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Exhibit 5
STOCKHOLDERS' AGREEMENT
dated as of
March 15, 1990
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STOCKHOLDERS' AGREEMENT
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TABLE OF CONTENTS
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Page
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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
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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:
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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.
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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
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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 Xxxxx Xxxxxx
Xxxxxx, Xxxxx X. Xxxxxx and Xxxxxx X. Xxxxxx, their spouses,
their lineal descendants by blood or by legal adoption prior to
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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 Xxxxxxxxx X. Xxxxx under the Trust Agreement, dated
December 18, 1963 by and between Xxxxx X. Xxxxxx, Xxxxxx X. Xxxxxx, Xxxxx X.
Xxxxxx 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:
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(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
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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
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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.
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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
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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.
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3. Transfers for Which First Refusal Procedure is Required.
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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
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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
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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.
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4. First Refusal Procedures.
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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
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(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
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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
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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
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(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
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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
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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.
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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
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(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;
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(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.
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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.
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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,
Xxxxx X. Xxxxxx, Xxxxx X. Xxxxxx, Xxxxxx X. Xxxxxx 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
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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.
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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
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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
Xxxxx X. Xxxxxx 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,
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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
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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
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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 Xxxxxx X. Xxxxxx, Xx.
11. Power of Attorney.
------------------
Each of the undersigned Participating Stockholders
hereby constitutes and appoints Xxxxxx X. Xxxxxx, Xxxxx X.
Xxxxxx, Xxxxxx X. Xxxxxx, Xxxxxx X. Xxxxxx, Xx., Xxxxxx X.
XxXxxxx, Xxxxxxx X. Xxxxxxx 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
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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
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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/ Xxxxx X. Xxxxxxxx /s/ Xxxxxx X. Xxxxxx
---------------------------- ----------------------------
Witness Xxxxxx X. Xxxxxx
/s/ Xxxx X. Xxxxxxxxx Date: March 1, 1990
---------------------------- ---------------------------------
Witness
Address: Xxxxx Xxxx
Xxxxxxx Xxxxx, Xxxx 00000
No. of Shares of Class B
Common Stock Certificate No.
--------------------------- ---------------
