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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:
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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
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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).
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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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(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.
CTR FAMILY ASSOCIATES, L.P.
By: XXXXXX MANAGEMENT, INC.,
its Managing Partner
/s/ Xxxxxxx X. Xxxxxxxxxxxx By: /s/ Xxxxxx X. Xxxxxx, Xx.
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Witness
/s/ Xxxxxxx Xxxxxxx Xxxxxx
--------------------------
Witness
/s/ Xxxxxxx X. Xxxxxxxxxxxx And: /s/ Claiborne X. Xxxxxx
--------------------------- ---------------------------
Witness
/s/ Xxxxxxx Xxxxxxx Xxxxxx Date: November 14, 1996
--------------------------- Address: c/o Xxxxxx X. Xxxxxx, Xx.
Witness 0000 Xxxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000-0000
Number of Shares of
CLASS B COMMON STOCK
--------------------
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EXHIBIT A
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Revised 11/22/96
PARTICIPATING STOCKHOLDERS
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1. Xxxxx X. Xxxxxx
2. Xxxxxx X. Xxxxxx, Xx.
3. Victoire X. Xxxxxx
4. Xxxxx X. Xxxxxx
5. Xxxxx X. Xxxxxx
6. Xxxxxx X. Xxxxxx
7. Xxxxxxx X. Xxxxxx
8. Xxxxx X. Xxxxxx
9. Claiborne X. Xxxxxx
10. Chloe 0. Xxxxxx
11. Xxxxx X. Xxxxxx
12. 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
19. Xxxxxx X. Xxxxx
20. Xxxxx X. Xxxxxxx
00. Xxxxxxxx X. Xxxxxx
22. Xxxxxxxx X. Xxxxxxxx
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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. 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 September 24, 1958, as
supplemented and amended, between National City Bank, as trustee, and
Xxxxx X. Xxxxxx, for the benefit of grandchildren.
34. 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.
35. The Trust created under the Agreement, dated December 28, 1976,
between National City Bank, as trustee, and Xxxxxx X. Xxxxxx, for the
benefit of Xxxxxxxx X. Xxxxxx.
36. The Trust created under the Agreement, dated December 28, 1976,
between National City Bank, as trustee, and Xxxxxx X. Xxxxxx, for the
benefit of Xxxxxx X. Xxxxxx, Xx.
37. The Trust created under the Agreement, dated December 28, 1976,
between National City Bank, as trustee, and Xxxxxx X. Xxxxxx, for the
benefit of Xxxxxxx X. Xxxxxx.
38. The Trust created under the Agreement, dated December 28, 1976,
between National City Bank, as trustee, and Xxxxxx X. Xxxxxx, for the
benefit of Xxxxx X. Xxxxxx.
39. The Trust created under the Agreement, dated December 28, 1976,
between National City Bank, as trustee, and Xxxxx X. Xxxxxx, for the
benefit of grandchildren.
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40. 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.
41. The Trust created under the Agreement, dated July 12, 1967, as
supplemented, amended and restated, between National City Bank, as
trustee, and Xxxxx X. Xxxxxx, for the benefit of Xxxxx X. Xxxxxx.
42. The Trust created under the Agreement, dated August 30, 1967, as
supplemented, amended and restated, between National City Bank, as
trustee, and Xxxxxx X. Xxxxxx, Xx., for the benefit of Xxxxxx X.
Xxxxxx, Xx.
43. The Trust created under the Agreement, dated July 1, 1969, as
supplemented, amended and restated, between National City Bank, as
trustee, and Victoire X. Xxxxxx, for the benefit of Victoire X.
Xxxxxx.
44. The Trust created under the Agreement, dated December 29, 1967, 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 June 22, 1971, as
supplemented, amended and restated, between National City Bank, as
trustee, and Claiborne X. Xxxxxx, for the benefit of Claiborne X.
Xxxxxx.
46. The Trust created under the Agreement, dated September 11, 1973,
between National City Bank, as trustee, and Xxxxx X. Xxxxxx, for the
benefit of Xxxxx X. Xxxxxx.
47. The Trust created under the Agreement, dated August 12, 1974, between
National City Bank, as trustee, and Xxxxx X. Xxxxxx, for the benefit
of Xxxxx X. Xxxxxx.
48. 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.
49. 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.
50. The Trust created under the Agreement, dated December 28, 1976,
between National City Bank, as trustee, and Xxxxxx X. Xxxxxx, Xx., for
the benefit of Xxxxxx X. Xxxxxx, Xx.
51. 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.
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52. 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.
53. The Trust created under the Agreement, dated June 13, 1981, as
supplemented, amended and restated, between National City Bank, as
trustee, and Xxxxx X. Xxxxxx, for the benefit of Xxxxx X. Xxxxxx.
54. The Trust created under the Agreement, dated December 29, 1989,
between Xxxxxx X. Xxxxxx, Xx., as trustee, and Xxxxx X. Xxxxxx for the
benefit of Xxxxx X. Xxxxxx.
55. The Trust created under the Agreement, dated December 29, 1989,
between Xxxxxx X. Xxxxxx, Xx., as trustee, and Xxxxx X. Xxxxxx for the
benefit of Xxxxx X. Xxxxxx.
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