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Exhibit 19
AMENDMENT TO STOCKHOLDERS' AGREEMENT
This AMENDMENT TO STOCKHOLDERS' AGREEMENT, dated as of April 9, 1998
(this "Amendment"), by and among KeyCorp Shareholder Services, Inc. (successor
by merger to Ameritrust Company National Association), as depository
("Depository"), the Participating Stockholders under the Stockholders'
Agreement, dated as of March 15, 1990, as amended, NACCO Industries, Inc. 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"), by and among each of the signatories identified therein, NACCO
Industries, Inc., a Delaware corporation (the "Corporation"), and the
Depository. 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:
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(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
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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 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.
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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
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
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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 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
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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 ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, ▇▇., ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇,
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 capacities to:
(a) Execute any and all statements under Section 13 or Section
16 of the Securities Exchange Act of 1934, as amended, 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 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
(b) Execute and deliver any and all Amendments whereby a
Family Member or a Charitable Organization or a Participating
Stockholder Organization becomes a Participating Stockholder, 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
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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 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.
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.
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as Custodian for ▇▇▇▇▇▇
(▇▇▇▇▇▇) ▇▇▇▇▇▇ under the Virginia Uniform
Gifts to Minors Act
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------- --------------------------------
Witness Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Date as of: April 9, 1998
Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Number of Shares of
Class B Common Stock
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STATE OF VIRGINIA )
) SS:
COUNTY OF HENRICE )
Before me, a Notary Public in and for said State and County, personally
appeared the above-named ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, not individually but as custodian for
▇▇▇▇▇▇ (▇▇▇▇▇▇) ▇▇▇▇▇▇, who acknowledged that he did sign the foregoing
instrument as custodian and that the same is his free act and deed.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal at
Richmond, Virginia this 14th day of April 1998.
/s/ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------
[Notarial Seal] Notary Public
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as Trustee of Irrevocable
Trust No. 1 fbo ▇▇▇▇ ▇▇▇▇▇▇ dated December
18, 1997, ▇▇▇▇▇ ▇▇▇▇▇▇, Grantor
/s/ Authorized Signatory By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------- ----------------------------------
Witness Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Date as of: April 9, 1998
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Number of Shares of
Class B Common Stock
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STATE OF OHIO )
) SS:
COUNTY OF CUYAHOGA )
Before me, a Notary Public in and for said State and County, personally
appeared the above-named ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, not individually but as trustee fbo
▇▇▇▇ ▇▇▇▇▇▇, who acknowledged that she did sign the foregoing instrument as
trustee and that the same is her free act and deed.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal at
Gates ▇▇▇▇▇, Ohio this 14th day of April 1998.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
[Notarial Seal] Notary Public
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as Trustee of Irrevocable
Trust No. 1 fbo ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ dated
December 18, 1997, ▇▇▇▇▇ ▇▇▇▇▇▇, Grantor
/s/ Authorized Signatory By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------- ----------------------------------
Witness Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Date as of: April 9, 1998
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Number of Shares of
Class B Common Stock
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STATE OF OHIO )
) SS:
COUNTY OF CUYAHOGA )
Before me, a Notary Public in and for said State and County, personally
appeared the above-named ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, not individually but as trustee fbo
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, who acknowledged that she did sign the foregoing instrument as
trustee and that the same is her free act and deed.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal at
Gates ▇▇▇▇▇, Ohio this 14th day of April 1998.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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[Notarial Seal] Notary Public
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▇▇▇▇▇▇ ASSOCIATES II, L.P.
By: ▇▇▇▇▇▇ MANAGEMENT, INC., as
general partner
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
---------------------------- --------------------------------
Witness Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., President
Date as of: April 9, 1998
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Number of Shares of
Class B Common Stock
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STATE OF OHIO )
) SS:
COUNTY OF CUYAHOGA )
Before me, a Notary Public in and for said State and County, personally
appeared on behalf of ▇▇▇▇▇▇ Associates, L.P., a Delaware limited partnership,
and ▇▇▇▇▇▇ Management, Inc. (hereinafter "RMI"), as general partner, ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, ▇▇., RMI's president, who acknowledged that he did sign the foregoing
instrument on behalf of said partnership and corporation by authority of their
general partner and board of directors, respectively, and that the same is the
free act and deed of said limited partnership and corporation and their free act
and deed as such officer.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal at
Cleveland, Ohio this 14th day of April 1998.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
------------------------------------
[Notarial Seal] Notary Public
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▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. as Custodian for ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ under the Ohio Transfers to
Minors Act
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
---------------------------- ----------------------------------
Witness Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Capacity: Custodian
Date as of: April 9, 1998
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Number of Shares of
Class B Common Stock
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STATE OF OHIO )
) SS:
COUNTY OF CUYAHOGA )
Before me, a Notary Public in and for said State and County, personally
appeared the above-named ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., not individually but as custodian
for ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, who acknowledged that he did sign the foregoing
instrument as custodian and that the same is his free act and deed.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal at
Cleveland, Ohio this 13th day of April 1998.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
----------------------------------
[Notarial Seal] Notary Public
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▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
---------------------------- ----------------------------------
Witness ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Date as of: April 9, 1998
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇-▇▇▇▇
Number of Shares of
Class B Common Stock
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STATE OF OHIO )
) SS:
COUNTY OF CUYAHOGA )
Before me, a Notary Public in and for said State and County, personally
appeared the above-named ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., who acknowledged that he did sign
the foregoing instrument, and that the same is his free act and deed.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal at
Cleveland, Ohio this 13th day of April 1998.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
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[Notarial Seal] Notary Public
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KeyCorp Shareholder Service, Inc.
as Depository
▇/▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. Gob By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------- ----------------------------------
Witness
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------
Witness
/s/ ▇▇▇▇▇ ▇. Gob And:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------- ----------------------------------
Witness
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------
Witness
STATE OF OHIO )
) SS:
COUNTY OF CUYAHOGA )
Before me, a Notary Public in and for said State and County, personally
appeared KeyCorp Shareholder Services, Inc., not individually but as Depository,
by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, its Assistant Secretary and President,
respectively, who acknowledged that they did sign the foregoing on behalf of
said Depository by authority of its board of directors and it is the same as the
free act and deed of such depository and their free act and deed as such
officers.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal at
Cleveland, Ohio this 29th day of December 1998.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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[Notarial Seal] Notary Public
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NACCO INDUSTRIES, INC.
/s/ Authorized Signatory By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
---------------------------- ----------------------------------
Witness
/s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------
Witness
/s/ Authorized Signatory By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
---------------------------- ----------------------------------
Witness
/s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------
Witness
STATE OF OHIO )
) SS:
COUNTY OF CUYAHOGA )
Before me, a Notary Public in and for said State and County, personally
appeared NACCO Industries, Inc., a Delaware corporation, by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
▇▇. and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇, its Chairman, President and CEO and Vice
President, General Counsel and Secretary, respectively, who acknowledged that
they did sign the foregoing instrument on behalf of said corporation by
authority of its board of directors, and that the same is the free act and deed
of said corporation and their free act and deed as such officers.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal at
Cleveland, Ohio, this 8th day of September 1998.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
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[Notarial Seal] Notary Public
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THE PARTICIPATING STOCKHOLDERS listed in
Exhibit A attached hereto and incorporated
herein by this reference
/s/ Authorized Signatory By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
---------------------------- ----------------------------------------
Witness ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Attorney-in-Fact
/s/ Authorized Signatory
----------------------------
Witness
STATE OF OHIO )
) SS:
COUNTY OF CUYAHOGA )
Before me, a Notary Public in and for said State and County, personally
appeared the Participating Stockholders listed on Exhibit A hereto by their
attorney-in-fact ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., who acknowledged that he did sign the
foregoing instrument as attorney-in-fact for the Participating Stockholders, and
that the same is the free act and deed of the Participating Stockholders and his
free act and deed as attorney-in-fact.
IN TESTIMONY WHEREOF, I hereunto set my hand and official seal at Gates
▇▇▇▇▇, Ohio, this 8th day of September 1998.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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[Notarial Seal] Notary Public
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