EXHIBIT 10.2
AMENDED AND RESTATED
2004 NATIONAL COAL CORP. OPTION PLAN
SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT (this "AGREEMENT") is made and entered into
as of May 8, 2008, between NATIONAL COAL CORP., a Florida corporation (the
"COMPANY"), and _____________ (the "EXECUTIVE"), and entitles the Executive to
purchase shares of the Company's Common Stock under the Amended and Restated
2004 National Coal Corp. Option Plan, as described herein.
RECITALS
A. The Company desires to sell to the Executive, and the
Executive desires to buy from the Company, up to ___________ shares of the
Company's Common Stock (the "SHARES") at a price per share of $4.65 (the
"OFFERING Price"), upon the terms and conditions and subject to the provisions
hereinafter set forth.
B. The Shares will be issued and sold to the Executive from
shares of Common Stock reserved under the Company's Amended and Restated 2004
National Coal Corp. Option Plan.
AGREEMENT
NOW, THEREFORE, for and in consideration of the mutual premises
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
A. OPTION PLAN. Pursuant to the Company's Amended and Restated
2004 National Coal Corp. Option Plan (the "PLAN"), the Administrator of the Plan
has authorized the grant to Executive of the right to purchase shares of the
Company's Common Stock, upon the terms and subject to the conditions set forth
in this Agreement and in the Plan. By Executive's signature and the signature of
the Company's representative below, Executive and the Company agree to be bound
by all of the terms and conditions of this Agreement and the Plan, which Plan is
incorporated herein by this reference as if set forth in full in this Agreement.
Capitalized terms not otherwise defined herein shall have the meanings ascribed
to them in the Plan.
1. PURCHASE AND SALE OF SECURITIES. Subject to the terms and
conditions of this Agreement, the Executive subscribes for and agrees to
purchase and acquire from the Company, and the Company agrees to sell and issue
to the Executive, the Shares in the manner set forth in SECTION 2 hereof, at the
Offering Price and for an aggregate consideration of $______ (the "PURCHASE
PRICE").
2. TERMS OF PURCHASE AND SALE OF SECURITIES. The closing of the
transactions contemplated hereby (the "CLOSING") shall take place on Monday, May
12, 2008, or such other date as is mutually determined by the Company and the
Executive. On or before May 12, 2008, the Executive shall deliver the Purchase
Price to Xxxxxx, Xxxxxxxx & Markiles LLP, legal counsel to the Company (the
"ESCROW AGENT"), by wire transfer of immediately available funds in accordance
with the following wire transfer instructions:
National Bank of California
00000 Xxxxxxx Xxxxxxxxx
Xxxxxxx Xxxx, XX 00000
Account Name: Xxxxxx Xxxxxxxx & Markiles, LLP
Address: 00000 Xxxxxxx Xxxx, 00xx Xxxxx
Xxxxxxx Xxxx, XX 00000
ABA Routing#: 000000000
Account #: 003209873
Ref: NCC Closing
The Purchase Price will be held by the Escrow Agent and released to the
Company at Closing against delivery to the Executive of stock certificates
representing the Shares pursuant to the terms and conditions of that certain
Closing Escrow Agreement by and among the Executive, the Company and the Escrow
Agent in the form attached hereto as EXHIBIT A (the "ESCROW AGREEMENT").
3. INVESTMENT REPRESENTATIONS. In order to induce the Company to
enter into this Agreement and consummate the transaction contemplated hereby,
the Executive represents and warrants to the Company the following:
3.1 AUTHORITY. The Executive has all requisite individual
right, power, and authority to execute, deliver, and perform the Transaction
Documents to which it is a party.
3.2 ENFORCEABILITY. This Agreement has been duly executed
and delivered by the Executive, and, upon its execution by the Company, shall
constitute the legal, valid, and binding obligation of the Executive,
enforceable in accordance with its terms, except to the extent that its
enforceability is limited by bankruptcy, insolvency, reorganization, moratorium,
or other laws relating to or affecting the enforcement of creditors' rights
generally and by general principles of equity.
3.3 NO VIOLATIONS. The execution, delivery, and
performance by the Executive of this Agreement does not and will not, with or
without the passage of time or the giving of notice, result in the breach of, or
constitute a default, cause the acceleration of performance, or require any
consent under, or result in the creation of any lien, charge or encumbrance upon
any property or assets of the Executive pursuant to, any material instrument or
agreement to which the Executive is a party or by which the Executive or its
properties may be bound or affected.
3.4 KNOWLEDGE OF INVESTMENT AND ITS RISKS. The Executive
has knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of Executive's investment in the Shares. The
Executive understands that an investment in the Company represents a high degree
of risk and there is no assurance that the Company's business or operations will
be successful. The Executive has considered carefully the risks attendant to an
investment in the Company, and that, as a consequence of such risks, the
Executive could lose Executive's entire investment in the Company.
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3.5 INVESTMENT INTENT. The Executive hereby represents
and warrants that (i) the Shares are being acquired for investment for the
Executive's own account, and not as a nominee or agent and not with a view to
the resale or distribution of all or any part of the Shares, and the Executive
has no present intention of selling, granting any participation in, or otherwise
distributing any of the Shares within the meaning of and in violation of the
Securities Act, and (ii) the Executive does not have any contracts,
understandings, agreements, or arrangements, directly or indirectly, with any
person and/or entity to distribute, sell, transfer, or grant participations to
such person and/or entity with respect to, any of the Shares. The Executive is
not purchasing the Shares as a result of any advertisement, article, notice or
other communication regarding the Shares published in any newspaper, magazine or
similar media or broadcast over television or radio or presented at any seminar
or any other general solicitation or general advertisement.
3.6 INVESTOR STATUS. The Executive is an "accredited
investor" as that term is defined by Rule 501 of Regulation D promulgated under
the Securities Act.
3.7 TRANSFER RESTRICTIONS. The Executive will not
transfer any of the Shares unless such transfer is registered or exempt from
registration under the Securities Act and such State Acts, and, if requested by
the Company in the case of an exempt transaction, the Executive has furnished an
opinion of counsel reasonably satisfactory to the Company that such transfer is
so exempt. The Executive understands and agrees that (i) the certificates
evidencing the Shares will bear appropriate legends indicating such transfer
restrictions placed upon the Shares, (ii) the Company shall have no obligation
to honor transfers of any of Shares in violation of such transfer restrictions,
and (iii) the Company shall be entitled to instruct any transfer agent or agents
for the securities of the Company to refuse to honor such transfers.
3.8 PRINCIPAL ADDRESS. The Executive's principal
residence, if an individual, or principal executive office, if an entity, is set
forth on the signature page of this Agreement.
4. FURTHER ASSURANCES. The parties hereto will, upon reasonable
request, execute and deliver all such further assignments, endorsements and
other documents as may be necessary in order to perfect the purchase by the
Executive of the Shares.
5. ENTIRE AGREEMENT; NO ORAL MODIFICATION. This Agreement
contains the entire agreement among the parties hereto with respect to the
subject matter hereof and supersedes all prior agreements and understandings
with respect thereto and may not be amended or modified except in a writing
signed by both of the parties hereto.
6. BINDING EFFECT; BENEFITS. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective heirs,
successors and assigns; HOWEVER, nothing in this Agreement, expressed or
implied, is intended to confer on any other person other than the parties
hereto, or their respective heirs, successors or assigns, any rights, remedies,
obligations or liabilities under or by reason of this Agreement.
7. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.
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8. GOVERNING LAW. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the United States of
America and the State of Tennessee, both substantive and remedial.
9. PREVAILING PARTIES. In any action or proceeding brought to
enforce any provision of this Agreement, or where any provision hereof is
validly asserted as a defense, the prevailing party shall be entitled to receive
and the nonprevailing party shall pay upon demand reasonable attorneys' fees in
addition to any other remedy.
10. NOTICES. All communication hereunder shall be in writing and,
if sent to you shall be mailed, delivered, telegraphed or sent by facsimile or
electronic mail, and confirmed to an Executive at the address set forth on the
signature page of this Agreement, or if sent to the Company, shall be mailed,
delivered, telegraphed or sent by facsimile or electronic mail and confirmed to
the Company at National Coal Corporation, 0000 Xxxxxx Xxxxxxxx Xx., Xxxxxxxxx,
XX 00000, Attention: Chief Financial Officer, facsimile number (000) 000-0000.
11. HEADINGS. The section headings herein are included for
convenience only and are not to be deemed a part of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
COMPANY:
NATIONAL COAL CORP.,
a Florida corporation
By:
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Name: Xxxxxx Xxxxxx
Its: Chief Executive Officer
INVESTOR:
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C/O NATIONAL COAL CORP.
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0000 XXXXXX XXXXXXXX XXXX
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XXXXXXXXX, XX 00000
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(Address)
(000) 000-0000
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Telephone Number
(000) 000-0000
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Fax Number
@XXXXXXXXXXXX.XXX
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E-Mail Address
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EXHIBIT A
ESCROW AGREEMENT
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