-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, WAdWY/d+EUVioLTWkOneZ4KjazZ7D0sH2shf4P3cNXitXzeDsThGZ6eGVxwcBhxk cjtqlXmXQG5hBnj2ksdajQ== 0000950152-96-006203.txt : 19961120 0000950152-96-006203.hdr.sgml : 19961120 ACCESSION NUMBER: 0000950152-96-006203 CONFORMED SUBMISSION TYPE: SC 13E4 PUBLIC DOCUMENT COUNT: 12 FILED AS OF DATE: 19961118 SROS: NYSE SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: NACCO INDUSTRIES INC CENTRAL INDEX KEY: 0000789933 STANDARD INDUSTRIAL CLASSIFICATION: INDUSTRIAL TRUCKS TRACTORS TRAILERS & STACKERS [3537] IRS NUMBER: 341505819 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13E4 SEC ACT: 1934 Act SEC FILE NUMBER: 005-38001 FILM NUMBER: 96668312 BUSINESS ADDRESS: STREET 1: 5875 LANDERBROOK DR CITY: MAYFIELD HTS STATE: OH ZIP: 44124-4017 BUSINESS PHONE: 2164499600 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: NACCO INDUSTRIES INC CENTRAL INDEX KEY: 0000789933 STANDARD INDUSTRIAL CLASSIFICATION: INDUSTRIAL TRUCKS TRACTORS TRAILERS & STACKERS [3537] IRS NUMBER: 341505819 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13E4 BUSINESS ADDRESS: STREET 1: 5875 LANDERBROOK DR CITY: MAYFIELD HTS STATE: OH ZIP: 44124-4017 BUSINESS PHONE: 2164499600 SC 13E4 1 NACCO INDUSTRIES, INC. SCHEDULE 13E-4 1 ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------ SCHEDULE 13E-4 ISSUER TENDER OFFER STATEMENT (Pursuant to Section 13(e)(1) of the Securities Exchange Act of 1934) NACCO INDUSTRIES, INC. (Exact Name of Issuer as Specified in Charter) NACCO INDUSTRIES, INC. (Name of Person(s) Filing Statement) CLASS A COMMON STOCK, PAR VALUE $1.00 PER SHARE (Title of Class of Securities) 629579 10 3 (CUSIP Number of Class of Securities) ------------------ CHARLES A. BITTENBENDER, ESQ. VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY NACCO INDUSTRIES, INC. 5875 LANDERBROOK DRIVE MAYFIELD HEIGHTS, OHIO 44124-4017 (216) 449-9600 (Name, Address and Telephone Number of Person Authorized to Receive Notice and Communications on Behalf of the Person(s) Filing Statement) COPY TO: DENNIS W. LABARRE, ESQ. JONES, DAY, REAVIS & POGUE 599 LEXINGTON AVENUE NEW YORK, NEW YORK 10022 (212) 326-3939 November 18, 1996 (Date Tender Offer First Published, Sent or Given to Security Holders) ================================================================================ TRANSACTION VALUATION AMOUNT OF FILING FEE - -------------------------------------------------------------------------------- [S] [C] $40,000,000* $8,000 ================================================================================ * Calculated solely for purposes of determining the filing fee in accordance with Section 13(e)(3) of the Securities Exchange Act of 1934 and Rule O-11 thereunder. This amount assumes the purchase of 800,000 shares of Class A Common Stock at $50.00, net in cash per share. [ ] Check box if any part of the fee is offset as provided by Rule O-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, on the form or schedule and the date of its filing. ================================================================================ Page 1 of 6 Pages Exhibit Index on Page 2 This Issuer Tender Offer Statement on Schedule 13E-4 (this "Schedule 13E-4") relates to an issuer tender offer being conducted by NACCO Industries, Inc., a Delaware corporation (the "Company"). The Offer is for the purchase by the Company of up to 800,000 shares of its Class A Common Stock, par value $1.00 per share (the "Shares"). The purchase price for each Share will be not greater than $50.00 nor less than $43.50 per Share, net to the seller in cash, specified by the tendering shareholders, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated November 18, 1996 (the "Offer to Purchase"), and the related Letter of Transmittal (the "Letter of Transmittal," which together with the Offer to Purchase constitute the "Offer"), copies of which are attached hereto as Exhibits (a)(1) and (a)(2), respectively. ITEM 1. SECURITY AND ISSUER. (a) The name of the issuer is NACCO Industries, Inc., and the address of its principal executive office is 5875 Landerbrook Drive, Mayfield Heights, Ohio 44124-4017. (b) The class of securities to which this Schedule 13E-4 relates is the Shares. The information set forth on the front cover page of, and in "Introduction," "Number of Shares; Proration," "Acceptance for Payment of Shares and Payment of Purchase Price," "Interests of Certain Persons; Transactions and Arrangements Concerning the Shares" and "Extension of Offer; Termination; Amendments" in the Offer to Purchase is incorporated herein by reference. (c) The information set forth in "Introduction" and "Price Range of Shares; Dividends" in the Offer to Purchase is incorporated herein by reference. (d) Not applicable. ITEM 2. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION. (a)-(b) The information set forth in "Source and Amount of Funds" in the Offer to Purchase is incorporated herein by reference. ITEM 3. PURPOSE OF THE TENDER OFFER AND PLANS OR PROPOSALS OF THE ISSUER OR AFFILIATE. (a)-(j) The information set forth in "Introduction," "Background and Purpose of the Offer," "Certain Information About Us -- Plans and Proposals," "Certain Effects of the Offer," and "Interests of Certain Persons; Transactions and Arrangements Concerning the Shares" in the Offer to Purchase is incorporated herein by reference. ITEM 4. INTEREST IN SECURITIES OF THE ISSUER. The information set forth in "Interests of Certain Persons; Transactions and Arrangements Concerning the Shares" and "Schedule A -- Certain Transactions Involving the Shares" in the Offer to Purchase is incorporated herein by reference. ITEM 5. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO THE ISSUER'S SECURITIES. The information set forth in "Interests of Certain Persons; Transactions Concerning the Shares" and "Schedule A -- Certain Transactions Involving the Shares" in the Offer to Purchase is incorporated herein by reference. ITEM 6. PERSONS RETAINED, EMPLOYED OR TO BE COMPENSATED. The information set forth in "Source and Amount of Funds" and "Fees and Expenses" in the Offer to Purchase is incorporated herein by reference. ITEM 7. FINANCIAL INFORMATION. (a)-(b) The financial information set forth in "Certain Information About Us -- Summary Historical and Pro Forma Financial Information" in the Offer to Purchase is incorporated herein by reference. The financial information set forth on pages F-1 through F-33 of the Company's Annual Report on Form 10-K for Page 2 of 6 Pages 3 the fiscal year ended December 31, 1995, a copy of which is filed as Exhibit (g)(1) hereto, is incorporated herein by reference. The financial information set forth on pages 3 through 9 of the Company's Quarterly Report on Form 10-Q for the period ended September 30, 1996, a copy of which is filed as Exhibit (g)(2), is incorporated herein by reference. ITEM 8. ADDITIONAL INFORMATION. (a) Not applicable. (b) The information set forth in "Certain Legal Matters; Regulatory and Other Approvals" in the Offer to Purchase is incorporated herein by reference. (c) The information set forth in "Certain Effects of the Offer" in the Offer to Purchase is incorporated herein by reference. (d) Not applicable. (e) All of the information set forth in the Offer to Purchase and the related Letter of Transmittal, copies of which are filed as Exhibits (a)(1) and (a)(2), respectively, hereto, is incorporated herein by reference. ITEM 9. MATERIAL TO BE FILED AS EXHIBITS. (a) (1) Form of Offer to Purchase, dated November 18, 1996. (2) Form of Letter of Transmittal. (3) Form of Notice of Guaranteed Delivery. (4) Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies, and Other Nominees. (5) Form of Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies, and Other Nominees. (6) Form of Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9. (7) Form of Letter to the Company's Shareholders. (8) Form of News Release issued by the Company on November 15, 1996. (9) Form of Summary Advertisement published on November 18, 1996. (b) (1) Credit Agreement, dated as of September 27, 1991, among The North American Coal Corporation, the banks listed on the signatory pages and Morgan Guaranty Trust Company of New York, as Agent (incorporated by reference to Exhibit 10(xcii) to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1991). (2) Amendment No. 1 to the Credit Agreement, dated as of July 28, 1993, among The North American Coal Corporation, the banks listed on the signatory pages and Morgan Guaranty Trust Company of New York, as Agent (incorporated by reference to Exhibit 10(cxxxxiii) to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1993). (3) Amendment No. 2 to the Credit Agreement, dated as of September 27, 1995, among The North American Coal Corporation, the banks listed on the signatory pages and Morgan Guaranty Trust Company of New York, as Agent (incorporated by reference to Exhibit 10(xxxix) to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1995). (4) Credit Agreement, dated as of February 28, 1995, among NACCO Materials Handling Group, Inc., Morgan Guaranty Trust Company of New York, as Agent, and the other banks listed thereto (incorporated by reference to Exhibit 10(lxxxviii) of the Hyster-Yale Materials Handling, Inc. Annual Report on Form 10-K for the fiscal year ended December 31, 1994). (5) Amended and Restated Credit Agreement, dated as of June 4, 1996, among NACCO Materials Handling Group, Inc., the Banks party thereto, the Co-Arrangers and Co-Agents listed on the signature page thereto and Morgan Guaranty Trust Company of New York, as Agent (incorporated by reference to Exhibit 10(lxxv) to the Company's Quarterly Report on Form 10-Q for the period ended June 30, 1996). (c) Not applicable.
Page 3 of 6 Pages 4 (d) Opinion of Jones, Day, Reavis & Pogue regarding certain U.S. federal income tax consequences of the Offer. (e) Not applicable. (f) Not applicable. (g) (1) Audited Financial Statements of the Company as of December 31, 1995 and 1994 and for the fiscal years ended December 31, 1995, 1994 and 1993 (incorporated by reference to pages F-1 through F-33 to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1995). (2) Unaudited Financial Statements of the Company as of and for the period ending September 30, 1996 (incorporated by reference to pages 3 through 9 to the Company's Quarterly Report on Form 10-Q for the period ended September 30, 1996). (3) Consent of Arthur Andersen LLP, dated November 15, 1996.
Page 4 of 5 Pages 5 SIGNATURE After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Schedule 13E-4 is true, complete and correct. NACCO INDUSTRIES, INC. November 18, 1996 By: /s/ Alfred M. Rankin, Jr. -------------------------------- Alfred M. Rankin, Jr. Chairman, President and Chief Executive Officer Page 5 of 6 Pages 6 EXHIBIT INDEX
EXHIBITS - --------- (a) (1) Form of Offer to Purchase, dated November 18, 1996........................ (2) Form of Letter of Transmittal............................................. (3) Form of Notice of Guaranteed Delivery..................................... (4) Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies, and Other Nominees............................................................ (5) Form of Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies, and Other Nominees....................................... (6) Form of Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9....................................................... (7) Form of Letter to the Company's Shareholders.............................. (8) Form of News Release issued by the Company on November 15, 1996........... (9) Form of Summary Advertisement published on November 18, 1996.............. (b) (1) Credit Agreement, dated as of September 27, 1991, among The North American Coal Corporation, the banks listed on the signatory pages and Morgan Guaranty Trust Company of New York, as Agent (incorporated by reference to Exhibit 10(xcii) to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1991)...................................... (2) Amendment No. 1 to the Credit Agreement, dated as of July 28, 1993, among The North American Coal Corporation, the banks listed on the signatory pages and Morgan Guaranty Trust Company of New York, as Agent (incorporated by reference to Exhibit 10(cxxxxiii) to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1993).......... (3) Amendment No. 2 to the Credit Agreement, dated as of September 27, 1995, among The North American Coal Corporation, the banks listed on the signatory pages and Morgan Guaranty Trust Company of New York, as Agent (incorporated by reference to Exhibit 10(xxxix) to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1995).......... (4) Credit Agreement, dated as of February 28, 1995, among NACCO Materials Handling Group, Inc., Morgan Guaranty Trust Company of New York, as Agent, and the other banks listed thereto (incorporated by reference to Exhibit 10(lxxxviii) of the Hyster-Yale Materials Handling, Inc. Annual Report on Form 10-K for the fiscal year ended December 31, 1994).................... (5) Amended and Restated Credit Agreement, dated as of June 4, 1996, among NACCO Materials Handling Group, Inc., the Banks party thereto, the Co-Arrangers and Co-Agents listed on the signature page thereto and Morgan Guaranty Trust Company of New York, as Agent (incorporated by reference to Exhibit 10(lxxv) to the Company's Quarterly Report on Form 10-Q for the period ended June 30, 1996)............................................... (d) Opinion of Jones, Day, Reavis & Pogue regarding certain U.S. federal income tax consequences of the Offer...................................................... (g) (1) Audited Financial Statements of the Company as of December 31, 1995 and 1994 and for the fiscal years ended December 31, 1995, 1994 and 1993 (incorporated by reference to pages F-1 through F-33 to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1995)... (2) Unaudited Financial Statements of the Company as of and for the period ending September 30, 1996 (incorporated by reference to pages 3 through 9 to the Company's Quarterly Report on Form 10-Q for the period ended September 30, 1996)....................................................... (3) Consent of Arthur Andersen LLP, dated November 15, 1996...................
Page 6 of 6 Pages EX-1.A 2 EXHIBIT 1(A) 1 Exhibit (a)(1) -------------- NACCO INDUSTRIES, INC. OFFER TO PURCHASE FOR CASH UP TO 800,000 SHARES OF ITS CLASS A COMMON STOCK ------------------------ THE OFFER, PRORATION PERIOD, AND WITHDRAWAL RIGHTS EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON MONDAY, DECEMBER 16, 1996, UNLESS THE OFFER IS EXTENDED. ------------------------ NACCO Industries, Inc., a Delaware corporation ("NACCO," "we," "us," or "our" below), invites its shareholders ("you" or "your" below) to tender shares of our Class A Common Stock, par value $1.00 per share (the "Class A Shares" or the "Shares"), at prices you specify within the range of $43.50 to $50.00 per Share, on the terms and subject to the conditions set out in this Offer to Purchase and in the related Letter of Transmittal (which together constitute the "Offer"). We will determine a single price per Share within the range of $43.50 to $50.00 that we will pay for Shares properly tendered pursuant to the Offer (the "Purchase Price"), taking into account the number of Shares so tendered and the prices specified by tendering shareholders. We will select the lowest Purchase Price which will allow us to purchase 800,000 Shares, or such smaller number as are properly tendered at prices within the range of $43.50 to $50.00, pursuant to the Offer. We will then purchase all Shares properly tendered and not withdrawn at prices at or below the Purchase Price, on the terms and subject to the conditions of the Offer, including the proration and "odd-lot" terms set forth herein. ------------------------ THE OFFER IS NOT CONDITIONED ON ANY MINIMUM NUMBER OF SHARES BEING TENDERED. THE OFFER IS, HOWEVER, SUBJECT TO OTHER CONDITIONS. SEE "CERTAIN CONDITIONS OF THE OFFER." ------------------------ IMPORTANT If you want to tender any or all of your Shares, you should either: (1) complete and sign the Letter of Transmittal or a copy of it according to the instructions in the Letter of Transmittal, mail or deliver it and any other required documents to First Chicago Trust Company of New York (the "Depositary"), and either mail or deliver the stock certificates for your Shares to the Depositary or follow the procedure for book-entry delivery set out in "How to Tender Shares -- Book-Entry Delivery"; or (2) ask your broker, dealer, commercial bank, trust company, or other nominee to effect the transaction for you. If your Shares are registered in the name of a broker, dealer, commercial bank, trust company, or other nominee, you must contact that nominee if you want to tender those Shares. If you want to tender Shares but your certificate for those Shares is not immediately available, you should tender those Shares by following the procedures for guaranteed delivery set out in "How to Tender Shares -- Guaranteed Delivery." NEITHER WE NOR OUR BOARD OF DIRECTORS MAKES ANY RECOMMENDATION TO YOU AS TO WHETHER TO TENDER OR REFRAIN FROM TENDERING SHARES. YOU MUST MAKE YOUR OWN DECISION WHETHER TO TENDER SHARES AND, IF SO, HOW MANY SHARES TO TENDER AND AT WHAT PRICE OR PRICES. WE HAVE BEEN INFORMED BY SUCH PERSONS THAT NONE OF OUR DIRECTORS, EXECUTIVE OFFICERS, OR FAMILY SHAREHOLDERS INTENDS TO TENDER ANY SHARES PURSUANT TO THE OFFER. ------------------------ TO TENDER SHARES PROPERLY, YOU MUST COMPLETE THE SECTION OF THE LETTER OF TRANSMITTAL RELATING TO THE PRICE AT WHICH YOU ARE TENDERING SHARES. ------------------------ We are making the Offer (i) because our Board of Directors believes that the purchase of Shares pursuant to the Offer constitutes a prudent use of our financial resources, given our business profile, assets, and prospects and (ii) to afford those shareholders who desire liquidity an opportunity to sell all or a portion of their Shares without the usual transaction costs associated with open market sales. If you are considering the sale of all or a portion of your Shares, the Offer also gives you the opportunity to determine the minimum price at which you are willing to sell your Shares. The Offer may also give you the opportunity to sell Shares at prices greater than the market price of the Shares prevailing before we announced the Offer. The Shares are listed and traded on the New York Stock Exchange under the symbol NC. On November 15, 1996, the last trading day before we announced the Offer, the closing sales price per Share as reported on the NYSE Composite Tape was $43.25. We urge you to obtain current market quotations for the Shares. We also have outstanding Class B Common Stock, par value $1.00 per share (the "Class B Shares"). Because of transfer restrictions, no trading market has developed, or is expected to develop, for the Class B Shares. The Class B Shares are not subject to the Offer; however, the Class B Shares are convertible into Class A Shares on a one-for-one basis. If you hold Class B Shares and would like to tender Class A Shares into the Offer, you must first notify Key Shareholder Services, the transfer agent for the Shares (the "Transfer Agent"), in writing, of your desire to convert some or all of your Class B Shares into Class A Shares, and enclose share certificates representing the Class B Shares you would like to so convert and executed stock powers with respect to such certificates. In considering whether you should convert Class B Shares into Class A Shares in order to tender Class A Shares into the Offer, please note that: (i) each Class B Share is entitled to ten votes per share while each Class A Share is entitled to only one vote per Share; (ii) once you convert your Class B Shares into Class A Shares and tender such Shares into the Offer you cannot convert your Class A Shares back into Class B Shares in the event that such Class A Shares are not purchased in the Offer; (iii) you may not have any such Class A Shares purchased in the Offer because the price specified by you may exceed the Purchase Price; and (iv) some portion of the Class A Shares that you tender into the Offer may not be purchased pursuant to the Offer due to proration. See "How to Tender Shares -- Class B Shares." Please contact the Information Agent or the Dealer Manager at the addresses and telephone numbers set forth on the back cover of this Offer to Purchase if you have questions, need help, or would like more copies of this Offer to Purchase, the Letter of Transmittal or the Notice of Guaranteed Delivery. The Dealer Manager for the Offer is: J.P. MORGAN & CO. NOVEMBER 18, 1996 2 [THIS PAGE INTENTIONALLY LEFT BLANK] 3 WE HAVE NOT AUTHORIZED ANY PERSON, ON OUR BEHALF: (A) TO RECOMMEND WHETHER OR NOT YOU SHOULD TENDER SHARES PURSUANT TO THE OFFER; OR (B) TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS IN CONNECTION WITH THE OFFER OTHER THAN THOSE CONTAINED IN THIS OFFER TO PURCHASE OR IN THE LETTER OF TRANSMITTAL. DO NOT RELY ON ANY SUCH RECOMMENDATION, INFORMATION, OR REPRESENTATIONS, IF GIVEN OR MADE, AS HAVING BEEN AUTHORIZED BY US. TABLE OF CONTENTS
SECTION PAGE - ---- ---- INTRODUCTION............................................................................ 1 1. Number of Shares; Proration...................................................... 2 (a) Number of Shares............................................................. 2 (b) Proration.................................................................... 3 2. Tenders by Holders of Fewer Than 100 Shares...................................... 4 3. How to Tender Shares............................................................. 4 (a) Proper Tender of Shares...................................................... 4 (b) Signature Guarantees and Method of Delivery.................................. 5 (c) Backup Federal Income Tax Withholding........................................ 5 (d) Book-Entry Delivery.......................................................... 5 (e) Guaranteed Delivery.......................................................... 6 (f) Class B Shares............................................................... 6 (g) Tender Constitutes an Agreement.............................................. 7 (h) Determination of Validity; Rejection of Shares; Waiver of Defects; No Obligation to Give Notice of Defects............................................. 7 4. Withdrawal Rights................................................................ 7 5. Acceptance for Payment of Shares and Payment of Purchase Price................... 8 6. Certain Conditions of the Offer.................................................. 9 7. Price Range of Shares; Dividends................................................. 11 8. Background and Purpose of the Offer.............................................. 11 9. Source and Amount of Funds....................................................... 12 10. Certain Information About Us..................................................... 13 (a) NACCO Materials Handling Group, Inc.......................................... 13 (b) Hamilton Beach S Proctor-Silex, Inc.......................................... 13 (c) The North American Coal Corporation.......................................... 13 (d) The Kitchen Collection, Inc.................................................. 13 (e) Recent Developments.......................................................... 14 (f) Summary Historical and Pro Forma Financial Information....................... 14 (g) Additional Information....................................................... 17 (h) Plans and Proposals.......................................................... 17 11. Interests of Certain Persons; Transactions and Arrangements Concerning the Shares........................................................................... 17 12. Certain Effects of the Offer..................................................... 18 13. Certain Legal Matters; Regulatory and Other Approvals............................ 19
i 4
SECTION PAGE - ---- ---- 14. Certain Federal Income Tax Consequences.......................................... 19 (a) In General................................................................... 19 (b) Dividend vs. Exchange Treatment.............................................. 19 (c) Timing of Income Recognition................................................. 21 (d) Corporate Dividends-Received Deduction....................................... 22 (e) Foreign Shareholders......................................................... 22 (f) Effect on Non-Selling Shareholders........................................... 23 15. Extension of Offer; Termination; Amendments...................................... 23 16. Fees and Expenses................................................................ 24 17. Miscellaneous.................................................................... 25 Schedule A -- Certain Transactions Involving the Shares................................. 26
ii 5 TO THE HOLDERS OF SHARES OF CLASS A COMMON STOCK OF NACCO INDUSTRIES, INC.: INTRODUCTION NACCO Industries, Inc., a Delaware corporation ("NACCO," "we," "us," or "our" below), invites its shareholders ("you" or "your" below), to tender shares of our Class A Common Stock, par value $1.00 per share (the "Class A Shares" or the "Shares"), at prices you specify within the range of $43.50 to $50.00 per Share, on the terms and conditions set out in this Offer to Purchase and in the related Letter of Transmittal (which together constitute the "Offer"). We will determine a single price per Share within the range of $43.50 to $50.00 that we will pay for Shares properly tendered pursuant to the Offer (the "Purchase Price"), taking into account the number of Shares so tendered and the prices specified by tendering shareholders. We will select the lowest Purchase Price which will allow us to purchase 800,000 Shares, or such smaller number as are properly tendered at prices within the range of $43.50 to $50.00, pursuant to the Offer. We will then purchase all Shares properly tendered and not withdrawn at prices at or below the Purchase Price, on the terms and subject to the conditions of the Offer, including the proration and "odd-lot" terms set forth herein. WHILE THE OFFER IS NOT CONDITIONED ON ANY MINIMUM NUMBER OF SHARES BEING TENDERED, IT IS SUBJECT TO CERTAIN OTHER CONDITIONS. SEE "CERTAIN CONDITIONS OF THE OFFER." If before 12:00 midnight, New York City time, on December 16, 1996 (or such later time and date to which we may extend the Offer in accordance with the terms of the Offer as described in "Extension of Offer; Termination; Amendments"), more than 800,000 Shares are properly tendered at or below the Purchase Price and not withdrawn, we will purchase Shares first from Odd Lot Holders (as defined in "Tenders by Holders of Fewer Than 100 Shares") who properly tender all of their Shares, at or below the Purchase Price, and then on a pro rata basis from all other shareholders who properly tender Shares, at or below the Purchase Price. See "Number of Shares; Proration" and "Tenders by Holders of Fewer Than 100 Shares." We will promptly determine the Purchase Price for the Shares, and, as soon as practicable thereafter, pay tendering shareholders for the Shares accepted pursuant to the Offer. We will promptly return, at our expense, all Shares not purchased pursuant to the Offer, including Shares tendered and not withdrawn at prices greater than the Purchase Price and Shares not purchased because of proration. If you tender Shares, you will not have to pay brokerage commissions, solicitation fees, or, subject to Instruction 8 of the Letter of Transmittal, stock transfer taxes on our purchase of such Shares pursuant to the Offer. See "Number of Shares; Proration" and "Acceptance for Payment of Shares and Payment of Purchase Price." In addition, we will pay all fees and expenses of J.P. Morgan Securities Inc. (the "Dealer Manager"), First Chicago Trust Company of New York (the "Depositary"), and MacKenzie Partners, Inc. (the "Information Agent") in connection with the Offer. See "Fees and Expenses." NEITHER WE NOR OUR BOARD OF DIRECTORS MAKES ANY RECOMMENDATION TO YOU AS TO WHETHER OR NOT TO TENDER SHARES. YOU MUST MAKE YOUR OWN DECISION WHETHER TO TENDER SHARES AND, IF SO, HOW MANY SHARES TO TENDER AND AT WHAT PRICE OR PRICES. WE HAVE BEEN INFORMED BY SUCH PERSONS THAT NONE OF OUR DIRECTORS, EXECUTIVE OFFICERS, OR FAMILY SHAREHOLDERS (AS DEFINED IN "CERTAIN EFFECTS OF THE OFFER") INTENDS TO TENDER ANY SHARES PURSUANT TO THE OFFER. On November 15, 1996, we announced that our Board of Directors had approved a 1.5 million share repurchase program for the Shares, which is comprised of the Offer for the purchase of up to 800,000 Shares and an open market purchase program that we expect to implement following the expiration of the Offer over the next two fiscal years for the purchase of up to 700,000 Shares. However, to the extent that we do not purchase 800,000 Shares pursuant to the Offer, we may purchase additional Shares in the open market purchase program equal to the shortfall between 800,000 Shares and the number of Shares purchased in the Offer. We expressly reserve the right, in our sole discretion, to purchase up to an additional 2% of the outstanding Shares pursuant to the Offer without the need to extend the Offer. See "Background and Purpose of the Offer." Neither the Offer nor the open market purchase program applies to the Class B Shares (as defined below); however, we may purchase Class B Shares in the future. See "Certain Effects of the Offer." 1 6 We are making the Offer (i) because our Board of Directors believes that the purchase of Shares pursuant to the Offer constitutes a prudent use of our financial resources, given our business profile, assets, and prospects and (ii) to afford those shareholders who desire liquidity an opportunity to sell all or a portion of their Shares without the usual transaction costs associated with open market sales. If you are considering the sale of all or a portion of your Shares, the Offer also gives you the opportunity to determine the minimum price at which you are willing to sell your Shares. The Offer may also give you the opportunity to sell Shares at prices greater than the market price of the Shares prevailing before we announced the Offer. See "Background and Purpose of the Offer." The 800,000 Shares that we are offering to purchase pursuant to the Offer represent approximately 11.0% of the 7,287,858 Shares of Class A Common Stock outstanding as of November 13, 1996. The Shares are listed and traded on the New York Stock Exchange ("NYSE") under the symbol NC. On November 15, 1996, the last trading day before we announced the Offer, the closing sales price per Share as reported on the NYSE Composite Tape was $43.25. We urge you to obtain current market quotations for the Shares. See "Price Range of Shares; Dividends." We also have outstanding Class B Common Stock, par value $1.00 per share (the "Class B Shares"). Because of transfer restrictions, no trading market has developed, or is expected to develop, for the Class B Shares. The Class B Shares are not subject to the Offer; however, the Class B Shares are convertible into Class A Shares on a one-for-one basis. If you hold Class B Shares and would like to tender Class A Shares into the Offer, you must first notify Key Shareholder Services, the transfer agent for the Shares (the "Transfer Agent"), at 4900 Tiedeman Road, Stock Transfer Department, 1st Floor, Brooklyn, Ohio 44144, in writing, of your desire to convert some or all of your Class B Shares into Class A Shares, and enclose share certificates representing the Class B Shares you would like to so convert and executed stock powers with respect to such certificates. PLEASE NOTE THAT YOU SHOULD ALLOW 10 TO 14 BUSINESS DAYS FOR SUCH CONVERSION AND THAT SHARE CERTIFICATES REPRESENTING TENDERED SHARES MUST BE RECEIVED BY THE DEPOSITARY BY THE EXPIRATION DATE, OR UP TO THREE NYSE TRADING DAYS THEREAFTER IF YOU FOLLOW THE PROCEDURES FOR GUARANTEED DELIVERY SET FORTH BELOW. In considering whether you should convert Class B Shares into Class A Shares in order to tender Class A Shares into the Offer, please note that: (i) each Class B Share is entitled to ten votes per share while each Class A Share is entitled to only one vote per Share; (ii) once you convert your Class B Shares into Class A Shares and tender such Shares into the Offer you cannot convert your Class A Shares back into Class B Shares in the event that such Class A Shares are not purchased in the Offer; (iii) you may not have any such Class A Shares purchased in the Offer because the price specified by you may exceed the Purchase Price; and (iv) some portion of the Class A Shares that you tender into the Offer may not be purchased pursuant to the Offer due to proration. See "How to Tender Shares -- Class B Shares." 1. NUMBER OF SHARES; PRORATION. (a) Number of Shares. We will purchase 800,000 Shares, or such smaller number of Shares as are properly tendered (and not withdrawn in accordance with the procedures described in "Withdrawal Rights") on or before the Expiration Date at a price within the range of $43.50 to $50.00 per Share. "Expiration Date" means 12:00 midnight, New York City time, on December 16, 1996, unless we extend the Offer; then, "Expiration Date" shall mean the time and date to which we have extended the Offer. See "Extension of Offer; Termination; Amendments" for a description of our right to extend, delay, terminate, or amend the Offer. Except as described in "Tenders by Holders of Fewer Than 100 Shares," if the Offer is over-subscribed, Shares tendered at or below the Purchase Price before the Expiration Date will be eligible for and subject to proration. We will determine the Purchase Price taking into account the number of Shares tendered and the prices specified by tendering shareholders. We will choose the lowest Purchase Price that will allow us to purchase 800,000 Shares, or such smaller number as are properly tendered at prices within the range of $43.50 to $50.00 per Share, pursuant to the Offer. We expressly reserve the right, in our sole discretion, to purchase up to an additional 2% of the outstanding Shares pursuant to the Offer without the need to extend the Offer. 2 7 If: (1) we announce an increase in the number of Shares we seek to purchase pursuant to the Offer and that increase exceeds 2% of the outstanding Shares, or if we announce a decrease in the number of Shares we seek to purchase pursuant to the Offer; and (2) we make that announcement (as specified in "Extension of Offer; Termination, Amendments") when the Offer is scheduled to expire less than ten business days from and including the date that we announce the increase or decrease, then we will extend the Offer for at least ten business days from and including the date of the announcement. See "Extension of Offer; Termination; Amendments." A "business day" means any day other than a Saturday, Sunday, or federal holiday, and consists of the period from 12:01 a.m. through 12:00 midnight, New York City time. If you want to tender Shares, you must specify the price (within the range of $43.50 to $50.00 per Share) at which you are willing to tender your Shares. See Instruction 5 of the Letter of Transmittal. You may submit separate Letters of Transmittal with different prices for Shares. As soon as practicable following the Expiration Date, and subject to the terms of the Offer, we will: (1) determine the Purchase Price (within the range of $43.50 to $50.00 per Share) that we will pay for Shares properly tendered pursuant to the Offer, taking into account the number of Shares tendered and the prices specified by tendering shareholders; (2) purchase all Shares tendered pursuant to the Offer at or below the Purchase Price, subject to proration as described in "-- Proration" below; and (3) return, at our expense, all Shares we do not purchase pursuant to the Offer, including Shares tendered at prices greater than the Purchase Price and Shares not purchased because of proration. For example, if you tender Shares at $47.00 per Share and the Purchase Price is set at $48.00 per Share, we will purchase, at $48.00 per Share, all of the Shares that you tendered (assuming no proration). But if you tender Shares at $49.00 per Share and the Purchase Price is set at $48.00 per Share, we will not purchase any of those Shares. NOTE THAT THIS EXAMPLE IS FOR ILLUSTRATION PURPOSES ONLY. IT DOES NOT REPRESENT ANY EXPECTATION AS TO THE POSSIBLE ACTUAL PURCHASE PRICE AND DOES NOT TAKE INTO ACCOUNT PRORATION WHICH MAY BE REQUIRED. (b) Proration. If, before the Expiration Date, shareholders properly tender and do not withdraw a greater number of Shares at or below the Purchase Price than we are offering to purchase pursuant to the Offer, we will accept Shares in the following order of priority: (1) all Shares properly tendered at or below the Purchase Price and not withdrawn before the Expiration Date by any shareholder who holds less than 100 Shares as of the close of business on November 13, 1996 ("Odd Lot Holder") and tenders all of his Shares and does not withdraw any such Shares, as described in "Tenders by Holders of Fewer Than 100 Shares" below; and then (2) all other Shares properly tendered at or below the Purchase Price and not withdrawn before the Expiration Date on a pro rata basis (with appropriate adjustments to avoid purchases of fractional Shares). If we prorate our purchase of tendered Shares, we will determine the final proration factor as soon as practicable after the Expiration Date. Although we do not expect to be able to announce the final proration results until approximately five NYSE trading days after the Expiration Date, we will announce preliminary results of proration by news release as soon as possible after the Expiration Date. You may obtain preliminary proration information from the Information Agent, and you may also be able to obtain such information from your broker. 3 8 2. TENDERS BY HOLDERS OF FEWER THAN 100 SHARES. If, as of the close of business on November 13, 1996, you beneficially held fewer than 100 Shares, you are an Odd Lot Holder. If the Offer is over-subscribed and we need to prorate the Shares we will accept for purchase, we will still accept for purchase, without proration, all Shares from Odd Lot Holders properly tendered, at or below the Purchase Price, and not withdrawn on or before the Expiration Date, subject to the terms of the Offer. If you are an Odd Lot Holder and want to avoid proration as to those Shares, however, you must: (a) complete the box captioned "Odd Lots" on the Letter of Transmittal and, if applicable, on the Notice of Guaranteed Delivery; and (b) properly tender at or below the Purchase Price all Shares that you beneficially own and not withdraw any such Shares. This preference is not available to you if you do not tender all Shares that you beneficially own, or if you beneficially hold 100 or more Shares, even if you have separate stock certificates for fewer than 100 Shares. As of November 13, 1996, there were approximately 705 holders of record of Shares, of which approximately 255 record holders, holding in the aggregate approximately 8,544 Shares, held fewer than 100 Shares. Because of the large number of Shares held in the names of brokers and nominees or in so-called "street name," we are unable to estimate the number of beneficial owners of fewer than 100 Shares or the aggregate number of Shares they own. 3. HOW TO TENDER SHARES. (a) Proper Tender of Shares. To tender your Shares properly pursuant to the Offer: (1) the Depositary must receive certificates for your Shares (or confirmation of receipt of your Shares pursuant to the procedures for book-entry delivery set out below), together with a properly completed and duly executed Letter of Transmittal (or a copy thereof) with any required signature guarantees and any other documents required by the Letter of Transmittal, on or before the Expiration Date at one of the Depositary's addresses set out on the back cover of this Offer to Purchase; or (2) you must comply with the guaranteed delivery procedure set out below. If your certificates for Shares have been lost or destroyed, contact the Information Agent for instructions regarding obtaining replacement certificates. Except to the extent you beneficially own Shares held in "street name" by the Book-Entry Transfer Facility (as defined in paragraph (b) below), in which case you should follow the procedures for book-entry delivery set forth in paragraph (d) below, you cannot tender Shares into the Offer unless you have certificates for such Shares. In all cases, we will pay for Shares tendered and accepted for payment pursuant to the Offer only after timely receipt by the Depositary of certificates for such Shares (or a timely confirmation of a book-entry transfer of such Shares into the Depositary's account at the Book-Entry Transfer Facility), a properly completed and duly executed Letter of Transmittal (or copy thereof), and any other documents required by the Letter of Transmittal. Instruction 5 of the Letter of Transmittal requires you to indicate in the section captioned "Price (In Dollars) Per Share At Which Shares Are Being Tendered" on the Letter of Transmittal the price (in multiples of $0.125) at which you are tendering your Shares. If you want to tender Shares at more than one price, you must complete separate Letters of Transmittal for each price at which you are tendering Shares. You cannot tender the same Shares at more than one price unless you previously withdrew them in accordance with the terms of the Offer. IF YOU WANT TO MAXIMIZE THE CHANCE THAT YOUR SHARES WILL BE PURCHASED AT THE PURCHASE PRICE, YOU SHOULD CHECK THE SPECIAL BOX ON THE LETTER OF TRANSMITTAL MARKED, "SHARES TENDERED AT PRICE DETERMINED BY DUTCH AUCTION." NOTE THAT THIS COULD RESULT IN YOUR SHARES BEING PURCHASED AT THE MINIMUM PRICE OF $43.50. 4 9 YOU WILL MAKE A PROPER TENDER OF SHARES IF, AND ONLY IF, ON THE LETTER OF TRANSMITTAL, YOU CHECK EITHER THE BOX UNDER "SHARES TENDERED AT PRICE DETERMINED BY DUTCH AUCTION" OR ONE OF THE BOXES UNDER "SHARES TENDERED AT PRICE DETERMINED BY SHAREHOLDER." Do not tender Shares you do not own. See "-- Tender Constitutes an Agreement" below. (b) Signature Guarantees and Method of Delivery. No signature guarantee is required on a Letter of Transmittal if: (1) the Letter of Transmittal is signed by the registered holder of the Shares tendered with it and payment is to be made directly to that registered holder ("registered holder" includes any participant in The Depository Trust Company book-entry system (the "Book-Entry Transfer Facility") whose name appears on a security position listing as the owner of the Shares); or (2) Shares are tendered for the account of an "Eligible Institution" (defined to mean a member firm of a registered national securities exchange; a member of the National Association of Securities Dealers, Inc.; or a commercial bank or trust company having an office, branch, or agency in the United States). In all other cases, all signatures on the Letter of Transmittal must be guaranteed by an Eligible Institution. See Instruction 1 of the Letter of Transmittal. If a certificate representing Shares is registered in the name of a person other than the signer of a Letter of Transmittal, or if payment is to be made, or Shares not purchased are to be returned, to a person other than the registered owner, then the certificate must be endorsed or accompanied by an appropriate stock power, in either case signed exactly as the name of the registered owner appears on the certificate with the signature on the certificate or stock power guaranteed by an Eligible Institution. See Instruction 7 of the Letter of Transmittal. THE METHOD OF DELIVERY OF ALL DOCUMENTS, INCLUDING SHARE CERTIFICATES, IS AT YOUR ELECTION AND RISK. DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE DEPOSITARY. IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS RECOMMENDED. (c) Backup Federal Income Tax Withholding. To prevent backup federal income tax withholding equal to 31% of the gross payments made pursuant to the Offer, you must either: (1) give the Depositary your correct taxpayer identification number (or certify that you are awaiting a taxpayer identification number) and complete and submit the Substitute Form W-9 included in the Letter of Transmittal; or (2) otherwise establish an exemption from withholding. U.S. corporations and foreign individuals are exempt from such withholding. Foreign individuals must submit a statement, signed under penalty of perjury, attesting to that individual's exempt status in order to avoid backup withholding. Please also see "Certain Federal Income Tax Consequences" for more information regarding the tax consequences of the Offer, particularly as it relates to the withholding rules that apply to foreign individuals. (d) Book-Entry Delivery. The Depositary will establish an account for the Shares at the Book-Entry Transfer Facility for purposes of the Offer within two business days after the date of this Offer. Any financial institution participating in the Book-Entry Transfer Facility's system may make book-entry delivery of the Shares by causing that facility to transfer those Shares into the Depositary's account in accordance with the facility's procedure for such transfer. Even though delivery of Shares may be effected through book-entry transfer into the Depositary's account at the Book-Entry Transfer Facility, you must, before the Expiration Date, either: (1) unless an Agent's Message (as defined below) is received by the Depositary before the Expiration Date, transmit to the Depositary a properly completed and duly executed Letter of 5 10 Transmittal (or copy thereof), with any required signature guarantees and any other required documents, to one of the Depositary's addresses set out on the back cover page of this Offer to Purchase; or (2) follow the guaranteed delivery procedure set out below. The term "Agent's Message" means a message, transmitted by the Book-Entry Transfer Facility to, and received by, the Depositary and forming a part of a book-entry confirmation, which states that such Book-Entry Transfer Facility has received an express acknowledgment from the participant in such Book-Entry Transfer Facility tendering the Shares which are the subject of such book-entry confirmation, that such participant has received and agrees to be bound by the terms of the Letter of Transmittal and that we may enforce such agreement against such participant. DELIVERY OF THE LETTER OF TRANSMITTAL AND ANY OTHER REQUIRED DOCUMENTS TO THE BOOK-ENTRY TRANSFER FACILITY DOES NOT CONSTITUTE DELIVERY TO THE DEPOSITARY. (e) Guaranteed Delivery. If you want to tender Shares pursuant to the Offer and your certificates are not immediately available, or if you can not complete the procedures for book-entry delivery in time, or if time will not permit all required documents to reach the Depositary before the Expiration Date, you may still tender those Shares if: (1) your tender is made by or through an Eligible Institution; (2) the Depositary receives (by hand, mail, or facsimile transmission), at or before the Expiration Date, a properly completed and duly executed Notice of Guaranteed Delivery substantially in the form we have provided with this Offer to Purchase (indicating the price at which the Shares are being tendered or checking the "Shares Tendered at Price Determined by Dutch Auction" box); and (3) the Depositary receives the certificates for all tendered Shares, in proper form for transfer (or confirmation of book-entry transfer of those Shares into the Depositary's account at the Book-Entry Transfer Facility as described above), together with a properly completed and duly executed Letter of Transmittal (or copy thereof), and any other required documents, within three NYSE trading days after the date the Depositary receives your Notice of Guaranteed Delivery. THE METHOD OF DELIVERY OF ALL DOCUMENTS, INCLUDING SHARE CERTIFICATES, IS AT YOUR ELECTION AND RISK. DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE DEPOSITARY. IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS RECOMMENDED. If your certificates for Shares have been lost or destroyed, contact the Information Agent for instructions regarding obtaining replacement certificates. Except to the extent you beneficially own Shares held in "street name" by the Book-Entry Transfer Facility, in which case you should follow the procedures for book-entry delivery set forth in paragraph (d) above, you cannot tender Shares into the Offer unless you have certificates for such Shares. In all cases, we will pay for Shares tendered and accepted for payment pursuant to the Offer only after timely receipt by the Depositary of certificates for such Shares (or a timely confirmation of a book-entry transfer of such Shares into the Depositary's account at the Book-Entry Transfer Facility), a properly completed and duly executed Letter of Transmittal (or copy thereof), and any other documents required by the Letter of Transmittal. (f) Class B Shares. We also have outstanding the Class B Shares. Because of transfer restrictions, no trading market has developed, or is expected to develop, for the Class B Shares. The Class B Shares are not subject to the Offer; however, the Class B Shares are convertible into Class A Shares on a one-for-one basis. If you hold Class B Shares and would like to tender Class A Shares into the Offer, you must first notify the Transfer Agent, at 4900 Tiedeman Road, Stock Transfer Department, 1st Floor, Brooklyn, Ohio 44144, in writing, of your desire to convert some or all of your Class B Shares into Class A Shares, and enclose share certificates representing the Class B Shares you would like to so convert and executed stock powers with respect to such certificates. Once you receive share certificates representing the Class A Shares, you can then 6 11 tender Class A Shares into the Offer. PLEASE NOTE THAT YOU SHOULD ALLOW 10 TO 14 BUSINESS DAYS FOR SUCH CONVERSION AND THAT SHARE CERTIFICATES REPRESENTING TENDERED SHARES MUST BE RECEIVED BY THE DEPOSITARY BY THE EXPIRATION DATE, OR UP TO THREE NYSE TRADING DAYS THEREAFTER IF YOU FOLLOW THE PROCEDURES FOR GUARANTEED DELIVERY SET FORTH ABOVE. In considering whether you should convert Class B Shares into Class A Shares in order to tender Class A Shares into the Offer, please note that: (i) each Class B Share is entitled to ten votes per share while each Class A Share is entitled to only one vote per Share; (ii) once you convert your Class B Shares into Class A Shares and tender such Shares into the Offer you cannot convert your Class A Shares back into Class B Shares in the event that such Class A Shares are not purchased in the Offer; (iii) you may not have any such Class A Shares purchased in the Offer because the price specified by you may exceed the Purchase Price; and (iv) some portion of the Class A Shares that you tender into the Offer may not be purchased pursuant to the Offer due to proration. (g) Tender Constitutes an Agreement. The tender of Shares pursuant to any of the procedures described above will constitute a binding agreement between you and us on the terms and the conditions of the Offer, including your representation and warranty that: (1) you "own" the Shares being tendered within the meaning of Rule 13e-4 under the Securities Exchange Act of 1934 (the "Exchange Act"); and (2) your tender of Shares complies with Rule 13e-4 under the Exchange Act. Rule 14e-4 under the Exchange Act prohibits both "short" tendering and "hedged" tendering, whether done by you or by another person on your behalf. It is a violation of Rule 14e-4 under the Exchange Act for you to tender Shares unless you (i) have a net long position equal to or greater than the number of (x) Shares tendered or (y) other securities immediately convertible into, or exercisable or exchangeable for, the number of Shares tendered and will acquire such Shares for tender by conversion, exercise or exchange of such other securities and (ii) will cause such Shares to be delivered in accordance with the terms of the Offer. Your tender of Shares pursuant to any one of the procedures described above will constitute your representation and warranty that (i) you have a net long position in the Shares being tendered within the meaning of Rule 14e-4 under the Exchange Act and (ii) your tender of such Shares complies with Rule 14e-4. (h) Determination of Validity; Rejection of Shares; Waiver of Defects; No Obligation to Give Notice of Defects. We shall determine all questions as to the number of Shares to be accepted, the price to be paid for them pursuant to the terms of the Offer, and the validity, form, eligibility (including time of receipt), and acceptance for payment of any tender of Shares, and our determination shall be final and binding on all parties. We may reject any or all tenders we determine not to be in proper form or the acceptance of or payment for which may, in the opinion of our counsel, be unlawful. We may also waive any of the conditions of the Offer and any defect or irregularity in the tender of any particular Shares. No tender of Shares will be deemed to be properly made until all defects and irregularities have been cured or waived. Unless waived, all defects and irregularities must be cured within such time as we shall determine. NONE OF US, THE DEALER MANAGER, THE DEPOSITARY, THE INFORMATION AGENT, OR ANY OTHER PERSON HAS ANY DUTY TO GIVE NOTICE OF ANY DEFECTS OR IRREGULARITIES IN TENDERS, AND NEITHER WE NOR THEY SHALL INCUR ANY LIABILITY FOR FAILURE TO GIVE ANY SUCH NOTICE. 4. WITHDRAWAL RIGHTS. You may withdraw any Shares tendered pursuant to the Offer at any time before the Expiration Date. Unless we have already accepted the Shares for payment, you may also withdraw them after 12:00 midnight, New York City time, on January 16, 1997 (40 business days following the commencement of the Offer). Unless you withdraw your Shares as described below, however, your tender of Shares pursuant to the Offer is irrevocable, subject to Rule 13e-4(f)(5) under the Exchange Act, which provides that we must either pay the Purchase Price or return your tendered Shares promptly following the termination or withdrawal of the Offer. 7 12 For your withdrawal to be effective, the Depositary must timely receive (at one of its addresses set forth on the back cover of this Offer to Purchase) a written or facsimile transmission notice of withdrawal. Your withdrawal notice must specify the name of the person who deposited the Shares to be withdrawn, the number of Shares to be withdrawn, and the name of the registered holder, if different from that of the person who tendered the Shares. If your certificates have been delivered or otherwise identified to the Depositary, then, before the Depositary can release those certificates, you must submit the serial numbers shown on the particular certificates evidencing the Shares and the signature on the notice of withdrawal must be guaranteed by an Eligible Institution (except in the case of Shares tendered by an Eligible Institution). If you tender your Shares pursuant to the book-entry delivery procedure set out in "How to Tender Shares -- Book-Entry Delivery," your notice of withdrawal must specify the name and the number of the account at the Book-Entry Transfer Facility to be credited with the withdrawn Shares and otherwise comply with the procedures of that Facility. If we extend the Offer, are delayed in our purchase of Shares, or are unable to purchase Shares pursuant to the Offer for any reason, then, without prejudice to our rights under the Offer, the Depositary may, subject to applicable law, retain on our behalf all tendered Shares, and such Shares may not be withdrawn except to the extent such tendering shareholders are entitled to withdrawal rights as described in this Section. We shall determine all questions as to the form and validity (including time of receipt) of notices of withdrawal, and our determination shall be final and binding on all parties. NONE OF US, THE DEALER MANAGER, THE DEPOSITARY, THE INFORMATION AGENT, OR ANY OTHER PERSON HAS ANY DUTY TO GIVE ANY NOTICE OF ANY DEFECTS OR IRREGULARITIES IN ANY NOTICE OF WITHDRAWAL, AND NEITHER WE NOR THEY SHALL INCUR ANY LIABILITY FOR FAILURE TO GIVE ANY SUCH NOTICE. Any Shares properly withdrawn will be deemed not to have been tendered for purposes of the Offer. You may, however, re-tender withdrawn Shares before the Expiration Date by again following the procedures described in "How to Tender Shares" above. 5. ACCEPTANCE FOR PAYMENT OF SHARES AND PAYMENT OF PURCHASE PRICE. As soon as practicable after the Expiration Date, we will determine and announce the Purchase Price, taking into account the number of Shares tendered and the prices specified by tendering shareholders. Subject to the proration and odd-lot provisions of the Offer, we will then accept for payment (and thereby purchase) Shares tendered (and not withdrawn) at or below the Purchase Price. For purposes of the Offer, we will be deemed to have accepted for payment (and therefore purchased) Shares when, as, and if we give oral or written notice to the Depositary of our acceptance of those Shares for payment pursuant to the Offer. In all cases, payment for Shares accepted for payment pursuant to the Offer will be made promptly (subject to possible delay in the event of proration) but only after timely receipt by the Depositary of certificates for Shares (or of a confirmation of a book-entry transfer of such Shares into the Depositary's account at the Book-Entry Transfer Facility), a properly completed and duly executed Letter of Transmittal (or copy thereof), and any other required documents. We will pay for Shares purchased pursuant to the Offer by depositing funds sufficient for the purchase of those Shares with the Depositary, which will act as your agent for the purpose of receiving payment from us and transmitting payment by check to the tendering shareholders from whom we have purchased Shares. If proration is necessary, we will determine the proration factor and pay for Shares accepted for payment as soon as practicable after the Expiration Date. We do not expect to be able to announce the final results of proration until approximately five NYSE trading days after the Expiration Date. We will return certificates for all Shares not purchased, including all Shares tendered at prices greater than the Purchase Price and Shares not purchased because of proration, as soon as practicable after the Expiration Date and at our expense. Similarly, Shares which we do not accept which were tendered by book-entry delivery will be credited to the account maintained within the Book-Entry Transfer Facility by the participant who delivered the Shares as soon as practicable after the Expiration Date and at our expense. We will not pay interest on the Purchase Price under any circumstances. Generally, we will pay all brokerage commissions, solicitation fees and stock transfer taxes payable with respect to the transfer to us of Shares purchased pursuant to the Offer. We will, however, deduct from the 8 13 Purchase Price the amount of any stock transfer taxes, whether imposed on the registered holder or another person tendering the Shares, payable on account of the transfer to the registered holder or such other person: (a) if the Purchase Price is to be made to any person other than the registered holder; (b) if (but only under the circumstances permitted by the Offer) unpurchased Shares are to be re-registered in the name of any person other than the registered holder; or (c) if tendered certificates are registered in the name of any person other than the person signing the Letter of Transmittal; unless satisfactory evidence of the payment of stock transfer taxes, or exemption from them, is submitted to the Depositary. See Instruction 8 of the Letter of Transmittal. ANY TENDERING SHAREHOLDER OR OTHER PAYEE WHO FAILS TO COMPLETE FULLY AND SIGN THE SUBSTITUTE FORM W-9 INCLUDED IN THE LETTER OF TRANSMITTAL MAY BE SUBJECT TO REQUIRED FEDERAL INCOME TAX BACKUP WITHHOLDING OF 31% OF THE GROSS PROCEEDS PAID TO SUCH SHAREHOLDER OR OTHER PAYEE PURSUANT TO THE OFFER. SEE "HOW TO TENDER SHARES -- BACKUP FEDERAL INCOME TAX WITHHOLDING." Payment for Shares may be delayed in the event of difficulty in determining the number of Shares validly tendered or withdrawn, or if proration is required. In addition, if certain events occur, we may not be obligated to purchase Shares pursuant to the Offer. See "Certain Conditions of the Offer." As provided in Rules 13e-4(f)(4) and (8)(ii) under the Exchange Act, we will pay the same amount per Share for each Share accepted pursuant to the Offer. 6. CERTAIN CONDITIONS OF THE OFFER. This section sets forth the conditions under which we can amend, delay, extend, or terminate the Offer. We can amend or extend the Offer as provided in "Extension of Offer; Termination; Amendments" below. In addition, we may terminate the Offer and not accept for payment or pay for any Shares not already accepted for payment, or, subject to applicable law, postpone acceptance for payment for Shares tendered, if at any time on or after November 18, 1996 and at or before the time of purchase of any Shares, any of the following events occurs (or if we determine that any of them has occurred) and, in our sole judgment in any such case and regardless of the circumstances giving rise to any such event or condition (including any action or omission to act of ours), the event makes it inadvisable to proceed with the Offer or with such purchase or payment: (a) there shall have been threatened, instituted, or pending any action or proceeding by any governmental, regulatory, or administrative agency or authority or tribunal, domestic or foreign, or by any other person, domestic or foreign, before any court or governmental regulatory, or administrative authority or agency or tribunal, domestic or foreign, which: (1) challenges or seeks to make illegal, or to delay or otherwise directly or indirectly to restrain, prohibit, or otherwise affect the making of the Offer, the purchase of Shares pursuant to the Offer, or otherwise relates in any manner to the Offer; or (2) in our sole judgment, could materially affect our business, condition (financial or otherwise), income, operations, or prospects or that of our subsidiaries, taken as a whole, or otherwise materially impair in any way the contemplated future conduct of the business of us and our subsidiaries, or materially impair the Offer's contemplated benefits to us and our subsidiaries; or (b) there shall have been any action threatened, pending, or taken, or any approval withheld, or any statute, rule, regulation, judgment, order, or injunction threatened, invoked, proposed, sought, promulgated, enacted, entered, amended, enforced, or deemed to apply to the Offer or to us or any of our subsidiaries, by any court or any government or governmental, regulatory, or administrative agency or authority or tribunal, domestic or foreign, which, in our sole judgment, would or might directly or indirectly result in any of the consequences referred to in clause (1) or (2) of paragraph (a) above; or 9 14 (c) there shall have occurred: (1) the declaration of any banking moratorium or suspension of payments in respect of banks in the United States (whether or not mandatory); (2) any general suspension of trading in, or limitation on prices for, securities on any United States national securities exchange or in any over-the-counter market; (3) the commencement of a war, armed hostilities, or any other national or international crisis directly or indirectly involving the United States; (4) any limitation (whether or not mandatory) by any governmental, regulatory, or administrative agency or authority on, or any event which, in our sole judgment, might affect, the extension of credit by banks or other lending institutions in the United States; (5) any change in the general political, market, economic, or financial conditions in the United States or abroad that could have a material adverse effect on the business, condition (financial or otherwise), income, operations, or prospects of us and our subsidiaries, taken as a whole, or trading in the Shares; (6) in the case of any of the above conditions existing at the time the Offer begins, in our sole judgment, a material acceleration or worsening of it; or (7) a decline in either the Dow Jones Industrial Average (6,313 at the close of business on November 14, 1996) or the Standard and Poor's Index of 500 Industrial Companies (735.88 at the close of business on November 14, 1996) by an amount in excess of 10% measured from the close of business on November 14, 1996; or (d) any change shall occur or be threatened in the business, condition (financial or otherwise), income, operations, ownership, or prospects of us and our subsidiaries, taken as a whole, which is or may be material to us and our subsidiaries taken as a whole; or (e) a tender or exchange offer (other than the Offer) for any or all of the Shares or the Class B Shares, or any merger, business combination, or other similar transaction with or involving us or our subsidiaries, shall have been publicly proposed, announced, or made by any person; or (f) any entity, "group" (as that term is used in Section 13(d)(3) of the Exchange Act), or person (other than entities, groups, or persons who have filed with the Securities and Exchange Commission (the "Commission") before November 18, 1996 a Schedule 13G or a Schedule 13D with respect to the Shares or the Class B Shares) shall have acquired, or proposed to acquire, beneficial ownership of more than 5% of the outstanding Shares or Class B Shares; or (g) any entity, group, or person who has filed with the Commission on or before such date a Schedule 13G or a Schedule 13D with respect to the Shares or the Class B Shares shall have acquired, or proposed to acquire, beneficial ownership of additional Shares of such class constituting more than 2% of the outstanding Shares of such class or shall have been granted any option or right to acquire beneficial ownership of additional Shares of such class constituting more than 2% of the outstanding Shares of such class; or (h) any entity, group, or person shall have filed a Notification and Report Form under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 reflecting an intent to acquire us or any Shares. The foregoing conditions are for our sole benefit. We may assert them regardless of the circumstances giving rise to any such condition (including our action or inaction), or we may waive them in whole or in part. Our failure at any time to exercise any of the above rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. Our determination concerning the events described in this Section shall be final and binding. 10 15 7. PRICE RANGE OF SHARES; DIVIDENDS. The Shares are traded on the NYSE under the ticker symbol NC. We also have outstanding the Class B Shares. Because of transfer restrictions, no trading market has developed, or is expected to develop, for the Class B Shares. The Class B Shares are not subject to the Offer; however, the Class B Shares are convertible into Class A Shares on a one-for-one basis. If you hold Class B Shares and would like to tender Class A Shares into the Offer, you must first notify the Transfer Agent in writing of your desire to convert some or all of your Class B Shares into Class A Shares. See "How to Tender Shares -- Class B Shares" for a discussion of factors you should consider before deciding to convert your Class B Shares into Class A Shares. The high and low closing sales price for the Shares and dividends per Share for each of the periods indicated are presented in the table below:
1996 -------------------------------- SALES PRICE --------------------- CASH HIGH LOW DIVIDEND ------ ------ -------- First quarter.......................................... $59.88 -- $51.50 18.0c. Second quarter......................................... $64.00 -- $54.63 18.75c. Third quarter.......................................... $56.00 -- $47.75 18.75c. Fourth quarter (through November 15, 1996)............. $48.00 -- $43.25 18.75(1) 1995 -------------------------------- SALES PRICE --------------------- CASH HIGH LOW DIVIDEND ------ ------ -------- First quarter.......................................... $56.75 -- $46.88 17.0c. Second quarter......................................... $64.00 -- $53.63 18.0c. Third quarter.......................................... $63.50 -- $56.00 18.0c. Fourth quarter......................................... $60.50 -- $55.25 18.0c. 1994 -------------------------------- SALES PRICE --------------------- CASH HIGH LOW DIVIDEND ------ ------ -------- First quarter.......................................... $58.13 -- $48.38 16.5c. Second quarter......................................... $60.75 -- $45.75 17.0c. Third quarter.......................................... $63.00 -- $52.88 17.0c. Fourth quarter......................................... $64.00 -- $46.63 17.0c. - --------------- (1) On November 13, 1996, our Board of Directors declared a dividend of 18.75c per share on the Class A Shares and the Class B Shares, payable to shareholders of record as of December 2, 1996. Because Shares tendered pursuant to the Offer will not be accepted for payment prior to December 16, 1996, if you were a record holder of Class A Shares as of December 2, 1996 and tender Class A Shares into the Offer, you will be entitled to receive such dividend on such Class A Shares.
On November 15, 1996, the last trading day before the announcement of the Offer, the closing sales price of the Shares as reported on the NYSE Composite Tape was $43.25. We urge you to obtain current market quotations for the Shares. 8. BACKGROUND AND PURPOSE OF THE OFFER. On November 15, 1996, we announced that our Board of Directors had approved a 1.5 million share repurchase program for the Shares, which is comprised of the Offer for the purchase of up to 800,000 Shares and an open market purchase program that we expect to implement following the expiration of the Offer over the next two fiscal years for the purchase of up to 700,000 Shares. However, to the extent that we do not purchase 800,000 Shares pursuant to the Offer, we may purchase additional Shares in the open market purchase program equal to the shortfall between 800,000 Shares and the number of Shares purchased in the Offer. We expressly reserve the right, in our sole discretion, to purchase up to an additional 2% of the 11 16 outstanding Shares pursuant to the Offer without the need to extend the Offer. Neither the Offer nor the open market purchase program applies to the Class B Shares; however, we may purchase Class B Shares in the future. See "Certain Effects of the Offer." We are making the Offer (i) because our Board of Directors believes that the purchase of Shares pursuant to the Offer constitutes a prudent use of our financial resources, given our business profile, assets, and prospects and (ii) to afford those shareholders who desire liquidity an opportunity to sell all or a portion of their Shares without the usual transaction costs associated with open market sales. This opportunity to sell Shares without paying any brokerage fee may be particularly valuable to smaller shareholders, for whom such fees may be relatively high. Odd Lot Holders who tender into the Offer will realize additional transactional savings by avoiding any applicable "odd lot" discount payable on a sale of Shares. In addition, to the extent the purchase of Shares pursuant to the Offer results in a reduction in the number of shareholders of record, our shareholder services costs will be reduced. If you are considering the sale of all or a portion of your Shares, the Offer gives you the opportunity to determine the minimum price at which you are willing to sell your Shares. The Offer may also give you the opportunity to sell Shares at prices greater than the market price of the Shares prevailing before we announced the Offer. Shareholders who do not tender Shares or whose Shares are not purchased in the Offer will have a proportionate increase in their ownership interest in us, subject to our right to issue additional Shares and other equity securities in the future. Our purchase of Shares pursuant to the Offer will reduce the number of Shares that are available to be publicly traded on the NYSE, and is likely to reduce the number of shareholders. Nonetheless, we anticipate that there will be enough shareholders and sufficient publicly available Shares following the Offer to provide a reasonably liquid trading market for them. However, we can make no assurances that sufficient publicly traded Shares will be available following the Offer to provide a reasonably liquid trading market. Based on the published guidelines of the NYSE, we do not believe that our purchase of Shares pursuant to the Offer will cause the Shares to be delisted from the NYSE. NEITHER WE NOR OUR BOARD OF DIRECTORS MAKE ANY RECOMMENDATION TO YOU AS TO WHETHER OR NOT TO TENDER ANY OR ALL OF YOUR SHARES. WE HAVE NOT AUTHORIZED ANY PERSON TO MAKE ANY SUCH RECOMMENDATION. WE URGE YOU TO EVALUATE CAREFULLY ALL INFORMATION IN THE OFFER, CONSULT YOUR OWN INVESTMENT AND TAX ADVISORS, AND MAKE YOUR OWN DECISION WHETHER TO TENDER SHARES, AND, IF SO, HOW MANY SHARES TO TENDER AND AT WHAT PRICE OR PRICES. 9. SOURCE AND AMOUNT OF FUNDS. Assuming that we purchase all 800,000 Shares we are offering to purchase pursuant to the Offer at the maximum Purchase Price of $50.00 per Share, we expect the maximum aggregate amount to be paid pursuant to the Offer, including all fees and expenses related to the Offer currently estimated to be $398,000, to be approximately $40.4 million. We will fund such amount from available cash on hand and from existing short-term borrowings (as summarized below). The Offer is not conditioned upon our having obtained financing. Our wholly-owned subsidiary, NACoal (as defined in "Certain Information About Us"), has in place a $50.0 million revolving credit facility with Morgan Guaranty Trust Company of New York, as Agent (the "NAC Credit Facility"). The following is a brief summary of the NAC Credit Facility, a copy of which has been filed as an exhibit to the Schedule 13E-4 (as defined in "Certain Information About Us -- Additional Information"), of which this Offer to Purchase is a part. Such summary is qualified in its entirety by reference to the NAC Credit Facility. The NAC Credit Facility expires on September 27, 2001, but may be extended, on an annual basis, for one additional year upon the mutual consent of NACoal and the bank group thereunder. Borrowings under the NAC Credit Facility bear interest at LIBOR plus 0.4375%. As of November 15, 1996, the applicable interest rate under the NAC Credit Facility was 5.8125%. As of November 15, 1996, $50.0 million of the NAC Credit Facility was available for borrowing. Our indirect subsidiary, NMHG (as defined in "Certain Information About Us"), has in place a $350.0 million revolving credit facility with Morgan Guaranty Trust Company of New York, as Agent (the "NMHG Credit Facility"). The following is a brief summary of the NMHG Credit Facility, a copy of which has been filed as an exhibit to the Schedule 13E-4, of which this Offer to Purchase is a part. Such summary is 12 17 qualified in its entirety by reference to the NMHG Credit Facility. The NMHG Credit Facility expires on June 4, 2001, but may be extended, on an annual basis, for one additional year upon the request of NMHG and agreement of the banks having at least 75% of the aggregate amount of commitments thereunder. The NMHG Credit Facility currently provides for, at our option, Euro-Dollar Loans which bear interest at LIBOR plus 0.3% and Money Market Loans which bear interest at Auction Rates (as each such term is defined in the NMHG Credit Facility). The NMHG Credit Facility allows up to $25.0 million of dividends to be paid to NACCO; as of November 15, 1996 there have not been any such dividends paid to NACCO. As of November 14, 1996, $76.4 million of the NMHG Credit Facility was available for borrowing. We expect to repay the debt incurred in connection with the purchase of Shares pursuant to the Offer from cash generated from future operations. In the interim, we may refinance a portion of the short-term borrowings incurred in connection with the Offer with other short-term borrowings or with long-term debt, although we have no specific plans to do so at this time. 10. CERTAIN INFORMATION ABOUT US. We were incorporated as a Delaware corporation in 1986 in connection with the formation of a holding company structure for a predecessor corporation organized in 1913. Our principal executive offices are located at 5875 Landerbrook Drive, Mayfield Heights, Ohio 44124-4017 and our telephone number is (216) 449-9600. We are a holding company which owns four principal operating subsidiaries: (a) NACCO Materials Handling Group, Inc. ("NMHG"). NMHG, 98 percent-owned by NACCO, designs, engineers and manufactures a full line of forklift trucks and replacement parts. NMHG is the world market leader and sells its products under the Hyster(R) and Yale(R) brand names through separate, independent dealer networks. Forklift trucks represent the largest segment of the materials handling equipment industry. NMHG accounted for 57% and 48% of NACCO's assets and liabilities, respectively, as of December 31, 1995, while its operations accounted for 69% and 57% of NACCO's revenues and operating profits, respectively, in 1995. (b) Hamilton Beach S Proctor-Silex, Inc. ("HB S*PS"). HB * PS, wholly-owned by NACCO, is one of the largest full-line manufacturers and marketers of small electric motor and heat-driven appliances in North America. The well-known Hamilton Beach(R) and Proctor-Silex(R) brands are primarily distributed through mass merchandisers, department stores, catalog showrooms, warehouse membership clubs and other retail outlets. HB * PS accounted for 16% and 12% of NACCO's assets and liabilities, respectively, as of December 31, 1995, while its operations accounted for 17% of NACCO's revenues and operating profits, in 1995. (c) The North American Coal Corporation ("NACoal"). The original member of the NACCO group of companies, NACoal, which is wholly-owned by NACCO, is engaged in the acquisition, mining and marketing of lignite for use as fuel for power generation by electric utilities. Founded in 1913, the company has coal reserves that total approximately 2.1 billion tons and is a leading producer of lignite in the United States, with surface mines in North Dakota, Texas and Louisiana. The company also provides dragline mining services for a limerock quarry in South Florida. Substantially all of the sales by NACoal are made through wholly-owned project mining subsidiaries pursuant to long-term, cost plus a profit per ton contracts. The utility customers of these mines have arranged and guaranteed the financing of the development and operation of these project mining subsidiaries. There is no recourse to NACCO or NACoal for the financing of these subsidiary mines. Project mining subsidiaries accounted for 24% and 29% of NACCO's assets and liabilities, respectively, as of December 31, 1995, while their operations accounted for 10% and 25% of NACCO's revenues and operating profits, respectively, in 1995. (d) The Kitchen Collection, Inc. ("KCI"). KCI, which is wholly-owned by NACCO, is a national specialty retailer of brand-name kitchenware, tableware, small electric appliances and related accessories operating under the Kitchen Collection(R) and Hearthstone(TM) names. The company operated 142 stores at 13 18 November 15, 1996, located primarily in factory outlet malls throughout the United States. KCI's product mix includes a broad line of merchandise from highly recognizable brand-name manufacturers, including Hamilton Beach(R) and Proctor-Silex(R) appliances. KCI accounted for 1% of NACCO's assets and liabilities as of December 31, 1995, while its operations accounted for 3% and 2% of NACCO's revenues and operating profits, respectively, in 1995. (e) Recent Developments. On October 18, 1996, NACCO purchased the twenty percent minority ownership interest in HB * PS from Glen Dimplex, an unlimited corporation incorporated in the Republic of Ireland, for $33.6 million. The Shareholders Agreement between NACCO and Glen Dimplex provided Glen Dimplex with certain rights to dispose of its interest in HB * PS, including the right, at its sole option, to offer its interest to NACCO at a purchase price determined pursuant to the Shareholders Agreement. As a result of this purchase, NACCO now owns 100% of HB * PS which was formed in October 1990 when Proctor-Silex, Inc., which had been wholly-owned by NACCO, was combined with Hamilton Beach Inc., which had been wholly-owned by Glen Dimplex. In connection with this transaction, on October 10, 1996, HB * PS amended its credit facility to increase the permitted amount of advances to $160.0 million. On July 31, 1996, NMHG announced that it had acquired the warehouse equipment business of ORMIC S.p.a., located near Milan, Italy. ORMIC manufactures motorized hand trucks, reach trucks, order pickers and turret trucks. This acquisition, along with the purchase in 1995 of DECA S.r.1., another Italian warehouse equipment manufacturer, strengthened NMHG's presence in the European warehouse and distribution market and further enhanced its position as the leading worldwide supplier of materials handling equipment. (f) Summary Historical and Pro Forma Financial Information. The following table sets forth certain summary audited and unaudited historical and pro forma financial information about us. The historical financial information for the years ended December 31, 1995 and 1994, have been summarized from our audited consolidated financial statements and notes thereto included in our 1995 Annual Report on Form 10-K, which are incorporated by reference herein (see "-- Additional Information"). The historical financial information for the nine-month periods ended September 30, 1996 and 1995, has been summarized from our unaudited condensed consolidated financial statements and notes thereto included in our Quarterly Report on Form 10-Q for the quarter ended September 30, 1996, which are incorporated by reference herein (see "-- Additional Information"). You should read the following summary historical financial information together with such audited and unaudited condensed consolidated financial statements and their related notes. The summary historical financial information for the nine-month periods ended September 30, 1996 and 1995 reflect, in the opinion of our management, all adjustments (consisting only of normal recurring adjustments) necessary to present fairly our financial condition and results of operations for such periods. Due to the seasonality of the retail business of HB * PS and KCI, the historical financial information presented as of September 30, 1996 is not indicative of our financial condition and results of operations at and for the full fiscal year. The following unaudited pro forma financial information: (1) illustrates certain pro forma effects of the assumed use of cash and short-term borrowings to fund the Offer (see "Source and Amount of Funds" above); (2) is based on the following assumptions: (i) that a total of 800,000 Shares were purchased at the maximum Purchase Price of $50.00 and that the related transaction fees and expenses were $398,000; (ii) that interest rates on borrowings to finance the Offer were 6.6% for the year ended December 31, 1995, and 6.0% for the nine months ended September 30, 1996; 14 19 (iii) that the purchase occurred as of the first day of the period presented for the condensed consolidated statements of income, and as of the date of the condensed consolidated balance sheets; and (iv) that marginal tax rates were 39.0% for the year ended December 31, 1995 and for the nine months ended September 30, 1996; (3) should be read in conjunction with the audited and unaudited financial statements and related notes in our 1995 Annual Report on Form 10-K and in our Quarterly Report on Form 10-Q for the period ended September 30, 1996 (which have been incorporated by reference herein (see "-- Additional Information")); and (4) does not purport to indicate the results which may be achieved in the future or which would actually have been achieved had the Offer been consummated during the periods indicated. 15 20 NACCO INDUSTRIES, INC. AND SUBSIDIARIES CONDENSED HISTORICAL AND PRO FORMA FINANCIAL INFORMATION
PROFORMA HISTORICAL ----------------------- ------------------------------------------------- NINE NINE MONTHS ENDED MONTHS YEAR ENDED DECEMBER 31 SEPTEMBER 30 YEAR ENDED ENDED ----------------------- ----------------------- DEC. 31 SEPT. 30 1995 1994 1996 1995 1995 1996 ---------- ---------- ---------- ---------- ---------- ---------- (IN THOUSANDS, EXCEPT PER SHARE AND RATIO DATA) OPERATING RESULTS Net sales.................. $2,190,375 $1,853,479 $1,654,059 $1,550,668 $2,190,375 $1,654,059 Other operating income..... 14,142 11,408 3,360 7,632 14,142 3,360 ---------- ---------- ---------- ---------- ---------- ---------- Total Revenues........... $2,204,517 $1,864,887 $1,657,419 $1,558,300 $2,204,517 $1,657,419 Income Before Extraordinary Items.................... $ 65,506 $ 45,272 $ 34,540 $ 41,195 $ 63,896 $ 33,442 Net Income................. $ 94,440 $ 42,054 $ 34,540 $ 37,813 $ 92,830 $ 33,442 PER SHARE Income Before Extraordinary Items.................... $ 7.31 $ 5.06 $ 3.85 $ 4.60 $ 7.83 $ 4.09 Extraordinary Items........ 3.23 (0.36) -- (0.38) 3.54 -- ---------- ---------- ---------- ---------- ---------- ---------- Net Income................. $ 10.54 $ 4.70 $ 3.85 $ 4.22 $ 11.37 $ 4.09 ========== ========== ========== ========== ========== ========== Fully Diluted Net Income... $ 10.52 $ 4.70 n/a $ 4.21 $ 11.36 n/a FINANCIAL POSITION Working Capital............ $ 198,283 $ 105,198 $ 209,506 $ 262,216 $ 197,885 $ 209,108 Total Assets............... $1,833,837 $1,694,322 $1,813,424 $1,860,737 $1,833,439 $1,813,026 Goodwill, net.............. $ 465,051 $ 471,574 $ 458,042 $ 466,159 $ 465,051 $ 458,042 Total Assets less Goodwill, net...................... $1,368,786 $1,222,748 $1,355,382 $1,394,578 $1,368,388 $1,354,984 Revolving credit agreements............... $ 95,736 $ 30,760 $ 96,259 $ 66,106 $ 95,736 $ 96,259 Current maturities of long-term obligations.... 19,864 63,509 21,123 14,681 19,864 21,123 Notes payable -- not guaranteed by the parent company.................. 320,200 286,717 313,964 390,302 360,200 353,964 Obligations of project mining subsidiaries -- not guaranteed by the parent company or its NACoal subsidiary........ 346,472 331,876 341,487 344,706 346,472 341,487 ---------- ---------- ---------- ---------- ---------- ---------- Total Debt............... $ 782,272 $ 712,862 $ 772,833 $ 815,795 $ 822,272 $ 812,833 Stockholders' Equity....... $ 370,127 $ 279,391 $ 397,861 $ 320,537 $ 329,729 $ 357,463 OTHER INFORMATION Average Shares Outstanding.............. 8,963 8,948 8,981 8,962 8,163 8,181 Ratio of Earnings to Fixed Charges.................. 2.72 2.25 2.31 2.43 2.61 2.22 Book Value per Share....... $ 41.28 $ 31.21 $ 44.28 $ 35.75 $ 40.38 $ 43.67
16 21 (g) Additional Information. Additional information about us is set out in our Annual Report on Form 10-K for the year ended December 31, 1995; our 1995 Annual Report to Shareholders; our Proxy Statement dated March 29, 1996; and our Quarterly Reports on Form 10-Q for the quarters ended March 31, 1996, June 30, 1996, and September 30, 1996. The financial statements and notes thereto included in our 1995 Annual Report on Form 10-K and our Quarterly Report on Form 10-Q for the quarter ended September 30, 1996 are hereby incorporated by reference herein. We have also filed an Issuer Tender Offer Statement on Schedule 13E-4 ("Schedule 13E-4") with the Commission which includes additional information about the Offer. We regularly file with the Commission reports on Form 10-K and Form 10-Q as well as other periodic reports, proxy statements, and other information, including information about our directors and officers, their holdings of Shares and Class B Shares, our principal shareholders, their holdings of Shares, and any material interest of such persons in transactions with us. You may inspect and copy such material at prescribed rates at the Commission's public reference facilities at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and at its regional offices located at 7 World Trade Center, 13th Floor, New York, New York, 10048; and 500 West Madison Avenue, Suite 1400, Chicago, Illinois 60661. Reports, proxy materials, and other information about us are also available at the offices of the New York Stock Exchange, Listed Securities Library, 20 Broad Street, Seventh Floor, New York, New York 10005. The Schedule 13E-4 may not be available at the Commission's regional offices, but you may obtain a copy by requesting one from the Information Agent at the address and telephone number set forth on the back cover page of this Offer to Purchase. (h) Plans and Proposals. Except as disclosed in this Offer to Purchase, we have no agreements or understandings as to either divestitures or acquisitions that would be material to us and we do not have any plans or proposals which relate to or would result in: (1) the acquisition by any person of our securities, or the disposition of any of our securities; (2) any extraordinary corporate transaction involving us or any of our subsidiaries, such as a merger, a reorganization, or the sale or transfer of a material amount of our assets or the assets of any of our subsidiaries; (3) any change in our present Board of Directors or senior management; (4) any material change in our present indebtedness, capitalization, or dividend rate or policy; (5) any other material change in our business or corporate structure; (6) any change in our Restated Certificate of Incorporation or Restated By-Laws; (7) our equity securities being delisted from the NYSE or becoming eligible for termination of registration under Section 12(g)(4) of the Exchange Act; or (8) the suspension of our obligation to file reports pursuant to Section 15(d) of the Exchange Act. 11. INTERESTS OF CERTAIN PERSONS; TRANSACTIONS AND ARRANGEMENTS CONCERNING THE SHARES. Based upon our records and information furnished to us, except for routine grants of restricted Shares pursuant to our Nonemployee Director Equity Compensation Plan and as set forth on Schedule A attached hereto, neither we nor, to our knowledge, any of our Family Shareholders, subsidiaries, executive officers, directors, or any affiliate of any such officer, director, or any executive officer or director of our subsidiaries, has engaged in any transactions involving the Shares during the 40 business days preceding the date of the Offer. Based upon our records and information furnished to us, except as set out in this Offer to Purchase, neither we nor, to our knowledge, any of our directors or executive officers, nor any of our subsidiaries' directors or executive officers, is a party to any contract, arrangement, understanding or relationship relating, directly or indirectly, to the Offer with any other person with respect to the Shares. 17 22 12. CERTAIN EFFECTS OF THE OFFER. As of November 13, 1996, we had issued and outstanding 7,287,858 Class A Shares and 1,697,520 Class B Shares. The Class B Shares are not subject to the Offer; however, the Class B Shares are convertible into Class A Shares on a one-for-one basis. If you hold Class B Shares and would like to tender Class A Shares into the Offer, you must first notify the Transfer Agent in writing of your desire to convert some or all of your Class B Shares into Class A Shares. See "How to Tender Shares -- Class B Shares" for a discussion of factors you should consider before deciding to convert your Class B Shares into Class A Shares. The 800,000 Shares we are offering to purchase represent approximately 11.0% of the Shares of the Class A Common Stock issued and outstanding as of November 13, 1996. Shareholders who do not tender Shares or whose Shares are not purchased in the Offer will have a proportionate increase in their ownership in us, subject to our right to issue additional Shares and other equity securities in the future. Our purchase of Shares pursuant to the Offer will reduce the number of Shares that are available to be publicly traded on the NYSE, and is likely to reduce the number of shareholders. Nonetheless, we anticipate that there will be enough shareholders and sufficient publicly available Shares following the Offer to provide a reasonably liquid trading market for them. However, we can make no assurances that sufficient publicly traded Shares will be available following the Offer to provide a reasonably liquid trading market. Based on the published guidelines of the NYSE, we do not believe that our purchase of Shares pursuant to the Offer will cause the Shares to be delisted from the NYSE. In addition, we believe that our purchase of Shares pursuant to the Offer will not result in the Shares or the Class B Shares becoming eligible for deregistration under the Exchange Act. As of November 13, 1996, our directors and executive officers as a group beneficially owned an aggregate of 774,530 (approximately 10.6%) of the outstanding Shares. We have been informed that none of our directors or executive officers intends to tender any Shares pursuant to the Offer. If we purchase all 800,000 Shares we are offering to purchase pursuant to the Offer and none of our directors or executive officers tenders any Shares pursuant to the Offer, following the Offer (assuming no other transactions by them), our directors and executive officers as a group would beneficially own approximately 11.9% of the outstanding Shares. As of November 13, 1996, members of the Taplin and Rankin families, including certain trusts in which they have an interest, as identified in our Proxy Statement, dated March 29, 1996 (see "Certain Information About Us -- Additional Information"), under the caption "Beneficial Ownership of Class A Common and Class B Common" (the "Family Shareholders"), as a group, beneficially owned Class A Shares and Class B Shares with a combined voting power of 74.6%. We have been informed that none of the Family Shareholders intends to tender any Shares pursuant to the Offer. However, such Family Shareholders may sell (but not purchase) Shares in the market during or after the Offer. If we purchase all 800,000 Shares we are offering to purchase pursuant to the Offer and none of the Family Shareholders tenders any Shares pursuant to the Offer, then following the Offer, assuming no other transactions by them and assuming no holder of Class B Shares converts its Class B Shares into Class A Shares during the Offer, the Family Shareholders would beneficially own Class A Shares and Class B Shares with a combined voting power of 77.2%. With respect to, and in addition to, the open market purchase program (see "Introduction" and "Background and Purpose of the Offer"), in the future we may purchase additional Shares in the open market, in private transactions, through tender offers, or otherwise, although we have no present intention to do so. Any such purchases may be on terms which are more or less favorable to shareholders than the terms of the Offer. Rule 13e-4 under the Exchange Act prohibits our affiliates and us from purchasing Shares, other than pursuant to the Offer, during the Offer and for at least ten business days following the Expiration Date. Any possible future purchases we make will depend on many factors, including the then-current market price of the Shares, our business and financial condition, and general economic and market conditions existing at that time. Shares we acquire pursuant to the Offer will become treasury shares and will be available for us to use without further shareholder action (except as required by applicable Delaware law or the rules of the NYSE). We could use Shares without shareholder approval to acquire other businesses, to raise additional capital, and/or to distribute as stock dividends. We have no current plans for the Shares we acquire pursuant to the Offer or any other treasury shares. 18 23 The Shares are currently "margin securities" under the rules of the Federal Reserve Board. This has the effect among other things, of allowing brokers to extend credit on the collateral of the Shares. We believe that, following the purchase of Shares pursuant to the Offer, the Shares will continue to be "margin securities" for the purposes of the Federal Reserve Board's margin regulations. NEITHER WE NOR OUR BOARD OF DIRECTORS MAKES ANY RECOMMENDATION TO YOU AS TO WHETHER OR NOT TO TENDER SHARES. YOU MUST MAKE YOUR OWN DECISION WHETHER TO TENDER SHARES AND, IF SO, HOW MANY SHARES TO TENDER AND AT WHAT PRICE OR PRICES. WE HAVE BEEN INFORMED BY SUCH PERSONS THAT NONE OF OUR DIRECTORS, EXECUTIVE OFFICERS, OR FAMILY SHAREHOLDERS INTENDS TO TENDER ANY SHARES PURSUANT TO THE OFFER. 13. CERTAIN LEGAL MATTERS; REGULATORY AND OTHER APPROVALS. We are not aware of any license or regulatory permit material to our business that might be adversely affected by our purchase of Shares pursuant to the Offer or of any approval, consent, or other action by any governmental, administrative, or regulatory authority or agency, domestic or foreign, that would be required for our purchase of Shares pursuant to the Offer. Should any such approval, consent, or other action be required, we expect, but shall not be obligated, to seek such approval, consent, or other action. We cannot predict whether we may determine that we will have to delay the acceptance for payment of, or payment for, Shares tendered pursuant to the Offer pending the outcome of any such matter. We cannot assure that we could get any such approval, consent, or other action, if needed, or that we could get it without substantial conditions or that the failure to obtain any such approval or other action might not result in adverse consequences to our business. Our obligations under the Offer to accept for payment and pay for Shares are subject to the conditions set out in "Certain Conditions of the Offer." 14. CERTAIN FEDERAL INCOME TAX CONSEQUENCES. We have included the following federal income tax discussion for general information only. The discussion is directed primarily to shareholders who hold their Shares as "capital assets" (which in this instance, generally, means Shares held neither as inventory nor for sale to customers) within the meaning of Section 1221 of the Internal Revenue Code of 1986, as amended (the "Code"), and does not purport to consider all aspects of federal income taxation that may be relevant to a particular shareholder. Certain shareholders, including insurance companies, tax-exempt organizations, financial institutions, foreign persons, broker-dealers, and shareholders who got their Shares as compensation may be subject to special rules not discussed below. THIS DISCUSSION DOES NOT CONSIDER THE EFFECT OF ANY APPLICABLE FOREIGN, STATE, LOCAL, OR OTHER TAX LAWS. WE URGE YOU TO CONSULT A TAX ADVISOR AS TO THE PARTICULAR TAX CONSEQUENCES OF THE OFFER TO YOU, INCLUDING THE APPLICATION OF FOREIGN, STATE, LOCAL, AND OTHER TAX LAWS. (a) In General. Your sale of Shares pursuant to the Offer will be a redemption taxable to you under federal income tax laws, and may also be taxable to you under applicable foreign, state, local, and other tax laws. Whether proceeds of the redemption are treated as dividend income or as sale consideration, possibly resulting in capital gain, to you will depend on your particular facts. Any capital gain or loss will be long-term capital gain or loss if you held the Shares sold for more than one year at the time of the sale, and short-term capital gain or loss if you held such Shares for one year or less at such time. (b) Dividend vs. Exchange Treatment. The amount and character of the income recognized on a sale pursuant to the Offer will depend on whether the sale is treated as a "dividend" or, instead, as an "exchange" of the Shares. Under Code Section 302, your sale of Shares pursuant to the Offer will in most instances be treated as an "exchange" on which you will recognize gain or loss if the sale: (1) constitutes a "substantially disproportionate" redemption as to you; (2) is "not essentially equivalent to a dividend" to you; or (3) results in a "complete termination" of your stock interest in us. 19 24 If you meet any of the above-three tests for "exchange" treatment, you will recognize gain or loss equal to the difference between the amount of cash received pursuant to the Offer and your adjusted tax basis in the Shares sold. Such recognized gain or loss will be capital gain or loss if you hold the Shares as a capital asset (assuming you are not a "dealer in securities"). Finally, the special rules of Code Section 1236 govern whether a "dealer in securities" will recognize a capital gain or loss; those rules are beyond the scope of this discussion. To determine whether you meet any of the three tests under Code Section 302, you must take into account not only Class A and Class B Shares you actually own, but also Class A and Class B Shares you constructively own within the meaning of Code Section 318. Under Code Section 318, you may constructively own Class A and Class B Shares that are actually owned, and in some cases constructively owned, by certain related individuals and certain related entities in which you, a related individual, or a related entity has an interest. Moreover, you may constructively own Class A and Class B Shares that you or a related individual or entity has the right to acquire by the exercise of an option or warrant. Under certain circumstances, however, you may avoid the constructive ownership of Class A and Class B Shares owned by family members solely for the purpose of determining whether the "complete termination" of interest test referred to above has been satisfied if (a) you do not actually own any Class A and Class B Shares after our purchase, and (b) in accordance with Code Section 302(c)(2), you file an effective waiver with the Internal Revenue Service ("IRS"). Please consult your tax advisor regarding such a waiver. "SUBSTANTIALLY DISPROPORTIONATE": A sale of stock pursuant to the Offer, in general, will be "substantially disproportionate" as to you if immediately after the sale: (a) the aggregate percentage of voting power of all of the outstanding Class A Shares and Class B Shares that you then actually and constructively own (treating as not outstanding all Shares purchased by us pursuant to the Offer) is less than 80% of the aggregate percentage of voting power of all of the outstanding Class A Shares and Class B Shares that you actually and constructively owned immediately before the sale of Shares (treating as outstanding all Shares purchased by us pursuant to the Offer); and (b) the aggregate fair market value of all of the outstanding Class A Shares and Class B Shares that you then actually and constructively own (treating as not outstanding all Shares purchased by us pursuant to the Offer) is less than 80% of the aggregate fair market value of all of the outstanding Class A Shares and Class B Shares that you actually and constructively owned immediately before the sale of Shares (treating as outstanding all Shares purchased by us pursuant to the Offer). The above description of the "substantially disproportionate" test is based on certain conclusions expressed in an IRS public ruling. That ruling involved a corporation which had voting and non-voting common shares outstanding and which purchased some of each class in a share redemption transaction. Because both classes of our outstanding common stock are voting shares, because the voting rights of those two classes differ, and because we are only offering to purchase Class A Shares pursuant to the Offer, certain issues exist as to precisely how the Code Section 302 "substantially disproportionate" percentage determinations, described above, are to be calculated in these circumstances. For this reason, if you intend to rely on the "substantially disproportionate" test to obtain "sale or exchange" treatment for Shares that you sell pursuant to the Offer, you should consult your tax advisor regarding the particulars of how this test will be applied to you in this instance. "NOT ESSENTIALLY EQUIVALENT TO A DIVIDEND": Even if your receipt of cash in exchange for Shares pursuant to the Offer fails to meet the "substantially disproportionate" test, you may nevertheless meet the "not essentially equivalent to a dividend" test. Whether you meet this test will depend on your facts and circumstances. In any case, in order to satisfy this test, your sale of Shares pursuant to the Offer must result in a "meaningful reduction" in your percentage voting interest in us, taking into account the constructive ownership rules of Code Section 318 referred to above. The IRS has held in a public ruling that, under the particular facts of that ruling, a 3.3% reduction in the percentage stock ownership of a stockholder constituted a "meaningful reduction" when the stockholder owned .0001118% of the publicly-held corporation's stock 20 25 before a redemption and did not exercise any control over corporate affairs. In measuring the change, if any, in your percentage voting interest in us, this test is applied by taking into account all Shares that we purchase pursuant to the Offer, including Shares purchased from other shareholders. If, taking into account the constructive ownership rules of Code Section 318 referred to above, a shareholder actually and constructively owns only Class A Shares and no Class B Shares and the number of Shares so owned is minimal (i.e., less than one percent (1%) of the total number of outstanding Class A Shares) in relation to the total number of Shares outstanding prior to the date on which we complete the Offer, any Shares which such shareholder sells pursuant to the Offer should result in his experiencing a "meaningful reduction" in his percentage voting interest in NACCO, once the Offer has been completed. Such selling shareholder would, under these circumstances, be entitled to treat his sale of Shares to us pursuant to the Offer as a "sale or exchange" for U.S. federal income tax purposes. If you intend to rely on the "not essentially equivalent to a dividend" test to obtain "sale or exchange" treatment for Shares that you sell pursuant to the Offer, particularly if you own, actually or constructively, a combination of our Class A Shares and our Class B Shares, you are urged to consult a tax advisor, in as much as the redeeming corporation in the public ruling described in the next immediately preceding paragraph above had only one class of stock outstanding, and we have two classes of outstanding voting shares. "COMPLETE TERMINATION": Finally, your sale of Shares pursuant to the Offer will be deemed to result in a "complete termination" of your interest in us if, immediately after the sale, either: (a) you own, actually and constructively, no shares of our common stock (including Class B Shares); or (b) you actually own no shares of our common stock (including Class B Shares) and constructively own only shares of our common stock as to which you are eligible to waive, and do effectively waive, such constructive ownership under the procedures described in Code Section 302(c)(2), as discussed above. Even if all the shares of our common stock which you actually and constructively own are tendered pursuant to the Offer, proration of the offer may result in our purchasing fewer than all of the Shares that you tender. Accordingly, you should consider whether proration may adversely affect your qualification for "exchange" treatment. Moreover, you should be aware that the IRS may take into account contemporaneous dispositions or acquisitions by you, or by individuals or entities related to you, of shares of our common stock that are deemed for federal income tax purposes to be integrated with your sale of Shares to us in the Offer for purposes of determining whether you meet any of the three tests described above for obtaining "exchange" treatment under Code Section 302 for the Shares that we purchase from you pursuant to the Offer. If you have any questions as to whether your payment for your Shares will be eligible for "exchange" treatment, consult a tax advisor. If you do not meet any of the three Code Section 302 tests described above, you will be treated as having received a dividend in an amount equal to the full amount of cash that you receive pursuant to the Offer, provided that we have sufficient current or accumulated earning and profits (as we believe we do). In that case, your tax basis in the redeemed Shares will not reduce the amount of the dividend; the entire amount of cash that you receive will be taxable as ordinary income; and your tax basis in the redeemed Shares will be added to the tax basis of the remaining shares of our common stock which you actually or constructively own. (c) Timing of Income Recognition. A shareholder is generally taxable on dividend income in the year in which he receives the dividend. Therefore, if your sale of Shares pursuant to the Offer will cause you to realize a dividend, and the Offer closes in 1996 but because of the customary practice of the Depositary you do not receive consideration for your Shares until 1997, you will not recognize dividend income until 1997. A shareholder is taxable on the gain or loss realized from a year-end sale of publicly-traded stock in the year in which the trade date occurs. Therefore, if your sale of Shares pursuant to the Offer is treated as a "sale or exchange", and the Offer closes in 1996, you will recognize a gain or loss in 1996 even if you do not receive the payment for your Shares until 1997. 21 26 (d) Corporate Dividends-Received Deduction. If a sale of Shares by a corporate shareholder is treated as a dividend, the corporate shareholder may be entitled to claim a dividends-received deduction equal to 70% of the dividend. Corporate shareholders should, however, consider the effect of Code Section 246(c), which, in part, disallows the 70% dividends-received deduction for stock that is held for 45 days or less. For this purpose, the length of time that a taxpayer is deemed to have held stock may be reduced by periods during which the taxpayer's risk of loss with respect to the stock is diminished by reason of the existence of certain options or other transactions. Moreover, under Code Section 246A, if a corporate shareholder has incurred indebtedness directly attributable to an investment in Shares, the 70% dividends-received deduction may be reduced by a percentage generally computed based on the ratio of the amount of such indebtedness to its total adjusted tax basis in the Shares. In addition, corporate shareholders are also subject to a special rule which requires them in certain circumstances to reduce their stock basis to the extent they actually or constructively receive an "extraordinary dividend", as defined in Code Section 1059. If you have any questions as to whether payment for your Shares, or for the Shares of any other shareholder that is related to you, which constitutes a "dividend" will cause you to be considered as actually or constructively receiving an "extraordinary dividend", consult a tax advisor. (e) Foreign Shareholders. A "foreign shareholder" generally is any shareholder that is not, under United States tax laws, (a) a citizen or resident of the United States; (b) a corporation or partnership created or organized in the United States or under the laws of the United States or any State; (c) any trust if a court within the United States is able to exercise primary supervision over the administration of the trust and one or more United States fiduciaries have the authority to control all substantial decisions relating to the trust, or (d) any estate except an estate the income of which, from sources outside the United States which is not effectively connected with the conduct of a trade or business within the United States, is not subject to U.S. income taxation. The Depositary will withhold federal income tax equal to 30% of the gross amount paid to a foreign shareholder or to such shareholder's agent unless the Depositary determines that (1) a reduced rate of withholding applies pursuant to a tax treaty; or (2) an exemption from withholding applies because such gross amount is effectively connected with the conduct of a trade or business by the foreign shareholder within the United States. Dividend distributions paid to an address outside the United States are presumed to be paid to a resident of such foreign country for purposes of withholding. Therefore, the Depositary will determine the applicable rate of withholding by reference to a shareholder's address, unless the facts and circumstances indicate that such reliance is not warranted or if applicable law (such as an applicable treaty, the Code or the Treasury regulations thereunder) requires some other method for determining a shareholder's residence. To claim an exemption from withholding on the ground that the gross amount paid pursuant to the Offer is effectively connected with the conduct of a trade or business by a foreign shareholder within the United States, the foreign shareholder must deliver to the Depositary a properly executed statement claiming such exemption. You can obtain such a statement, which is embodied in IRS Form 4224, from the Depositary. If the gross amount paid pursuant to the Offer is effectively connected with the conduct of a trade or business by a foreign shareholder within the United States, such gross amount (as adjusted by any applicable deductions or for recovery of basis) will be subject to U.S. federal income tax at the normally applicable rates and would be exempt from the 30% withholding tax described above. If you are a foreign shareholder eligible for a reduced (or zero) rate of U.S. withholding tax either pursuant to a tax treaty or because you meet the "complete termination", "substantially disproportionate", or "not essentially equivalent to a dividend" test described above, you generally may obtain a refund of any excess amounts withheld by filing an appropriate claim for refund with the IRS. If you are a foreign shareholder, you should consult your own tax advisor regarding the application of the federal income tax withholding rules to you, including your eligibility for a withholding tax reduction or exemption and the refund procedures applicable to you. 22 27 This discussion does not address all aspects of U.S. federal taxation or any aspects of foreign, state or local tax law that may be relevant to foreign shareholders in light of their personal circumstances. Each foreign shareholder is advised to consult a personal tax adviser with respect to the consequences of participating in the Offer. (f) Effect on Non-Selling Shareholders. Under Code Section 305(c), if a corporation purchases its shares from shareholders under circumstances where the payment is treated as a "dividend" to the selling shareholders, other shareholders of the corporation who do not sell any of their shares to the corporation and whose proportionate interest in the earnings and profits or assets of the corporation is thereby increased as a result of such share purchase may, in certain instances, be treated as if they received a taxable dividend distribution from the corporation. We have been advised by our tax counsel that Code Section 305(c) will not be applicable to the purchase by us of Shares pursuant to the Offer or during the subsequent two-year open market repurchase program (the "Open Market Repurchase Program") and that, in its opinion, no non-selling shareholder of NACCO, and no shareholder of NACCO who sells to us pursuant to the Offer or in the Open Market Repurchase Program less than all of the Shares which he, she or it owns, will realize a dividend distribution from us, with respect to shares of our Common Stock, including Shares, that such shareholder continues to own, as a result of our purchase of Shares from other shareholders of NACCO pursuant to the Offer or in the Open Market Repurchase Program. EXCEPT AS INDICATED IN SECTION 14(f) OF THIS OFFER, WE INTEND THE ABOVE TAX DISCUSSION TO PROVIDE GENERAL INFORMATION ONLY. THE TAX CONSEQUENCES TO YOU OF A SALE PURSUANT TO THE OFFER WILL VARY DEPENDING, AMONG OTHER THINGS, ON YOUR PARTICULAR CIRCUMSTANCES. THIS TAX DISCUSSION PROVIDES NO INFORMATION AS TO ANY STATE, LOCAL, OR FOREIGN TAX CONSEQUENCES OF A SALE PURSUANT TO THE OFFER. WE URGE YOU TO CONSULT YOUR TAX ADVISOR WITH REGARD TO FEDERAL, STATE, LOCAL, AND FOREIGN TAX CONSEQUENCES OF YOUR SALE OF SHARES PURSUANT TO THE OFFER, INCLUDING ANY APPLICATION TO YOU OF THE CONSTRUCTIVE STOCK OWNERSHIP RULES DISCUSSED ABOVE. THIS DISCUSSION IS BASED UPON CURRENTLY PREVAILING PROVISIONS OF THE CODE, THE APPLICABLE TREASURY REGULATIONS PROMULGATED AND PROPOSED THEREUNDER, JUDICIAL AUTHORITY, AND CURRENT ADMINISTRATIVE RULINGS AND PRACTICE, ALL OF WHICH ARE SUBJECT TO CHANGE, POSSIBLY ON A RETROACTIVE BASIS. 15. EXTENSION OF OFFER; TERMINATION; AMENDMENTS. We may, at any time or from time to time by giving oral or written notice to the Depositary, extend the Offer. We may also terminate the Offer and not accept for payment or pay for any Shares not already accepted for payment, or, subject to applicable law, postpone acceptance for payment for Shares, upon the occurrence of any of the conditions specified in "Certain Conditions of the Offer" by giving oral or written notice of such termination or postponement to the Depositary. Any such delay in the acceptance of Shares or the payment for Shares will be by an extension of the Offer. We may also amend the Offer in any respect. We will announce publicly any extension, termination, postponement, or amendment of the Offer as promptly as practicable. Without limiting the manner in which we may choose to make a public announcement, we are not required to publish, advertise, or otherwise communicate any such public announcement other than by release to the Dow Jones News Service or Reuters Economic Services. If we materially change the terms of the Offer or the information concerning the Offer, or if we waive a material condition of the Offer, we will extend the Offer to the extent required by Rules 13e-4(e)(2) and 13e-4(f)(1)(ii) under the Exchange Act. These rules provide that the minimum period during which a tender offer must remain open following material changes in the terms of the Offer or information concerning the Offer (other than a change in price or a change in percentage of securities sought) will depend on the facts, including the relative materiality of such terms or information. Pursuant to Rule 13e-4(f)(1)(ii), the Offer will continue or be extended for at least ten business days from the time we publish a notice that we will: 23 28 (a) increase or decrease the price we will pay for Shares or the dealer's soliciting fee; (b) decrease the number of Shares we seek; or (c) increase the number of Shares we seek by more than 2% of the outstanding Shares. 16. FEES AND EXPENSES. Other than as described below, no fees will be paid to brokers, dealers or others in connection with the Offer. (a) The Dealer Manager: We have retained J.P. Morgan Securities Inc. as our Dealer Manager in connection with the Offer. We will pay the Dealer Manager a fee of 0.4% of the total purchase price we pay for the Shares pursuant to the Offer. We will also reimburse the Dealer Manager for its reasonable out-of-pocket expenses relating to the Offer, including the reasonable fees and expenses of its counsel. We have also agreed to indemnify the Dealer Manager against certain liabilities in connection with the Offer, including certain liabilities under the federal securities laws. We have retained the Dealer Manager to render certain advisory services in connection with the open market purchase program expected to be consummated following the Offer. We will pay the Dealer Manager reasonable and customary compensation in connection with such services. An affiliate of J.P. Morgan Securities Inc., Morgan Guaranty Trust Company of New York, serves as Agent under each of the NAC Credit Facility and the NMHG Credit Facility, pursuant to which it receives reasonable and customary compensation. See "Source and Amount of Funds." The Dealer Manager has rendered various investment banking and other advisory services to us in the past, for which it received reasonable and customary compensation from us. We expect the Dealer Manager to continue to render such services in the future, for which it will continue to receive reasonable and customary compensation from us. (b) The Information Agent and Depositary: We have retained MacKenzie Partners, Inc. as Information Agent and First Chicago Trust Company of New York as Depositary in connection with the Offer. The Information Agent may contact you by mail, telephone, telex, telegraph, and personal interviews, and may request brokers, dealers, and other nominee shareholders to forward materials relating to the Offer to beneficial owners. We will pay the Depositary and the Information Agent reasonable and customary compensation for their services. We will also reimburse the Depositary and the Information Agent for out-of-pocket expenses, including reasonable fees and expenses of its counsel, and we have agreed to indemnify the Depositary and the Information Agent against certain liabilities in connection with the Offer, including certain liabilities under the federal securities laws. We will, on request, reimburse such persons for customary handling and mailing expenses incurred in forwarding materials about the Offer to the beneficial owners for which they act as nominees. We have not authorized any broker, dealer, commercial bank, trust company, or other person (other than the Dealer Manager) to act as our agent for purposes of this Offer. We will pay (or cause to be paid) any stock transfer taxes on our purchases of Shares, except as provided otherwise in "Acceptance for Payment of Shares and Payment of Purchase Price" above and in Instruction 8 of the Letter of Transmittal. 24 29 17. MISCELLANEOUS. We are not making the Offer to, nor will we accept tenders from or on behalf of, holders of Shares in any jurisdiction in which the Offer or its acceptance would not comply with the securities or Blue Sky laws of such jurisdiction. In any jurisdiction the securities or Blue Sky laws of which require the Offer to be made by a licensed broker or dealer, the Offer is being made on our behalf by the Dealer Manager or one or more registered brokers or dealers licensed under the laws of such jurisdiction. Very truly yours, NACCO INDUSTRIES, INC. 25 30 SCHEDULE A CERTAIN TRANSACTIONS INVOLVING THE SHARES EXECUTIVE OFFICERS AND DIRECTORS During the 40 business days prior to November 18, 1996, transactions effected in the Class A Shares by the Company and the Company's Family Shareholders, subsidiaries, executive officers, directors and affiliates of the foregoing persons were as follows:
PERSONS WHO AVERAGE EFFECTED NUMBER PRICE PER TRANSACTION DATE NATURE OF TRANSACTION OF SHARES SHARE - ------------------ --------- --------------------------- --------- --------- Susan S. Panella 10/30/96 Broker Transaction on NYSE 200 $46.125 Martha S. Kelly 10/30/96 Broker Transaction on NYSE 400 $46.00
26 31 [THIS PAGE INTENTIONALLY LEFT BLANK] 32 The Depositary will accept legible copies of the Letter of Transmittal. You or your broker, dealer, commercial bank, trust company or other nominee should send the Letter of Transmittal and certificates for the Shares and any other required documents to the Depositary at one of its addresses set out below: The Depositary for the Offer: FIRST CHICAGO TRUST COMPANY OF NEW YORK
BY HAND: First Chicago Trust Company of New York ATTN: Tenders & Exchanges C/O The Depository Trust Company BY MAIL: 55 Water Street, DTC TAD BY OVERNIGHT COURIER: Tenders & Exchanges Vietnam Veterans Memorial Plaza Tenders & Exchanges P.O. Box 2569-Suite 4660 New York, NY 10041 14 Wall Street Jersey City, New Jersey BY FACSIMILE TRANSMISSION: Suite 4680-8th Floor 07303-2569 (201) 222-4720 New York, New York 10005 or (201) 222-4721 Confirm by Telephone: (201) 222-4707
Please contact the Information Agent at the telephone numbers below with any questions or requests for assistance or additional copies of the Offer to Purchase and the Letter of Transmittal and the Notice of Guaranteed Delivery. You may also contact the Dealer Manager or your broker, dealer, commercial bank, or trust company for assistance concerning the Offer. To confirm the receipt of your Letter of Transmittal, Notice of Guaranteed Delivery, or certificates for your shares by the Depositary, please contact the Depositary at (201) 222-4707. THE INFORMATION AGENT FOR THE OFFER: [MACKENZIE PARTNERS, INC. LOGO] 156 Fifth Avenue New York, New York 10010 (212) 929-5500 (call collect) or Call Toll Free (800) 322-2885 THE DEALER MANAGER FOR THE OFFER: J.P. MORGAN & CO. 60 Wall Street New York, New York 10260 (212) 648-6234 EX-1.B 3 EXHIBIT 1(B) 1 LETTER OF TRANSMITTAL TO TENDER CLASS A SHARES OF NACCO INDUSTRIES, INC. PURSUANT TO ITS OFFER TO PURCHASE, DATED NOVEMBER 18, 1996 THE OFFER, THE PRORATION PERIOD AND WITHDRAWAL RIGHTS EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON MONDAY, DECEMBER 16, 1996, UNLESS THE OFFER IS EXTENDED. TO: FIRST CHICAGO TRUST COMPANY OF NEW YORK, AS DEPOSITARY
BY MAIL: BY HAND: BY OVERNIGHT COURIER: Tenders & Exchanges First Chicago Trust Company of New York Tenders & Exchanges P.O. Box 2559-Suite 4660 ATTN: Tenders & Exchanges 14 Wall Street Jersey City, New Jersey C/O The Depository Trust Company Suite 4680-8th Floor 07303-2559 55 Water Street, DTC TAD New York, New York 10005 Vietnam Veterans Memorial Plaza New York, NY 10041
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY. This Letter of Transmittal is to be used only if certificates for shares of Class A Common Stock, par value $1.00 per share (the "Class A Shares" or the "Shares"), are to be forwarded herewith unless an Agent's Message (as defined in the Offer to Purchase) is utilized or if delivery of Class A Shares is to be made by book-entry transfer to the Depositary's account at The Depository Trust Company (the "Book-Entry Transfer Facility") pursuant to the procedures set forth in "How to Tender Shares -- Book-Entry Delivery" in the Offer to Purchase. The Company also has outstanding Class B Common Stock, par value $1.00 per share (the "Class B Shares"). Because of transfer restrictions, no trading market has developed, or is expected to develop, for the Class B Shares. The Class B Shares are not subject to the Offer; however, the Class B Shares are convertible into Class A Shares on a one-for-one basis. If you hold Class B Shares and would like to tender Class A Shares into the Offer, you must first notify Key Shareholder Services, the transfer agent for the Shares (the "Transfer Agent"), at 4900 Tiedeman Road, Stock Transfer Department, 1st Floor, Brooklyn, Ohio 44144, in writing, of your desire to convert some or all of your Class B Shares into Class A Shares, and enclose share certificates representing the Class B Shares you would like to so convert and executed stock powers with respect to such certificates. See Instruction 2 and "How to Tender Shares -- Class B Shares" in the Offer to Purchase for a discussion of factors you should consider before deciding to convert your Class B Shares into Class A Shares. Shareholders who cannot deliver their Shares and all other documents required hereby to the Depositary by the Expiration Date (as defined in the Offer to Purchase), or who are unable to comply with the procedures for book-entry transfer on a timely basis, and who wish to tender their Shares must do so pursuant to the guaranteed delivery procedure set forth in "How to Tender Shares" in the Offer to Purchase. See Instruction 2. Delivery of documents to the Book-Entry Transfer Facility does not constitute delivery to the Depositary. 2 - -------------------------------------------------------------------------------- DESCRIPTION OF SHARES TENDERED NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S) SHARES TENDERED (PLEASE FILL IN, IF BLANK) (ATTACH ADDITIONAL LIST IF NECESSARY) TOTAL NUMBER OF SHARES NUMBER OF CERTIFICATE REPRESENTED SHARES NUMBER(S)* BY CERTIFICATE(S)* TENDERED** TOTAL
* Need not be completed by shareholders tendering by book-entry transfer. ** Unless otherwise indicated, it will be assumed that all Shares represented by any certificates delivered to the Depositary are being tendered. See Instruction 4. - ------------------------------------------------------------------------------- [ ] CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER TO THE DEPOSITARY'S ACCOUNT AT THE BOOK-ENTRY TRANSFER FACILITY AND COMPLETE THE FOLLOWING: Name of Tendering Institution ___________________________________________ [ ] DTC Account No. _____________________________________________________ [ ] CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AND COMPLETE THE FOLLOWING: Name(s) of Tendering Shareholder(s) _____________________________________ Date of Execution of Notice of Guaranteed Delivery ______________________ Name of Institution which Guaranteed Delivery ___________________________ If delivery is by book-entry transfer: Name of Tendering Institution ______________________________________ [ ] DTC Account No. _____________________________________________________ Transaction Code No. ____________________________________________________ NOTE: SIGNATURES MUST BE PROVIDED BELOW PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY 3 Ladies and Gentlemen: The undersigned hereby tenders to NACCO Industries, Inc., a Delaware corporation (the "Company"), the above-described shares of Class A Common Stock, $1.00 par value per share (the "Shares"), pursuant to the Company's offer to purchase up to 800,000 Shares at a price per Share hereinafter set forth, net to the seller in cash, upon the terms and subject to the conditions set forth in the Company's Offer to Purchase, dated November 18, 1996 (the "Offer to Purchase"), receipt of which is hereby acknowledged, and in this accompanying Letter of Transmittal (which together constitute the "Offer"). Subject to and effective upon the Company's acceptance for payment of and payment for the Shares tendered herewith in accordance with the terms and subject to the conditions of the Offer, the undersigned hereby sells, assigns and transfers to or upon the order of the Company all right, title and interest in and to all the Shares that are being tendered hereby and appoints the Depositary the true and lawful agent and attorney-in-fact of the undersigned with respect to such Shares, with full power of substitution (such power of attorney being deemed to be an irrevocable power coupled with an interest), to (a) deliver certificates for such Shares, or transfer ownership of such Shares on the account books maintained by the Book-Entry Transfer Facility, together, in any such case, with all accompanying evidences of transfer and authenticity, to or upon the order of the Company, (b) present such Shares for transfer and cancellation on the books of the Company and (c) receive all benefits and otherwise exercise all rights of beneficial ownership of such Shares, all in accordance with the terms of the Offer. The Depositary will act as agent for tendering holders for the purpose of receiving payment from the Company and transmitting payment to the tendering holders. The undersigned hereby represents and warrants that the undersigned has a net long position (within the meaning of Rule 14e-4 of the Securities Exchange Act) in the Shares at least equal to the Shares being tendered and has full power and authority to tender, sell, assign and transfer the Shares tendered hereby and that, when the same are accepted for payment by the Company, the Company will acquire good and unencumbered title thereto, free and clear of all liens, restrictions, charges and encumbrances and not subject to any adverse claims. The undersigned will, upon request, execute and deliver any additional documents deemed by the Depositary or the Company to be necessary or desirable to complete the sale, assignment and transfer of the Shares tendered hereby and has read, understands and agrees with, all the terms and conditions of the Offer. The undersigned understands that, upon the terms and subject to the conditions of the Offer, the Company will determine the per Share price (not greater than $50.00 nor less than $43.50 per Share) (the "Purchase Price") that it will pay for Shares validly tendered and not withdrawn pursuant to the Offer taking into account the number of Shares so tendered and the prices specified by tendering shareholders. The undersigned understands that the Company will select the lowest Purchase Price that will enable it to purchase 800,000 Shares (or such lesser number of Shares as are validly tendered at prices not greater than $50.00 nor less than $43.50 per Share) pursuant to the Offer. The undersigned understands that under certain circumstances set forth in the Offer to Purchase, the Company may terminate or amend the Offer or may postpone the acceptance for payment of, or payment for, Shares tendered or may accept for payment fewer than all of the Shares tendered hereby. The undersigned understands that the Company has expressly reserved the right, in its sole discretion, to purchase up to an additional 2% of the outstanding Shares pursuant to the Offer without the need to extend the Offer. The undersigned understands that tenders of Shares pursuant to any one of the procedures described in "How to Tender Shares" in the Offer to Purchase and in the instructions hereto will constitute an agreement between the undersigned and the Company upon the terms and subject to the conditions of the Offer. The undersigned understands that the Company also has outstanding Class B Common Stock, par value $1.00 per share (the "Class B Shares"), and that the Class B Shares are not subject to the Offer. The undersigned understands that the Class B Shares are convertible into Class A Shares on a one-for-one basis and that if it would like to tender Shares into the Offer it must follow the instructions set forth in Instruction 2 and "How to Tender Shares" in the Offer to Purchase as to how to accomplish such conversion, and that it should carefully consider the factors described therein before requesting such conversion. Unless otherwise indicated herein under "Special Payment Instructions," please issue the check for the Purchase Price of any Shares purchased (less the amount of any federal income or backup withholding tax required to be withheld) and return any Shares not tendered or not purchased, in the name(s) of the undersigned (and in the case of Shares tendered by book-entry transfer, by credit to the account at the Book-Entry Transfer Facility designated above). Similarly, unless otherwise indicated herein under "Special Delivery Instructions," please mail the check for the Purchase Price of any Shares purchased (less the amount of any federal income or backup withholding tax required to be withheld) and any certificates for Shares not tendered or not purchased (and accompanying documents, as appropriate) to the undersigned at the address shown below the undersigned's signature(s). In the event that both "Special Payment Instructions" and "Special Delivery Instructions" are completed, please issue the check for the Purchase Price of any Shares purchased (less the amount of any federal income or backup withholding tax required to be withheld) and return any Shares not tendered or not purchased in the name(s) of, and mail said check and any certificates to, the person(s) so indicated. The undersigned recognizes that the Company has no obligation, pursuant to the "Special Payment Instructions," to transfer any Shares from the name of the registered holder(s) thereof, or to order the registration or transfer of such Shares tendered by book-entry transfer, if the Company does not accept for payment any of the Shares so tendered. All authority herein conferred or agreed to be conferred shall survive the death or incapacity of the undersigned and any obligation of the undersigned hereunder shall be binding upon the heirs, personal representatives, successors and assigns of the undersigned. Except as stated in the Offer, this tender is irrevocable. 4 - ------------------------------------------------------------------------------- PRICE (IN DOLLARS) PER SHARE AT WHICH SHARES ARE BEING TENDERED (SEE INSTRUCTION 5) ------------------------ CHECK ONLY ONE BOX. IF MORE THAN ONE BOX IS CHECKED, OR IF NO BOX IS CHECKED, THERE IS NO VALID TENDER OF SHARES. SHARES TENDERED AT PRICE DETERMINED BY DUTCH AUCTION [ ] The undersigned wants to maximize the chance of having the Company purchase all the Shares the undersigned is tendering (subject to the possibility of proration). Accordingly, by checking this one box INSTEAD OF ONE OF THE PRICE BOXES BELOW, the undersigned hereby tenders Shares and is willing to accept the Purchase Price resulting from the Dutch auction tender process. This action could result in receiving a price per Share as low as $43.50 or as high as $50.00. OR SHARES TENDERED AT PRICE DETERMINED BY SHAREHOLDER [ ] $44.00 [ ] $45.00 [ ] $46.00 [ ] $47.00 [ ] $48.00 [ ] $49.00 [ ] $44.125 [ ] $45.125 [ ] $46.125 [ ] $47.125 [ ] $48.125 [ ] $49.125 [ ] $44.250 [ ] $45.250 [ ] $46.250 [ ] $47.250 [ ] $48.250 [ ] $49.250 [ ] $44.375 [ ] $45.375 [ ] $46.375 [ ] $47.375 [ ] $48.375 [ ] $49.375 [ ] $43.500 [ ] $44.500 [ ] $45.500 [ ] $46.500 [ ] $47.500 [ ] $48.500 [ ] $49.500 [ ] $43.625 [ ] $44.625 [ ] $45.625 [ ] $46.625 [ ] $47.625 [ ] $48.625 [ ] $49.625 [ ] $43.750 [ ] $44.750 [ ] $45.750 [ ] $46.750 [ ] $47.750 [ ] $48.750 [ ] $49.750 [ ] $43.875 [ ] $44.875 [ ] $45.875 [ ] $46.875 [ ] $47.875 [ ] $48.875 [ ] $49.875 [ ] $50.00
- ------------------------------------------------------------------------------- 5 - ------------------------------------------------------------------------------- ODD LOTS (SEE INSTRUCTION 6) To be completed ONLY if Shares are being tendered by or on behalf of a person owning beneficially, as of the close of business on November 13, 1996, an aggregate of fewer than 100 Shares. The undersigned either (check one box): [ ] was the beneficial owner as of the close of business on November 13, 1996 of an aggregate of fewer than 100 Shares, all of which are being tendered, or [ ] is a broker, dealer, commercial bank, trust company or other nominee which (a) is tendering, for the beneficial owners thereof, Shares with respect to which it is the record owner, and (b) believes, based upon representations made to it by such beneficial owners, that each such person was the beneficial owner as of the close of business on November 13, 1996 of an aggregate of fewer than 100 Shares and is tendering all of such Shares. - ------------------------------------------------------------------------------- 6 - ------------------------------------------------------------------------------- SPECIAL PAYMENT INSTRUCTIONS (SEE INSTRUCTIONS 1, 4, 7, 8 AND 9) To be completed ONLY if the check for the Purchase Price of Shares purchased (less the amount of any federal income and backup withholding tax required to be withheld) or certificates for Shares not tendered or not purchased are to be issued in the name of someone other than the undersigned, or if Shares delivered by book-entry transfer that are not purchased are to be returned by credit to an account maintained by the Book-Entry Transfer Facility. Issue [ ] Check [ ] Certificate(s) to: Name - ------------------------------------------------------ (Please Print) Address - ------------------------------------------------------ - ------------------------------------------------------ (Zip Code) - ------------------------------------------------------ (Taxpayer Identification No.) - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- SPECIAL DELIVERY INSTRUCTIONS (SEE INSTRUCTIONS 1, 4, 7, 8 AND 9) To be completed ONLY if the check for the Purchase Price of Shares purchased (less the amount of any federal income and backup withholding tax required to be withheld) or certificates for Shares not tendered or not purchased are to be mailed to someone other than the undersigned or to the undersigned at an address other than that shown below the undersigned's signature(s). Mail [ ] Check [ ] Certificate(s) to: Name - ------------------------------------------------------ (Please Print) Address - ------------------------------------------------------ - ------------------------------------------------------ (Zip Code) - ------------------------------------------------------------------------------- 7 - ------------------------------------------------------------------------------- SIGN HERE (COMPLETE SUBSTITUTE FORM W-9 ON REVERSE SIDE) - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- Signature(s) of Owner(s) Name(s) ------------------------------------------------------------------------- (Please Print) - -------------------------------------------------------------------------------- Capacity (full title) ----------------------------------------------------------- Address ------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- (Include Zip Code) Area Code and Telephone Number -------------------------------------------------- Dated , 199 ------------------------------------------------------------------- --- Taxpayer ID No. or Social Security No. ------------------------------------------ (Must be signed by registered holder(s) exactly as name(s) appear(s) on stock certificate(s) or on a security position listing or by person(s) authorized to become registered holder(s) by certificates and documents transmitted herewith. If signature is by a trustee, executor, administrator, guardian, attorney-in- fact, agent, officer of a corporation or other person acting in a fiduciary or representative capacity, please set forth full title and see Instruction 7.) GUARANTEE OF SIGNATURE(S) (IF REQUIRED; SEE INSTRUCTIONS 1 AND 7) Name of Firm -------------------------------------------------------------------- Authorized Signature ------------------------------------------------------------ Dated , 199 ------------------------------------------------------------------- --- - ------------------------------------------------------------------------------- 8 - ------------------------------------------------------------------------------------------------------------ PAYER'S NAME: FIRST CHICAGO TRUST COMPANY OF NEW YORK, AS DEPOSITARY - ------------------------------------------------------------------------------------------------------------ ENTER YOUR IDENTIFICATION NUMBER IN THE APPROPRIATE ------------------ SUBSTITUTE BOX. FOR MOST INDIVIDUALS, THIS IS YOUR SOCIAL SOCIAL SECURITY FORM W-9 SECURITY NUMBER. IF YOU DO NOT HAVE A NUMBER, SEE NUMBER DEPARTMENT OF THE TREASURY, HOW TO OBTAIN A TIN IN THE ENCLOSED GUIDELINES. OR INTERNAL REVENUE SERVICE ----------------- Employer Identification Number(s) --------------------------------------------------------------------------- NOTE: If the account is in more than one name, see the chart on page 2 of enclosed Guidelines for guidelines on which number to give the payer. --------------------------------------------------------------------------- Certificate: Under penalties of perjury, I certify FOR PAYEES EXEMPT PAYER'S REQUEST that: FROM BACKUP FOR TAXPAYER (1) The number shown on this form is my correct WITHHOLDING (SEE IDENTIFICATION NUMBER Taxpayer Identification Number (or I am waiting ENCLOSED Guidelines) for a number to be issued to me), and (2) I am not subject to backup withholding either because I have not been notified by the Internal Revenue Service ("IRS") that I am subject to backup withholding as a result of a failure to report all interest or dividends, or the IRS has notified me that I am no longer subject to backup withholding. SIGNATURE ------------------------------------------- DATE , 199 ----------------------------------------- -- - ------------------------------------------------------------------------------------------------------------ NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING OF 31% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE OFFER. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
9 INSTRUCTIONS FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER 1. Guarantee of Signatures. Except as otherwise provided below, all signatures on this Letter of Transmittal must be guaranteed by a financial institution (including most banks, savings and loan associations and brokerage houses) which is a participant in the Securities Transfer Agents Medallion Program, the New York Stock Exchange Medallion Guarantee Program or the Stock Exchange Medallion Program (an "Eligible Institution"). Signatures on this Letter of Transmittal need not be guaranteed (a) if this Letter of Transmittal is signed by the registered holder(s) of the Shares (which term, for purposes of this document, shall include any participant in the Book-Entry Transfer Facility whose name appears on a security position listing as the owner of Shares) tendered herewith and such holder(s) have not completed either the box entitled "Special Payment Instructions" or the box entitled "Special Delivery Instructions" on this Letter of Transmittal or (b) if such Shares are tendered for the account of an Eligible Institution. See Instructions 7 and 9. 2. Delivery of Letter of Transmittal and Shares; Guaranteed Delivery Procedure. This Letter of Transmittal is to be used only if certificates for the Shares are to be forwarded herewith unless an Agent's Message is utilized or if delivery of Shares is to be made by book-entry transfer pursuant to the procedures set forth in "How to Tender Shares" in the Offer to Purchase. For a shareholder to validly tender Shares, certificates for all physically delivered Shares, or a confirmation of a book-entry transfer of all Shares delivered electronically into the Depositary's account at the Book-Entry Transfer Facility, as well as a properly completed and duly executed Letter of Transmittal (or copy thereof) and any other documents required by this Letter of Transmittal, must be received by the Depositary at one of its addresses set forth on the front page of this Letter of Transmittal by the Expiration Date. The Company also has outstanding the Class B Shares. Because of transfer restrictions, no trading market has developed, or is expected to develop, for the Class B Shares. The Class B Shares are not subject to the Offer; however, the Class B Shares are convertible into Class A Shares on a one-for-one basis. If you hold Class B Shares and would like to tender Class A Shares into the Offer, you must first notify Key Shareholder Services, the transfer agent for the Shares (the "Transfer Agent"), at 4900 Tiedeman Road, Stock Transfer Department, 1st Floor, Brooklyn, Ohio 44144, in writing, of your desire to convert some or all of your Class B Shares into Class A Shares, and enclose share certificates representing the Class B Shares you would like to so convert and executed stock powers with respect to such certificates. Once you receive share certificates representing the Class A Shares, you can then tender Class A Shares into the Offer. Please note that shareholders should allow 10-14 business days for such conversion and that share certificates representing tendered Shares must be received by the Depositary by the Expiration Date, or up to three NYSE trading days thereafter if they follow the procedures for guaranteed delivery set forth below. In considering whether you should convert Class B Shares into Class A Shares in order to tender Class A Shares into the Offer, please note that: (i) each Class B Share is entitled to ten votes per share while each Class A Share is entitled to only one vote per Share; (ii) once you convert your Class B Shares into Class A Shares and tender such Shares into the Offer you cannot convert your Class A Shares back into Class B Shares in the event that such Class A Shares are not purchased in the Offer; (iii) you may not have any such Class A Shares purchased in the Offer because the price specified by you may exceed the Purchase Price; and (iv) some portion of the Class A Shares that you tender into the Offer may not be purchased pursuant to the Offer due to proration. See "How to Tender Shares -- Class B shares" in the Offer to Purchase. Shareholders who cannot deliver their Shares and all other required documents to the Depositary by the Expiration Date must tender their Shares pursuant to the guaranteed delivery procedure set forth in "How to Tender Shares" in the Offer to Purchase. Pursuant to such procedure: (a) such tender must be made by or through an Eligible Institution, (b) a properly completed and duly executed Notice of Guaranteed Delivery substantially in the form provided by the Company must be received by the Depositary by the Expiration Date, and (c) the certificates for all physically delivered Shares, or a confirmation of a book-entry transfer of all Shares delivered electronically into the Depositary's account at the Book-Entry Transfer Facility, as well as a properly completed and duly executed Letter of Transmittal (or copy thereof) or, in the case of a book-entry delivery, an Agent's Message and any other documents required by this Letter of Transmittal, must be received by the Depositary within three New York Stock Exchange, Inc. trading days after the date of execution of such Notice of Guaranteed Delivery, all as provided in "How to Tender Shares" in the Offer to Purchase. See "How to Tender Shares" in the Offer to Purchase. THE METHOD OF DELIVERY OF ALL DOCUMENTS, INCLUDING SHARE CERTIFICATES, IS AT THE OPTION AND RISK OF THE TENDERING SHAREHOLDER. DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE DEPOSITARY. IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS RECOMMENDED. No alternative, conditional or contingent tenders will be accepted, and no fractional Shares will be purchased. By executing this Letter of Transmittal (or copy thereof), the tendering shareholder waives any right to receive any notice of the acceptance for payment of the Shares. 3. Inadequate Space. If the space provided in the box captioned "Description of Shares Tendered" is inadequate, the certificate numbers and/or the number of Shares should be listed on a separate signed schedule attached hereto. 4. Partial Tenders (not applicable to shareholders who tender by book-entry transfer). If fewer than all the Shares represented by any certificate delivered to the Depositary are to be tendered, fill in the number of Shares that are to be tendered in the box entitled "Number of Shares Tendered." In such case, a new certificate for the remainder of the Shares represented by the old certificate will be sent to the person(s) signing this Letter of Transmittal, unless otherwise provided in the appropriate box on this Letter of Transmittal, as promptly as practicable after the expiration or termination of the Offer. All Shares represented by certificates delivered to the Depositary will be deemed to have been tendered unless otherwise indicated. 5. Indication of Price at Which Shares Are Being Tendered. For shares to be properly tendered, the shareholder must check either the box indicating the price per Share at which Shares are being tendered under "Shares Tendered at Price Determined by Shareholder" or the box under "Shares Tendered at Price Determined by Dutch Auction." See "How to Tender Shares" in the Offer to Purchase. By checking the box under "Shares Tendered at Price Determined by Dutch Auction," the shareholder agrees to accept the Purchase Price that results from the Dutch Auction tender process, which may be as low as $43.50 or as high as $50.00 per Share. Checking the box under "Shares Tendered at Price Determined by Shareholder" can result in none of the Shares being purchased if the Purchase Price for the Shares is less than the price checked. ONLY ONE BOX MAY BE CHECKED. IF MORE THAN ONE BOX IS CHECKED, OR IF NO BOX IS CHECKED, SHARES WILL NOT BE DEEMED TENDERED. A SHAREHOLDER WISHING TO TENDER PORTIONS OF HIS HOLDINGS AT DIFFERENT PRICES MUST COMPLETE A SEPARATE LETTER OF TRANSMITTAL FOR EACH PRICE 10 AT WHICH EACH SUCH PORTION OF SHARES IS TENDERED. THE SAME SHARES CANNOT BE TENDERED AT MORE THAN ONE PRICE UNLESS PREVIOUSLY WITHDRAWN AS PROVIDED IN "WITHDRAWAL RIGHTS" IN THE OFFER TO PURCHASE AND RETENDERED. 6. Odd Lots. As described in "Tenders by Holders of Fewer Than 100 Shares" in the Offer to Purchase, if the Company purchases less than all Shares tendered before the Expiration Date and not withdrawn, the Shares purchased first will consist of all Shares tendered by any shareholder who owned beneficially, as of the close of business on November 13, 1996, an aggregate of fewer than 100 Shares and who tenders all such Shares at or below the Purchase Price. This preference will not be available unless the box captioned "Odd Lots" is completed. See "Tenders by Holders of Fewer Than 100 Shares" in the Offer to Purchase. 7. Signatures on Letter of Transmittal; Stock Powers and Endorsements. If this Letter of Transmittal is signed by the registered holder(s) of the Shares tendered hereby, the signature(s) must correspond with the name(s) as written on the face of the certificates without any change whatsoever. If any of the Shares tendered hereby are held of record by two or more persons, all such persons must sign this Letter of Transmittal. If any of the Shares tendered hereby are registered in different names on different certificates, it will be necessary to complete, sign and submit as many separate Letters of Transmittal as there are different registrations of certificates. If this Letter of Transmittal is signed by the registered holder(s) of the Shares tendered hereby, no endorsement of certificates or separate stock powers are required unless payment of the Purchase Price is to be made, or Shares not tendered or not purchased are to be returned, in the name of any person other than the registered holder(s). Signatures on any such certificates or stock powers must be guaranteed by an Eligible Institution. If this Letter of Transmittal is signed by a person other than the registered holder(s) of the Shares tendered hereby, certificates must be endorsed or accompanied by appropriate stock powers, in either case, signed exactly as the name(s) of the registered holder(s) appear(s) on the certificates for such Shares. Signature(s) on any such certificates or stock powers must be guaranteed by an Eligible Institution. See Instruction 1. If this Letter of Transmittal or any certificate or stock power is signed by a trustee, executor, administrator, guardian, attorney-in-fact, officer of a corporation or other person acting in a fiduciary or representative capacity, such person should so indicate when signing, and proper evidence satisfactory to the Company of the authority of such person so to act must be submitted. 8. Stock Transfer Taxes. Except as provided in this Instruction, the Company will pay any stock transfer taxes with respect to the sale and transfer of any Shares to it or its order pursuant to the Offer. If, however, payment of the Purchase Price is to be made to, or Shares not tendered or not purchased are to be returned, in the name of any person other than the registered holder(s), or tendered Shares are registered in the name of a person other than the name of the person(s) signing this Letter of Transmittal, then the amount of any stock transfer taxes (whether imposed on the registered holder(s), such other person or otherwise) payable on account of the transfer to such person will be deducted from the Purchase Price by the Depositary unless satisfactory evidence of the payment of such taxes, or exemption therefrom is submitted. See "Acceptance for Payment of Shares and Payment of Purchase Price" in the Offer to Purchase. See also Instruction 10 for a description of U.S. federal income and backup withholding taxes which may also be required to be deducted from the Purchase Price of Shares purchased pursuant to the Offer. 9. Special Payment and Delivery Instructions. If the check for the Purchase Price of any Shares purchased is to be issued, or any Shares not tendered or not purchased are to be returned, in the name of a person other than the person(s) signing this Letter of Transmittal or if the check or any certificates for Shares not tendered or not purchased are to be mailed to someone other than the person(s) signing this Letter of Transmittal or to the person(s) signing this Letter of Transmittal at an address other than that shown above, the appropriate boxes on this Letter of Transmittal should be completed. Shareholders tendering Shares by book-entry transfer may request that Shares not purchased be credited to such account at the Book-Entry Transfer Facility as such shareholder may designate under "Special Payment Instructions." See Instructions 1 and 7 for a description of the circumstances under which the signature on this Letter of Transmittal and other documents may be required to be guaranteed. 10. Federal Income Tax Withholding. Under federal income tax laws, the Depositary is required to withhold 31% of the amount of any payments made pursuant to the Offer unless certain requirements are satisfied. In order to avoid such withholding, a tendering shareholder must complete the Substitute Form W-9 set forth above and return it to the Depositary, unless the shareholder is an "exempt recipient," (including, among others, all corporations and certain foreign individuals). In order to satisfy the Depositary that a foreign individual qualifies as an exempt recipient, such shareholder must submit a statement, signed under penalties of perjury, attesting to that individual's exempt status. Such statements can be obtained from the Depositary. For further information concerning backup withholding and instructions for completing the Substitute Form W-9 (including how to obtain a taxpayer identification number if you do not have one and how to complete the Substitute Form W-9 if Shares are held in more than one name), consult the enclosed Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9. If the Depositary is not provided with the correct taxpayer identification number and the tendering shareholder is not an exempt recipient, the shareholder may be subject to both civil and criminal penalties, and payments that are made to such shareholder pursuant to the Offer may be subject to backup withholding. See "Certain Federal Income Tax Consequences" in the Offer to Purchase. Failure to complete the Substitute Form W-9 will not, by itself, cause Shares to be deemed invalidly tendered, but may require the Depositary to withhold 31% of the amount of any payments made pursuant to the Offer. Backup withholding is not an additional federal income tax. Rather, the federal income tax liability of a person subject to backup withholding will be reduced by the amount of tax withheld. If withholding results in an overpayment of taxes, a refund may be obtained. In addition, in the case of a foreign shareholder who tenders Shares which are purchased in the Offer, as described in "Certain Federal Income Tax Consequences" in the Offer to Purchase, the Depositary will treat the gross proceeds payable pursuant to the Offer as a dividend for federal income tax purposes, and if neither a reduced rate of withholding is applicable pursuant to a tax treaty nor an exemption from withholding is applicable because gross proceeds paid pursuant to the Offer are effectively connected with the conduct of a trade or business within the United States, the Depositary will be required to withhold federal income tax at a rate of 30% from such gross proceeds paid to a foreign shareholder or his agent. For this purpose, a foreign shareholder generally is any shareholder that is not, under United States tax laws, (a) a citizen or resident of the United States; (b) a corporation or partnership created or organized in the United States or under the laws of the United States or any State; (c) any trust if a court within the United States is able to exercise primary supervision over the administration of the trust and one or more United States fiduciaries have the authority to control all substantial decisions relating to the trust; or (d) any estate except an estate the income of which, from sources outside the United States which is not effectively connected with the conduct of a trade or business within the United States, is not subject to U.S. income taxation. 11 The Depositary will determine the applicable rate of withholding by reference to a shareholder's address, except if facts and circumstances indicate such reliance is not warranted or if applicable law (for example, an applicable tax treaty or Treasury regulations thereunder) requires some other method for determining a shareholder's residence. A foreign shareholder may be eligible to file for a refund of such tax or a portion of such tax if the proceeds payable pursuant to the Offer are entitled to sale or exchange treatment as described in "Certain Federal Income Tax Consequences" in the Offer to Purchase or if the shareholder is entitled to a reduced rate of withholding pursuant to a treaty and the Depositary withheld at a higher rate. In order to claim an exemption from withholding on the grounds that gross proceeds paid pursuant to the Offer are effectively connected with the conduct of a trade or business within the United States, a foreign shareholder must deliver to the Depositary a properly executed Form 4224 claiming such exemption. Such Forms can be obtained from the Depositary. FOREIGN SHAREHOLDERS ARE URGED TO CONSULT THEIR OWN TAX ADVISORS REGARDING THE APPLICABILITY TO THEM OF THE FEDERAL INCOME TAX WITHHOLDING RULES, INCLUDING THEIR ELIGIBILITY FOR A WITHHOLDING TAX REDUCTION OR EXEMPTION AND THE PROCEDURES FOR OBTAINING A REFUND. 11. Irregularities. All questions as to the Purchase Price, number of Shares accepted, the form of documents, and the validity, eligibility (including time of receipt) and acceptance for payment of any tender of Shares will be determined by the Company in its sole discretion, which determination shall be final and binding on all parties. The Company reserves the absolute right to reject any or all tenders of Shares it determines not to be in proper form or the acceptance of which or payment for which may, in the opinion of the Company's counsel, be unlawful. The Company also reserves the absolute right to waive any of the conditions of the Offer and any defect or irregularity in the tender of any particular Shares, and the Company's interpretations of the terms of the Offer (including these instructions) will be final and binding on all parties. No tender of Shares will be deemed to be properly made until all defects and irregularities have been cured or waived. Unless waived, any defects or irregularities in connection with tenders must be cured within such time as the Company shall determine. None of the Company, the Dealer Manager, the Depositary, the Information Agent (as the foregoing are defined in the Offer to Purchase) or any other person is or will be obligated to give notice of any defects or irregularities in tenders and none of them will incur any liability for failure to give any such notice. 12. Lost, Destroyed or Stolen Certificates. If any certificate evidencing Shares has been lost, destroyed, or stolen, the shareholder should promptly notify the Information Agent. The shareholder will then be instructed as to the steps that must be taken in order to replace such certificate. This Letter of Transmittal and related documents cannot be processed until the procedures for replacing lost, destroyed, or stolen certificates have been followed. 13. Requests for Assistance or Additional Copies. Questions and requests for assistance should be directed to the Information Agent or the Dealer Manager at their respective addresses and telephone numbers set forth below. Additional copies of the Offer to Purchase, this Letter of Transmittal and other related materials may be obtained from the Information Agent or brokers, dealers, commercial banks, and trust companies. THE INFORMATION AGENT FOR THE OFFER IS: [MACKENZIE PARTNERS, INC. LOGO] 156 Fifth Avenue New York, New York 10010 (212) 929-5500 (call collect) or Call Toll Free (800) 322-2885 THE DEALER MANAGER FOR THE OFFER: J.P. MORGAN & CO. 60 Wall Street New York, New York 10260 (212) 648-6234 EX-1.C 4 EXHIBIT 1(C) 1 Exhibit (a)(3) -------------- NOTICE OF GUARANTEED DELIVERY (NOT TO BE USED FOR SIGNATURE GUARANTEE) TO TENDER CLASS A SHARES OF NACCO INDUSTRIES, INC. PURSUANT TO ITS OFFER TO PURCHASE, DATED NOVEMBER 18, 1996 The attached form, or a form substantially equivalent to the attached form, must be used to accept the Offer if certificates for shares of Class A Common Stock, par value $1.00 per share, of NACCO Industries, Inc., and all other documents required by the Letter of Transmittal cannot be delivered to the Depositary by the expiration of the Offer or if procedures for book-entry transfer cannot be completed by the expiration of the Offer. Such form may be delivered by hand, facsimile transmission, or mailed to the Depositary. See "How to Tender Shares" in the Offer to Purchase. TO: FIRST CHICAGO TRUST COMPANY OF NEW YORK, AS DEPOSITARY BY HAND: First Chicago Trust Company of New York ATTN: Tenders & Exchanges C/O The Depository Trust Company BY MAIL: 55 Water Street, DTC TAD BY OVERNIGHT COURIER: Tenders & Exchanges Vietnam Veterans Memorial Plaza Tenders & Exchanges P.O. Box 2559-Suite 4660 New York, NY 10041 14 Wall Street Jersey City, New Jersey Suite 4680-8th Floor 07303-2559 BY FACSIMILE TRANSMISSION: New York, New York 10005 (201) 222-4720 or (201) 222-4721 Confirm by Telephone: (201) 222-4707
Delivery of this Notice of Guaranteed Delivery to an address other than those shown above or transmission of instructions via a facsimile number other than those listed above does not constitute a valid delivery. FOR THIS NOTICE OF GUARANTEED DELIVERY TO BE EFFECTIVE, IT MUST BE SIGNED BY BOTH THE TENDERING SHAREHOLDER AND THE GUARANTOR. THE OFFER, THE PRORATION PERIOD AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON MONDAY, DECEMBER 16, 1996, UNLESS THE OFFER IS EXTENDED. 2 THIS FORM IS NOT TO BE USED TO GUARANTEE SIGNATURES. IF A SIGNATURE ON A LETTER OF TRANSMITTAL IS REQUIRED TO BE GUARANTEED BY AN "ELIGIBLE INSTITUTION" UNDER THE INSTRUCTIONS THERETO, SUCH SIGNATURE GUARANTEE MUST APPEAR IN THE APPLICABLE SPACE PROVIDED IN THAT SIGNATURE BOX ON THE LETTER OF TRANSMITTAL. Ladies and Gentlemen: The undersigned hereby tenders to NACCO Industries, Inc. (the "Company"), at the price per share indicated below, net to the seller in cash, upon the terms and subject to the conditions set forth in the Company's Offer to Purchase, dated November 18, 1996 (the "Offer to Purchase"), and the related Letter of Transmittal (which together constitute the "Offer"), receipt of which is hereby acknowledged, the number (indicate below) of shares of Class A Common Stock, par value $1.00 per share (the "Shares"), of the Company, pursuant to the guaranteed delivery procedure set forth in "How to Tender Shares" in the Offer to Purchase. (SEE INSTRUCTION 5 OF THE LETTER OF TRANSMITTAL) NUMBER OF SHARES BEING TENDERED HEREBY: PRICE (IN DOLLARS) PER SHARE AT WHICH SHARES ARE BEING TENDERED ------------------------ CHECK ONLY ONE BOX. IF MORE THAN ONE BOX IS CHECKED, OR IF NO BOX IS CHECKED, THERE IS NO VALID TENDER OF SHARES. SHARES TENDERED AT PRICE DETERMINED BY DUTCH AUCTION [ ] The undesigned wants to maximize the chance of having the Company purchase all the Shares the undersigned is tendering (subject to the possibility of proration). Accordingly, by checking this one box INSTEAD OF ONE OF THE PRICE BOXES BELOW, the undersigned hereby tenders Shares and is willing to accept the Purchase Price resulting from the Dutch auction tender process. This action could result in receiving a price per Share as low as $43.50 or as high as $50.00. OR SHARES TENDERED AT PRICE DETERMINED BY SHAREHOLDER [ ] $44.00 [ ] $45.00 [ ] $46.00 [ ] $47.00 [ ] $48.00 [ ] $49.00 [ ] $44.125 [ ] $45.125 [ ] $46.125 [ ] $47.125 [ ] $48.125 [ ] $49.125 [ ] $44.250 [ ] $45.250 [ ] $46.250 [ ] $47.250 [ ] $48.250 [ ] $49.250 [ ] $44.375 [ ] $45.375 [ ] $46.375 [ ] $47.375 [ ] $48.375 [ ] $49.375 [ ] $43.500 [ ] $44.500 [ ] $45.500 [ ] $46.500 [ ] $47.500 [ ] $48.500 [ ] $49.500 [ ] $43.625 [ ] $44.625 [ ] $45.625 [ ] $46.625 [ ] $47.625 [ ] $48.625 [ ] $49.625 [ ] $43.750 [ ] $44.750 [ ] $45.750 [ ] $46.750 [ ] $47.750 [ ] $48.750 [ ] $49.750 [ ] $43.875 [ ] $44.875 [ ] $45.875 [ ] $46.875 [ ] $47.875 [ ] $48.875 [ ] $49.875 [ ] $50.00
2 3 ODD LOTS (SEE INSTRUCTION 6 OF THE LETTER OF TRANSMITTAL) The undersigned either (check one box): [ ] was the beneficial owner as of the close of business on November 13, 1996 of an aggregate of fewer than 100 Shares, all of which are being tendered, or [ ] is a broker, dealer, commercial bank, trust company or other nominee that (i) is tendering, for the beneficial owners thereof, Shares with respect to which it is the record owner, and (ii) believes, based upon representations made to it by each such beneficial owner, that such beneficial owner owned beneficially as of the close of business on November 13, 1996 an aggregate of fewer than 100 Shares, and is tendering all of such Shares. Number of Shares:............................................................... Certificate Nos. (if available): ................................................................................ ................................................................................ If Shares will be tendered by book-entry transfer: Name of Tendering Institutions:................................................................... ................................................................................ Account No...................................................................... [ ] The Depository Trust Company SIGN HERE ................................................................................ ................................................................................ SIGNATURE(S) Dated: ..................................................................., 1996 Name(s) of Shareholders: ................................................................................ ................................................................................ PLEASE TYPE OR PRINT ................................................................................ ADDRESS ................................................................................ ZIP CODE ................................................................................ AREA CODE AND TELEPHONE NO. ................................................................................ TAXPAYER ID NO. OR SOCIAL SECURITY NO. 3 4 GUARANTEE (NOT TO BE USED FOR SIGNATURE GUARANTEE) The undersigned, a firm that is a member of a registered national securities exchange or the National Association of Securities Dealers, Inc., or a commercial bank or trust company having an office, branch or agency in the United States, guarantees (a) that the above named person(s) "own(s)" the Shares tendered hereby within the meaning of Rule 14e-4 under the Securities Exchange Act of 1934, as amended, (b) that such tender of Shares complies with Rule 14e-4 and (c) to deliver to the Depositary the Shares tendered hereby, together with a properly completed and duly executed Letter of Transmittal (or copy thereof) or an Agent's Message (as defined in the Offer to Purchase) and any other required documents, all within three New York Stock Exchange, Inc. trading days of the date hereof. .................................... NAME OF FIRM .................................... AUTHORIZED SIGNATURE .................................... NAME .................................... ADDRESS .................................... ZIP CODE Dated: ..............., 1996 .................................... AREA CODE AND TELEPHONE NO. DO NOT SEND STOCK CERTIFICATES WITH THIS FORM. YOUR STOCK CERTIFICATES MUST BE SENT WITH THE LETTER OF TRANSMITTAL. 4 EX-1.D 5 EXHIBIT 1(D) 1 Exhibit (a)(4) -------------- NACCO INDUSTRIES, INC. OFFER TO PURCHASE FOR CASH UP TO 800,000 SHARES OF ITS CLASS A COMMON STOCK AT A PURCHASE PRICE NOT GREATER THAN $50.00 NOR LESS THAN $43.50 PER SHARE THE OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON MONDAY, DECEMBER 16, 1996, UNLESS THE OFFER IS EXTENDED. November 18, 1996 To: Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees: NACCO Industries, Inc., a Delaware corporation (the "Company"), has appointed us to act as Dealer Manager in connection with its offer to purchase up to 800,000 shares of its Class A Common Stock, par value $1.00 per share (the "Shares"), at prices not greater than $50.00 nor less than $43.50 per Share, net to the seller in cash, specified by tendering shareholders, upon the terms and subject to the conditions set forth in its Offer to Purchase, dated November 18, 1996 (the "Offer to Purchase"), and the related Letter of Transmittal (which together constitute the "Offer"). The Company will, upon the terms and subject to the conditions of the Offer, determine a single per Share price (not greater than $50.00 nor less than $43.50 per Share) that it will pay for Shares validly tendered pursuant to the Offer (the "Purchase Price"), taking into account the number of Shares so tendered and the prices specified by tendering shareholders. The Company will select the lowest Purchase Price that will allow it to purchase all 800,000 Shares, or such lesser number of Shares as are validly tendered at prices not greater than $50.00 nor less than $43.50 per Share, pursuant to the Offer. Upon the terms and subject to the conditions of the Offer, including the provisions thereof relating to proration and "odd lot" tenders, the Company will purchase all Shares validly tendered at prices at or below the Purchase Price and not withdrawn. The Company expressly reserves the right, in its sole discretion, to purchase up to an additional 2% of the outstanding Shares pursuant to the Offer without the need to extend the Offer. See "Number of Shares; Proration" in the Offer to Purchase. If, prior to the Expiration Date (as defined in the Offer to Purchase), more than 800,000 Shares are validly tendered and not withdrawn, the Company will, upon the terms and subject to the conditions of the Offer, accept Shares for purchase first from all Odd Lot Holders (as defined in the Offer to Purchase) who validly tender all of their Shares at or below the Purchase Price and do not withdraw any such Shares, and then on a pro rata basis from all other shareholders whose Shares are validly tendered at or below the Purchase Price and not withdrawn. The Company also has outstanding Class B Common Stock, par value $1.00 per share (the "Class B Shares"). Because of transfer restrictions, no trading market has developed, or is expected to develop, for the Class B Shares. The Class B Shares are not subject to the Offer; however, the Class B Shares are convertible into Class A Shares on a one-for-one basis. If a shareholder holds Class B Shares and would like to tender Class A Shares into the Offer, such shareholder must first notify Key Shareholder Services, the transfer agent for the Shares (the "Transfer Agent"), at 4900 Tiedeman Road, Stock Transfer Department, 1st Floor, Brooklyn, Ohio 44144, in writing, of its desire to convert some or all of such shareholder's Class B Shares into Class A Shares, and enclose share certificates representing the Class B Shares such shareholder would like to so convert and executed stock powers with respect to such certificates. See "How to Tender Shares -- Class B Shares" in the Offer to Purchase for a discussion of factors a shareholder should consider before deciding to convert Class B Shares into Class A Shares. 2 THE OFFER IS NOT CONDITIONED ON ANY MINIMUM NUMBER OF SHARES BEING TENDERED. THE OFFER IS, HOWEVER, SUBJECT TO CERTAIN OTHER CONDITIONS. SEE "CERTAIN CONDITIONS OF THE OFFER" IN THE OFFER TO PURCHASE. NEITHER THE COMPANY NOR ITS BOARD OF DIRECTORS MAKES ANY RECOMMENDATION TO ANY SHAREHOLDER WHETHER TO TENDER ALL OR ANY SHARES. THE COMPANY HAS BEEN INFORMED THAT NO DIRECTOR, EXECUTIVE OFFICER, OR FAMILY SHAREHOLDER OF THE COMPANY INTENDS TO TENDER ANY SHARES PURSUANT TO THE OFFER. EACH SHAREHOLDER MUST MAKE HIS OR HER OWN DECISION WHETHER TO TENDER SHARES AND, IF SO, HOW MANY SHARES TO TENDER AND AT WHAT PRICE OR PRICES. For your information and for forwarding to your clients for whom you hold Shares registered in your name or in the name of your nominee, we are enclosing the following documents: 1. Offer to Purchase, dated November 18, 1996; 2. Letter to Clients that may be sent to your clients for whose accounts you hold Shares registered in your name or in the name of your nominee, with space provided for obtaining such clients' instructions with regard to the Offer; 3. Letter dated November 18, 1996 from Alfred M. Rankin, Jr., Chairman, President and Chief Executive Officer of the Company, to shareholders of the Company; 4. Letter of Transmittal for your use and for the information of your clients (together with accompanying Substitute Form W-9 and guidelines); and 5. Notice of Guaranteed Delivery to be used to accept the Offer if the Share certificates and all other required documents cannot be delivered to the Depositary by the Expiration Date or if the procedure for book-entry transfer cannot be completed on a timely basis. WE URGE YOU TO CONTACT YOUR CLIENTS AS PROMPTLY AS POSSIBLE. THE OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON MONDAY, DECEMBER 16, 1996, UNLESS THE OFFER IS EXTENDED. No fees or commissions will be payable to brokers, dealers or any person for soliciting tenders of Shares pursuant to the Offer other than fees paid to the Dealer Manager, the Depositary and the Information Agent as described in "Fees and Expenses" in the Offer to Purchase. The Company will, however, upon request, reimburse you for customary mailing and handling expenses incurred by you in forwarding any of the enclosed materials to the beneficial owners of Shares held by you as a nominee or in a fiduciary capacity. The Company will pay or cause to be paid any stock transfer taxes applicable to its purchase of Shares, except as otherwise provided in Instruction 8 of the Letter of Transmittal. See "Acceptance for Payment of Shares and Payment of Purchase Price" in the Offer to Purchase. In order to accept the Offer, a duly executed and properly completed Letter of Transmittal and any other required documents should be sent to the Depositary with either certificate(s) representing the tendered Shares or confirmation of their book-entry transfer all in accordance with the instructions set forth in the Letter of Transmittal and in "How to Tender Shares" in the Offer to Purchase. As described in "How to Tender Shares" in the Offer to Purchase, tenders of Shares may be made without the concurrent deposit of stock certificates or concurrent compliance with the procedure for book-entry transfer, if such tenders are made by or through a broker or dealer which is a member firm of a registered national securities exchange, or a member of the National Association of Securities Dealers, Inc. or a commercial bank or trust company having an office, branch or agency in the United States. Certificates for Shares so tendered (or a confirmation of a book-entry transfer of such Shares into the Depositary's account at the Book-Entry Transfer Facility described in the Offer to Purchase), together with a properly completed and duly executed Letter of Transmittal and any other documents required by the Letter of Transmittal, must be received by the Depositary within three New York Stock Exchange trading days after timely receipt by the 2 3 Depositary of a properly completed and duly executed Notice of Guaranteed Delivery. See "How to Tender Shares" in the Offer to Purchase. Any inquiries you may have with respect to the Offer should be addressed to us or the Information Agent at the respective addresses and telephone numbers set forth on the back cover page of the Offer to Purchase. Additional copies of the enclosed material may be obtained from MacKenzie Partners, Inc., the Information Agent, telephone: (212) 929-5500 or (800) 322-2885. Very truly yours, J.P. MORGAN SECURITIES INC. Enclosures NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU OR ANY OTHER PERSON AS AN AGENT OF THE COMPANY OR ANY OF ITS AFFILIATES, THE DEALER MANAGER, THE DEPOSITARY, OR THE INFORMATION AGENT, OR AUTHORIZE YOU OR ANY OTHER PERSON TO USE ANY DOCUMENT OR MAKE ANY STATEMENT ON BEHALF OF ANY OF THEM IN CONNECTION WITH THE OFFER OTHER THAN THE DOCUMENTS ENCLOSED HEREWITH AND THE STATEMENTS CONTAINED THEREIN. 3 EX-1.E 6 EXHIBIT 1(E) 1 Exhibit (a)(5) -------------- NACCO INDUSTRIES, INC. OFFER TO PURCHASE FOR CASH UP TO 800,000 SHARES OF ITS CLASS A COMMON STOCK AT A PURCHASE PRICE NOT GREATER THAN $50.00 NOR LESS THAN $43.50 PER SHARE THE OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON MONDAY, DECEMBER 16, 1996, UNLESS THE OFFER IS EXTENDED. To Our Clients: Enclosed for your consideration are the Offer to Purchase, dated November 18, 1996 (the "Offer to Purchase"), and the related Letter of Transmittal (which together constitute the "Offer") and other materials relating to the Offer by NACCO Industries, Inc., a Delaware corporation (the "Company"), to purchase up to 800,000 shares of its Class A Common Stock, par value $1.00 per share (the "Shares"), at prices not greater than $50.00 nor less than $43.50 per Share, net to the seller in cash, specified by tendering shareholders, upon the terms and subject to the conditions of the Offer. The Company will, upon the terms and subject to the conditions of the Offer, determine a single per Share price (not greater than $50.00 nor less than $43.50 per Share) that it will pay for Shares validly tendered pursuant to the Offer (the "Purchase Price"), taking into account the number of Shares so tendered and the prices specified by tendering shareholders. The Company will select the lowest Purchase Price that will allow it to purchase all 800,000 Shares, or such lesser number of Shares as are validly tendered at prices not greater than $50.00 nor less than $43.50 per Share, pursuant to the Offer. Upon the terms and subject to the conditions of the Offer, including the provisions thereof relating to proration and "odd lot" tenders, the Company will purchase all Shares validly tendered at prices at or below the Purchase Price and not withdrawn. See "Number of Shares; Proration" in the Offer to Purchase. If, prior to the Expiration Date (as defined in the Offer to Purchase), more than 800,000 Shares are validly tendered and not withdrawn, the Company will, upon the terms and subject to the conditions of the Offer, accept Shares for purchase first from all Odd Lot Holders (as defined in the Offer to Purchase) who validly tender all of their Shares at or below the Purchase Price and do not withdraw any such Shares, and then on a pro rata basis from all other shareholders whose Shares are validly tendered at or below the Purchase Price and not withdrawn. The Company also has outstanding Class B Common Stock, par value $1.00 per share (the "Class B Shares"). Because of transfer restrictions, no trading market has developed, or is expected to develop, for the Class B Shares. The Class B Shares are not subject to the Offer; however, the Class B Shares are convertible into Class A Shares on a one-for-one basis. If you hold Class B Shares and would like to tender Class A Shares into the Offer, you must first notify Key Shareholder Services, the transfer agent for the Shares (the "Transfer Agent"), at 4900 Tiedeman Road, Stock Transfer Department, 1st Floor, Brooklyn, Ohio 44144, in writing, of your desire to convert some or all of your Class B Shares into Class A Shares, and enclose share certificates representing the Class B Shares you would like to so convert and executed stock powers with respect to such certificates. See "How to Tender Shares -- Class B Shares" in the Offer to Purchase and item 6 below for a discussion of factors you should consider before deciding to convert your Class B Shares into Class A Shares. We are the holder of record of Shares held for your account. As such, we are the only ones who can tender your Shares, and then only pursuant to your instructions. We are sending you the Letter of Transmittal for your information only; you cannot use it to tender Shares we hold for your account. Please instruct us on the attached instruction form as to whether you wish us to tender any or all of the Shares we hold for your account on the terms and subject to the conditions of the Offer. 2 THE OFFER IS NOT CONDITIONED ON ANY MINIMUM NUMBER OF SHARES BEING TENDERED. THE OFFER IS, HOWEVER, SUBJECT TO CERTAIN OTHER CONDITIONS. SEE "CERTAIN CONDITIONS OF THE OFFER" IN THE OFFER TO PURCHASE. NEITHER THE COMPANY NOR ITS BOARD OF DIRECTORS MAKES ANY RECOMMENDATION TO ANY SHAREHOLDER WHETHER TO TENDER ALL OR ANY SHARES. THE COMPANY HAS BEEN INFORMED THAT NO DIRECTOR, EXECUTIVE OFFICER, OR FAMILY SHAREHOLDER OF THE COMPANY INTENDS TO TENDER ANY SHARES PURSUANT TO THE OFFER. EACH SHAREHOLDER MUST MAKE HIS OR HER OWN DECISION WHETHER TO TENDER SHARES AND, IF SO, HOW MANY SHARES TO TENDER AND AT WHAT PRICE OR PRICES. We call your attention to the following: 1. The Offer is not conditioned upon any minimum number of Shares being tendered. The Offer is, however, subject to other conditions. See "Certain Conditions of the Offer" in the Offer to Purchase. 2. The Offer, proration period, and withdrawal rights will expire at 12:00 midnight, New York City time, on Monday, December 16, 1996, unless the Company extends the Offer. 3. You may tender Shares at prices, net to you in cash, not greater than $50.00 nor less than $43.50 per Share, as indicated in the attached instruction form. 4. The proration provisions applicable to the Offer are described below and in "Number of Shares; Proration" in the Offer to Purchase. 5. The Offer is for 800,000 Shares, constituting approximately 11.0% of the Shares outstanding as of November 13, 1996. The Company expressly reserves the right, in its sole discretion, to purchase up to an additional 2% of the outstanding Shares pursuant to the Offer without the need to extend the Offer. 6. The Company also has outstanding the Class B Shares. Because of transfer restrictions, no trading market has developed, or is expected to develop, for the Class B Shares. The Class B Shares are not subject to the Offer; however, the Class B Shares are convertible into Class A Shares on a one-for-one basis. If you hold Class B Shares and would like to tender Class A Shares into the Offer, you must first notify the Transfer Agent, at 4900 Tiedeman Road, Stock Transfer Department, 1st Floor, Brooklyn, Ohio 44144, in writing, of your desire to convert some or all of your Class B Shares into Class A Shares, and enclose share certificates representing the Class B Shares you would like to so convert and executed stock powers with respect to such certificates. Please note that you should allow 10 to 14 business days for such conversion and that share certificates representing tendered Shares must be received by the Depositary by the Expiration Date, or up to three NYSE trading days thereafter if you follow the procedures for guaranteed delivery set forth above. In considering whether you should convert Class B Shares into Class A Shares in order to tender Class A Shares into the Offer, please note that: (i) each Class B Share is entitled to ten votes per share while each Class A Share is entitled to only one vote per Share; (ii) once you convert your Class B Shares into Class A Shares and tender such Shares into the Offer you cannot convert your Class A Shares back into Class B Shares in the event that such Class A Shares are not purchased in the Offer; (iii) you may not have any such Class A Shares purchased in the Offer because the price specified by you may exceed the Purchase Price; and (iv) some portion of the Class A Shares that you tender into the Offer may not be purchased pursuant to the Offer due to proration. See "How to Tender Shares -- Class B Shares" in the Offer to Purchase. 7. You will not be obligated to pay any brokerage commissions, solicitation fees or, subject to Instruction 8 of the Letter of Transmittal, stock transfer taxes on the Company's purchase of your Shares pursuant to the Offer. 8. If you owned beneficially as of the close of business on November 13, 1996 an aggregate of fewer than 100 Shares and you instruct us to tender on your behalf all such Shares at or below the Purchase Price and do not withdraw any of such Shares before the Expiration Date and check the box captioned "Odd Lots" in the attached instruction form, the Company, upon the terms and subject to the conditions 2 3 of the Offer, will accept all such Shares for purchase before proration, if any, of the purchase of other Shares tendered and not withdrawn at or below the Purchase Price. See "Tender by Holders of Fewer Than 100 Shares" in the Offer to Purchase. 9. If you wish to tender portions of your Share holdings at different prices, you must complete separate instructions for each price at which you wish to tender each such portion of your Shares. We must submit separate Letters of Transmittal on your behalf for each price you will accept. As described in "Number of Shares; Proration" in the Offer to Purchase, if before the Expiration Date a greater number of Shares is properly tendered at or below the Purchase Price and not withdrawn than the Company will accept for purchase, the Company will accept Shares for purchase at the Purchase Price in the following order of priority: (a) first, all Shares properly tendered at or below the Purchase Price and not withdrawn before the Expiration Date by any Odd Lot Holder who: (1) tenders all Shares beneficially owned by such Odd Lot Holder at or below the Purchase Price and does not withdraw any such Shares before the Expiration Date (partial tenders will not qualify for this preference); and (2) completes the box captioned "Odd Lots" on the Letter of Transmittal and, if applicable, on the Notice of Guaranteed Delivery; and (b) then, after the purchase of all of the Shares of such Odd Lot Holders, all other Shares validly tendered at or below the Purchase Price and not withdrawn before the Expiration Date on a pro rata basis, if necessary (with appropriate adjustments to avoid purchases of fractional Shares), as provided in the Offer to Purchase. If you wish to have us tender any or all of your Shares, please so instruct us by completing, executing and returning to us the attached instruction form. An envelope to return your instructions to us is enclosed. If you authorize us to tender your Shares, we will tender all such Shares unless you specify otherwise on the attached instruction form. YOUR INSTRUCTION FORM SHOULD BE FORWARDED TO US IN AMPLE TIME TO PERMIT US TO SUBMIT A LETTER OF TRANSMITTAL ON YOUR BEHALF ON OR BEFORE THE EXPIRATION OF THE OFFER. THE OFFER, PRORATION PERIOD, AND WITHDRAWAL RIGHTS EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON MONDAY, DECEMBER 16, 1996, UNLESS THE COMPANY EXTENDS THE OFFER. The Company is not making the Offer to, nor will it accept tenders from or on behalf of, owners of Shares in any jurisdiction in which the Offer or its acceptance would violate the securities or, Blue Sky laws of such jurisdiction. In any jurisdiction in which the securities or Blue Sky laws require the Offer to be made by a licensed broker or dealer, the Offer is being made on the Company's behalf by the Dealer Manager or one or more registered brokers or dealers licensed under the laws of such jurisdiction. 3 4 INSTRUCTION FORM WITH RESPECT TO THE NACCO INDUSTRIES, INC. OFFER TO PURCHASE FOR CASH UP TO 800,000 SHARES OF ITS CLASS A COMMON STOCK AT A PURCHASE PRICE PER SHARE NOT GREATER THAN $50.00 NOR LESS THAN $43.50 PER SHARE The undersigned acknowledge(s) receipt of your letter and the enclosed Offer to Purchase, dated November 18, 1996, (the "Offer to Purchase") and the related Letter of Transmittal (which together constitute the "Offer"), in connection with the Offer by NACCO Industries, Inc., a Delaware corporation (the "Company"), to purchase up to 800,000 shares of its Class A Common Stock, par value $1.00 per share (the "Shares"), at prices not greater than $50.00 nor less than $43.50 per Share, net to the seller in cash, specified by tendering shareholders, upon the terms and subject to the conditions of the Offer. The undersigned acknowledges that the Company will, upon the terms and subject to the conditions of the Offer, including the provisions thereof relating to proration and "odd lot" tenders, (i) determine a single per Share price not greater than $50.00 nor less than $43.50 per Share that it will pay for Shares validly tendered pursuant to the Offer (the "Purchase Price"), taking into account the number of Shares so tendered and the prices specified by tendering shareholders; (ii) select the lowest Purchase Price that will allow it to purchase all 800,000 Shares, or such lesser number of Shares as are validly tendered at prices not greater than $50.00 nor less than $43.50 per Share, pursuant to the Offer; (iii) purchase all Shares validly tendered at prices at or below the Purchase Price and not withdrawn; and (iv) return all other Shares. The undersigned acknowledges that in accordance with the terms of this Offer, including the provisions thereof relating to proration, the Company may not purchase all shares validly tendered at prices at or below the Purchase Price and not withdrawn. The undersigned further acknowledges that the Company may purchase up to an additional 2% of the outstanding Shares without the need to extend the Offer. See "Number of Shares; Proration" in the Offer to Purchase. The undersigned hereby instruct(s) you to tender to the Company the number of Shares indicated below or, if no number is indicated, all Shares you hold for the account of the undersigned, at the price per Share indicated below, pursuant to the terms and subject to the conditions of the Offer. The Company will return Shares tendered at prices greater than the Purchase Price and Shares not purchased because of proration. 4 5 AGGREGATE NUMBER OF SHARES TO BE TENDERED BY YOU FOR THE ACCOUNT OF THE UNDERSIGNED:* ____________ SHARES - --------------- * Unless otherwise indicated, all of the Shares held for the account of the undersigned will be tendered. ODD LOTS [ ] By checking this box, the undersigned represents that the undersigned owned beneficially as of the close of business on November 13, 1996 an aggregate of fewer than 100 Shares and is instructing the holder to tender all such Shares. In addition, the undersigned is tendering Shares (check one box): [ ] at the Purchase Price (as defined below), as the same shall be determined by the Company in accordance with the terms of the Offer (persons checking this box need not indicate the price per Share below); or [ ] at the price per Share indicated below under "Price (in Dollars) Per Share at which Shares are Being Tendered." PRICE (IN DOLLARS) PER SHARE AT WHICH SHARES ARE BEING TENDERED (SEE INSTRUCTION 5 TO LETTER OF TRANSMITTAL) ------------------------ CHECK ONLY ONE BOX. IF MORE THAN ONE BOX IS CHECKED, OR IF NO BOX IS CHECKED, THERE IS NO VALID TENDER OF SHARES. SHARES TENDERED AT PRICE DETERMINED BY DUTCH AUCTION [ ] The undesigned wants to maximize the chance of having the Company purchase all the Shares the undersigned is tendering (subject to the possibility of proration). Accordingly, by checking this one box INSTEAD OF ONE OF THE PRICE BOXES BELOW, the undersigned hereby tenders Shares and is willing to accept the Purchase Price resulting from the Dutch auction tender process. This action could result in receiving a price per Share as low as $43.50 or as high as $50.00. OR SHARES TENDERED AT PRICE DETERMINED BY SHAREHOLDER [ ] $44.00 [ ] $45.00 [ ] $46.00 [ ] $47.00 [ ] $48.00 [ ] $49.00 [ ] $44.125 [ ] $45.125 [ ] $46.125 [ ] $47.125 [ ] $48.125 [ ] $49.125 [ ] $44.250 [ ] $45.250 [ ] $46.250 [ ] $47.250 [ ] $48.250 [ ] $49.250 [ ] $44.375 [ ] $45.375 [ ] $46.375 [ ] $47.375 [ ] $48.375 [ ] $49.375 [ ] $43.500 [ ] $44.500 [ ] $45.500 [ ] $46.500 [ ] $47.500 [ ] $48.500 [ ] $49.500 [ ] $43.625 [ ] $44.625 [ ] $45.625 [ ] $46.625 [ ] $47.625 [ ] $48.625 [ ] $49.625 [ ] $43.750 [ ] $44.750 [ ] $45.750 [ ] $46.750 [ ] $47.750 [ ] $48.750 [ ] $49.750 [ ] $43.875 [ ] $44.875 [ ] $45.875 [ ] $46.875 [ ] $47.875 [ ] $48.875 [ ] $49.875 [ ] $50.00
5 6 SIGNATURE BOX Signature(s) ------------------------------------------------------------------- Dated , 1996 -------------------------------------------------------------------- Name(s) and Address(es) -------------------------------------------------------- - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- (Please Print) Area Code and Telephone Number ------------------------------------------------- Taxpayer Identification or Social Security Number --------------------------------------------------------- 6 EX-1.F 7 EXHIBIT 1(F) 1 Exhibit (a)(6) -------------- GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION NUMBER TO GIVE THE PAYER. Social Security numbers have nine digits separated by two hyphens: i.e., 000-00-000. Employer Identification numbers have nine digits separated by only one hyphen: i.e., 00-0000000. The table below will help determine the number to give the payer.
- ----------------------------------------------------------- --------------------------------------------------------- GIVE THE GIVE THE EMPLOYER SOCIAL SECURITY IDENTIFICATION FOR THIS TYPE OF ACCOUNT: NUMBER OF-- FOR THIS TYPE OF ACCOUNT: NUMBER OF-- - ----------------------------------------------------------- --------------------------------------------------------- 1. Individual The individual 6. Sole proprietorship The owner(3) 2. Two or more individuals The actual owner 7. A valid trust, estate, The legal entity (Do (joint account) of the account or, or pension trust not furnish the if combined funds, identifying number any one of the of the personal individuals(1) representative or 3. Custodian account of a minor The minor(2) trustee unless the (Uniform Gift to Minors Act) legal entity itself 4. a. The usual revocable savings The grantor- is not designated in trust account (grantor is trustee(1) the account also trustee) title.)(4) b. So-called trust account that The actual owner(1) 8. Corporate The corporation is not a legal or valid trust 9. Association, club, The organization under State law religious, charitable, 5. Sole proprietorship The owner(3) educational or other tax-exempt organization 10. Partnership The partnership 11. A broker or registered nominee The broker or nominee 12. Account with the Department The public entity of Agriculture in the name of a public entity (such as a state or local government, school district or prison) that receives agricultural program payments - ----------------------------------------------------------- --------------------------------------------------------- [/FN] (1) List first and circle the name of the person whose number you furnish. (2) Circle the minor's name and furnish the minor's social security number. (3) Show the name of the owner. (4) List first and circle the name of the legal trust, estate, or pension trust. NOTE: If no name is circled when there is one name, the number will be considered to be that of the first name listed.
2 GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 PAGE 2 Section references are to the Internal Revenue Code. OBTAINING A NUMBER If you don't have a taxpayer identification number or you don't know your number, obtain Form SS-5, Application for a Social Security Number Card, or Form SS-4, Application for Employer Identification Number, at the local office of the Social Security Administration or the Internal Revenue Service (the "IRS" and apply for a number.) PAYEES EXEMPT FROM BACKUP WITHHOLDING The following is a list of payees exempt from backup withholding and for which no information reporting is required. For interest and dividends, all listed payees are exempt except item (9). For broker transactions, payees listed in (1) through (13) and a person registered under the Investment Advisers Act of 1940 who regularly acts as a broker are exempt. Payments subject to reporting under sections 6041 and 6041A are generally exempt from backup withholding only if made to payees described in items (1) through (7), except that a corporation that provides medical and health care services or bills and collects payments for such services is not exempt from backup withholding or information reporting. Only payees described in items (2) through (6) are exempt from backup withholding for barter exchange transactions, patronage dividends, and payments by certain fishing boat operators. (1) A corporation. (2) An organization exempt from tax under section 501(a), or an individual retirement plan ("IRA"), or a custodial account under 403(b)(7). (3) The United States or any of its agencies or instrumentalities. (4) A State, the District of Columbia, a possession of the United States, or any of their political subdivisions or instrumentalities. (5) A foreign government or any of its political subdivisions, agencies or instrumentalities. (6) An international organization or any of its agencies or instrumentalities. (7) A foreign central bank of issue. (8) A dealer in securities or commodities required to register in the United States or a possession of the United States. (9) A futures commission merchant registered with the Commodity Futures Trading Commission. (10) A real estate investment trust. (11) An entity registered at all times during the tax year under the Investment Company Act of 1940. (12) A common trust fund operated by a bank under section 584(a). (13) A financial institution. (14) A middleman known in the investment community as a nominee or listed in the most recent publication of the American Society of Corporate Secretaries, Inc., Nominee List. (15) A trust exempt from tax under section 664 or described in section 4947. Payments of dividends and patronage dividends generally not subject to backup withholding also include the following: - Payments to nonresident aliens subject to withholding under section 1441. - Payments to partnerships not engaged in a trade or business in the United States and that have at least one nonresident partner. - Payments of patronage dividends not paid in money. - Payments made by certain foreign organizations. Payments of interest generally not subject to backup withholding include the following: - Payments of interest on obligations issued by individuals. Note: You may be subject to backup withholding if this interest is $600 or more and is paid in the course of the payer's trade or business and you have not provided your correct taxpayer identification number to the payer. - Payments of tax-exempt interest (including exempt interest dividends under section 852). - Payments described in section 6049(b)(5) to nonresident aliens. - Payments on tax-free covenant bonds under section 1451. - Payments made by certain foreign organizations. - Mortgage interest paid by you. Payments that are not subject to information reporting are also not subject to backup withholding. For details see sections 6041, 6041(A)(a), 6042, 6044, 6045, 6049, 6050A and 6050N, and the regulations under such sections. PRIVACY ACT NOTICE Section 6109 requires you to give your correct taxpayer identification number to persons who must file information returns with the IRS to report interest, dividends, and certain other income paid to you, mortgage interest you paid, the acquisition or abandonment of secured property, cancellation of debt, or contributions you made to an IRA. The IRS uses the numbers for identification purposes and to help verify the accuracy of your tax return. You must provide your taxpayer identification number whether or not you are qualified to file a tax return. Payers must generally withhold 31% of taxable interest, dividend, and certain other payments to a payee who does not furnish a taxpayer identification number to a payer. Certain penalties may also apply. PENALTIES (1) PENALTY FOR FAILURE TO FURNISH TAXPAYER IDENTIFICATION NUMBER. If you fail to furnish your taxpayer identification number to a payer, you are subject to a penalty of $50 for each such failure unless your failure is due to reasonable cause and not to willful neglect. (2) CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING. If you make a false statement with no reasonable basis that results in no backup withholding, you are subject to a $500 penalty. (3) CRIMINAL PENALTY FOR FALSIFYING INFORMATION. Falsifying certifications or affirmations may subject you to criminal penalties including fines and/or imprisonment. FOR ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR THE INTERNAL REVENUE SERVICE. EX-1.G 8 EXHIBIT 1(G) 1 Exhibit (a)(7) -------------- November 18, 1996 To Holders of Our Class A Common Stock: As you may be aware, we are offering to purchase up to 800,000 shares of our Class A Common Stock, par value $1.00 per share (the "Shares"), from our shareholders at a price not greater than $50.00 nor less than $43.50 per Share (the "Offer"). We are conducting the Offer through a procedure commonly referred to as a "Dutch Auction." This procedure allows you to select the price within the stated price range at which you are willing to sell your Shares to the Company. Based upon the number of Shares tendered and the prices specified by tendering shareholders, we will determine the lowest per Share price (the "Purchase Price") within that price range that will allow us to buy all 800,000 Shares, or such lesser number of Shares as are validly tendered at or below the Purchase Price. We expressly reserve the right, in our sole discretion, to purchase up to an additional 2% of the outstanding Shares pursuant to the Offer without the need to extend the Offer. If more than 800,000 Shares are tendered at or below the Purchase Price, only a pro rata portion will be purchased. Payment to selling shareholders will be made in cash without deduction for any commissions, fees or, except in certain circumstances described in the Offer to Purchase, transfer taxes. All shares which are tendered and not purchased will be promptly returned to the tendering shareholder. The Offer is explained in detail in the enclosed Offer to Purchase and related Letter of Transmittal. If you want to tender your Shares, the instructions for tendering are also set forth in detail in the enclosed materials. I encourage you to read these materials carefully before making any decision with respect to the Offer. Our Class B Common Stock, par value $1.00 per share (the "Class B Shares"), is not subject to the Offer; however, the Class B Shares may be converted into Class A Shares on a one-for-one basis and then tendered into the Offer. Before deciding to convert your Class B Shares into Class A Shares, please carefully read "How To Tender Shares -- Class B Shares" in the Offer to Purchase. THE OFFER IS NOT CONDITIONED UPON ANY MINIMUM NUMBER OF SHARES BEING TENDERED. THE OFFER IS, HOWEVER, SUBJECT TO CERTAIN OTHER CONDITIONS. SEE "CERTAIN CONDITIONS OF THE OFFER." NEITHER WE NOR OUR BOARD OF DIRECTORS MAKES ANY RECOMMENDATION TO YOU AS TO WHETHER OR NOT TO TENDER SHARES. YOU MUST MAKE YOUR OWN DECISION WHETHER TO TENDER SHARES AND, IF SO, HOW MANY SHARES TO TENDER AND AT WHAT PRICE OR PRICES. WE HAVE BEEN INFORMED BY SUCH PERSONS THAT NONE OF OUR DIRECTORS, EXECUTIVE OFFICERS, OR FAMILY SHAREHOLDERS (AS DEFINED IN THE OFFER TO PURCHASE) INTENDS TO TENDER ANY SHARES PURSUANT TO THE OFFER. Please note that the Offer will expire at 12:00 midnight, New York City time, on Monday, December 16, 1996, unless it is extended. Should you have questions regarding this Offer, please call MacKenzie Partners, Inc., the Information Agent, at (212) 929-5500 or (800) 322-2885. Sincerely, /s/ Alfred M. Rankin, Jr. EX-1.H 9 EXHIBIT 1(H) 1 Exhibit (a)(8) -------------- NEWS RELEASE [NACCO INDUSTRIES, INC. LETTERHEAD] FOR IMMEDIATE RELEASE NOVEMBER 15, 1996 ----------------- NACCO INDUSTRIES, INC. ANNOUNCES COMMENCEMENT OF "DUTCH AUCTION" TENDER OFFER FOR UP TO 800,000 SHARES OF ITS CLASS A COMMON STOCK ---------------------------------------------------- Mayfield Heights, Ohio, November 15, 1996: NACCO Industries, Inc. (NC-NYSE) announced today that it will commence a "Dutch Auction" tender offer on Monday, November 18, 1996 for the purchase by the Company of up to 800,000 shares of its Class A Common Stock, par value $1.00 per share. The Company's Class B Common Stock is not subject to the Offer. The purchase price for each share of Class A Common Stock will be not greater than $50.00 nor less than $43.50 per Share, net to the seller in cash, specified by tendering shareholders, upon the terms and subject to the conditions of the Offer. The Company will select the lowest purchase price that will allow it to purchase all 800,000 Shares, or such lesser number of Shares as are validly tendered at prices not greater than $50.00 nor less than $43.50 per Share, pursuant to the Offer. The Offer, proration period, and withdrawal rights will expire at 12:00 midnight, New York City time, on Monday, December 16, 1996, or such later time as the Company shall extend the Offer. The number of Shares subject to the Offer represents approximately 11 percent of the outstanding Class A Common Stock. The Company expressly reserves the right, at its sole discretion, to purchase up to an additional two percent of the outstanding Class A Common Stock pursuant to the Offer without the need to extend the Offer. The Board of Directors today authorized the Company to purchase up to 700,000 additional Shares of Class A Common Stock pursuant to an open market share repurchase program that it expects to implement following the expiration of the Offer over the next two fiscal years. The aggregate 1.5 million Shares to be purchased in the Offer and the open market repurchase program constitutes 21 percent of the outstanding Class A Common Stock. Neither the Company nor its Board of Directors makes any recommendation to any shareholder whether to tender all or any shares. The Company has been informed that no director, executive officer or family member affiliated with them intends to tender any Shares pursuant to the Offer. Each shareholder must make his or her own decision whether to tender Shares and, if so, how many Shares to tender and at what price or prices. At a meeting held today, the Board of Directors of the Company has authorized the Offer because it believes that the purchase of Shares pursuant to the Offer constitutes a prudent use of the Company's financial resources, given its business profile, assets, and prospects and to afford those shareholders who desire liquidity an opportunity to sell all or a portion of their Shares without the usual transaction costs 2 associated with open market sales. If tendering shareholders are considering the sale of all or a portion of their Shares, the Offer also gives tendering shareholders the opportunity to determine the minimum price at which they are willing to sell their Shares. The Offer may also give tendering shareholders the opportunity to sell Shares at prices greater than the market price of the Shares prevailing before the Company announced the Offer. On November 13, 1996, the Board of Directors declared a dividend of 18.75 cents per share on both the Class A and Class B Shares, payable to shareholders of record as of December 2, 1996. Because Shares tendered pursuant to the Offer will not be accepted for payment prior to December 16, 1996, a shareholder who was the holder of record of Class A Shares on December 2, 1996 who tenders such Shares into the Offer will be entitled to receive the dividend on such Shares. Copies of the Offer to Purchase and Letter of Transmittal will be mailed beginning on Monday, November 18, 1996 to all holders of Class A Common Stock, as reflected on the records of the transfer agent for the Shares as of November 13, 1996. The Offer is explained in detail in these materials. Shareholders are urged to carefully read these materials before making any decision with respect to the Offer. J.P. Morgan Securities Inc. is acting as the Dealer Manager, First Chicago Trust Company of New York is acting as the Depositary and MacKenzie Partners, Inc. is acting as the Information Agent with respect to the Offer. Copies of the Offer to Purchase and the Letter of Transmittal may be obtained from the Information Agent at (800) 322-2885 and will be furnished promptly at the Company's expense. Questions or requests for assistance may be directed to the Information Agent at the above number or the Dealer Manager at (212) 648-6234. NACCO Industries, Inc. is a holding company with four operating subsidiaries. The North American Coal Corporation mines and markets lignite primarily as fuel for power generation by electric utilities. NACCO Materials Handling Group, Inc. is a world leader in the design and manufacture of forklift trucks marketed under the Hyster(R) and Yale(R) brand names. Hamilton Beach * Proctor-Silex, Inc. is a leading manufacturer of small electric appliances. The Kitchen Collection, Inc. is a national specialty retailer of kitchenware and small electric appliances. # # # FOR FURTHER INFORMATION, CONTACT: NACCO Industries, Inc. Frank B. O'Brien Senior Vice President - Corporate Development and Chief Financial Officer 216/449-9680 - -or- NACCO Industries, Inc. Brian S. Kenyon Manager Shareholder Relations and External Reporting 216/449-9676 2 EX-1.I 10 EXHIBIT 1(I) 1 Exhibit (a)(9) -------------- This announcement is neither an offer to purchase nor a solicitation of an offer to sell the Shares. The Offer is made solely by the Offer to Purchase, dated November 18, 1996, and the related Letter of Transmittal, and is not being made to, nor will tenders be accepted from or on behalf of, holders of the Shares in any jurisdiction in which the making or acceptance thereof would not be in compliance with the laws of such jurisdiction. In any jurisdiction the securities laws of which require the Offer to be made by a licensed broker or dealer, the Offer shall be deemed made on behalf of the Company by the Dealer Manager or one or more brokers or dealers licensed under the laws of such jurisdiction. OFFER TO PURCHASE FOR CASH UP TO 800,000 SHARES OF CLASS A COMMON STOCK AT A PRICE OF NOT GREATER THAN $50.00 NOR LESS THAN $43.50 PER SHARE BY NACCO INDUSTRIES, INC. NACCO Industries, Inc., a Delaware corporation ("we," "us," or "our" below), is offering to purchase for cash up to 800,000 shares of our Class A Common Stock, par value $1.00 per share (the "Class A Shares" or the "Shares"), upon the terms and subject to the conditions set forth in the Offer to Purchase, dated November 18, 1996 (the "Offer to Purchase"), and in the related Letter of Transmittal (which together constitute the "Offer"). We are inviting our shareholders to tender their Shares at prices specified by such shareholders, not greater than $50.00 nor less than $43.50 per Share, upon the terms and subject to the conditions set forth in the Offer. Based upon the number of Shares tendered and the prices specified by tendering shareholders, we will select a single purchase price per Share (the "Purchase Price") which will be not greater than $50.00 nor less than $43.50 per Share that we will pay for Shares properly tendered and not withdrawn pursuant to the Offer. We will select the lowest Purchase Price which will enable us to purchase all 800,000 Shares, or such lesser number of Shares as are properly tendered at prices not greater than $50.00 nor less than $43.50 per Share, pursuant to the Offer. All Shares tendered at or below the Purchase Price will be purchased at the Purchase Price, subject to the terms and conditions of the Offer, including the proration and "odd lot" provisions described herein. The Purchase Price will be paid in cash, net to the seller, with respect to all Shares purchased. Shares tendered at prices in excess of the Purchase Price and Shares not purchased because of proration will be returned. Tendering shareholders will not be obligated to pay brokerage commissions, solicitation fees or, subject to Instruction 8 of the Letter of Transmittal, stock transfer taxes on our purchase of Shares pursuant to the Offer. If the number of Shares validly tendered at or below the Purchase Price and not withdrawn prior to the Expiration Date (as defined below) (the "Eligible Shares") exceeds the number of Shares to be purchased pursuant to the Offer, then we will select the Shares to be purchased from the Eligible Shares on a pro rata basis after purchase of all Shares from Odd Lot Holders (as defined below). The Offer will expire at 12:00 midnight, New York City time, on Monday, December 16, 1996 (as may be extended in accordance with the terms of the Offer, the "Expiration Date"), unless we exercise our right, in our sole discretion, to extend the Offer at any time or from time to time by oral or written notice to the Depositary (as defined in the Offer to Purchase). We expressly reserve the right, in our sole discretion, to purchase up to an additional 2% of the outstanding Shares pursuant to the Offer without the need to extend the Offer. We also have outstanding Class B Common Stock, par value $1.00 per share (the "Class B Shares"). Because of transfer restrictions, no trading market has developed, or is expected to develop, for the Class B Shares. The Class B Shares are not subject to the Offer; however, the Class B Shares are convertible into Class A Shares on a one-for-one basis. If you hold Class B Shares and would like to tender Class A Shares into the Offer, you must first notify Key Shareholder Services, the transfer agent for the Shares (the "Transfer Agent"), at 4900 Tiedeman Road, Stock Transfer Department, 1st Floor, Brooklyn, Ohio 44144, in writing, of your desire to convert some or all of your Class B Shares into Class A Shares, and enclose certificates representing the Class B Shares you would like to so convert and executed stock powers with respect to such certificates. See "How to Tender Shares--Class B Shares" in the Offer to Purchase for a discussion of factors you should consider before deciding to convert your Class B Shares into Class A Shares. Please note that you should allow 10-14 business days for such conversion and that share certificates representing tendered Shares must be received by the Depositary by the Expiration Date, or up to three NYSE trading days thereafter if you follow the procedures for guaranteed delivery set forth in the Offer. The Offer is not conditioned upon any minimum number of Shares being tendered. The Offer is, however, subject to certain other conditions. Upon the terms and subject to the conditions of the Offer, in the event that prior to the Expiration Date a greater number of Shares is properly tendered, and not withdrawn, at prices at or below the Purchase Price than will be accepted by us for purchase pursuant to the Offer, we will accept the Shares to be purchased in the following order of priority: (i) all Shares properly tendered at or below the Purchase Price and not withdrawn before the Expiration Date by any shareholder who holds less than 100 Shares as of the close of business on November 13, 1996 ("Odd Lot Holder") and tenders all of his Shares and does not withdraw any such Shares, (ii) all other Shares properly tendered at or below the Purchase Price and not withdrawn before the Expiration Date on a pro rata basis (with appropriate adjustments to avoid purchases of fractional Shares). Tenders of Shares made pursuant to the Offer may be withdrawn at any time prior to the Expiration Date. Thereafter, such tenders are irrevocable, except that Shares tendered may be withdrawn at any time after 40 business days from the commencement of the Offer unless theretofore accepted for payment by us as provided in the Offer to Purchase. To be effective, a written, telegraphic, telex, or facsimile transmission notice of withdrawal must be received in a timely manner by the Depositary at one of its addresses set forth in the Offer to Purchase and must specify the name of the person who tendered the Shares to be withdrawn and the number of Shares to be withdrawn and the name of the registered holders of the Shares if different from the person who tendered the Shares. If the Shares to be withdrawn have been delivered to the Depositary, a signed notice of withdrawal with (except in the case of Shares tendered by an Eligible Institution (as defined in the Offer to Purchase)) signatures guaranteed by an Eligible Institution must be submitted prior to the release of such Shares. In addition, such notice must specify, in the case of Shares tendered by delivery of certificates, the name of the registered holder (if different from that of the tendering shareholder) and the serial numbers shown on the particular certificates evidencing the Shares to be withdrawn or, in the case of Shares tendered by book-entry transfer, the name and number of the account at the Book-Entry Transfer Facility (as defined in the Offer to Purchase) to be credited with the withdrawn Shares. We are making the Offer (i) because our Board of Directors believes that the purchase of Shares pursuant to the Offer constitutes a prudent use of our financial resources, given our business profile, assets, and prospects and (ii) to afford those shareholders who desire liquidity an opportunity to sell all or a portion of their Shares without the usual transaction costs associated with open market sales. This opportunity to sell Shares without paying any brokerage fee may be particularly valuable to smaller shareholders, for whom such fees may be relatively high. Odd Lot Holders who tender into the Offer will realize additional transactional savings by avoiding any applicable "odd lot" discount payable on a sale of Shares. If you are considering the sale of all or a portion of your Shares, the Offer also gives you the opportunity to determine the minimum price at which you are willing to sell your Shares. The Offer may also give you the opportunity to sell Shares 2 at prices greater than the market price of the Shares prevailing before we announced the Offer. Shareholders who do not tender Shares or whose Shares are not purchased in the Offer will have a proportionate increase in their ownership interest in us. Our purchase of Shares pursuant to the Offer will reduce the number of Shares that are available to be publicly traded on the NYSE, and is likely to reduce the number of shareholders. Nonetheless, we anticipate that there will be enough shareholders and sufficient publicly available Shares following the Offer to provide a reasonably liquid trading market for them. However, we can make no assurances that sufficient publicly traded Shares will be available following the Offer to provide a reasonably liquid trading market. Neither we nor our Board of Directors makes any recommendation to you as to whether or not to tender Shares. You must make your own decision whether to tender Shares and, if so, how many Shares to tender and at what price or prices. We have been informed by such persons that none of our directors, executive officers, or Family Shareholders (as defined in the Offer to Purchase) intends to tender any Shares pursuant to the Offer. The information required to be disclosed by Rule 13e-4(d)(1) of the General Rules and Regulations under the Securities Exchange Act of 1934 is contained in the Offer to Purchase and is incorporated herein by reference. Copies of the Offer to Purchase and Letter of Transmittal are being mailed commencing today to all holders of the Class A Shares, as reflected on the records of the Transfer Agent as of November 13, 1996. The Offer is explained in detail in these materials. Shareholders are urged to carefully read these materials before making any decision with respect to the Offer. Additional copies of the Offer to Purchase and Letter of Transmittal may be obtained from the Information Agent at the address and telephone number set forth below and will be furnished promptly at our expense. Questions or requests for assistance may be directed to the Information Agent or the Dealer Manager at their respective addresses and telephone numbers set forth below. Shareholders may also contact their broker, dealer, commercial bank, or trust company for assistance concerning the Offer. THE INFORMATION AGENT FOR THE OFFER IS: [GRAPHIC] 156 Fifth Avenue New York, New York 10010 (800) 322-2885 (toll free) (212) 929-5500 (call collect) THE DEALER MANAGER FOR THE OFFER IS: J. P. MORGAN & CO. 60 Wall Street Mail Stop 27MA New York, New York 10260 (212) 648-6234 November 18, 1996 THE OFFER, PRORATION PERIOD, AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON MONDAY, DECEMBER 16, 1996, UNLESS THE OFFER IS EXTENDED. EX-3 11 EXHIBIT 3 1 EXHIBIT (d) November 18, 1996 NACCO Industries, Inc. 5875 Landerbrook Drive Mayfield Heights, OH 44124-4017 Gentlemen: You have requested our opinion regarding the applicability of Section 305(c) of the Internal Revenue Code of 1986, as amended ("Code"), to shareholders of NACCO Industries, Inc. (the "Company") who do not terminate their stock interest in the Company pursuant to the Company's Offer to Purchase for Cash Up to 800,000 Shares of Its Class A Common Stock, dated November 18, 1996 (the "Offer") or in the course of making a sale of their Shares in the open market during the period in which the Open Market Repurchase Program (as hereinafter defined) is in effect. Capitalized terms used below which are not defined herein have the same meaning as in the Offer. For purposes of this opinion, we have examined the Offer, as well as such other documents, records and matters of law as in our judgment we deemed necessary or appropriate. In rendering this opinion, we have relied upon the description of facts contained in the Offer. In addition, you have advised us that for purposes of this opinion: (1) The Company will purchase up to 800,000 Shares pursuant to the Offer (the "Issuer Self-Tender Transaction") and up to an additional 700,000 Shares in the open market during the two fiscal year period following the date on which the Issuer Self-Tender Transaction is completed (the "Open Market Repurchase Program"; and collectively with the Issuer Self-Tender Transaction, the "Share Repurchase Program") because (i) based on its assessment of its business profile, assets and prospects, the Company has determined that the purchase of Shares by it pursuant to the Share Repurchase Program constitutes a prudent use of the Company's financial resources, and (ii) the Issuer Self-Tender Transaction will permit those shareholders of the Company who desire liquidity an opportunity to sell all or a portion of their Shares to the Company in a manner that will enable them to avoid the usual transaction costs which are normally incident to an open market sale of Shares. In addition, the Company will reserve the right to purchase up to an additional two percent (2%) of the outstanding Shares pursuant to the Offer so that, if the Company exercises such right and the Offer is oversubscribed, the Company could purchase as many as 945,757 Shares pursuant to the Offer. If the Company purchases less than 800,000 Shares in the Issuer Self-Tender Transaction, the Company may purchase additional Shares in the Open Market Repurchase Program equal to the difference between 800,000 Shares and the number of Shares which the Company purchases in the Issuer Self-Tender Transaction. (2) The Purchase Price at which the Company will purchase Shares in the Issuer Self-Tender Transaction and the prices at which the Company will purchase Shares in the Open Market Repurchase Program will, in each instance, be equal to the fair market value of a Share on the date on which Shares are purchased. (3) The Company has no plan or intention to reacquire any shares of its common stock (including any Shares), whether by purchase or otherwise, following the completion of the Share Repurchase Program. However, it is possible that the Company, in the future, after the Share Repurchase Program has been completed, may purchase in the open market or redeem from its shareholders additional shares of its common stock (including Shares) based on circumstances prevailing at such time. (4) The Company has no plan or intention to distribute any stock dividend, to effect a stock split, or otherwise to distribute any shares of its common stock to its shareholders during the course of, or following the completion of, the Share Repurchase Program. (5) The Company has not acquired or purchased, whether in the open market, by redemption or otherwise, any shares of its common stock (including any Shares) since December 31, 1987. During the period June 6, 1986 through December 31, 1987, the Company purchased 963,799 Shares in open-market transactions. Of this amount, 750,000 Shares were purchased in connection with a common stock repurchase program which the Company announced in February 1986 (the 2 "1986 Stock Purchase Program"). The 1986 Stock Purchase Program was undertaken in order to ensure that an active market existed subsequent to June 5, 1986 for Shares so that shareholders of the Company who did not wish to continue as shareholders of the Company, after the June 6, 1986 restructuring of the Company was completed, could liquidate their stock interest in the Company without incurring the burden and expense of perfecting dissenter's rights. The balance of the Shares acquired by the Company prior to January 1, 1988 (or 213,799 Shares) was also purchased in open-market transactions. These Shares were purchased pursuant to a common stock repurchase program which the Company's Board of Directors authorized on October 22, 1987 (the "1987 Share Purchase Program"). The 1987 Share Purchase Program was undertaken to permit the Company to acquire additional Shares which it then believed it needed in order to have an adequate number of Shares on hand to provide benefits under the various employee benefit plans which the Company then maintained. (6) The Company has not distributed any stock dividend since July 15, 1986, when the Company distributed to its shareholders one share of its Class B common stock with respect to every two Shares which such shareholders then held. (7) To the best knowledge of the management of the Company, on the basis of investment decisions that they each individually have made, none of the Family Shareholders intend to sell any Shares that they own to the Company in the Share Repurchase Program, except that it is possible that several of the Family Shareholders who hold insignificant numbers of shares of common stock of the Company (including Shares) may sell all or part of the Shares that they own to the Company in the Share Repurchase Program. (8) The Company and those shareholders of the Company who elect to sell Shares to the Company in the Share Repurchase Program will each pay their own expenses, if any, incurred in connection with the purchase by the Company of Shares pursuant to the Share Repurchase Program. (9) The Company is motivated solely by business reasons to undertake the Share Repurchase Program, and the Share Repurchase Program is not being undertaken by the Company in order to confer a federal income tax benefit on any shareholder. (10) The Company is not required by its Restated Certificate of Incorporation or otherwise to redeem any of its outstanding Shares, and none of the shareholders of the Company has a right to cause the Company to purchase or otherwise redeem any Shares. (11) All of the Shares which the Company will purchase pursuant to the Share Repurchase Program will be held as treasury stock by the Company. We have assumed, with your permission, that for purposes of this Opinion: (1) None of the shareholders of the Company has reached any plan or agreement with any other shareholder of the Company as to whether he, she or it will sell or will not sell to the Company in the Share Repurchase Program any of the Shares that they each own. (2) None of the Shares which the Company will purchase pursuant to the Share Repurchase Program is "section 306 stock", within the meaning of Section 306(c) of the Code. (3) The Share Repurchase Program is an isolated transaction and is not part of a plan by the Company to periodically increase the proportionate interest of any shareholder of the Company in the assets or earning and profits of the Company. Based upon the foregoing, we are of the opinion that, for U.S. federal income tax purposes, no holder of shares of common stock of the Company who does not sell any Shares, or who sells less than all of the Shares which such shareholder owns, to the Company pursuant to the Share Repurchase Program will realize any gross income by reason of Section 305(c) of the Code as a result of the purchase by the Company pursuant to the Share Repurchase Program of Shares from other shareholders of the Company. In rendering this opinion, we have assumed that the description of facts contained in the Offer and the factual representations and assumptions recited in the preceding paragraphs of this letter are, and on each date on which the Company purchases Shares pursuant to the Share Repurchase Program will be, accurate in all material respects, but we confirm to you that we have made no independent investigation or inquiry whatsoever with respect to the accuracy of such facts, representations and assumptions. It should be noted in 3 this regard that any change in such facts, or in the representations and assumptions recited above, or in the law, whether by way of statutory enactment or judicial or administrative interpretation thereof, could materially affect our opinion as expressed herein and possibly render it wholly or partially inapplicable for purposes of determining whether shareholders of the Company who do not sell Shares to the Company pursuant to the Share Repurchase Program, or who sell to the Company pursuant to the Share Repurchase Program less than all of the Shares which they each own, will be entitled to the tax treatment described herein. This opinion is furnished to you solely for the benefit of the Company. Very truly yours, /s/ Jones, Day, Reavis & Pogue Jones, Day, Reavis & Pogue EX-4.C 12 EXHIBIT 4(C) 1 EXHIBIT (g)(3) CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this Schedule 13E-4 of our report dated February 22, 1996 included in the NACCO Industries, Inc. Annual Report on Form 10-K for the fiscal year ended December 31, 1995. It should be noted that we have not audited any financial statements of the Company subsequent to December 31, 1995 or performed any audit procedures subsequent to the date of our report. ARTHUR ANDERSEN LLP November 15, 1996, Cleveland, Ohio. -----END PRIVACY-ENHANCED MESSAGE-----