurrence of an event discussed in Sections 1.13(a),
1.13(b), or 1.13(c), pursuant to which a Family Member ceases to be a Family
Member and is thereafter treated as an Outside Shareholder, shall not
constitute a "Transfer" giving rise to the exercise of Purchase Rights under
Section 4.3.
1.45 "VALUATION NOTICE" shall mean the notice given by the Company
pursuant to Sections 4.3(b)or 1.44, 4.4(a) and stating the Initial Value at
which a Purchase Right or a Call Option is to be exercised.
2. MANAGEMENT OF THE COMPANY.
2.1 COMPANY ACTION. The Company shall only take an action or exercise a
right or authority under this Agreement, the Articles of Incorporation of the
Company or the Bylaws of the Company, or in its capacity as a general or
managing partner of any partnership, with the approval of a majority of the
Directors of the Company.
2.2 COMPOSITION OF BOARD OF DIRECTORS. During the term of this
Agreement, the Board of Directors shall consist of at least one (1) individual
for each Family Group, or such greater number as shall be equally divisible by
the number of Family Groups.
2.3 ELECTION OF DIRECTORS. Each Original Shareholder, and after such
Original Shareholder's death his Family Members acting by the vote of a majority
of the Shares held by such Family Group, shall designate to the Board of
Directors such number of Directors as shall be equal to the quotient of (a) the
total number of Directors, divided by (b) the number of Family Groups. The
Shareholders shall vote their Shares in favor of all individuals designated to
the Board of Directors pursuant to this Section 2.3.
2.4 BOARD DEADLOCK. In the event that the Directors become deadlocked
or otherwise reach an impasse with respect to any aspect of the management or
operation of the Company or the Company's assets, the Directors, by majority
vote of the Directors then serving, shall select an unrelated third party to
resolve the deadlock or other impasse, and the resolution of such unrelated
third party shall be binding on the Directors and all of the Shareholders. To
this end, the Shareholders agree to elect as Directors, as the case may be, only
those individuals who are willing, if required, to implement the terms of this
subparagraph 2.4. If the Directors shall be unable to agree upon such an
unrelated third
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party to resolve a deadlock or impasse, any Director may petition the Common
Pleas Court of Cuyahoga County, Ohio to make such an appointment.
3. SHAREHOLDER RELATIONS.
3.1 SHAREHOLDER APPROVAL. Unless otherwise required by statute, the
affirmative vote of the Shareholders owning a majority of the Shares of each of
the Family Groups shall be required:
(a) to amend the Articles of Incorporation or Bylaws of
the Company;
(b) to amend this Agreement;
(c) for the Company to issue, reacquire or transfer any shares
of Common Stock, except that the Company may acquire Shares as permitted under
this agreement without further approval or action by the Shareholders;
(d) to consolidate or merge the Company; or
(e) to liquidate or sell substantially all of the assets
of the Company.
3.2 ACCESS TO BUSINESS INFORMATION. Each Shareholder shall have the
absolute right, without the necessity of stating any purpose, to examine and
copy during usual business hours all corporate records of the Company. In
addition, each Shareholder shall have the absolute right to discuss the business
activities of the Company with the Company's lawyers and accountants and to
engage (at such Shareholder's own expense) a lawyer or accountant to participate
or represent him in any such discussions.
3.3 PRE-EMPTIVE RIGHTS. The Shareholders shall, upon the offering by
the Company for sale of shares of any class of stock of the Company, have the
right, during a reasonable period of time and on substantially the same terms
that such shares are being offered or sold, to purchase such shares in
proportion to their respective holdings of Shares.
4. RESTRICTIONS ON TRANSFERS OF SHARES
4.1 RESTRICTION ON TRANSFERS. Except as otherwise provided in this
Agreement, no Shareholder shall, either during the Shareholder's lifetime or
upon the Shareholder's death, Transfer any of the Shares now owned or hereafter
acquired by such Shareholder. Without limiting the foregoing, a Shareholder
shall not transfer any of his, her or its Shares to any Person or in any manner
which would cause the Election to be terminated or revoked or which would be
contrary to the provisions of the NACCO Restated Certificate or the NACCO
Stockholders' Agreement. In the event of any purported or attempted Transfer of
Restricted Shares that does not comply with this Agreement, the purported
transferee or successor by operation of law shall not be deemed to be a
shareholder of the Company for any purpose and shall not be entitled to any of
the rights of a shareholder of the Company, including, without limitation, the
right to vote the Shares or to receive a certificate for Shares
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<PAGE> 12
or any dividends or other distributions on or with respect to Shares. Any
purported or attempted transfer of Shares made other than in accordance with the
provisions of this Agreement shall be void AB INITIO and the last holder of
record who acquired such Shares in a manner not contrary to the provisions of
this Agreement shall be recognized as the holder of such Shares for all purposes
and the Shares shall continue to be treated as Shares for all purposes under
this Agreement, shall be deemed owned by such recognized holder for purposes of
the operation of this Agreement and shall continue to be subject to the terms of
this Agreement.
4.2 UNRESTRICTED TRANSFERS. Notwithstanding anything to the contrary
contained herein, each Original Shareholder or Authorized Transferee of such
Original Shareholder shall be entitled to Transfer all or any portion of his,
her or its Shares to any Authorized Transferee of such Original Shareholder,
without need to comply with the other provisions of this Agreement.
4.3 PURCHASE RIGHT. At any time after the date hereof, the Company and
the Family Groups shall have a right of first refusal (the "Purchase Right") to
purchase, pursuant to the terms of this Section 4.3, from any Shareholder (for
purposes of this Section 4.3, a "Selling Shareholder") intending to Transfer,
other than as permitted in Section 4.2 of this Agreement, all or any portion of
his, her or its Shares (including any Shares acquired after the date
hereof).
(a) A Selling Shareholder intending to Transfer all or any
portion of his, her or its Shares shall first deliver to the Company a written
notice (the "Seller's Notice") specifying (i) the number of Shares to be
transferred (the "Offered Shares"); and (ii) the identity of the proposed
transferee.
(b) Within 10 days after the Company's receipt of the Seller's
Notice, the Company shall deliver to the Selling Shareholder a Valuation Notice
setting forth the Initial Value and the Company and the Selling Shareholder
shall commence the process to determine the Purchase Price pursuant to Section
1.35 of this Agreement.
(c) Within 10 days after Starting Date, the Company shall
notify each Family Shareholder (other than the Selling Shareholder) of (i) the
Starting Date; (ii) the number of Offered Shares; and (iii) the Purchase Price.
The Company's notice shall include a copy of the Seller's Notice.
(d) Within 40 days after the Starting Date, each Shareholder
shall notify the Company of how many, if any, of the Offered Shares he or she
elects to purchase.
(e) Within 50 days after the Starting Date, the Company shall
provide written notice to the Selling Shareholder and to each other Shareholder
of (i) the number of Offered Share to be purchased by Family Shareholders and
the allocation of the Offered Shares among the Family Shareholders pursuant to
the terms of Section 4.5 of this Agreement; (ii) the number of Offered Shares
to be purchased by the Company; and (iii) the
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time, date and place of closing which shall be no sooner than 90 days after the
Starting Date and no later than 120 days after the Starting Date.
4.4 CALL OPTIONS TO PURCHASE SHARES. At any time after the date hereof,
the Company and the Family Groups shall have the option (the "Call Option") to
purchase from any Shareholder who is then an Outside Shareholder all, but not
less than all, of the Shares (the "Option Shares") directly or indirectly owned
by such Outside Shareholder, and upon the exercise of a Call Option such Outside
Shareholder shall be obligated to sell to the purchasing Shareholders or the
Company, as the case may be, all (but not less than all) of his, her or its
Option Shares. The Call Option shall be exercised as follows:
(a) Within thirty (30) days after the determination by the
Board of Directors to exercise a Call Option with respect to an Outside
Shareholder, the Company shall provide written notice (the "Call Notice") of
such exercise to the Selling Outside Shareholder of (i) the exercise of the
Option; (ii) the number of Option Shares; and (iii) the Initial Value of the
Option Shares. Thereafter, the Company and the Outside Shareholder shall
determine the Purchase Price in accordance with Section 1.35.
(b) Within ten (10) days after the Starting Date, the Company
shall provide notice of such exercise to each Shareholder who is then a member
of a Family Group (a "Family Shareholder") of (i) the exercise of the Option;
(ii) the number of Option Shares; (iii) the Purchase Price of the Option Shares;
and (iv) the Starting Date.
(c) Within 40 days after the Starting Date, each Family
Shareholder shall notify the Company of how many, if any, of the Option Shares
he, she or it elects to purchase.
(d) Within 50 days after the Starting Date, the Company shall
provide written notice to the selling Outside Shareholder and to each Family
Shareholder of (i) the allocation of the Option Shares among the Family
Shareholders pursuant to the terms of Section 4.5 of this Agreement; (ii) the
number of Option Shares to be purchased by the Company; and (iii) the time,
date and place of closing which shall be no sooner than 90 days after the
Starting Date and no later than 120 days after the Starting Date.
(e) If the Company and the Family Shareholders do not together
elect to purchase all of the Option Shares then the Outside Shareholder shall
not be obligated to sell any of the Option Shares; PROVIDED, HOWEVER, that the
Company and the Family Shareholders shall continue to have the right to exercise
a Call Option with respect to such Option Shares at anytime thereafter.
(f) The Option Shares shall be allocated among the Company and
the Family Groups, and within each Family Group among its members, in the manner
provided in Section 4.5.
4.5 ALLOCATION OF OFFERED SHARES AND OPTION SHARES. Offered Shares and
Option Shares shall be allocated among the Company and the Family Shareholders
pursuant to the
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<PAGE> 14
terms of this Section 4.5. At the Closing, the Company and such Family
Shareholders, as the case may be, shall be obligated to purchase the Offered
Shares or Option Shares so allocated pursuant to the terms and provisions of
this Agreement. Notwithstanding anything to the contrary contained herein, no
Shareholder shall be entitled to receive, or be obligated to purchase, more
Shares than such Shareholder has elected to purchase pursuant to Section 4.3(d)
or 4.4(c), as the case may be. All Offered Shares or Option Shares shall be
allocated as follows:
(a) ALLOCATION TO ORIGINAL HOLDERS OF OFFERED SHARES. The
Shares to be allocated shall first be allocated to the members of the Family
Group (the "Original Holders") in which the Selling Shareholder is a Family
Member who have elected to purchase any portion of such Shares, or if the
Selling Shareholder is an Outside Shareholder, from which the Selling
Shareholder, or his, her or its predecessors in interest, acquired such Shares.
Such Shares shall be allocated in accordance with Section 4.5(d).
(b) ALLOCATION AMONG FAMILY GROUPS. Any Offered Shares or
Option Shares not allocated pursuant to Section 4.5(a) (the "Remaining Shares")
shall be allocated among the Family Groups (other than the Original Holders)
which have Shareholders electing to purchase Offered Shares or Option Shares as
follows:
(i) If a Family Group has collectively
elected to purchase a number of Offered
Shares or Option Shares which is less
than or equal to its Proportionate Part
of the Remaining Shares, then such Family
Group shall be allocated the number of
Shares that its members have elected to
purchase.
(ii) If a Family Group has collectively
elected to purchase a number of Offered
Shares or Option Shares which is greater
than its Proportionate Part of the
Remaining Shares, then such Family Group
shall, in the first instance, be
allocated its Proportionate Part of the
Remaining Shares.
(iii) If additional Remaining Shares remain to
be allocated after the application of
subsections (i) and (ii) above (the
"Outstanding Remaining Shares"), then
each Family Group which has collectively
elected to purchase a number of Offered
Shares or Option Shares which exceeds its
Proportionate Part shall be allocated an
additional number of the Remaining Shares
equal to the lesser of:
(A) The number of Offered Shares
or Option Shares which such
Family Group elected to
purchase but which were not
allocated to it by reason of
subsection (ii) above, or
(B) That portion of the
Outstanding Remaining Shares
represented by a fraction
the numerator of which is
the
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number of Shares held by such Family
Group (prior to such allocation),
and the denominator of which is the
number of Shares held by all Family
Groups which have elected to
purchase a number of Offered Shares
or Option Shares in excess of the
number of those Offered Shares or
Option Shares previously allocated
to them under this Section 4.5.
(iv) Any Shares remaining to be allocated
after the application of subsections (i),
(ii) and (iii) above, shall be allocated
in accordance with the procedures
described in subsection (iii) above until
either (A) all of the Offered Shares or
Option Shares which Family Shareholders,
as the case may be, have elected to
purchase have been allocated, or (B)
there remains only one Family Group which
has not been allocated all of the Shares
it has elected to purchase, in which
event all of the then unallocated Offered
Shares or Option Shares shall be
allocated to such Family Group up to the
amount that such Family Group elected to
purchase.
(c) ALLOCATION TO THE COMPANY. The Company shall purchase any
Offered Shares not allocated to a Family Group. The Company may, but shall not
be obligated to, purchase any Option Shares not allocated to a Family Group.
(d) ALLOCATION OF SHARES AMONG FAMILY GROUP MEMBERS. Offered
Shares or Option Shares allocated to a Family Group pursuant to Sections 4.5(a)
or 4.5(b) shall be allocated among the Family Shareholders of such Family
Group, as follows:
(i) First, to the Original Shareholder of such
Family Group in an amount equal to the
number of Offered Shares or Option Shares
such Original Shareholder elects to
Purchase; and
(ii) Second, to each Shareholder of such Family
Group, other than the Original Shareholder,
electing to purchase Offered Shares or
Option Shares in an amount determined by
multiplying (A) the number of Shares
allocated to such Family Group and not
purchased by the Original Shareholder, by
(B) a fraction, the numerator of which is
the number of Shares subscribed for by such
Shareholder, and the denominator of which is
the aggregate number of Shares subscribed
for by all Shareholders of a Family Group,
other than the Original Shareholder.
5. GENERAL RESTRICTIONS/COVENANTS ON TRANSFERS.
5.1 SECURITIES LAW RESTRICTIONS. Notwithstanding any other provision of
this Agreement, but subject to express written waiver by the Company in the
exercise of its good
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faith and reasonable judgment, no Shareholder shall Transfer any Shares without
the registration of the Transfer of such Shares under the Act or until the
Company shall have received such legal opinions or other assurances that such
Transfer is exempt from the registration requirements under the Act and
applicable state securities laws as the Company in its good faith and reasonable
discretion deems appropriate in light of the facts and circumstances relating to
such proposed Transfer, together with such representations, warranties and
indemnifications from the transferor and the transferee as the Company in its
good faith and reasonable discretion deems appropriate to confirm the accuracy
of the facts and circumstances that are the basis for any such opinion or other
assurances and to protect the Company and the other Shareholders from any
liability resulting from any such Transfer.
5.2 LEGENDS. All certificates representing Shares now or hereafter
owned by the Shareholders shall bear the following legend:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE BEEN ISSUED
AND SOLD WITHOUT REGISTRATION UNDER THE FEDERAL SECURITIES ACT
OF 1933, AS AMENDED ("FEDERAL ACT"), OR THE SECURITIES LAWS OF
ANY STATE, IN RELIANCE UPON CERTAIN EXEMPTIVE PROVISIONS OF
SAID ACTS, INCLUDING PARAGRAPH (13) OF THE CODE SECTION 10-5-9
OF THE GEORGIA SECURITIES ACT OF 1973 (THE "GEORGIA ACT").
NEITHER THIS SECURITY NOR ANY PORTION HEREOF OR INTEREST
HEREIN MAY BE SOLD, ASSIGNED, TRANSFERRED, PLEDGED OR
OTHERWISE DISPOSED OF UNLESS THE SAME IS REGISTERED UNDER SAID
FEDERAL ACT AND APPLICABLE STATE SECURITIES LAWS OR UNLESS AN
EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE AND THE COMPANY
SHALL HAVE RECEIVED, AT THE EXPENSE OF THE HOLDER HEREOF,
EVIDENCE OF SUCH EXEMPTION REASONABLY SATISFACTORY TO THE
COMPANY (WHICH MAY INCLUDE, AMONG OTHER THINGS, AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY).
In addition, all certificates represent Shares now or hereafter owned by the
Original Shareholders shall bear the following legend:
THE SHARES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON TRANSFER CONTAINED IN THAT CERTAIN
SHAREHOLDERS' AGREEMENT DATED AS OF NOVEMBER 14, 1996, AS
AMENDED FROM TIME TO TIME, TO WHICH THE COMPANY AND EACH OF
ITS SHAREHOLDERS IS A PARTY. A COPY OF WHICH IS ON FILE IN THE
PRINCIPAL OFFICE OF THE COMPANY, AND THE PROVISION OF WHICH
ARE INCORPORATED HEREIN BY REFERENCE. A COPY OF SUCH AGREEMENT
WILL BE PROVIDED TO THE HOLDER OF THIS CERTIFICATE UPON
WRITTEN REQUEST DELIVERED TO THE COMPANY.
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All certificates evidencing Shares hereafter issued to a Shareholder for any
reason or purpose shall, when issued, bear similar legends.
5.3 STOCK TRANSFER RECORD. The Company shall maintain a stock transfer
book in which shall be recorded the name and address of each Shareholder. No
Transfer or issuance of any Shares shall be effective or valid unless, and
until, recorded in such stock transfer book. The Company shall not record any
Transfer or issuance of Shares in such stock transfer book unless the Transfer
or issuance is in strict compliance with all of the provisions of this
Agreement.
6. CLOSING.
6.1 TERMS OF SALE. The Purchase Price for all Shares purchased pursuant
to Section 4.3 or Section 4.4 of this Agreement shall be paid at the Closing in
immediately available United States Funds.
6.2 CLOSING.
(a) The closing of the purchase and sale of any Shares
pursuant to this Agreement shall occur at the time, date and place specified by
the Company in its written notice pursuant to Sections 4.3(e)(iii) or
4.4(d)(iii), as the case may be.
(b) At closing, the endorsed certificate or certificates
evidencing the Shares to be sold, together with executed "stock power" transfer
instruments, separate from such certificate(s), shall be respectively delivered
by the seller to each purchaser against payment of such purchasers' portion of
the Purchase Price. Such delivery shall constitute warranties by the seller
thereof that such seller has full authority to deliver such certificate(s) and
that the stock evidenced thereby is free and clear of all liens, encumbrances or
other outstanding interests of any nature, other than those created pursuant to
the terms of this Agreement.
6.3 LEGAL REQUIREMENTS. The purchase and sale of any Shares pursuant to
this Agreement shall be subject to compliance with all applicable state and
federal securities laws, and each Shareholder agrees without additional
consideration to do all necessary things reasonably requested by the Company in
connection therewith, the reasonable expenses of such to be paid by the selling
Shareholder(s).
6.4 REMOVAL OF SHAREHOLDER FROM PERSONAL OBLIGATION. Upon the purchase
of all of Shareholder's Shares by the Company of the Shareholders pursuant to
this Agreement, the Company and the other Shareholders shall put forth their
reasonable efforts to insulate the selling Shareholder from any personal
liability arising from any personal guarantee made by such selling Shareholder
with respect to any obligation of the Company other than one with respect to, or
incurred in connection with, the purchase of Shares. At the settlement of the
purchase of the Selling Shareholder's Shares, the Company and the other
Shareholders shall, to the extent permitted by law, deliver a written document
completely and absolutely indemnifying and holding the Selling Shareholder, or
his, her or its estate, harmless from becoming so liable or from paying money.
However, the foregoing shall not be interpreted
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as obligating the Company or any Shareholder to make any prepayment of
outstanding loans which the Selling Shareholder personally guaranteed.
7. AGREEMENTS BY THE COMPANY. The Company, for and on behalf of itself
and its successors and assigns, agrees that (a) it shall not issue, transfer or
reissue any Shares or other securities of the Company in violation of the
provisions of this Agreement; and (b) all certificates representing Shares shall
bear an endorsement in substantially the form specified in Section 5.2 of this
Agreement.
8. SHAREHOLDER COVENANTS. Each Shareholder covenants to and agrees that:
8.1 VOTING OF SHARES. Each Shareholder shall vote any and all Shares or
other voting securities of the Company which he, she or it owns or has the right
or power to vote to cause the Company to provide the Shareholders with the
rights and benefits contemplated by this Agreement, the Articles and the By-laws
of the Company, and to comply with and perform fully each of its obligations,
commitments, covenants, and agreements contained in this Agreement, the Articles
or the By-laws of the Company, and shall take any and all action as a
shareholder or Director of the Company as may be necessary to cause the Company
to provide such rights and benefits and to comply with such obligations,
commitments, covenants, and agreements.
8.2 NO CONTRARY ACTION. No Shareholder shall take any action as an
officer, Director, or shareholder of the Company which would prevent such
Shareholder or the Company from providing the Shareholders with the rights and
benefits contemplated by this Agreement, the Articles or the By-laws of the
Company or which would otherwise cause such Shareholder or the Company to breach
its obligations, commitments, covenants and agreements contained in this
Agreement, the Articles or the By-laws of the Company.
8.3 SHAREHOLDER STATUS. Each Shareholder shall remain eligible to be a
Shareholder under Section 1361 of the Code and shall not Transfer or sell his,
her or its shares to any third party who would not be eligible to be a
Shareholder under Section 1361 of the Code.
9. SUBCHAPTER S CORPORATION STATUS.
9.1 MAINTENANCE OF ELECTION. Notwithstanding anything to the contrary
contained herein, neither the Company nor any Shareholder shall take any action,
make any Transfer of Shares or fail to take any action which shall result in the
termination of the Election. If any such Transfer, act or failure to act shall
occur, the Company or Shareholder, as the case may be, shall immediately take
such remedial steps as may be necessary to prevent termination of the Election.
In the event that the Election is terminated because of any Shareholder's act or
failure to act, then such Shareholder shall indemnify the Company and the other
Shareholders for any loss or liability incurred on account of such termination,
including, without limitation, any federal and state income taxes directly
attributable to such termination, taking into account all losses, if any, of
past, present, and future tax benefits accruing from such termination.
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<PAGE> 19
9.2 SHAREHOLDER ACTIONS TO PRESERVE ELECTION. Each Shareholder hereby
agrees to execute, at the Company's written request, any and all such documents
as may be necessary to preserve the Election in accordance with state and
federal laws.
9.3 REVOCATION OF ELECTION. Notwithstanding anything to the contrary
contained herein, the Election may be revoked by the unanimous action of the
Board of Directors.
9.4 INADVERTENT TERMINATION OF ELECTION. If the Company's status as an
S corporation is terminated inadvertently and the Company wishes to obtain a
ruling under Section 1362(f) of the Code, each Shareholder agrees to make any
adjustments required pursuant to Section 1362(f)(4) of the Code and approved by
the Company's Board of Directors. A Shareholder's obligation to make such
adjustments shall continue after the Shareholder has ceased to own Shares of the
Company and after this Agreement has terminated.
9.5 TAX DISTRIBUTIONS. As long as the Company is an S corporation, and
subject to any limitations on distributions imposed by governing state law, the
Company shall make pro rata distributions of money, based on ownership of
Shares, to pay the federal and state income taxes on the income (net of any tax
benefits produced for the Shareholders by the Company's losses, deductions, and
credits) that passes through from the Company to the Shareholders under the
applicable provisions of the Code and state law. The total amount required to be
distributed shall be determined by conclusively presuming that all taxable
income passed through to each Shareholder shall be taxed at the maximum federal
rate (without regard to exemptions or phaseouts of lower tax rates) and the
maximum State of Georgia rate at which income of any individual can be taxed in
the calendar year that includes the last day of the Company's taxable year. It
shall further be conclusively presumed that the Shareholder can deduct the State
of Georgia tax for federal income tax purposes, and the calculations shall be
made using the net effective State of Georgia rate. Distributions under this
Section 9.5 shall be made not later than April 15 of each year. To the extent
that the Shareholders shall be required to make estimated tax payments prior to
April 15, the Company shall make cash distributions corresponding to the
estimated tax payments not later than the due dates for such estimated tax
payments. No provision of this Agreement shall cause the total dividend paid
with respect to any outstanding Share to differ from the amounts paid with
respect to any other outstanding Share. No provision of this Section 9.5 shall
be construed to limit the ability of the Company to declare and pay additional
dividends to the Shareholders out of the assets of the Company legally
available for such payment at such time or times as the Board of Directors
may determine.
10. TERMINATION.
10.1 TERM. The term of this Agreement shall commence as of the date
first above written and shall terminate upon the first to occur of the following
events:
(a) the mutual written agreement of the Shareholders
owning a majority of the Shares of each of the Family Groups to terminate this
Agreement;
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(b) the merger of the Company into another corporation
or the sale, exchange or disposition of all or substantially all of the
Company's assets; or
(c) when there remains only one (1) Shareholder who is a
party hereto.
10.2 REMOVAL OF LEGENDS UPON TERMINATION. Upon termination of this
Agreement, the certificates representing the Shares shall be released from the
terms of this Agreement, and such certificates may be reissued free of the
legend specified in Section 5.2 of this Agreement.
11. POWER OF ATTORNEY. Each of the undersigned Shareholders hereby constitutes
and appoints the Company and as the true and lawful attorney or
attorneys-in-fact, with full power of substitution and resubstitution, for the
undersigned and in the name, place and stead of the undersigned, in any
capacities to execute any and all statements under Section 13 or Section 16 of
the Securities Exchange Act of 1934, as amended, of beneficial ownership of
NACCO Class B Shares, subject to the NACCO Stockholders' Agreement, as amended
from time to time, including all statements on Schedule 13D and all amendments
thereto, all joint filing agreements pursuant to Rule 13d-l(f)(iii) under such
Act in connection with such statements, all initial statements of beneficial
ownership on Form 3 and any and all other documents to be filed with the
Securities and Exchange Commission, and to file the same, with all exhibits
thereto, and all other documents in connection therewith, with the Securities
and Exchange Commission, and, granting to said attorney or attorneys-in-fact,
and each of them, full power and authority to do so and to 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 the undersigned might or could
do in person, hereby ratifying and confirming all that said attorney or
attorneys-in-fact or any of them or their substitutes or resubstitutes, may
lawfully do or cause to be done by virtue of this Section 11. The grant of this
power of attorney shall not be affected by any disability of an undersigned
Shareholder. If applicable law requires additional or substituted language in
order to validate the power of attorney intended to be granted by this
Section 11, each Shareholder agrees to execute and deliver such additional
instruments and to take such further acts as may be necessary to validate such
power of attorney.
12. ARBITRATION. Any dispute arising in connection with this Agreement shall be
an Arbitrable Dispute and shall be finally settled by arbitration under the then
applicable Commercial Arbitration Rules of the American Arbitration Association,
by one or more arbitrators agreed upon by the parties or, in the absence of such
an agreement, appointed in accordance with such Rules. The arbitration
proceedings shall be held in Cleveland, Ohio. Judgment upon the award rendered
may be entered in any court having jurisdiction and application may be made to
such court for judicial acceptance of such award and an order of enforcement as
the case may be. The Shareholders hereby agree that the rendering of an award by
the arbitrator or arbitrators shall be a condition precedent to the initiation
of any legal proceedings with respect to any Arbitrable Dispute.
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<PAGE> 21
13. GENERAL PROVISIONS
13.1 WAIVERS AND AMENDMENTS. This Agreement may be amended or modified
in whole or in part only by the mutual written agreement of the Shareholders
owning not less than two-thirds (2/3) of the Shares of each of the Family Groups
and any such amendment shall be binding upon all of the Shareholders. The
obligations and rights of any party hereunder may be waived (either generally or
in a particular instance and either retroactively or prospectively) by the
unanimous written action of the Board of Directors or with the written consent
of the party claimed to have given the waiver; PROVIDED, HOWEVER, that any
waiver of any violation of, breach of, or default under any provision of this
Agreement or any other agreement provided for herein shall not be construed as,
or constitute, a continuing waiver of such provision, or a waiver of any other
violation of, breach of or default under any other provision of this Agreement
or any other agreement provided for herein.
13.2 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
shall inure to the benefit of the company, its successors and permitted assigns,
and shall be binding upon and inure to the benefit of the other parties hereto
and their respective heirs, successors and permitted assigns.
13.3 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same instrument.
13.4 NOTICES. Any notice, request or other communication required or
permitted under this Agreement shall be in writing and shall be deemed to have
been duly given when received if personally delivered or after being sent by
telecopy, with confirmed answer back, or within 1 business day of being sent by
established overnight courier, to (a) the Company at its principal business
address or (b) to any Shareholder at his, her or its address as shown from time
to time on the books and records of the Company. The Company shall provide each
Shareholder with a list of all such addresses promptly upon request.
13.5 ENTIRE AGREEMENT. This Agreement, together with the other
agreements referred to herein, embodies the entire agreement among the parties
in relation to its subject matter, and no representations, warranties,
covenants, understandings or agreements or otherwise, in relation thereto, exist
between any of the parties.
13.6 GOVERNING LAW. This Agreement shall in all respects be governed by
and construed in accordance with the internal substantive laws of the State of
Georgia without giving effect to the principles of conflicts of law thereof.
13.7 SEVERABILITY. Each section, subsection and lesser section of this
Agreement constitutes a separate and distinct undertaking, covenant and/or
provision hereof. In the event that any provision of this Agreement shall
finally be determined to be unlawful, all such provisions shall be deemed
severed from this Agreement, but every other provision of this Agreement shall
remain in full force and effect, and in substitution for any such
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<PAGE> 22
provision held unlawful, there shall be substituted a provision of similar
import reflecting the original intent of the parties hereto to the extent
permissible under law.
13.8 NO THIRD PARTY BENEFICIARIES. It is hereby agreed that the parties
hereto (or their personal representatives) shall have the sole right to enforce
the performance of the provisions of this Agreement and the sole right to
receive any and all amounts payable by the parties hereto pursuant to this
Agreement, and that no other person shall be entitled to, or shall have any
claim, right, title or interest to or in any such amounts by virtue of this
Agreement. This Agreement is personal to the parties hereto, and is not intended
for the
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<PAGE> 23
benefit of, and is not intended to be relied upon by, any other person and no
such person shall be entitled to the benefit of or to enforce this Agreement.
13.9 SPECIFIC PERFORMANCE. The parties hereto agree that upon a breach
of any other provisions of this Agreement a remedy at law would not be adequate,
and that the parties hereto are entitled to injunctive relief and specific
performance, and any other legal or equitable remedies, as remedies for the
enforcement of this Agreement.
13.10 TITLES AND HEADINGS. Titles and headings to sections, subsections
and lesser sections herein are inserted for the convenience of reference only
and are not intended to be a part of or to effect the meaning or interpretations
of this Agreement.
13.11 CONFLICTS. To the extent possible, this Agreement, the Articles
of Incorporation of the Company, and the Bylaws of the Company shall be
construed so as to be consistent. Where such Articles of Incorporation or Bylaws
are inconsistent with this Agreement, this Agreement shall control.
IN WITNESS WHEREOF, the Company and the Shareholders have executed this
Shareholders' Agreement as of the day and year first above written.
RANKIN MANAGEMENT, INC.
By:/S/ ALFRED M. RANKIN, JR.
----------------------------
Name: Alfred M. Rankin, Jr.
Title: Managing Partner
(Corporate Seal)
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<PAGE> 1
EXHIBIT 3
ARTICLES OF INCORPORATION
OF
RANKIN MANAGEMENT, INC.
The undersigned, Alfred M. Rankin, Jr., desiring to form a corporation for
profit (the "Corporation") under the provisions of the Georgia Business
Corporation Code, does hereby certify that:
ARTICLE I: NAME
The name of the Corporation shall be Rankin Management, Inc.
ARTICLE II: PERIOD OF DURATION
The Corporation shall have perpetual duration.
ARTICLE III: PURPOSES
The Corporation is organized as a corporation for profit pursuant to the
Georgia Business Corporation Code and for any lawful purpose or purposes not
specifically prohibited to corporations under the applicable laws of the State
of Georgia, and shall be authorized in connection therewith to carry on any
lawful business.
ARTICLE IV: REGISTERED OFFICE AND AGENT
The initial registered agent of the Corporation shall be Corporation
Service Company. The address of the initial registered office and the initial
registered agent of the Corporation shall be 100 Peachtree Street, Atlanta,
Fulton County, Georgia 30303. The initial address of the principal office of the
Corporation is Suite 300, 5875 Landerbrook Drive, Mayfield Heights, Ohio
44124-4017.
ARTICLE V: AUTHORIZED SHARES / TERMS / TRANSFER RESTRICTIONS
The number of shares which the Corporation is authorized to have
outstanding is 21,000 shares, consisting of 20,000 shares of Class A Common
Stock (the "Class A Stock"), without par value, and 1,000 shares of Class B
Common Stock (the "Class B Stock"), without par value (the Class A Shares and
Class B Shares are collectively referred to as the "Common Stock").
The express terms of the shares of Common Stock are as follows:
<PAGE> 2
EXPRESS TERMS OF THE COMMON STOCK
---------------------------------
(A) ISSUANCE OF NEW SHARES. The Corporation shall not issue shares of
Common Stock without the consent of a majority of the holders of the
Class A Stock.
(B) PRE-EMPTIVE RIGHTS. Holders shall, upon the offering by the
Corporation for sale of shares of any class of stock of the
Corporation, have the right, during a reasonable period of time and
on substantially the same terms that such shares are being offered
or sold, to purchase such shares in proportion to their respective
holdings of Common Stock.
(C) TRANSFERABILITY
(1) DEFINITIONS. The following terms when used in these Articles
shall have the meanings set forth below:
(a) "ACT" shall mean the Securities Act of 1933, as
amended.
(b) "AUTHORIZED TRANSFEREE" with respect to a Shareholder
means the Family Group of such Shareholder, the
Original Shareholder of such Family Group, and any
Family Member of such Family Group who (i) is a
Permitted Transferee, and (ii) is a "Participating
Stockholder" under Section 1.12 of the NACCO
Stockholders Agreement.
(c) "CHARITABLE ORGANIZATION" means any organization
contributions to which are deductible for federal
income, estate or gift tax purposes. A Charitable
Organization is an Outside Shareholder unless prior
to the Transfer of Shares to such Charitable
Organization, the Board of Directors of the
Corporation designates such Charitable Organization
as a Family Member, in which event a Charitable
Organization so designated shall, with respect to the
Shares transferred to it by any Shareholder, be
considered a Family Member of and a member of the
Family Group of such Shareholder.
(d) "FAIR MARKET VALUE" means the price at which the
subject Shares would change hands between a willing
buyer and a willing seller, neither being under any
compulsion to buy or sell and both being reasonably
informed of the relevant factors and in light of the
circumstances and prospects surrounding the business
of the Corporation. A determination of the Fair
Market Value of the subject Shares shall take into
consideration appropriate discounts for lack of
marketability and minority interest related to such
Shares, but will not take into consideration the
affect of any liquidity provided by the provisions of
Article V(D)(5)(c).
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<PAGE> 3
(e) "FAMILY GROUP" shall mean an Original Shareholder, and
his Family Members so long as such Original Shareholder
or any such Family Members own any Shares.
(f) "FAMILY MEMBER" shall mean a spouse or surviving spouse
of an Original Shareholder, any descendant of an
Original Shareholder, a spouse or surviving spouse of
any such descendant, or any Qualified Fiduciary or any
Charitable Organization designated as a Family Member
by the Board of Directors of the Corporation.
Notwithstanding anything to the contrary contained
herein:
(i) the surviving spouse of an Original Shareholder
or of a descendent of an Original Shareholder
shall cease to be a Family Member upon the
remarriage of such person to other than an
Original Shareholder or descendent of an Original
Shareholder; and
(ii) the spouse of an Original Shareholder or of a
descendent of an Original Shareholder shall cease
to be a Family Member upon legal separation,
divorce or dissolution of such spouse's marriage
to said Original Shareholder or descendent; and
(iii) a Qualified Fiduciary shall cease to be a Family
Member from and after any event or lapse of
time which causes such fiduciary to no longer
qualify as a Qualified Fiduciary as defined in
Article V(C)(1)(q).
(g) "FAMILY SHAREHOLDER" shall mean a Shareholder who is,
and only so long as such Shareholder is, an Original
shareholder or a Family Member.
(h) "NACCO STOCKHOLDERS' AGREEMENT" means the Stockholders'
Agreement dated as of March 15, 1990 by and among the
Participating Stockholders, NACCO and Ameritrust
Corporation National Association, a national banking
association, as depository, as amended from time to
time.
(i) "NACCO RESTATED CERTIFICATE" means the Restated
Certificate of Incorporation of NACCO, as amended from
time to time.
(j) "OBJECTING PARTY" shall have the meaning set forth in
Article V(C)(1)(p)(i).
(k) "ORIGINAL SHAREHOLDER" shall mean the Shareholders of
the Corporation whose subscriptions for Class A Stock
are accepted by the Incorporator of the Corporation.
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<PAGE> 4
(l) "OUTSIDE SHAREHOLDER" shall mean a Shareholder who is
not then a member of a Family Group, including,
without limitation, a Shareholder who has ceased to
be a Family Member pursuant to the terms of Articles
V(C)(1)(f)(i), V(C)(1)(f)(ii) or V(C)(1)(f)(iii)
except that, the parent of an Original Shareholder
shall not be an "Outside Shareholder" for purposes
of the exercise of the Call Option.
(m) "PERMITTED TRANSFEREE" means a "Permitted Transferee"
as defined under Article FOURTH, Section 4 of the
NACCO Restated Certificate.
(n) "PERSON" means any individual, estate, trust,
corporation, partnership, limited liability company,
joint venture, unincorporated organization or other
entity, association or organization.
(o) "PROPORTIONATE PART" means a fraction, the numerator
of which is the number of Shares held by a Family
Group and the denominator of which is the number of
Shares held by all Family Groups.
(p) "PURCHASE PRICE" shall mean the Fair Market Value of
the Offered Shares or Option Shares, as the case may
be, determined as follows:
(i) INITIAL VALUE. The Board of Directors of the
Corporation shall from time to time
determine a per share value for the Shares
(the "Initial Value") based upon such
considerations as the Board of Directors of
the Corporation, in its sole discretion,
determines to be relevant to such valuation.
If a Selling Shareholder or Outside
Shareholder (for purposes of this Article
V(C)(1)(p), the "Objecting Party") does
not provide written objections to
Corporation concerning the Initial Value
set forth in the Valuation Notice within
10 days after the date of such Valuation
Notice, the Purchase Price shall be equal
to the Initial Value.
(ii) APPRAISED VALUE. If an Objecting Party
objects in writing to the Initial Valuation
within 10 days after its receipt of the
Valuation Notice, the Objecting Party,
within fourteen (14) days from the date of
such written objection, shall engage an
appraiser (the "Initial Appraiser") to
determine within 30 days of such appointment
the Fair Market Value of the Shares (the
"First Appraised Value"). The cost of the
First Appraiser shall be borne by the
Objecting Party. If the First Appraised
Value is at least eighty percent (80%) of
the Initial Value but less than one hundred
twenty percent (120%) of the Initial Value,
then the Purchase Price shall be the average
of the Initial Value and the First Appraised
Value. If the First Appraised Value is less
than eighty percent (80%) of the Initial
Value or more than one hundred twenty
percent (120%) of the Initial Value, then
the Corporation and the Objecting Party
shall,
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<PAGE> 5
within fourteen (14) days from the date of
the First Appraised Value, mutually agree on
an appraiser (the "Independent Appraiser").
The cost of the Independent Appraiser shall
be borne equally by the Corporation and the
Objecting Party. The Independent Appraiser
shall determine within 14 days after its
appointment the Fair Market Value of the
Shares (the "Final Valuation"), but such
Final Valuation shall be not less than the
smaller of the Initial Value and the First
Appraised Value nor greater than the larger
of the Initial Value and the First Appraised
Value. The Purchase Price shall be equal to
the Final Valuation and shall be final and
binding for purposes of the subject
transaction.
(iii) MUTUALLY AGREED UPON PURCHASE PRICE.
Notwithstanding the procedure set forth
above, the Corporation and an Objecting
Party may, prior to or at any time during
the appraisal process, mutually agree on a
single independent appraiser to determine
the Purchase Price, which determination
shall be binding on all of the parties, or
may agree in writing upon a Purchase Price.
(iv) COOPERATION WITH APPRAISERS. The Corporation
shall cooperate in assisting the appraisers
in determining the Purchase Price, including
providing reasonable access to the books and
records of the Corporation and to such other
information as the appraisers reasonably
request in connection with such
determination; PROVIDED, HOWEVER, that
nothing herein shall require the Corporation
to disclose privileged or proprietary
information; and PROVIDED FURTHER, that the
Corporation may require such appraisers to
enter into such confidentiality and
non-disclosure agreements as the Corporation
reasonably believes to be necessary to
protect the interests of the Corporation and
its Shareholders.
(q) "QUALIFIED FIDUCIARY" means (i) the trustee of any
trust (including without limitation a voting trust)
if and as long as the trust is held for the benefit
of one or more Permitted Transferees and no other
Person, or (ii) the executor, administrator,
guardian, personal representative or other fiduciary
of a deceased, incompetent, bankrupt or insolvent
Permitted Transferee; PROVIDED that any such trust
must prohibit the transfer of Shares to any Persons
other than (x) the Person or Persons who established
the trust, and (y) Authorized Transferees of the
Person or Persons who established such trust.
(r) "SHARES" means shares of the Common Stock.
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<PAGE> 6
(s) "SHAREHOLDER" shall mean each Original Shareholder,
each Authorized Transferee who acquires Shares and
any other Person who acquires Shares as the result of
a Transfer of Shares to such Person.
(t) "STARTING DATE" means, with respect to any Seller's
Notice or Call Notice, the date of the final
determination of the Purchase Price relating to such
notice.
(u) "TRANSFER" means any sale, assignment, pledge,
hypothecation, encumbrance, disposition, transfer
(including, without limitation, a transfer by will or
intestate distribution), gift or attempt to create or
grant a security interest in Shares, whether
voluntary, involuntary, by operation of law or
otherwise. Without limiting the rights of the
Corporation and the Family Groups under Article
V(D)(4), the occurrence of an event discussed in
Articles V(C)(l)(f)(i), V(C)(1)(f)(ii), or
V(C)(l)(f)(iii) pursuant to which a Family Member
ceases to be a Family Member and is thereafter
treated as an Outside Shareholder, shall not
constitute a "Transfer" giving rise to the exercise
of Purchase Rights under Article V(D)(3).
(v) "VALUATION NOTICE" shall mean the notice given by the
Corporation pursuant to Articles V(D)(3)(b) or
V(C)(l)(u), V(D)(4)(a) and stating the Initial Value
at which a Purchase Right or a Call Option is to be
exercised.
(D) RESTRICTIONS ON TRANSFERS OF SHARES
(1) RESTRICTION ON TRANSFERS. Except as otherwise provided
herein, no Shareholder shall, either during the Shareholder's
lifetime or upon the Shareholder's death, Transfer any of the
Shares now owned or hereafter acquired by such Shareholder.
Without limiting the foregoing, a Shareholder shall not
transfer any of his, her or its Shares to any Person or in
any manner which would cause the Corporation's election to be
treated as an S Corporation under the Internal Revenue Code
of 1986, as amended, to be terminated or revoked or which
would be contrary to the provisions of the NACCO Restated
Certificate or the NACCO Stockholders' Agreement. In the
event of any purported or attempted Transfer of Restricted
Shares that does not comply with these Articles, the
purported transferee or successor by operation of law shall
not be deemed to be a stockholder of the Corporation for any
purpose and shall not be entitled to any of the rights of a
stockholder of the Corporation, including, without
limitation, the right to vote the Shares or to receive a
certificate for Shares or any dividends or other
distributions on or with respect to Shares. Any purported or
attempted transfer of Shares made other than in accordance
with these Articles shall be void AB INITIO and the last
holder of record who acquired such Shares in a manner not
contrary to the provisions of these Articles shall be
recognized as the holder of such
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<PAGE> 7
Shares for all purposes and such Shares shall be deemed owned
by such recognized holder.
(2) UNRESTRICTED TRANSFERS. Notwithstanding anything to the
contrary contained herein, each Original Shareholder or
Authorized Transferee of such Original Shareholder shall be
entitled to Transfer all or any portion of his, her or its
Shares to any Authorized Transferee of such Original
Shareholder, without need to comply with the other provisions
of these Articles.
(3) PURCHASE RIGHT. At any time after the date hereof, the
Corporation and the Family Groups shall have a right of first
refusal (the "Purchase Right") to purchase, pursuant to the
terms of this Article V(D)(3), from any Shareholder (for
purposes of this Article V(D)(3), a "Selling Shareholder")
intending to Transfer, other than as permitted in Article
V(D)(2), all or any portion of his, her or its Shares
(including any Shares acquired after the date hereof).
(a) A Selling Shareholder intending to Transfer all or
any portion of his, her or its Shares shall first
deliver to the Corporation a written notice (the
"Seller's Notice") specifying (i) the number of
Shares to be transferred (the "Offered Shares"); and
(ii) the identity of the proposed transferee.
(b) Within 10 days after the Corporation's receipt of the
Seller's Notice, the Corporation shall deliver to the
Selling Shareholder a Valuation Notice setting forth
the Initial Value and the Corporation and the Selling
Shareholder shall commence the process to determine
the Purchase Price pursuant to Article V(C)(1)(p).
(c) Within 10 days after Starting Date, the Corporation
shall notify each Family Shareholder (other than the
Selling Shareholder) of (i) the Starting Date; (ii)
the number of Offered Shares; and (iii) the Purchase
Price. The Corporation's notice shall include a copy
of the Seller's Notice.
(d) Within 40 days after the Starting Date, each
Shareholder shall notify the Corporation of how many,
if any, of the Offered Shares he or she elects to
purchase.
(e) Within 50 days after the Starting Date, the
Corporation shall provide written notice to the
Selling Shareholder and to each other Shareholder of
(i) the number of Offered Share to be purchased by
Family Shareholders and the allocation of the Offered
Shares among the Family Shareholders pursuant to the
terms of Article V(D)(5); (ii) the number of Offered
Shares to be purchased by the Corporation; and (iii)
the time, date and place of closing which shall be no
sooner than 90 days after the Starting Date and no
later than 120 days after the Starting Date.
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<PAGE> 8
(4) CALL OPTIONS TO PURCHASE SHARES. At any time after the date
hereof, the Corporation and the Family Groups shall have the
option (the "Call Option") to purchase from any Shareholder
who is then an Outside Shareholder all, but not less than
all, of the Shares (the "Option Shares") directly or
indirectly owned by such Outside Shareholder, and upon the
exercise of a Call Option such Outside Shareholder shall be
obligated to sell to the purchasing Shareholders or the
Corporation, as the case may be, all (but not less than all)
of his, her or its Option Shares. The Call Option shall be
exercised as follows:
(a) Within thirty (30) days after the determination by
the Board of Directors of the Corporation to exercise
a Call Option with respect to an Outside Shareholder,
the Corporation shall provide written notice (the
"Call Notice") of such exercise to the Selling
Outside Shareholder of (i) the exercise of the
Option; (ii) the number of Option Shares; and (iii)
the Initial Value of the Option Shares. Thereafter,
the Corporation and the Outside Shareholder shall
determine the Purchase Price in accordance with
Article V(C)(l)(p).
(b) Within ten (10) days after the Starting Date, the
Corporation shall provide notice of such exercise to
each Shareholder who is then a member of a Family
Group (a "Family Shareholder") of (i) the exercise of
the Option; (ii) the number of Option Shares; (iii)
the Purchase Price of the Option Shares; and (iv) the
Starting Date.
(c) Within 40 days after the Starting Date, each Family
Shareholder shall notify the Corporation of how many,
if any, of the Option Shares he, she or it elects to
purchase.
(d) Within 50 days after the Starting Date, the
Corporation shall provide written notice to the
selling Outside Shareholder and to each Family
Shareholder of (i) the allocation of the Option
Shares among the Family Shareholders pursuant to the
terms of Article V(D)(5); (ii) the number of Option
Shares to be purchased by the Corporation; and (iii)
the time, date and place of closing which shall be no
sooner than 90 days after the Starting Date and no
later than 120 days after the Starting Date.
(e) If the Corporation and the Family Shareholders do not
together elect to purchase all of the Option Shares
then the Outside Shareholder shall not be obligated
to sell any of the Option Shares; PROVIDED, HOWEVER,
that the Corporation and the Family Shareholders
shall continue to have the right to exercise a Call
Option with respect to such Option Shares at anytime
thereafter.
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<PAGE> 9
(f) The Option Shares shall be allocated among the
Corporation and the Family Groups, and within each
Family Group among its members, in the manner
provided in Article V(D)(5).
(5) ALLOCATION OF OFFERED SHARES AND OPTION SHARES. Offered Shares
and Option Shares shall be allocated among the Corporation and
the Family Shareholders pursuant to the terms of this Article
V(D)(5). At the Closing, the Corporation and such Family
Shareholders, as the case may be, shall be obligated to
purchase the Offered Shares or Option Shares so allocated
pursuant to the terms and provisions of these Articles.
Notwithstanding anything to the contrary contained herein, no
Shareholder shall be entitled to receive, or be obligated to
purchase, more Shares than such Shareholder has elected to
purchase pursuant to Article V(D)(3)(d) or V(D)(4)(c), as the
case may be. All Offered Shares or Option Shares shall be
allocated as follows:
(a) ALLOCATION TO ORIGINAL HOLDERS OF OFFERED SHARES. The
Shares to be allocated shall first be allocated to
the members of the Family Group (the "Original
Holders") in which the Selling Shareholder is a
Family Member who have elected to purchase any
portion of such Shares, or if the Selling Shareholder
is an Outside Shareholder, from which the Selling
Shareholder, or his, her or its predecessors in
interest, acquired such Shares. Such Shares shall be
allocated in accordance with Article ?.
(b) ALLOCATION AMONG FAMILY GROUPS. Any Offered Shares or
Option Shares not allocated pursuant to Article
V(D)(5)(a) (the "Remaining Shares") shall be
allocated among the Family Groups (other than the
Original Holders) which have Shareholders electing to
purchase Offered Shares or Option Shares as follows:
(i) If a Family Group has collectively elected
to purchase a number of Offered Shares or
Option Shares which is less than or equal to
its Proportionate Part of the Remaining
Shares, then such Family Group shall be
allocated the number of Shares that its
members have elected to purchase.
(ii) If a Family Group has collectively elected
to purchase a number of Offered Shares or
Option Shares which is greater than its
Proportionate Part of the Remaining Shares,
then such Family Group shall, in the first
instance, be allocated its Proportionate
Part of the Remaining Shares.
(iii) If additional Remaining Shares remain to be
allocated after the application of
subsections a. and b. above (the
"Outstanding Remaining Shares"), then each
Family Group which has collectively elected
to purchase a number of Offered Shares or
Option Shares
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<PAGE> 10
which exceeds its Proportionate Part shall be
allocated an additional number of the Remaining
Shares equal to the lesser of:
A) The number of Offered Shares or Option
Shares which such Family Group elected to
purchase but which were not allocated to it
by reason of subsection (ii) above, or
B) That portion of the Outstanding Remaining
Shares represented by a fraction the
numerator of which is the number of Shares
held by such Family Group (prior to such
allocation), and the denominator of which is
the number of Shares held by all Family
Groups which have elected to purchase a
number of Offered Shares or Option Shares in
excess of the number of those Offered Shares
or Option Shares previously allocated to
them under this Article V(D)(5).
(iv) Any Shares remaining to be allocated after the
application of subsections (i), (ii) and (iii) above,
shall be allocated in accordance with the procedures
described in subsection (iii) above until either A)
all of the Offered Shares or Option Shares which
Family Shareholders, as the case may be, have elected
to purchase have been allocated, or B) there remains
only one Family Group which has not been allocated
all of the Shares it has elected to purchase, in
which event all of the then unallocated Offered
Shares or Option Shares shall be allocated to such
Family Group up to the amount that such Family Group
elected to purchase.
(c) ALLOCATION TO THE CORPORATION. The Corporation shall purchase
any Offered Shares not allocated to a Family Group. The
Corporation may, but shall not be obligated to, purchase any
Option Shares not allocated to a Family Group.
(d) ALLOCATION OF SHARES AMONG FAMILY GROUP MEMBERS. Offered
Shares or Option Shares allocated to a Family Group shall be
allocated among the Family Shareholders of such Family Group,
as follows:
(i) First, to the Original Shareholder of such Family
Group in an amount equal to the number of Offered
Shares or Option Shares such Original Shareholder
elects to Purchase; and
(ii) Second, to each Shareholder of such Family Group,
other than the Original Shareholder, electing to
purchase Offered Shares or Option Shares in an
amount determined by multiplying A) the number of
Shares allocated to such Family Group and not
purchased by the Original Shareholder, by B) a
fraction, the numerator of which is the number of
Shares subscribed for by such Shareholder, and
the
10
<PAGE> 11
denominator of which is the aggregate number of
Shares subscribed for by all Shareholders of a
Family Group, other than the Original
Shareholder.
(E) GENERAL RESTRICTIONS/COVENANTS ON TRANSFERS.
(1) SECURITIES LAW RESTRICTIONS. Notwithstanding any other
provision of these Articles, but subject to express written
waiver by the Corporation in the exercise of its good faith
and reasonable judgment, no Shareholder shall Transfer any
Shares without the registration of the Transfer of such Shares
under the Act or until the Corporation shall have received
such legal opinions or other assurances that such Transfer is
exempt from the registration requirements under the Act and
applicable state securities laws as the Corporation in its
good faith and reasonable discretion deems appropriate in
light of the facts and circumstances relating to such proposed
Transfer, together with such representations, warranties and
indemnifications from the transferor and the transferee as the
Corporation in its good faith and reasonable discretion deems
appropriate to confirm the accuracy of the facts and
circumstances that are the basis for any such opinion or other
assurances and to protect the Corporation and the other
Shareholders from any liability resulting from any such
Transfer.
(2) LEGENDS. All certificates representing Shares now or hereafter
issued by the Corporation shall bear appropriate legends
indicating the existence of the restrictions on Transfer
imposed by these Articles
(F) CLOSING.
(1) TERMS OF SALE. The Purchase Price for all Common Stock
purchased pursuant to Article V(D)(3) or Article V(D)(4)
shall be paid at the Closing in immediately available United
States Funds.
(2) CLOSING.
(a) The closing of the purchase and sale of any Common
Stock pursuant to these Articles shall occur at the
time, date and place specified by the Corporation in
its written notice pursuant to Articles V(D)(3)(e)(iii)
or V(D)(4)(d)(iii), as the case may be.
(b) At closing, the endorsed certificate or certificates
evidencing the Common Stock to be sold, together with
executed "stock power" transfer instruments, separate
from such certificate(s), shall be respectively
delivered by the seller to each purchaser against
payment of such purchasers' portion of the Purchase
Price. Such delivery shall constitute warranties by the
seller thereof that such seller has full authority to
deliver such certificate(s) and that the stock
evidenced thereby is free and
11
<PAGE> 12
clear of all liens, encumbrances or other outstanding
interests of any nature, other than those created
pursuant to the terms of these Articles.
(3) LEGAL REQUIREMENTS. The purchase and sale of any Common Stock
pursuant to these Articles shall be subject to compliance
with all applicable state and federal securities laws, and
each Shareholder agrees without additional consideration to
do all necessary things reasonably requested by the
Corporation in connection therewith, the reasonable expenses
of such to be paid by the selling Shareholder(s).
(G) VOTING RIGHTS
(1) CLASS A STOCK. The Class A Stock, except to the extent
provided for herein, shall have the entire voting power in
regard to the stock of the Corporation. Each share of Class A
Stock shall be entitled to one vote.
(2) CLASS B STOCK. The Class B Stock shall not have any voting
power in regard to the stock of the Corporation, except that
each share of Class B Stock shall be entitled to one vote
with respect to the following matters or circumstances:
(a) Amendments to these Articles of Incorporation or the
By-laws of the Corporation;
(b) As required by the Georgia Business Corporation Law;
and
(c) As otherwise expressly provided by these Articles.
(H) DIVIDEND AND LIQUIDATION RIGHTS. Except as required by law, the record
holders of Class A Stock and Class B Stock shall share, on an equal basis based
upon such record holders' holdings of Common Stock, in all dividends declared by
the Corporation and all assets of the Corporation distributed upon liquidation.
ARTICLE VI: PREEMPTIVE RIGHTS
None of the holders of shares of any class of stock of the Corporation
shall be entitled as a matter of right to purchase, subscribe for or otherwise
acquire any new or additional shares of stock of the Corporation of any class
now or hereafter authorized, or any options or warrants to purchase, subscribe
for or otherwise acquire any such new or additional shares of stock of the
Corporation of any class now or hereafter authorized, or any shares, evidences
of indebtedness, or any other securities convertible into or carrying options or
warrants to purchase, subscribe for or otherwise acquire any new or additional
shares.
ARTICLE VII: STATED CAPITAL
The Corporation will commence business without any allocation to stated
capital.
12
<PAGE> 13
ARTICLE VIII: CAPITAL SURPLUS
The Corporation shall have the authority to be exercised by its Board of
Directors of the Corporation, from time to time, to distribute to its
shareholders out of the capital surplus of the Corporation a portion of its
assets, in cash or property, and to purchase its own shares out of unreserved
and unrestricted capital surplus available therefore, subject to the provisions
of the Georgia Business Corporation Code.
ARTICLE IX: SHAREHOLDER ACTION BY WRITTEN CONSENT
To the extent allowed by law, any action that is required to be, or may
be, taken at a meeting of the shareholders of the Corporation may be taken
without a meeting if written consent, setting forth the action, shall be signed
by persons who would be entitled to vote at a meeting those shares having voting
power to cast not less than the minimum number (or numbers, in the case of
voting by classes) of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote were present and voted.
Notice shall be given within ten days of the taking of corporate action without
a meeting by less than unanimous written consent to those shareholders on the
record date whose shares were not represented on the written consent.
ARTICLE X: LIMITATION OF DIRECTOR LIABILITY / INDEMNIFICATION
(A) LIMITATION OF DIRECTOR LIABILITY. A director of the Corporation shall
not be personally liable to the Corporation or its shareholders for monetary
damages for breach of duty of care or other duty as a director, except for
liability (1) for any appropriation, in violation of his duties, of any business
opportunity of the Corporation, (2) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (3) of the
types set forth in Section 14-2-832 of the Georgia Business Corporation Code, or
(4) for any transaction from which the director derived an improper personal
benefit. The provisions of this article shall not apply with respect to acts or
omissions occurring prior to the effective date of this article.
(B) MODIFICATION OF ARTICLE X BY SHAREHOLDERS. Any repeal or
modification of the provisions of this article by the shareholders of the
Corporation shall be prospective only, and shall not adversely affect any
limitation on the personal liability of a director of the Corporation with
respect to any act or omission occurring prior to the effective date of such
repeal or modification.
(C) CHANGES IN LAW REGARDING DIRECTOR LIABILITY
(1) If the Georgia Business Corporation Code hereafter is amended
to authorize the further elimination or limitation of the
liability of directors, then the liability of a director of
the Corporation, in addition to the limitation on personal
liability provided herein, shall be limited to the fullest
extent permitted by the amended Georgia Business Corporation
Code.
13
<PAGE> 14
(2) If any provision of this article (including any provision
within a single sentence) is held by a court of competent
jurisdiction to be invalid, void or otherwise unenforceable,
the remaining provisions are severable and shall remain
enforceable to the fullest extent permitted by law.
ARTICLE XI: AMENDMENT
These Articles may be amended only with the affirmative vote of the
holders of not less than ninety percent (90%) of each class of Common Stock.
ARTICLE XII: CHANGES IN LAW
Any and every statute of the State of Georgia hereafter enacted, whereby
the rights, powers or privileges of corporations or of the shareholders of
corporations organized under the laws of the State of Georgia are increased of
diminished or in any away affected, or whereby effect is given to the action
taken by any number, less than all, of the shareholders of any such corporation
shall apply to the Corporation and shall be binding not only upon the
Corporation but upon every shareholder of the Corporation to the same extent as
if such statute had been in force at the date of filing these Articles of
Incorporation of the Corporation in the office of the Secretary of State of the
State of Georgia.
ARTICLE XIII: INCORPORATOR
The name and address of the incorporator is as follows:
Alfred M. Rankin, Jr.
5875 Landerbrook Drive
Mayfield Heights, Ohio 44124-4017
Executed as of the 14th day of November, 1996.
/S/ALFRED M. RANKIN, JR.
------------------------------
Alfred M. Rankin, Jr., incorporator
14
<PAGE> 1
LIMITED PARTNERSHIP AGREEMENT
OF
CTR FAMILY ASSOCIATES, L.P.
THE INTERESTS OF THIS PARTNERSHIP HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE
AND MAY NOT BE TRANSFERRED OR ASSIGNED
IN VIOLATION OF THE PROVISIONS THEREOF.
IN ADDITION, TRANSFERS OF THE INTERESTS OF
THIS PARTNERSHIP ARE RESTRICTED AS PROVIDED
IN THIS AGREEMENT.
Dated as of November 14, 1996
Prepared by:
JONES, DAY, REAVIS & POGUE
<PAGE> 2
<TABLE>
<CAPTION>
TABLE OF CONTENTS
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Page
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<S> <C> <C>
1. DEFINITIONS................................................................................... 1
1.1 "Act"................................................................................ 1
1.2 "Agreement".......................................................................... 1
1.3 "Applicable NACCO Class A Closing Price Average"..................................... 1
1.4 "Arbitrable Dispute"................................................................. 1
1.5 "Authorized Transferee".............................................................. 1
1.6 "Call Notice"........................................................................ 1
1.7 "Call Option"........................................................................ 1
1.8 "Capital Account".................................................................... 2
1.9 "Capital Contributions".............................................................. 2
1.10 "Certificate"........................................................................ 2
1.11 "Charitable Organization"............................................................ 2
1.12 "Code"............................................................................... 2
1.13 "Entity"............................................................................. 2
1.14 "Fair Market Value".................................................................. 2
1.15 "Family Holder"...................................................................... 2
1.16 "Family Group"....................................................................... 3
1.17 "Family Member"...................................................................... 3
1.18 "Final Appraiser".................................................................... 3
1.19 "Final Valuation".................................................................... 3
1.20 "First Appraised Value".............................................................. 3
1.21 "General Partnership Interest"....................................................... 3
1.22 "General Partner(s)"................................................................. 3
1.23 "Independent Appraiser".............................................................. 4
1.24 "Initial Appraiser".................................................................. 4
1.25 "Initial Limited Partners"........................................................... 4
1.26 "Initial Value"...................................................................... 4
1.27 "Limited Partner".................................................................... 4
1.28 "Limited Partnership Interest"....................................................... 4
1.29 "Managing Partner"................................................................... 4
1.30 "NACCO".............................................................................. 4
1.31 "NACCO Class A Shares"............................................................... 4
1.32 "NACCO Class B Shares"............................................................... 4
1.33 "NACCO Stockholders' Agreement"...................................................... 4
1.34 "NACCO Restated Certificate"......................................................... 5
1.35 "Net Operating Cash Flow"............................................................ 5
1.36 "Net Income" or "Net Loss"........................................................... 5
1.37 "Objecting Party".................................................................... 5
1.38 "O.C.G.A."........................................................................... 5
1.39 "Offered Interests".................................................................. 5
1.40 "Option Interests"................................................................... 5
1.41 "Original Holders"................................................................... 5
1.42 "Outside Partner".................................................................... 5
1.43 "Outstanding Remaining Interests".................................................... 5
1.44 "Partner(s)"......................................................................... 6
1.45 "Partner Appraised Value"............................................................ 6
1.46 "Partnership"........................................................................ 6
1.47 "Partnership Interest"............................................................... 6
1.48 "Partnership Percentage"............................................................. 6
1.49 "Person"............................................................................. 7
1.50 "Partnership Property"............................................................... 7
</TABLE>
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<TABLE>
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<S> <C> <C>
1.51 "Proportionate Part"................................................................. 8
1.52 "Purchase Price"..................................................................... 8
(a) Initial Value............................................................... 8
(b) Appraised Value............................................................. 8
(c) Mutually Agreed Upon Purchase Price......................................... 8
(d) Cooperation with Appraisers................................................. 9
1.53 "Purchase Right"..................................................................... 9
1.54 "Qualified Fiduciary"................................................................ 9
1.56 "Seller's Notice".................................................................... 9
1.57 "Selling Partner".................................................................... 9
1.58 "Starting Date"...................................................................... 9
1.59 "Transfer"........................................................................... 9
1.60 "Valuation Notice"................................................................... 10
2. FORMATION, NAME, PURPOSES, POWERS AND TERM.................................................... 10
2.1 Formation............................................................................ 10
2.2 Name and Principal Place of Business................................................. 10
2.3 Purposes and Powers.................................................................. 10
2.4 Term................................................................................. 11
2.5 Registered Agent..................................................................... 12
2.6 Required Records..................................................................... 12
3. REPRESENTATIONS AND WARRANTIES................................................................ 12
3.1 Validity of Agreement................................................................ 12
3.2 No Violation of Material Instruments................................................. 12
4. CAPITAL....................................................................................... 13
4.1 Initial Contributions................................................................ 13
4.2 Additional Contributions............................................................. 13
4.3 Capital Accounts..................................................................... 14
4.4 Allocation of Net Income and Net Loss................................................ 14
4.5 Distributions........................................................................ 15
5. MANAGEMENT.................................................................................... 16
5.1 Management of Partnership Business................................................... 16
5.2 Management of Partnership Property Consisting of
NACCO Class B Stock.................................................................. 17
5.3 Election of Managing Partner......................................................... 17
5.4 Compensation of Managing Partner..................................................... 18
5.5 Tax Matters.......................................................................... 18
5.6 Limitation of Liability.............................................................. 19
5.7 Right to Indemnification............................................................. 19
6. BOOKS, AUDITS AND FISCAL MATTERS.............................................................. 20
6.1 Partnership Books.................................................................... 20
6.2 Fiscal Year.......................................................................... 20
7. TRANSFER OF PARTNERSHIP INTERESTS............................................................. 20
7.1 Securities Laws...................................................................... 20
</TABLE>
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<TABLE>
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7.2 Restriction on Transfers............................................................. 21
7.3 Unrestricted Transfers............................................................... 21
7.4 Purchase Right....................................................................... 21
7.5 Call Options to Purchase Partnership Interests....................................... 22
7.6 Allocation of Offered Interests / Option
Interests............................................................................ 23
(a) Allocation to Original Holders of Offered
Interests................................................................... 23
(b) Allocation among Family Groups.............................................. 24
(c) Allocation to the Partnership............................................... 25
(d) Allocation of Partnership Interests among
Family Group Members................................................................. 25
7.7 Terms of Sale........................................................................ 26
7.8 Closing.............................................................................. 27
7.9 Legal Requirements................................................................... 27
8. CODE SECTION 754 ELECTION..................................................................... 27
9. DISSOLUTION................................................................................... 27
9.1 Dissolution and Termination.......................................................... 27
9.2 Continuation of Business............................................................. 28
10. POWER OF ATTORNEY............................................................................. 28
10.1 Grant of Power....................................................................... 28
10.2 Irrevocable Nature................................................................... 29
10.3 Further Assurances - Power of Attorney............................................... 29
10.4 Transfer of Partnership Interests.................................................... 29
11. GENERAL PROVISIONS............................................................................ 29
11.1 Obtaining Partner Approvals of Partnership
Actions.............................................................................. 29
11.2 Arbitration.......................................................................... 30
11.3 Notices.............................................................................. 30
11.4 Waiver of Right to Partition......................................................... 30
11.5 Binding Effect....................................................................... 30
11.6 Headings............................................................................. 30
11.7 Entire Agreement..................................................................... 30
11.8 Governing Law........................................................................ 31
11.9 Counterparts......................................................................... 31
11.10 Pronouns............................................................................. 31
11.11 Remedies Cumulative.................................................................. 31
11.12 Further Assurances................................................................... 31
11.13 Severability......................................................................... 31
</TABLE>
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<PAGE> 5
CTR FAMILY ASSOCIATES, L.P.
LIMITED PARTNERSHIP AGREEMENT
-----------------------------
THIS LIMITED PARTNERSHIP AGREEMENT is made and entered into as
of the 14th day of November, 1996, by and among RANKIN MANAGEMENT, INC., a
Georgia corporation, as General Partner, and the Persons set forth on SCHEDULE
A, as amended from time to time, as Limited Partners. In consideration of the
mutual promises, covenants and agreements set forth herein, the Partners hereby
agree as follows:
1. DEFINITIONS. The following terms used in this Agreement shall, unless
otherwise expressly provided herein or the context indicates otherwise, have
the meanings set forth below.
1.1 "ACT" means the Georgia Revised Uniform Limited Partnership Act as
set forth in Chapter 14-9 of the O.C.G.A., as the same is presently in effect
and may be hereafter amended.
1.2 "AGREEMENT" means this Limited Partnership Agreement, as it may be
amended from time to time.
1.3 "APPLICABLE NACCO CLASS A CLOSING PRICE AVERAGE" shall mean the
average of the closing prices of the NACCO Class A Shares on the New York Stock
Exchange (or on the principal national securities exchange or automated
quotation system of national securities dealers on which the NACCO Class A
Shares may then be traded) on the five trading dates preceding the relevant
Starting Date as reported in The Wall Street Journal (or, if such periodical is
not then published, the most comparable periodical then being published).
1.4 "ARBITRABLE DISPUTE" means any dispute arising in connection with
this Agreement.
1.5 "AUTHORIZED TRANSFEREE" shall mean any Family Member of a Family
Group who (a) is a "Permitted Transferee" under Article FOURTH, Section 4 of the
NACCO Restated Certificate, (b) is a "Participating Stockholder" under Section
1.12 of the NACCO Stockholders Agreement, and (c) has executed and delivered to
the Partnership a counterpart of this Agreement agreeing to be subject to the
restrictions and obligations of a Partner hereunder and to hold all Partnership
Interest then owned or later acquired by such Family Member in accordance with
the terms of this Agreement.
1.6 "CALL NOTICE" shall have the meaning set forth in Section 7.5(a).
1.7 "CALL OPTION" shall have the meaning set forth in Section 7.5.
<PAGE> 6
1.8 "CAPITAL ACCOUNT" means, with respect to any Partner, the Capital
Account established for such Partner pursuant to Section 4.3.
1.9 "CAPITAL CONTRIBUTIONS" means, for each Partner, the amount of
cash, promissory notes and the value of any property (other than cash), as
determined by agreement of the Partners, by independent appraisal, or as
otherwise provided in this Agreement, contributed from time to time to the
Partnership by a Partner.
1.10 "CERTIFICATE" means the Certificate of Limited Partnership of the
Partnership in substantially the form required by the Act, to be executed
together with this Agreement and filed pursuant to the Act.
1.11 "CHARITABLE ORGANIZATION" means any organization contributions to
which are deductible for federal income, estate or gift tax purposes. A
Charitable Organization shall be an Outside Partner unless prior to the Transfer
of Shares to such Charitable Organization, the Managing Partner has designated
such Charitable Organization as eligible to be considered a Family Member, in
which event a Charitable Organization so designated shall, with respect to the
Partnership Interests transferred to it by any Partner, be considered a Family
Member of and a member of the Family Group of such Partner.
1.12 "CODE" means the Internal Revenue Code of 1986, as amended.
References to specific sections of the Code shall be deemed to include
references to corresponding provisions of any succeeding internal revenue law of
the United States of America.
1.13 "ENTITY" means any general partnership, limited partnership,
corporation, limited liability corporation, joint venture, estate, trust,
business trust or association.
1.14 "FAIR MARKET VALUE" means the price at which the subject
Partnership Interests would change hands between a willing buyer and a willing
seller, neither being under any compulsion to buy or sell and both being
reasonably informed of the relevant factors and in light of the circumstances
and prospects surrounding the business of the Partnership. A determination of
the Fair Market Value of the subject Partnership Interests shall take into
consideration appropriate discounts for lack of marketability and minority
interest related to such Partnership Interests, but will not take into
consideration the affect of any liquidity provided by the provisions of Section
7.4.
1.15 "FAMILY HOLDER" shall mean a Partner who is, and only so long as
such Partner is, an Initial Limited Partner or a Family Member.
2
<PAGE> 7
1.16 "FAMILY GROUP" shall mean an Initial Limited Partner and his
Family Members so long as such Initial Limited Partner or any such Family
Members own any Partnership Interests.
1.17 "FAMILY MEMBER" shall mean the spouse or surviving spouse of an
Initial Limited Partner, any descendant of an Initial Limited Partner, a spouse
or surviving spouse of any such descendant, or any Qualified Fiduciary.
Notwithstanding anything to the contrary contained herein:
(a) the surviving spouse of an Initial Limited Partner or of a
descendent of an Initial Limited Partner shall cease to be a Family Member upon
the remarriage of such person to other than an Initial Limited Partner or
descendent of an Initial Limited Partner; and
(b) the spouse of an Initial Limited Partner or of a
descendent of an Initial Limited Partner shall cease to be a Family Member upon
legal separation, divorce or dissolution of such spouse's marriage to said
Initial Limited Partner or descendent; and
(c) a Qualified Fiduciary shall cease to be a Family Member
from and after any event or lapse of time which causes such fiduciary to no
longer qualify as a Qualified Fiduciary as defined in Section 1.54.
1.18 "FINAL APPRAISER" shall have the meaning set forth in Section
1.52(b).
1.19 "FINAL VALUATION" shall have the meaning set forth in Section
1.52(b).
1.20 "FIRST APPRAISED VALUE" shall have the meaning set forth in
Section 1.52(b).
1.21 "GENERAL PARTNERSHIP INTEREST" means any Partnership Interest
which is directly traceable to and is derived from a capital contribution to the
Partnership for an interest in the Partnership as a general Partner. The holder
of a General Partnership Interest shall have all of the rights and obligations
of a General Partner under this Agreement to the extent such Person's
Partnership Interests constitute General Partnership Interests.
1.22 "GENERAL PARTNER(S)" means RANKIN MANAGEMENT, INC. (to the extent
that it holds a General Partnership Interest), and any successor in interest to
the business and assets of RANKIN MANAGEMENT, INC., and any additional General
Partners admitted pursuant to the terms of this Agreement and their successors
and assigns as permitted by this Agreement. Any successor or assign of a General
Partner's Partnership Interest who is admitted as a Partner pursuant to this
Agreement shall become a General Partner to the extent of such successor assign
holds General Partnership
3
<PAGE> 8
Interests. A Partner may own both Limited Partnership Interests and General
Partnership Interests. A Partner's acquisition of a General Partnership Interest
shall not convert such Partner's Limited Partnership Interests into General
Partnership Interests. A Partner's acquisition of a Limited Partnership Interest
shall not convert such Partner's General Partnership Interests into Limited
Partnership Interests.
1.23 "INDEPENDENT APPRAISER" shall have the meaning set forth in
Section 1.48.
1.24 "INITIAL APPRAISER" shall have the meaning set forth in Section
1.52(b).
1.25 "INITIAL LIMITED PARTNERS" means Alfred M. Rankin, Jr., Bruce T.
Rankin, Claiborne R. Rankin, Roger F. Rankin and Thomas T. Rankin.
1.26 "INITIAL VALUE" shall have the meaning set forth in Section
1.52(a).
1.27 "LIMITED PARTNER" means any of the Initial Limited Partners, any
additional Limited Partners admitted pursuant to the terms of this Agreement,
and their successors and assigns to the extent they hold Limited Partnership
Interests.
1.28 "LIMITED PARTNERSHIP INTEREST" means any Partnership Interest
which is directly traceable to and is derived from a capital contribution to the
Partnership for an interest in the Partnership as a Limited Partner. The holder
of a Limited Partnership Interest shall have all of the rights and obligations
of a Limited Partner under this Agreement to the extent such Person's
Partnership Interests constitute Limited Partnership Interests.
1.29 "MANAGING PARTNER" means the Person or Persons Elected Managing
Partner pursuant to Section 5.3 hereof, or any Person or Persons substituted
therefor or succeeding thereto.
1.30 "NACCO" means NACCO Industries, Inc., a Delaware corporation.
1.31 "NACCO CLASS A SHARES" means shares of Class A Common Stock, par
value $1.00 per share, of NACCO.
1.32 "NACCO CLASS B SHARES" means shares of Class B Common Stock, par
value $1.00 per share, of NACCO.
1.33 "NACCO STOCKHOLDERS' AGREEMENT" means the Stockholders' Agreement
dated as of March 15, 1990 by and among the Participating Stockholders, NACCO
and Ameritrust Company National Association, a national banking association, as
depository, as amended from time to time.
4
<PAGE> 9
1.34 "NACCO RESTATED CERTIFICATE" means the Restated Certificate of
Incorporation of NACCO, as amended from time to time.
1.35 "NET OPERATING CASH FLOW" means the net cash flow to the
Partnership resulting from ownership and operation of the Partnership Property,
plus any other items of income received in cash by the Partnership less (i) all
debts and expenses paid in the operation of the Partnership, (ii) less any
reserves which the Managing Partner deems reasonably necessary for the operation
of the Partnership, and (iii) less all proceeds which are (A) received by the
Partnership from the Transfer of Partnership Property, and (B) used to purchase
other Partnership Property.
1.36 "NET INCOME" or "NET LOSS" means the net income or net loss (as
appropriate) of the Partnership for a particular calendar year or interim period
of less than twelve (12) complete months, as determined in accordance with
accounting principles consistently applied on a cash basis (unless applicable
laws shall require use of the accrual method). Such determination shall include,
without limitation, depreciation, amortization, accelerated cost recovery, and
other deductions or credits against tax allowed by the Code. Net Income or Net
Loss is a financial accounting concept and, to the extent of changes in value
following any in kind Capital Contribution, is also intended to be a tax
accounting concept (to the maximum extent that financial and tax accounting
concepts may overlap). The determination of Net Income or Net Loss shall not
take into account special allocations required by Section 704(c) of the Code
with respect to any in kind Capital Contribution.
1.37 "OBJECTING PARTY" shall have the meaning set forth in Section
1.52(a).
1.38 "O.C.G.A." means the OFFICIAL CODE OF GEORGIA ANNOTATED, as the
same may be amended from time to time.
1.39 "OFFERED INTERESTS" shall have the meaning set forth in Section
7.4(a).
1.40 "OPTION INTERESTS" shall have the meaning set forth in Section
7.5.
1.41 "ORIGINAL HOLDERS" shall have the meaning set forth in Section
7.6(a).
1.42 "OUTSIDE PARTNER" means a Partner, other than Clara T. Rankin, who
is not then a member of a Family Group, including, without limitation, a Partner
who has ceased to be a Family Member pursuant to the terms of Sections 1.17(a)
1.17(b), 1.17(c).
1.43 "OUTSTANDING REMAINING INTERESTS" shall have the meaning set forth
in Section 7.6(b)(iii).
5
<PAGE> 10
1.44 "PARTNER(S)" means any General Partners and any Limited Partners.
1.45 "PARTNER APPRAISED VALUE" shall have the meaning set forth in
1.48.
1.46 "PARTNERSHIP" means CTR FAMILY ASSOCIATES, L.P., a limited
partnership organized pursuant to this Agreement under the provisions of the Act
and the laws of the State of Georgia and any successor partnership continuing
the business of CTR FAMILY ASSOCIATES, L.P. pursuant to Section 9.
1.47 "PARTNERSHIP INTEREST" means the percentage ownership share of
each Partner in the capital of the Partnership, whether as a Limited Partner or
as a General Partner, which percentage at any particular time shall be deemed to
equal the percentage which such Partner's Capital Account balance (if positive)
bears to the sum of all positive Capital Account balances of the Partners at
such time. In the event that a Partner's Capital Account balance is zero or is a
negative number, such Partner's Percentage Interest shall be deemed to be zero.
1.48 "PARTNERSHIP PERCENTAGE" means the percentage share of each
Partner in the Net Income or Net Loss of the Partnership. The Partners' initial
Partnership Percentages shall be proportionate to the Partners' initial Capital
Contributions to the Partnership. Thereafter, such Partnership Percentages shall
be adjusted only to reflect a disproportionate Capital Contribution by one or
more Partners or a disproportionate distribution to one or more Partners, with
disproportion being determined in accordance with Sections 4.2 and 4.5. Such
adjustments shall be made (a) by valuing the Partnership Property immediately
before the disproportionate Capital Contribution or distribution, (b) by
allocating the difference between the aggregate value of the Partnership
Property and the total of the Partnership debt among the Partners in proportion
to the Partnership Percentages immediately before the disproportionate Capital
Contribution or distribution, (c) by adding each Partner's Capital Contribution
or subtracting each Partner's distribution at the time of the disproportionate
Capital Contribution or distribution to or from that Partner's allocable share
of the net value of the Partnership Property immediately before the
disproportionate Capital Contribution or distribution, and (d) finally by
expressing each Partner's sum or difference determined under (c), above, as a
percentage of the aggregate sums or differences of all Partners determined under
(c), above. Such values (the "Partnership Valuation") shall be determined by the
Managing Partner based upon such considerations as the Managing Partner, in its
sole discretion, determines to be relevant to such valuation. If a Partner
objects in writing to the Partnership Valuation, such Partner may, at its sole
cost and expense and within fourteen (14) days from the date of such written
objection, engage an appraiser to determine within 30 days of such appointment
the value of the Partnership in
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accordance with the fourth sentence of this Section (the "Partner Appraised
Value"). If the Partner Appraised Value is at least eighty percent (80%) of the
Initial Value and less than or equal to one hundred twenty percent (120%) of the
Initial Value, then the Purchase Price shall be the average of the Partnership
Valuation and the Partner Appraised Value. If the Partner Appraised Value is
less than eighty percent (80%) of the Initial Value or more than one hundred
twenty percent (120%) of the Initial Value, then the Managing Partner and the
Partner(s) objecting to the Partnership Valuation shall, within fourteen (14)
days from the date of the Partner Appraised Value, mutually agree on an
appraiser (the "Independent Appraiser"). The cost of the Independent Appraiser
shall be borne equally by the Partnership and the Partner(s) objecting to the
Partnership Valuation. The Independent Appraiser shall determine within 14 days
after its appointment the Fair Market Value of the Shares, but such Fair Market
Value shall be not less than the smaller of the Partnership Valuation and the
Partner Appraised Value nor greater than the larger of the Partnership Valuation
and the Partner Appraised Value. The valuation of the Independent Appraiser as
so determined shall be binding upon the Partnership and each of the Partners.
The Partnership shall cooperate in assisting the appraisers in conducting the
foregoing appraisals, including providing reasonable access to the books and
records of the Partnership and to such other information as the appraisers
reasonably request in connection with such determinations; PROVIDED, HOWEVER,
that nothing in this Agreement shall require the Partnership to disclose
privileged or proprietary information; and PROVIDED FURTHER, that the
Partnership may require such appraisers to enter into such confidentiality and
non-disclosure agreements as the Managing Partner reasonably believes to be
necessary to protect the interests of the Partnership and its Partners. The
Managing Partner may by a majority vote of its Board of Directors establish a
disproportionate monthly or other periodic draws during the calendar year but
any such disproportionate draws shall not be regarded as disproportionate
distributions if compensating distributions, determined with or without interest
in the discretion of the Managing Partner, are made by the end of March of the
following calendar year so that the periodic draws and compensating
distributions in the aggregate are proportionate. A successor or assign of a
Partner shall succeed to the predecessor Partner's Partnership Percentage, or to
that portion thereof which is assigned or otherwise transferred to that
successor or assign.
1.49 "PERSON" means any individual, estate, trust, corporation,
partnership, limited liability company, joint venture, unincorporated
organization or other entity, association or organization.
1.50 "PARTNERSHIP PROPERTY" means any property, real, personal or
mixed, or any interest therein or appurtenant thereto which may be owned or
acquired by the Partnership.
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1.51 "PROPORTIONATE PART" means, with respect to any Partner or Family
Group, the Partnership Percentage of such Partner or the aggregate Partnership
Percentage of such Family Group.
1.52 "PURCHASE PRICE" shall mean the Fair Market Value of the Offered
Interests or Option Interests, as the case may be, determined as follows:
(a) INITIAL VALUE. The Managing Partner shall from time to
time determine a value for the Partnership Interests (the "Initial Value")
based upon such considerations as the Managing Partner, in its sole discretion,
determines to be relevant to such valuation. If a Selling Partner or Outside
Partner (for purposes of this Section 1.52, the "Objecting Party") does not
provide written objections to Partnership concerning the Initial Value set
forth in the Valuation Notice within 10 days after the date of such Valuation
Notice, the Purchase Price shall be equal to the Initial Value.
(b) APPRAISED VALUE. If an Objecting Party objects in writing
to the Initial Valuation within 10 days after its receipt of the Valuation
Notice, the Objecting Party, within fourteen (14) days from the date of such
written objection, shall engage an appraiser (the "Initial Appraiser") to
determine within 30 days of such appointment the Fair Market Value of the Shares
(the "First Appraised Value"). The cost of the First Appraiser shall be borne by
the Objecting Party. If the First Appraised Value is at least eighty percent
(80%) of the Initial Value and less than or equal to one hundred twenty percent
(120%) of the Initial Value, then the Purchase Price shall be the average of the
Partnership Valuation and the Partner Appraised Value. If the First Appraised
Value is less than eighty percent (80%) of the Initial Value or more than one
hundred twenty percent (120%) of the Initial Value, then the Partnership and the
Objecting Party shall, within fourteen (14) days from the date of the First
Appraised Value, mutually agree on an appraiser (the "Final Appraiser"). The
cost of the Final Appraiser shall be borne equally by the Partnership and the
Objecting Party. The Final Appraiser shall determine within 14 days after its
appointment the Fair Market Value of the Shares (the "Final Valuation"), but
such Final Valuation shall be not less than the smaller of the Initial Value and
the First Appraised Value nor greater than the larger of the Initial Value and
the First Appraised Value. The Purchase Price shall be equal to the Final
Valuation and shall be final and binding upon the parties to this Agreement for
purposes of the subject transaction.
(c) MUTUALLY AGREED UPON PURCHASE PRICE. Notwithstanding the
procedure set forth above, the Partnership and an Objecting Party may, prior to
or at any time during the appraisal process, mutually agree on a single
independent appraiser to determine the Purchase Price, which determination shall
be binding on all of the parties, or may agree in writing upon a Purchase Price.
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(d) COOPERATION WITH APPRAISERS. The Partnership shall
cooperate in assisting the appraisers in determining the Purchase Price,
including providing reasonable access to the books and records of the
Partnership and to such other information as the appraisers reasonably request
in connection with such determination; PROVIDED, HOWEVER, that nothing in this
Agreement shall require the Partnership to disclose privileged or proprietary
information; and PROVIDED FURTHER, that the Partnership may require such
appraisers to enter into such confidentiality and non-disclosure agreements as
the Managing Partner reasonably believes to be necessary to protect the
interests of the Partnership and its Partners.
1.53 "PURCHASE RIGHT" shall have the meaning set forth in Section 7.4.
1.54 "QUALIFIED FIDUCIARY" means (a) the trustee of any trust
(including without limitation a voting trust) if and as long as the trust is
held for the benefit of one or more Authorized Transferees and no other Person,
or (b) the executor, administrator, guardian, personal representative or other
fiduciary of a deceased, incompetent, bankrupt or insolvent Authorized
Transferee; PROVIDED that any such trust must prohibit the transfer of
Partnership Interests to any Persons other than (x) the Person or Persons who
established the trust, and (y) Authorized Transferees of the Person or Persons
who established such trust.
1.55 "Remaining Interests" shall have the meaning set forth in Section
7.6(b).
1.56 "SELLER'S NOTICE" shall have the meaning set forth in Section
7.4(a).
1.57 "SELLING PARTNER" shall have the meaning set forth in Section 7.4.
1.58 "STARTING DATE" means, with respect to any Seller's Notice or Call
Notice, the date of the final determination of the Purchase Price relating to
such notice.
1.59 "TRANSFER" means any sale, assignment, pledge, hypothecation,
encumbrance, disposition, transfer (including, without limitation, a transfer by
will or intestate distribution), gift or attempt to create or grant a security
interest in Partnership Interests, whether voluntary, involuntary, by operation
of law or otherwise. Notwithstanding anything to the contrary contained in this
Agreement, the occurrence of an event discussed in Sections 1.17, 1.17(b), or
1.17(c), pursuant to which a Family Member ceases to be a Family Member and
is thereafter treated asan Outside Partner, shall not constitute a "Transfer"
for purposes of triggering the exercise of Purchase Rights under Section 7.4 of
this Agreement.
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1.60 "VALUATION NOTICE" shall mean the notice given by the Partnership
pursuant to Sections 7.4(b) or 7.5(a) and stating the Initial Value at which
a Purchase Right or a Call Option is to be exercised.
2. FORMATION, NAME, PURPOSES, POWERS AND TERM
2.1 FORMATION. The Partners hereby enter into and form the Partnership
on and subject to the terms and conditions of this Agreement, as a limited
partnership organized pursuant to the provisions of the Act and the laws of the
State of Georgia. The Partners shall execute and record a Certificate for the
Partnership as contemplated by the Act. Each Partner's Partnership Interest
shall be personal property for all purposes.
All real and other Partnership Property owned by the
Partnership shall be deemed owned by the Partnership as an Entity, and no
Partner, individually, shall have a direct ownership interest in such
Partnership Property.
2.2 NAME AND PRINCIPAL PLACE OF BUSINESS. The Partnership shall do
business under the name "CTR FAMILY ASSOCIATES, L.P." The principal place of
business of the Partnership shall be Rankin Management, Inc., 5875 Landerbrook
Drive, Suite 300, Mayfield Heights, Ohio 44124-4017, or such other place as the
General Partners may from time to time determine. The General Partners shall
execute any assumed or fictitious name certificate(s) required by law in
connection with the formation of the Partnership and shall file same in the
appropriate public records.
2.3 PURPOSES AND POWERS.
(a) The character of business and purpose of the Partnership
is to invest, acquire, sell, hold, own, develop, improve, maintain, mortgage,
manage, lease and operate the Partnership Property and to conduct all other
business related or incident thereto. In particular, the Partnership is
initially designed as a vehicle for consolidating the management of the
Partnership Property, providing for the succession of management, and enhancing
total returns from the Partnership Property.
(b) In furtherance of the above-stated purposes and subject to
any restrictions contained in this Agreement (including, but not limited to,
Section 5.1), the Managing Partner, acting on behalf of the Partnership, shall
have the power to:
(i) Enter into a contract for purchase or sale of
any of the Partnership Property.
(ii) Execute all documents or instruments of any
kind appropriate for carrying out the purposes of the
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Partnership, including, without limitation, investment management, management,
purchase, debt, and security agreements.
(iii) Open and maintain one or more depository
accounts, including money market accounts and margin accounts, in the name of
the Partnership.
(iv) Employ such personnel and obtain such management
services and/or such investment management, legal, accounting, and other
professional services and advice as the Partners deem advisable in the course of
the Partnership's operations under this Agreement, including the services of any
party who, directly or beneficially, is a Partner or a spouse or descendant of a
Partner, and pay reasonable fees for such services.
(v) Pay all real estate and ad valorem taxes and
other governmental charges levied or assessed against the Partnership Property,
and all other taxes (other than income taxes of the Partners except to the
extent that the Partnership may be obligated to withhold therefor) directly
relating to the Partnership's operations under this Agreement.
(vi) Borrow money from banks and other lending
institutions or from other third parties or from any of the Partners for
Partnership purposes and pledge or otherwise grant security interests in the
Partnership Property for the repayment of such loans.
(vii) Take any of the Partnership Property subject to
a loan or assume a loan secured by any of the Partnership Property irrespective
of whether such outstanding loan is from a lending institution or other third
party or from one or more of the Partners.
(viii) Perform any and all other acts or activities
customary, incidental, necessary or convenient to the purposes and powers
enumerated herein.
(c) Nothing in this Agreement shall, or shall be deemed to,
restrict in any way the freedom of any Partner (directly or through an
affiliate) to conduct any other business or activity whatsoever (including,
without limitation, the acquisition, development, leasing, sale, operation and
management of other real property), without any accountability to the
Partnership or any other Partner, even if such business or activity competes
with the business of the Partnership, it being understood by each Partner that
the other Partners or affiliates thereof may be interested, directly or
indirectly, in various other businesses and undertakings not included in the
Partnership.
2.4 TERM. The term of the Partnership shall commence as of the date of
this Agreement and shall continue until the date
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which is thirty (30) years from the date hereof, unless extended by amendment to
this Agreement or sooner terminated as herein provided.
2.5 REGISTERED AGENT. The name of the Partnership's initial agent for
service of process on the Partnership in the State of Georgia shall be
Corporation Service Company, and the address of the initial registered office
and the initial registered agent shall be 100 Peachtree Street, Atlanta, Fulton
County, Georgia 30303. As required by the Act, the Partnership shall at all
times maintain in the State of Georgia an office and an agent for service of
process selected by the General Partners in accordance with any relevant
provisions of the Act.
2.6 REQUIRED RECORDS. The Partnership shall keep and maintain or make
available at the principal office and place of business of the Partnership, as
set forth in Section 2.2, those records required to be maintained or made
available at such principal place of business pursuant to Section 105 of the
Act, O.C.G.A. Sec. 14-9-105, or otherwise by this Agreement, and shall make
them available to the persons and as provided in Section 105 of the Act,
O.C.G.A. Sec. 14-9-105.
3. REPRESENTATIONS AND WARRANTIES. Each Partner, in order to induce the
other Partners to enter into this Agreement, hereby represents and warrants to
the other Partners that:
3.1 VALIDITY OF AGREEMENT. This Agreement, and each and every other
agreement, document and instrument provided for herein and to which such Partner
is or shall be a party, when executed and delivered, shall constitute the valid
and binding obligation of such Partner, enforceable against such Partner in
accordance with its terms, except as enforceability may be limited by (a)
bankruptcy or similar laws from time to time in effect affecting the enforcement
of creditors' rights generally or (b) the availability of equitable remedies
generally.
3.2 NO VIOLATION OF MATERIAL INSTRUMENTS. The execution and delivery of
this Agreement by such Partner does not, and the consummation of the
transactions contemplated hereby shall not:
(a) violate or constitute an occurrence of default (which
violation or default either singularly or in the aggregate would be considered
material) under any provision of, or conflict with, or result in acceleration of
any obligation under, or give rise to a right by any party to terminate its
obligations under any material agreement, instrument, order, judgment, decree or
other arrangement to which such Partner is a party or by which he is bound or
his assets affected; or
(b) require any consent, approval, filing or notice under any
provision of law, or violate any judgment, ruling, order, writ, injunction,
decree, statute, rule or regulation applicable to such Partner.
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4. CAPITAL
4.1 INITIAL CONTRIBUTIONS. As of the date hereof, the Partners have
contributed various properties to the Partnership as their respective initial
Capital Contributions. The initial Partnership Interests and Partnership
Percentages shall be proportional to the fair market values of the Partners'
respective Capital Contributions, without regard to whether such Capital
Contributions are for an interest as a General Partner, Limited Partner, or
both. The properties initially contributed to the Partnership by the respective
Partners, the fair market values of such Capital Contributions, as mutually
agreed upon by the Partners, and the specification of the extent to which such
Capital Contributions are for an interest as a General Partner or a Limited
Partner are set forth in SCHEDULE A attached hereto. The Partners acknowledge
that they, their advisers, or both are familiar with the properties contributed
to the Partnership, have considerable knowledge and experience regarding the
valuation of those properties and similar properties, and have in good faith
determined the fair market values of such properties, as set forth in SCHEDULE
A.
4.2 ADDITIONAL CONTRIBUTIONS. In addition to the Capital Contributions
made by the Partners pursuant to Section 4.1 hereof, and subject to the
limitations on any requirement that a Partner make additional Capital
Contributions (as hereinafter provided in the second paragraph of this Section
4.2), the Partners may, from time to time, make such additional Capital
Contributions as may be necessary or desirable in the discretion of the
Managing Partner; provided, however, that any property contributed to the
Partnership under this Section 4.2 shall be transferred subject to any and all
existing liabilities encumbering such contributed property, and the Partnership
shall take and hold the contributed property subject to such existing
liabilities but shall not assume such liabilities unless Partners owning more
than fifty percent (50%) of the Partnership Interests consent in writing to any
such assumption. In the event the net values of the additional Capital
Contributions shall be disproportionate to the Partners' Partnership Percentages
immediately before the additional Capital Contributions, then the Partnership
Percentages shall be adjusted as provided in Section to reflect the
disproportionate additional Capital Contributions.
Under no circumstances shall a Limited Partner be personally
liable for any of the debts or obligations of the Partnership by reason of such
Person's status as a Limited Partner. No Limited Partner shall be required, by
reason of such Person's status as a Limited Partner, to contribute any capital
to the Partnership except as provided in Section 4.1.
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4.3 CAPITAL ACCOUNTS.
(a) An individual Capital Account shall be established and
maintained for each Partner in accordance with the requirements of the Code and
any regulations thereunder, and shall be credited with the Capital
Contributions(s) of such Partner and that portion of Net Income allocable to
such Partner, and shall be debited with that portion of any Net Loss allocable
to such Partner and all distributions made by the Partnership to such Partner.
If the Partner is both a General Partner and a Limited Partner, subaccounts
shall be maintained to reflect the Person's interest as a General Partner and as
a Limited Partner.
(b) No interest shall be payable to any Partner on any
positive balance in such Partner's Capital Account.
(c) No Partner shall have the right to withdraw from his
Capital Account or to otherwise receive any Partnership funds or Partnership
Property except as provided by this Agreement. Each Partner expressly waives any
right to partition the Partnership Property which he or she may otherwise have,
as provided in Section 11.4.
(d) A Partner shall be required to eliminate in any fashion
approved in good faith by the Managing Partner any deficit balance which may
arise in that Partner's Capital Account, at the time the Partnership is
dissolved or at any other time, provided, however, that no Limited Partner shall
be required, by reason of such Person's status as a Limited Partner, to
contribute any capital to the Partnership except as provided in Section 4.1. If
a Limited Partner unexpectedly receives an adjustment, allocation or
distribution described in (4), (5) or (6) of Section 1.704-1(b)(2)(ii)(d) of
the regulations issued under Section 704(b) of the Code (or any successor there
to), gross income of the Partnership or gain from a sale of assets shall be all
ocated to such Limited Partner or Limited Partners in an amount sufficient to
eliminate any deficit balance in such Limited Partner's capital account caused
by such adjustment, allocation or distribution as quickly as possible to the
extent such deficit balance exceeds the amount such Limited Partner is deemed
obligated to restore to the Partnership pursuant to the Section 704(b)
regulations. It is the intent of the Partners that any allocation pursuant to
this Section 4.3 constitutes a "qualified income offset" under Treasury
regulation section 1.704-1(b)(2)(ii)(d).
4.4 ALLOCATION OF NET INCOME AND NET LOSS. Net Income or Net Loss of
the Partnership shall be determined as of the end of each calendar year and as
of the end of any interim period extending through the day immediately preceding
any disproportionate Capital Contribution or distribution or succession or
assignment. If a calendar year includes an interim period, the determination of
Net Income or Net Loss for the period extending through the last day of the
calendar year shall
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include only that period of less than twelve (12) months occurring from the day
immediately following the last day of the latest interim period during the
calendar year and extending through the last day of the calendar year. For all
purposes, including income tax purposes, Net Income, if any, of the Partnership
for each calendar year or interim period shall be allocated among the Partners
in proportion to their Partnership Percentages for the calendar year or interim
period. In the event of a Net Loss for a particular calendar year or interim
period, then, for such calendar year or interim period, the Net Loss for such
calendar year or interim period shall be allocated among the Partners in
proportion to their respective Partnership Percentages for the calendar year or
interim period.
4.5 DISTRIBUTIONS.
(a) The Managing Partner shall distribute annually among the
Partners an amount equal to the greater of (i) Net Operating Cash Flow of
Partnership, or (ii) an amount corresponding to the income tax liabilities of
the Partners resulting from the allocation of Net Income (as shall be determined
in good faith by the Managing Partner by assuming that all Partners are in the
highest marginal federal income tax bracket and by using the income tax rates
for the state of residence of the Partner with the highest state income tax
rates). The Managing Partner shall make such distributions from time to time
during each year as it determines, provided that the Managing Partner shall
distribute quarterly at least fifteen days in advance of the dates on which
estimated tax payments are due at least an amount corresponding to the income
tax liabilities of the Partners resulting from the allocation of Net Income (as
determined as provided in the preceding sentence).
(b) All distributions shall be made in proportion to the
Partners' Partnership Percentages except (i) when the Managing Partner by
majority vote of its Board of Directors approves the disproportionate
distribution, or (ii) with respect to any payment of NACCO Class A Shares or
NACCO Class B Shares by the Partnership pursuant to Section 7.7(a). The
Partners are encouraged to consider disproportionate distributions to defray
the income tax liabilities resulting from special allocations under Section 704
(c) of the Code, but such disproportionate distributions shall not be required.
Subject to Section 4.5(a), the Managing Partner is expressly authorized to make
monthly or other periodic draws with respect to one or more, but not
necessarily all, of the Partners, on the condition that compensating
distributions, determined with or without interest in the discretion of the
Managing Partner, shall be made to the other Partners on or before the end of
March of the following calendar year so that the total draws and compensating
distributions shall be proportionate. For all purposes of this Agreement,
except as provided in the immediately preceding sentence, a distribution among
the Partners which is not in proportion to Partnership Percentages shall be
regarded as
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disproportionate. In the event that a disproportionate distribution occurs, the
Managing Partner shall appropriately adjust the Capital Accounts of the Partners
to reflect such disproportionate distribution. This adjustment of Capital
Accounts, and thus Partnership Interests, shall be in addition to the adjustment
in Partnership Percentages.
4.6 NO RIGHT TO RETURN OF CAPITAL. Except as otherwise expressly
provided in this Agreement, the Partners shall not have the right to demand the
return of all or any portion of their respective Capital Contributions or to
demand or receive property other than cash in return for their respective
Capital Contributions.
5. MANAGEMENT.
5.1 MANAGEMENT OF PARTNERSHIP BUSINESS. The Managing Partner shall be
responsible for managing and conducting the ordinary and usual business and
affairs of the Partnership, and by the vote of a majority of the Board of
Directors of the Managing Partner shall make all management decisions on behalf
of the Partnership, including, without limitation (except as expressly provided
elsewhere in this Agreement):
(a) the voting of any stock, partnership interest, or interest
in a limited liability company with respect to which the Partnership owns more
than five percent (5%) of the total voting power;
(b) the borrowing of any funds for or by the Partnership in
excess of $200,000 (whether secured or unsecured), the collateralization of any
such borrowing with any Partnership Property, or the prepayment of any such
borrowing;
(c) the approval of Partnership budgets;
(d) the approval of any contracts between the Partnership and
any Partner or any shareholder, beneficiary, spouse, descendant, or spouse or
descendant of a shareholder or beneficiary of one of the Partners;
(e) the retention or termination of an investment manager;
(f) except as provided in Section 7.2 or elsewhere in this
Agreement, the admission of new Partners to the Partnership; and
(g) the exercise by the Partnership of the Call Option
pursuant to Section 7.5.
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5.2 MANAGEMENT OF PARTNERSHIP PROPERTY CONSISTING OF NACCO CLASS B
STOCK.
(a) The Managing Partner by the approval of a majority of its
Board of Directors shall direct the voting of the NACCO Class B Stock and may
authorize the Partnership to enter into a voting arrangement with respect to any
or all of the NACCO Class B Common Stock.
(b) The Partnership will not Transfer any shares of NACCO
Class B Stock without the consent of a majority of the Board of Directors of the
Managing Partner and the consent of Partners owning more than 75% of all
Partnership Interests.
5.3 ELECTION OF MANAGING PARTNER. RANKIN MANAGEMENT, INC. is hereby
designated as the initial Managing Partner. If RANKIN MANAGEMENT, INC. or any
successor ceases to serve as a Managing Partner, such General Partner(s) or
officer(s) of a General Partner selected by Partners owning not less than ninety
percent (90%) of the Partnership Interests shall serve as successor Managing
Partner or Co-Managing Partners (referred to herein collectively in the singular
as "Managing Partner" unless the context indicates to the contrary). Such
General Partner(s) or officer(s) of a General Partner who are thus selected as
Managing Partner or Co-Managing Partners may expressly be one or more
Co-Managing Partners who continue to serve after another Co-Managing Partner
ceases to serve.
If an individual Managing Partner or Co-Managing Partner is
determined by his or her principal attending physician to be incapable of
handling his or her duties as Managing Partner or Co-Managing Partner, such
incapacitated Managing Partner or Co-Managing Partner shall be deemed to have
resigned for the period of his or her incapacity, but such individual shall be
restored as Managing Partner or Co-Managing Partner in lieu of his or her
successor (or that Person's successor), if any, in the event his or her
principal attending physician later determines that the incapacitated Managing
Partner or Co-Managing Partner has recovered sufficiently to resume the duties
of Managing Partner or Co-Managing Partner. Any determination by the Managing
Partner's or Co-Managing Partner's principal attending physician shall be
conclusive, and the principal attending physician shall be held harmless by the
Partnership from any liability resulting from any good faith determination of
incapacity or recovery. Any determination hereunder by the principal attending
physician shall be in recordable form.
Any Managing Partner or Co-Managing Partner may be removed and
replaced only by and with the consent of Partners owning not less than ninety
percent (90%) of all Partnership Interests.
So long as more than one Managing Partner shall be serving,
the vote of a majority of those then serving shall
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control. The Managing Partner or any Co-Managing Partner may sign on behalf of
the Partnership, and any third party may conclusively rely upon the signature of
the Managing Partner or any Co-Managing Partner as being binding upon the
Partnership. Any person dealing in good faith with the Partnership may
conclusively rely upon any writing signed by one or more Persons certifying (a)
that such Person or Persons are the Managing Partner, a Co-Managing Partner, or
the Co-Managing Partners then serving and (b) that such Person or Persons are
acting in accordance with the terms of this Agreement. The Co-Managing Partner
working regularly in the Partnership's principal place of business shall be
responsible for informing any other Co-Managing Partner(s) of any matters
requiring the Managing Partner's approval, and the Managing Partner shall keep
the other Partners informed on a timely basis as to all significant matters of
concern to the Partnership.
5.4 COMPENSATION OF MANAGING PARTNER. The Managing Partner or
Co-Managing Partners shall not be entitled to any compensation for performance
of duties under this Agreement as Managing Partner or Co-Managing Partners. The
Partnership shall reimburse the Managing Partner or any Co-Managing Partner at
cost for reasonable out-of-pocket expenses incurred in the performance of duties
under this Agreement.
5.5 TAX MATTERS. The Managing Partner (or one of the Co-Managing
Partners selected by vote of the Co-Managing Partners then serving in
accordance with Section 5.3 if more than one Managing Partner shall then
be serving) is hereby appointed the Partnership's "tax matters partner," as
that term is defined in Section 6231(a)(7) of the Code, and shall receive
notice of the commencement of any administrative proceeding at the Partnership
level with respect to any Partnership item or items, and shall receive notice
of any final Partnership administrative adjustment resulting from any such
proceeding, in each case within the meaning of Sections 6223 and 6231 of the
Code. The Partnership's tax matters partner shall supply such information to
the Internal Revenue Service as may be necessary to enable the Internal Revenue
Service to provide the Partners with such notices as are required under the
Code. The Partnership's tax matters partner shall also keep each Partner
informed of any administrative or judicial proceeding relative to any
adjustment or proposed adjustment at the Partnership level of Partnership
items. Without the prior written approval of Partners owning more than fifty
percent (50%) of the Partnership Interests, the tax matters partner shall not
(a) enter into any settlement agreement with the Internal Revenue Service which
purports to bind persons other than the tax matters partner, (b) file a
petition as contemplated by Sections 6226(a) or 6228 of the Code, (c) intervene
in any action as contemplated by Section 6226(b) of the Code, (d) file any
request as contemplated by Section 6227(b) of the Code, or (e) enter into an
agreement extending the period of limitation as contemplated by Section
6229(b)(1)(B) of the Code.
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5.6 LIMITATION OF LIABILITY. No Partner, direct or indirect shareholder
of a Partner, or director, officer, or employee of the Partnership or a Partner
shall be liable to the Partnership or any of its Partners for any loss, damage,
liability or expense suffered by the Partnership or its Partners on account of
any action taken or omitted to be taken by such Person on behalf of, or at the
request of, the Partnership, or in connection with the organization of the
Partnership, provided such Person discharges such Person's duties in good faith,
exercising the same degree of care and skill that a prudent person would have
exercised under the circumstances in the conduct of such prudent person's own
affairs, and in a manner such Person reasonably believes to be in the best
interest of the Partnership. A Person's liability hereunder shall be limited
only for those actions taken or omitted to be taken by such Person in connection
with the organization of the Partnership or the management of the business and
affairs of the Partnership. The provisions of this Section are not intended to
limit the liability of any person in any other connection, including, but not
limited to, any obligations of such Person undertaken in this Partnership
Agreement or any contract with the Partnership.
5.7 RIGHT TO INDEMNIFICATION. The Partnership shall indemnify each
Person who has been 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, investigative or appellate (regardless of whether such
action, suit or proceeding is by or in the right of the Partnership or by third
parties), by reason of the fact that such Person is or was a Partner, direct or
indirect shareholder of a Partner, director, officer, or employee of the
Partnership or a Partner, or organizer of the Partnership, against all
liabilities and expenses, including, without limitation, judgments, amounts paid
in settlement, attorneys' fees, ERISA excise taxes or penalties, fines and other
expenses, actually and reasonably incurred by such Person in connection with
such action, suit or proceeding (including, without limitation, the
investigation, defense, settlement or appeal of such action, suit or
proceeding); provided, however, that the Partnership shall not be required to
indemnify or advance expenses to any person from or on account of such Person's
conduct that is finally adjudged to have been knowingly fraudulent, deliberately
dishonest, grossly negligent, or willful misconduct; provided, further, that the
Partnership shall not be required to indemnify or advance expenses to any Person
in connection with an action, suit or proceeding initiated by such Person unless
the initiation of such action, suit or proceeding was authorized in advance by
the Partnership; and provided, finally, that a Person shall be indemnified
hereunder only for those actions taken or omitted to be taken by such Person in
connection with the discharge of such Person's obligations for the organization
of the Partnership or the management of the business and affairs of the
Partnership and that the provisions of this Section 5.7 are not intended to
extend indemnification to any Partner or other Person for any
19
<PAGE> 24
obligations of such Partner or other Person undertaken in this Partnership
Agreement. The termination of any action, suit or proceeding by judgment, order,
settlement, conviction or under a plea of nolo contendere or its equivalent
shall not, of itself, create a presumption that such Person's conduct was
finally adjudged to have been knowingly fraudulent, deliberately dishonest,
grossly negligent, or willful misconduct.
6. BOOKS, AUDITS AND FISCAL MATTERS.
6.1 PARTNERSHIP BOOKS. The Managing Partner shall maintain full and
complete books and records for the Partnership at its principal office, and each
Partner and his, her, or its designated representatives shall at all times have
reasonable access to, and may inspect and copy any of, such books and records.
6.2 FISCAL YEAR. The fiscal year of the Partnership shall be the
calendar year.
7. TRANSFER OF PARTNERSHIP INTERESTS.
7.1 SECURITIES LAWS. Each Partner acknowledges that its Partnership
Interest was offered and is being sold in reliance upon the representation,
hereby affirmed, that such Partnership Interest is being purchased for
investment for such Partner's own account or in his or its fiduciary capacity
for a fiduciary account, as appropriate, and not with a view to, or for resale
in connection with, the distribution of such Partnership Interest or any
interest therein. Each Partner also acknowledges that such Partner's Partnership
Interest has not been registered under the Securities Act of 1933 or any state
securities laws. Notwithstanding any other provision in this Agreement, but
subject to express written waiver by the Managing Partner in the exercise of its
reasonable judgment, no portion of or interest in any Partnership Interest may
be offered for sale or be the subject of a Transfer without the registration of
the Partnership Interest under the Securities Act and applicable state
securities laws, unless the Partnership shall have received such assurances
satisfactory to the Managing Partner that such Transfer does not violate the
Securities Act, any state securities laws or any other law applicable to the
Partnership, including, without limitation, such legal opinions which it in its
good faith and reasonable discretion deems appropriate in light of the facts and
circumstances relating to such proposed Transfer, together with such
representations, warranties and indemnifications from the transferor and the
transferee as the Managing Partner in its good faith and reasonable discretion
deems appropriate to confirm the accuracy of the facts and circumstances that
are the basis for any such opinion or other assurances and to protect the
Partnership and the other Partners from any liability resulting from any such
Transfer. Such opinions, representations, warranties and indemnities may
include, without limitation, assurance that the transaction is exempt from any
registration or
20
<PAGE> 25
qualification provisions arising under applicable Federal and state securities
laws and would not require the registration or qualification of the Partnership
Interest under any such laws.
7.2 RESTRICTION ON TRANSFERS. Except as otherwise provided in this
Agreement, no Partner shall, either during the Partner's lifetime or upon the
Partner's death, Transfer any of the Partnership Interests now owned or
hereafter acquired by such Partner. Moreover, no Partner shall Transfer or
attempt to Transfer any Partnership Interest if such Transfer or attempted
Transfer is contrary to the provisions of the NACCO Restated Certificate or the
NACCO Stockholders' Agreement. In the event of any purported or attempted
Transfer of Partnership Interests that does not comply with this Agreement, the
purported transferee or successor by operation of law shall not be deemed to be
a Partner of the Partnership for any purpose and shall not be entitled to any of
the rights of a Partner of the Partnership, including, without limitation, the
right to vote the Partnership Interests or to receive a certificate for
Partnership Interests or any distributions of any kind on or with respect to
Partnership Interests. Any purported or attempted transfer of Partnership
Interests made other than in accordance with the provisions of this Agreement
shall be void AB INITIO and the last holder of record who acquired such
Partnership Interests in a manner not contrary to the provisions of this
Agreement shall be recognized as the holder of such Partnership Interests for
all purposes and the Partnership Interests shall continue to be treated as
Partnership Interests for all purposes under this Agreement, shall be deemed
owned by such recognized holder for purposes of the operation of this Agreement
and shall continue to be subject to the terms of this Agreement.
7.3 UNRESTRICTED TRANSFERS. Notwithstanding anything to the contrary
contained herein, each Partner or Authorized Transferee of such Partner shall be
entitled to Transfer all or any portion of his, her or its Partnership Interests
to any Authorized Transferee of such Partner, provided that such Partner has
first obtained the written consent of the Managing Partner, which consent may be
withheld for any reason or for no reason at all, without need to comply with the
other provisions of this Agreement.
7.4 PURCHASE RIGHT. At any time after the date hereof, the Partnership
and the Family Groups shall have a right of first refusal (the "Purchase Right")
to purchase, pursuant to the terms of this Section 7.4, from any Partner (for
purposes of this Section 7.4, a "Selling Partner") intending to Transfer, other
than as permitted in Section 7.3 of this Agreement, all or any portion of his,
her or its Partnership Interests (including any Partnership Interests acquired
after the date hereof).
(a) A Selling Partner intending to Transfer all or any portion
of his, her or its Partnership Interests shall first deliver to the Partnership
a written notice (the "Seller's
21
<PAGE> 26
Notice") specifying (i) the Partnership Interests to be transferred (the
"Offered Interests"); and (ii) the identity of the proposed transferee.
(b) Within 10 days after the Partnership's receipt of the
Seller's Notice, the Managing Partner shall deliver to the Selling Partner a
Valuation Notice setting forth the Initial Value and the Managing Partner and
the Selling Partner shall commence the process to determine the Purchase Price
pursuant to Section of this Agreement.
(c) Within 10 days after Starting Date, the Partnership shall
notify each Family Holder (other than the Selling Partner) of (i) the Starting
Date; (ii) the number of Offered Interests; and (iii) the Purchase Price. The
Partnership's notice shall include a copy of the Seller's Notice.
(d) Within 40 days after the Starting Date, each Partner shall
notify the Partnership of how many, if any, of the Offered Interests he or she
elects to purchase.
(e) Within 50 days after the Starting Date, the Partnership
shall provide written notice to the Selling Partner and to each other Partner of
(i) the number of Offered Share to be purchased by Family Holders and the
allocation of the Offered Interests among the Family Holders pursuant to the
terms of Section 7.6 of this Agreement; (ii) the number of Offered Interests to
be purchased by the Partnership; and (iii) the time, date and place of Closing
which shall be no sooner than 90 days after the Starting Date and no later than
120 days after the Starting Date.
7.5 CALL OPTIONS TO PURCHASE PARTNERSHIP INTERESTS. At any time after
the date hereof, the Partnership and the Family Groups shall have the option
(the "Call Option") to purchase from any Partner who is then an Outside Partner
all, but not less than all, of the Partnership Interests (the "Option
Interests") directly or indirectly owned by such Outside Partner, and upon the
exercise of a Call Option such Outside Partner shall be obligated to sell to the
purchasing Partners or the Partnership, as the case may be, all (but not less
than all) of his, her or its Option Interests. The Call Option shall be
exercised as follows:
(a) Within thirty (30) days after the determination by the
Partnership to exercise a Call Option with respect to an Outside Partner, the
Partnership shall provide written notice (the "Call Notice") of such exercise to
the Selling Outside Partner of (i) the exercise of the Option; (ii) the number
of Option Interests; and (iii) the Initial Appraised Value of the Option
Interests. Thereafter, the Partnership and the Outside Partner shall determine
the Purchase Price in accordance with Section 1.52.
22
<PAGE> 27
(b) Within ten (10) days after the Starting Date, the
Partnership shall provide notice of such exercise to each Family Holder of (i)
the exercise of the exercise of the Option; (ii) the number of Option Interests;
(iii) the Purchase Price of the Option Interests; and (iv) the Starting Date.
(c) Within 40 days after the Starting Date, each Family Holder
shall notify the Partnership of how many, if any, of the Option Interests he,
she or it elects to purchase.
(d) Within 50 days after the Starting Date, the Partnership
shall provide written notice to the selling Outside Partner and to each Family
Holder of (i) the allocation of the Option Interests among the Family Holders
pursuant to the terms of Section 7.6 of this Agreement; (ii) the number of
Option Interests to be purchased by the Partnership; and (iii) the time, date
and place of Closing which shall be no sooner than 90 days after the Starting
Date and no later than 120 days after the Starting Date.
(e) If the Partnership and the Family Holders do not together
elect to purchase all of the Option Interests then the Outside Partner shall not
be obligated to sell any of the Option Interests; PROVIDED, HOWEVER, that the
Partnership and the Family Holders shall continue to have the right to exercise
a Call Option with respect to such Option Interests at anytime thereafter.
(f) The Option Interests shall be allocated among the
Partnership and the Family Groups, and within each Family Group among its
members, in the manner provided in Section 7.6.
7.6 ALLOCATION OF OFFERED INTERESTS / OPTION INTERESTS. Offered
Interests and Option Interests shall be allocated among the Partnership and the
Family Holders pursuant to the terms of this Section 7.6. At the Closing, the
Partnership and such Family Holders, as the case may be, shall be obligated to
purchase the Offered Interests or Option Interests so allocated pursuant to the
terms and provisions of this Agreement. Notwithstanding anything to the contrary
contained herein, no Partner shall be entitled to receive, or be obligated to
purchase, more Partnership Interests than such Partner has elected to purchase
pursuant to Section 7.4(d)or 7.5(c), as the case may be. All Offered Interests
or Option Interests shall be allocated as follows:
(a) ALLOCATION TO ORIGINAL HOLDERS OF OFFERED INTERESTS. Any
Offered Interests or Options Interests shall first be allocated to members of
the Family Group (the "Original Holders") (i) in which the Selling Partner is
the Initial Limited Partner or a Family Member, or (ii) if the Selling Partner
is an Outside Partner, from which the Selling Partner, or his, her or its
predecessors in interest, acquired such Offered Interests or Option Interests,
to the extent such Original Holders have
23
<PAGE> 28
elected to purchase the Offered Interests or Option Interests. Such Partnership
Interests shall be allocated in accordance with Section 7.6(d).
(b) ALLOCATION AMONG FAMILY GROUPS. Any Offered Interests or Option
Interests not allocated pursuant to Section (the "Remaining Interests") shall be
allocated among the Family Groups (other than the Original Holders) which have
Partners electing to purchase Offered Interests or Option Interests as follows:
(i) If a Family Group has collectively elected to purchase a
number of Offered Interests or Option Interests which is
less than or equal to its Proportionate Part of the
Remaining Interests, then such Family Group shall be
allocated the number of Partnership Interests that its
members have elected to purchase.
(ii) If a Family Group has collectively elected to purchase a
number of Offered Interests or Option Interests which is
greater than its Proportionate Part of the Remaining
Interests, then such Family Group shall, in the first
instance, be allocated its Proportionate Part of the
Remaining Interests.
(iii) If additional Remaining Interests remain
to be allocated after the application of
subsections (i) and (ii) above (the
"Outstanding Remaining Interests"), then
each Family Group which has collectively
elected to purchase a number of Offered
Interests or Option Interests which
exceeds its Proportionate Part shall be
allocated an additional number of the
Remaining Interests equal to the lesser
of:
(A) The number of Offered Interests or Option
Interests which such Family Group elected to
purchase but which were not allocated to it by
reason of subsection (ii) above, or
(B) That portion of the Outstanding Remaining
Interests represented by a fraction the numerator
of which is the number of Partnership Interests
held by such Family Group (prior to such
allocation), and the denominator of
24
<PAGE> 29
which is the number of Partnership Interests held
by all Family Groups which have elected to
purchase a number of Offered Interests or Option
Interests in excess of the number of those Offered
Interests or Option Interests previously allocated
to them under this Section 7.6.
(iv) Any Partnership Interests remaining to be allocated after
the application of subsections (i), (ii) and (iii) above,
shall be allocated in accordance with the procedures
described in subsection (iii) above until either (A) all of
the Offered Interests or Option Interests which Family
Holders, as the case may be, have elected to purchase have
been allocated, or (B) there remains only one Family Group
which has not been allocated all of the Partnership
Interests it has elected to purchase, in which event all of
the then unallocated Offered Interests or Option Interests
shall be allocated to such Family Group up to the amount
that such Family Group elected to purchase.
(c) ALLOCATION TO THE PARTNERSHIP. The Partnership shall purchase any
Offered Interests not allocated to a Family Group. The Corporation may, but
shall not be obligated to, purchase any Option Interests not allocated to a
Family Group.
(d) ALLOCATION OF PARTNERSHIP INTERESTS AMONG FAMILY GROUP MEMBERS.
Offered Interests or Option Interests allocated to a Family Group pursuant to
Sections 7.6(a) or 7.6(b) shall be allocated among the Family Holders of such
Family Group, as follows:
(i) First, to the Initial Limited Partner of such Family Group
in an amount equal to the number of Offered Interests or
Option Interests such Initial Limited Partner elects to
Purchase; and
(ii) Second, to each Partner of such Family Group, other than the
Initial Limited Partner, electing to purchase Offered
Interests or Option Interests in an amount determined by
multiplying (A) the number of Partnership Interests
allocated to such Family Group and not purchased by the
Initial Limited Partner, by (B) a fraction, the numerator of
which is the number of Partnership Interests subscribed for
by such Partner, and the
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<PAGE> 30
denominator of which is the aggregate number of Partnership
Interests subscribed for by all Partners of a Family Group,
other than the Initial Limited Partner.
7.7 TERMS OF SALE. The Purchase Price for all Partnership Interests
purchased pursuant to Section 7.4 or Section 7.5 of this Agreement shall be
paid at the Closing, as follows:
(a) If the purchaser is the Partnership, the Partnership, at
its election, may pay its portion of the Purchase Price in NACCO Class B Shares,
NACCO Class A Shares, immediately available United States Funds, or any
combination of such consideration as follows:
(i) to the extent that the Partnership elects to pay the
Purchase Price be paid in NACCO Class B Shares, the
Partnership shall pay to the Selling Partner, such number of
NACCO Class B Shares as shall be equal to the quotient of
(A) the portion of the Purchase Price payable in NACCO Class
B Shares, divided by (B) the Applicable NACCO Class A
Closing Price Average; and
(ii) to the extent that the Partnership elects to pay the
Purchase Price be paid in NACCO Class A Shares, the
Partnership shall convert NACCO Class B Shares to NACCO
Class A Shares and pay to the Selling Partner such number of
NACCO Class A Shares as shall be equal to the quotient of
(A) the portion of the Purchase Price payable in NACCO Class
A Shares, divided by (B) the Applicable NACCO Class A
Closing Price Average; and
(iii) immediately available United States Funds equal to that
portion of the Purchase Price not payable in NACCO Class B
Shares or NACCO Class A Shares.
(b) If the purchaser is a Partner, such Partner may pay its portion
of the Purchase Price in NACCO Class A Shares, immediately available United
States Funds, or any combination of such consideration as follows:
(i) to the extent that the Partner elects to pay the Purchase
Price in NACCO Class A Shares, such Partner shall pay to the
Selling Partner such number of NACCO Class A Shares as shall
be equal to the quotient of (A) the portion of the Purchase
Price payable in NACCO Class A Shares, divided by (B) the
Applicable NACCO Class A Closing Price Average; and
26
<PAGE> 31
(ii) immediately available United States Funds equal to that
portion of the Purchase Price not payable in NACCO Class A
Shares.
7.8 CLOSING.
(a) The Closing of the purchase and sale of any Partnership
Interests pursuant to this Agreement shall occur at the time, date and place
specified by the Partnership in its written notice pursuant to Sections
7.4(e)(iii) or 7.5(d)(iii), as the case may be.
(b) At Closing, transfer instruments shall be respectively
delivered by the seller to each purchaser against payment of such purchaser's
portion of the Purchase Price. Such delivery shall constitute warranties by the
seller thereof that such seller has full authority to transfer the Partnership
Interests to such purchaser and that such purchaser is acquiring the Partnership
Interests free and clear of all liens, encumbrances or other outstanding
interests of any nature, other than those created pursuant to the terms of this
Agreement.
7.9 LEGAL REQUIREMENTS. The purchase and sale of any Partnership
Interests pursuant to this Agreement shall be subject to compliance with all
applicable state and federal securities laws, and each Partner agrees without
additional consideration to do all necessary things reasonably requested by the
Partnership in connection therewith, the reasonable expenses of such to be paid
by the selling Partner(s).
8. CODE SECTION 754 ELECTION. Upon the written request of Partners owning more
than fifty percent (50%) of all Partnership Interests, the Partnership shall
file an election under Code Section 754 to adjust the tax basis of the
Partnership Property, with respect to any distribution of Partnership Property
to a Partner or a transfer of a Partnership Interest, in accordance with Code
Sections 734(b) and 743(b). The Partners acknowledge that once a Code Section
754 election shall be validly filed by the Partnership, it shall remain in
effect indefinitely thereafter unless the Internal Revenue Service approves the
revocation of such election.
9. DISSOLUTION.
9.1 DISSOLUTION AND TERMINATION. The Partnership shall continue for the
term described in Section 2.4 hereof, unless earlier dissolved (a) with the
consent of the Managing Partner and Partners owning more than ninety percent
(90%) of all Partnership Interests, or (b) upon the bankruptcy of a General
Partner unless the continuation of the Partnership is agreed to in writing by
all other General Partners, if any, or by Partners holding more than fifty
percent (50%) of all Capital Accounts and all Partnership Percentages
(exclusive of the Capital Accounts and Partnership Percentages of the bankrupt
General Partner), or
27
<PAGE> 32
(c) with the consent of the Managing Partner, upon the Transfer of substantially
all of the shares of Class B Common Stock of NACCO held by the Partnership. In
the event that the Partnership is dissolved, the assets of the Partnership shall
be liquidated as promptly as is consistent with obtaining the fair market value
thereof, and the proceeds therefrom, together with any assets distributed in
kind, shall be distributed first to creditors to satisfy all debts and
liabilities of the Partnership other than loans or advances made by the Partners
to the Partnership, then to the establishment of reserves deemed reasonably
necessary to satisfy contingent or unforeseen liabilities or obligations of the
Partnership, then to the repayment of any loans or advances made by the Partners
to the Partnership, with the balance, if any, to be distributed in accordance
with the balances in each Partner's Capital Account at that time. Solely for the
purposes of determining the balances of the Partners' Capital Accounts at that
time, any Partnership Property that is distributed in kind shall be treated as
though such Partnership Property were sold for its fair market value as of the
date of distribution, as determined by an independent appraiser. Upon completion
of the foregoing, the Partnership shall be terminated.
9.2 CONTINUATION OF BUSINESS. Except as provided in Section 8.1,
neither the disposition of any Partnership Interest pursuant to 7.2 hereof nor
the death, insanity, incapacity, or bankruptcy of a Partner shall cause the
dissolution or termination of the Partnership or have any effect upon the
continuance of the Partnership business. No Partner shall have a right to
withdraw from the Partnership or to abandon any Partnership Interest except as
expressly provided herein.
10. POWER OF ATTORNEY.
10.1 GRANT OF POWER. Each Partner by his, her or its signature below
irrevocably makes, constitutes and appoints the Managing Partner, and each of
them, his, her or its true and lawful attorney in his, her or its name, place
and stead in any capacities, with the power from time to time to substitute or
resubstitute one or more others as such attorney, and to make, execute, swear
to, acknowledge, verify, deliver, file, record and publish any and all
documents, certificates or other instruments which may be required or deemed
desirable by the Managing Partner to (a) effectuate the provisions of any part
of this Agreement or any amendments to this Agreement, (b) enable the
Partnership to conduct its business, (c) comply with any applicable law in
connection with the Partnership's conduct of its business, or (d) to execute any
and all statements under Section 13 or Section 16 of the Securities Exchange Act
of 1934, as amended, of beneficial ownership of NACCO Class B Shares, subject to
the NACCO Stockholders' Agreement, as amended from time to time, including all
statements on Schedule 13D and all amendments thereto, all joint filing
agreements pursuant to Rule 13d-l(f)(iii) under such Act in connection with such
statements, all initial statements of beneficial ownership on Form 3 and any and
all other documents to
28
<PAGE> 33
be filed with the Securities and Exchange Commission, and to file the same, with
all exhibits thereto, and all other documents in connection therewith, with the
Securities and Exchange Commission. Each Partner grants to said attorney or
attorneys-in-fact, and each of them, full power and authority to do so and to
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 the undersigned
might or could do in person, hereby ratifying and confirming all that said
attorney or attorneys-in-fact or any of them or their substitutes or
resubstitutes, may lawfully do or cause to be done by virtue of this Section .
10.2 IRREVOCABLE NATURE. It is expressly intended by each Partner that
the foregoing power of attorney is a special power of attorney coupled with an
interest in favor of each of those appointed as attorney-in-fact on his, her or
its behalf, and as such shall be irrevocable and shall survive such Partner's
death, incompetence (including an adjudication of insanity) or, in the case of a
Limited Partner which is not a natural person, its merger, dissolution or other
termination of existence.
10.3 FURTHER ASSURANCES - POWER OF ATTORNEY. If applicable law requires
additional or substituted language in order to validate the power of attorney
intended to be granted by this Section 10, each Shareholder agrees to execute
and deliver such additional instruments and to take such further acts as may be
necessary to validate such power of attorney.
10.4 TRANSFER OF PARTNERSHIP INTERESTS. The foregoing power of attorney
shall survive the delivery of an instrument of transfer by any Partner of the
whole or any portion of or interest in his, her or its Partnership Interest,
except that where a transferee of such Partnership Interest has been approved as
a successor Partner and the transferee shall thereupon cease being a Partner
(all in accordance with this Agreement), then the power of attorney of the
transferor Partner shall survive the delivery of such instrument of transfer for
the sole purpose of enabling the attorneys-in-fact for such transferor Partner
(or any of them) to execute, swear to, acknowledge and file any and all
instruments necessary to effectuate such transfer and succession.
11. GENERAL PROVISIONS.
11.1 OBTAINING PARTNER APPROVALS OF PARTNERSHIP ACTIONS. The requisite
approval of the General Partners or Partners, whichever is appropriate, may take
the form of the approval of an outline of the general terms of the transaction,
and the negotiation of detailed terms may be delegated to the Managing Partner
or to any one or more specified Partners, or the approval may be in the form of
a blanket delegation of authority to the Managing Partner or to any one or more
specified Partners to act
29
<PAGE> 34
on behalf of the Partnership in regard to a particular transaction that is being
considered.
11.2 ARBITRATION. Any dispute arising in connection with this Agreement
shall be an Arbitrable Dispute and shall be finally settled by arbitration under
the then applicable Commercial Arbitration Rules of the American Arbitration
Association, by one or more arbitrators agreed upon by the parties or, in the
absence of such an agreement, appointed in accordance with such Rules. The
arbitration proceedings shall be held in Cleveland, Ohio. Judgment upon the
award rendered may be entered in any court having jurisdiction and application
may be made to such court for judicial acceptance of such award and an order of
enforcement as the case may be. The Partners hereby agree that the rendering of
an award by the arbitrator or arbitrators shall be a condition precedent to the
initiation of any legal proceedings with respect to any Arbitrable Dispute.
11.3 NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been given when the
same are (a) delivered in person, or (b) delivered by express or overnight mail
or by certified or registered mail, postage prepaid, to the Partners at the
addresses set forth in SCHEDULE B attached hereto, and to the Partnership at the
address of its principal office, or at such other address as the Partners may
from time to time determine. A delivery receipt shall be conclusive evidence
that the respective mailing has in fact been delivered and the date thereof. Any
Partner may change his or her address for notices by designating a new address
by notice given to the other Partners and the Partnership in accordance with
this Section 11.3.
11.4 WAIVER OF RIGHT TO PARTITION. The Partners, by execution of this
Agreement, waive their respective rights to partition of the Partnership
Property.
11.5 BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective permitted successors and
assigns.
11.6 HEADINGS. The section headings in this Agreement are inserted
solely as a matter of convenience and for reference, and are not a substantive
part of this Agreement.
11.7 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
among the parties hereto and supersedes and cancels any prior agreements,
representations, warranties, or communications, whether oral or written, among
any parties hereto regarding the transactions contemplated hereby and the
subject matter hereof. Neither this Agreement nor any provision hereof may be
changed, waived, discharged or terminated orally, but only by an agreement in
writing signed by the party against whom or which the enforcement of such
change, waiver, discharge or termination is sought.
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<PAGE> 35
11.8 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Georgia.
11.9 COUNTERPARTS. This Agreement and any documents executed in
connection herewith may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
11.10 PRONOUNS. All pronouns used herein shall be deemed to refer to
the masculine, feminine or neuter gender as the context requires.
11.11 REMEDIES CUMULATIVE. All rights and remedies granted to the
Partnership or to any Partner hereunder shall be cumulative with, and not in
derogation of or exclusive of, any rights and remedies which may be available by
operation of law or otherwise.
11.12 FURTHER ASSURANCES. Each of the parties hereto agrees to execute
and deliver such instruments, and to take such other actions, as shall be
necessary or appropriate in connection with the consummation of the transactions
contemplated hereby or the operation of the Partnership.
11.13 SEVERABILITY. If any provision of this Agreement or the
application thereof to any Person or circumstance shall be invalid or
unenforceable to any extent, the remainder of this Agreement and the application
of such provision to any other Person or circumstance shall not be affected
thereby and shall be enforced to the fullest extent permitted by law.
{REMAINDER OF PAGE INTENTIONALLY LEFT BLANK. SIGNATURES BEGIN ON NEXT PAGE.}
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{SIGNATURE PAGE FOR LIMITED PARTNERSHIP AGREEMENT OF CTR FAMILY ASSOCIATES,
L.P.}
IN WITNESS WHEREOF, the Partners have hereunto set their hands and
seals as of the day and year first above written.
GENERAL PARTNER:
RANKIN MANAGEMENT, INC.
By: /s/ Alfred M. Rankin, Jr.
------------------------------------
President
Attest: /s/ Claiborne R. Rankin
--------------------------------
Treasurer
(Corporate Seal)
Signed, sealed, and delivered
in the presence of:
- ------------------------------
Witness
- ------------------------------
Notary Public
My Commission Expires:
--------
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<TABLE>
<CAPTION>
SCHEDULE A (Original Subscriptions)
PARTNERS / CAPITAL CONTRIBUTIONS
===================================================================================================================
Name Property Interest
---- -------- --------
Contributed
-----------
===================================================================================================================
<S> <C> <C> <C> <C>
GENERAL PARTNER(S)
===================================================================================================================
Rankin Management, Inc.
(a) Rankin Management Lot 1 2000 0.469075% 1.8763%
- -------------------------------------------------------------------------------------------------------------------
(b) Rankin Management Lot 2 2000 0.469075%
- -------------------------------------------------------------------------------------------------------------------
(c) Rankin Management Lot 3 2000 0.469075%
- -------------------------------------------------------------------------------------------------------------------
(d) Rankin Management Lot 4 2000 0.469075%
- -------------------------------------------------------------------------------------------------------------------
Total for Ranking Management, Inc.: 8,000 Shares 1.8763%
===================================================================================================================
LIMITED PARTNERS
===================================================================================================================
Clara Taplin Rankin Lot 1 225,247 Shares 52.8289%
- -------------------------------------------------------------------------------------------------------------------
Alfred M. Rankin, Jr.
- -------------------------------------------------------------------------------------------------------------------
(a) A.M. Rankin Lot 1 800 .1876%
- -------------------------------------------------------------------------------------------------------------------
(b) A.M. Rankin Lot 2 17,570 4.1208%
- -------------------------------------------------------------------------------------------------------------------
(c) A.M. Rankin Lot 3 59,428 13.9381%
- -------------------------------------------------------------------------------------------------------------------
Total for Alfred M. Rankin Jr.: 77,798 Shares 18.2466%
Bruce T. Rankin
- -------------------------------------------------------------------------------------------------------------------
(a) B.T. Rankin Lot 1 800 0.1876%
- -------------------------------------------------------------------------------------------------------------------
(b) B.T. Rankin Lot 2 14,400 3.3773%
- -------------------------------------------------------------------------------------------------------------------
(c) B.T. Rankin Lot 3 72,999 17.1027%
- -------------------------------------------------------------------------------------------------------------------
Total for Bruce T. Rankin: 88,198 Shares 20.6857%
- -------------------------------------------------------------------------------------------------------------------
Claiborne R. Rankin Lot 1 8,000 Shares 1.8763%
- -------------------------------------------------------------------------------------------------------------------
Roger F. Rankin Lot 1 8,000 Shares 1.8763%
- -------------------------------------------------------------------------------------------------------------------
Thomas T. Rankin Lot 1 8,000 Shares 1.8763%
- -------------------------------------------------------------------------------------------------------------------
Victoire G. Rankin Lot 1 3,128 Shares 0.7336%
- -------------------------------------------------------------------------------------------------------------------
TOTALS 426,371 Shares 100%
===================================================================================================================
</TABLE>
<PAGE> 38
<TABLE>
<CAPTION>
SCHEDULE B
PARTNER ADDRESSES
===================================================================================================================================
Street Address/
Name P.O. Box City State Zip Code
===================================================================================================================================
<S> <C> <C> <C> <C>
GENERAL PARTNER(S)
===================================================================================================================================
Rankin Management, Inc. Suite 300 Mayfield Heights OH 44124-4017
5875 Landerbrook Drive
- -----------------------------------------------------------------------------------------------------------------------------------
===================================================================================================================================
LIMITED PARTNERS
===================================================================================================================================
Clara Taplin Rankin 3151 River Road Chagrin Falls OH 44022
- -----------------------------------------------------------------------------------------------------------------------------------
Alfred M. Rankin, Jr. 5875 Landerbrook Drive Mayfield Heights OH 44124-4017
- -----------------------------------------------------------------------------------------------------------------------------------
Bruce T. Rankin Suite 300 Mayfield Heights OH 44124-4017
5875 Landerbrook Drive
- -----------------------------------------------------------------------------------------------------------------------------------
Claiborne R. Rankin 36779 Cedar Road Gates Mills OH 44040
- -----------------------------------------------------------------------------------------------------------------------------------
Roger F. Rankin P.O. Box 550 Gates Mills OH 44040
1449 Carpenter Road
- -----------------------------------------------------------------------------------------------------------------------------------
Thomas T. Rankin 214 Banbury Road Richmond VA 23221
- -----------------------------------------------------------------------------------------------------------------------------------
Victoire G. Rankin 7421 Markell Road Waite Hill OH 44094
===================================================================================================================================
</TABLE>
<PAGE> 1
Exhibit 5
STOCKHOLDERS' AGREEMENT
dated as of
March 15, 1990
<PAGE> 2
<TABLE>
STOCKHOLDERS' AGREEMENT
-----------------------
TABLE OF CONTENTS
-----------------
<CAPTION>
Page
----
<S> <C> <C>
1. Definitions..............................................................................................1
2. Permitted Transfers......................................................................................7
3. Transfers for Which First Refusal Procedure
is Required............................................................................................8
4. First Refusal Procedures................................................................................11
5. Representations and Warranties..........................................................................18
6. Changes in Shares of Class B Common Stock...............................................................20
7. Compliance Provisions...................................................................................20
8. Amendment and Termination...............................................................................22
9. Further Assurances......................................................................................23
10. Miscellaneous...........................................................................................24
11. Power of Attorney.......................................................................................26
12. Voting of Class B Common Stock..........................................................................27
</TABLE>
<PAGE> 3
STOCKHOLDERS' AGREEMENT
This STOCKHOLDERS' AGREEMENT (this "Agreement") dated as of
March 15, 1990 by and among the signatories hereto ("Participating
Stockholders", as described in Section 1.12 hereof), NACCO Industries, Inc., a
Delaware corporation (the "Corporation") and Ameritrust Company National
Association, a national banking association, as depository (the "Depository").
W I T N E S S E T H:
--------------------
WHEREAS, the Participating Stockholders own of record or
beneficially shares of Class B Common Stock, par value $1.00 per share ("Class B
Common Stock"), of the Corporation; and
WHEREAS, the Participating Stockholders desire to subject the
transfer of all of the shares of Class B Common Stock now owned or hereafter
acquired by them to certain mutually agreeable limitations;
NOW, THEREFORE, in consideration of the mutual promises
hereinafter set forth and other good and valuable consideration had and
received, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. Definitions.
-----------
1.1 The term "Amendment" shall mean the Amendment to
Stockholders' Agreement substantially in the form of Exhibit A hereto.
1.2 The term "business day" means any day other than Saturday,
Sunday or a day on which commercial banks are authorized or required to close in
Cleveland, Ohio, and shall consist of the time period from 12:01 a.m. through
12:00
<PAGE> 4
2
midnight, Eastern Standard Time or Eastern Daylight Savings Time, whichever is
then in effect in Cleveland, Ohio. In computing any time period for purposes of
this Agreement, the date of the event which begins the running of such time
period shall be included, except that if such event occurs on other than a
business day such period shall begin to run on and shall include the first
business day thereafter.
1.3 The term "Charitable Organization" shall mean an
organization to which contributions are deductible for federal income, estate or
gift tax purposes and which is established by one or more Participating
Stockholders.
1.4 The term "Class A Common Stock" shall mean Class A Common
Stock, par value $1.00 per share, of the Corporation.
1.5 The term "Class B Common Stock" shall have the meaning
assigned to it in the first WHEREAS clause of this Agreement.
1.6 The term "Corporation" shall have the meaning assigned to
it in the introductory paragraph of this Agreement.
1.7 The term "current trust interest" means the interest of
any beneficiary of a trust to whom income or principal is currently
distributable either in the discretion of the trustee or otherwise.
1.8 The term "Depository" shall have the meaning assigned to
it in the introductory paragraph of this Agreement.
1.9 The term "Family Member" shall mean Clara Taplin
Rankin, Frank E. Taplin and Thomas E. Taplin, their spouses,
their lineal descendants by blood or by legal adoption prior to
<PAGE> 5
3
the age of 18, the spouses of such lineal descendants, the lineal descendants of
any such spouses and trusts exclusively for the benefit of any such persons, and
the trust for the benefit of Elizabeth E. Brown under the Trust Agreement, dated
December 18, 1963 by and between Clara T. Rankin, Thomas E. Taplin, Frank E.
Taplin and National City Bank. In applying the term "exclusively" for purposes
of this Agreement, the interest of any Charitable Organization that is a
Participating Stockholder (or does not fail to become a Participating
Stockholder at the time provided in Section 1.12(c) hereof) or any contingent
trust interest having at the time of transfer an actuarial value (under
valuation tables then used for federal gift tax purposes for gifts between
private individuals) of not more than five percent of the value of the assets of
the trust or an unexercised power of appointment shall be ignored.
1.10 The term "Offered Shares" shall have the meaning assigned
to it in Section 4.1(a) hereof.
1.11 The term "Offeror" shall have the meaning assigned to it
in Section 4.1 hereof.
1.12 The term "Participating Stockholder" shall mean any
Family Member or Charitable Organization which has executed a counterpart of
this Agreement and delivered a copy thereof to all other Participating
Stockholders, or any Family Member or Charitable Organization which hereafter
executes and delivers an Amendment, and is bound by the terms hereof. With
regard to the definition of "Participating Stockholder," the following also
shall apply:
<PAGE> 6
4
(a) No Participating Stockholder who is a natural person shall
be deemed to forfeit the status of Participating Stockholder upon divorce,
remarriage or adoption.
(b) In order for a trust exclusively for the benefit of a
Family Member or Members to be considered a Participating Stockholder:
(i) the trustee and all adult beneficiaries of such
trusts having a current trust interest (as well as all
Charitable Organization beneficiaries having a current trust
interest) shall sign this Agreement as Participating
Stockholders;
(ii) the trustee and a parent or legal guardian, for
trusts with minor beneficiaries having a current trust
interest, shall sign this Agreement on behalf of any such
minor beneficiaries; or
(iii) the trustee and legal guardian, if any, for
trusts with incompetent beneficiaries having a current trust
interest, shall sign this Agreement on behalf of any such
incompetent beneficiaries.
(c) If, at any time, any trust shall have an adult
beneficiary (and such beneficiary is not incompetent) having a current trust
interest or an ascertainable Charitable Organization beneficiary having a
current trust interest and if such beneficiary shall fail or be unable to sign
this Agreement for a period of 30 calendar days following notification to.such
beneficiary of the terms of this Agreement by the Depository and following
signature of this Agreement by the trustee, the trust
<PAGE> 7
5
shall thereupon cease to be a Participating Stockholder and Section 3.2 of this
Agreement shall then apply as if the shares of Class B Common Stock held by the
trust were then to be converted. The donor of a trust that is revocable by the
donor alone, during the lifetime of such donor, shall be considered the only
beneficiary thereof so long as such trust is so revocable.
(d) In the case of Class B Common Stock held by a custodian
under the Uniform Transfers to Minors Act (or the practical equivalent thereof)
for the benefit of a minor Family Member, the custodian shall sign this
Agreement on behalf of such minor if such minor is to be considered a
Participating Stockholder.
(e) In the case of Class B Common Stock held in the name of a
minor Family Member, a parent or legal guardian of such minor shall sign this
Agreement on behalf of such minor if such minor is to be considered a
Participating Stockholder.
(f) In the case of Clash B Common Stock held in the name of an
incompetent Family Member, the legal guardian of such incompetent shall sign
this Agreement on behalf of such incompetent if such incompetent is to be
considered a Participating Stockholder.
(g) When a minor described in Section 1.12(d) or (e) reaches
the age of majority, or an incompetent described in Section 1.12(f) is no longer
impaired by such disability and has reached the age of majority, such Family
Member shall execute and deliver an Amendment which has been executed and
delivered by the Participating Stockholders (or their attorney-in-fact), the
<PAGE> 8
6
Corporation and the Depository. If such Family Member shall fail or be unable to
sign such Amendment for a period of 30 calendar days following notification to
such Family Member of the terms of this Agreement by the Depository, such Family
Member shall thereupon cease to be a Participating Stockholder and Section 3.2
of this Agreement shall then apply as if the shares of Class B Common Stock were
then to be converted.
1.13 The term "Permitted Transferee" shall have the meaning
set forth in paragraph 4 of the Restated Certificate.
1.14 The term "personal representative" means the
executor, administrator or other personal representative of the estate of a
deceased Participating Stockholder.
1.15 The term "Purchaser" shall have the meaning
assigned to it in Section 4.3 hereof.
1.16 The term "Restated Certificate" shall mean the
Restated Certificate of incorporation of the Corporation, as amended to the
date of this Agreement.
1.17 The term "spouse" includes a widow or a widower.
2. Permitted Transfers.
--------------------
2.1 Any Participating Stockholder may at any time sell,
assign, give, exchange or otherwise transfer shares of Class B Common Stock or
any interest therein to any Family Member who is a Participating Stockholder or
becomes a new Participating Stockholder by, simultaneously with such transfer,
signing and delivering an Amendment which has been signed and delivered by the
Participating Stockholders (or their attorney-in-fact), the Corporation and the
Depository. Any Participating Stockholder may
<PAGE> 9
7
at any time give shares of Class B Common Stock or any interest therein to a
Charitable Organization that is a Participating Stockholder or becomes a new
Participating Stockholder by, simultaneously with such gift, signing and
delivering an Amendment. Any shares of Class B Common Stock so transferred shall
remain subject to this Agreement in the hands of the transferee. The
Participating Stockholder transferring shares of Class B Common Stock pursuant
to this Section 2.1 shall provide written notice to the Depository of the
transfer at least five business days in advance of the transfer, which notice
shall include any instructions regarding the transfer of such shares. Upon
request of the Depository, the Participating Stockholder and the transferee
shall provide affidavits or such other proof as the Depository may request to
confirm that the transfer is permitted by this Section 2.1.
2.2 Any Participating Stockholder may pledge shares of Class B
Common Stock as security for a loan if the pledgee (being competent to do so)
agrees in writing to be bound by this Agreement and to receive such shares of
Class B Common Stock subject to this Agreement and otherwise subject to the
Restated Certificate and, in the event of default on such loan and levy upon the
collateral, to offer such shares of Class B Common Stock to the Participating
Stockholders other than the pledgor in accordance with the procedures specified
in Section 4 hereof, and to convert into shares of Class A Common Stock in
accordance with the Restated Certificate any shares of Class B Common Stock not
purchased by such Participating Stockholders.
<PAGE> 10
8
3. Transfers for Which First Refusal Procedure is Required.
--------------------------------------------------------
3.1 Any Participating Stockholder who desires to sell,
assign, give, exchange or otherwise transfer any shares of Class B Common Stock
(or the shares of Class A Common Stock into which they are convertible) or any
interest therein otherwise than as provided in Section 2 hereof shall first
offer to sell or exchange such shares of Class B Common Stock to or with the
other Participating Stockholders and the Corporation. Such offer shall be made,
and may be accepted, in accordance with the procedures specified in Section 4
hereof. During a period of 30 business days following the last to expire of the
rights of the other Participating Stockholders and the Corporation, the Offeror
shall have the right, in accordance with the Restated Certificate, to convert
any such Offered Shares into shares of Class A Common Stock and may transfer
such shares of Class A Common Stock or any interest herein free of the
limitations provided for herein, but only to the person (except for sales of
shares of Class A Common Stock to be made on a national securities exchange or
pursuant to an automated quotation system of national securities dealers) to
whom such transfer was originally proposed to be made and only on terms (except
for price in the case of a gift and sales to be made on a national securities
exchange pursuant to an automated quotation system of national securities
dealers) no more favorable to such person than those upon which the Offered
Shares were offered to the other Participating Stockholders. If such transfer or
conversion is not accomplished with such 30-day
<PAGE> 11
9
period, all of the provisions of this Agreement shall again be in effect with
respect to such shares of Class B Common Stock.
3.2 Any Participating Stockholder who desires to convert
shares of Class B Common Stock to Class A Common Stock (except as permitted by
Section 3.1 or 3.3 hereof) in accordance with the Restated Certificate shall
first offer to sell or exchange such shares of Class B Common Stock to or with
the other Participating Stockholders and the Corporation in accordance with the
procedures specified in Section 4 hereof. During a period of 30 business days
following the last to expire of the rights of the other Participating
Stockholders and the Corporation, the Offeror desiring to convert Offered Shares
may do so, but only to the extent that such Offered Shares were not accepted by
any other Participating Stockholder or the Corporation, and the shares of Class
A Common Stock into which such Offered Shares are converted thereafter shall be
free from all of the limitations provided for herein.
3.3 Upon the death of a Participating Stockholder, any shares
of Class B Common Stock then owned by such Participating Stockholder may be
transferred in accordance with Section 2.1 hereof to any other Participating
Stockholder by the personal representative of the estate of such deceased
Participating Stockholder (or by the trustee of any trust or by any other person
by reason of the death of such deceased Participating Stockholder). To the
extent that any such personal representative, trustee or other person is
required or desires to transfer any shares of Class B Common Stock (or the
shares of
<PAGE> 12
10
Class A Common Stock into which they are convertible) owned by a deceased
Participating Stockholder, or any interest therein, otherwise than as permitted
by Section 2.1 hereof, or is required or desires to convert such shares
otherwise than as permitted by this Section 3, such personal representative,
trustee or other person shall offer to sell or exchange such shares of Class B
Common Stock to or with the other Participating Stockholders and the Corporation
in accordance with the procedures specified in Section 4 hereof. Upon completion
of the procedures specified in Section 4 hereof, those Offered Shares not
purchased by any other Participating Stockholder and the Corporation in
accordance with the Restated Certificate, be converted into shares of Class A
Common Stock, and thereafter such shares of Class A Common Stock may be
transferred to the designated recipient thereof (except for sales to be made on
a national securities exchange or pursuant to an automated quotation system of
national securities dealers), free of all of the limitations provided for
herein. Each of the Participating Stockholders who is a natural person shall
cause all appropriate testamentary documents providing for implementation of the
foregoing procedures upon such Participating Stockholder's death to be in effect
at all times after the date hereof. Each of the Participating Stockholders
hereby agrees that the terms and provisions of this Agreement shall govern the
transfer of all shares of Class B Common Stock now or hereafter owned by such
Participating Stockholder, notwithstanding the terms or provisions of any
existing revocable or future estate planning document to the contrary.
<PAGE> 13
11
4. First Refusal Procedures.
-------------------------
4.1 A Participating Stockholder, the personal representative
of the estate of a deceased Participating Stockholder or the trustee of any
trust agreement of which a deceased Participating Stockholder is donor (or any
other person in possession of shares of Class B Common Stock which are to pass
by reason of the death of a Participating Stockholder), in each case which
proposes to transfer or convert shares of Class B Common Stock otherwise than as
provided in Section 2 hereof, or a pledgee who is required by Section 2.2 hereof
to offer shares of Class B Common Stock to other Participating Stockholders and
the Corporation (collectively, an "Offeror"), shall send to the Depository a
written notice (which shall be irrevocable), dated the date on which it is sent,
containing the following information:
(a) the number of shares of Class B Common Stock
proposed to be transferred (before conversion) or
converted (the "Offered Shares");
(b) whether the Offeror proposes to transfer under
Sections 3.1 or 3.3 hereof or to convert under Sections 3.2 or
3.3 hereof the Offered Shares;
(c) if the Offeror proposes to transfer the Offered
Shares under Sections 3.1 or 3.3 hereof, the name and address
of each proposed transferee and the price per share, if any,
payable to the Offeror upon such transfer; and
<PAGE> 14
12
(d) the date on which the Offeror desires to carry
out the proposed transfer or conversion of the Offered Shares,
which shall be consistent with the procedures provided for in
this Agreement (such date may be not less than 25 nor more
than 55 business days after the date of such notice).
If the Offeror proposes to sell Offered Shares under Sections 3.1 or 3.3 hereof,
such notice shall be accompanied by written evidence that any price per share
payable to the Offeror as specified in such notice is being offered for the
Offered Shares in good faith by the proposed transferee. Upon receipt of such
notice, the Depository forthwith shall send it to each of the other
Participating Stockholders and the Corporation.
4.2 Upon delivery of the notice pursuant to the last sentence
of Section 4.1 hereof, the other Participating Stockholders shall have the right
and option to acquire the Offered Shares, or any of them, for the consideration
specified in Section 4.3 hereof. Each of such other Participating Stockholders
may exercise such right, at any time before the expiration of seven business
days after such written notice and accompanying evidence (if applicable) have
been sent to such other Participating Stockholders and the Corporation, in
proportion to the respective holdings of shares of Class B Common Stock of such
other Participating Stockholder compared to the aggregate holdings of shares of
Class B Common Stock of all such other Participating Stockholders. The right to
acquire Offered Shares may be exercised by a Participating Stockholder by
sending
<PAGE> 15
13
a written notice (which shall be irrevocable) to the Depository, dated the date
that it is sent and sent at any time prior to the expiration of the aforesaid
seven-day period, specifying the number of Offered Shares such Participating
Stockholder is acquiring and the consideration such Participating Stockholder
will deliver in accordance with Section 4.3 hereof.
If any such Participating Stockholder fails to exercise such
Participating Stockholder's right to acquire the Offered Shares to its full
extent, then such right may be exercised by the other such Participating
Stockholders (to the extent that it has not been exercised by such Participating
Stockholder) at any time before the expiration of five business days after
written notice has been sent by the Depository to such other Participating
Stockholders of such failure, in whatever proportion they may agree upon and, if
they cannot agree, in proportion to the respective holdings of each compared to
the aggregate holdings of all of them. If any of such other Participating
Stockholders fail to exercise their rights to acquire any Offered Shares to
their full extent, then such rights may be exercised by the Corporation (to the
extent of any Offered Shares remaining) at any time before the expiration of
three business days after written notice has been sent by the Depository to the
Corporation of such failure. The right of Participating Stockholders or the
Corporation to acquire additional Offered Shares as to which any Participating
Stockholder has failed to exercise his right to acquire may be exercised by
sending a written notice (which shall be
<PAGE> 16
14
irrevocable) to the Depository, dated the date that it is sent and sent at any
time prior to the expiration of the aforesaid five-day period or three-day
period, as the case may be, specifying the number of Offered Shares to be
acquired and the consideration to be delivered in accordance with Section 4.3
hereof.
In applying the term "holdings" in this Section 4.2 in the
case of shares of Class B Common Stock owned by a trust, the trust shall be
considered to own the holding; except that, if the trustee fails to any extent
to exercise a right to acquire Offered Shares, beneficiaries of the trust who
are Participating Stockholders owning more than 50 percent of either the then
current income or the remainder interest in the trust and desiring to exercise
such right shall be considered to own the holding only in such proportions as
such beneficiaries shall agree upon.
4.3 Shares of Class B Common Stock acquired by a Participating
Stockholder or the Corporation in accordance with Section 4.2 (individually, a
"Purchaser") hereof may be paid for, at the election of such Purchaser in cash,
shares of Class A Common Stock or a combination of such consideration as
follows:
(a) to the extent that such Purchaser elects that the
price be paid in shares of Class A Common Stock, the number of
shares of Class A Common Stock that shall be delivered in
exchange shall be equal to the number of shares of Class B
Common Stock to be exchanged; and
<PAGE> 17
15
(b) to the extent that such Purchaser elects that the
price shall be paid in cash, the cash price for shares of
Class B Common Stock shall be equal to the average of the last
sale price of the shares of Class A Common Stock as reported
on the New York Stock Exchange (or on the principal national
securities exchange or automated quotation system of national
securities dealers on which the shares of Class A Common Stock
may then be traded) on the 5 trading days preceding the date
of the Offeror's notice sent pursuant to Section 4.1 hereof,
as reported in The Wall Street Journal (or, if such periodical
is not then published, the most comparable periodical then
being published) or such higher price as may have been
specified in such notice.
4.4 The sale or exchange contemplated by these procedures
shall be closed (a "Closing") at the principal corporate trust office of the
Depository on the date which is not later than 25 business days after the date
of the notice given pursuant to Section 4.1 hereof.
4.5 At any Closing hereunder:
(a) Against delivery of the Offered Shares to be
purchased from the Offeror, each Purchaser shall make payment
to the Offeror by certified or bank check payable to the
Offeror or wire transfer to an account designated by the
Offeror of that portion of the aggregate price for the Offered
Shares being paid in cash by such Purchaser and shall deliver,
in payment of
<PAGE> 18
16
that portion of the aggregate purchase price for the Offered
Shares being paid in shares of Class A Common Stock by such
Purchaser, a duly executed certificate or certificates
representing such shares, together with stock powers endorsed
in blank relating to such certificates and a written
representation by such Purchaser that the Offeror will receive
good and marketable title to such shares, free of all adverse
claims, liens, encumbrances and security interests other than
such of the foregoing as have been created by or through such
Offeror; and
(b) The Offeror shall deliver to each Purchaser of
the Offered Shares being purchased by such Purchaser a duly
executed certificate or certificates representing such Offered
Shares, together with stock powers endorsed in blank relating
to such certificates and a written representation by such
Offeror that such Purchaser will receive good and marketable
title to such shares, free of all adverse claims, liens,
encumbrances and security interests, other than such of the
foregoing as have been created by the Restated Certificate by
or through such Purchaser.
If, following the record date for determining the stockholders entitled to vote
at a meeting of the Corporation's stockholders, but before the date of such
meeting, either a Purchaser taking delivery of Offered Shares or an Offeror
taking delivery of shares of Class A Common Stock requests, the party delivering
<PAGE> 19
17
such shares shall also deliver an irrevocable proxy, duly executed by such
party, authorizing such persons as the Purchaser or the Offeror, as the case may
be, shall designate to act as his lawful agents, attorneys and proxies, with
full power of substitution, to vote in such manner as each such agent, attorney
and proxy or his substitute shall in his sole discretion deem proper. If,
following the record date for determining the stockholders entitled to consent
in writing to an action of the Corporation without a meeting, but before the
latest effective date for written consents with regard to such action, the
Purchaser taking delivery of Offered Shares or the Offeror taking delivery of
shares of Class A Common Stock requests, the party delivering such shares shall
also deliver a power of attorney, duly executed by such party, authorizing such
persons as the Purchaser or the Offeror, as the case may be, shall designate to
act as his lawful attorneys or attorneys-in-fact, with full power to consent in
writing in such manner as each such attorney or attorney-in-fact shall in his
sole discretion deem proper.
5. Representations and Warranties.
-------------------------------
Each Participating Stockholder, for such Participating
Stockholder only and not for any other Participating Stockholder, represents and
warrants to the other Participating Stockholders and the Corporation as follows:
(a) Such Participating Stockholder is. the
record and beneficial owner of the shares of Class B Common
Stock identified below such Participating Stockholder's name
on the signature pages hereto
<PAGE> 20
18
(except as otherwise described thereon), and except as
otherwise described thereon such Participating Stockholder
does not own of record or beneficially or have any interest in
any other shares of Class B Common Stock or any options to
purchase or rights to subscribe for or otherwise acquire any
other shares of Class B Common Stock other than pursuant to
this Agreement;
(b) Such Participating Stockholder has the right,
power and authority to execute and deliver this Agreement and
to perform such Participating Stockholder's obligations
hereunder; if this Agreement is being executed by a trustee on
behalf of a trust, such trustee has full right, power and
authority to enter into this Agreement on behalf of the trust
and to bind the trust and its beneficiaries to the terms
hereof; the execution, delivery and performance of this
Agreement by such Participating Stockholder will not
constitute a violation of, conflict with or result in a
default under (i) any contract, understanding or arrangement
to which such Participating Stockholder is a party or by which
such Participating Stockholder is bound or require the consent
of any other person or any party pursuant thereto; (ii) any
judgment, decree or order applicable to such Participating
Stockholder; or (iii) any law, rule or regulation of any
governmental body;
<PAGE> 21
19
(c) This Agreement constitutes a legal, valid and
binding agreement on the part of such Participating
Stockholder; the shares of Class B Common Stock owned of
record and beneficially by such Participating Stockholder are
fully paid and non-assessable; and
(d) The shares of Class B Common Stock owned
beneficially and of record by such Participating Stockholder
are now held by such Participating Stockholder, free and clear
of all adverse claims, liens, encumbrances and security
interests (except as created by this Agreement and the
Restated Certificate).
6. Changes in Shares of Class B Common Stock.
------------------------------------------
In the event of any change in the terms of the shares
of Class B Common Stock, or any stock dividend, stock split, combination of
shares, recapitalization or other change in the capital structure of the
Corporation, or any merger, reorganization, consolidation or other corporate
transaction having an effect similar to the foregoing, the provisions of this
Agreement shall continue to apply to the shares of Class B Common Stock or any
securities of any corporation issued in lieu thereof or with respect thereto
subject, however, to such equitable adjustment, if any, as may be necessary to
reflect any change in the relative rights and privileges of the shares of Class
A Common Stock and Class B Common Stock.
7. Compliance Provisions.
----------------------
<PAGE> 22
20
7.1 All certificates representing the shares of Class B Common
Stock owned of record or beneficially by the Participating Stockholders at the
date of this Agreement shall be delivered to the Depository to be marked
conspicuously on the face or the back thereof with a legend to the following
effect:
The shares of Class B Common Stock, par value $1.00
per share, of NACCO Industries, Inc., a Delaware corporation
(the "Corporation"), represented by this Certificate are
subject to a Stockholders' Agreement dated as of March 15,
1990 and originally entered into by and among the Corporation,
Clara T. Rankin, Frank E. Taplin, Thomas E. Taplin and other
parties. Pursuant to such Agreement, such shares may not be
sold, assigned, given, exchanged or otherwise transferred or
converted into shares of Class A Common Stock, par value $1.00
per share, of the Corporation (except for transfers to certain
persons specified in such Agreement) except upon compliance
with certain procedures, including, without limitation, offer
of such Shares to certain other stockholders of the
Corporation and the Corporation and, in certain situations,
conversion into shares of Class A Common Stock. The
Corporation will mail to the holder hereof a copy of such
agreement without charge within five days after receipt of a
written request therefor.
Following the application of such legend, the Depository shall return each
certificate to its Participating Stockholder owner by registered mail, return
receipt requested. Each Participating Stockholder, forthwith upon becoming the
record or beneficial owner of any other shares of Class B Common Stock, and each
other Family Member or Charitable Organization, forthwith upon becoming a new
Participating Stockholder by executing and delivering an Amendment and becoming
the record or beneficial owner of any shares of Class B Common Stock shall, to
the extent legally able to do so, cause all certificates representing the same
to be delivered to the Depository for the application of such legend. The
Depository shall return each certificate to its Participating
<PAGE> 23
21
Stockholder owner by registered mail, return receipt requested, following the
application of such legend. All of the certificates representing all shares of
Class B Common Stock now or hereafter owned (of record or beneficially) by any
of the Participating Stockholders shall continue to bear such legend until such
shares of Class B Common Stock are converted into shares of Class A Common Stock
as permitted by Section 3 hereof or, if earlier, the termination of this
Agreement in accordance with the terms hereof. Any Participating Stockholder may
cause possession of such certificates to be given to or retained by any pledgee
to be held as security in accordance with Section 2.2 hereof upon delivery to
the Depository of the written agreement of the pledgee referred to in such
Section.
7.2 The further rights and duties of the Depository
shall be governed by the terms and conditions contained in Exhibit B attached
hereto.
8. Amendment and Termination.
--------------------------
This Agreement may be amended or terminated only by a written
instrument referring specifically to this Agreement and executed and delivered
by Participating Stockholders owning 66-2/3 percent of the shares of Class B
Common Stock subject to this Agreement, PROVIDED, HOWEVER, that (a)
notwithstanding the foregoing, a Family Member or Charitable Organization may
execute and deliver the Amendment in accordance with Section 2 hereof for the
purpose of becoming a Participating Stockholder, (b) only those Participating
Stockholders executing and delivering an amendment extending the term of this
Agreement or amending the
<PAGE> 24
22
restrictions on transfer of shares of Class B Common Stock contained herein
shall be bound by such amendment, and (c) no amendment of the rights and
obligations of the Depository set forth herein or in Exhibit B hereto shall be
binding upon the Depository without its prior written agreement. This Agreement,
unless extended in accordance with the immediately preceding sentence, shall
terminate on March 15, 2030. This Agreement, moreover, shall terminate in any
event 21 years after the death of the last to die of the lineal descendants of
Clara T. Rankin living on the date of this Agreement.
9. Further Assurances.
-------------------
9.1 Each party hereto shall perform such further acts and
execute such further documents as may reasonably be required to carry out the
provisions of this Agreement, including instruments necessary or desirable to
complete the transfer, sale and assignment of any Offered Shares. Each
Participating Stockholder agrees that at all times during the term of this
Agreement all shares of Class B Common Stock owned beneficially and of record by
such Participating Stockholder shall be held free and clear of all adverse
claims, liens, encumbrances and security interests (except as created by this
Agreement and the Restated Certificate and except as permitted by Section 2.2
hereof).
9.2 Each Participating Stockholder shall defend, indemnify and
hold harmless each of the other Participating Stockholders from and against any
and all claims, damages, demands, causes of action, suits, judgments, debts,
liabilities,
<PAGE> 25
23
costs and expenses (including but not limited to court costs and attorneys fees)
resulting from (a) any failure by such Stockholder to carry out, perform,
satisfy, discharge any of its covenants, agreements, undertakings, obligations
or liabilities under this Agreement, and. (b) any breach of a warranty or
representation made by such Stockholder hereunder.
10. Miscellaneous.
--------------
10.1 Notwithstanding any provisions hereof to the contrary,
shares of Class B Common Stock may be offered to the Corporation solely for cash
at any time it may offer to purchase the same, free of the limitations provided
for in this Agreement.
10.2 All notices and other communications required or
permitted to be given under this Agreement shall be in writing and shall be
deemed given when delivered in hand or 72 hours after being deposited in a
United States Post Office, postage prepaid, registered or certified mail, and
addressed to the addressee at the address set forth below such addressee's
signature on the signature pages hereto, or to such other address as such
addressee may specify to the Depository.
10.3 This Agreement shall inure to the benefit of and be
binding upon the Participating Stockholders, any pledgee who agrees to be bound
hereby pursuant to Section 2.2 hereof and their respective successors, heirs,
personal representatives, legatees and assigns, PROVIDED, HOWEVER, that no
Participating Stockholder or the Corporation may assign any of their rights
hereunder. All references herein to the Corporation and the Depository, shall
include any other corporation or other entity
<PAGE> 26
24
to which this Agreement may be assigned, by operation of law or otherwise, in
connection with any merger, reorganization, consolidation or other corporate
transaction having an effect similar to the foregoing, and all references herein
to the Restated Certificate shall refer to the charter of any such other
corporation, however denominated.
10.4 If any term or provision of this Agreement shall be found
unenforceable by any court of competent jurisdiction to any extent, such holding
shall not invalidate or render unenforceable such term or provision to any
greater extent or render unenforceable or invalidate any other term or provision
hereof.
10.5 This Agreement may be executed in multiple counterparts,
each of which shall be an original and all of which shall constitute but one and
the same instrument, without production of the others.
10.6 This Agreement shall be construed in accordance with the
internal substantive laws of the State of Delaware, PROVIDED, HOWEVER, that the
rights and duties of the Depository contained in Exhibit B attached hereto shall
be construed in accordance with the internal substantive laws of the State of
Ohio.
10.7 The parties hereto agree that the shares of Class B
Common Stock subject to this Agreement are unique and that legal remedies for
breach of this Agreement will be inadequate and that this Agreement may be
enforced by injunctive or other
<PAGE> 27
25
equitable relief in addition to any other remedies which the parties hereto
otherwise may have.
10.8 Notwithstanding any other term or provision of this
Agreement to the contrary, this Agreement shall not be effective until it has
been executed and delivered by Alfred M. Rankin, Jr.
11. Power of Attorney.
------------------
Each of the undersigned Participating Stockholders
hereby constitutes and appoints Alfred M. Rankin, Frank E.
Taplin, Thomas E. Taplin, Alfred M. Rankin, Jr., Dennis W.
LaBarre, Michael G. Marting and each of them, as the true and
lawful attorney or attorneys-in-fact, with full power of
substitution and resubstitution, for the undersigned and in the
name, place and stead of the undersigned, in any and all
capacities to:
(a) execute any and all statements under Section 13
or Section 16 of the Securities Exchange Act of 1934, as
amended, of beneficial ownership of shares of Class B Common
Stock subject to this Agreement, including all statements on
Schedule 13D and all amendments thereto, all joint filing
agreements pursuant to Rule 13d-1(f) (iii) under such Act in
connection with such statements, all initial statements of
beneficial ownership on Form 3 and any and all other documents
to be filed with the Securities and Exchange Commission, and
to file the same, with all exhibits thereto, and all other
documents in connection
<PAGE> 28
26
therewith, with the Securities and Exchange Commission,
and
(b) execute and deliver any and all Amendments
whereby a Family Member or Charitable Organization becomes a
Participating Stockholder, granting to said attorney or
attorneys-in-fact, and each of them, full power and authority
to do so and to 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 the undersigned might or could
do in person, hereby ratifying and confirming all that said
attorney or attorneys-in-fact or any of them, or their
substitutes or resubstitutes, may lawfully do or cause to be
done by virtue of this Section Il. The grant of this power of
attorney shall not be affected by any disability of such
undersigned individual Participating Stockholder. If
applicable law requires additional or substituted language or
formalities (including witnesses or acknowledgements) in order
to validate the power of attorney intended to be granted by
this Section II, each Participating Stockholder agrees to
execute and deliver such additional instruments and to take
such further acts as may be necessary to validate such power
of attorney.
12. Voting of Class B Common Stock.
-------------------------------
Notwithstanding any other term or provision in this
Agreement to the contrary, nothing in this Agreement shall
<PAGE> 29
27
obligate any Participating Stockholder to cast votes with respect to the shares
of Class B Common Stock now or hereafter owned by such Stockholder in any
manner, to vote for or against, or to abstain from voting with respect to, any
matter submitted to a vote of the stockholders of the Corporation or to express
or withhold consent to any action of the Corporation in writing without a
meeting, and nothing in this Agreement shall be deemed to authorize any
Participating Stockholder to act by proxy for any other Participating
Stockholder.
IN WITNESS WHEREOF, the Participating Stockholders, the
Corporation and the Depository have executed this Agreement or caused this
Agreement to be executed in their respective names, as the case may be, all as
of the date and year first above written.
/s/ Erica J. Moehring /s/ Alfred M. Rankin
- ---------------------------- ----------------------------
Witness Alfred M. Rankin
/s/ Jean E. Carpenter Date: March 1, 1990
- ---------------------------- ---------------------------------
Witness
Address: River Road
Chagrin Falls, Ohio 44022
No. of Shares of Class B
Common Stock Certificate No.
- --------------------------- ---------------
<PAGE> 1
EXHIBIT 6
FIRST REVISION TO STOCKHOLDERS' AGREEMENT
THIS FIRST REVISION TO STOCKHOLDERS' AGREEMENT, dated as of November
13, 1996 (this "Agreement"), is entered into by and among Keycorp Shareholder
Services, Inc., a national banking association as successor to Ameritrust
Company National Association, as depository (the "Depository"), the
Participating Stockholders under the Stockholders' Agreement (as hereinafter
defined) and NACCO Industries, Inc., a Delaware corporation (the "Corporation")
and further amends that certain Stockholders' Agreement (the "Stockholders'
Agreement"), dated as of March 15, 1990, as amended, among the Depository, the
Participating Stockholders and the Corporation.
Recital
-------
The Participating Stockholders desire to amend the Stockholders'
Agreement to provide that a corporation or partnership wholly owned by one or
more Participating Stockholders has the rights of a Participating Stockholder.
Agreements
----------
In consideration for the mutual promises hereinafter set forth and
other good and valuable consideration had and received, the parties hereto agree
as follows:
1. Definitions. Capitalized terms used herein shall have the meanings set
forth in the Stockholders' Agreement.
2. Amendment. The Stockholders' Agreement hereby is amended as follows:
(a) The first sentence of Section 1.12 of the Stockholders'
Agreement is deleted in its entirety and the following
sentence is inserted in its place:
The term "Participating Stockholder" shall mean any Family
Member, Charitable Organization or Participating Stockholder
Organization which has executed a counterpart of this
Agreement and delivered a copy thereof to all other
Participating Stockholders, or any Family Member, Charitable
Organization or Participating Stockholder Organization which
hereafter executes and delivers an Amendment, and is bound
by the terms hereof.
(b) A new Section 1.12.1 is inserted immediately following
Section 1.12 as follows:
1.12.1 The Term "Participating Stockholder
Organization" shall mean (a) any corporation all of the
outstanding capital stock of which is owned by Participating
Stockholders; and (b) any partnership all of the partners of
which are Participating Stockholders. Notwithstanding the
first sentence of this Section 1.12.1, a corporation or
partnership may not be a Participating Stockholder
Organization unless its certificate of incorporation,
partnership agreement, or other organizational and
governance documents provide that
<PAGE> 2
only Participating Stockholders may acquire or retain any
capital stock, partnership interest or other ownership
interest of such entity or of any survivor of a merger or
consolidation of such entity.
(c) Section 2.1 is amended by inserting immediately following
the first sentence of Section 2.1 the following:
Any Participating Stockholder may at any time sell, assign,
give, exchange or otherwise transfer shares of Class B
Common Stock or any interest therein to a Participating
Stockholder Organization that is a Participating Stockholder
or becomes a new Participating Stockholder by,
simultaneously with such transfer, signing and delivering an
Amendment which has been signed and delivered by the
Participating Stockholders (or their attorney-in-fact).
(d) The third sentence of Section 7.1 is amended by deleting the
text "Family Member or Charitable Organization" and
inserting in its stead the following: "Family Member,
Charitable Organization or Participating Stockholder
Organization".
(e) Subsection 8(a) is amended by deleting the text "Family
Member or Charitable Organization" and inserting in its
stead the following: "Family Member, Charitable Organization
or Participating Stockholder Organization".
(f) Subsection 11(b) is amended by deleting the text "Family
Member or Charitable Organization" and inserting in its
stead the following: "Family Member, Charitable Organization
or Participating Stockholder Organization".
(g) The first sentence of Section 11 is amended by inserting
immediately following the name "Michael G. Marting" the
following text: "Charles A. Bittenbender, Suzanne Schulze
Taylor".
(h) Exhibit A to the Stockholders Agreement is replaced by
Exhibit A attached hereto.
3. COUNTERPARTS. This Agreement may be executed in multiple counterparts,
each of which shall be an original and all of which shall constitute
but one and the same instrument, without production of the others.
IN WITNESS WHEREOF, the Participating Stockholders, the Corporation
and the Depository have executed this Amendment or caused this Amendment to be
executed in their respective names, all as of the date and year first above
written.
{REMAINDER OF PAGE INTENTIONALLY LEFT BLANK. SIGNATURES
BEGIN ON NEXT PAGE}
-2-
<PAGE> 3
{SIGNATURE PAGE FOR AMENDMENT TO STOCKHOLDERS' AGREEMENT DATED NOVEMBER __,
1996}
NACCO INDUSTRIES, INC.
By: /s/ Frank B. O'Brien
- ---------------------------------- ----------------------------
Witness
- --------------------------------
Witness
And: /s/ Charles A. Bittenbender
- ---------------------------------- ----------------------------
Witness
- --------------------------------
Witness
STATE OF OHIO )
) SS:
COUNTY OF CUYAHOGA )
Before me, a Notary Public in and for said State and County,
personally appeared NACCO Industries, Inc., a Delaware corporation, by Frank B.
O'Brien and Charles A. Bittenbender its Senior Vice President-Corporate
Development and Chief Financial Officer and Vice President, General Counsel and
Secretary, respectively, who acknowledged that they did sign the foregoing
instrument on behalf of said corporation by authority of its board of directors,
and that the same is the free act and deed of said corporation and their free
act and deed as such officers.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official
seal at Mayfield Heights, Ohio, this _____ day of November, 1996.
----------------------------------
[Notarial Seal] Notary Public
-3-
<PAGE> 4
EXHIBIT A
(revised as
of 11/15/96)
AMENDMENT TO STOCKHOLDERS' AGREEMENT
------------------------------------
This AMENDMENT TO STOCKHOLDERS' AGREEMENT, dated as of
________________, 19__ (this "Amendment"), by and among Keycorp Shareholder
Services, Inc. (successor by merger to Ameritrust Company National Association),
as depository ("Keycorp"), the Participating Stockholders under the
Stockholders' Agreement, dated as of March 15, 1990, as amended, NACCO
Industries, Inc. and the new Participating Stockholder identified on the
signature page hereto (the "New Participating Stockholder").
This Amendment sets forth the terms and conditions on which the New
Participating Stockholder will join in and become a party to the Stockholders'
Agreement, dated as of March 15, 1990, as amended (the "Stockholders'
Agreement"), by and among each of the signatories identified therein, NACCO
Industries, Inc., a Delaware corporation (the "Corporation"), and Keycorp, as
Depository. Capitalized terms defined in the Stockholders' Agreement are used
herein as so defined.
Pursuant to Section 8 of the Stockholders' Agreement, prior to the
acquisition of Class B Common Stock by a Permitted Transferee, the Stockholders'
Agreement may be amended to add a Permitted Transferee as a Participating
Stockholder by a writing signed by the Signatories, the Corporation and such
Permitted Transferee.
In consideration of the mutual promises hereinafter set forth and other
good and valuable consideration had and received, the parties hereto agree as
follows:
1. REPRESENTATIONS AND WARRANTIES. The New Participating
Stockholder, for such New Participating Stockholder only and not for any other
Participating Stockholder,
-1-
<PAGE> 5
represents and warrants to the other Participating Stockholders and the
Corporation as follows:
(a) Such New Participating Stockholder is the
beneficial owner of, or simultaneously with the execution
hereof will acquire and be deemed to be the beneficial owner
of, the shares of Class B Common Stock identified below such
New Participating Stockholder's name on the signature pages
hereto (except as otherwise described thereon), and except as
otherwise described thereon such New Participating Stockholder
does not own of record or beneficially or have any interest in
any other shares of Class B Common Stock or any options to
purchase or rights to subscribe or otherwise acquire any other
shares of Class B Common Stock other than pursuant to the
Stockholders' Agreement;
(b) Such New Participating Stockholder has the right,
power and authority to execute and deliver this Amendment and
to perform such New Participating Stockholder's obligations
hereunder and under the Stockholders' Agreement; if this
Amendment is being executed by a trustee on behalf of a trust,
such trustee has full right, power and authority to enter into
this Amendment on behalf of the trust and to bind the trust
and its beneficiaries to the terms hereof; if this Amendment
is being executed on behalf of a Participating Stockholder
Organization, the person executing this Amendment is a duly
authorized representative of such Participating Stockholder
Organization with full right, power and authority to execute
and deliver this Amendment on behalf of such Participating
Stockholder Organization and to bind such Participating
Stockholder Organization to the terms hereof; the
-2-
<PAGE> 6
execution, delivery and performance of this Amendment by
such New Participating Stockholder will not constitute a
violation of, conflict with or result in a default under (i)
any contract, understanding or arrangement to which such New
Participating Stockholder is a party or by which such New
Participating Stockholder is bound or require the consent of
any other person or any party pursuant thereto; (ii) any
organizational, charter or other governance documents
(including, without limitation, any partnership agreement,
certificate of incorporation, or bylaws) of the New
Participating Stockholder, (iii) any judgment, decree or
order applicable to such New Participating Stockholder; or
(iv) any law, rule or regulation of any governmental body;
(c) This Amendment and the Stockholders' Agreement
constitute legal, valid and binding agreements on the part
of such New Participating Stockholder; the shares of Class B
Common Stock owned beneficially by such New Participating
Stockholder are fully paid and nonassessable; and
(d) The shares of Class B Common Stock owned
beneficially by such New Participating Stockholder are now
held by such New Participating Stockholder, free and clear
of all adverse claims, liens, encumbrances and security
interests (except as created by the Stockholders' Agreement
and any Amendments thereto, including this Amendment, and
the Restated Certificate).
2. ADDRESS FOR NOTICES. The address for all notices to the
New Participating Stockholder provided pursuant to the Stockholders' Agreement
shall be the address set forth below such New Participating Stockholder's name
on the signature pages
-3-
<PAGE> 7
hereto, or to such other address as such New Participating Stockholder may
specify to the Depository.
3. AGREEMENT TO BE BOUND BY STOCKHOLDERS' AGREEMENT. The New
Participating Stockholder agrees to be bound by all of the terms and provisions
of the Stockholders' Agreement applicable to Participating Stockholders.
4. BENEFICIARIES. The New Participating Stockholder
acknowledges that the Corporation and each Participating Stockholder is a
beneficiary of this Amendment.
5. AMENDMENT OF STOCKHOLDERS' AGREEMENT. The Stockholders'
Agreement is hereby amended to add the New Participating Stockholder as a
Participating Stockholder.
6. SIGNATURE OF AMENDMENT BY TRUSTS, MINORS AND INCOMPETENTS.
(a) In order for a trust exclusively (as defined in
Section 1.9 of the Stockholders' Agreement) for the benefit of
a Family Member or Members to be considered a Participating
Stockholder:
(i) the trustee and all adult beneficiaries
of such trusts having a current trust interest (as
well as all Charitable Organization beneficiaries
having a current trust interest) shall have
previously signed the Stockholders' Agreement or
shall sign this Amendment as a Participating
Stockholder;
(ii) the trustee and a parent or legal
guardian, for trusts with minor beneficiaries having
a current trust interest, shall sign this Amendment
on behalf of any such minor beneficiaries; or
-4-
<PAGE> 8
(iii) the trustee and legal guardian, if
any, for trusts with incompetent beneficiaries
having a current trust interest, shall sign this
Amendment on behalf of any such incompetent
beneficiaries.
(b) If, at any time, any trust shall have an adult
beneficiary (and such beneficiary is not incompetent) having
a current trust interest or an ascertainable Charitable
Organization beneficiary having a current trust interest and
if such beneficiary has not previously signed the
Stockholders' Agreement, then if such beneficiary shall fail
or be unable to sign this Amendment for a period of 30
calendar days following notification to such beneficiary of
the terms of this Amendment and the Stockholders' Agreement
by the Depository and following signature of this Amendment
by the trustee, the trust shall thereupon cease to be a
Participating Stockholder and Section 3.2 of the
Stockholders' Agreement shall then apply as if the shares of
Class B Common Stock held by the trust were then to be
converted. The donor of a trust that is revocable by the
donor alone, during the lifetime of such donor, shall be
considered the only beneficiary thereof so long as such
trust is so revocable.
(c) In the case of Class B Common Stock held by a
custodian under the Uniform Transfers to Minors Act (or the
practical equivalent thereof) for the benefit of a minor
Family Member, the custodian shall sign this Amendment on
behalf of such minor if such minor is to be considered a
Participating Stockholder.
(d) In the case of Class B Common Stock held in
the name of a minor Family Member, a parent or legal
guardian of such minor shall sign this
-5-
<PAGE> 9
Amendment on behalf of such minor if such minor is to be
considered a Participating Stockholder.
(e) In the case of Class B Common Stock held in the
name of an incompetent Family Member, the legal guardian of
such incompetent shall sign this Amendment on behalf of such
incompetent if such incompetent is to be considered a
Participating Stockholder.
(f) When a minor described in Section 6(c) or (d)
reaches the age of majority, or an incompetent described in
Section 6(e) is no longer impaired by such disability and has
reached the age of majority, such Family Member shall execute
and deliver an Amendment which has been executed and delivered
by the Participating Stockholders (or their attorney-in-fact),
the Corporation and the Depository. If such Family Member
shall fail or be unable to sign such Amendment for a period of
30 calendar days following notification to such Family Member
of the terms of the Stockholders' Agreement by the Depository,
such Family Member shall thereupon cease to be a Participating
Stockholder and Section 3.2 of the Stockholders' Agreement
shall then apply as if the shares of Class B Common Stock were
then to be converted.
7. POWER OF ATTORNEY. The undersigned New Participating
Stockholder hereby constitutes and appoints Frank E. Taplin, Jr., Thomas E.
Taplin, Alfred M. Rankin, Jr., Dennis W. LaBarre, Michael G. Marting, Charles A.
Bittenbender, Suzanne Schulze Taylor, and each of them as the true and lawful
attorney or attorneys-in-fact, with full power of substitution and
resubstitution, for the undersigned and in the name, place and stead of the
undersigned, in any capacities to:
-6-
<PAGE> 10
(a) execute any and all statements under Section 13
or Section 16 of the Securities Exchange Act of 1934, as
amended, of beneficial ownership of Shares of Class B Common
Stock subject to the Stockholders' Agreement as amended by
this Amendment, including all statements on Schedule 13D and
all amendments thereto, all joint filing agreements pursuant
to Rule 13d-l(f)(iii) under such Act in connection with such
statements, all initial statements of beneficial ownership on
Form 3 and any and all other documents to be filed with the
Securities and Exchange Commission, and to file the same, with
all exhibits thereto, and all other documents in connection
therewith, with the Securities and Exchange Commission, and
(b) execute and deliver any and all Amendments
whereby a Family Member or a Charitable Organization or a
Participating Stockholder Organization becomes a Participating
Stockholder, granting to said attorney or attorneys-in-fact,
and each of them, full power and authority to do so and to
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 the undersigned might or could do in person,
hereby ratifying and confirming all that said attorney or
attorneys-in-fact or any of them or their substitutes or
resubstitutes, may lawfully do or cause to be done by virtue
of this Section 7. The grant of this power of attorney shall
not be affected by any disability of the undersigned New
Participating Stockholder. If applicable law requires
additional or substituted language in order to validate the
power of attorney intended to be granted by this Section 7,
the New Participating Stockholder
-7-
<PAGE> 11
agrees to execute and deliver such additional instruments
and to take such further acts as may be necessary to
validate such power of attorney.
8. COUNTERPARTS. This Amendment may be executed in multiple
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument, without production of the others.
IN WITNESS WHEREOF, the New Participating Stockholder, the
Participating Stockholders, the Corporation and the Depository have executed
this Amendment or caused this Amendment to be executed in their respective
names, all as of the date and year first above written.
----------------------------------
----------------------------------
----------------------------------
Witnes
---------------------- ----------------------------------
Witness Date:
---------------------- -----------------------------
Address:
Number of Shares of
Class B Common Stock
--------------------
-8-
<PAGE> 12
STATE OF ___________________ )
) SS:
CITY OF ____________________ )
Before me, a Notary Public in and for said State and County,
personally appeared the above-named
________________________________________________, who acknowledged that he did
sign the foregoing instrument as _______ and the same is his free act and deed
as _______.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official
seal at ________, ________, this ______ day of _____________, 199__.
-------------------------
[Notarial Seal] Notary Public
-9-
<PAGE> 13
, as Depository
-----------
--------------------------
Cleveland, Ohio
-----------
By:
- ------------------------------ ------------------------------
Witness
- -----------------------------
Witness
And:
- ------------------------------ -----------------------------
Witness
- -----------------------------
Witness
STATE OF OHIO )
) SS:
COUNTY OF CUYAHOGA )
Before me, a Notary Public in and for said State and County,
personally appeared ________________________, not individually but as
Depository, by _____________________ and _____________________, its
_______________________ and ________________, respectively, who acknowledged
that they did sign the foregoing on behalf of said Depository by authority of
its board of directors and it is the same as the free act and deed of such
depository and their free act and deed as such officers.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official
seal at Cleveland, Ohio this ____ day of ___________, 199__.
-----------------------------------
[Notarial Seal] Notary Public
-10-
<PAGE> 14
NACCO INDUSTRIES, INC.
By:
- -------------------------------- -----------------------------
Witness
- --------------------------------
Witness
And:
- -------------------------------- -----------------------------
Witness
- --------------------------------
Witness
STATE OF OHIO )
) SS:
COUNTY OF CUYAHOGA )
Before me, a Notary Public in and for said State and County,
personally appeared NACCO Industries, Inc., a Delaware corporation, by
__________________________ and _______________________ its
______________________________ and __________________________, respectively, who
acknowledged that they did sign the foregoing instrument on behalf of said
corporation by authority of its board of directors, and that the same is the
free act and deed of said corporation and their free act and deed as such
officers.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official
seal at Cleveland, Ohio, this _____ day of , 199__.
-----------------------------------
[Notarial Seal] Notary Public
-11-
<PAGE> 15
THE PARTICIPATING STOCKHOLDERS listed
in Exhibit A attached hereto and incorporated
herein by this reference
By
- ------------------------------- ------------------------------------------
Witness Alfred M. Rankin, Jr.
Attorney-in-Fact
- ------------------------------
Witness
STATE OF OHIO )
) SS:
COUNTY OF CUYAHOGA )
Before me, a Notary Public in and for said State and County,
personally appeared the Participating Stockholders listed on Exhibit A hereto by
their attorney-in-fact Alfred M. Rankin, Jr., who acknowledged that he did sign
the foregoing instrument as attorney-in-fact for the Participating Stockholders,
and that the same is the free act and deed of the Participating Stockholders and
his free act and deed as attorney-in-fact.
IN TESTIMONY WHEREOF, I hereunto set my hand and official seal
at _____________, Ohio, this ___ day of _________________, 199__.
--------------------------------------
[Notarial Seal] Notary Public
-12-
<PAGE> 16
Exhibit A
---------
PARTICIPATING STOCKHOLDERS
--------------------------
-1-
<PAGE> 1
EXHIBIT 7
EXHIBIT A
(revised as
of 11/15/96)
AMENDMENT TO STOCKHOLDERS' AGREEMENT
This AMENDMENT TO STOCKHOLDERS' AGREEMENT, dated as of November 14,
1996 (this "Amendment"), by and among KeyCorp Shareholder Services, Inc.
(successor by merger to Ameritrust Company National Association), as depository
("KeyCorp"), the Participating Stockholders under the Stockholders' Agreement,
dated as of March 15, 1990, as amended, NACCO Industries, Inc. and the new
Participating Stockholder identified on the signature page hereto (the "New
Participating Stockholder").
This Amendment sets forth the terms and conditions on which the New
Participating Stockholder will join in and become a party to the Stockholders'
Agreement, dated as of March 15, 1990, as amended (the "Stockholders'
Agreement"), by and among each of the signatories identified therein, NACCO
Industries, Inc., a Delaware corporation (the "Corporation"), and KeyCorp, as
Depository. Capitalized terms defined in the Stockholders' Agreement are used
herein as so defined.
Pursuant to Section 8 of the Stockholders' Agreement, prior to the
acquisition of Class B Common Stock by a Permitted Transferee, the Stockholders'
Agreement may be amended to add a Permitted Transferee as a Participating
Stockholder by a writing signed by the Signatories, the Corporation and such
Permitted Transferee.
In consideration of the mutual promises hereinafter set forth and other
good and valuable consideration had and received, the parties hereto agree as
follows:
<PAGE> 2
1. REPRESENTATIONS AND WARRANTIES. The New Participating
Stockholder, for such New Participating Stockholder only and not for any other
Participating Stockholder, represents and warrants to the other Participating
Stockholders and the Corporation as follows:
(a) Such New Participating Stockholder is the
beneficial owner of, or simultaneously with the execution
hereof will acquire and be deemed to be the beneficial owner
of, the shares of Class B Common Stock identified below such
New Participating Stockholder's name on the signature pages
hereto (except as otherwise described thereon), and except as
otherwise described thereon such New Participating Stockholder
does not own of record or beneficially or have any interest in
any other shares of Class B Common Stock or any options to
purchase or rights to subscribe or otherwise acquire any other
shares of Class B Common Stock other than pursuant to the
Stockholders' Agreement;
(b) Such New Participating Stockholder has the right,
power and authority to execute and deliver this Amendment and
to perform such New Participating Stockholder's obligations
hereunder and under the Stockholders' Agreement; if this
Amendment is being executed by a trustee on behalf of a trust,
such trustee has full right, power and authority to enter into
this Amendment on behalf of the trust and to bind the trust
and its beneficiaries to the terms hereof; if this Amendment
is being executed on behalf of a Participating Stockholder
Organization, the person executing this Amendment is a duly
authorized representative of such Participating Stockholder
-2-
<PAGE> 3
Organization with full right, power and authority to execute
and deliver this Amendment on behalf of such Participating
Stockholder Organization and to bind such Participating
Stockholder Organization to the terms hereof; the execution,
delivery and performance of this Amendment by such New
Participating Stockholder will not constitute a violation of,
conflict with or result in a default under (i) any contract,
understanding or arrangement to which such New Participating
Stockholder is a party or by which such New Participating
Stockholder is bound or require the consent of any other
person or any party pursuant thereto; (ii) any organizational,
charter or other governance documents (including, without
limitation, any partnership agreement, certificate of
incorporation, or bylaws) of the New Participating
Stockholder, (iii) any judgment, decree or order applicable to
such New Participating Stockholder; or (iv) any law, rule or
regulation of any governmental body;
(c) This Amendment and the Stockholders' Agreement
constitute legal, valid and binding agreements on the part of
such New Participating Stockholder; the shares of Class B
Common Stock owned beneficially by such New Participating
Stockholder are fully paid and nonassessable; and
(d) The shares of Class B Common Stock owned
beneficially by such New Participating Stockholder are now
held by such New Participating Stockholder, free and clear of
all adverse claims, liens, encumbrances and security interests
(except as created by the Stockholders' Agreement and any
Amendments thereto, including this Amendment, and the Restated
Certificate).
-3-
<PAGE> 4
2. ADDRESS FOR NOTICES. The address for all notices to the New
Participating Stockholder provided pursuant to the Stockholders' Agreement shall
be the address set forth below such New Participating Stockholder's name on the
signature pages hereto, or to such other address as such New Participating
Stockholder may specify to the Depository.
3. AGREEMENT TO BE BOUND BY STOCKHOLDERS' AGREEMENT. The New
Participating Stockholder agrees to be bound by all of the terms and provisions
of the Stockholders' Agreement applicable to Participating Stockholders.
4. BENEFICIARIES. The New Participating Stockholder
acknowledges that the Corporation and each Participating Stockholder is a
beneficiary of this Amendment.
5. AMENDMENT OF STOCKHOLDERS' AGREEMENT. The Stockholders'
Agreement is hereby amended to add the New Participating Stockholder as a
Participating Stockholder.
6. SIGNATURE OF AMENDMENT BY TRUSTS, MINORS AND INCOMPETENTS.
(a) In order for a trust exclusively (as defined in
Section 1.9 of the Stockholders' Agreement) for the benefit
of a Family Member or Members to be considered a
Participating Stockholder:
(i) the trustee and all adult beneficiaries
of such trusts having a current trust interest (as
well as all Charitable Organization beneficiaries
having a current trust interest) shall have
previously signed the Stockholders' Agreement or
shall sign this Amendment as a Participating
Stockholder;
(ii) the trustee and a parent or legal
guardian, for trusts with minor beneficiaries having
a current trust interest, shall sign this Amendment
on behalf of any such minor beneficiaries; or
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<PAGE> 5
(iii) the trustee and legal guardian, if
any, for trusts with incompetent beneficiaries having
a current trust interest, shall sign this Amendment
on behalf of any such incompetent beneficiaries.
(b) If, at any time, any trust shall have an adult
beneficiary (and such beneficiary is not incompetent) having
a current trust interest or an ascertainable Charitable
Organization beneficiary having a current trust interest and
if such beneficiary has not previously signed the
Stockholders' Agreement, then if such beneficiary shall fail
or be unable to sign this Amendment for a period of 30
calendar days following notification to such beneficiary of
the terms of this Amendment and the Stockholders' Agreement
by the Depository and following signature of this Amendment
by the trustee, the trust shall thereupon cease to be a
Participating Stockholder and Section 3.2 of the
Stockholders' Agreement shall then apply as if the shares of
Class B Common Stock held by the trust were then to be
converted. The donor of a trust that is revocable by the
donor alone, during the lifetime of such donor, shall be
considered the only beneficiary thereof so long as such trust
is so revocable.
(c) In the case of Class B Common Stock held by a
custodian under the Uniform Transfers to Minors Act (or the
practical equivalent thereof) for the benefit of a minor
Family Member, the custodian shall sign this Amendment on
behalf of such minor if such minor is to be considered a
Participating Stockholder.
(d) In the case of Class B Common Stock held in the
name of a minor Family Member, a parent or legal guardian of
such minor shall sign this
-5-
<PAGE> 6
Amendment on behalf of such minor if such minor is to be
considered a Participating Stockholder.
(e) In the case of Class B Common Stock held in the
name of an incompetent Family Member, the legal guardian of
such incompetent shall sign this Amendment on behalf of such
incompetent if such incompetent is to be considered a
Participating Stockholder.
(f) When a minor described in Section 6(c) or (d)
reaches the age of majority, or an incompetent described in
Section 6(e) is no longer impaired by such disability and has
reached the age of majority, such Family Member shall execute
and deliver an Amendment which has been executed and delivered
by the Participating Stockholders (or their attorney-in-fact),
the Corporation and the Depository. If such Family Member
shall fail or be unable to sign such Amendment for a period of
30 calendar days following notification to such Family Member
of the terms of the Stockholders' Agreement by the Depository,
such Family Member shall thereupon cease to be a Participating
Stockholder and Section 3.2 of the Stockholders' Agreement
shall then apply as if the shares of Class B Common Stock were
then to be converted.
7. POWER OF ATTORNEY. The undersigned New Participating
Stockholder hereby constitutes and appoints Frank E. Taplin, Jr., Thomas E.
Taplin, Alfred M. Rankin, Jr., Dennis W. LaBarre, Michael G. Marting, Charles A.
Bittenbender, Suzanne Schulze Taylor, and each of them as the true and lawful
attorney or attorneys-in-fact, with full power of substitution and
resubstitution, for the undersigned and in the name, place and stead of the
undersigned, in any capacities to:
-6-
<PAGE> 7
(a) Execute any and all statements under Section 13
or Section 16 of the Securities Exchange Act of 1934, as
amended, of beneficial ownership of Shares of Class B Common
Stock subject to the Stockholders' Agreement as amended by
this Amendment, including all statements on Schedule 13D and
all amendments thereto, all joint filing agreements pursuant
to Rule 13d-l(f)(iii) under such Act in connection with such
statements, all initial statements of beneficial ownership on
Form 3 and any and all other documents to be filed with the
Securities and Exchange Commission, and to file the same, with
all exhibits thereto, and all other documents in connection
therewith, with the Securities and Exchange Commission, and
(b) Execute and deliver any and all Amendments
whereby a Family Member or a Charitable Organization or a
Participating Stockholder Organization becomes a Participating
Stockholder, granting to said attorney or attorneys-in-fact,
and each of them, full power and authority to do so and to
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 the undersigned might or could do in person,
hereby ratifying and confirming all that said attorney or
attorneys-in-fact or any of them or their substitutes or
resubstitutes, may lawfully do or cause to be done by virtue
of this Section 7. The grant of this power of attorney shall
not be affected by any disability of the undersigned New
Participating Stockholder. If applicable law requires
additional or substituted language in order to validate the
power of attorney intended to be granted by this Section 7,
the New Participating Stockholder
-7-
<PAGE> 8
agrees to execute and deliver such additional instruments and
to take such further acts as may be necessary to validate
such power of attorney.
8. COUNTERPARTS. This Amendment may be executed in multiple
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument, without production of the others.
IN WITNESS WHEREOF, the New Participating Stockholder, the
Participating Stockholders, the Corporation and the Depository have executed
this Amendment or caused this Amendment to be executed in their respective
names, all as of the date and year first above written.
RANKIN MANAGEMENT, INC.,
a Georgia corporation
/S/ CHARLES A. BITTENBENDER By: /S/ ALFRED M. RANKIN, JR.
- --------------------------------- --------------------------------
Witness
SUZANNE SCHULZE TAYLOR
- ---------------------------------
Witness
/S/ CHARLES A. BITTENBENDER And: /S/ CLAIBORNE R. RANKIN
- --------------------------------- --------------------------------
Witness
SUZANNE SCHULZE TAYLOR
- ---------------------------------
Witness Address: c/o Alfred M. Rankin, Jr.
5875 Landerbrook Drive, Suite 300
Mayfield Heights, OH 44124-4107
Number of Shares of
Class B Common Stock
--------------------
-8-
<PAGE> 9
Exhibit A
---------
Revised 11/22/96
PARTICIPATING STOCKHOLDERS
--------------------------
1. Clara T. Rankin
2. Alfred M. Rankin, Jr.
3. Victoire G. Rankin
4. Helen P. Rankin
5. Clara T. Rankin
6. Thomas T. Rankin
7. Matthew M. Rankin
8. James T. Rankin
9. Claiborne R. Rankin
10. Chloe 0. Rankin
11. Julia L. Rankin
12. Chloe E. Rankin
13. Claiborne R. Rankin, Jr.
14. Roger F. Rankin
15. Bruce T. Rankin
16. Frank E. Taplin
17. Margaret E. Taplin
18. Elizabeth E. Brown
-1-
<PAGE> 10
2
19. Martha S. Kelly
20. Susan S. Panalla
21. Jennifer T. Jerome
22. Caroline T. Ruschell
23. David F. Taplin
24. Thomas E. Taplin
25. Beatrice B. Taplin
26. Thomas E. Taplin, Jr.
27. Theodore D. Taplin
28. Britton T. Taplin
29. Frank F. Taplin
30. Rankin Management, Inc.
31. CTR Family Associates, L.P.
32. The Trust created under the Agreement, dated December 18, 1963, among
National City Bank, as trustee, Clara T. Rankin, Thomas E. Taplin and
Frank E. Taplin, for the benefit of Elizabeth E. Brown.
33. The Trust created under the Agreement, dated September 24, 1958, as
supplemented and amended, between National City Bank, as trustee, and
Edith F. Taplin, for the benefit of grandchildren.
34. The Trust created under the Agreement, dated December 15, 1976, between
National City Bank, as trustee, and Frank E. Taplin, for the benefit of
grandchildren.
35. The Trust created under the Agreement, dated December 28, 1976, between
National City Bank, as trustee, and Thomas E. Taplin, for the benefit
of Theodore D. Taplin.
-2-
<PAGE> 11
3
36. The Trust created under the Agreement, dated December 28, 1976, between
National City Bank, as trustee, and Thomas E. Taplin, for the benefit
of Thomas E. Taplin, Jr.
37. The Trust created under the Agreement, dated December 28, 1976, between
National City Bank, as trustee, and Thomas E. Taplin, for the benefit
of Britton T. Taplin.
38. The Trust created under the Agreement, dated December 28, 1976, between
National City Bank, as trustee, and Thomas E. Taplin, for the benefit
of Frank F. Taplin.
39. The Trust created under the Agreement, dated December 28, 1976, between
National City Bank, as trustee, and Clara T. Rankin, for the benefit of
grandchildren.
40. The Trust created under the Agreement, dated January 11, 1965, as
supplemented, amended and restated, between National City Bank, as
trustee, and Alfred M. Rankin, for the benefit of Alfred M. Rankin.
41. The Trust created under the Agreement, dated July 12, 1967, as
supplemented, amended and restated, between National City Bank, as
trustee, and Clara T. Rankin, for the benefit of Clara T. Rankin.
42. The Trust created under the Agreement, dated August 30, 1967, as
supplemented, amended and restated, between National City Bank, as
trustee, and Alfred M. Rankin, Jr., for the benefit of Alfred M.
Rankin, Jr.
43. The Trust created under the Agreement, dated July 1, 1969, as
supplemented, amended and restated, between National City Bank, as
trustee, and Victoire G. Rankin, for the benefit of Victoire G. Rankin.
44. The Trust created under the Agreement, dated December 29, 1967, as
supplemented, amended and restated, between National City Bank, as
trustee, and Thomas T. Rankin, for the benefit of Thomas T. Rankin.
45. The Trust created under the Agreement, dated June 22, 1971, as
supplemented, amended and restated, between National City Bank, as
trustee, and Claiborne R. Rankin, for the benefit of Claiborne R.
Rankin.
46. The Trust created under the Agreement, dated September 11, 1973,
between National City Bank, as trustee, and Roger F. Rankin, for the
benefit of Roger F. Rankin.
47. The Trust created under the Agreement, dated August 12, 1974, between
National City Bank, as trustee, and Bruce T. Rankin, for the benefit of
Bruce T. Rankin.
-3-
<PAGE> 12
4
48. The Trust created under the Agreement, dated December 11, 1957, as
supplemented, amended and restated, between National City Bank, as
trustee, and Frank E. Taplin, for the benefit of Frank E. Taplin.
49. The Trust created under the Agreement, dated January 21, 1966, as
supplemented, amended and restated, between National City Bank, as
trustee, and Thomas E. Taplin, for the benefit of Thomas E. Taplin.
50. The Trust created under the Agreement, dated December 28, 1976, between
National City Bank, as trustee, and Thomas E. Taplin, Jr., for the
benefit of Thomas E. Taplin, Jr.
51. The Trust created under the Agreement, dated October 15, 1975, between
National City Bank, as trustee, and Theodore D. Taplin, for the benefit
of Theodore D. Taplin.
52. The Trust created under the Agreement, dated December 30, 1977, as
supplemented, amended and restated, between National City Bank, as
trustee, and Britton T. Taplin, for the benefit of Britton T. Taplin.
53. The Trust created under the Agreement, dated June 13, 1981, as
supplemented, amended and restated, between National City Bank, as
trustee, and Frank F. Taplin, for the benefit of Frank F. Taplin.
54. The Trust created under the Agreement, dated December 29, 1989, between
Alfred M. Rankin, Jr., as trustee, and Clara T. Rankin for the benefit
of Clara T. Rankin.
55. The Trust created under the Agreement, dated December 29, 1989, between
Alfred M. Rankin, Jr., as trustee, and Helen P. Rankin for the benefit
of Helen P. Rankin.
-4-
<PAGE> 1
EXHIBIT 8
EXHIBIT A
(revised as
of 11/15/96)
AMENDMENT TO STOCKHOLDERS' AGREEMENT
------------------------------------
This AMENDMENT TO STOCKHOLDERS' AGREEMENT, dated as of November 14,
1996 (this "Amendment"), by and among KeyCorp Shareholder Services, Inc.
(successor by merger to Ameritrust Company National Association), as depository
("KeyCorp"), the Participating Stockholders under the Stockholders' Agreement,
dated as of March 15, 1990, as amended, NACCO Industries, Inc. and the new
Participating Stockholder identified on the signature page hereto (the "New
Participating Stockholder").
This Amendment sets forth the terms and conditions on which the New
Participating Stockholder will join in and become a party to the Stockholders'
Agreement, dated as of March 15, 1990, as amended (the "Stockholders'
Agreement"), by and among each of the signatories identified therein, NACCO
Industries, Inc., a Delaware corporation (the "Corporation"), and KeyCorp, as
Depository. Capitalized terms defined in the Stockholders' Agreement are used
herein as so defined.
Pursuant to Section 8 of the Stockholders' Agreement, prior to the
acquisition of Class B Common Stock by a Permitted Transferee, the Stockholders'
Agreement may be amended to add a Permitted Transferee as a Participating
Stockholder by a writing signed by the Signatories, the Corporation and such
Permitted Transferee.
In consideration of the mutual promises hereinafter set forth and other
good and valuable consideration had and received, the parties hereto agree as
follows:
<PAGE> 2
1. REPRESENTATIONS AND WARRANTIES. The New Participating
Stockholder, for such New Participating Stockholder only and not for any other
Participating Stockholder, represents and warrants to the other Participating
Stockholders and the Corporation as follows:
(a) Such New Participating Stockholder is the
beneficial owner of, or simultaneously with the execution
hereof will acquire and be deemed to be the beneficial owner
of, the shares of Class B Common Stock identified below such
New Participating Stockholder's name on the signature pages
hereto (except as otherwise described thereon), and except as
otherwise described thereon such New Participating Stockholder
does not own of record or beneficially or have any interest in
any other shares of Class B Common Stock or any options to
purchase or rights to subscribe or otherwise acquire any other
shares of Class B Common Stock other than pursuant to the
Stockholders' Agreement;
(b) Such New Participating Stockholder has the right,
power and authority to execute and deliver this Amendment and
to perform such New Participating Stockholder's obligations
hereunder and under the Stockholders' Agreement; if this
Amendment is being executed by a trustee on behalf of a trust,
such trustee has full right, power and authority to enter into
this Amendment on behalf of the trust and to bind the trust
and its beneficiaries to the terms hereof; if this Amendment
is being executed on behalf of a Participating Stockholder
Organization, the person executing this Amendment is a duly
authorized representative of such Participating Stockholder
-2-
<PAGE> 3
Organization with full right, power and authority to execute
and deliver this Amendment on behalf of such Participating
Stockholder Organization and to bind such Participating
Stockholder Organization to the terms hereof; the execution,
delivery and performance of this Amendment by such New
Participating Stockholder will not constitute a violation of,
conflict with or result in a default under (i) any contract,
understanding or arrangement to which such New Participating
Stockholder is a party or by which such New Participating
Stockholder is bound or require the consent of any other
person or any party pursuant thereto; (ii) any organizational,
charter or other governance documents (including, without
limitation, any partnership agreement, certificate of
incorporation, or bylaws) of the New Participating
Stockholder, (iii) any judgment, decree or order applicable to
such New Participating Stockholder; or (iv) any law, rule or
regulation of any governmental body;
(c) This Amendment and the Stockholders' Agreement
constitute legal, valid and binding agreements on the part of
such New Participating Stockholder; the shares of Class B
Common Stock owned beneficially by such New Participating
Stockholder are fully paid and nonassessable; and
(d) The shares of Class B Common Stock owned
beneficially by such New Participating Stockholder are now
held by such New Participating Stockholder, free and clear of
all adverse claims, liens, encumbrances and security interests
(except as created by the Stockholders' Agreement and any
Amendments thereto, including this Amendment, and the Restated
Certificate).
-3-
<PAGE> 4
2. ADDRESS FOR NOTICES. The address for all notices to the New
Participating Stockholder provided pursuant to the Stockholders' Agreement shall
be the address set forth below such New Participating Stockholder's name on the
signature pages hereto, or to such other address as such New Participating
Stockholder may specify to the Depository.
3. AGREEMENT TO BE BOUND BY STOCKHOLDERS' AGREEMENT. The New
Participating Stockholder agrees to be bound by all of the terms and provisions
of the Stockholders' Agreement applicable to Participating Stockholders.
4. BENEFICIARIES. The New Participating Stockholder
acknowledges that the Corporation and each Participating Stockholder is a
beneficiary of this Amendment.
5. AMENDMENT OF STOCKHOLDERS' AGREEMENT. The Stockholders'
Agreement is hereby amended to add the New Participating Stockholder as a
Participating Stockholder.
6. SIGNATURE OF AMENDMENT BY TRUSTS, MINORS AND INCOMPETENTS.
(a) In order for a trust exclusively (as defined in
Section 1.9 of the Stockholders' Agreement) for the benefit
of a Family Member or Members to be considered a
Participating Stockholder:
(i) the trustee and all adult beneficiaries
of such trusts having a current trust interest (as
well as all Charitable Organization beneficiaries
having a current trust interest) shall have
previously signed the Stockholders' Agreement or
shall sign this Amendment as a Participating
Stockholder;
(ii) the trustee and a parent or legal
guardian, for trusts with minor beneficiaries having
a current trust interest, shall sign this Amendment
on behalf of any such minor beneficiaries; or
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<PAGE> 5
(iii) the trustee and legal guardian, if
any, for trusts with incompetent beneficiaries having
a current trust interest, shall sign this Amendment
on behalf of any such incompetent beneficiaries.
(b) If, at any time, any trust shall have an adult
beneficiary (and such beneficiary is not incompetent) having
a current trust interest or an ascertainable Charitable
Organization beneficiary having a current trust interest and
if such beneficiary has not previously signed the
Stockholders' Agreement, then if such beneficiary shall fail
or be unable to sign this Amendment for a period of 30
calendar days following notification to such beneficiary of
the terms of this Amendment and the Stockholders' Agreement
by the Depository and following signature of this Amendment
by the trustee, the trust shall thereupon cease to be a
Participating Stockholder and Section 3.2 of the
Stockholders' Agreement shall then apply as if the shares of
Class B Common Stock held by the trust were then to be
converted. The donor of a trust that is revocable by the
donor alone, during the lifetime of such donor, shall be
considered the only beneficiary thereof so long as such
trust is so revocable.
(c) In the case of Class B Common Stock held by a
custodian under the Uniform Transfers to Minors Act (or the
practical equivalent thereof) for the benefit of a minor
Family Member, the custodian shall sign this Amendment on
behalf of such minor if such minor is to be considered a
Participating Stockholder.
(d) In the case of Class B Common Stock held in the
name of a minor Family Member, a parent or legal guardian of
such minor shall sign this
-5-
<PAGE> 6
Amendment on behalf of such minor if such minor is to be
considered a Participating Stockholder.
(e) In the case of Class B Common Stock held in the
name of an incompetent Family Member, the legal guardian of
such incompetent shall sign this Amendment on behalf of such
incompetent if such incompetent is to be considered a
Participating Stockholder.
(f) When a minor described in Section 6(c) or (d)
reaches the age of majority, or an incompetent described in
Section 6(e) is no longer impaired by such disability and has
reached the age of majority, such Family Member shall execute
and deliver an Amendment which has been executed and delivered
by the Participating Stockholders (or their attorney-in-fact),
the Corporation and the Depository. If such Family Member
shall fail or be unable to sign such Amendment for a period of
30 calendar days following notification to such Family Member
of the terms of the Stockholders' Agreement by the Depository,
such Family Member shall thereupon cease to be a Participating
Stockholder and Section 3.2 of the Stockholders' Agreement
shall then apply as if the shares of Class B Common Stock were
then to be converted.
7. POWER OF ATTORNEY. The undersigned New Participating
Stockholder hereby constitutes and appoints Frank E. Taplin, Jr., Thomas E.
Taplin, Alfred M. Rankin, Jr., Dennis W. LaBarre, Michael G. Marting, Charles A.
Bittenbender, Suzanne Schulze Taylor, and each of them as the true and lawful
attorney or attorneys-in-fact, with full power of substitution and
resubstitution, for the undersigned and in the name, place and stead of the
undersigned, in any capacities to:
-6-
<PAGE> 7
(a) Execute any and all statements under Section 13
or Section 16 of the Securities Exchange Act of 1934, as
amended, of beneficial ownership of Shares of Class B Common
Stock subject to the Stockholders' Agreement as amended by
this Amendment, including all statements on Schedule 13D and
all amendments thereto, all joint filing agreements pursuant
to Rule 13d-l(f)(iii) under such Act in connection with such
statements, all initial statements of beneficial ownership on
Form 3 and any and all other documents to be filed with the
Securities and Exchange Commission, and to file the same, with
all exhibits thereto, and all other documents in connection
therewith, with the Securities and Exchange Commission, and
(b) Execute and deliver any and all Amendments
whereby a Family Member or a Charitable Organization or a
Participating Stockholder Organization becomes a Participating
Stockholder, granting to said attorney or attorneys-in-fact,
and each of them, full power and authority to do so and to
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 the undersigned might or could do in person,
hereby ratifying and confirming all that said attorney or
attorneys-in-fact or any of them or their substitutes or
resubstitutes, may lawfully do or cause to be done by virtue
of this Section 7. The grant of this power of attorney shall
not be affected by any disability of the undersigned New
Participating Stockholder. If applicable law requires
additional or substituted language in order to validate the
power of attorney intended to be granted by this Section 7,
the New Participating Stockholder
-7-
<PAGE> 8
agrees to execute and deliver such additional instruments
and to take such further acts as may be necessary to
validate such power of attorney.
8. COUNTERPARTS. This Amendment may be executed in multiple
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument, without production of the others.
IN WITNESS WHEREOF, the New Participating Stockholder, the
Participating Stockholders, the Corporation and the Depository have executed
this Amendment or caused this Amendment to be executed in their respective
names, all as of the date and year first above written.
CTR FAMILY ASSOCIATES, L.P.
By: RANKIN MANAGEMENT, INC.,
its Managing Partner
/s/ Charles A. Bittenbender By: /s/ Alfred M. Rankin, Jr.
- --------------------------- ---------------------------
Witness
/s/ Suzanne Schulze Taylor
- --------------------------
Witness
/s/ Charles A. Bittenbender And: /s/ Claiborne R. Rankin
- --------------------------- ---------------------------
Witness
/s/ Suzanne Schulze Taylor Date: November 14, 1996
- --------------------------- Address: c/o Alfred M. Rankin, Jr.
Witness 5875 Landerbrook Drive, Suite 300
Mayfield Heights, OH 44124-4107
Number of Shares of
CLASS B COMMON STOCK
--------------------
-8-
<PAGE> 9
EXHIBIT A
---------
Revised 11/22/96
PARTICIPATING STOCKHOLDERS
--------------------------
1. Clara T. Rankin
2. Alfred M. Rankin, Jr.
3. Victoire G. Rankin
4. Helen P. Rankin
5. Clara T. Rankin
6. Thomas T. Rankin
7. Matthew M. Rankin
8. James T. Rankin
9. Claiborne R. Rankin
10. Chloe 0. Rankin
11. Julia L. Rankin
12. Chloe E. Rankin
13. Claiborne R. Rankin, Jr.
14. Roger F. Rankin
15. Bruce T. Rankin
16. Frank E. Taplin
17. Margaret E. Taplin
18. Elizabeth E. Brown
19. Martha S. Kelly
20. Susan S. Panalla
21. Jennifer T. Jerome
22. Caroline T. Ruschell
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2
23. David F. Taplin
24. Thomas E. Taplin
25. Beatrice B. Taplin
26. Thomas E. Taplin, Jr.
27. Theodore D. Taplin
28. Britton T. Taplin
29. Frank F. Taplin
30. Rankin Management, Inc.
31. CTR Family Associates, L.P.
32. The Trust created under the Agreement, dated December 18, 1963, among
National City Bank, as trustee, Clara T. Rankin, Thomas E. Taplin and
Frank E. Taplin, for the benefit of Elizabeth E. Brown.
33. The Trust created under the Agreement, dated September 24, 1958, as
supplemented and amended, between National City Bank, as trustee, and
Edith F. Taplin, for the benefit of grandchildren.
34. The Trust created under the Agreement, dated December 15, 1976,
between National City Bank, as trustee, and Frank E. Taplin, for the
benefit of grandchildren.
35. The Trust created under the Agreement, dated December 28, 1976,
between National City Bank, as trustee, and Thomas E. Taplin, for the
benefit of Theodore D. Taplin.
36. The Trust created under the Agreement, dated December 28, 1976,
between National City Bank, as trustee, and Thomas E. Taplin, for the
benefit of Thomas E. Taplin, Jr.
37. The Trust created under the Agreement, dated December 28, 1976,
between National City Bank, as trustee, and Thomas E. Taplin, for the
benefit of Britton T. Taplin.
38. The Trust created under the Agreement, dated December 28, 1976,
between National City Bank, as trustee, and Thomas E. Taplin, for the
benefit of Frank F. Taplin.
39. The Trust created under the Agreement, dated December 28, 1976,
between National City Bank, as trustee, and Clara T. Rankin, for the
benefit of grandchildren.
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3
40. The Trust created under the Agreement, dated January 11, 1965, as
supplemented, amended and restated, between National City Bank, as
trustee, and Alfred M. Rankin, for the benefit of Alfred M. Rankin.
41. The Trust created under the Agreement, dated July 12, 1967, as
supplemented, amended and restated, between National City Bank, as
trustee, and Clara T. Rankin, for the benefit of Clara T. Rankin.
42. The Trust created under the Agreement, dated August 30, 1967, as
supplemented, amended and restated, between National City Bank, as
trustee, and Alfred M. Rankin, Jr., for the benefit of Alfred M.
Rankin, Jr.
43. The Trust created under the Agreement, dated July 1, 1969, as
supplemented, amended and restated, between National City Bank, as
trustee, and Victoire G. Rankin, for the benefit of Victoire G.
Rankin.
44. The Trust created under the Agreement, dated December 29, 1967, as
supplemented, amended and restated, between National City Bank, as
trustee, and Thomas T. Rankin, for the benefit of Thomas T. Rankin.
45. The Trust created under the Agreement, dated June 22, 1971, as
supplemented, amended and restated, between National City Bank, as
trustee, and Claiborne R. Rankin, for the benefit of Claiborne R.
Rankin.
46. The Trust created under the Agreement, dated September 11, 1973,
between National City Bank, as trustee, and Roger F. Rankin, for the
benefit of Roger F. Rankin.
47. The Trust created under the Agreement, dated August 12, 1974, between
National City Bank, as trustee, and Bruce T. Rankin, for the benefit
of Bruce T. Rankin.
48. The Trust created under the Agreement, dated December 11, 1957, as
supplemented, amended and restated, between National City Bank, as
trustee, and Frank E. Taplin, for the benefit of Frank E. Taplin.
49. The Trust created under the Agreement, dated January 21, 1966, as
supplemented, amended and restated, between National City Bank, as
trustee, and Thomas E. Taplin, for the benefit of Thomas E. Taplin.
50. The Trust created under the Agreement, dated December 28, 1976,
between National City Bank, as trustee, and Thomas E. Taplin, Jr., for
the benefit of Thomas E. Taplin, Jr.
51. The Trust created under the Agreement, dated October 15, 1975, between
National City Bank, as trustee, and Theodore D. Taplin, for the
benefit of Theodore D. Taplin.
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4
52. The Trust created under the Agreement, dated December 30, 1977, as
supplemented, amended and restated, between National City Bank, as
trustee, and Britton T. Taplin, for the benefit of Britton T. Taplin.
53. The Trust created under the Agreement, dated June 13, 1981, as
supplemented, amended and restated, between National City Bank, as
trustee, and Frank F. Taplin, for the benefit of Frank F. Taplin.
54. The Trust created under the Agreement, dated December 29, 1989,
between Alfred M. Rankin, Jr., as trustee, and Clara T. Rankin for the
benefit of Clara T. Rankin.
55. The Trust created under the Agreement, dated December 29, 1989,
between Alfred M. Rankin, Jr., as trustee, and Helen P. Rankin for the
benefit of Helen P. Rankin.
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