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Exhibit 11
EXCHANGE AGREEMENT
THIS EXCHANGE AGREEMENT ("Agreement"), dated as of November 26, 1996,
by and between National City Bank as Trustee for the Trust created under the
Agreement dated December 15, 1976 for the benefit of the grandchildren of Xxxxx
X. Xxxxxx (the "Xxxxxx Trust"), and National City Bank, Trustee under the
Agreement, dated July 12, 1967, as supplemented, amended and restated, with
Xxxxx X. Xxxxxx, creating a trust for the benefit of such individual (the
"Xxxxxx Trust").
W I T N E S S E T H:
WHEREAS, the Xxxxxx Trust is the beneficial owner of 30,000 shares (the
"Class B Shares") of Class B Common Stock, par value $1.00 per share ("Class B
Common"), of NACCO Industries, Inc., a Delaware corporation ("NACCO"); and
WHEREAS, the Xxxxxx Trust is the beneficial owner of 30,000 shares (the
"Class A Shares") of Class A Common Stock, par value $1.00 per share, of NACCO;
and
WHEREAS, the Class B Shares are subject to restrictions on transfer
pursuant to NACCO's Certificate of Incorporation and that certain Stockholders'
Agreement ("Stockholders' Agreement"), dated as of March 15, 1990, between
NACCO, Key Bank as depository ("Depository") and certain holders of Class B
Common; and
WHEREAS, the Xxxxxx Trust wishes to exchange the Class B Shares for the
Class A Shares owned by the Xxxxxx Trust; and
WHEREAS, the Xxxxxx Trust wishes to exchange the Class A Shares for the
Class B Shares owned by the Xxxxxx Trust;
NOW, THEREFORE, in consideration of the mutual promises hereinafter set
forth and other good and valuable consideration had and received, the parties
hereto, upon the terms set forth herein, hereby agree as follows:
1. EXCHANGE. Upon the terms set forth herein, the Xxxxxx Trust
hereby conveys the Class B Shares to the Xxxxxx Trust, and the Xxxxxx
Trust hereby conveys the Class A Shares to the Xxxxxx Trust, in each
case, free of any adverse claim, other than the restrictions on
transfer on the Class B Shares referenced in Section 3. The Xxxxxx
Trust hereby delivers to the Xxxxxx Trust certificates representing the
Class B Shares which are duly endorsed, or accompanied by stock powers
duly endorsed, by the Xxxxxx Trust for transfer, or other evidence of
transfer, together with such documentation as the Xxxxxx Trust or the
Depository may require to confirm that the transfer is permitted by
Section 2.1 of the Stockholders' Agreement. The Xxxxxx Trust hereby
delivers to the Xxxxxx Trust certificates representing the Class A
Shares which are duly endorsed, or accompanied by stock powers duly
endorsed, by the Xxxxxx Trust for transfer, or other evidence of
transfer, together with such documentation as the Xxxxxx Trust may
require.
2. CONSIDERATION. The value of the Class A Shares shall be
deemed to be equal to the value of the Class B Shares. Accordingly, the
exchange of the Class A Shares for the Class B Shares, together with
the representations of the parties hereunder, shall constitute full and
adequate consideration for the transactions contemplated hereby.
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3. REPRESENTATIONS BY THE XXXXXX TRUST. The Xxxxxx Trust
represents to the Xxxxxx Trust that (a) the Xxxxxx Trust has good,
valid and marketable title to the Class B Shares, free and clear of all
adverse claims, except for the restrictions on transfer set forth in
NACCO's Certificate of Incorporation and in the Stockholders'
Agreement, and (b) the Xxxxxx Trust has full power and authority to
executed and deliver this Agreement and to consummate the transactions
contemplated hereby. The foregoing representations shall survive
indefinitely. The Xxxxxx Trust hereby indemnifies and agrees to hold
the Xxxxxx Trust harmless from and against any and all liabilities
resulting from or arising out of any breach of the foregoing
representations.
4. REPRESENTATIONS BY THE XXXXXX TRUST. The Xxxxxx Trust
represents to the Xxxxxx Trust that (a) the Xxxxxx Trust has good,
valid and marketable title to the Class A Shares, free and clear of all
adverse claims, and (b) the Xxxxxx Trust has full power and authority
to executed and deliver this Agreement and to consummate the
transactions contemplated hereby. The foregoing representations shall
survive indefinitely. The Xxxxxx Trust hereby indemnifies and agrees to
hold the Xxxxxx Trust harmless from and against any and all liabilities
resulting from or arising out of any breach of the foregoing
representations.
IN WITNESS WHEREOF, the Xxxxxx Trust and the Xxxxxx Trust have duly
executed this Agreement as of the date first above written.
"The Xxxxxx Trust"
NATIONAL CITY BANK, TRUSTEE FOR THE
TRUST CREATED UNDER THE AGREEMENT
DATED DECEMBER 15, 1976 FOR THE BENEFIT OF
THE GRANDCHILDREN OF XXXXX X. XXXXXX
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
Vice President Trust Administration
"The Xxxxxx Trust"
NATIONAL CITY BANK, TRUSTEE UNDER THE
AGREEMENT, DATED JULY 12, 1967, AS
SUPPLEMENTED, AMENDED AND RESTATED
WITH XXXXX X. XXXXXX, CREATING A TRUST
FOR THE BENEFIT OF SUCH INDIVIDUAL
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
Vice President Trust Administration
