Contract
STOCKHOLDERS’
AGREEMENT
dated as
of February 16, 2007 (this “Agreement”),
by
and among the Alpine Holders (as defined herein) and the Plainfield Holders
(as
defined herein).
WHEREAS,
pursuant to the Preferred Stock Purchase Agreement by and among Wolverine Tube,
Inc., a Delaware corporation (the “Company”)
and
the purchasers party thereto, dated as of January 31, 2007 (the “Purchase
Agreement”),
the
purchasers party thereto are purchasing from the Company shares of its Series
A
Convertible Preferred Stock, par value $0.01, of the Company (“Preferred
Stock”),
which
is convertible into the Common Stock, par value $0.01, of the Company
(“Common
Stock”);
and
WHEREAS,
as an
inducement to each of the purchasers party to the Purchase Agreement to enter
into the Purchase Agreement and to consummate the transactions contemplated
thereby, the parties hereto agree to provide the rights and be subject to the
obligations and restrictions set forth herein.
NOW,
THEREFORE,
in
consideration of the mutual covenants contained herein and in the Purchase
Agreement and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto hereby agree as set forth
herein.
ARTICLE
I
1.1
|
As
used
in this Agreement, the following terms shall have the meanings set forth below.
“Acceptance
Notice”
has
the
meaning ascribed to it in Section
2.2(a)(ii).
“Accepting
Stockholder”
has
the
meaning ascribed to it in Section
2.2(a)(ii).
“Affiliate”
of
a
Person means any other Person that, directly or indirectly through one or more
intermediaries, controls or is controlled by or is under common control with
the
first Person. Without limiting the foregoing with respect to a Stockholder,
any
investment fund or managed account that is managed by the same investment
manager as such Stockholder, if applicable, will be deemed to be an Affiliate
of
such Person.
“Agreement”
has
the
meaning set forth in the recitals.
“Alpine
Directors”
has
the
meaning ascribed to it in Section
3.1(a)(ii).
“Alpine
Holders”
means,
collectively, (a) The Alpine Group, Inc., a Delaware corporation; (b) any Person
who is or becomes a holder of Stockholder Shares by Transfer of such Stockholder
Shares and who is, at the time of such Transfer, a Permitted Transferee of
an
Alpine Holder; and (c) any Person who becomes a party to this Agreement as
an
Alpine Holder pursuant to Article
II,
in each
case, only for so long as such Person holds Stockholder Shares.
“Board”
means
the board of directors of the Company.
“Business
Day”
means
any day except Saturday, Sunday and any day on which banking institutions in
New
York City are authorized or required by law or other governmental action to
close.
1
“Closing”
has
the
meaning ascribed to it in the Purchase Agreement.
“Common
Stock”
has
the
meaning set forth in the recitals.
“Company”
has
the
meaning set forth in the recitals.
“Control”
means,
(including, with correlative meaning, the terms “controlling,” “controlled by”
and “under common control with”), with respect to any Person, the possession,
directly or indirectly, of the power to direct or cause the direction of the
management, policies or investment decisions of such Person, whether through
the
ownership of voting Securities, by contract or otherwise.
“Convertible
Securities”
means
any stock or securities
convertible into or exercisable or exchangeable for Common Stock or other
Securities of the Company.
“Investor
Directors”
means
the Alpine Directors and the Plainfield Directors.
“Joinder
Agreement”
has
the
meaning set forth in Section
2.1(b).
“Offer
Notice”
has
the
meaning ascribed to it in Section
2.2(a)(i).
“Offer
Price”
has
the
meaning ascribed to it in Section
2.2(a)(i).
“Offered
Shares”
has
the
meaning ascribed to it in Section
2.2(a)(i).
“Offerees”
has
the
meaning ascribed to it in Section
2.2(a)(i).
“Offeror”
has
the
meaning ascribed to it in Section
2.2(a)(i).
“Options”
means
any rights, warrants
or
options to, directly or indirectly, subscribe for or purchase Common Stock
or
Convertible Securities or other Securities of the Company.
“Percentage
Ownership”
means
with respect to any Stockholder, the fraction, expressed as a percentage, the
numerator of which is the total number of shares of Common Stock held or
beneficially owned by such Stockholder (on as as-converted basis) and the
denominator of which is the total number of shares of Common Stock held or
beneficially owned by all Stockholders (on as as-converted basis).
“Permitted
Transfer”
means
any Transfer by a Stockholder to (i) any Affiliate (including any director,
officer, partner, member, shareholder (including partners of partners and
shareholders of such partners) of such Stockholder, (ii) any Transferee approved
by the Requisite Investor Holders or (iii) a financial institution in connection
with a loan or other agreement or arrangement secured or collateralized by
such
Stockholder Shares; provided,
however,
that
any such Permitted Transfer must be made in accordance with Section
2.1(b)(i)
and no
Permitted Transferee may make a subsequent Permitted Transfer without the
consent of the Requisite Investor Holders.
“Permitted
Transferee”
means
any Person to whom a Permitted Transfer is made or is to be made.
“Person”
means
an
individual or corporation,
partnership, trust, incorporated or unincorporated association, joint venture,
limited liability company, joint stock company, governmental authority (or
an
agency or subdivision thereof) or other entity of any kind.
2
“Plainfield
Directors”
has
the
meaning ascribed to it in Section
3.1(a)(i).
“Plainfield
Holders”
means,
collectively, (a) Plainfield Special Situations Master Fund Limited, a Cayman
Islands corporation; (b) any Person who is or becomes a holder of Stockholder
Shares by Transfer of such Stockholder Shares and who is, at the time of such
Transfer, a Permitted Transferee of a Plainfield Holder; and (c) any Person
who
becomes a party to this Agreement as a Plainfield Holder pursuant to
Article
II,
in each
case, only for so long as such Person holds Stockholder Shares.
“Preferred
Stock”
has
the
meaning set forth in the recitals.
“Purchase
Agreement”
has
the
meaning set forth in the recitals.
“Requisite
Investor Holders”
means
each of (a) the Alpine Holders and (b) the Plainfield Holders.
“Sale
of the Company”
means
the consummation of (a) the Transfer (in one or a series of related
transactions) of all or substantially all of the consolidated assets of the
Company and its Subsidiaries, taken as a whole, to a Person or a group of
Persons acting in concert (other than to a Subsidiary of the Company); (b)
the
Transfer (in one or a series of related transactions) of a majority of the
outstanding Securities of the Company to one Person or a group of Persons acting
in concert; or (c) the merger or consolidation of the Company with or into
another Person, in the case of clauses (b) and (c) above, under circumstances
in
which the holders of a majority of the voting power of the outstanding
Securities of the Company immediately prior to such transaction own less than
a
majority in voting power of the outstanding Securities of the Company or the
surviving or resulting Person or acquirer, as the case may be, immediately
following such transaction. A sale (or multiple related sales) of one or more
Subsidiaries of the Company (whether by way of merger, consolidation,
reorganization or sale of all or substantially all assets or Securities of
such
Subsidiary or Subsidiaries) which constitutes all or substantially all of the
consolidated assets of the Company shall be deemed a “Sale of the
Company.”
“Securities”
means
“securities” as defined in Section 2(1) of the Securities Act and includes, with
respect to any Person, such Person’s capital stock and other equity interests or
any Stock Equivalents that are directly or indirectly convertible into, or
exercisable or exchangeable for, such Person’s capital stock or other equity or
equity-linked interests, including phantom stock and stock appreciation
rights.
“Securities
Act”
means
the Securities Act of 1933, as amended.
“Stock
Equivalents”
means,
collectively, Convertible
Securities and Options.
“Stockholder
Shares”
means
(a) any equity Securities of the Company (including Common Stock) purchased
or
acquired by any Stockholder, including under the Purchase Agreement or (b)
any
Securities issued or issuable directly or indirectly with respect to the
Securities referred to in clause (a) above by way of conversion, exercise or
exchange, stock dividend or stock split or in connection with a combination
of
shares, recapitalization, reclassification, merger, consolidation or other
reorganization.
“Stockholders”
means
the holders of Stockholder Shares who are parties hereto or become parties
hereto pursuant to and in accordance with Article
II,
and
their respective Permitted Transferees.
3
“Subsidiary”
means,
at any time, with respect to any Person (the “Subject
Person”),
any
other Person of which either (a) more than fifty percent (50%) of the Securities
or other interests of such Person entitled to vote in the election of directors
or comparable governance bodies performing similar functions or (b) more than
a
fifty percent (50%) interest in the profits or capital of such Person, are,
in
either case, at the time owned or Controlled directly or indirectly by the
Subject Person or through one or more subsidiaries of the Subject
Person.
“Third
Party Transferee”
has
the
meaning ascribed to it in Section
2.2(a)(iv).
“Transfer”
of
Securities shall be construed broadly and shall include any issuance, sale,
assignment, transfer, participation, gift, bequest, distribution, or other
disposition thereof, or any pledge or hypothecation thereof, placement of a
lien
thereon or grant of a security interest therein or other encumbrance thereon,
in
each case whether voluntary or involuntary or by operation of law or otherwise.
Notwithstanding anything to the contrary contained herein, a Transfer shall
not
include (a) the exercise of the right to acquire Stockholder Shares pursuant
to
the terms of any Stock Equivalent granted by the Company, or (b) the sale or
transfer of Stockholder Shares by any Stockholder to the Company or any of
its
Subsidiaries hereunder or pursuant to any employment, option, subscription
or
restricted stock purchase agreement between the Company and such Stockholder
or
any plan relating to the foregoing.
“Transferee”
means
a
Person acquiring or intending to acquire Stockholder Shares through a
Transfer.
“Transferor”
means
a
Stockholder Transferring or intending to Transfer Stockholder
Shares.
The
use
in this Agreement of the term “including” means “including, without limitation.”
The words “herein,” “hereof,” “hereunder” and other words of similar import
refer to this Agreement as a whole, including the schedules and exhibits, as
the
same may from time to time be amended, modified, supplemented or restated,
and
not to any particular section, subsection, paragraph, subparagraph or clause
contained in this Agreement. All references to sections, schedules and exhibits
mean the sections of this Agreement and the schedules and exhibits attached
to
this Agreement, except where otherwise stated. The title of and the section
and
paragraph headings in this Agreement are for convenience of reference only
and
shall not govern or affect the interpretation of any of the terms or provisions
of this Agreement. The use herein of the masculine, feminine or neuter forms
shall also denote the other forms, as in each case the context may require.
Where specific language is used to clarify by example a general statement
contained herein, such specific language shall not be deemed to modify, limit
or
restrict in any manner the construction of the general statement to which it
relates. The language used in this Agreement has been chosen by the parties
to
express their mutual intent, and no rule of strict construction shall be applied
against any party. Unless expressly provided otherwise, the measure of a period
of one month or year for purposes of this Agreement shall be that date of the
following month or year corresponding to the starting date, provided that if
no
corresponding date exists, the measure shall be that date of the following
month
or year corresponding to the next day following the starting date.
1.3
|
This
Agreement shall be effective as of the Closing.
4
ARTICLE
II
(a) The
provisions in this Article
II
shall
apply to all Stockholder Shares now owned or hereafter acquired by a
Stockholder, including Stockholder Shares acquired by reason of original
issuance, dividend, distribution, exchange, conversion or acquisition of
outstanding Stockholder Shares from another Person, and such provisions shall
apply to any Stockholder Shares obtained by a Stockholder upon the exercise,
exchange or conversion of any Stock Equivalent of the Company or any of its
Subsidiaries.
(b) For
a
period from the date hereof until the earlier of (x) February 16, 2008 or (y)
the date upon which such Stockholder Shares are registered for sale pursuant
to
an effective registration statement on an appropriate form or may be Transferred
pursuant to and in accordance with Rule 144, no Stockholder shall Transfer
any
Stockholder Shares to any Person unless (i) such Person executes and delivers
to
the Company a joinder agreement in substantially the form attached hereto as
Exhibit
A
(a
“Joinder
Agreement”),
pursuant to which such Person will thereupon become a party to, and be bound
by
and obligated to comply with the terms and provisions of, this Agreement, as
a
Stockholder hereunder, and (ii) such Transfer is (A) a Permitted Transfer or
(B)
made in compliance with this Article
II;
provided,
however,
that
any Permitted Transferee pursuant to clause (iii) of the definition of Permitted
Transfer shall not be required to deliver a Joinder Agreement unless and until
such Permitted Transferee forecloses on the Stockholder Shares pledged to it
as
security or collateral or intends to Transfer all or any portion of such
Stockholder Shares in connection with a foreclosure or otherwise.
Notwithstanding anything to the contrary contained herein, any Transfer shall
be
made in accordance with all applicable federal and state securities
laws.
(a) A
Stockholder may Transfer Stockholder Shares held by such Stockholder only in
compliance with the following provisions:
(i) A
Stockholder desiring to Transfer Stockholder Shares (an “Offeror”)
shall
first deliver written notice (the “Offer
Notice”)
to
each other Stockholder (the “Offerees”)
which
Offer Notice shall specify (x) the number and class or classes of Stockholder
Shares owned by the Offeror which the Offeror wishes to sell (the “Offered
Shares”);
(y)
the proposed cash purchase price per share for each class of the Offered Shares
(as applicable, the “Offer
Price);
and
(z) all other terms and conditions of the offer. The Offer Notice shall
constitute an irrevocable offer by the Offeror to sell to the Offerees the
Offered Shares at the applicable Offer Price, as hereinafter
provided.
(ii) Within
ten (10) days following receipt of the Offer Notice, each Offeree shall notify
the Offeror in writing (the “Acceptance
Notice”)
as to
the number of Offered Shares, if any, it is electing to purchase (such Offeree
electing to purchase Offered Shares, an “Accepting
Stockholder”).
If
any Offeree does not provide an Acceptance Notice to the Offeror within such
period, such Offeree shall be deemed to have declined to purchase any of the
Offered Shares. An Acceptance Notice shall be deemed to be an irrevocable
commitment to purchase from the Offeror the number of Offered Shares which
such
Offeree has elected to purchase pursuant to such Acceptance Notice, subject
to
allocation of the Offered Shares among the Accepting Stockholders, as
hereinafter provided.
5
(iii) If
the
Accepting Stockholders have elected to purchase a number of Offered Shares
of
any class that in the aggregate exceeds the total number of Offered Shares
of
such class, then the number of such class of Offered Shares purchased by each
Accepting Stockholder electing to purchase greater than their pro rata share
of
such class of Offered Shares, determined in accordance with their respective
Percentage Ownership (excluding for the purposes of such calculation the
Stockholder Shares held by the Offeror and the Offerees who have not exercised
their option to purchase Offered Shares), shall be reduced pro rata in
accordance with their respective Percentage Ownership. This Section
2.2(a)(iii)
shall be
construed and given effect in such manner that no Accepting Stockholder shall
be
required or entitled to purchase a number of Offered Shares greater than the
number set forth in its Acceptance Notice. The Offeror shall promptly notify
each Accepting Stockholder, if any, of the number of Offered Shares of each
class allocated to it, and each such Accepting Stockholder shall be obligated
to
purchase at the applicable Offer Price such shares at a closing, as hereinafter
provided.
(iv) If
the
Accepting Stockholders do not elect to purchase all of the Offered Shares
available for purchase under this Section
2.2(a),
the
Offeror (x) shall be under no obligation to sell any of the remaining
Offered Shares to any other Stockholder, unless the Offeror so elects, and
(y)
may, within a period of ninety (90) days from the date of the Offer Notice,
subject to the provisions of Section
2.1,
sell
such remaining Offered Shares to one or more third parties (each a “Third
Party Transferee”)
for
cash at a price per share not less than the applicable Offer Price, and on
such
other terms and conditions as are no more favorable to the proposed Third Party
Transferee than those specified in the Offer Notice. If the Offeror does not
complete the sale of the remaining Offered Shares within such ninety (90)-day
period, the provisions of this Section
2.2(a)
shall
again apply, and no sale of such Offered Shares by the Offeror shall be made
otherwise than in accordance with the terms of this Agreement.
(v) The
closing of purchases of Offered Shares by Accepting Stockholders pursuant to
this Section 2.2(a)
shall
take place no later than thirty (30) days after the date of the Offer Notice,
or
at such other date as the parties to the sale may agree. At such closing, the
Offeror shall sell, transfer and deliver to each Accepting Stockholder full
right, title and interest in and to the Offered Shares so purchased by such
Accepting Stockholder, free and clear of all liens, security interests, adverse
claims or restrictions of any kind and nature (except as otherwise set forth
in
this Agreement), and shall deliver to each Accepting Stockholder a certificate
or certificates representing the Offered Shares sold to such Accepting
Stockholder, in each case duly endorsed for transfer or accompanied by
appropriate stock transfer powers duly endorsed and any other documents
necessary for transfer. Simultaneously with delivery of such certificates,
each
Accepting Stockholder shall deliver to the Offeror, by wire transfer of
immediately available funds to such bank account as the Offeror shall designate,
a cash amount equal to the product of the applicable Offer Price and the number
of Offered Shares of the corresponding class being acquired by such Accepting
Stockholder, in full payment of the purchase price of the Offered Shares
purchased.
(b) Notwithstanding
the foregoing provisions of this Section
2.2,
the
terms of this Section
2.2
shall
not apply to any Permitted Transfer effected pursuant to the terms
hereof.
(a) Notwithstanding
anything to the contrary, at any time that the Transfer of Stockholder Shares
is
no longer restricted pursuant to Section
2.1,
a
Stockholder shall not Transfer Stockholder Shares held by such Stockholder
without first complying with the following provisions:
(i) A
Offeror
shall first deliver an Offer Notice to each the Offerrees which Offer Notice
shall specify the Offered Shares, the Offered Price and all other terms and
conditions of the offer. The Offer Notice shall constitute an irrevocable offer
by the Offeror to sell to the Offerees the Offered Shares at the applicable
Offer Price, as hereinafter provided.
6
(ii) Within
five (5) days following receipt of the Offer Notice, each Accepting Stockholder
shall provide the Offeror an Acceptance Notice specifying the number of Offered
Shares, if any, it is electing to purchase. If any Offeree does not provide
an
Acceptance Notice to the Offeror within such period, such Offeree shall be
deemed to have declined to purchase any of the Offered Shares. An Acceptance
Notice shall be deemed to be an irrevocable commitment to purchase from the
Offeror the number of Offered Shares which such Offeree has elected to purchase
pursuant to such Acceptance Notice, subject to allocation of the Offered Shares
among the Accepting Stockholders, as hereinafter provided.
(iii) If
the
Accepting Stockholders have elected to purchase a number of Offered Shares
of
any class that in the aggregate exceeds the total number of Offered Shares
of
such class, then the number of such class of Offered Shares purchased by each
Accepting Stockholder electing to purchase greater than their pro rata share
of
such class of Offered Shares, determined in accordance with their respective
Percentage Ownership (excluding for the purposes of such calculation the
Stockholder Shares held by the Offeror and the Offerees who have not exercised
their option to purchase Offered Shares), shall be reduced pro rata in
accordance with their respective Percentage Ownership. This Section
2.3(a)(iii)
shall be
construed and given effect in such manner that no Accepting Stockholder shall
be
required or entitled to purchase a number of Offered Shares greater than the
number set forth in its Acceptance Notice. The Offeror shall promptly notify
each Accepting Stockholder, if any, of the number of Offered Shares of each
class allocated to it, and each such Accepting Stockholder shall be obligated
to
purchase at the applicable Offer Price such shares at a closing, as hereinafter
provided.
(iv) If
the
Accepting Stockholders do not elect to purchase all of the Offered Shares
available for purchase under this Section
2.3(a),
the
Offeror (x) shall be under no obligation to sell any of the remaining
Offered Shares to any other Stockholder, unless the Offeror so elects, and
(y)
may, within a period of thirty (30) days from the date of the Offer Notice,
sell
such remaining Offered Shares to one or more Third Party Transferees for cash
at
a price per share not less than the applicable Offer Price, and on such other
terms and conditions as are no more favorable to the proposed Third Party
Transferee than those specified in the Offer Notice. If the Offeror does not
complete the sale of the remaining Offered Shares within such thirty (30)-day
period, the provisions of this Section
2.3(a)
shall
again apply, and no sale of such Offered Shares by the Offeror shall be made
otherwise than in accordance with the terms of this Agreement.
(v) The
closing of purchases of Offered Shares by Accepting Stockholders pursuant to
this Section 2.3(a)
shall
take place no later than fifteen (15) days after the date of the Offer Notice,
or at such other date as the parties to the sale may agree, on the terms set
forth in Section
2.2(a)(v).
ARTICLE
III
(a) Subject
to the provisions of Section
3.1(c)
hereof
and as otherwise stated herein, each Stockholder hereby covenants and agrees
to
vote all of his, her or its Stockholder Shares to cause the number of directors
constituting the Board to be seven (7). At each annual meeting of the holders
of
any class of Stockholder Shares, and at each special meeting of the holders
of
any class of Stockholder Shares called for the purpose of electing directors
of
the Company, and at any time at which holders of any class of Stockholder Shares
shall have the right to vote for or consent in writing to the election of
directors of the Company, then, and in each such event, each Stockholder shall
vote all of the Stockholder Shares owned by him, her or it for, or consent
in
writing with respect to such shares in favor of, the election of a Board
constituted including the following:
(i) two
(2)
representatives designated by the Plainfield Holders (the “Plainfield
Directors”),
which
designees shall initially be Xxxx Xxxxxxxxxx and Xxxxx Xxxxx;
7
(ii) two
(2)
representatives designated by the Alpine Holders (the “Alpine
Directors”),
which
designees shall initially be Xxxxxx X. Xxxxxx (who shall initially serve as
Chairman of the Board) and X. Xxxxxxxx Posner; and
(iii) an
individual mutually agreed upon by the Stockholders.
(c) The
Stockholders shall vote their shares (i) to remove any director whose removal
is
required by the party or parties with the power to nominate such director and
(ii) to promptly fill any vacancy created by the removal, resignation or death
of a director, in each case with a new director designated, if such approval
is
required, in accordance with the provisions of this Section
3.1.
The
Stockholders shall use their commercially reasonable best efforts to fill any
vacancies of the Board as soon as practicable following the date such vacancy
is
created.
(d) Except
as
otherwise agreed to by the Requisite Investor Holders, each Stockholder shall
take all action possible to ensure that at all times the board of directors,
board of managers, and all committees thereof, of each Subsidiary of the Company
shall have an identical composition as the Board and committees thereof, as
applicable, as set forth in Section 3.1.
(e) The
rights of the Plainfield Holders under this Article
III
(i)
shall terminate at any time the Plainfield Holders (or a single, or group of
related, Permitted Transferees) hold less than 10% of the outstanding capital
stock of the Company, on a fully diluted basis, and (ii) may be assigned by
the
Plainfield Holders only to a Person or group of related Persons acquiring in
excess of 50% of the shares of Preferred Stock acquired by the Plainfield
Holders under the Purchase Agreement (or shares into which they have been
converted). The rights of the Alpine Holders under this Article III (i) shall
terminate at any time the Alpine Holders (or a single, or group of related,
Permitted Transferees) hold less than 10% of the outstanding capital stock
of
the Company, on a fully diluted basis, and (ii) may be assigned by the Alpine
Holders only to a Person or group of related Persons acquiring in excess of
50%
of the shares of Preferred Stock acquired by the Alpine Holders under the
Purchase Agreement (or shares into which they have been converted).
Each
of
the Requisite Investor Holders agrees that, in the event any matter is submitted
to either of them for their vote or consent as a holder of Preferred Stock,
each
such Requisite Investor Holder shall first consult with the other Requisite
Investor Holders. All Requisite Investor Holders shall reasonably cooperate
in
order to reach agreement on the manner in which votes should be cast or consent
be given; provided,
however,
that if
agreement is not reached regarding such matter, each Requisite Investor Holder
shall be free to cast its vote or give its consent in its sole
discretion.
8
ARTICLE
IV
4.1
|
(a) Each
certificate evidencing Stockholder Shares and each certificate issued in
exchange for or upon the Transfer of any Stockholder Shares (if such shares
remain Stockholder Shares as defined herein after such Transfer) shall be
stamped or otherwise imprinted with a legend in substantially the following
form:
“the
securities represented by this certificate are subject to a stockholders’
agreement dated as of February 16, 2007 (as amended, modified, supplemented
or
restated from time to time, the “agreement”),
among
certain of the company’s stockholders. the terms of such agreement include,
among other things, restrictions on transfers and agreements relating to
voting.”
(b) The
legend set forth above shall be removed from the certificates evidencing any
shares which cease to be Stockholder Shares in accordance with the terms of
this
Agreement.
ARTICLE
V
5.1
|
The
terms
and provisions
of this
Agreement may not be amended, modified or waived except pursuant to a writing
signed by the Requisite Investor Holders.
5.2
|
No
course
of dealing between the Company and the Stockholders (or between or among any
of
them) or any delay in exercising any rights hereunder will operate as a waiver
of any rights of any party to this Agreement. The failure of any party to
enforce any of the provisions of this Agreement will in no way be construed
as a
waiver of such provisions and will not affect the right of such party thereafter
to enforce each and every provision of this Agreement in accordance with its
terms.
ARTICLE
VI
The
provisions of this Agreement, except as otherwise expressly provided herein,
shall terminate upon the first to occur of (a) the dissolution, liquidation
or
winding-up of the Company; (b) a Sale of the Company; (c) the approval of such
termination by the Requisite Investor Holders, or (d) such time as the
Stockholders in the aggregate hold less than 20% of the outstanding capital
stock of the Company (on an as-converted basis). Notwithstanding anything
contained herein to the contrary, as to any particular Stockholder, this
Agreement shall no longer be binding or of further force or effect as to such
Stockholder, except as otherwise expressly provided herein, as of the date
such
Stockholder has Transferred all of such Stockholder’s Stockholder
Shares.
9
ARTICLE
VII
7.1
|
It
is the
desire and intent of the parties hereto that the provisions of this Agreement
be
enforced to the fullest extent permissible under the laws and public policies
applied in each jurisdiction in which enforcement is sought. Accordingly, if
any
particular provision of this Agreement shall be adjudicated by a court of
competent jurisdiction to be invalid, prohibited or unenforceable for any
reason, such provision, as to such jurisdiction, shall be ineffective, without
invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of this Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction. Notwithstanding
the
foregoing, if such provision could be more narrowly drawn so as not to be
invalid, prohibited or unenforceable in such jurisdiction, it shall, as to
such
jurisdiction, be so narrowly drawn, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of
such
provision in any other jurisdiction.
This
Agreement and the other agreements referred to herein and to be executed and
delivered in connection herewith embody the entire agreement and understanding
among the parties hereto with respect to the subject matter hereof and thereof
and supersede and preempt any and all prior and contemporaneous understandings,
agreements, arrangements or representations by or among the parties, written
or
oral, which may relate to the subject matter hereof or thereof in any
way.
All
agreements and covenants hereunder shall be given independent effect so that
if
a certain action or condition constitutes a default under a certain agreement
or
covenant, the fact that such action or condition is permitted by another
agreement or covenant shall not affect the occurrence of such default, unless
expressly permitted under an exception to such initial agreement or covenant.
Except
as
otherwise provided herein, this Agreement will bind, inure to the benefit of,
and be enforceable by, the Stockholders and any subsequent holders of
Stockholder Shares, and the respective Permitted Transferees, successors and
permitted assigns of each of them, so long as they hold Stockholder
Shares.
This
Agreement may be executed in two or more counterparts, all of which shall be
considered one and the same agreement and shall become effective when one or
more counterparts have been signed by each of the parties and delivered (by
facsimile or otherwise) to the other parties, it being understood that all
parties need not sign the same counterpart. Any counterpart or other signature
hereupon delivered by facsimile shall be deemed for all purposes as constituting
good and valid execution and delivery of this Agreement by such
party.
10
7.6
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(a) Each
Stockholder shall have all rights and remedies reserved for such Stockholder
pursuant to this Agreement and all rights and remedies which such holder has
been granted at any time under any other agreement or contract and all of the
rights which such holder has under any law or equity. Any Person having any
rights under any provision of this Agreement will be entitled to enforce such
rights specifically, to recover damages by reason of any breach of any provision
of this Agreement and to exercise all other rights granted by law or equity.
(b) It
is
acknowledged that it will be impossible to measure in money the damages that
would be suffered by any party hereto if any other Person party hereto fails
to
comply with any of the obligations imposed on it upon them in this Agreement
and
that in the event of any such failure, the aggrieved party will be irreparably
damaged and will not have an adequate remedy at law. Any such aggrieved party
shall, therefore, be entitled to equitable relief, including specific
performance, to enforce such obligations, and if any action should be brought
in
equity to enforce any of the provisions of this Agreement, none of the parties
hereto shall raise the defense that there is an adequate remedy at law.
7.7
|
All
notices, amendments, waivers or other communications pursuant to this Agreement
shall be in writing
and
shall be deemed given and effective on the earliest of (i) the date of
transmission, if such notice or communication is delivered via facsimile at
the
facsimile number set forth on the signature pages hereto prior to 5:00 p.m.
(New
York City time) on a Trading Day, (ii) the Trading Day after the date of
transmission, if such notice or communication is delivered via facsimile at
the
facsimile number set forth on the signature pages hereto later than 5:00 p.m.
(New York City time) on any date and earlier than 11:59 p.m. (New York City
time) on such date, (iii) the Trading Day following the date of sending, if
sent
by nationally recognized overnight courier service, specifying next business
day
delivery, or (iv) upon actual receipt by the party to whom such notice is
required to be given if delivered by hand.
7.8
|
EXCEPT
AS
SET FORTH BELOW, THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO THE CONFLICTS OF
LAWS
OR PRINCIPLES THEREOF THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY
JURISDICTION OTHER THAN THE STATE OF DELAWARE. WITH RESPECT TO ANY LAWSUIT
OR
PROCEEDING ARISING OUT OF OR BROUGHT WITH RESPECT TO THIS AGREEMENT OR ANY
TRANSACTION CONTEMPLATED HEREBY, EACH OF THE PARTIES HERETO IRREVOCABLY (A)
SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE UNITED STATES FEDERAL AND
STATE
COURTS LOCATED IN THE COUNTY OF NEW YORK IN THE STATE OF NEW YORK AND THOSE
LOCATED IN THE STATE OF DELAWARE; (B) WAIVES ANY OBJECTION IT MAY HAVE AT
ANY
TIME TO THE LAYING OF VENUE OF ANY PROCEEDING BROUGHT IN ANY SUCH COURT;
(C)
WAIVES ANY CLAIM THAT SUCH PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM;
AND (D) FURTHER WAIVES THE RIGHT TO OBJECT, WITH RESPECT TO SUCH PROCEEDINGS,
THAT SUCH COURT DOES NOT HAVE JURISDICTION OVER SUCH PARTY.
EACH
OF
THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY OF
ANY
ACTION, PROCEEDING OR COUNTERCLAIM BASED UPON OR ARISING OUT OF THIS AGREEMENT
OR ANY DEALINGS BETWEEN THE PARTIES HERETO RELATING TO THE SUBJECT MATTER
HEREOF. EACH OF THE PARTIES HERETO ALSO WAIVES ANY BOND OR SURETY OR SECURITY
UPON SUCH BOND THAT MIGHT, BUT FOR THIS WAIVER, BE REQUIRED OF THE OTHER
PARTY.
THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL
DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER
OF
THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS,
BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH
OF
THE PARTIES HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT
TO
ENTER INTO THIS AGREEMENT. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY
BE
FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
11
7.10
|
Each
party hereto shall do and perform or cause to be done and performed all such
further acts and things and shall execute and deliver all such other agreements,
certificates, instruments, and documents as any other party hereto reasonably
may request in order to carry out the provisions of this Agreement and the
consummation of the transactions contemplated hereby or thereby.
Anything
contained herein to the contrary notwithstanding, the covenants contained in
this Agreement are solely for the benefit of the Stockholders. Accordingly,
no
third party (including, without limitation, any holder of Securities of the
Company) or anyone acting on behalf of any thereof, other than the Stockholders,
shall be a third party or other beneficiary of such covenants and no such third
party shall have any rights of contribution against the Stockholders with
respect to such covenants or any matter subject to this Agreement.
12
IN
WITNESS WHEREOF,
the
undersigned have duly executed this Stockholders’ Agreement as of the date first
written above.
PLAINFIELD HOLDERS: | |||
By: /s/ Xxxxxx X. Xxxxxxx | |||
Name:
Xxxxxx X. Xxxxxxx
Title:
Authorized Individual
|
|||
Address for notices: | |||
c/o
Plainfield Asset Management LLC
00
Xxxxxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
Phone:
(000) 000-0000
Fax:
(000) 000-0000
Attn:
Xxxxxx X. Xxxxxxx
|
|||
ALPINE HOLDERS: | |||
THE ALPINE GROUP, INC. | |||
By: /s/ Xxxxxxx X. Xxxxxxxxx | |||
Name:
Xxxxxxx X. Xxxxxxxxx
Title:
Senior Vice President, General Counsel
&
Secretary
|
|||
Address for notices: | |||
Xxx
Xxxxxxxxxxx Xxxxx
Xxxx
Xxxxxxxxxx, Xxx Xxxxxx
Phone:
(000) 000-0000
Fax:
(000) 000-0000
Attn:
Xxxxxx X. Xxxxxx
|
1
Exhibit
A
JOINDER
AGREEMENT
The
undersigned is executing and delivering this Joinder Agreement pursuant to
the
Stockholders’ Agreement dated as of February 16, 2007, (as amended, modified,
restated or supplemented from time to time, the “Stockholders’
Agreement”),
among
the stockholders named therein.
By
executing and delivering this Joinder Agreement to the Stockholders, the
undersigned hereby agrees to become a party to, to be bound by, and to comply
with the provisions of the Stockholders’ Agreement in the same manner as if the
undersigned were an original signatory to such agreement.
The
undersigned agrees that the undersigned shall be [a/an] [Alpine/Plainfield]
Holder, as such term is defined in the Stockholders’ Agreement.1
Accordingly,
the undersigned has executed and delivered this Joinder Agreement as of
________________________.
Signature
of Stockholder
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|
|||
Print Name of Stockholder |
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|
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|
|||
Address |
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Facsimile |
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Telephone |
1
Type of
Stockholder shall be the same as the transferor of the transferred Securities;
provided,
that if
the transferee is already a party to this Agreement, the transferee shall
remain
the same type of Stockholder that he, she or it was prior to such transfer.
2