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EXHIBIT 24
AMENDMENT TO STOCKHOLDERS' AGREEMENT
This AMENDMENT TO STOCKHOLDERS' AGREEMENT is dated as of October 31, 2000
(this "Amendment"), by and among National City Bank, (Cleveland, Ohio), as
depository ("NCB"), the Participating Stockholders under the Stockholders'
Agreement, dated as of March 15, 1990, as amended, and NACCO Industries, Inc., a
Delaware corporation (the "Corporation").
This Amendment sets forth the terms and conditions on which NCB 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, such agreement may be
amended by a writing signed by the signatories thereto and the Corporation and
because such amendment proposes to modify the duties and obligations of the
Depository, this Agreement must be signed by such Depository.
In consideration of the mutual promises hereinafter set forth and other
good and valuable consideration had and received, the parties hereto agree that
Exhibit B to the Stockholders' Agreement is hereby amended and restated as
follows:
1. AMENDMENT TO STOCKHOLDERS AGREEMENT TO NAME NEW DEPOSITORY. (a) Pursuant
to Section 8 of the Stockholders' Agreement, the parties hereto agree that from
and after the date hereof all references to Depository in the Stockholders'
Agreement shall be to NCB.
(b) Pursuant to Section 8 of the Stockholders' Agreement, the parties
hereto agree to amend Exhibit B to the Stockholders' Agreement. As amended and
restated, Exhibit B shall read in its entirety as follows:
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EXHIBIT B
TERMS AND CONDITIONS
SECTION 1. National City Bank, (Cleveland, Ohio) ("NCB") shall xxxx
the appropriate legend on the face or the back of each certificate
representing shares of Class B Common Stock ("Certificate") delivered
hereunder in accordance with Section 7.1 of the Stockholders' Agreement.
SECTION 2. (a) In the event that NCB receives written notification,
pursuant to the terms of the Stockholders' Agreement, which states that
shares of Class B Common Stock are to be converted or are to be transferred
otherwise than as provided under Section 2.1 of the Stockholders'
Agreement, then NCB shall take such action as is required by the
Stockholders' Agreement and otherwise is in accordance with written
instructions executed by the parties to the Stockholders' Agreement who are
transferring, converting or acquiring the shares of Class B Common Stock
represented by such Certificates.
(b) In the event that such written notification states that shares of
Class B Common Stock are to be transferred by a Participating Stockholder
as provided under Section 2.1 of the Stockholders' Agreement, then NCB
shall take such action as is required by the Stockholders' Agreement and
otherwise is in accordance with the written instructions of the
Participating Stockholder making such transfer and may, as a condition to
taking any such action, require the furnishing of affidavits, or other
proof as it deems necessary to establish that such transfer is permitted by
such Section 2.1.
SECTION 3. DUTIES AND ADVERSE CLAIMS. The duties and obligations of
NCB shall be determined solely by the express provisions of the
Stockholders' Agreement, including this EXHIBIT B. In the event of any
disagreement or the presentation of any adverse claim or demand in
connection with rights and duties of NCB, NCB shall, at its option, be
entitled to refuse to comply with any such claims or demands during the
continuance of such disagreements and in so doing, NCB shall not become
liable to any party to the Stockholders' Agreement or to any other person
due to its failure to comply with such adverse claim or demand. NCB shall
be entitled to continue, without liability, to refrain and refuse to act:
(a) Until authorized to act by a court order from a court having
jurisdiction over the parties and the property, after which
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time NCB shall be entitled to act in conformity with such adjudication; or
(b) Until all differences shall have been adjusted by agreement and
NCB shall have been notified thereof and shall have been directed in
writing, signed jointly or in counterpart by all persons making adverse
claims or demands, at which time NCB shall be protected in acting in
compliance therewith.
SECTION 4. NCB'S LIABILITY LIMITED. NCB shall not be liable to anyone
whatsoever by reason of any error of judgment or for any act done or step
taken or omitted by it in good faith or for any mistake of fact or law or
for anything which it may do or refrain from doing in connection herewith
unless caused by or arising out of its own gross negligence or willful
misconduct. The parties to the Stockholders' Agreement represent to NCB
that they have and shall continue to solicit the advice of their respective
counsel regarding compliance with all applicable state and federal
securities laws in connection with the transactions contemplated by the
Stockholders' Agreement and that they will act in accordance with such
advice. NCB shall have no responsibility to ensure compliance with any such
securities laws, and such responsibility rests solely with the parties to
the Stockholders' Agreement.
SECTION 5. RELIANCE BY NCB ON DOCUMENTS, ETC. NCB shall be entitled to
rely and shall be protected in acting in reliance upon any instructions or
directions furnished to it in writing pursuant to any provisions of the
Stockholders' Agreement and shall be entitled to treat as genuine, and as
the document it purports to be, any letter, paper or other document
furnished to it and believed by it to be genuine and to have been signed
and presented by the proper party or parties.
SECTION 6. INDEMNIFICATION AND LEGAL COUNSEL FOR NCB. The parties to
the Stockholders' Agreement hereby agree to indemnify NCB and save it
harmless from and against all losses, damages, costs, charges, payments,
liabilities and expenses, including the costs of litigation, investigation
and reasonable legal fees incurred by NCB and arising directly or
indirectly out of its role as Depository pursuant to the Stockholders'
Agreement, including such losses, damages, costs, charges, payments, and
suits made or asserted, whether groundless or otherwise, against NCB unless
the same arise out of the willful misconduct or gross negligence of NCB.
The parties to the Stockholders' Agreement agree that NCB does not assume
any responsibility for the failure of any of the parties to make payments
or perform the conditions of the Stockholders' Agreement, nor shall NCB be
responsible for the collection of any monies provided to be paid to it. NCB
may
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consult with counsel of its own choice (including inside counsel for NCB)
and shall have full and complete authorization and protection for any
action taken or suffered by it hereunder in good faith and in accordance
with the opinion of such counsel. The provisions of this Section 6 shall
survive termination of the arrangement contemplated hereby.
SECTION 7. COMPENSATION. The parties to the Stockholders' Agreement
agree to pay NCB reasonable compensation for the services to be rendered
hereunder and will pay or reimburse NCB upon request for all expenses,
disbursements and advances, including reasonable attorneys' fees, incurred
or made by it in connection with carrying out its duties hereunder.
SECTION 8. RESIGNATION AND DISMISSAL. NCB shall have the right to
resign, and Participating Stockholders owning 66-2/3 percent of the shares
of Class B Common Stock subject to the Stockholders' Agreement shall have
the right to dismiss NCB, in each case upon giving thirty (30) days written
notice by mailing said written notice thereof to the proper party or
parties; PROVIDED, HOWEVER, that no such resignation or dismissal shall
become effective until a successor has been duly appointed to act as
Depository by amendment to the Stockholders' Agreement and such successor
has agreed so to act.
2. GENERAL. As amended hereby, the Stockholders' Agreement is and shall
remain in full force and effect in accordance with its terms and conditions.
3. 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 Participating Stockholders, the Corporation and NCB
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. National City
Bank, (Cleveland, Ohio)
By:/s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Vice President
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NACCO INDUSTRIES, INC.
By:/s/ Xxxxxx X. Xxxxxx, Xx.
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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.
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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. Xxxxxx (by Xxxxxxxxx X. Xxxxxx as custodian)
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 (by Xxxxxx X. Xxxxxx III, Attorney-in-fact)
19. Xxxxxx X. Xxxxx
20. Xxxxx Xxxxxx (fka Xxxxx X. Xxxxxxx)
21. Xxxxxxxx X. Xxxxxx
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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. The Trust created under the Agreement, dated July 12, 1967, as
supplemented, amended and restated, between National City Bank, as
trustee, and Xxxxx X.X. Xxxxxx, for the benefit of Xxxxx X.X. Xxxxxx.
37. 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. The Trust created under the Agreement, 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.
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39. 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.
40. 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.
41. 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.
42. 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 December 28, 1976, 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 July 20, 2000, between
Xxxxxx X. Xxxxxx, Xx., as trustee, and Xxxxx X. Xxxxxx for the benefit
of Xxxxx X. Xxxxxx.
49. 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.
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)
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54. Xxxxxx X. Xxxxxx, as trustee fbo Xxxx Xxxxxx under Irrevocable Trust
No. 1, dated December 18, 1997 with Xxxxx Xxxxxx as Grantor.
55. Xxxxxx X. Xxxxxx, as trustee fbo Xxxxxxxxx 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 of the Trust Agreement, dated September
11, 2000, for the benefit of X. Xxxxxxx Xxxxxx.
64. Xxxxxx X. Xxxxxx, as Trustee of the Trust Agreement, 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.
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