Exhibit 4.23
AMENDMENT TO STOCKHOLDERS' AGREEMENT
This AMENDMENT TO STOCKHOLDERS' AGREEMENT, dated as of December 28, 2004
(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 each new
Participating Stockholder identified on the signature pages hereto (each, a "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
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
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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 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.
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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
(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
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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 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
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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, 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
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(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 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 Stockholders, 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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Xxxxx Xxxxxxx Xxxxxxxx
Xxxxxxxx 2004 Trust, dated
December 10, 2004, between
Xxxxx X.X. Xxxxxxxx, as
trustee, and Xxxxx Xxxxxx
Xxxxxxxx, creating a trust for
the benefit of Xxxxx Xxxxxxx
Xxxxxxxx Xxxxxxxx
/s/ Xxxxx. X.X. Xxxxxxxx
---------------------------
Name: Xxxxx X.X. Xxxxxxxx
Title: Trustee
Address: 0000 X. Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Number of Shares of
Class B Common Stock
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Xxxxx Xxxxxxx Xxxxxxxx 2004 Trust,
dated December 10, 2004, between
Xxxxx X.X. Xxxxxxxx, as trustee,
and Xxxxx Xxxxxx Xxxxxxxx,
creating a trust for the benefit
of Xxxxx Xxxxxxx Xxxxxxxx
/s/ Xxxxx X.X. Xxxxxxxx
--------------------------------
Name: Xxxxx X.X. Xxxxxxxx
Title: Trustee
Address: 0000 X. Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Number of Shares of
Class B Common Stock
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/s/ Xxxxx X.X. Xxxxxxxx
---------------------------------
Xxxxx Xxxxxxx Xxxxxxxx
(by Xxxxx X.X. Xxxxxxxx as parent
of Xxxxx Xxxxxxx Xxxxxxxx)
Address: 0000 X. Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Number of Shares of
Class B Common Stock
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/s/ Xxxxx X. Xxxxxx
---------------------------------
Xxxxx X. Xxxxxx
Address:
Number of Shares of
Class B Common Stock
Trust created by the Agreement,
dated December 21, 2004, between
Claiborne X. Xxxxxx, as trustee,
and Xxxxx X. Xxxxxx, creating a
trust for the benefit of Xxxxx X.
Xxxxxx
By: /s/ Claiborne X. Xxxxxx
-----------------------------
Name: Claiborne X. Xxxxxx
Title: Trustee
Address:
Number of Shares of
Class B Common Stock
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/s/ Xxxxxx Xxxxxx Xxxxxx
---------------------------------
Xxxxxx Xxxxxx Xxxxxx
Address:
Number of Shares of
Class B Common Stock
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/s/ Xxxxx Xxxxxxxx
---------------------------------
Xxxxxx Xxxxxxxxx Xxxxxxxx
(by Xxxxx Xxxxxxxx as Custodian
under the Ohio Transfers to
Minors Act)
Address:
Number of Shares of
Class B Common Stock
Trust created by the Agreement,
dated December 21, 2004, between
Xxxxx X. Xxxxxxxx, as trustee, and
Claiborne X. Xxxxxx, creating a
trust for the benefit of Xxxxxx
Xxxxxxxxx Xxxxxxxx
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Trustee
Address:
Number of Shares of
Class B Common Stock
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National City Bank,
(Cleveland, Ohio)
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
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NACCO INDUSTRIES, INC.
By: /s/ Xxxxxx X. Xxxxxx, Xx.
----------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Title: President and Chief
Executive Officer
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THE PARTICIPATING STOCKHOLDERS
listed in Exhibit A attached
hereto and incorporated herein by
this reference
By: /s/ Xxxxxx X. Xxxxxx, Xx.
-----------------------------
Xxxxxx X. Xxxxxx, Xx.,
Attorney-in-Fact
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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. Xxxxxxxx (fka Xxxxx X. Xxxxxx)
12. Claiborne X. Xxxxxx, Xx.
13. Xxxxx X. Xxxxxx
14. Xxxxx X. Xxxxxx
15. Xxxxx X. Xxxxxx
16. Xxxxxxxx X. Xxxxxx
17. Xxxxxxxxx X. Xxxxx (by Xxxxxx X. Xxxxxx III, Attorney-in-fact)
18. Xxxxxx X. Xxxxx
19. Xxxxx Xxxxxx (fka Xxxxx X. Xxxxxxx)
20. Xxxxxxxx X. Xxxxxx
21. Xxxxxxxx X. Xxxxxxxx
22. Xxxxx X. Xxxxxx
23. Xxxxxx X. Xxxxxx
24. Xxxxxxxx X. Xxxxxx
00. Xxxxxx X. Xxxxxx, Xx.
00. Xxxxxxxx X. Xxxxxx
27. Xxxxxxx X. Xxxxxx
28. Xxxxx X. Xxxxxx
29. Xxxxxx Management, Inc.
30. Xxxxxx Associates I, L.P. (fka CTR Family Associates, L.P.)
31. 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.
32. 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.
33. 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.
34. 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.
35. 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. Xxxxxx, for the benefit of Xxxxx X. Xxxxxx.
36. 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.
37. 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.
38. The Trust created under the Agreement, dated December 29, 1967, as
supplemented, amended and restated, between Xxxxxx X. Xxxxxx, as
trustee, and Xxxxxx X. Xxxxxx, creating a trust for the benefit of
Xxxxxx X. Xxxxxx.
39. The Trust created under the Agreement, dated June 22, 1971, as
supplemented, amended and restated, between Claiborne X. Xxxxxx, as
trustee, and Claiborne X. Xxxxxx, creating a trust for the benefit of
Claiborne X. Xxxxxx.
40. The Trust created under the Agreement, dated September 11, 1973, as
supplemented, amended and restated, between Xxxxx X. Xxxxxx, as
trustee, and Xxxxx X. Xxxxxx, creating a trust for the benefit of Xxxxx
X. Xxxxxx.
41. 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.
42. 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.
43. 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.
44. 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.
45. 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.
46. 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.
47. 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.
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) Xxxxxx for the benefit of Xxxxx X.
(Xxxxxx) Xxxxxx.
49. Xxxxxx Xxxxxx
50. Xxxxxx X. Xxxxxx
51. National City Bank as agent under the Agreement, dated July 16, 1969,
with Xxxxxxxx X. Xxxxxx.
52. Xxxxxx X. Xxxxxx, as trustee fbo X. Xxxxxxx Xxxxxx under Irrevocable
Trust No. 1, dated December 18, 1997, with Xxxxx Xxxxxx, Grantor.
53. Xxxxxx X. Xxxxxx, as trustee fbo Xxxxxxxxx X. Xxxxxx under Irrevocable
Trust No. 1, dated December 18, 1997, with Xxxxx Xxxxxx, Grantor.
54. Xxxxxx Associates II, L.P.
55. Xxxx X. Xxxxxx, Xx.
56. Xxxxx Xxxxxx Xxxxxx (by Xxxx X. Xxxxxx, Xx. as custodian)
57. 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.
58. Xxxxx X. Xxxxxxxx
59. Xxxxxxx X. Xxxxxx (by Xxxx X. Xxxxxx, Xx. as Custodian)
60. Claiborne X. Xxxxxx as Trustee of the Claiborne X. Xxxxxx, Xx.
Revocable Trust dated August 25, 2000.
61. Xxxxxx X. Xxxxxx as Trustee under Irrevocable Trust No. 2, dated
September 11, 2000, for the benefit of X. Xxxxxxx Xxxxxx.
62. Xxxxxx X. Xxxxxx as Trustee under Irrevocable Trust No. 2, dated
September 11, 2000, for the benefit of Xxxxxxxxx X. Xxxxxx.
63. Xxxxxx X. Xxxxxx as Trustee of the Xxxxxx X. Xxxxxx Revocable Trust,
dated September 11, 2000.
64. The Trust created under the Agreement, dated December 20, 1993, between
Xxxxxx X. Xxxxxx, as co-trustee, Xxxxxxx X. Xxxxxx, as co-trustee, and
Xxxxxxx X. Xxxxxx, for the benefit of Xxxxxxx X. Xxxxxx.
65. Xxxxx Xxxxxxxx
66. Xxxxx Xxxxxxx Xxxxxxxx Xxxxxxxx (by Xxxxx Xxxxxx Xxxxxxxx as Custodian)
67. Trust created under the Agreement, dated June 1, 1995, between Xxxxx X.
Xxxxxx, as Trustee, and Xxxxx X. Xxxxxx, for the benefit of Xxxxx X.
Xxxxxx
68. Xxxxx X. Xxxxxx'x Qualified Annuity Interest Trust 2004 A
69. Xxxxx X. Xxxxxx'x Qualified Annuity Interest Trust 2004 B
70. Trust created by the Agreement, dated June 17, 1999, between Xxxx X.
Xxxxxx, Xx., as trustee, and Xxxx X. Xxxxxx, Xx., creating a trust for
the benefit of Xxxx X. Xxxxxx, Xx.
71. Xxxxx Xxxxxx Xxxxxx 2002 Trust, dated November 5, 2002
72. Xxxxxxx Xxxxxxx Xxxxxx 2002 Trust, dated November 5, 2002
73. Xxxxxxxxx X. Xxxxxx
