EXHIBIT 10.1
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 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 $12 million in shares of Common Stock, par value $0.0001 per share (the
"Common Stock"), of the Company at a purchase price of $4.65 per share (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 determined by the Company as soon as practicable
following satisfaction of the closing conditions set forth in SECTION 6. On or
before May 12, 2008, 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
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 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.
3.2 CAPITALIZATION. The authorized capital stock of the
Company consists of (i) 80,000,000 shares of Common Stock, of which 28,819,931
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
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Convertible Preferred Stock, of which 133.33 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, (iii) the Series A Cumulative Convertible Preferred Stock,
(iv) warrants to purchase an aggregate of 250,000 shares of Common Stock at an
exercise price of $4.00 per share, and (v) warrants to purchase 750,000 shares
of Common Stock at an exercise price of $3.00 per share, 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,
and except with respect to the Debt Warrant as described more fully below, 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.
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
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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.
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.
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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 December 31, 2007, except as disclosed in the SEC Documents, 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.
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 the 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
NASDAQ Stock Market LLC (together with its affiliates, the "NASDAQ") with
respect to the issuance of the Shares and the listing of the Shares on the
NASDAQ Global Market.
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
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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, the NASDAQ, the National Association
of Securities Dealers, Inc. or the Financial Industry Regulatory Authority, Inc.
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.
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 incorporated by reference
into the Company's Annual Reports on Form 10-K for the years ended December 31,
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2005 and December 31, 2006, and Ernst & Young LLP, who issued their report with
respect to the financial statements incorporated by reference into the Company's
Annual Report on Form 10-K for the years ended December 31, 2006 and December
31, 2007, are each independent registered public accounting firms 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.
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
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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.
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.
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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.
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
conditions set forth in SECTIONS 6.1(A) and 6.1(B); 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.
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(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.
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.
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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 New York, both substantive and remedial.
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.
11
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:
Print Name of Investor
By:
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Name:
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Title:
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(Address)
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IRS Tax Identification No. (if applicable)
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Telephone Number
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Fax Number
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E-Mail Address
X $4.65 =
---------------------- ---------------------- ------------------
Number of Shares Offering Price Purchase Price
12
EXHIBIT A
REGISTRATION RIGHTS AGREEMENT
13
EXHIBIT B
ESCROW AGREEMENT
14
EXHIBIT C
INVESTOR QUESTIONNAIRE
15
