EXHIBIT 2.3
ASSIGNMENT & SECOND AMENDMENT TO PURCHASE AGREEMENT
BETWEEN
NATIONAL COAL CORP., XXXX STEEL PRODUCTS, INC.,
XXXXX X. XXXX AND XXXXXXX X. XXXX
THIS ASSIGNMENT AND SECOND AMENDMENT (this "SECOND AMENDMENT") is made
and entered into as of the 15th day of October, 2007 by and between NATIONAL
COAL CORP., a Florida corporation (the "ASSIGNOR"), NCC Corp., an Alabama
Corporation ("ASSIGNEE") 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 Assignor and Seller entered into that certain
Purchase Agreement as amended by that Amendment to Purchase Agreement dated
August 22, 2007 (the "PURCHASE AGREEMENT") whereby Assignor agreed to purchase
and acquire from Seller all of the issued and outstanding stock of the
Corporation;
WHEREAS, the parties to desire to further amend the Purchase Agreement
in order to make certain corrections, clarifications, and modifications.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein contained, the parties agree as follows:
1. PURCHASE PRICE. Section 3.3 (a) of the Purchase Agreement shall be
deleted in its entirety and replaced with the following:
"In exchange for the Corporate Stock, at the Closing the Buyer
shall transfer to or at the direction of the Owners, in cash in
immediately available funds, an amount of Consideration (the "Purchase
Price") equal to Fifty-Five Million Dollars ($55,000,000) LESS the sum
of (a) One Million, Nine Hundred Thousand dollars ($1,900,000) to be
placed in escrow with ServisFirst Bank for payment to certain key
employees of the Company and (b) the amount equal to the Corporate
Indebtedness at the Closing as provided on Schedule 2.7 as updated for
Closing which shall be distributed to the respective parties listed on
Schedule 2.7 at the time of Closing. The Purchase Price shall be
subject to adjustment after the Closing as provided in Section 2.6."
2. 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 17, 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;"
3. ASSIGNMENT OF PURCHASE AGREEMENT. Assignor hereby assigns, transfers
and conveys unto Assignee, and Assginee hereby assumes and agrees to perform all
of the covenants, agreements and obligations of Assignor under the Purchase
Agreement and all related agreements, including, without limitation, the
obligation to purchase the Corporate Stock from Seller and pay the Purchase
Price therefor, whether such obligations now exist or arise after the date
hereof. Assignee shall hold harmless and indemnify and defend Assignor from and
against any and all loss, cost, liability, expense, damage or claim arising out
of or related to the obligations assigned to and assumed by Assignee hereunder.
From and after the date hereof, all references in the Purchase Agreement to
"Buyer" shall hereafter refer to Assignee. However, notwithstanding anything
herein to the contrary, this assignment in no way releases the Assignor from any
of its obligations under the Purchase Agreement or related documents.
4. CONSENT OF SELLER. Seller hereby consents to the assignment provided
for in this Second Amendment.
5. 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.
6. 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.
7. AFFIRMATION. Except as amended by this Second Amendment, the terms and
conditions of the Purchase Agreement remain in full force and effect.
[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.
ASSIGNOR: NATIONAL COAL CORP.
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
President & CEO
SELLER XXXX STEEL PRODUCTS, INC.
By: /s/ Xxxxx X. Xxxx, XX
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Name: Xxxxx X. Xxxx, XX
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Title: 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
ASSIGNEE: NCC CORP.
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
President
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