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Exhibit 2
SHAREHOLDERS' AGREEMENT
of
XXXXXX MANAGEMENT, INC.
Dated as of November 14, 1996
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TABLE OF CONTENTS
PAGE
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1. Definitions................................................................................... 1
1.1 "Act"................................................................................ 1
1.2 "Agreement".......................................................................... 1
1.3 "Board of Directors"................................................................. 2
1.4 "Authorized Transferee".............................................................. 2
1.5 "Call Notice"........................................................................ 2
1.6 "Call Option"........................................................................ 2
1.7 "Charitable Organization"............................................................ 2
1.8 "Code"............................................................................... 2
1.9 "Company"............................................................................ 2
1.10 "Election"........................................................................... 2
1.11 "Fair Market Value".................................................................. 2
1.12 "Family Group"....................................................................... 2
1.13 "Family Member"...................................................................... 2
1.14 "Family Shareholder"................................................................. 3
1.15 "Final Valuation".................................................................... 3
1.16 "First Appraised Value".............................................................. 3
1.17 "Independent Appraiser"..................................................... 3
1.18 "Initial Appraiser".................................................................. 3
1.19 "Initial Value"...................................................................... 3
1.20 "NACCO".............................................................................. 3
1.21 "NACCO Class A Shares"............................................................... 3
1.22 "NACCO Class B Shares"............................................................... 3
1.23 "NACCO Stockholders' Agreement"...................................................... 3
1.24 "NACCO Restated Certificate"......................................................... 3
1.25 "Objecting Party"........................................................... 3
1.26 "Original Shareholder"............................................................... 3
1.27 "Offered Shares"..................................................................... 4
1.28 "Option Shares"...................................................................... 4
1.29 "Original Holders"................................................................... 4
1.30 "Outside Shareholder"................................................................ 4
1.31 "Outstanding Remaining Shares"....................................................... 4
1.32 "Permitted Transferee"............................................................... 4
1.33 "Person"............................................................................. 4
1.34 "Proportionate Part"................................................................. 4
1.35 "Purchase Price"..................................................................... 4
(a) Initial Value............................................................... 4
(b) Appraised Value............................................................. 4
(c) Mutually Agreed Upon Purchase Price......................................... 5
(d) Cooperation with Appraisers................................................. 5
1.36 "Purchase Right"..................................................................... 5
1.37 "Qualified Fiduciary"................................................................ 5
1.38 "Remaining Shares"................................................................... 5
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1.39 "Seller's Notice".................................................................... 5
1.40 "Selling Shareholder"................................................................ 5
1.41 "Shares"............................................................................. 5
1.42 "Shareholder"........................................................................ 5
1.43 "Starting Date"...................................................................... 6
1.44 "Transfer"........................................................................... 6
1.45 "Valuation Notice"................................................................... 6
2. Management of the Company..................................................................... 6
2.2 Composition of Board of Directors.................................................... 6
2.3 Election of Directors................................................................ 6
2.4 Board Deadlock....................................................................... 6
3. Shareholder Relations......................................................................... 7
3.1 Shareholder Approval................................................................. 7
3.2 Access to Business Information....................................................... 7
3.3 Pre-emptive Rights................................................................... 7
4. Restrictions on Transfers of Shares........................................................... 7
4.1 Restriction on Transfers............................................................. 7
4.2 Unrestricted Transfers............................................................... 8
4.3 Purchase Right....................................................................... 8
4.4 Call Options to Purchase Shares...................................................... 8
4.5 Allocation of Offered Shares and Option Shares....................................... 9
(a) Allocation to Original Holders of Offered Shares............................ 10
(b) Allocation among Family Groups.............................................. 10
(c) Allocation to the Company................................................... 11
(d) Allocation of Shares among Family Group Members............................. 11
5. General Restrictions/Covenants on Transfer.................................................... 11
5.1 Securities Law Restrictions.......................................................... 11
5.2 Legends.............................................................................. 12
5.3 Stock Transfer Record................................................................ 12
6. Closing....................................................................................... 13
6.1 Terms of Sale........................................................................ 13
6.2 Closing.............................................................................. 13
6.3 Legal Requirements................................................................... 13
6.4 Removal of Shareholder From Personal Obligation...................................... 13
7. Agreements by the Company..................................................................... 13
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8. Shareholder Covenants......................................................................... 14
8.1 Voting of Shares..................................................................... 14
8.2 No Contrary Action................................................................... 14
8.3 Shareholder Status................................................................... 14
9. Subchapter S Corporation Status............................................................... 14
9.1 Maintenance of Election.............................................................. 14
9.2 Shareholder Actions to Preserve Election............................................. 14
9.3 Revocation of Election............................................................... 15
9.4 Inadvertent Termination of Election.................................................. 15
9.5 Tax Distributions.................................................................... 15
10. Termination................................................................................... 15
10.1 Term................................................................................. 15
10.2 Removal of Legends Upon Termination.................................................. 16
11. Power of Attorney............................................................................. 16
12. Arbitration................................................................................... 16
13. General Provisions............................................................................ 16
13.1 Waivers and Amendments............................................................... 16
13.2 Successors and Assigns............................................................... 17
13.3 Counterparts......................................................................... 17
13.4 Notices.............................................................................. 17
13.5 Entire Agreement..................................................................... 17
13.6 Governing Law........................................................................ 17
13.7 Severability......................................................................... 17
13.8 No Third Party Beneficiaries......................................................... 17
13.9 Specific Performance................................................................. 18
13.10 Titles and Headings.................................................................. 18
13.11 Conflicts............................................................................ 18
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SHAREHOLDERS' AGREEMENT
-----------------------
THIS SHAREHOLDERS' AGREEMENT (this "Agreement"), dated as of
November 14, 1996 is made by and among XXXXXX MANAGEMENT, INC., a Georgia
corporation (the "Company"), and each of the Shareholders.
RECITALS
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A. Each of the Original Shareholders holds 1000 Shares and collectively
with the other Original Shareholders hold all of the issued and
outstanding Shares.
B. The Company has elected, or will elect (the "Election"), to be taxed as
an S corporation pursuant to Section 1362 of the Code and all of the
Original Shareholders have duly consented, or will duly consent, to the
Election.
C. The parties to this Agreement desire to keep the Election in force
until it may be revoked or otherwise terminated pursuant to this
Agreement.
D. The parties to this Agreement desire to ensure that the Company will
make sufficient distributions to pay the individual income taxes
payable by the Shareholders with respect to the income of the Company
during the period that the Election is in effect.
E. The parties to this Agreement desire to ensure that each Family Group
shall continue to own its Proportionate Part of the Shares, as
increased or reduced pursuant to the terms of this Agreement.
F. The parties to this Agreement desire to provide for stability of the
ownership and operation of the Company and to promote continuity in the
Company's management and policies.
AGREEMENTS
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NOW, THEREFORE, in consideration of the foregoing premises and
the mutual covenants hereinafter set forth, and other good and valuable
consideration had and received, the parties to this Agreement agree as follows:
1. DEFINITIONS. The following terms when used in this Agreement shall
have the meanings set forth below:
1.1 "ACT" shall mean the Securities Act of 1933, as amended.
1.2 "AGREEMENT" shall have mean this Agreement as it may be
amended from time to time.
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1.3 "BOARD OF DIRECTORS" means the Board of Directors of the Company.
1.4 "AUTHORIZED TRANSFEREE" with respect to a Shareholder means the
Family Group of such Shareholder, the Original Shareholder of such Family Group,
and any Family Member of such Family Group who (a) is a Permitted Transferee,
(b) is a "Participating Stockholder" under Section 1.12 of the NACCO
Stockholders Agreement, and (c) has executed and delivered to the Company a
counterpart of this Agreement agreeing to be subject to the restrictions and
obligations of a Shareholder hereunder and to hold all Shares then owned or
later acquired by such Family Member in accordance with the terms of this
Agreement.
1.5 "CALL NOTICE" shall have the meaning set forth in
Section 1.44, 4.4(a).
1.6 "CALL OPTION" shall have the meaning set forth in
Section 4.4.
1.7 "CHARITABLE ORGANIZATION" means any organization contributions to
which are deductible for federal income, estate or gift tax purposes. A
Charitable Organization shall be an Outside Shareholder unless prior to the
Transfer of Shares to such Charitable Organization, the Board of Directors has
designated such Charitable Organization as eligible to be considered a Family
Member, in which event a Charitable Organization so designated shall, with
respect to the Shares transferred to it by any Shareholder, be considered a
Family Member of and a member of the Family Group of such Shareholder.
1.8 "CODE" shall mean the Internal Revenue Code of 1986, as amended.
References to specific sections of the Code shall be deemed to include
references to corresponding provisions of any succeeding internal revenue law of
the United States of America.
1.9 "COMPANY" shall mean Xxxxxx Management, Inc., a Georgia
corporation.
1.10 "ELECTION" shall have the meaning set forth in Recital B to this
Agreement.
1.11 "FAIR MARKET VALUE" means the price at which the subject Shares
would change hands between a willing buyer and a willing seller, neither being
under any compulsion to buy or sell and both being reasonably informed of the
relevant factors and in light of the circumstances and prospects surrounding the
business of the Company. A determination of the Fair Market Value of the subject
Shares shall take into consideration appropriate discounts for lack of
marketability and minority interest related to such Shares, but will not take
into consideration the affect of any liquidity provided by the provisions of
Section 4.3.
1.12 "FAMILY GROUP" shall mean an Original Shareholder, and his Family
Members so long as such Original Shareholder or any such Family Members own any
Shares.
1.13 "FAMILY MEMBER" shall mean a spouse or surviving spouse of an
Original Shareholder, any descendant of an Original Shareholder, a spouse or
surviving spouse of any
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such descendant, or any Qualified Fiduciary. Notwithstanding anything to the
contrary contained herein:
(a) the surviving spouse of an Original Shareholder or of a
descendent of an Original Shareholder shall cease to be a Family Member upon the
remarriage of such person to other than an Original Shareholder or descendent of
an Original Shareholder; and
(b) the spouse of an Original Shareholder or of a descendent
of an Original Shareholder shall cease to be a Family Member upon legal
separation, divorce or dissolution of such spouse's marriage to said Original
Shareholder or descendent; and
(c) a Qualified Fiduciary shall cease to be a Family Member
from and after any event or lapse of time which causes such fiduciary to no
longer qualify as a Qualified Fiduciary as defined in Section 1.37.
1.14 "FAMILY SHAREHOLDER" shall mean a Shareholder who is, and only so
long as such Shareholder is, an Original Shareholder or a Family Member.
1.15 "FINAL VALUATION" shall have the meaning set forth in
Section 1.35(b).
1.16 "FIRST APPRAISED VALUE" shall have the meaning set forth in
Section 1.35(b).
1.17 "INDEPENDENT APPRAISER" shall have the meaning set forth in
Section 1.35(b).
1.18 "INITIAL APPRAISER" shall have the meaning set forth in
Section 1.35(b).
1.19 "INITIAL VALUE" shall have the meaning set forth in
Section 1.35(a).
1.20 "NACCO" means NACCO Industries, Inc., a Delaware corporation.
1.21 "NACCO CLASS A SHARES" means shares of Class A Common Stock, par
value $1.00 per share, of NACCO.
1.22 "NACCO CLASS B SHARES" means shares of Class B Common Stock, par
value $1.00 per share, of NACCO.
1.23 "NACCO STOCKHOLDERS' AGREEMENT" means the Stockholders' Agreement
dated as of March 15, 1990 by and among the Participating Stockholders, NACCO
and Ameritrust Company National Association, a national banking association, as
depository, as amended from time to time.
1.24 "NACCO RESTATED CERTIFICATE" means the Restated Certificate of
Incorporation of NACCO, as amended from time to time.
1.25 "OBJECTING PARTY" shall have the meaning set forth in
Section 1.35(a).
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1.26 "ORIGINAL SHAREHOLDER" shall mean each of Xxxxxx X. Xxxxxx, Xx.,
Claiborne X. Xxxxxx, Xxxxx X. Xxxxxx and Xxxxxx X. Xxxxxx.
1.27 "OFFERED SHARES" shall have the meaning set forth in Section
4.3(a).
1.28 "OPTION SHARES" shall have the meaning set forth in Section 4.4.
1.29 "ORIGINAL HOLDERS" shall have the meaning set forth in Section
4.5(a).
1.30 "OUTSIDE SHAREHOLDER" shall mean a Shareholder, other than Xxxxx
X. Xxxxxx, who is not then a member of a Family Group, including, without
limitation, a Shareholder who has ceased to be a Family Member pursuant to the
terms of Sections 1.13(a), 1.13(b) or 1.13(c).
1.31 "OUTSTANDING REMAINING SHARES" shall have the meaning set forth in
Section 4.5(b)(iii).
1.32 "PERMITTED TRANSFEREE" means a "Permitted Transferee" as defined
under Article FOURTH, Section 4 of the NACCO Restated Certificate.
1.33 "PERSON" means any individual, estate, trust, corporation,
partnership, limited liability company, joint venture, unincorporated
organization or other entity, association or organization.
1.34 "PROPORTIONATE PART" means a fraction, the numerator of which is
the number of Shares held by a Family Group and the denominator of which is the
number of Shares held by all Family Groups.
1.35 "PURCHASE PRICE" shall mean the Fair Market Value of the Offered
Shares or Option Shares, as the case may be, determined as follows:
(a) INITIAL VALUE. The Board of Directors shall from time to
time determine a per share value for the Shares (the "Initial Value") based upon
such considerations as the Board of Directors, in its sole discretion,
determines to be relevant to such valuation. If a Selling Shareholder or Outside
Shareholder (for purposes of this Section 1.35, the "Objecting Party") does not
provide written objections to the Company concerning the Initial Value set forth
in the Valuation Notice within 10 days after the date of such Valuation Notice,
the Purchase Price shall be equal to the Initial Value.
(b) APPRAISED VALUE. If an Objecting Party objects in writing
to the Initial Valuation within 10 days after its receipt of the Valuation
Notice, the Objecting Party, within fourteen (14) days from the date of such
written objection, shall engage an appraiser (the "Initial Appraiser") to
determine within 30 days of such appointment the Fair Market Value of the Shares
(the "First Appraised Value"). The cost of the First Appraiser shall be borne by
the Objecting Party. If the First Appraised Value is at least eighty percent
(80%) of the Initial Value, then the Purchase Price shall be the average of the
Initial Value and the First
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Appraised Value. If the First Appraised Value is less than eighty percent (80%)
of the Initial Value, then the Company and the Objecting Party shall, within
fourteen (14) days from the date of the First Appraised Value, mutually agree on
an appraiser (the "Independent Appraiser"). The cost of the Independent
Appraiser shall be borne equally by the Company and the Objecting Party. The
Independent Appraiser shall determine within 14 days after its appointment the
Fair Market Value of the Shares (the "Final Valuation"), but such Final
Valuation shall be not less than the smaller of the Initial Value and the First
Appraised Value nor greater than the larger of the Initial Value and the First
Appraised Value. The Purchase Price shall be equal to the Final Valuation and
shall be final and binding upon the parties to this Agreement for purposes of
the subject transaction.
(c) MUTUALLY AGREED UPON PURCHASE PRICE. Notwithstanding the
procedure set forth above, the Company and an Objecting Party may, prior to or
at any time during the appraisal process, mutually agree on a single independent
appraiser to determine the Purchase Price, which determination shall be binding
on all of the parties, or may agree in writing upon a Purchase Price.
(d) COOPERATION WITH APPRAISERS. The Company shall cooperate
in assisting the appraisers in determining the Purchase Price, including
providing reasonable access to the books and records of the Company and to such
other information as the appraisers reasonably request in connection with such
determination; PROVIDED, HOWEVER, that nothing in this Agreement shall require
the Company to disclose privileged or proprietary information; and PROVIDED
FURTHER, that the Company may require such appraisers to enter into such
confidentiality and non-disclosure agreements as the Company reasonably believes
to be necessary to protect the interests of the Company and its Shareholders.
1.36 "PURCHASE RIGHT" shall have the meaning set forth in Section 4.3.
1.37 "QUALIFIED FIDUCIARY" means (a) the trustee of any trust
(including without limitation a voting trust) if and as long as the trust is
held for the benefit of one or more Permitted Transferees and no other Person,
or (b) the executor, administrator, guardian, personal representative or other
fiduciary of a deceased, incompetent, bankrupt or insolvent Permitted
Transferee; PROVIDED that any such trust must prohibit the transfer of Shares to
any Persons other than (x) the Person or Persons who established the trust, and
(y) Authorized Transferees of the Person or Persons who established such trust.
1.38 "REMAINING SHARES" shall have the meaning set forth in Section
4.5(b).
1.39 "SELLER'S NOTICE" shall have the meaning set forth in Section
4.3(a).
1.40 "SELLING SHAREHOLDER" shall have meaning set forth in Section 4.3.
1.41 "SHARES" means shares of the Common Stock, par value $_____ per
share, of the Company.
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1.42 "SHAREHOLDER" shall mean each Original Shareholder, each
Authorized Transferee who acquires Shares and any other Person who becomes a
party to this Agreement as the result of a Transfer of Shares to such Person.
1.43 "STARTING DATE" means, with respect to any Seller's Notice or Call
Notice, the date of the final determination of the Purchase Price relating to
such notice.
1.44 "TRANSFER" means any sale, assignment, pledge, hypothecation,
encumbrance, disposition, transfer (including, without limitation, a transfer by
will or intestate distribution), gift or attempt to create or grant a security
interest in Shares, whether voluntary, involuntary, by operation of law or
otherwise. Without limiting the rights of the Company and the Family Groups
under Section , the occurrence of an event discussed in Sections 1.13(a),
1.13(b), or 1.13(c), pursuant to which a Family Member ceases to be a Family
Member and is thereafter treated as an Outside Shareholder, shall not
constitute a "Transfer" giving rise to the exercise of Purchase Rights under
Section 4.3.
1.45 "VALUATION NOTICE" shall mean the notice given by the Company
pursuant to Sections 4.3(b)or 1.44, 4.4(a) and stating the Initial Value at
which a Purchase Right or a Call Option is to be exercised.
2. MANAGEMENT OF THE COMPANY.
2.1 COMPANY ACTION. The Company shall only take an action or exercise a
right or authority under this Agreement, the Articles of Incorporation of the
Company or the Bylaws of the Company, or in its capacity as a general or
managing partner of any partnership, with the approval of a majority of the
Directors of the Company.
2.2 COMPOSITION OF BOARD OF DIRECTORS. During the term of this
Agreement, the Board of Directors shall consist of at least one (1) individual
for each Family Group, or such greater number as shall be equally divisible by
the number of Family Groups.
2.3 ELECTION OF DIRECTORS. Each Original Shareholder, and after such
Original Shareholder's death his Family Members acting by the vote of a majority
of the Shares held by such Family Group, shall designate to the Board of
Directors such number of Directors as shall be equal to the quotient of (a) the
total number of Directors, divided by (b) the number of Family Groups. The
Shareholders shall vote their Shares in favor of all individuals designated to
the Board of Directors pursuant to this Section 2.3.
2.4 BOARD DEADLOCK. In the event that the Directors become deadlocked
or otherwise reach an impasse with respect to any aspect of the management or
operation of the Company or the Company's assets, the Directors, by majority
vote of the Directors then serving, shall select an unrelated third party to
resolve the deadlock or other impasse, and the resolution of such unrelated
third party shall be binding on the Directors and all of the Shareholders. To
this end, the Shareholders agree to elect as Directors, as the case may be, only
those individuals who are willing, if required, to implement the terms of this
subparagraph 2.4. If the Directors shall be unable to agree upon such an
unrelated third
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party to resolve a deadlock or impasse, any Director may petition the Common
Pleas Court of Cuyahoga County, Ohio to make such an appointment.
3. SHAREHOLDER RELATIONS.
3.1 SHAREHOLDER APPROVAL. Unless otherwise required by statute, the
affirmative vote of the Shareholders owning a majority of the Shares of each of
the Family Groups shall be required:
(a) to amend the Articles of Incorporation or Bylaws of
the Company;
(b) to amend this Agreement;
(c) for the Company to issue, reacquire or transfer any shares
of Common Stock, except that the Company may acquire Shares as permitted under
this agreement without further approval or action by the Shareholders;
(d) to consolidate or merge the Company; or
(e) to liquidate or sell substantially all of the assets
of the Company.
3.2 ACCESS TO BUSINESS INFORMATION. Each Shareholder shall have the
absolute right, without the necessity of stating any purpose, to examine and
copy during usual business hours all corporate records of the Company. In
addition, each Shareholder shall have the absolute right to discuss the business
activities of the Company with the Company's lawyers and accountants and to
engage (at such Shareholder's own expense) a lawyer or accountant to participate
or represent him in any such discussions.
3.3 PRE-EMPTIVE RIGHTS. The Shareholders shall, upon the offering by
the Company for sale of shares of any class of stock of the Company, have the
right, during a reasonable period of time and on substantially the same terms
that such shares are being offered or sold, to purchase such shares in
proportion to their respective holdings of Shares.
4. RESTRICTIONS ON TRANSFERS OF SHARES
4.1 RESTRICTION ON TRANSFERS. Except as otherwise provided in this
Agreement, no Shareholder shall, either during the Shareholder's lifetime or
upon the Shareholder's death, Transfer any of the Shares now owned or hereafter
acquired by such Shareholder. Without limiting the foregoing, a Shareholder
shall not transfer any of his, her or its Shares to any Person or in any manner
which would cause the Election to be terminated or revoked or which would be
contrary to the provisions of the NACCO Restated Certificate or the NACCO
Stockholders' Agreement. In the event of any purported or attempted Transfer of
Restricted Shares that does not comply with this Agreement, the purported
transferee or successor by operation of law shall not be deemed to be a
shareholder of the Company for any purpose and shall not be entitled to any of
the rights of a shareholder of the Company, including, without limitation, the
right to vote the Shares or to receive a certificate for Shares
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or any dividends or other distributions on or with respect to Shares. Any
purported or attempted transfer of Shares made other than in accordance with the
provisions of this Agreement shall be void AB INITIO and the last holder of
record who acquired such Shares in a manner not contrary to the provisions of
this Agreement shall be recognized as the holder of such Shares for all purposes
and the Shares shall continue to be treated as Shares for all purposes under
this Agreement, shall be deemed owned by such recognized holder for purposes of
the operation of this Agreement and shall continue to be subject to the terms of
this Agreement.
4.2 UNRESTRICTED TRANSFERS. Notwithstanding anything to the contrary
contained herein, each Original Shareholder or Authorized Transferee of such
Original Shareholder shall be entitled to Transfer all or any portion of his,
her or its Shares to any Authorized Transferee of such Original Shareholder,
without need to comply with the other provisions of this Agreement.
4.3 PURCHASE RIGHT. At any time after the date hereof, the Company and
the Family Groups shall have a right of first refusal (the "Purchase Right") to
purchase, pursuant to the terms of this Section 4.3, from any Shareholder (for
purposes of this Section 4.3, a "Selling Shareholder") intending to Transfer,
other than as permitted in Section 4.2 of this Agreement, all or any portion of
his, her or its Shares (including any Shares acquired after the date
hereof).
(a) A Selling Shareholder intending to Transfer all or any
portion of his, her or its Shares shall first deliver to the Company a written
notice (the "Seller's Notice") specifying (i) the number of Shares to be
transferred (the "Offered Shares"); and (ii) the identity of the proposed
transferee.
(b) Within 10 days after the Company's receipt of the Seller's
Notice, the Company shall deliver to the Selling Shareholder a Valuation Notice
setting forth the Initial Value and the Company and the Selling Shareholder
shall commence the process to determine the Purchase Price pursuant to Section
1.35 of this Agreement.
(c) Within 10 days after Starting Date, the Company shall
notify each Family Shareholder (other than the Selling Shareholder) of (i) the
Starting Date; (ii) the number of Offered Shares; and (iii) the Purchase Price.
The Company's notice shall include a copy of the Seller's Notice.
(d) Within 40 days after the Starting Date, each Shareholder
shall notify the Company of how many, if any, of the Offered Shares he or she
elects to purchase.
(e) Within 50 days after the Starting Date, the Company shall
provide written notice to the Selling Shareholder and to each other Shareholder
of (i) the number of Offered Share to be purchased by Family Shareholders and
the allocation of the Offered Shares among the Family Shareholders pursuant to
the terms of Section 4.5 of this Agreement; (ii) the number of Offered Shares
to be purchased by the Company; and (iii) the
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time, date and place of closing which shall be no sooner than 90 days after the
Starting Date and no later than 120 days after the Starting Date.
4.4 CALL OPTIONS TO PURCHASE SHARES. At any time after the date hereof,
the Company and the Family Groups shall have the option (the "Call Option") to
purchase from any Shareholder who is then an Outside Shareholder all, but not
less than all, of the Shares (the "Option Shares") directly or indirectly owned
by such Outside Shareholder, and upon the exercise of a Call Option such Outside
Shareholder shall be obligated to sell to the purchasing Shareholders or the
Company, as the case may be, all (but not less than all) of his, her or its
Option Shares. The Call Option shall be exercised as follows:
(a) Within thirty (30) days after the determination by the
Board of Directors to exercise a Call Option with respect to an Outside
Shareholder, the Company shall provide written notice (the "Call Notice") of
such exercise to the Selling Outside Shareholder of (i) the exercise of the
Option; (ii) the number of Option Shares; and (iii) the Initial Value of the
Option Shares. Thereafter, the Company and the Outside Shareholder shall
determine the Purchase Price in accordance with Section 1.35.
(b) Within ten (10) days after the Starting Date, the Company
shall provide notice of such exercise to each Shareholder who is then a member
of a Family Group (a "Family Shareholder") of (i) the exercise of the Option;
(ii) the number of Option Shares; (iii) the Purchase Price of the Option Shares;
and (iv) the Starting Date.
(c) Within 40 days after the Starting Date, each Family
Shareholder shall notify the Company of how many, if any, of the Option Shares
he, she or it elects to purchase.
(d) Within 50 days after the Starting Date, the Company shall
provide written notice to the selling Outside Shareholder and to each Family
Shareholder of (i) the allocation of the Option Shares among the Family
Shareholders pursuant to the terms of Section 4.5 of this Agreement; (ii) the
number of Option Shares to be purchased by the Company; and (iii) the time,
date and place of closing which shall be no sooner than 90 days after the
Starting Date and no later than 120 days after the Starting Date.
(e) If the Company and the Family Shareholders do not together
elect to purchase all of the Option Shares then the Outside Shareholder shall
not be obligated to sell any of the Option Shares; PROVIDED, HOWEVER, that the
Company and the Family Shareholders shall continue to have the right to exercise
a Call Option with respect to such Option Shares at anytime thereafter.
(f) The Option Shares shall be allocated among the Company and
the Family Groups, and within each Family Group among its members, in the manner
provided in Section 4.5.
4.5 ALLOCATION OF OFFERED SHARES AND OPTION SHARES. Offered Shares and
Option Shares shall be allocated among the Company and the Family Shareholders
pursuant to the
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terms of this Section 4.5. At the Closing, the Company and such Family
Shareholders, as the case may be, shall be obligated to purchase the Offered
Shares or Option Shares so allocated pursuant to the terms and provisions of
this Agreement. Notwithstanding anything to the contrary contained herein, no
Shareholder shall be entitled to receive, or be obligated to purchase, more
Shares than such Shareholder has elected to purchase pursuant to Section 4.3(d)
or 4.4(c), as the case may be. All Offered Shares or Option Shares shall be
allocated as follows:
(a) ALLOCATION TO ORIGINAL HOLDERS OF OFFERED SHARES. The
Shares to be allocated shall first be allocated to the members of the Family
Group (the "Original Holders") in which the Selling Shareholder is a Family
Member who have elected to purchase any portion of such Shares, or if the
Selling Shareholder is an Outside Shareholder, from which the Selling
Shareholder, or his, her or its predecessors in interest, acquired such Shares.
Such Shares shall be allocated in accordance with Section 4.5(d).
(b) ALLOCATION AMONG FAMILY GROUPS. Any Offered Shares or
Option Shares not allocated pursuant to Section 4.5(a) (the "Remaining Shares")
shall be allocated among the Family Groups (other than the Original Holders)
which have Shareholders electing to purchase Offered Shares or Option Shares as
follows:
(i) If a Family Group has collectively
elected to purchase a number of Offered
Shares or Option Shares which is less
than or equal to its Proportionate Part
of the Remaining Shares, then such Family
Group shall be allocated the number of
Shares that its members have elected to
purchase.
(ii) If a Family Group has collectively
elected to purchase a number of Offered
Shares or Option Shares which is greater
than its Proportionate Part of the
Remaining Shares, then such Family Group
shall, in the first instance, be
allocated its Proportionate Part of the
Remaining Shares.
(iii) If additional Remaining Shares remain to
be allocated after the application of
subsections (i) and (ii) above (the
"Outstanding Remaining Shares"), then
each Family Group which has collectively
elected to purchase a number of Offered
Shares or Option Shares which exceeds its
Proportionate Part shall be allocated an
additional number of the Remaining Shares
equal to the lesser of:
(A) The number of Offered Shares
or Option Shares which such
Family Group elected to
purchase but which were not
allocated to it by reason of
subsection (ii) above, or
(B) That portion of the
Outstanding Remaining Shares
represented by a fraction
the numerator of which is
the
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number of Shares held by such Family
Group (prior to such allocation),
and the denominator of which is the
number of Shares held by all Family
Groups which have elected to
purchase a number of Offered Shares
or Option Shares in excess of the
number of those Offered Shares or
Option Shares previously allocated
to them under this Section 4.5.
(iv) Any Shares remaining to be allocated
after the application of subsections (i),
(ii) and (iii) above, shall be allocated
in accordance with the procedures
described in subsection (iii) above until
either (A) all of the Offered Shares or
Option Shares which Family Shareholders,
as the case may be, have elected to
purchase have been allocated, or (B)
there remains only one Family Group which
has not been allocated all of the Shares
it has elected to purchase, in which
event all of the then unallocated Offered
Shares or Option Shares shall be
allocated to such Family Group up to the
amount that such Family Group elected to
purchase.
(c) ALLOCATION TO THE COMPANY. The Company shall purchase any
Offered Shares not allocated to a Family Group. The Company may, but shall not
be obligated to, purchase any Option Shares not allocated to a Family Group.
(d) ALLOCATION OF SHARES AMONG FAMILY GROUP MEMBERS. Offered
Shares or Option Shares allocated to a Family Group pursuant to Sections 4.5(a)
or 4.5(b) shall be allocated among the Family Shareholders of such Family
Group, as follows:
(i) First, to the Original Shareholder of such
Family Group in an amount equal to the
number of Offered Shares or Option Shares
such Original Shareholder elects to
Purchase; and
(ii) Second, to each Shareholder of such Family
Group, other than the Original Shareholder,
electing to purchase Offered Shares or
Option Shares in an amount determined by
multiplying (A) the number of Shares
allocated to such Family Group and not
purchased by the Original Shareholder, by
(B) a fraction, the numerator of which is
the number of Shares subscribed for by such
Shareholder, and the denominator of which is
the aggregate number of Shares subscribed
for by all Shareholders of a Family Group,
other than the Original Shareholder.
5. GENERAL RESTRICTIONS/COVENANTS ON TRANSFERS.
5.1 SECURITIES LAW RESTRICTIONS. Notwithstanding any other provision of
this Agreement, but subject to express written waiver by the Company in the
exercise of its good
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faith and reasonable judgment, no Shareholder shall Transfer any Shares without
the registration of the Transfer of such Shares under the Act or until the
Company shall have received such legal opinions or other assurances that such
Transfer is exempt from the registration requirements under the Act and
applicable state securities laws as the Company in its good faith and reasonable
discretion deems appropriate in light of the facts and circumstances relating to
such proposed Transfer, together with such representations, warranties and
indemnifications from the transferor and the transferee as the Company in its
good faith and reasonable discretion deems appropriate to confirm the accuracy
of the facts and circumstances that are the basis for any such opinion or other
assurances and to protect the Company and the other Shareholders from any
liability resulting from any such Transfer.
5.2 LEGENDS. All certificates representing Shares now or hereafter
owned by the Shareholders shall bear the following legend:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE BEEN ISSUED
AND SOLD WITHOUT REGISTRATION UNDER THE FEDERAL SECURITIES ACT
OF 1933, AS AMENDED ("FEDERAL ACT"), OR THE SECURITIES LAWS OF
ANY STATE, IN RELIANCE UPON CERTAIN EXEMPTIVE PROVISIONS OF
SAID ACTS, INCLUDING PARAGRAPH (13) OF THE CODE SECTION 10-5-9
OF THE GEORGIA SECURITIES ACT OF 1973 (THE "GEORGIA ACT").
NEITHER THIS SECURITY NOR ANY PORTION HEREOF OR INTEREST
HEREIN MAY BE SOLD, ASSIGNED, TRANSFERRED, PLEDGED OR
OTHERWISE DISPOSED OF UNLESS THE SAME IS REGISTERED UNDER SAID
FEDERAL ACT AND APPLICABLE STATE SECURITIES LAWS OR UNLESS AN
EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE AND THE COMPANY
SHALL HAVE RECEIVED, AT THE EXPENSE OF THE HOLDER HEREOF,
EVIDENCE OF SUCH EXEMPTION REASONABLY SATISFACTORY TO THE
COMPANY (WHICH MAY INCLUDE, AMONG OTHER THINGS, AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY).
In addition, all certificates represent Shares now or hereafter owned by the
Original Shareholders shall bear the following legend:
THE SHARES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON TRANSFER CONTAINED IN THAT CERTAIN
SHAREHOLDERS' AGREEMENT DATED AS OF NOVEMBER 14, 1996, AS
AMENDED FROM TIME TO TIME, TO WHICH THE COMPANY AND EACH OF
ITS SHAREHOLDERS IS A PARTY. A COPY OF WHICH IS ON FILE IN THE
PRINCIPAL OFFICE OF THE COMPANY, AND THE PROVISION OF WHICH
ARE INCORPORATED HEREIN BY REFERENCE. A COPY OF SUCH AGREEMENT
WILL BE PROVIDED TO THE HOLDER OF THIS CERTIFICATE UPON
WRITTEN REQUEST DELIVERED TO THE COMPANY.
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All certificates evidencing Shares hereafter issued to a Shareholder for any
reason or purpose shall, when issued, bear similar legends.
5.3 STOCK TRANSFER RECORD. The Company shall maintain a stock transfer
book in which shall be recorded the name and address of each Shareholder. No
Transfer or issuance of any Shares shall be effective or valid unless, and
until, recorded in such stock transfer book. The Company shall not record any
Transfer or issuance of Shares in such stock transfer book unless the Transfer
or issuance is in strict compliance with all of the provisions of this
Agreement.
6. CLOSING.
6.1 TERMS OF SALE. The Purchase Price for all Shares purchased pursuant
to Section 4.3 or Section 4.4 of this Agreement shall be paid at the Closing in
immediately available United States Funds.
6.2 CLOSING.
(a) The closing of the purchase and sale of any Shares
pursuant to this Agreement shall occur at the time, date and place specified by
the Company in its written notice pursuant to Sections 4.3(e)(iii) or
4.4(d)(iii), as the case may be.
(b) At closing, the endorsed certificate or certificates
evidencing the Shares to be sold, together with executed "stock power" transfer
instruments, separate from such certificate(s), shall be respectively delivered
by the seller to each purchaser against payment of such purchasers' portion of
the Purchase Price. Such delivery shall constitute warranties by the seller
thereof that such seller has full authority to deliver such certificate(s) and
that the stock evidenced thereby is free and clear of all liens, encumbrances or
other outstanding interests of any nature, other than those created pursuant to
the terms of this Agreement.
6.3 LEGAL REQUIREMENTS. The purchase and sale of any Shares pursuant to
this Agreement shall be subject to compliance with all applicable state and
federal securities laws, and each Shareholder agrees without additional
consideration to do all necessary things reasonably requested by the Company in
connection therewith, the reasonable expenses of such to be paid by the selling
Shareholder(s).
6.4 REMOVAL OF SHAREHOLDER FROM PERSONAL OBLIGATION. Upon the purchase
of all of Shareholder's Shares by the Company of the Shareholders pursuant to
this Agreement, the Company and the other Shareholders shall put forth their
reasonable efforts to insulate the selling Shareholder from any personal
liability arising from any personal guarantee made by such selling Shareholder
with respect to any obligation of the Company other than one with respect to, or
incurred in connection with, the purchase of Shares. At the settlement of the
purchase of the Selling Shareholder's Shares, the Company and the other
Shareholders shall, to the extent permitted by law, deliver a written document
completely and absolutely indemnifying and holding the Selling Shareholder, or
his, her or its estate, harmless from becoming so liable or from paying money.
However, the foregoing shall not be interpreted
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as obligating the Company or any Shareholder to make any prepayment of
outstanding loans which the Selling Shareholder personally guaranteed.
7. AGREEMENTS BY THE COMPANY. The Company, for and on behalf of itself
and its successors and assigns, agrees that (a) it shall not issue, transfer or
reissue any Shares or other securities of the Company in violation of the
provisions of this Agreement; and (b) all certificates representing Shares shall
bear an endorsement in substantially the form specified in Section 5.2 of this
Agreement.
8. SHAREHOLDER COVENANTS. Each Shareholder covenants to and agrees that:
8.1 VOTING OF SHARES. Each Shareholder shall vote any and all Shares or
other voting securities of the Company which he, she or it owns or has the right
or power to vote to cause the Company to provide the Shareholders with the
rights and benefits contemplated by this Agreement, the Articles and the By-laws
of the Company, and to comply with and perform fully each of its obligations,
commitments, covenants, and agreements contained in this Agreement, the Articles
or the By-laws of the Company, and shall take any and all action as a
shareholder or Director of the Company as may be necessary to cause the Company
to provide such rights and benefits and to comply with such obligations,
commitments, covenants, and agreements.
8.2 NO CONTRARY ACTION. No Shareholder shall take any action as an
officer, Director, or shareholder of the Company which would prevent such
Shareholder or the Company from providing the Shareholders with the rights and
benefits contemplated by this Agreement, the Articles or the By-laws of the
Company or which would otherwise cause such Shareholder or the Company to breach
its obligations, commitments, covenants and agreements contained in this
Agreement, the Articles or the By-laws of the Company.
8.3 SHAREHOLDER STATUS. Each Shareholder shall remain eligible to be a
Shareholder under Section 1361 of the Code and shall not Transfer or sell his,
her or its shares to any third party who would not be eligible to be a
Shareholder under Section 1361 of the Code.
9. SUBCHAPTER S CORPORATION STATUS.
9.1 MAINTENANCE OF ELECTION. Notwithstanding anything to the contrary
contained herein, neither the Company nor any Shareholder shall take any action,
make any Transfer of Shares or fail to take any action which shall result in the
termination of the Election. If any such Transfer, act or failure to act shall
occur, the Company or Shareholder, as the case may be, shall immediately take
such remedial steps as may be necessary to prevent termination of the Election.
In the event that the Election is terminated because of any Shareholder's act or
failure to act, then such Shareholder shall indemnify the Company and the other
Shareholders for any loss or liability incurred on account of such termination,
including, without limitation, any federal and state income taxes directly
attributable to such termination, taking into account all losses, if any, of
past, present, and future tax benefits accruing from such termination.
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9.2 SHAREHOLDER ACTIONS TO PRESERVE ELECTION. Each Shareholder hereby
agrees to execute, at the Company's written request, any and all such documents
as may be necessary to preserve the Election in accordance with state and
federal laws.
9.3 REVOCATION OF ELECTION. Notwithstanding anything to the contrary
contained herein, the Election may be revoked by the unanimous action of the
Board of Directors.
9.4 INADVERTENT TERMINATION OF ELECTION. If the Company's status as an
S corporation is terminated inadvertently and the Company wishes to obtain a
ruling under Section 1362(f) of the Code, each Shareholder agrees to make any
adjustments required pursuant to Section 1362(f)(4) of the Code and approved by
the Company's Board of Directors. A Shareholder's obligation to make such
adjustments shall continue after the Shareholder has ceased to own Shares of the
Company and after this Agreement has terminated.
9.5 TAX DISTRIBUTIONS. As long as the Company is an S corporation, and
subject to any limitations on distributions imposed by governing state law, the
Company shall make pro rata distributions of money, based on ownership of
Shares, to pay the federal and state income taxes on the income (net of any tax
benefits produced for the Shareholders by the Company's losses, deductions, and
credits) that passes through from the Company to the Shareholders under the
applicable provisions of the Code and state law. The total amount required to be
distributed shall be determined by conclusively presuming that all taxable
income passed through to each Shareholder shall be taxed at the maximum federal
rate (without regard to exemptions or phaseouts of lower tax rates) and the
maximum State of Georgia rate at which income of any individual can be taxed in
the calendar year that includes the last day of the Company's taxable year. It
shall further be conclusively presumed that the Shareholder can deduct the State
of Georgia tax for federal income tax purposes, and the calculations shall be
made using the net effective State of Georgia rate. Distributions under this
Section 9.5 shall be made not later than April 15 of each year. To the extent
that the Shareholders shall be required to make estimated tax payments prior to
April 15, the Company shall make cash distributions corresponding to the
estimated tax payments not later than the due dates for such estimated tax
payments. No provision of this Agreement shall cause the total dividend paid
with respect to any outstanding Share to differ from the amounts paid with
respect to any other outstanding Share. No provision of this Section 9.5 shall
be construed to limit the ability of the Company to declare and pay additional
dividends to the Shareholders out of the assets of the Company legally
available for such payment at such time or times as the Board of Directors
may determine.
10. TERMINATION.
10.1 TERM. The term of this Agreement shall commence as of the date
first above written and shall terminate upon the first to occur of the following
events:
(a) the mutual written agreement of the Shareholders
owning a majority of the Shares of each of the Family Groups to terminate this
Agreement;
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(b) the merger of the Company into another corporation
or the sale, exchange or disposition of all or substantially all of the
Company's assets; or
(c) when there remains only one (1) Shareholder who is a
party hereto.
10.2 REMOVAL OF LEGENDS UPON TERMINATION. Upon termination of this
Agreement, the certificates representing the Shares shall be released from the
terms of this Agreement, and such certificates may be reissued free of the
legend specified in Section 5.2 of this Agreement.
11. POWER OF ATTORNEY. Each of the undersigned Shareholders hereby constitutes
and appoints the Company and 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 execute any and all statements under Section 13 or Section 16 of
the Securities Exchange Act of 1934, as amended, of beneficial ownership of
NACCO Class B Shares, subject to the NACCO Stockholders' Agreement, as amended
from time to time, 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, 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 11. The grant of this
power of attorney shall not be affected by any disability of an undersigned
Shareholder. If applicable law requires additional or substituted language in
order to validate the power of attorney intended to be granted by this
Section 11, each Shareholder agrees to execute and deliver such additional
instruments and to take such further acts as may be necessary to validate such
power of attorney.
12. ARBITRATION. Any dispute arising in connection with this Agreement shall be
an Arbitrable Dispute and shall be finally settled by arbitration under the then
applicable Commercial Arbitration Rules of the American Arbitration Association,
by one or more arbitrators agreed upon by the parties or, in the absence of such
an agreement, appointed in accordance with such Rules. The arbitration
proceedings shall be held in Cleveland, Ohio. Judgment upon the award rendered
may be entered in any court having jurisdiction and application may be made to
such court for judicial acceptance of such award and an order of enforcement as
the case may be. The Shareholders hereby agree that the rendering of an award by
the arbitrator or arbitrators shall be a condition precedent to the initiation
of any legal proceedings with respect to any Arbitrable Dispute.
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13. GENERAL PROVISIONS
13.1 WAIVERS AND AMENDMENTS. This Agreement may be amended or modified
in whole or in part only by the mutual written agreement of the Shareholders
owning not less than two-thirds (2/3) of the Shares of each of the Family Groups
and any such amendment shall be binding upon all of the Shareholders. The
obligations and rights of any party hereunder may be waived (either generally or
in a particular instance and either retroactively or prospectively) by the
unanimous written action of the Board of Directors or with the written consent
of the party claimed to have given the waiver; PROVIDED, HOWEVER, that any
waiver of any violation of, breach of, or default under any provision of this
Agreement or any other agreement provided for herein shall not be construed as,
or constitute, a continuing waiver of such provision, or a waiver of any other
violation of, breach of or default under any other provision of this Agreement
or any other agreement provided for herein.
13.2 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
shall inure to the benefit of the company, its successors and permitted assigns,
and shall be binding upon and inure to the benefit of the other parties hereto
and their respective heirs, successors and permitted assigns.
13.3 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same instrument.
13.4 NOTICES. Any notice, request or other communication required or
permitted under this Agreement shall be in writing and shall be deemed to have
been duly given when received if personally delivered or after being sent by
telecopy, with confirmed answer back, or within 1 business day of being sent by
established overnight courier, to (a) the Company at its principal business
address or (b) to any Shareholder at his, her or its address as shown from time
to time on the books and records of the Company. The Company shall provide each
Shareholder with a list of all such addresses promptly upon request.
13.5 ENTIRE AGREEMENT. This Agreement, together with the other
agreements referred to herein, embodies the entire agreement among the parties
in relation to its subject matter, and no representations, warranties,
covenants, understandings or agreements or otherwise, in relation thereto, exist
between any of the parties.
13.6 GOVERNING LAW. This Agreement shall in all respects be governed by
and construed in accordance with the internal substantive laws of the State of
Georgia without giving effect to the principles of conflicts of law thereof.
13.7 SEVERABILITY. Each section, subsection and lesser section of this
Agreement constitutes a separate and distinct undertaking, covenant and/or
provision hereof. In the event that any provision of this Agreement shall
finally be determined to be unlawful, all such provisions shall be deemed
severed from this Agreement, but every other provision of this Agreement shall
remain in full force and effect, and in substitution for any such
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provision held unlawful, there shall be substituted a provision of similar
import reflecting the original intent of the parties hereto to the extent
permissible under law.
13.8 NO THIRD PARTY BENEFICIARIES. It is hereby agreed that the parties
hereto (or their personal representatives) shall have the sole right to enforce
the performance of the provisions of this Agreement and the sole right to
receive any and all amounts payable by the parties hereto pursuant to this
Agreement, and that no other person shall be entitled to, or shall have any
claim, right, title or interest to or in any such amounts by virtue of this
Agreement. This Agreement is personal to the parties hereto, and is not intended
for the
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benefit of, and is not intended to be relied upon by, any other person and no
such person shall be entitled to the benefit of or to enforce this Agreement.
13.9 SPECIFIC PERFORMANCE. The parties hereto agree that upon a breach
of any other provisions of this Agreement a remedy at law would not be adequate,
and that the parties hereto are entitled to injunctive relief and specific
performance, and any other legal or equitable remedies, as remedies for the
enforcement of this Agreement.
13.10 TITLES AND HEADINGS. Titles and headings to sections, subsections
and lesser sections herein are inserted for the convenience of reference only
and are not intended to be a part of or to effect the meaning or interpretations
of this Agreement.
13.11 CONFLICTS. To the extent possible, this Agreement, the Articles
of Incorporation of the Company, and the Bylaws of the Company shall be
construed so as to be consistent. Where such Articles of Incorporation or Bylaws
are inconsistent with this Agreement, this Agreement shall control.
IN WITNESS WHEREOF, the Company and the Shareholders have executed this
Shareholders' Agreement as of the day and year first above written.
XXXXXX MANAGEMENT, INC.
By:/S/ XXXXXX X. XXXXXX, XX.
----------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Managing Partner
(Corporate Seal)
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