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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
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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
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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
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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 "Xxxxxxx X. Xxxxxxx" the
following text: "Xxxxxxx X. Xxxxxxxxxxxx, Xxxxxxx Xxxxxxx
Xxxxxx".
(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.
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{SIGNATURE PAGE FOR AMENDMENT TO STOCKHOLDERS' AGREEMENT DATED NOVEMBER __,
1996}
NACCO INDUSTRIES, INC.
By: /s/ Xxxxx X. X'Xxxxx
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Witness
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Witness
And: /s/ Xxxxxxx X. Xxxxxxxxxxxx
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Witness
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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 Xxxxx X.
X'Xxxxx and Xxxxxxx X. Xxxxxxxxxxxx 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 Xxxxxxxx Heights, Ohio, this _____ day of November, 1996.
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[Notarial Seal] Notary Public
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EXHIBIT A
(revised as
of 11/15/96)
AMENDMENT TO STOCKHOLDERS' AGREEMENT
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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,
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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
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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
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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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(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
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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 Xxxxx X. Xxxxxx, Xx., Xxxxxx X.
Xxxxxx, Xxxxxx X. Xxxxxx, Xx., Xxxxxx X. XxXxxxx, Xxxxxxx X. Xxxxxxx, Xxxxxxx X.
Xxxxxxxxxxxx, Xxxxxxx Xxxxxxx Xxxxxx, 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:
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(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
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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.
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Witnes
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Witness Date:
---------------------- -----------------------------
Address:
Number of Shares of
Class B Common Stock
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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__.
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[Notarial Seal] Notary Public
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, as Depository
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Cleveland, Ohio
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By:
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Witness
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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__.
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[Notarial Seal] Notary Public
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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__.
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[Notarial Seal] Notary Public
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THE PARTICIPATING STOCKHOLDERS listed
in Exhibit A attached hereto and incorporated
herein by this reference
By
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Witness Xxxxxx X. Xxxxxx, Xx.
Attorney-in-Fact
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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 Xxxxxx X. Xxxxxx, Xx., 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__.
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[Notarial Seal] Notary Public
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Exhibit A
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PARTICIPATING STOCKHOLDERS
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