VOTING AGREEMENT
This
VOTING AGREEMENT, dated as of October 19, 2007 (this
“Agreement”), is made by and among: (i) each of the persons and
entities identified on Exhibit A attached hereto (the “Subject
Stockholders”); and (ii) each of the persons and entities identified on
Exhibit B attached hereto (the “Lenders”).
R
E C I T A L S
A. Reference
is hereby made to: (i) that certain Waiver and Amendment No. 3 dated of even
date herewith to that certain Credit Agreement, dated as of October 12, 2006,
by
and among NATIONAL COAL CORP., a Florida corporation
(“Holdings”), NATIONAL COAL CORPORATION, a Tennessee
corporation, the several Lenders party thereto from time to time (including
the
Lenders), and the Administrative Agent named
therein (the “Waiverand
Amendment”); and (ii) the warrants to be issued to the Lenders
thereunder (the “Warrants”). Capitalized but
undefined terms used herein shall have the meanings ascribed thereto under
the
Warrants.
B. As
of the date hereof, the Subject Stockholders beneficially own 9,070,476 shares
of Common Stock in the aggregate (such shares of Common Stock, together with
any
other shares of capital stock of Holdings acquired (whether held beneficially
or
of record) by the Subject Stockholders after the date hereof and prior the
termination of all of the Subject Stockholders’ obligations under this
Agreement, including any shares of Common Stock acquired by means of purchase,
dividend or distribution, or issued upon the exercise of any warrants or
options, or the conversion of any convertible securities or otherwise, being
collectively referred to herein as the “Shares”).
C. As
an additional inducement for the Lenders to enter into and deliver the Waiver
and Amendment, and in consideration therefor, the Subject Stockholders have
agreed to enter into this Agreement.
A
G R E E M E N T
NOW,
THEREFORE, intending to be legally bound, the parties hereto agree as
follows:
1. Voting
Agreement. Until this Agreement is terminated in accordance with
its terms, each Subject Stockholder agrees to vote the Shares beneficially
owned
by such Subject Stockholder (or, if permitted under the organizational documents
of Holdings to provide a written consent in respect of such Shares), in
connection with any meeting of the stockholders of Holdings (or any action
by
written consent in lieu of a meeting of stockholders of Holdings): (i) in favor
of any stockholder resolutions ratifying or approving the issuance of the
Warrants or any shares of Common Stock for which the Warrants are exercisable;
and/or (ii) against any action or agreement which would materially impede or
interfere with or prevent, the issuance or the exercise of the Warrants in
full.
2. Representations
and Warranties of the Subject Stockholder. Each of the Subject
Stockholders hereby represents and warrants, severally and not jointly, for
the
benefit of the Lenders, severally and not jointly, as of the date hereof as
follows:
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a. Ownership
of Shares. Such Subject Stockholder is the record and beneficial
owner of and has the sole right to vote or direct the voting of the Shares
set
forth opposite such Subject Stockholder’s name on Exhibit A. Such Subject
Stockholder holds such Shares free and clear of any liens, claims, options,
charges or other encumbrances.1
b. No
Conflict. The execution and delivery of this Agreement by such
Subject Stockholder does not, and the performance by such Subject Stockholder
of
his, her or its obligations under this Agreement will
not: (a) conflict with or violate any legal requirement, order,
decree or judgment applicable to such Subject Stockholder or by which such
Subject Stockholder or any of the Subject Stockholder’s assets (including the
Shares beneficially owned by such Subject Stockholder) are bound or affected;
or
(b) result in any breach of or constitute a default (with or without notice
or lapse of time, or both) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, or result in the creation of an
encumbrance on or otherwise affecting any of the Shares beneficially owned
by
such Subject Stockholder pursuant to any contract to which such Subject
Stockholder is a party or by which such Subject Stockholder or any of such
Subject Stockholder’s assets are bound or affected. The execution and
delivery of this Agreement by such Subject Stockholder does not, and the
performance by such Subject Stockholder of his, her or its obligations under
this Agreement will not, require any consent of any person not a party hereto.
In particular (and without limiting the foregoing), such Subject Stockholder
has
not appointed or granted any proxy, which appointment or grant is still
effective, with respect to the Shares beneficially owned by such
Shareholder.
c. Enforceability. Such
Subject Stockholder has all requisite power and capacity to execute and deliver
this Agreement and to perform his obligations hereunder. This
Agreement has been duly authorized, executed and delivered by such Subject
Stockholder and constitutes a legal, valid and binding obligation of such
Subject Stockholder, enforceable against such Subject Stockholder in accordance
with its terms, except to the extent that enforcement hereof may be limited
by
(a) applicable bankruptcy, insolvency or other laws affecting creditors’
rights generally or (b) general equitable principles (whether considered at
law or in equity).
3. Termination. This
Agreement shall terminate automatically, and without any further action on
the
part of any party hereto, upon the earliest of: (i) the date on which Holdings
is advised by the NASDAQ that the Warrants may be issued and exercised in full
without requiring stockholder approval; (ii) if such stockholder approval is
required by NASDAQ, the date on which such stockholder approval is obtained;
or
(iii) the date on which Holdings is no longer obligated to issue the
Warrants.
4. No
Restraint on Officer or Director Action. This Agreement is
intended to bind each Subject Stockholder solely in his, her or its capacity
as
a stockholder of Holdings and only with respect to the specific matters set
forth herein, and shall not prohibit the Subject Stockholder who is a natural
person from acting in accordance with his or her fiduciary duties as an officer
or director of Holdings.
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1
For X. Xxx and Xxxxx only: Part of the Shares are used as collateral
for
personal revolvers/loans (i.e. buyout of chairman shares with 2M
in 2004
and exercises of employee options in
2004).
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5. Miscellaneous.
a. Further
Assurances. Each Subject Stockholder will execute and deliver such further
documents and instruments and take all further action as may be reasonably
necessary in order to consummate the transactions contemplated
hereby.
b. Amendments
and Modification. Subject to applicable law, this Agreement may
not be amended, modified, or supplemented except upon the execution and delivery
of a written agreement executed by each of the parties hereto.
c. Counterparts. This
Agreement may be executed in one or more counterparts (whether delivered by
facsimile or otherwise), each of which shall be considered one and the same
agreement.
d. Entire
Agreement. This Agreement (including the documents and the
instruments referred to herein) constitutes the entire agreement and
supersedes all prior agreements, negotiations, arrangements and understandings,
whether written, electronic or oral, between the parties with respect to the
subject matter hereof.
e. Severability. Any
invalidity, illegality, or limitation of the enforceability of any one or more
of the provisions of this Agreement, or any part thereof, shall in no way affect
or impair the validity, legality, or enforceability of this Agreement with
respect to any other term or provision. In case any provision of this
Agreement shall be invalid, illegal, or unenforceable, it shall, to the extent
practicable, be modified so as to make it valid, legal and enforceable and
to
retain as nearly as practicable the intent of the parties, and the validity,
legality, and enforceability of the remaining provisions shall not in any way
be
affected or impaired thereby.
f. Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without application of
conflicts of laws principles.
g. Specific
Performance. The parties hereto agree that irreparable damage would occur in
the event any provision of this Agreement was not performed in accordance with
the terms hereof and that any Lender (without being joined by any other Lender)
shall be entitled to specific performance of the terms hereof, in addition
to
any other remedy at law or in equity. Any Lender shall be entitled to its
reasonable attorneys’ fees in any action brought to enforce this Agreement in
which it is the prevailing party.
[Remainder
of page intentionally left blank]
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IN
WITNESS WHEREOF, this Voting Agreement has been duly executed by each of the
Subject Stockholders and each of the Lenders as of the date first written
above.
Subject
Stockholder:
___________________
Xxx
Xxx
Subject
Stockholder:
Xxxxx
Capital Corporation
By:___________________
Name: Xxx
Xxx
Its: President
and CEO
Subject
Stockholder:
Crestview
Capital Master, LLC
By: Crestview
Capital Partners, LLC
Its: Manager
By: ____________________
Name: Xxxxxxx
X. Xxxxx
Its: Manager
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IN
WITNESS WHEREOF, this Voting Agreement has been duly executed by each of the
Subject Stockholders and each of the Lenders as of the date first written
above.
Lender:
By: Steelhead
Partners, LLC
Its: General
Partner
By:/s/
J. Xxxxxxx
Xxxxxxxx
Name: Xxxxxxx
Xxxxxxxx
Title: Manager
Lender:
STEELHEAD
OFFSHORE CAPITAL, LP
By: Steelhead
Partners, LLC
Its: Investment
Manager
By:/s/
J.Xxxxxxx
Xxxxxxxx
Name: Xxxxxxx
Xxxxxxxx
Title: Manager
Lender:
BIG
BEND
38 INVESTMENTS L.P.
By: The
2M Companies, Inc., General Partner
By: _______________________
Name: Xxx
Xxxxxxxxx
Title: Vice
President
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Exhibit
A
SUBJECT
STOCKHOLDERS
|
Name
|
Shares
of Common Stock Beneficially Owned
|
|
Xxx
Xxx
|
3,667,500
|
|
Xxxxx
Capital Corporation
|
2,161,133
|
|
Crestview
Capital Master, LLC
|
3,241,843
|
|
TOTAL:
|
9,070,476
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Exhibit
B
LENDERS
Steelhead
Offshore Capital, LP
Big
Bend 38 Investments, L.P.
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