Amendment to General Statement of Beneficial Ownership — Sch. 13D Filing Table of Contents
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13D/A
2: EX-34 ABS - Attestation Report on Assessment of HTML 60K Compliance with Servicing Criteria
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EX-34 — ABS – Attestation Report on Assessment of Compliance with Servicing Criteria
This AMENDMENT TO STOCKHOLDERS’ AGREEMENT, dated as of September 19, 2007 (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 the new Participating
Stockholders identified on the signature pages hereto (the “New Participating Stockholders”).
This Amendment sets forth the terms and conditions on which each of the New Participating
Stockholders 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. Each 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 person or any party pursuant thereto; (ii) any
organizational, charter or other
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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 each 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. Each New Participating
Stockholder agrees to be bound by all of the terms and provisions of the Stockholders’ Agreement
applicable to Participating Stockholders.
4. Beneficiaries. Each 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 each 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. Each of the undersigned New Participating Stockholders hereby
constitutes and appoints Alfred M. Rankin, Jr., Dennis W. LaBarre, Thomas C. Daniels, Charles A.
Bittenbender, 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 any of
the undersigned New Participating Stockholders. 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, each 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.
Rankin 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, Clara T. Rankin, Thomas E. Taplin and Frank E. Taplin, for the benefit of Elizabeth
E. Brown
32.
The Trust created under the Agreement, dated December 15, 1976, between National City Bank,
as trustee, and Frank E. Taplin, for the benefit of grandchildren
33.
The Trust created under the Agreement, dated December 28, 1976, between National City Bank,
as trustee, and Clara L.T. Rankin, 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 Alfred M. Rankin, for the benefit of
Alfred M. Rankin
35.
The Trust created under the Agreement, dated July 20, 2000, as supplemented, amended and
restated, between Alfred M. Rankin, Jr., as trustee, and Clara T. Rankin, for the benefit of
Clara T. Rankin
The Trust created under the Agreement, dated September 28, 2000, as supplemented, amended and
restated, between Victoire G. Rankin, as trustee, and Victoire G. Rankin, for the benefit of
Victoire G. Rankin
38.
The Trust created under the Agreement, dated December 29, 1967, as supplemented, amended and
restated, between Thomas T. Rankin, as trustee, and Thomas T. Rankin, creating a trust for the
benefit of Thomas T. Rankin
39.
The Trust created under the Agreement, dated June 22, 1971, as supplemented, amended and
restated, between Claiborne R. Rankin, as trustee, and Claiborne R. Rankin, creating a trust
for the benefit of Claiborne R. Rankin
40.
The Trust created under the Agreement, dated September 11, 1973, as supplemented, amended and
restated, between Roger F. Rankin, as trustee, and Roger F. Rankin, creating a trust for the
benefit of Roger F. Rankin
41.
The Trust created under the Agreement, dated September 28, 2000, between Alfred M. Rankin,
Jr., as trustee, and Bruce T. Rankin, for the benefit of Bruce T. Rankin
42.
The Trust created under the Agreement, dated December 11, 1957, as supplemented, amended and
restated, between National City Bank, as trustee, and Frank E. Taplin, for the benefit of
Frank E. Taplin
43.
The Trust created under the Agreement, dated January 21, 1966, as supplemented, amended and
restated, between National City Bank, as trustee, and Thomas E. Taplin, for the benefit of
Thomas E. Taplin
44.
The Trust created under the Agreement, dated August 26, 1974, between National City Bank, as
trustee, and Thomas E. Taplin, Jr., for the benefit of Thomas E. Taplin, Jr.
45.
The Trust created under the Agreement, dated October 15, 1975, between National City Bank, as
trustee, and Theodore D. Taplin, for the benefit of Theodore D. Taplin
46.
The Trust created under the Agreement, dated December 30, 1977, as supplemented, amended and
restated, between National City Bank, as trustee, and Britton T. Taplin for the benefit of
Britton T. Taplin
47.
The Trust created under the Agreement, dated December 29, 1989, as supplemented, amended and
restated, between Alfred M. Rankin, Jr., as trustee, and Clara T. (Rankin) Williams for the
benefit of Clara T. (Rankin) Williams
48.
The Trust created under the Agreement, dated December 29, 1989, as supplemented, amended and
restated, between Alfred M. Rankin, Jr., as trustee, and Helen P. (Rankin) Butler for the
benefit of Helen P. (Rankin) Butler
49.
Corbin Rankin
50.
Alison A. Rankin
51.
National City Bank as agent under the Agreement, dated July 16, 1969, with Margaret E. Taplin
52.
Alison A. Rankin, as trustee fbo A. Farnham Rankin under Irrevocable Trust No. 1, dated
December 18, 1997, with Roger Rankin, Grantor
53.
Alison A. Rankin, as trustee fbo Elisabeth M. Rankin under Irrevocable Trust No. 1, dated
December 18, 1997, with Roger Rankin, Grantor
54.
Rankin Associates II, L.P.
55.
John C. Butler, Jr.
56.
Clara Rankin Butler (by John C. Butler, Jr. as custodian)
57.
The Trust created under the Agreement, dated July 24, 1998, as amended, between Frank F.
Taplin, as trustee, and Frank F. Taplin, for the benefit of Frank F. Taplin
58.
David B. Williams
59.
Griffin B. Butler (by John C. Butler, Jr. as Custodian)
60.
Claiborne R. Rankin as Trustee of the Claiborne R. Rankin, Jr. Revocable Trust dated August25, 2000
61.
Alison A. Rankin as Trustee under Irrevocable Trust No. 2, dated September 11, 2000, for the
benefit of A. Farnham Rankin
62.
Alison A. Rankin as Trustee under Irrevocable Trust No. 2, dated September 11, 2000, for the
benefit of Elisabeth M. Rankin
63.
Alison A. Rankin as Trustee of the Alison A. Rankin Revocable Trust, dated September 11, 2000
Margo Jamison Victoire Williams (by Clara Rankin Williams as Custodian)
67.
Trust created under the Agreement, dated June 1, 1995, between Chloe O. Rankin, as Trustee,
and Chloe O. Rankin, for the benefit of Chloe O. Rankin
68.
Clara T. Rankin’s Qualified Annuity Interest Trust 2004 A
69.
Clara T. Rankin’s Qualified Annuity Interest Trust 2004 B
70.
Trust created by the Agreement, dated June 17, 1999, between John C. Butler, Jr., as trustee,
and John C. Butler, Jr., creating a trust for the benefit of John C. Butler, Jr.
Margo Jamison Victoire Williams 2004 Trust created by the Agreement, dated December 10, 2004,
between David B.H. Williams, as trustee, and Clara Rankin Williams, creating
a trust for the benefit of Margo Jamison Victoire Williams
75.
Helen Charles Williams 2004 Trust created by the Agreement, dated December 10, 2004, between
David B.H. Williams, as trustee, and Clara Rankin Williams, creating a trust for the benefit
of Helen Charles Williams
76.
Helen Charles Williams (by David B.H. Williams as parent of Helen Charles Williams)
77.
Julia L. Rankin
78.
Trust created by the Agreement, dated December 21, 2004, between Claiborne R. Rankin, as
trustee, and Julia L. Rankin, creating a trust for the benefit of Julia L. Rankin
79.
Thomas Parker Rankin
80.
Taplin Elizabeth Seelbach (by Scott Seelbach as Custodian under the Ohio Transfers to Minors
Act)
81.
Trust created by the Agreement, dated December 21, 2004, between Chloe R. Seelbach, as
trustee, and Claiborne R. Rankin, creating a trust for the benefit of Taplin Elizabeth
Seelbach
