EXHIBIT 2.2
AMENDMENT TO PURCHASE AGREEMENT
BETWEEN
NATIONAL COAL CORP., XXXX STEEL PRODUCTS, INC.,
XXXXX X. XXXX AND XXXXXXX X. XXXX
THIS AMENDMENT (this "AMENDMENT") is made and entered into as of the 22
day of August, 2007 by and between NATIONAL COAL CORP., a Florida corporation
(the "Buyer") and XXXX STEEL PRODUCTS, INC., an Alabama corporation (the
"Corporation") and Xxxxx. X. Xxxx, XX and Xxxxxxx X. Xxxx (collectively the
"Owners") (the Corporation and the Owners collectively the "Seller").
RECITALS:
WHEREAS, on June 18, 2007 Buyer and Seller entered into that certain
Purchase Agreement (the "Purchase Agreement") whereby Buyer agreed to purchase
and acquire from Seller all of the issued and outstanding stock of the
Corporation;
WHEREAS, the parties to this Amendment desire to amend the Purchase
Agreement in order to make certain corrections, clarifications, and
modifications to the original Purchase Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein contained, the parties agree as follows:
1. BOARD APPROVAL. Section 7.2 (b) titled "Board Approval" shall be
deleted in its entirety and replaced with the following:
"(b) BOARD APPROVAL. The Buyer's Board of Directors shall have
approved this Agreement and the Related Agreements, and the
consummation of the transactions contemplated hereby and thereby;
PROVIDED, HOWEVER, that such approval shall be obtained on or prior to
August 27, 2007, and if the Buyer has not terminated this Agreement on
or prior to August 27, 2007, the condition contained in this Section
7.2(b) shall no longer have any effect and shall not be a condition to
the Buyer's obligation to close."
2. DUE DILIGENCE. Section 7.2(c) titled "Due Diligence" shall be deleted
in its entirety and replaced with the following:
"(c) DUE DILIGENCE. The Buyer shall be satisfied in its
reasonable discretion with the results of its due diligence
investigation of the Corporation and its assets and liabilities;
PROVIDED, HOWEVER, that such due diligence investigation shall be
completed on or prior to August 27, 2007, and if the Buyer has not
terminated this Agreement on or prior to such date, the condition
contained in this Section 7.2(c) shall no longer have any effect and
shall not be a condition to the Buyer's obligation to close.
3. FINANCING. Section 7.2(d) titled "Financing" shall be deleted in its
entirety and replaced with the following:
"(d) FINANCING. The Buyer's lender for this transaction shall
be satisfied with its due diligence review of the Business and
Corporate Assets; PROVIDED, HOWEVER, that such due diligence review
shall be completed on or prior to September 10, 2007, and if the Buyer
has not terminated this Agreement on or prior to such date, the
condition contained in this Section 7.2(d) shall no longer have any
effect and shall not be a condition to the Buyer's obligation to
close."
4. FINANCIAL STATEMENTS OF THE BUSINESS. Section 8.1(h) titled "Financial
Statements of the Business" shall be deleted in its entirety and replaced with
the following:
"(h) FINANCIAL STATEMENTS OF THE BUSINESS. On August 13, 2007
the Buyer received from the Corporation audited financial statements
for the Corporation for the period beginning January 1, 2005 through
December 31, 2006, as well as reviewed financial statements for the
period beginning January 1, 2007 and ending May 31, 2007. Further, at
least seven (7) days prior to Closing the Seller shall deliver to the
Buyer reviewed financial statements for each calendar quarter which has
passed within 30 days prior to the Closing Date."
5. TERMINATION. Section 11.1(b) shall be deleted in its entirety and
replaced with the following:
"(b) By either the Seller or the Buyer after October 15, 2007,
or such later date to which the Closing has been extended pursuant to
the terms hereof, if the Closing has not occurred by such date;
provided, however, that as of such date the party terminating this
Agreement is not in material default or breach under this Agreement;"
6. SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and assigns
to the extent permitted in the Purchase Agreement.
7. COUNTERPARTS. This Amendment may be executed in two or more
counterparts, each of which shall be deemed to be original, but all of which
together shall constitute one and the same instrument.
8. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Alabama.
[SIGNATURES CONTAINED ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the undersigned have executed and delivered this
Agreement as of the date first above written.
BUYER: NATIONAL COAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: President and CEO
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SELLER XXXX STEEL PRODUCTS, INC.
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
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Title: Vice President & Owner
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/S/ XXXXX X. XXXX, XX
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XXXXX X. XXXX, XX
/S/ XXXXXXX X. XXXX
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XXXXXXX X. XXXX
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