SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D/A
(RULE 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
RULE 13d-2(a)
(AMENDMENT NO. 9)
NACCO Industries, Inc.
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(Name of Issuer)
Class B Common Stock, par value $1.00 per share
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(Title and Class of Securities)
629579 20 02
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(CUSIP Number)
Alfred M. Rankin, Jr.
5875 Landerbrook Drive
Mayfield Heights, Ohio 44124-4017
(216) 449-9600
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(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
February 2002
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition that is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the
following box [ ].
Note. Schedules filed in paper format shall include a signed original
and five copies of the schedule, including all exhibits. See Rule 13d-7 for
other parties to whom copies are to be sent.
(Continued on following pages)
(Page 1 of 7 Pages)
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CUSIP No. 629579 20 02 SCHEDULE 13D PAGE 2 OF 7 PAGES
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1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Scott W. Seelbach
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a)
(b) X
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
OO - See Item 3
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEM 2(d) or 2(e)
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
USA
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7 SOLE VOTING POWER
-0-
-------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY 2,408
OWNED BY -------------------------------------------------
EACH REPORTING 9 SOLE DISPOSITIVE POWER
PERSON WITH
-0-
-------------------------------------------------
10 SHARED DISPOSITIVE POWER
2,408
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,408
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
.16%
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14 TYPE OF REPORTING PERSON*
IN
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
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CUSIP No. 629579 20 02 SCHEDULE 13D PAGE 3 OF 7 PAGES
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The Schedule 13D filed on March 29, 1990, as amended by Amendment No. 1
filed on April 11, 1990, as amended by Amendment No. 2 filed on March 14, 1991,
as amended by Amendment No. 3 filed on March 20, 1992, as amended by Amendment
No. 4 filed on March 9, 1994, as amended and restated in its entirety pursuant
to Regulation S-T, Rule 101(a)(2) on March 30, 1994 (the "Schedule 13D") and as
amended by Amendment No. 1 to the amended and restated Schedule 13D filed on
March 28, 1995, as amended by Amendment No. 2 to the amended and restated
Schedule 13D filed on March 21, 1996, as amended by Amendment No. 3 to the
amended and restated Schedule 13D filed on November 26, 1996, as amended by
Amendment No. 4 to the amended and restated Schedule 13D filed on January 10,
1997, as amended by Amendment No. 5 to the amended and restated Schedule 13D
filed on March 19, 1997, as amended by Amendment No. 6 to the amended and
restated Schedule 13D filed on March 25, 1999, and as amended by Amendment No. 7
to the amended and restated Schedule 13D filed on March 30, 2000, and as amended
by Amendment No. 8 to the amended and restated Schedule 13D filed on February
14, 2001 (collectively, the "Filings"), on behalf of certain signatories to the
Stockholders' Agreement, dated as of March 15, 1990, as amended, among the
signatories thereto, the Company and National City Bank, as depository, is
hereby further amended as follows. Capitalized terms used herein but not defined
herein shall have the meanings assigned to such terms in the Filings.
ITEM 2. IDENTITY AND BACKGROUND.
Item 2 of the Schedule 13D relating to the individual Reporting Persons
is hereby amended as follows:
(a) The statements under the heading Theodore D. Taplin which
appear in the Filings, are hereby deleted and replaced in their entirety by the
following:
THEODORE D. TAPLIN. Mr. Taplin's resident address is 121 Lower
Terrace, San Francisco, California 94114. He is a consultant.
(b) The statements under the heading Clara T. Rankin Williams
which appear in the Filings, are hereby deleted and replaced in their entirety
by the following:
CLARA T. RANKIN WILLIAMS. Mrs. Williams' resident address is
425 West Roslyn Place, Chicago, Illinois 60614. She is not employed.
(c) The statements under the heading Chloe R. Seelbach which
appear in the Filings, are hereby deleted and replaced in their entirety by the
following:
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CUSIP No. 629579 20 02 SCHEDULE 13D PAGE 4 OF 7 PAGES
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CHLOE R. SEELBACH. Ms. Seelbach's resident address is The
Carriage House, 2905 Fairmount Boulevard, Cleveland Heights, Ohio
44118. She is a product manager with Employon, Inc., 22700 Shore Center
Drive, Euclid, Ohio 44123.
(d) After the paragraph describing Chloe R. Seelbach's address
which appears in the Filings, the following individual Reporting Person shall be
added:
SCOTT W. SEELBACH. Mr. Seelbach's resident address is The
Carriage House, 2905 Fairmount Boulevard, Cleveland Heights, Ohio
44118. He is employed by Primus Venture Partners, 5900 Landerbrook
Drive, Mayfield Heights, Ohio 44124.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
Item 5 of the Schedule 13D relating to the individual Reporting Persons
is hereby amended as follows:
(a) After the paragraph describing Ms. Chloe R. Seelbach's
interest which appears in the Filings, the following individual Reporting Person
shall be added:
SCOTT W. SEELBACH. Mr. Seelbach has shared power to vote and
dispose of 2,408 shares of Class B Common, which constitutes .16% of
the Class B Common outstanding as of December 31, 2001.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO
SECURITIES OF THE ISSUER.
Item 6 of the 13D is hereby amended by inserting at the end thereof the
following:
On November 19, 2001, a Registration Statement on Form S-4 (Reg. No.
333-65134) (the "Registration Statement") registering up to 200,000 shares of
Class A common stock, par value $1.00 per share, of the Company (the "Class A
Common"), became effective. The Registration Statement identifies Alfred M.
Rankin, Jr., Thomas T. Rankin, Claiborne R. Rankin and Roger F. Rankin, each of
whom is a Reporting Person, or in each case his revocable trust as selling
stockholders under the Registration Statement (the "Selling Stockholders"). The
Registration Statement contemplates transfers, from time to time, of up to
50,000 shares of Class A Common, on a share for share basis by each of the
Selling Stockholders in exchange for an aggregate of 200,000 shares of Class B
Common from holders of Class B Common that are so called "permitted transferees"
pursuant to the Company's Certificate of Incorporation and the Stockholders'
Agreement. Each exchange would result in one or more of the Selling Stockholders
transferring one share of Class A Common for each share of Class B Common
transferred by other Reporting Persons to the Selling Stockholder or Selling
Stockholders. The recipients of the Class B Common from the Selling Stockholders
must be Reporting Persons. Reporting Persons who transfer their shares of Class
B Common, on a share for share basis, to the Selling Stockholders in exchange
for shares of Class A Common will reduce their voting power.
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CUSIP No. 629579 20 02 SCHEDULE 13D PAGE 5 OF 7 PAGES
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Effective December 26, 2001, each of the Company, the Depository, and
the Participating Stockholders executed and delivered an Amendment to
Stockholders' Agreement amending the Stockholders' Agreement to add additional
Participating Stockholders under the Stockholders' Agreement. A copy of the
Amendment to Stockholders' Agreement is attached hereto as Exhibit 27 and is
incorporated herein in its entirety.
Effective February 11, 2002, each of the Company, the Depository, and
the Participating Stockholders executed and delivered an Amendment to
Stockholders' Agreement amending the Stockholders' Agreement pursuant to which a
trust for the benefit of a certain Participating Stockholder became a
Participating Stockholder under the Stockholders' Agreement. A copy of the
Amendment to Stockholders' Agreement is attached hereto as Exhibit 28 and is
incorporated herein in its entirety.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
Item 7 of the Schedule 13D is hereby amended as follows:
(Exhibit 27) Amendment to Stockholders' Agreement, dated as December 26, 2001,
by and among National City Bank, the Company, the Participating Stockholders and
the New Participating Stockholders.
(Exhibit 28) Amendment to Stockholders' Agreement, dated as February 11, 2002,
by and among National City Bank, the Company, the Participating Stockholders and
the New Participating Stockholder.
[REMAINDER OF PAGE IS INTENTIONALLY LEFT BLANK. SIGNATURES BEGIN ON NEXT PAGE.]
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CUSIP No. 629579 20 02 SCHEDULE 13D PAGE 6 OF 7 PAGES
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SIGNATURE
After reasonable inquiry and to the best of our knowledge and belief,
we certify that the information set forth in this statement is true, complete
and correct.
Dated: February 14, 2002
/s/ Alfred M. Rankin, Jr.
----------------------------------------------------
Name: Alfred M. Rankin, Jr.
/s/ Alfred M. Rankin, Jr.
----------------------------------------------------
Name: Alfred M. Rankin, Jr.
Attorney-in-Fact for Clara L.T. Rankin*
Attorney-in-Fact for Victoire G. Rankin*
Attorney-in-Fact for Helen R. Butler*
Attorney-in-Fact for Clara T. Rankin Williams*
Attorney-in-Fact for Thomas T. Rankin*
Attorney-in-Fact for Matthew M. Rankin*
Attorney-in-Fact for Claiborne R. Rankin*
Attorney-in-Fact for Chloe O. Rankin*
Attorney-in-Fact for Roger F. Rankin*
Attorney-in-Fact for Bruce T. Rankin*
Attorney-in-Fact for Frank E. Taplin, Jr.*
Attorney-in-Fact for Margaret E. Taplin*
Attorney-in-Fact for Martha S. Kelly*
Attorney-in-Fact for Susan Sichel*
Attorney-in-Fact for Jennifer T. Jerome*
Attorney-in-Fact for Caroline T. Ruschell*
Attorney-in-Fact for David F. Taplin*
Attorney-in-Fact for Thomas E. Taplin*
Attorney-in-Fact for Beatrice B. Taplin*
Attorney-in-Fact for Thomas E. Taplin, Jr.*
Attorney-in-Fact for Theodore D. Taplin*
Attorney-in-Fact for Britton T. Taplin*
Attorney-in-Fact for Frank F. Taplin*
Attorney-in-Fact for National City Bank, as trustee*
Attorney-in-Fact for Rankin Associates I, L.P.*
Attorney-in-Fact for Rankin Management, Inc.*
Attorney-in-Fact for Alison A. Rankin*
Attorney-in-Fact for Corbin K. Rankin*
Attorney-in-Fact for John C. Butler, Jr.*
Attorney-in-Fact for Rankin Associates II, L.P.*
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CUSIP No. 629579 20 02 SCHEDULE 13D PAGE 7 OF 7 PAGES
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Attorney-in-Fact for Chloe R. Seelbach*
Attorney-in-Fact for James T. Rankin*
Attorney-in-Fact for Claiborne R. Rankin, Jr.*
Attorney-in-Fact for David B. Williams*
Attorney-in-Fact for Scott W. Seelbach*
------------------
* The power of attorney authorizing the above named individual to act on behalf
of each of the foregoing Reporting Persons is included in Exhibit 2 at page 26
through 106 and pages 113 through 121 of such Exhibit, in Exhibit 13 at pages
6 through 8 of such Exhibit, in Exhibit 14 at pages 6 through 8 of such
Exhibit, in Exhibit 19 at pages 6 through 7 of such Exhibit, in Exhibit 20 at
pages 6 through 7 of such Exhibit, in Exhibit 22 at pages 1 through 2, in
Exhibit 23 at pages 6 through 7 of such Exhibit, in Exhibit 25 at pages 6
through 7 of such Exhibit, in Exhibit 27 at pages 6 through 7 of such Exhibit,
and in Exhibit 28 at pages 6 through 7 of such Exhibit.
Exhibit 27
AMENDMENT TO STOCKHOLDERS' AGREEMENT
------------------------------------
This AMENDMENT TO STOCKHOLDERS' AGREEMENT, dated as of December 26,
2001 (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 Stockholder identified on the signature page hereto (the "New
Participating Stockholder").
This Amendment sets forth the terms and conditions on which the New
Participating Stockholder will join in and become a party to the Stockholders'
Agreement, dated as of March 15, 1990, as amended (the "Stockholders'
Agreement"). Capitalized terms defined in the Stockholders' Agreement are used
herein as so defined.
Pursuant to Section 8 of the Stockholders' Agreement, prior to the
acquisition of Class B Common Stock by a Permitted Transferee, the Stockholders'
Agreement may be amended to add a Permitted Transferee as a Participating
Stockholder by a writing signed by the Signatories, the Corporation and such
Permitted Transferee.
In consideration of the mutual promises hereinafter set forth and other
good and valuable consideration had and received, the parties hereto agree as
follows:
1. REPRESENTATIONS AND WARRANTIES. The New Participating Stockholder,
for such New Participating Stockholder only and not for any other Participating
Stockholder, represents and warrants to the other Participating Stockholders and
the Corporation as follows:
(a) Such New Participating Stockholder is the beneficial owner
of, or simultaneously with the execution hereof will acquire and be
deemed to be the
1
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
2
person or any party pursuant thereto; (ii) any organizational, charter
or other governance documents (including, without limitation, any
partnership agreement, certificate of incorporation, or bylaws) of the
New Participating Stockholder, (iii) any judgment, decree or order
applicable to such New Participating Stockholder; or (iv) any law, rule
or regulation of any governmental body;
(c) This Amendment and the Stockholders' Agreement constitute
legal, valid and binding agreements on the part of such New
Participating Stockholder; the shares of Class B Common Stock owned
beneficially by such New Participating Stockholder are fully paid and
nonassessable; and
(d) The shares of Class B Common Stock owned beneficially by
such New Participating Stockholder are now held by such New
Participating Stockholder, free and clear of all adverse claims, liens,
encumbrances and security interests (except as created by the
Stockholders' Agreement and any Amendments thereto, including this
Amendment, and the Restated Certificate).
2. ADDRESS FOR NOTICES. The address for all notices to the New
Participating Stockholder provided pursuant to the Stockholders' Agreement shall
be the address set forth below such New Participating Stockholder's name on the
signature pages hereto, or to such other address as such New Participating
Stockholder may specify to the Depository.
3. AGREEMENT TO BE BOUND BY STOCKHOLDERS' AGREEMENT. The New
Participating Stockholder agrees to be bound by all of the terms and provisions
of the Stockholders' Agreement applicable to Participating Stockholders.
4. BENEFICIARIES. The New Participating Stockholder acknowledges that
the Corporation and each Participating Stockholder is a beneficiary of this
Amendment.
3
5. AMENDMENT OF STOCKHOLDERS' AGREEMENT. The Stockholders' Agreement is
hereby amended to add the New Participating Stockholder as a Participating
Stockholder.
6. SIGNATURE OF AMENDMENT BY TRUSTS, MINORS AND INCOMPETENTS.
(a) In order for a trust exclusively (as defined in Section
1.9 of the Stockholders' Agreement) for the benefit of a Family Member
or Members to be considered a Participating Stockholder:
(i) the trustee and all adult beneficiaries of such
trusts having a current trust interest (as well as all
Charitable Organization beneficiaries having a current trust
interest) shall have previously signed the Stockholders'
Agreement or shall sign this Amendment as a Participating
Stockholder;
(ii) the trustee and a parent or legal guardian, for
trusts with minor beneficiaries having a current trust
interest, shall sign this Amendment on behalf of any such
minor beneficiaries; or
(iii) the trustee and legal guardian, if any, for
trusts with incompetent beneficiaries having a current trust
interest, shall sign this Amendment on behalf of any such
incompetent beneficiaries.
(b) If, at any time, any trust shall have an adult beneficiary
(and such beneficiary is not incompetent) having a current trust
interest or an ascertainable Charitable Organization beneficiary having
a current trust interest and if such beneficiary has not previously
signed the Stockholders' Agreement, then if such beneficiary shall fail
or be unable to sign this Amendment for a period of 30 calendar days
following notification to such beneficiary of the terms of this
4
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
5
Participating Stockholders (or their attorney-in-fact), the Corporation
and the Depository. If such Family Member shall fail or be unable to
sign such Amendment for a period of 30 calendar days following
notification to such Family Member of the terms of the Stockholders'
Agreement by the Depository, such Family Member shall thereupon cease
to be a Participating Stockholder and Section 3.2 of the Stockholders'
Agreement shall then apply as if the shares of Class B Common Stock
were then to be converted.
7. POWER OF ATTORNEY. The undersigned New Participating Stockholder
hereby constitutes and appoints Frank E. Taplin, Thomas E. Taplin, 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
6
(b) Execute and deliver any and all Amendments whereby a
Family Member or a Charitable Organization becomes a Participating
Stockholder or any other Amendment that does not require approval of
66-2/3 percent of the shares of Class B Common Stock subject to the
Stockholders' Agreement pursuant to Section 8 of the Stockholders'
Agreement, including, without limitation, a change in the depository,
thereby granting to said attorney or attorneys-in-fact, and each of
them, full power and authority to do so and to perform each and every
act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as the undersigned might
or could do in person, hereby ratifying and confirming all that said
attorney or attorneys-in-fact or any of them, or their substitutes or
resubstitutes, may lawfully do or cause to be done by virtue of this
Section 7. The grant of this power of attorney shall not be affected by
any disability of the undersigned New Participating Stockholder. If
applicable law requires additional or substituted language or
formalities (including witnesses or acknowledgments) in order to
validate the power of attorney intended to be granted by this Section
7, the New Participating Stockholder agrees to execute and deliver such
additional instruments and to take such further acts as may be
necessary to validate such power of attorney.
8. COUNTERPARTS. This Amendment may be executed in multiple
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument, without production of the others.
7
IN WITNESS WHEREOF, the New Participating Stockholder, 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.
/s/ Scott Seelbach
-----------------------------------------
Scott Seelbach
Address:
Number of Shares of
CLASS B COMMON STOCK
--------------------
CLARA RANKIN WILLIAMS as Custodian for
Margo Jamison Victoire Williams under the
Ohio Transfers to Minors Act
By: /s/ Clara Rankin Williams
-------------------------------------
Name: Clara Rankin Williams
Title: Custodian
Address:
Number of Shares of
CLASS B COMMON STOCK
--------------------
CORBIN K. RANKIN as Custodian for Thomas
(Parker) Rankin under the Virginia
Uniform Gifts to Minors Act
By: /s/ Corbin K. Rankin
-------------------------------------
Name: Corbin K. Rankin
Title: Custodian
Address:
Number of Shares of
CLASS B COMMON STOCK
--------------------
National City Bank, (Cleveland, Ohio)
By: /s/ Leigh H. Carter
-------------------------------------
Name: Leigh H. Carter
Title: Vice President
NACCO INDUSTRIES, INC.
By: /s/ Alfred M. Rankin, Jr.
-------------------------------------
Name: Alfred M. Rankin, Jr.
Title: President and Chief Executive
Officer
THE PARTICIPATING STOCKHOLDERS listed in
Exhibit A attached hereto and
incorporated herein by this reference
By: /s/ Alfred M. Rankin, Jr.
-------------------------------------
Alfred M. Rankin, Jr., Attorney-in-Fact
EXHIBIT A
---------
PARTICIPATING STOCKHOLDERS
--------------------------
1. Clara L. T. Rankin
2. Alfred M. Rankin, Jr.
3. Victorie G. Rankin
4. Helen Rankin Butler (fka Helen P. Rankin)
5. Clara T. Rankin Williams (fka Clara T. Rankin)
6. Thomas T. Rankin
7. Matthew M. Rankin
8. James T. Rankin
9. Claiborne R. Rankin
10. Chloe O. Rankin
11. Julia L. Rankin (by Claiborne R. Rankin as custodian)
12. Chloe R. Seelbach (fka Chloe E. Rankin)
13. Claiborne R. Rankin, Jr.
14. Roger F. Rankin
15. Bruce T. Rankin
16. Frank E. Taplin
17. Margaret E. Taplin
18. Elizabeth E. Brown (by Andrew L. Fabens III, Attorney-in-fact)
19. Martha S. Kelly
20. Susan Sichel (fka Susan S. Panella)
21. Jennifer T. Jerome
22. Caroline T. Ruschell
23. David F. Taplin
24. Thomas E. Taplin
25. Beatrice B. Taplin
26. Thomas E. Taplin, Jr.
27. Theodore D. Taplin
28. Britton T. Taplin
29. Frank F. Taplin
30. Rankin Management, Inc.
31. Rankin 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, Clara T. Rankin, Thomas E. Taplin and
Frank E. Taplin, for the benefit of Elizabeth E. Brown.
33. 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.
34. 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.
35. 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.
36. 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.
37. The Trust created under the Agreement, dated September 28, 2000, as
supplemented, amended and restated, between Alfred M. Rankin, Jr., as
trustee, and Alfred M. Rankin, Jr., for the benefit of Alfred M. Rankin,
Jr.
38. 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.
39. The Trust created under the Agreement, dated December 29, 1967, as
supplemented, amended and restated, between National City Bank, as
co-trustee, and Thomas T. Rankin, as co-trustee, creating a trust for the
benefit of Thomas T. Rankin.
40. The Trust created under the Agreement, dated June 22, 1971, as
supplemented, amended and restated, between National City Bank, as
co-trustee, and Claiborne R. Rankin, as co-trustee, creating a trust for
the benefit of Claiborne R. Rankin.
41. The Trust created under the Agreement, dated September 11, 1973, as
supplemented, amended and restated, between National City Bank, as
co-trustee, and Roger F. Rankin, as co-trustee, creating a trust for the
benefit of Roger F. Rankin.
42. 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.
43. 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.
44. 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.
45. 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.
46. 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.
47. 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.
48. 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.
49. The Trust created under the Agreement, dated December 29, 1989, between
Alfred M. Rankin, Jr., as trustee, and Helen P. (Rankin) Butler for the
benefit of Helen P. (Rankin) Butler.
50. Corbin Rankin
51. Alison A. Rankin
52. National City Bank as agent under the Agreement, dated July 16, 1969, with
Margaret E. Taplin.
53. Thomas Parker Rankin (by Thomas T. Rankin as custodian)
54. Alison A. Rankin, as trustee fbo A. Farnham Rankin under Irrevocable Trust
No. 1, dated December 18, 1997, with Roger Rankin, Grantor.
55. Alison A. Rankin, as trustee fbo Elisabeth M. Rankin under Irrevocable
Trust No. 1, dated December 18, 1997, with Roger Rankin, Grantor.
56. Rankin Associates II, L.P.
57. John C. Butler, Jr.
58. Clara Rankin Butler (by John C. Butler, Jr. as custodian)
59. 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.
60. David B. Williams
61. Griffin B. Butler (by John C. Butler, Jr. as Custodian)
62. Claiborne R. Rankin as Trustee of the Claiborne R. Rankin, Jr. Revocable
Trust dated August 25, 2000.
63. Alison A. Rankin as Trustee under Irrevocable Trust No. 2, dated September
11, 2000, for the benefit of A. Farnham Rankin.
64. Alison A. Rankin as Trustee under Irrevocable Trust No. 2, dated September
11, 2000, for the benefit of Elisabeth M. Rankin.
65. Alison A. Rankin as Trustee of the Alison A. Rankin Revocable Trust, dated
September 11, 2000.
66. The Trust created under the Agreement, dated December 20, 1993, between
Matthew M. Rankin, as trustee, and Matthew M. Rankin, for the benefit of
Matthew M. Rankin.
67. Scott Seelbach
68. Thomas (Parker) Rankin (by Corbin K. Rankin as Custodian)
69. Margo Jamison Victoire Williams (by Clara Rankin Williams as Custodian)
Exhibit 28
AMENDMENT TO STOCKHOLDERS' AGREEMENT
------------------------------------
This AMENDMENT TO STOCKHOLDERS' AGREEMENT, dated as of February 11,
2002 (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 Stockholder identified on the signature page hereto (the "New
Participating Stockholder").
This Amendment sets forth the terms and conditions on which the New
Participating Stockholder will join in and become a party to the Stockholders'
Agreement, dated as of March 15, 1990, as amended (the "Stockholders'
Agreement"). Capitalized terms defined in the Stockholders' Agreement are used
herein as so defined.
Pursuant to Section 8 of the Stockholders' Agreement, prior to the
acquisition of Class B Common Stock by a Permitted Transferee, the Stockholders'
Agreement may be amended to add a Permitted Transferee as a Participating
Stockholder by a writing signed by the Signatories, the Corporation and such
Permitted Transferee.
In consideration of the mutual promises hereinafter set forth and other
good and valuable consideration had and received, the parties hereto agree as
follows:
1. REPRESENTATIONS AND WARRANTIES. The New Participating
Stockholder, for such New Participating Stockholder only and not for any other
Participating Stockholder, represents and warrants to the other Participating
Stockholders and the Corporation as follows:
(a) Such New Participating Stockholder is the
beneficial owner of, or simultaneously with the execution
hereof will acquire and be deemed to be the beneficial owner
of, the shares of Class B Common Stock identified below such
New Participating Stockholder's name on the signature pages
hereto (except as otherwise described thereon), and except as
otherwise described thereon such New Participating Stockholder
does not own of record or beneficially or have any interest in
any other shares of Class B Common Stock or any options to
purchase or rights to subscribe or otherwise acquire any other
shares of Class B Common Stock other than pursuant to the
Stockholders' Agreement;
(b) Such New Participating Stockholder has the right,
power and authority to execute and deliver this Amendment and
to perform such New Participating Stockholder's obligations
hereunder and under the Stockholders' Agreement; if this
Amendment is being executed by a trustee on behalf of a trust,
such trustee has full right, power and authority to enter into
this Amendment on behalf of the trust and to bind the trust
and its beneficiaries to the terms hereof; if this Amendment
is being executed on behalf of a Participating Stockholder
Organization, the person executing this Amendment is a duly
authorized representative of such Participating Stockholder
Organization with full right, power and authority to execute
and deliver this Amendment on behalf of such Participating
Stockholder Organization and to bind such Participating
Stockholder Organization to the terms hereof; the execution,
delivery and performance of this Amendment by such New
Participating Stockholder will not constitute a violation of,
conflict with or result in a default under (i) any contract,
understanding or arrangement to which such New Participating
Stockholder is a party or by which such New Participating
Stockholder is bound or require the consent of any other
person or any party pursuant thereto; (ii) any organizational,
charter or other
2
governance documents (including, without limitation, any
partnership agreement, certificate of incorporation, or
bylaws) of the New Participating Stockholder, (iii) any
judgment, decree or order applicable to such New Participating
Stockholder; or (iv) any law, rule or regulation of any
governmental body;
(c) This Amendment and the Stockholders' Agreement
constitute legal, valid and binding agreements on the part of
such New Participating Stockholder; the shares of Class B
Common Stock owned beneficially by such New Participating
Stockholder are fully paid and nonassessable; and
(d) The shares of Class B Common Stock owned
beneficially by such New Participating Stockholder are now
held by such New Participating Stockholder, free and clear of
all adverse claims, liens, encumbrances and security interests
(except as created by the Stockholders' Agreement and any
Amendments thereto, including this Amendment, and the Restated
Certificate).
2. ADDRESS FOR NOTICES. The address for all notices to the New
Participating Stockholder provided pursuant to the Stockholders' Agreement shall
be the address set forth below such New Participating Stockholder's name on the
signature pages hereto, or to such other address as such New Participating
Stockholder may specify to the Depository.
3. AGREEMENT TO BE BOUND BY STOCKHOLDERS' AGREEMENT. The New
Participating Stockholder agrees to be bound by all of the terms and provisions
of the Stockholders' Agreement applicable to Participating Stockholders.
4. BENEFICIARIES. The New Participating Stockholder
acknowledges that the Corporation and each Participating Stockholder is a
beneficiary of this Amendment.
3
5. AMENDMENT OF STOCKHOLDERS' AGREEMENT. The Stockholders'
Agreement is hereby amended to add the New Participating Stockholder as a
Participating Stockholder.
6. SIGNATURE OF AMENDMENT BY TRUSTS, MINORS AND INCOMPETENTS.
(a) In order for a trust exclusively (as defined in
Section 1.9 of the Stockholders' Agreement) for the benefit of
a Family Member or Members to be considered a Participating
Stockholder:
(i) the trustee and all adult beneficiaries
of such trusts having a current trust interest (as
well as all Charitable Organization beneficiaries
having a current trust interest) shall have
previously signed the Stockholders' Agreement or
shall sign this Amendment as a Participating
Stockholder;
(ii) the trustee and a parent or legal
guardian, for trusts with minor beneficiaries having
a current trust interest, shall sign this Amendment
on behalf of any such minor beneficiaries; or
(iii) the trustee and legal guardian, if
any, for trusts with incompetent beneficiaries having
a current trust interest, shall sign this Amendment
on behalf of any such incompetent beneficiaries.
(b) If, at any time, any trust shall have an adult
beneficiary (and such beneficiary is not incompetent) having a
current trust interest or an ascertainable Charitable
Organization beneficiary having a current trust interest and
if such beneficiary has not previously signed the
Stockholders' Agreement, then if such beneficiary shall fail
or be unable to sign this Amendment for a period of 30
calendar days following notification to such beneficiary of
the terms of this
4
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
5
Participating Stockholders (or their attorney-in-fact), the
Corporation and the Depository. If such Family Member shall
fail or be unable to sign such Amendment for a period of 30
calendar days following notification to such Family Member of
the terms of the Stockholders' Agreement by the Depository,
such Family Member shall thereupon cease to be a Participating
Stockholder and Section 3.2 of the Stockholders' Agreement
shall then apply as if the shares of Class B Common Stock were
then to be converted.
7. POWER OF ATTORNEY. The undersigned New Participating
Stockholder hereby constitutes and appoints Frank E. Taplin, Thomas E. Taplin,
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
6
(b) Execute and deliver any and all Amendments
whereby a Family Member or a Charitable Organization becomes a
Participating Stockholder or any other Amendment that does not
require approval of 66-2/3 percent of the shares of Class B
Common Stock subject to the Stockholders' Agreement pursuant
to Section 8 of the Stockholders' Agreement, including,
without limitation, a change in the depository, thereby
granting to said attorney or attorneys-in-fact, and each of
them, full power and authority to do so and to perform each
and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes
as the undersigned might or could do in person, hereby
ratifying and confirming all that said attorney or
attorneys-in-fact or any of them, or their substitutes or
resubstitutes, may lawfully do or cause to be done by virtue
of this Section 7. The grant of this power of attorney shall
not be affected by any disability of the undersigned New
Participating Stockholder. If applicable law requires
additional or substituted language or formalities (including
witnesses or acknowledgments) in order to validate the power
of attorney intended to be granted by this Section 7, the New
Participating Stockholder agrees to execute and deliver such
additional instruments and to take such further acts as may be
necessary to validate such power of attorney.
8. COUNTERPARTS. This Amendment may be executed in multiple
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument, without production of the others.
7
IN WITNESS WHEREOF, the New Participating Stockholder, 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.
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
/s/ Chloe O. Rankin
----------------------------------------
Name: Chloe O. Rankin
Title: Trustee
Address:
Number of Shares of
CLASS B COMMON STOCK
--------------------
National City Bank, (Cleveland, Ohio)
By: /s/ Leigh H. Carter
------------------------------------
Name: Leigh H. Carter
Title: Vice President
NACCO INDUSTRIES, INC.
By: /s/ Alfred M. Rankin, Jr.
---------------------------------------
Name: Alfred M. Rankin, Jr.
Title: President and Chief Executive
Officer
THE PARTICIPATING STOCKHOLDERS listed in
Exhibit A attached hereto and
incorporated herein by this reference
By: /s/ Alfred M. Rankin, Jr.
---------------------------------------
Alfred M. Rankin, Jr., Attorney-in-Fact
EXHIBIT A
---------
PARTICIPATING STOCKHOLDERS
--------------------------
1. Clara L. T. Rankin
2. Alfred M. Rankin, Jr.
3. Victorie G. Rankin
4. Helen Rankin Butler (fka Helen P. Rankin)
5. Clara T. Rankin Williams (fka Clara T. Rankin)
6. Thomas T. Rankin
7. Matthew M. Rankin
8. James T. Rankin
9. Claiborne R. Rankin
10. Chloe O. Rankin
11. Julia L. Rankin (by Claiborne R. Rankin as custodian)
12. Chloe R. Seelbach (fka Chloe E. Rankin)
13. Claiborne R. Rankin, Jr.
14. Roger F. Rankin
15. Bruce T. Rankin
16. Frank E. Taplin
17. Margaret E. Taplin
18. Elizabeth E. Brown (by Andrew L. Fabens III, Attorney-in-fact)
19. Martha S. Kelly
20. Susan Sichel (fka Susan S. Panella)
21. Jennifer T. Jerome
22. Caroline T. Ruschell
23. David F. Taplin
24. Thomas E. Taplin
25. Beatrice B. Taplin
26. Thomas E. Taplin, Jr.
27. Theodore D. Taplin
28. Britton T. Taplin
29. Frank F. Taplin
30. Rankin Management, Inc.
31. Rankin 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, Clara T. Rankin, Thomas E. Taplin and
Frank E. Taplin, for the benefit of Elizabeth E. Brown.
33. 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.
34. 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.
35. 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.
36. 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.
37. The Trust created under the Agreement, dated September 28, 2000, as
supplemented, amended and restated, between Alfred M. Rankin, Jr., as
trustee, and Alfred M. Rankin, Jr., for the benefit of Alfred M. Rankin,
Jr.
38. 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.
39. The Trust created under the Agreement, dated December 29, 1967, as
supplemented, amended and restated, between National City Bank, as
co-trustee, and Thomas T. Rankin, as co-trustee, creating a trust for the
benefit of Thomas T. Rankin.
40. The Trust created under the Agreement, dated June 22, 1971, as
supplemented, amended and restated, between National City Bank, as
co-trustee, and Claiborne R. Rankin, as co-trustee, creating a trust for
the benefit of Claiborne R. Rankin.
41. The Trust created under the Agreement, dated September 11, 1973, as
supplemented, amended and restated, between National City Bank, as
co-trustee, and Roger F. Rankin, as co-trustee, creating a trust for the
benefit of Roger F. Rankin.
42. 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.
43. 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.
44. 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.
45. 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.
46. 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.
47. 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.
48. 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.
49. 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.
50. Corbin Rankin
51. Alison A. Rankin
52. National City Bank as agent under the Agreement, dated July 16, 1969, with
Margaret E. Taplin.
53. Thomas Parker Rankin (by Thomas T. Rankin as custodian)
54. Alison A. Rankin, as trustee fbo A. Farnham Rankin under Irrevocable Trust
No. 1, dated December 18, 1997, with Roger Rankin, Grantor.
55. Alison A. Rankin, as trustee fbo Elisabeth M. Rankin under Irrevocable
Trust No. 1, dated December 18, 1997, with Roger Rankin, Grantor.
56. Rankin Associates II, L.P.
57. John C. Butler, Jr.
58. Clara Rankin Butler (by John C. Butler, Jr. as custodian)
59. 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.
60. David B. Williams
61. Griffin B. Butler (by John C. Butler, Jr. as Custodian)
62. Claiborne R. Rankin as Trustee of the Claiborne R. Rankin, Jr. Revocable
Trust dated August 25, 2000.
63. Alison A. Rankin as Trustee under Irrevocable Trust No. 2, dated September
11, 2000, for the benefit of A. Farnham Rankin.
64. Alison A. Rankin as Trustee under Irrevocable Trust No. 2, dated September
11, 2000, for the benefit of Elisabeth M. Rankin.
65. Alison A. Rankin as Trustee of the Alison A. Rankin Revocable Trust, dated
September 11, 2000.
66. The Trust created under the Agreement, dated December 20, 1993, between
Matthew M. Rankin, as trustee, and Matthew M. Rankin, for the benefit of
Matthew M. Rankin.
67. Scott Seelbach
68. Thomas (Parker) Rankin (by Corbin K. Rankin as Custodian)
69. Margo Jamison Victoire Williams (by Clara Rankin Williams as Custodian)
70. 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