[Exhibit 4]
EXECUTION COPY
AMENDMENT TO STOCKHOLDERS' AGREEMENT
------------------------------------
This AMENDMENT TO STOCKHOLDERS' AGREEMENT, dated as of March 27, 2002
(this "Amendment"), by and among National City Bank, (Cleveland, Ohio), as
depository ("Depository"), the Participating Stockholders under the
Stockholders' Agreement, dated as of March 15, 1990, as amended, NACCO
Industries, Inc., a Delaware corporation (the "Corporation"), 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"). 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, 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
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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 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
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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 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.
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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
(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
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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 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,
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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 Xxxxx X. Xxxxxx, Xxxxxx X. Xxxxxx, Xxxxxx X.
Xxxxxx, Xx., Xxxxxx X. XxXxxxx, Xxxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxxxxxxxx, 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 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 Exchange 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 becomes a
Participating Stockholder or any other Amendment that does not
require approval of 66-2/3 percent of the shares of Class B
Common Stock subject to the Stockholders' Agreement pursuant
to Section 8 of the Stockholders' Agreement, including,
without limitation, a change in the depository, thereby
granting to said attorney or attorneys-in-fact, and each
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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 or formalities (including
witnesses or acknowledgments) in order to validate the power
of attorney intended to be granted by this Section 7, the New
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.
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.
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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.
Main Trust of Xxxxxx X. Xxxxxx created
by the Agreement dated December 29, 1967,
as supplemented, amended and restated
/s/ Xxxxxx X. Xxxxxx
----------------------------------------------------
By: Xxxxxx X. Xxxxxx, Trustee
Business Address: 0000 Xxxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx Xxxxxxx, Xxxx 00000-0000
Number of Shares of
Class B Common Stock
--------------------
Main Trust of Claiborne X. Xxxxxx created by the
Agreement dated June 22, 1971, as supplemented,
amended and restated
/s/ Claiborne X. Xxxxxx
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By: Claiborne X. Xxxxxx, Trustee
Business Address: 0000 Xxxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx Xxxxxxx, Xxxx 00000-0000
Number of Shares of
Class B Common Stock
--------------------
Main Trust Agreement of Xxxxx X. Xxxxxx created
by the Agreement dated September 11, 1973, as
supplemented, amended and restated
/s/ Xxxxx X. Xxxxxx
------------------------------------------------
By: Xxxxx X. Xxxxxx, Trustee
Business Address: 0000 Xxxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx Xxxxxxx, Xxxx 00000-0000
Number of Shares of
Class B Common Stock
--------------------
National City Bank, (Cleveland, Ohio)
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Vice President
NACCO INDUSTRIES, INC.
By: /s/ Xxxxxx X. Xxxxxx, Xx.
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Name: Xxxxxx X. Xxxxxx, Xx.
Title: President and Chief Executive Officer
THE PARTICIPATING STOCKHOLDERS listed in
Exhibit A attached hereto and incorporated herein by
this reference
By: /s/ Xxxxxx X. Xxxxxx, Xx.
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Xxxxxx X. Xxxxxx, Xx., Attorney-in-Fact
EXHIBIT A
PARTICIPATING STOCKHOLDERS
--------------------------
1. Xxxxx X. X. Xxxxxx
2. Xxxxxx X. Xxxxxx, Xx.
3. Xxxxxxxx X. Xxxxxx
4. Xxxxx Xxxxxx Xxxxxx (fka Xxxxx X. Xxxxxx)
5. Xxxxx X. Xxxxxx Xxxxxxxx (fka Xxxxx X. Xxxxxx)
6. Xxxxxx X. Xxxxxx
7. Xxxxxxx X. Xxxxxx
8. Xxxxx X. Xxxxxx
9. Claiborne X. Xxxxxx
10. Xxxxx X. Xxxxxx
11. Xxxxx X. Xxxxxx (by Xxxxxxxxx X. Xxxxxx as custodian)
12. Xxxxx X. Xxxxxxxx (fka Xxxxx X. Xxxxxx)
13. Claiborne X. Xxxxxx, Xx.
14. Xxxxx X. Xxxxxx
15. Xxxxx X. Xxxxxx
16. Xxxxx X. Xxxxxx
17. Xxxxxxxx X. Xxxxxx
18. Xxxxxxxxx X. Xxxxx (by Xxxxxx X. Xxxxxx III, Attorney-in-fact)
19. Xxxxxx X. Xxxxx
20. Xxxxx Xxxxxx (fka Xxxxx X. Xxxxxxx)
21. Xxxxxxxx X. Xxxxxx
22. Xxxxxxxx X. Xxxxxxxx
23. Xxxxx X. Xxxxxx
24. Xxxxxx X. Xxxxxx
25. Xxxxxxxx X. Xxxxxx
00. Xxxxxx X. Xxxxxx, Xx.
00. Xxxxxxxx X. Xxxxxx
28. Xxxxxxx X. Xxxxxx
29. Xxxxx X. Xxxxxx
30. Xxxxxx Management, Inc.
31. Xxxxxx Associates I, L.P. (fka CTR Family Associates, L.P.)
32. The Trust created under the Agreement, dated December 18, 1963, among
National City Bank, as trustee, Xxxxx X. Xxxxxx, Xxxxxx X. Xxxxxx and
Xxxxx X. Xxxxxx, for the benefit of Xxxxxxxxx X. Xxxxx.
33. The Trust created under the Agreement, dated December 15, 1976, between
National City Bank, as trustee, and Xxxxx X. Xxxxxx, for the benefit of
grandchildren.
34. The Trust created under the Agreement, dated December 28, 1976, between
National City Bank, as trustee, and Xxxxx X.X. Xxxxxx, for the benefit
of grandchildren.
35. The Trust created under the Agreement, dated January 11, 1965, as
supplemented, amended and restated, between National City Bank, as
trustee, and Xxxxxx X. Xxxxxx, for the benefit of Xxxxxx X. Xxxxxx.
36. Main Trust of Xxxxx X. Xxxxxx created by the Agreement dated July 20,
2000, as supplemented, amended and restated (a/k/a The Trust created
under the Agreement, dated July 20, 2000 as supplemented, amended and
restated between Xxxxxx X. Xxxxxx, Xx., as trustee, and Xxxxx X.X.
Xxxxxx, for the benefit of Xxxxx X.X. Xxxxxx.)
37. Main Trust of Xxxxxx X. Xxxxxx, Xx. created by the Agreement dated
September 28, 2000, as supplemented, amended and restated (a/k/a The
Trust created under the Agreement, dated September 28, 2000, as
supplemented, amended and restated, between Xxxxxx X. Xxxxxx, Xx., as
trustee, and Xxxxxx X. Xxxxxx, Xx., for the benefit of Xxxxxx X.
Xxxxxx, Xx.)
38. Main Trust of Victoire X. Xxxxxx created by the Agreement dated
September 28, 2000, as supplemented, amended and restated (a/k/a The
Trust created under the Agreement, dated September 28, 2000, as
supplemented, amended and restated, between Victoire X. Xxxxxx, as
trustee, and Victoire X. Xxxxxx, for the benefit of Victoire X.
Xxxxxx.)
39. Main Trust of Xxxxxx X. Xxxxxx created by the Agreement dated December
29, 1967, as supplemented, amended and restated.
40. Main Trust of Claiborne X. Xxxxxx created by the Agreement dated June
22, 1971, as supplemented, amended and restated.
41. Main Trust Agreement of Xxxxx X. Xxxxxx created by the Agreement dated
September 11, 1973, as supplemented, amended and restated.
42. Main Trust of Xxxxx X. Xxxxxx created under the Agreement dated
September 28, 2000, as supplemented, amended and restated (a/k/a The
Trust created under the Agreement, dated September 28, 2000, between
Xxxxxx X. Xxxxxx, Xx., as trustee, and Xxxxx X. Xxxxxx, for the benefit
of Xxxxx X. Xxxxxx.)
43. The Trust created under the Agreement, dated December 11, 1957, as
supplemented, amended and restated, between National City Bank, as
trustee, and Xxxxx X. Xxxxxx, for the benefit of Xxxxx X. Xxxxxx.
44. The Trust created under the Agreement, dated January 21, 1966, as
supplemented, amended and restated, between National City Bank, as
trustee, and Xxxxxx X. Xxxxxx, for the benefit of Xxxxxx X. Xxxxxx.
45. The Trust created under the Agreement, dated August 26, 1974, between
National City Bank, as trustee, and Xxxxxx X. Xxxxxx, Xx., for the
benefit of Xxxxxx X. Xxxxxx, Xx.
46. The Trust created under the Agreement, dated October 15, 1975, between
National City Bank, as trustee, and Xxxxxxxx X. Xxxxxx, for the benefit
of Xxxxxxxx X. Xxxxxx.
47. The Trust created under the Agreement, dated December 30, 1977, as
supplemented, amended and restated, between National City Bank, as
trustee, and Xxxxxxx X. Xxxxxx for the benefit of Xxxxxxx X. Xxxxxx.
48. The Trust created under the Agreement, dated December 29, 1989 as
supplemented, amended and restated, between Xxxxxx X. Xxxxxx, Xx., as
trustee, and Xxxxx X. (Xxxxxx) Xxxxxxxx for the benefit of Xxxxx X.
(Xxxxxx) Xxxxxxxx.
49. The Trust created under the Agreement, dated December 29, 1989, between
Xxxxxx X. Xxxxxx, Xx., as trustee, and Xxxxx X. (Xxxxxx) Xxxxxx for the
benefit of Xxxxx X. (Xxxxxx) Xxxxxx.
50. Xxxxxx Xxxxxx
51. Xxxxxx X. Xxxxxx
52. National City Bank as agent under the Agreement, dated July 16, 1969,
with Xxxxxxxx X. Xxxxxx.
53. Xxxxxx Xxxxxx Xxxxxx (by Xxxxxx X. Xxxxxx as custodian)
54. Xxxxxx X. Xxxxxx, as trustee fbo X. Xxxxxxx Xxxxxx under Irrevocable
Trust No. 1, dated December 18, 1997 with Xxxxx Xxxxxx as Grantor.
55. Xxxxxx X. Xxxxxx, as trustee fbo Xxxxxxxxx X. Xxxxxx under Irrevocable
Trust No. 1, dated December 18, 1997 with Xxxxx Xxxxxx as Grantor.
56. Xxxxxx Associates II, L.P.
57. Xxxx X. Xxxxxx, Xx.
58. Xxxxx Xxxxxx Xxxxxx (by Xxxx X. Xxxxxx, Xx. as custodian)
59. The Trust created under the Agreement, dated July 24, 1998, as amended,
between Xxxxx X. Xxxxxx, as trustee, and Xxxxx X. Xxxxxx, for the
benefit of Xxxxx X. Xxxxxx.
60. Xxxxx X. Xxxxxxxx
61. Xxxxxxx X. Xxxxxx (by Xxxx X. Xxxxxx, Xx. as Custodian)
62. Claiborne X. Xxxxxx as Trustee of the Claiborne X. Xxxxxx, Xx.
Revocable Trust dated August 25, 2000.
63. Xxxxxx X. Xxxxxx, as Trustee under Irrevocable Trust No. 2, dated
September 11, 2000, for the benefit of X. Xxxxxxx Xxxxxx.
64. Xxxxxx X. Xxxxxx, as Trustee under Irrevocable Trust No. 2, dated
September 11, 2000, for the benefit of Xxxxxxxxx X. Xxxxxx.
65. Xxxxxx X. Xxxxxx, as Trustee of the Xxxxxx X. Xxxxxx Revocable Trust,
dated September 11, 2000.
66. The Trust created under the Agreement, dated December 20, 1993, between
Xxxxxxx X. Xxxxxx, as trustee, and Xxxxxxx X. Xxxxxx, for the benefit
of Xxxxxxx X. Xxxxxx.
67. Xxxxx Xxxxxxxx
68. Xxxxxx (Xxxxxx) Xxxxxx (by Xxxxxx X. Xxxxxx as Custodian)
69. Xxxxx Xxxxxxx Xxxxxxxx Xxxxxxxx (by Xxxxx Xxxxxx Xxxxxxxx as Custodian)
