SUBSCRIPTION AGREEMENT
THIS
SUBSCRIPTION AGREEMENT (this “Agreement”) is made and
entered into as of February 28, 2007, between NATIONAL COAL CORP., a Florida
corporation (the “Company”), and
the
investor identified on the signature page to this Agreement (the
“Investor”).
RECITALS
A. Subject
to the terms and conditions set forth in this Agreement and pursuant to Section
4(2) of the Securities Act (as defined below), and Rule 506 promulgated
thereunder, the Company proposes to issue and sell up to 3,000,000 shares of
Common Stock, par value $0.0001 per share (the “Common
Stock”), of the Company at a purchase price per share equal to the
closing sales price of the Common Stock on the NASDAQ Global Market on the
date
immediately preceding the date hereof (the “Offering
Price”), in each case pursuant to an offering (the
“Offering”) to one or more potential investors,
including the Investor.
B. The
Company desires to sell to the Investor, and the Investor desires to buy from
the Company, in the Offering the number of shares of the Common Stock (the
“Shares”) set
forth
on the signature page of this Agreement, upon the terms and conditions and
subject to the provisions hereinafter set forth.
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:
1. Purchase
and Sale of Securities. Subject to the terms and conditions
of this Agreement, the Investor subscribes for and agrees to purchase and
acquire from the Company, and the Company agrees to sell and issue to the
Investor, the Shares in the manner set forth in Section 2 hereof, at the
Offering Price and for the aggregate consideration set forth on the signature
page of this Agreement (the “Purchase
Price”).
2. Terms
of Purchase and Sale of Securities. The closing of the
transactions contemplated hereby (the “Closing”) shall
take place at such time and on such date as is mutually determined by the
Company and the Investor as soon as practicable following satisfaction of the
closing conditions set forth in Section 6. Contemporaneously with the execution
and delivery of this Agreement, the Investor 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
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Account
Name:
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Xxxxxx
Xxxxxxxx & Markiles, LLP
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Address:
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00000
Xxxxxxx Xxxx, 00xx
Xxxxx
Xxxxxxx
Xxxx, XX 00000
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ABA
Routing#:
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000000000
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Account
#:
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003209873
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Ref:
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NCC
Closing
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The
Purchase Price will be held by the Escrow Agent and released to the Company
at
Closing against delivery to the Investor of stock certificates representing
the
Shares pursuant to the terms and conditions of that certain Closing Escrow
Agreement by and among the Investor, the Company and the Escrow Agent in the
form attached hereto as Exhibit A (the “Escrow
Agreement”). Notwithstanding that the offer and sale of the
Securities pursuant to this Agreement is part of the larger Offering, the
obligations of the Company and the Investor hereunder are independent of, and
not subject to the terms and conditions of, any other agreement between the
Company and any other investor in the Offering, and the Closing may occur
separate and apart from, and irrespective of, the closing, if any, of any other
purchase and sale of securities in the Offering.
3. Representations
and Warranties of the Company. In order to induce the
Investor to enter into this Agreement and consummate the transactions
contemplated hereby, the Company represents and warrants to the Investor as
follows:
3.1 Incorporation. The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of Florida and is qualified to
do business in each jurisdiction in which the character of its properties or
the
nature of its business requires such qualification, except where the failure
to
so qualify would not have a material adverse effect on the business, condition
(financial or otherwise) or prospects of the Company (a
“Material Adverse Effect”). Except for short-term
investments and investments that are not material to the Company, the Company
does not own any shares of stock or any other equity or long-term debt
securities of any corporation or have any equity interest in any firm,
partnership, limited liability company, joint venture, association or other
entity, except disclosed in the SEC Documents (as defined
below). Complete and correct copies of the articles of incorporation
(the “Articles of Incorporation”) and bylaws (the
“Bylaws”) of the Company as
in effect on the Effective
Date have been filed by the Company with the SEC. The Company has all
requisite corporate power and authority to execute, deliver and perform its
obligations under this Agreement, the Escrow Agreement and the Registration
Rights Agreement attached hereto as Exhibit B (the
“Registration Rights Agreement” and, together with
this Agreement and the Escrow Agreement, the “Transaction
Documents”) and to carry on its business as now
conducted.
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3.2 Capitalization. The
authorized capital stock of the Company consists of (i) 80,000,000 shares of
Common Stock, of which 16,540,744 shares are outstanding on the date hereof;
and
(ii) 10,000,000 shares of preferred stock, of which 1,611 shares have been
designated “Series A Cumulative Convertible Preferred Stock, of which 782.5396
shares are outstanding on the date hereof. The outstanding shares of
capital stock of the Company have been duly and validly issued and are fully
paid and nonassessable, have been issued in compliance with all federal and
state securities laws, and were not issued in violation of any preemptive or
similar rights to subscribe for or purchase securities. Except for
(i) options to purchase Common Stock or other equity awards issued to employees
and consultants of the Company pursuant to the employee benefits plans disclosed
in the SEC Documents, (ii) warrants to purchase an aggregate of 1,872,632 shares
of Common Stock at an exercise price of $8.50 per share, and (iii) the Series
A
Cumulative Convertible Preferred Stock, there are no existing options, warrants,
calls, preemptive (or similar) rights, subscriptions or other rights,
agreements, arrangements or commitments of any character obligating the Company
to issue, transfer or sell, or cause to be issued, transferred or sold, any
shares of the capital stock of the Company or other equity interests in the
Company or any securities convertible into or exchangeable for such shares
of
capital stock or other equity interests, and there are no outstanding
contractual obligations of the Company to repurchase, redeem or otherwise
acquire any shares of its capital stock or other equity
interests. There are no voting agreements or other similar
arrangements with respect to the Common Stock to which the Company is a party.
The issuance of the Shares contemplated hereby will not result in an
over-issuance of shares of Common Stock under the Articles of
Incorporation.
3.3 Valid
Issuance of the Shares. The Shares being purchased by the
Investor hereunder will, upon issuance pursuant to the terms hereof, be duly
authorized and validly issued, fully paid and nonassessable. No
preemptive rights or other rights to subscribe for or purchase the Company’s
capital stock exist with respect to the issuance and sale of the Shares by
the
Company pursuant to this Agreement. Except as disclosed in the SEC
Documents, no stockholder of the Company (other than the stockholders who
purchase Shares in the Offering) has any right which has not been properly
waived or has not expired by reason of lapse of time following the notification
of the Company’s intent to file the registration statement to be filed by the
Company pursuant to Registration Rights Agreement (the “Registration
Statement”) to require the Company to register the sale of any
shares owned by such stockholder under the Securities Act in the Registration
Statement. No further approval or authority of the stockholders or
the Board of Directors of the Company shall be required for the issuance and
sale of the Shares by the Company or the filing of the Registration Statement
by
the Company.
3.4 Enforceability. The
execution, delivery, and performance of the Transaction Documents by the Company
have been duly authorized by all requisite corporate action. This
Agreement has been duly executed and delivered by the Company, and, upon its
execution by the Investor, shall constitute the legal, valid, and binding
obligation of the Company, enforceable in accordance with its terms, except
to
the extent that its enforceability is limited by bankruptcy, insolvency,
reorganization, or other laws relating to or affecting the enforcement of
creditors’ rights generally and by general principles of equity.
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3.5 No
Violations. The execution, delivery, and performance of the
Transaction Documents by the Company do not and will not violate or conflict
with any provision of the Company’s Articles of Incorporation or Bylaws, each as
amended and in effect on the date hereof, and do 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 (except such consents as have been obtained as of the date
hereof), or result in the creation of any lien, charge or encumbrance upon
any
property or assets of the Company pursuant to, any material instrument or
agreement to which the Company is a party or by which the Company or its
properties are bound, except such consents as have been obtained as of the
date
hereof. The Company is not otherwise in violation of its Articles of
Incorporation, Bylaws or other organizational documents, nor is the Company
in
violation of any law, administrative regulation, ordinance or order of any
court
or governmental agency, arbitration panel or authority applicable to the
Company, which violation, individually or in the aggregate, would be reasonably
expected to have a Material Adverse Effect. The Company is not in default (and
there exists no condition which, with the passage of time or otherwise, would
constitute a default) in the performance of any material bond, debenture, note
or any other evidence of indebtedness in any indenture, mortgage, deed of trust
or any other material agreement or instrument to which the Company is a party
or
by which the Company is bound or by which the property of the Company is bound,
which would be reasonably expected to have a Material Adverse
Effect.
3.6 Approvals. Neither
the execution, delivery, and performance by the Company of the Transaction
Documents, nor the offer
and sale of the Shares contemplated hereby require the consent of, action by
or
in respect of, or filing with, any person, governmental body, agency, or
official, other than those consents that have been obtained and filings that
have been made pursuant to applicable state securities laws (“State
Acts”) and post-sale filings pursuant to applicable state and
federal securities laws and NASDAQ Global Market listing requirements, which
the
Company undertakes to file within the applicable time period, and other consents
which have been obtained as of the date hereof.
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3.7 SEC
Documents. The Company has made available to Investor true and
complete copies of all reports or registration statements the Company has filed
with the Securities Exchange Commission (“SEC”) under
the Securities Act of 1933 (“Securities Act”) and the
Securities Exchange Act of 1934 (the “Exchange Act”),
for all periods subsequent to December 31, 2005, all in the form
so filed (collectively the “SEC
Documents”). The Company has filed in a timely manner
all documents that the Company was required to file under the Exchange Act
during the 12 months preceding the date of this Agreement. As of
their respective filing dates, the SEC Documents complied in all material
respects with the requirements of the Securities Act or the
Exchange Act, as applicable, and none of the SEC Documents filed under the
Exchange Act contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements made therein, in light of the circumstances in which they were made,
not misleading, except to the extent corrected by a subsequently filed document
with the SEC. None of the SEC Documents filed under the Securities Act contained
an untrue statement of material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading at the time such SEC Documents became effective under the Securities
Act. Without limiting the foregoing, the Company meets each of the
eligibility requirements for the use of Form S-3 in connection with the resale
registration of the Shares as contemplated under the Registration Rights
Agreement.
3.8 Financial
Statements. The Company’s financial statements, including the notes thereto,
included in the SEC Documents (the “Financial
Statements”) comply as to form in all material respects with
applicable accounting requirements and with the published rules and regulations
of the SEC with respect thereto, have been prepared in accordance with United
States generally accepted accounting principles
(“GAAP”) consistently applied (except as may be
indicated in the notes thereto) and present fairly the Company’s consolidated
financial position at the dates thereof and of its operations and cash flows
for
the periods then ended (subject, in the case of unaudited statements, to normal
audit adjustments). The Company has implemented and maintains a system of
internal controls meeting the requirements of the SEC and the Xxxxxxxx-Xxxxx
Act
of 2002 as applicable to the Company on the date hereof. Since
September 30, 2006, there has been no material adverse change (actual or
threatened) in the assets, liabilities (contingent or other), affairs,
operations, prospects or condition (financial or other) of the Company other
than those changes disclosed to the Investor, including with respect to mine
closures that occurred following September 30, 2006 and the Company’s operating
results from and after September 30, 2006.
3.9 NASDAQ
Global Market. The Common Stock is listed on the NASDAQ Global
Market. The Company has taken no action designed to de-list, or which, to the
Company's knowledge, is likely to have the effect of, suspending or terminating
the listing of the Common Stock on NASDAQ Global Market. The Company
is in compliance with all corporate governance requirements of NASDAQ Global
Market. The Company shall comply with all requirements of the
National Association of Securities Dealers, Inc. (the
“NASD”) with respect to the issuance of the Shares and
the listing of the Shares on the NASDAQ Global Market .
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3.10 Intellectual
Property.
(a) To
the knowledge of the Company, the Company has ownership of or license or legal
right to use all patent, copyright, trade secret, trademark, customer lists,
designs, manufacturing or other processes, computer software, systems, data
compilation, research results or other proprietary rights used in the business
of the Company and material to the Company (collectively,
“Intellectual Property”), other than Intellectual
Property generally available on commercial terms from other
sources.
(b) There
is no material default by the Company under any material licenses or other
material agreements under which (i) the Company is granted rights in
Intellectual Property or (ii) the Company has granted rights to others in
Intellectual Property owned or licensed by the Company.
(c) The
Company believes it has taken those steps required in accordance with sound
business practice and commercially reasonable business judgment to establish
and
preserve its ownership of all material patent, copyright, trade secret and
other
proprietary rights with respect to its products and technology.
(d) To
the knowledge of the Company, the present business, activities and products
of
the Company do not infringe any intellectual property of any other person,
except where such infringement would not have a Material Adverse
Effect. The Company has not been notified that any proceeding
charging the Company with infringement of any adversely held Intellectual
Property has been filed. To the Company’s knowledge, there exists no
patent or patent application held by any other person which includes claims
that
would be infringed by the Company in the conduct of its business as currently
conducted and as proposed to be conducted in the SEC Documents, where such
infringement would have a Material Adverse Effect. To the knowledge
of the Company, the Company is not making unauthorized use of any confidential
information or trade secrets of any person. Neither the Company nor,
to the knowledge of the Company, any of its employees have any agreements or
arrangements with any persons other than the Company restricting the Company’s
or any such employee’s engagement in business activities that are material
aspects of the Company’s business as currently conducted or as proposed to be
conducted in the SEC Documents.
3.11 Absence
of Litigation. Except as disclosed in the SEC Documents, there is
no action, suit or proceeding or, to the Company’s knowledge, any investigation,
pending, or to the Company’s knowledge, threatened by or before any court,
governmental body or regulatory agency against the Company that is required
to
be disclosed in the SEC Documents and is not so disclosed. The
Company has not received any written or oral notification of, or request for
information in connection with, any formal or informal inquiry, investigation
or
proceeding from the SEC or the NASD. The foregoing includes, without
limitation, any such action, suit, proceeding or investigation that questions
any of the Transaction Documents or the right of the Company to execute, deliver
and perform under same.
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3.12 Environmental
and Safety Laws. The Company is not in violation of any applicable statute,
law or regulation relating to the environment or occupational health and safety,
and no material expenditures are or, to the Company’s knowledge, will be
required in order to comply with any such existing statute, law or
regulation. No Hazardous Materials (as defined below) are used or
have been used, stored, or disposed of by the Company or by any other person
or
entity on any property owned, leased or used by the Company, other than
Hazardous Materials used, stored, or disposed of by the Company in the ordinary
course of business and in accordance with customary standards in the coal mining
industry. For the purposes of the preceding sentence,
“Hazardous Materials” shall mean (a) materials which
are listed or otherwise defined as “hazardous” or “toxic” under any applicable
local, state, federal and/or foreign laws and regulations that govern the
existence and/or remedy of contamination on property, the protection of the
environment from contamination, the control of hazardous wastes, or other
activities involving hazardous substances, including building materials, or
(b)
any petroleum products or nuclear materials.
3.13 Investment
Company. The Company is not an “investment company” or an “affiliated
person” of, or “promoter” or “principal underwriter” for an investment company,
within the meaning of the Investment Company Act of 1940, as
amended.
3.14 No
Manipulation of Stock. The Company has not taken and will not, in violation
of applicable law, take, any action designed to or that might reasonably be
expected to cause or result in unlawful manipulation of the price of the Common
Stock.
3.15 Accountants. Xxxxxx,
Xxxxxx & Banks, LLP, who issued their report with respect to the financial
statements to be incorporated by reference from the Company's Annual Report
on
Form 10-K for the year ended December 31, 2005, are independent registered
public accounting firm as required by the Securities Act.
3.16 Taxes. The
Company has filed all necessary federal, state and foreign income and franchise
tax returns and has paid or accrued all taxes shown as due thereon, and the
Company has no knowledge of a tax deficiency which has been or might be asserted
or threatened against it which would have a Material Adverse
Effect.
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3.17 Brokers
or Finders. The Company has not dealt with any broker or finder
in connection with the transactions contemplated by this Agreement, and the
Company has not incurred, and shall not incur, directly or indirectly, any
liability for any brokerage or finders' fees or agents commissions or any
similar charges in connection with this Agreement or any transaction
contemplated hereby.
3.18 Securities
Laws. Assuming that all of the representations and warranties of
the Investor set forth in Section 4, and all of the representations and
warranties of the other Investors participating in the Offering, are true and
correct, the offer and sale of the Shares in the Offering was conducted and
completed in compliance with the Securities Act.
4. Representations
and Warranties of the Investor. In order to induce the
Company to enter into this Agreement and consummate the transaction contemplated
hereby, the Investor represents and warrants to the Company the
following:
4.1 Authority. If
a corporation, partnership, limited partnership, limited liability company,
or
other form of entity, the Investor is duly organized or formed, as the case
may
be, validly existing, and in good standing under the laws of its jurisdiction
of
organization or formation, as the case may be. The Investor has all
requisite individual or entity right, power, and authority to execute, deliver,
and perform the Transaction Documents to which it is a party.
4.2 Enforceability. The
execution, delivery, and performance by the Investor of the Transaction
Documents to which it is a party have been duly authorized by all requisite
partnership or corporate action, as the case may be. This Agreement
has been duly executed and delivered by the Investor, and, upon its execution
by
the Company, shall constitute the legal, valid, and binding obligation of the
Investor, 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.
4.3 No
Violations. The execution, delivery, and performance by the
Investor of the Transaction Documents to which it is a party do 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 Investor pursuant to, any
material instrument or agreement to which the Investor is a party or by which
the Investor or its properties may be bound or affected, and, do not or will
not
violate or conflict with any provision of the articles of incorporation or
bylaws, partnership agreement, operating agreement, trust agreement, or similar
organizational or governing document of the Investor, as
applicable.
4.4 Knowledge
of Investment and its Risks. The Investor has knowledge and
experience in financial and business matters as to be capable of evaluating
the
merits and risks of Investor’s investment in the Shares. The Investor
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 Investor has considered carefully the risks attendant
to an investment in the Company, and that, as a consequence of such risks,
the
Investor could lose Investor’s entire investment in the Company.
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4.5 Investment
Intent. The Investor hereby represents and warrants that (i) the
Shares are being acquired for investment for the Investor’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 Investor 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
Investor 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 Investor 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.
4.6 Investor
Status. The Investor is an “accredited investor” as that term is
defined by Rule 501 of Regulation D promulgated under the Securities Act and
the
information provided by the Investor in the Investor Questionnaire, a copy
of
which is attached hereto as Exhibit C, is truthful, accurate, and
complete.
4.7 No
Registration. The Investor understands that Investor may be
required to bear the economic risk of Investor’s investment in the Company for
an indefinite period of time. The Investor further understands that
(i) neither the offering nor the sale of the Shares has been registered
under the Securities Act or any applicable State Acts in reliance upon
exemptions from the registration requirements of such laws, (ii) the Shares
must be held by he, she or it indefinitely unless the sale or transfer thereof
is subsequently registered under the Securities Act and any applicable State
Acts, or an exemption from such registration requirements is available, (iii)
except as set forth in the Registration Rights Agreement, the Company is under
no obligation to register any of the Shares on the Investor’s behalf or to
assist the Investor in complying with any exemption from registration, and
(iv) the Company will rely upon the representations and warranties made by
the Investor in this Agreement in order to establish such exemptions from the
registration requirements of the Securities Act and any applicable State
Acts.
4.8 Transfer
Restrictions. The Investor 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 Investor has furnished an opinion of counsel
reasonably satisfactory to the Company that such transfer is so
exempt. The Investor 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.
4.9 Principal
Address. The Investor’s principal residence, if an individual, or
principal executive office, if an entity, is set forth on the signature page
of
this Agreement.
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5. Independent
Nature of Investor’s Obligations and Rights. The obligations
of the Investor under the Transaction Documents to which it is a party are
several and not joint with the obligations of any other purchaser of Shares,
and
the Investor shall not be responsible in any way for the performance of the
obligations of any other purchaser of Shares under any Transaction Document
or
otherwise. The decision of the Investor to purchase Shares pursuant
to the Transaction Documents has been made by the Investor independently of
any
other purchaser of Shares. Nothing contained herein or in any other
Transaction Document, and no action taken by any purchaser of Shares pursuant
thereto, shall be deemed to constitute such purchasers as a partnership, an
association, a joint venture, or any other kind of entity, or create a
presumption that the purchasers of Shares are in any way acting in concert
or as
a group with respect to such obligations or the transactions contemplated by
the
Transaction Document. The Investor acknowledges that no other
purchaser of Shares has acted as agent for the Investor in connection with
making its investment hereunder and that no other purchaser of Shares will
be
acting as agent of the Investor in connection with monitoring its investment
in
the Shares or enforcing its rights under the Transaction
Documents. The Investor shall be entitled to independently protect
and enforce its rights, including without limitation the rights arising out
of
this Agreement or out of the other Transaction Documents, and it shall not
be
necessary for any other purchaser of Shares to be joined as an additional party
in any proceeding for such purpose.
6. Conditions
Precedent.
6.1 Conditions
to the Obligation of the Investor to Consummate the Closing. The
obligation of the Investor to consummate the Closing and to purchase and pay
for
the Shares being purchased by it pursuant to this Agreement is subject to the
satisfaction of the following conditions precedent:
(a) The
representations and warranties of the Company contained herein shall be true
and
correct on and as of the Closing Date with the same force and effect as though
made on and as of the Closing Date.
(b) The
Investor shall have received a certificate in form and substance acceptable
to
the Investor signed by an appropriate officer of the Company: (i) certifying
to
the fulfillment of the condition set forth in Sections 6.1(a); and (ii)
attaching true and correct copies of the resolutions adopted by the board of
directors of the Company approving the transactions contemplated hereby, and
certifying that such resolutions have not been in any way amended, annulled,
rescinded or revoked and are in full force and effect as of the Closing
Date.
(c) The
Registration Rights Agreement and the Escrow Agreement shall have been executed
and delivered by the Company.
(d) The
Company shall have performed all obligations and conditions required to be
performed or observed by the Company under this Agreement and the other
Transaction Documents on or prior to the Closing Date.
(e) Xxxxxx
Xxxxxx shall have acquired 200,000 shares of Common Stock from the Company
in
the Offering at the Offering Price.
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6.2 Conditions
to the Obligation of the Company to Consummate the Closing. The
obligation of the Company to consummate the Closing and to issue and sell to
the
Investor the Shares to be purchased by it at the Closing is subject to the
satisfaction of the following conditions precedent:
(a) The
representations and warranties of the Investor contained herein shall be true
and correct on and as of the Closing Date with the same force and effect as
though made on and as of the Closing Date.
(b) The
Registration Rights Agreement and the Escrow Agreement shall have been executed
and delivered by the Investor.
(c) The
Investor shall have performed all obligations and conditions required to be
performed or observed by the Investor under this Agreement and the other
Transaction Documents on or prior to the Closing Date.
7. Prospectus
Delivery Requirement. The Investor hereby covenants with the
Company not to make any sale of the Shares without complying with the provisions
hereof and of the Registration Rights Agreement, and without effectively causing
the prospectus delivery requirement under the Securities Act to be satisfied
(unless the Investor is selling such Shares in a transaction not subject to
the
prospectus delivery requirement).
8. 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
Investor of the Shares.
9. 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.
10. 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.
11. 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.
12. 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.
-11-
13. 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.
14. 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 Investor 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.
15. Headings. The
section headings herein are included for convenience only and are not to be
deemed a part of this Agreement.
-12-
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date
first written above.
|
COMPANY:
a
Florida corporation
By: _________________________
Name: Xxxxxx
Xxxxxx
Its: Chief
Executive Officer
|
|
|
INVESTOR:
______________________________
Print
Name of Investor
By: _________________________
Name: _________________________
Title: _________________________
_________________________
_________________________
_________________________
(Address)
|
|
|
_________________________
IRS
Tax Identification No. (if applicable)
|
|
|
_________________________
Telephone
Number
|
|
|
_________________________
Fax
Number
|
|
|
_________________________
E-Mail
Address
|
|
X
|
$4.65
|
=
|
||
|
Number
of Shares
|
Offering
Price
|
Purchase
Price
|
-13-
EXHIBIT
A
REGISTRATION
RIGHTS AGREEMENT
-14-
EXHIBIT
B
ESCROW
AGREEMENT
-15-
EXHIBIT
C
INVESTOR
QUESTIONNAIRE
-16-
