EXHIBIT 4.3
$120,000,000
WOLVERINE TUBE, INC.
10 1/2% SENIOR NOTES DUE 2009
PURCHASE AGREEMENT
March 22, 2002
CREDIT SUISSE FIRST BOSTON CORPORATION,
As Representative of the Several Purchasers,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Ladies and Gentlemen:
1. Introductory. Wolverine Tube, Inc., a Delaware corporation (the
"COMPANY"), proposes, subject to the terms and conditions stated herein, to
issue and sell to the several initial purchasers named in Schedule A hereto (the
"PURCHASERS") U.S.$120,000,000 principal amount of its 10 1/2% Senior Notes Due
2009 (the "NOTES"). The Notes will be unconditionally guaranteed (each, a
"GUARANTEE") on a senior unsecured basis by TF Investor, Inc., Tube Forming,
L.P., Wolverine Finance Company, Wolverine China Investments, LLC, STPC Holding,
Inc., Small Tube Manufacturing Corporation and Wolverine Joining Technologies,
Inc. and each other subsidiary of the Company that executes the Indenture (as
defined below) as a guarantor on the Closing Date (as defined below) and each
other subsidiary of the Company that thereafter guarantees the Notes pursuant to
the terms of the Indenture (the "GUARANTORS"). The Notes will be issued under an
indenture, dated as of March 27, 2002 (the "INDENTURE"), among the Company, the
Guarantors and First Union National Bank ("Wachovia"), as Trustee. The Notes and
the Guaranties are together referred to as the "OFFERED SECURITIES". The United
States Securities Act of 1933 is herein referred to as the "SECURITIES ACT."
Holders (including subsequent transferees) of the Offered Securities will
have the registration rights set forth in the registration rights agreement (the
"REGISTRATION RIGHTS AGREEMENT"), to be dated the date hereof, in substantially
the form of Exhibit I hereto, for so long as such Offered Securities constitute
"TRANSFER RESTRICTED SECURITIES" (as defined in the Registration Rights
Agreement). Pursuant to the Registration Rights Agreement, the Company and the
Guarantors will agree to file with the Securities and Exchange Commission (the
"COMMISSION") under the circumstances set forth therein, (i) a registration
statement under the Securities Act (the "EXCHANGE OFFER REGISTRATION STATEMENT")
relating to the Company's 10 1/2% Senior Notes in a like aggregate principal
amount as the Company issued under the Indenture, identical in all material
respects to the Initial Securities (as defined in the Registration Rights
Agreement) and registered under the Securities Act (the "EXCHANGE SECURITIES"),
to be offered in exchange for the Offered Securities (such offer to exchange
being referred to as the "REGISTERED EXCHANGE OFFER") and (ii) under the
circumstances set forth therein, a shelf registration statement pursuant to Rule
415 under the Securities Act (the "SHELF REGISTRATION STATEMENT" and, together
with the Exchange Offer Registration Statement, the "REGISTRATION STATEMENTS")
relating to the resale by certain holders of the Offered Securities and to use
its reasonable best efforts to cause such Registration Statements to be declared
and remain effective and usable for the periods specified in the Registration
Rights Agreement and to consummate the Registered Exchange Offer. The Offered
Securities and the Exchange Securities are referred to collectively as the
"SECURITIES".
The following transactions (collectively, the "Transactions") will occur
concurrently with the consummation of the issue and sale of the Offered
Securities as set forth herein: (i) the Company will obtain a U.S.$37,500,000
senior secured revolving credit facility (the "SENIOR CREDIT FACILITY"), under a
credit agreement and related documentation among the Company, the lenders party
thereto and Wachovia, as administrative agent (the "CREDIT AGREEMENT"), and (ii)
the Company will use the net proceeds of the Offered Securities, together with
its borrowings under the Senior Credit Facility, if any, to (A) repay the
outstanding indebtedness under and to terminate the Company's existing revolving
credit facility and (B) pay transaction costs relating to the issue and sale of
the Offered Securities and the Senior Credit Facility.
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The Company and the Guarantors jointly and severally hereby agree with the
several Purchasers as follows:
2. Representations and Warranties of the Company. The Company and the
Guarantors jointly and severally represent and warrant to, and agree with, the
several Purchasers that:
(a) A preliminary offering circular and an offering circular
relating to the Offered Securities to be offered by the Purchasers have
been prepared by the Company. Such preliminary offering circulars (the
"PRELIMINARY OFFERING CIRCULARS") and offering circulars (the "OFFERING
CIRCULARS"), as supplemented as of the date of this Agreement, together
with the documents, if any, listed in Schedule C hereto and any other
document approved by the Company for use in connection with the
contemplated resale of the Offered Securities are hereinafter collectively
referred to as the "OFFERING DOCUMENT". On the date of this Agreement, the
Offering Document does not include any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The preceding
sentence does not apply to statements in or omissions from the Offering
Document based upon written information furnished to the Company by any
Purchaser through Credit Suisse First Boston Corporation ("CSFBC")
specifically for use therein, it being understood and agreed that the only
such information is that described as such in Section 7(b) hereof. Except
as disclosed in the Offering Document, on the date of this Agreement, the
Company's Annual Report on Form 10-K most recently filed with the
Securities and Exchange Commission (the "COMMISSION") and all subsequent
reports (collectively, the "EXCHANGE ACT REPORTS") which have been filed
by the Company with the Commission or sent to stock holders pursuant to
the Securities Exchange Act of 1934 (the "EXCHANGE ACT") do not include
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. Such documents,
when they were filed with the Commission, conformed in all material
respects to the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder.
(b) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with
power and authority (corporate and other) to own its properties and
conduct its business as described in the Offering Document; and the
Company is duly qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such qualification.
(c) Each subsidiary of the Company has been duly incorporated and is
an existing corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate and
other) to own its properties and conduct its business as described in the
Offering Document; and each subsidiary of the Company is duly qualified to
do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the conduct
of its business requires such qualification; except where the failure to
be so qualified and in good standing would not have a Material Adverse
Effect (as defined below) all of the issued and outstanding capital stock
of each subsidiary of the Company has been duly authorized and validly
issued and is fully paid and nonassessable; and the capital stock of each
subsidiary owned by the Company, directly or through subsidiaries, is
owned free from liens, encumbrances and defects.
(d) The entities listed on Schedule D hereto are the only
subsidiaries, direct or indirect, of the Company.
(e) The Notes have been duly authorized by the Company; each
Guarantee has been duly authorized by each respective Guarantor; the
Indenture has been duly authorized by the Company and each Guarantor; and
when the Indenture is executed and delivered by Wachovia and when the
Offered Securities are delivered and paid for pursuant to this Agreement
on the Closing Date (as defined below), the Indenture will have been duly
executed and delivered, such Offered Securities will have been duly
executed, authenticated, issued and delivered and will conform in all
material respects to the description thereof contained in the Offering
Document under the caption "Description of the Notes", and the Indenture
and such Offered Securities will constitute valid and legally binding
obligations of the Company and each Guarantor, as applicable, enforceable
in accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles.
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(f) On the Closing Date (as defined below), the Exchange Securities
will have been duly authorized by the Company; and when the Exchange
Securities are issued, executed and authenticated in accordance with the
terms of the Exchange Offer and the Indenture, the Exchange Securities
will be entitled to the benefits of the Indenture and will be the valid
and legally binding obligations of the Company, enforceable in accordance
with their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
(g) On the Closing Date (as defined below) the Guarantee to be
endorsed on the Exchange Securities by each Guarantor will have been duly
authorized by such Guarantor; and, when issued, will have been duly
executed and delivered by each such Guarantor and will conform in all
material respects to the description thereof contained in the Offering
Document. When the Exchange Securities have been issued, executed and
authenticated in accordance with the terms of the Exchange Offer and the
Indenture, the Guarantee of each Guarantor endorsed thereon will
constitute valid and legally binding obligations of such Guarantor,
enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights
and to general equity principles.
(h) The Registration Rights Agreement has been duly authorized by
the Company and each of the Guarantors and, on the Closing Date (as
defined below) when the Registration Rights Agreement has been duly
executed and delivered by the Purchasers and the Offered Securities have
been delivered and paid for pursuant to the Indenture and this Agreement,
the Registration Rights Agreement will have been duly executed and
delivered by the Company and each of the Guarantors. When the Registration
Rights Agreement has been duly executed and delivered, the Registration
Rights Agreement will be a valid and binding agreement of the Company and
each of the Guarantors, enforceable against the Company and each Guarantor
in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles. On the Closing Date (as defined below), the
Registration Rights Agreement will conform as to legal matters in all
material respects to the description thereof in the Offering Document
under the caption "Description of the Notes".
(i) Except as disclosed or reflected in the fees and expenses set
forth in the Offering Document, there are no contracts, agreements or
understandings between the Company and any person that would give rise to
a valid claim against the Company or any Purchaser for a brokerage
commission, finder's fee or other like payment.
(j) No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required to be
obtained or made by the Company under any applicable law for the
consummation of the transactions contemplated by this Agreement or the
Registration Rights Agreement in connection with the issuance and sale of
the Notes by the Company or for the issuance of the Guaranties by the
Guarantors or the Credit Agreement; except for (i) the order of the
Commission declaring the Exchange Offer Registration Statement or the
Shelf Registration Statement (each as defined in the Registration Rights
Agreement) effective, or (ii) as may be required under state or foreign
securities laws or (iii) those as to which the failure to obtain would
not, individually or in the aggregate, have a material adverse effect on
the transactions contemplated by this Agreement.
(k) There are no contracts, agreements or understandings between the
Company or any Guarantor and any person granting such person the right to
require the Company or such Guarantor to file a registration statement
under the Securities Act with respect to any securities of the Company or
such Guarantor or to require the Company or such Guarantor to include such
securities with the Securities and Guaranties registered pursuant to any
Registration Statement.
(l) Neither the Company nor any of its subsidiaries nor any agent
thereof acting on the behalf of them has taken, and none of them will
take, any action that might cause this Agreement or the issuance or sale
of the Offered Securities to violate Regulation T, Regulation U or
Regulation X of the Board of Governors of the Federal Reserve System.
(m) No "nationally recognized statistical rating organization" as
such term is defined for purposes of Rule 436(g)(2) under the Securities
Act (i) has imposed (or has informed the Company or any Guarantor that it
is considering imposing) any condition (financial or otherwise) on the
Company's or any Guarantor's retaining any rating assigned to the Company
or any Guarantor, any
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securities of the Company or any Guarantor or (ii) has indicated to the
Company or any Guarantor that it is considering (a) the downgrading,
suspension, or withdrawal of, or any review for a possible change that
does not indicate the direction of the possible change in, any rating so
assigned or (b) any change in the outlook for any rating of the Company,
any Guarantor or any securities of the Company or any Guarantor.
(n) The sale of the Offered Securities pursuant to Regulation S is
not part of a plan or scheme by the Company to evade the registration
provisions of the Securities Act.
(o) The execution, delivery and performance of the Credit Agreement,
the Indenture, this Agreement and the Registration Rights Agreement by the
Company and each of the Guarantors (to the extent each is a party thereto)
and the issuance and sale of the Offered Securities by the Company and
each of the Guarantors, as the case may be, and compliance by each of them
with the terms and provisions thereof, as applicable, will not result in a
breach or violation of any of the terms and provisions of, or constitute a
default under, (i) any statute, any rule, regulation or order of any
governmental agency or body or any court, domestic or foreign, having
jurisdiction over the Company or any subsidiary of the Company or any of
their properties, or (ii) any material agreement or instrument to which
the Company or any such subsidiary is a party or by which the Company or
any such subsidiary is bound or to which any of the properties of the
Company or any such subsidiary is subject, or (iii) the charter or by-laws
of the Company or any such subsidiary, and the Company has full power and
authority to authorize, issue and sell the Offered Securities as
contemplated by this Agreement except in the case of clause (i) for such
breaches, violations and defaults as would not, individually or in the
aggregate, have a material adverse effect on the condition (financial or
other), business, properties or results of operations of the Company and
its subsidiaries taken as a whole ("Material Adverse Effect").
(p) This Agreement has been duly authorized, executed and delivered
by the Company and each Guarantor.
(q) Except as disclosed in the Offering Document, the Company and
its subsidiaries have good and marketable title to all real properties and
all other properties and assets owned by them, in each case free from
liens, encumbrances and defects that would materially affect the value
thereof or materially interfere with the use made or to be made thereof by
them; and except as disclosed in the Offering Document, the Company and
its subsidiaries hold any leased real or personal property under valid and
enforceable leases with no exceptions that would materially interfere with
the use made or to be made thereof by them.
(r) The Company and its subsidiaries (A) possess all material
certificates, authorities or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business now operated by them,
and (B) have not received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or permit
that, if determined adversely to the Company or any of its subsidiaries,
would individually or in the aggregate have a Material Adverse Effect.
(s) Except as disclosed in the Offering Document, no labor dispute
with the employees of the Company or any subsidiary exists or, to the
knowledge of the Company, is imminent that might have a Material Adverse
Effect.
(t) The Company and its subsidiaries own, possess or can acquire on
reasonable terms, adequate trademarks, trade names and other rights to
inventions, know-how, patents, copyrights, confidential information and
other intellectual property (collectively, "INTELLECTUAL PROPERTY RIGHTS")
necessary to conduct the business now operated by them, or presently
employed by them, and have not received any notice of infringement of or
conflict with asserted rights of others with respect to any intellectual
property rights that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect.
(u) Except as disclosed in the Offering Document, neither the
Company nor any of its subsidiaries is in violation of any statute, any
rule, regulation, decision or order of any governmental agency or body or
any court, domestic or foreign, relating to the use, disposal or release
of hazardous or toxic substances or relating to the protection or
restoration of the environment or human exposure to hazardous or toxic
substances (collectively, "ENVIRONMENTAL LAWS"), owns or operates any real
property contaminated with any substance that is subject to any
environmental laws, is liable for any off-site disposal or contamination
pursuant to any environmental laws, or, to the Company's
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knowledge, is subject to any claim relating to any environmental laws,
which violation, contamination, liability or claim would individually or
in the aggregate have a Material Adverse Effect; and the Company is not
aware of any pending investigation which might lead to such a claim.
(v) Except as disclosed in the Offering Document, there are no
pending actions, suits or proceedings against or affecting the Company,
any of its subsidiaries or any of their respective properties that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect, or would
materially and adversely affect the ability of the Company to perform its
obligations under the Credit Agreement, the Indenture, this Agreement or
the Registration Rights Agreement, or which are otherwise material in the
context of the sale of the Offered Securities; and no such actions, suits
or proceedings are, to the Company's knowledge, threatened or
contemplated.
(w) The financial statements included in the Offering Document
present fairly the financial position of the Company and its consolidated
subsidiaries as of the dates shown and their results of operations and
cash flows for the periods shown, and such financial statements have been
prepared in conformity with the generally accepted accounting principles
in the United States applied on a consistent basis.
(x) Except as disclosed in the Offering Document, since the date of
the latest audited financial statements included in the Offering Document
there has been no material adverse change, nor to the knowledge of the
Company any development or event involving a prospective material adverse
change, in the condition (financial or other), business, properties or
results of operations of the Company and its subsidiaries taken as a
whole, and, except as disclosed in or contemplated by the Offering
Document, there has been no dividend or distribution of any kind declared,
paid or made by the Company on any class of its capital stock.
(y) The Company is subject to the reporting requirements of either
Section 13 or Section 15(d) of the United States Securities Exchange Act
of 1934 (the "Exchange Act") and files reports with the Commission on the
Electronic Data Gathering, Analysis, and Retrieval (XXXXX) system.
(z) None of the Company or any Guarantor is an open-end investment
company, unit investment trust or face-amount certificate company that is
or is required to be registered under Section 8 of the United States
Investment Company Act of 1940 (the "INVESTMENT COMPANY ACT"); and none of
the Company or any Guarantor is or, after giving effect to the offering
and sale of the Offered Securities and the application of the proceeds
thereof as described in the Offering Document, will be, an "investment
company" as defined in the Investment Company Act.
(aa) No securities of the Company or any of its subsidiaries of the
same class (within the meaning of Rule 144A(d)(3) under the Securities
Act) as the Offered Securities are listed on any national securities
exchange registered under Section 6 of the EXCHANGE ACT or quoted in a
U.S. automated inter-dealer quotation system.
(bb) The offer and sale of the Offered Securities to the Purchasers
and initial resale by the Purchasers in the manner contemplated by this
Agreement will be exempt from the registration requirements of the
Securities Act by reason of Section 4(2) thereof, Regulation D and
Regulation S thereunder; and it is not necessary to qualify an indenture
in respect of the Offered Securities under the United States Trust
Indenture Act of 1939, as amended (the "TRUST INDENTURE ACT") assuming the
accuracy of the Purchasers' representations, warranties and their
compliance with the agreements set forth in Section 4 hereof.
(cc) None of the Company, the Guarantors and any of their
affiliates, nor any person acting on its or their behalf (except with
respect to the Purchasers, as to whom the Company makes no representation)
(i) have, within the six-month period prior to the date hereof, offered or
sold in the United States or to any U.S. person (as such terms are defined
in Regulation S under the Securities Act) the Offered Securities or any
security of the same class or series as the Offered Securities or (ii)
have offered or will offer or sell the Offered Securities (A) in the
United States by means of any form of general solicitation or general
advertising within the meaning of Rule 502(c) under the Securities Act or
(B) with respect to any such securities sold in reliance on Rule 903 of
Regulation S ("REGULATION S") under the Securities Act, by means of any
directed selling efforts within the meaning of Rule 902(c) of Regulation
S. The Company, the Guarantors, their affiliates and any person acting
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on its or their behalf (except with respect to the Purchasers, as to whom
the Company makes no representation) have complied and will comply with
the offering restrictions requirement of Regulation S. None of the Company
and the Guarantors have entered, and none will enter, into any contractual
arrangement with respect to the distribution of the Offered Securities
except for this Agreement.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company and the Guarantors agree to
sell to the Purchasers, and the Purchasers agree, severally and not jointly, to
purchase from the Company and the Guarantors, at a purchase price of 96.288% of
the principal amount thereof at maturity plus accrued interest from March 22,
2002 to the Closing Date (as hereinafter defined), the respective principal
amounts of Offered Securities set forth opposite the names of the several
Purchasers in Schedule A hereto.
The Company will deliver against payment of the purchase price the Offered
Securities to be offered and sold by the Purchasers in reliance on Regulation S
(the "REGULATION S SECURITIES") in the form of one or more permanent global
Securities in registered form without interest coupons (the "OFFERED REGULATION
S GLOBAL SECURITIES") which will be deposited with Wachovia as custodian for The
Depository Trust Company ("DTC") for the respective accounts of the DTC
participants for Xxxxxx Guaranty Trust Company of New York, Brussels office, as
operator of the Euroclear System ("EUROCLEAR"), and Clearstream Banking, societe
anonyme ("CLEARSTREAM, LUXEMBOURG") and registered in the name of Cede & Co., as
nominee for DTC. The Company will deliver against payment of the purchase price
the Offered Securities to be purchased by each Purchaser hereunder and to be
offered and sold by each Purchaser in reliance on Rule 144A under the Securities
Act (the "144A SECURITIES") in the form of one permanent global security in
definitive form without interest coupons (the "RESTRICTED GLOBAL SECURITIES")
deposited with Wachovia as custodian for DTC and registered in the name of Cede
& Co., as nominee for DTC. The Regulation S Global Securities and the Restricted
Global Securities shall be assigned separate CUSIP numbers. The Restricted
Global Securities shall include the legend regarding restrictions on transfer
set forth under "Transfer Restrictions" in the Offering Document. Until the
termination of the restricted period (as defined in Regulation S) with respect
to the offering of the Offered Securities, interests in the Regulation S Global
Securities may only be held by the DTC participants for Euroclear and
Clearstream, Luxembourg. Interests in any permanent global Securities will be
held only in book- entry form through Euroclear, Clearstream, Luxembourg or DTC,
as the case may be, except in the limited circumstances described in the
Offering Document.
Payment for the Regulation S Securities and the 144A Securities shall be
made by the Purchasers in Federal (same day) funds by official check or checks
or wire transfer to an account at a bank acceptable to CSFBC drawn to the order
of the Company at the office of Cravath, Swaine & Xxxxx at 10:00 A.M., (New York
time), on March 27, 2002, or at such other time not later than seven full
business days thereafter as CSFBC and the Company determine, such time being
herein referred to as the "Closing Date", against delivery to Wachovia as
custodian for DTC of (i) the Regulation S Global Securities representing all of
the Regulation S Securities for the respective accounts of the DTC participants
for Euroclear and Clearstream, Luxembourg and (ii) the Restricted Global
Securities representing all of the Offered 144A Securities. The Regulation S
Global Securities and the Restricted Global Securities will be made available
for checking at the above office of Cravath, Swaine & Xxxxx at least 24 hours
prior to the Closing Date.
4. Representations by Purchasers; Resale by Purchasers. (a) Each Purchaser
severally represents and warrants to the Company that it is an "accredited
investor" within the meaning of Regulation D under the Securities Act.
(b) Each Purchaser severally acknowledges that the Offered
Securities have not been registered under the Securities Act and may not
be offered or sold within the United States or to, or for the account or
benefit of, U.S. persons except in accordance with Regulation S or
pursuant to an exemption from the registration requirements of the
Securities Act. Each Purchaser severally represents and agrees that it has
offered and sold the Offered Securities, and will offer and sell the
Offered Securities (i) as part of its distribution at any time and (ii)
otherwise until 40 days after the later of the commencement of the
offering and the Closing Date, only in accordance with Rule 903 or Rule
144A under the Securities Act ("RULE 144A"). Accordingly, neither such
Purchaser nor its affiliates, nor any persons acting on its or their
behalf, have engaged or will engage in any directed selling efforts with
respect to the Offered Securities, and such Purchaser, its affiliates and
all persons acting on its or their behalf have complied and will comply
with the offering restrictions requirement of Regulation S. Each Purchaser
severally agrees that, at or prior to confirmation of sale of the Offered
Securities other than a sale pursuant to Rule 144A, such Purchaser will
have sent to each distributor, dealer or person receiving a selling
concession, fee or other remuneration that purchases
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the Offered Securities from it during the restricted period a confirmation
or notice to substantially the following effect:
"The Securities covered hereby have not been registered under the
U.S. Securities Act of 1933 (the "Securities Act") and may not be
offered or sold within the United States or to, or for the account
or benefit of, U.S. persons (i) as part of their distribution at any
time or (ii) otherwise until 40 days after the later of the date of
the commencement of the offering and the closing date, except in
either case in accordance with Regulation S (or Rule 144A if
available) under the Securities Act. Terms used above have the
meanings given to them by Regulation S."
Terms used in this subsection (b) have the meanings given to them by
Regulation S.
(c) Each Purchaser severally agrees that it and each of its
affiliates has not entered and will not enter into any contractual
arrangement with respect to the distribution of the Offered Securities
except for any such arrangements with the other Purchasers or affiliates
of the other Purchasers or with the prior written consent of the Company.
(d) Each Purchaser severally agrees that it and each of its
affiliates will not offer or sell the Offered Securities in the United
States by means of any form of general solicitation or general advertising
within the meaning of Rule 502(c) under the Securities Act, including, but
not limited to (i) any advertisement, article, notice or other
communication published in any newspaper, magazine or similar media or
broadcast over television or radio, or (ii) any seminar or meeting whose
attendees have been invited by any general solicitation or general
advertising. Each Purchaser severally agrees, with respect to resales made
in reliance on Rule 144A of any of the Offered Securities, to deliver
either with the confirmation of such resale or otherwise prior to
settlement of such resale a notice to the effect that the resale of such
Offered Securities has been made in reliance upon the exemption from the
registration requirements of the Securities Act provided by Rule 144A.
(e) Each of the Purchasers severally represents and agrees that (i)
it has not offered or sold and prior to the expiry of a period of six
months from the closing date, will not offer or sell any notes to persons
in the United Kingdom except to persons whose ordinary activities involve
them in acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses or otherwise in
circumstances which have not resulted and will not result in an offer to
the public in the United Kingdom within the meaning of the Public Offers
of Securities Regulations 1995; (ii) it has only communicated or caused to
be communicated any invitation or inducement to engage in investment
activity (within the meaning of Section 21 of the Financial Services and
Markets Act 2000 (the "FSMA")) received by it in connection with the issue
or sale of any notes in circumstances in which section 21(1) of the FSMA
does not apply to Wolverine or any of the Subsidiary Guarantors; and (iii)
it has complied and will comply with all applicable provisions of the FSMA
with respect to anything done by it in relation to the notes in, from or
otherwise involving the United Kingdom.
5. Certain Agreements of the Company and the Guarantors. The Company and
the Guarantors agree with the several Purchasers that:
(a) The Company will advise CSFBC promptly of any proposal to amend
or supplement the Offering Document and will not effect such amendment or
supplementation without CSFBC's consent which shall not be unreasonably
withheld. If, at any time prior to the completion of the resale of the
Offered Securities by the Purchasers, any event occurs as a result of
which the Offering Document as then amended or supplemented would include
an untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any such time to amend or supplement the Offering Document to
comply with any applicable law, the Company promptly will notify CSFBC of
such event and promptly will prepare, at its own expense, an amendment or
supplement which will correct such statement or omission or effect such
compliance. Neither CSFBC's consent to, nor the Purchasers' delivery to
offerees or investors of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 6.
8
(b) The Company will promptly furnish to CSFBC copies of any
preliminary offering circular, the Offering Document and all amendments
and supplements to such documents, in each case as soon as available and
in such quantities as CSFBC requests, and the Company will furnish to
CSFBC on the date hereof three copies of the Offering Document signed by a
duly authorized officer of the Company, one of which will include the
independent accountants' reports therein manually signed by such
independent accountants. At any time while any of the Securities remain
outstanding when the Company is not subject to Section 13 or 15(d) of the
Exchange Act, the Company will promptly furnish or cause to be furnished
to CSFBC (and, upon request, to each of the other Purchasers) and, upon
request of holders and prospective purchasers of the Offered Securities,
to such holders and purchasers, copies of the information required to be
delivered to holders and prospective purchasers of the Offered Securities
pursuant to Rule 144A(d)(4) under the Securities Act (or any successor
provision thereto) in order to permit compliance with Rule 144A in
connection with resales by such holders of the Offered Securities. The
Company will pay the expenses of printing and distributing to the
Purchasers all such documents.
(c) The Company and the Guarantors will arrange for the
qualification of the Offered Securities for sale and the determination of
their eligibility for investment under the laws of such jurisdictions in
the United States and Canada as CSFBC designates and will continue such
qualifications in effect so long as required for the resale of the Offered
Securities by the Purchasers, provided that the Company will not be
required to qualify as a foreign corporation or to file a general consent
to service of process in any such state.
(d) During the period of two years after the Closing Date, the
Company will, upon request, furnish to CSFBC, each of the other Purchasers
and any holder of Offered Securities a copy of the restrictions on
transfer applicable to the Offered Securities.
(e) During the period of two years after the Closing Date, the
Company and each Guarantor will not, and will not permit any of its
affiliates (as defined in Rule 144 under the Securities Act) to, resell
any of the Offered Securities that have been reacquired by any of them.
(f) During the period of two years after the Closing Date, neither
the Company nor any Guarantor will be or become, an open-end investment
company, unit investment trust or face-amount certificate company that is
or is required to be registered under Section 8 of the Investment Company
Act.
(g) The Company will pay all expenses incidental to the performance
of its obligations under this Agreement, the Indenture and the
Registration Rights Agreement, including (i) the fees and expenses of
Wachovia and its professional advisers; (ii) all expenses in connection
with the execution, issue, authentication, packaging and initial delivery
of the Offered Securities and, as applicable, the Exchange Securities (as
defined in the Registration Rights Agreement), the preparation and
printing of this Agreement, the Registration Rights Agreement, the Offered
Securities, the Indenture, the Offering Document and amendments and
supplements thereto, and any other document relating to the issuance,
offer, sale and delivery of the Offered Securities and as applicable, the
Exchange Securities; (iii) the cost of listing the Offered Securities and
qualifying the Offered Securities for trading in The Portal(SM) Market
("PORTAL") and any expenses incidental thereto; (iv) the cost of any
advertising approved by the Company in connection with the issue of the
Offered Securities; (v) for any expenses (including fees and disbursements
of counsel) incurred in connection with qualification of the Offered
Securities or the Exchange Securities for sale under the laws of such
jurisdictions in the United States and Canada as CSFBC designates and the
printing of memoranda relating thereto, (vi) for any fees charged by
investment rating agencies for the rating of the Securities or the
Exchange Securities, and (vii) for expenses incurred in distributing
preliminary offering circulars and the Offering Document (including any
amendments and supplements thereto) to the Purchasers. The Company will
also pay or reimburse the Purchasers (to the extent incurred by them) for
all travel expenses of the Purchasers and the Company's officers and
employees and any other expenses of the Purchasers and the Company in
connection with attending or hosting meetings with prospective purchasers
of the Offered Securities from the Purchasers. Such amount may be deducted
from the purchase price for the Offered Securities set forth in Section 3
hereof.
(h) In connection with the offering, until CSFBC shall have notified
the Company and the other Purchasers of the completion of the resale of
the Offered Securities, neither the Company nor any of its affiliates has
or will, either alone or with one or more other persons, bid for or
purchase for any account in which it or any of its affiliates has a
beneficial interest any Offered Securities or attempt
9
to induce any person to purchase any Offered Securities; and neither it
nor any of its affiliates will make bids or purchases for the purpose of
creating actual, or apparent, active trading in, or of raising the price
of, the Offered Securities.
(i) For a period of 180 days after the date of the initial offering
of the Offered Securities by the Purchasers, without the prior written
consent of the Purchasers, the Company or any Guarantor will not offer,
sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, any United States dollar-denominated debt securities issued or
guaranteed by the Company or any Guarantor and having a maturity of more
than one year from the date of issue except issuances of Offered
Securities pursuant to the conversion or exchange of convertible or
exchangeable securities or the exercise of warrants or options, in each
case outstanding on the date hereof. None of the Company, the Guarantors
and any of their respective affiliates will at any time offer, sell,
contract to sell, pledge or otherwise dispose of, directly or indirectly,
any securities under circumstances where such offer, sale, pledge,
contract or disposition would cause the exemption afforded by Section 4(2)
of the Securities Act or the safe harbor of Regulation S thereunder to
cease to be applicable to the offer and sale of the Offered Securities.
6. Conditions of the Obligations of the Purchasers. The obligations of the
several Purchasers to purchase and pay for the Offered Securities will be
subject to the accuracy of the representations and warranties on the part of the
Company herein, to the accuracy of the statements of officers of the Company and
the Guarantors made pursuant to the provisions hereof, to the performance by the
Company and the Guarantors of its obligations hereunder and to the following
additional conditions precedent:
(a) The Purchasers shall have received a letter, dated the date of
this Agreement, of Ernst & Young in agreed form confirming that they are
independent public accountants within the meaning of the Securities Act
and the applicable published rules and regulations thereunder ("RULES AND
REGULATIONS") and to the effect that:
(i) in their opinion the financial statements examined by them
and included in the Offering Document and in the Exchange Act
Reports comply as to form in all material respects with the
applicable accounting requirements of the Securities Act and the
related published Rules and Regulations;
(ii) on the basis of a reading of the latest available interim
financial statements of the Company, inquiries of officials of the
Company who have responsibility for financial and accounting matters
and other specified procedures, nothing came to their attention that
caused them to believe that:
(A) at the date of the latest available balance sheet
read by such accountants, or at a subsequent specified date
not more than three business days prior to the date of this
Agreement, there was any change in the capital stock or any
increase in short-term indebtedness or long-term debt of the
Company and its consolidated subsidiaries or, at the date of
the latest available balance sheet read by such accountants,
there was any decrease in consolidated net assets, as compared
with amounts shown on the latest balance sheet included in the
Offering Document; or
(B) for the period from the closing date of the latest
income statement included in the Offering Document to the
closing date of the latest available income statement read by
such accountants there were any decreases, as compared with
the corresponding period of the previous year and with the
period of corresponding length ended the date of the latest
income statement included in the Offering Document, in
consolidated net sales, net operating income, consolidated
income from continuing operations, net income, or in the ratio
of earnings to fixed charges; except in all cases set forth in
clauses (B) and (C) above for changes, increases or decreases
which the Offering Document disclose have occurred or may
occur or which are described in such letter; and
(iii) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other financial
information contained in the Offering Document and the Exchange Act
Reports (in each case to the extent that such dollar amounts,
percentages and other financial information are derived from the
general accounting records of the Company
10
and its subsidiaries subject to the internal controls of the
Company's accounting system or are derived directly from such
records by analysis or computation) with the results obtained from
inquiries, a reading of such general accounting records and other
procedures specified in such letter and have found such dollar
amounts, percentages and other financial information to be in
agreement with such results, except as otherwise specified in such
letter.
(b) Subsequent to the execution and delivery of this Agreement until
the Closing Date, there shall not have occurred (i) any change, or any
development or event involving a prospective change, in the condition
(financial or other), business, properties or results of operations of the
Company and its subsidiaries taken as one enterprise which, in the
judgment of a majority in interest of the Purchasers including CSFBC, is
material and adverse and makes it impractical or inadvisable to proceed
with completion of the offering or the sale of and payment for the Offered
Securities; (ii) any downgrading in the rating of any debt securities of
the Company by any "nationally recognized statistical rating organization"
(as defined for purposes of Rule 436(g) under the Securities Act), or any
public announcement that any such organization has under surveillance or
review its rating of any debt securities of the Company (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating) or any announcement
that the Company has been placed on negative outlook; (iii) any change in
U.S. or international financial, political or economic conditions or
currency exchange rates or exchange controls as would, in the judgment of
a majority in interest of the Purchasers including CSFBC, be likely to
prejudice materially the success of the proposed issue, sale or
distribution of the Offered Securities, whether in the primary market or
in respect of dealings in the secondary market, (iv) any material
suspension or material limitation of trading in securities generally on
the New York Stock Exchange, or any setting of minimum prices for trading
on such exchange, or any suspension of trading of any securities of the
Company on any exchange or in the over-the-counter market; (v) any banking
moratorium declared by U.S. Federal or New York authorities; (vi) any
major disruption of settlements of securities or clearance services in the
United States or (vii) any attack on, outbreak or escalation of
hostilities or act of terrorism involving the United States, any
declaration of war by Congress or any other national or international
calamity or emergency if, in the judgment of a majority in interest of the
Purchasers including CSFBC, the effect of any such attack, outbreak,
escalation, act, declaration, calamity or emergency makes it impractical
or inadvisable to proceed with completion of the offering or sale of and
payment for the Offered Securities.
(c) Concurrently with or prior to the issuance and sale of the
Offered Securities by the Company, the transactions contemplated by the
Credit Agreement shall have occurred; and there shall exist at and as of
the Closing Date (after giving effect to the transactions contemplated by
this Agreement and the Credit Agreement) no condition that would
constitute a default (or an event that with notice or lapse of time, or
both, would constitute a default) under the Credit Agreement.
(d) The Purchasers shall have received an opinion, dated the Closing
Date, of Xxxxx Xxxxxxxxxx LLP, special counsel for the Company and the
Guarantors, to the effect that:
(i) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of
Delaware, with corporate power and authority to own its properties
and conduct its business as described in the Offering Circular; and
the Company is duly qualified to do business as a foreign
corporation in the states identified in Schedule B-1.
(ii) The Indenture has been duly authorized, executed and
delivered by the Company and each Guarantor organized under the laws
of the State of Delaware (each, a "Delaware Guarantor"); the Notes
have been duly authorized and executed by the Company. When the
Registration Rights Agreement and the Indenture have been duly
executed and delivered by Wachovia and the parties other than the
Company and the Delaware Guarantors, and the Offered Securities have
been issued, executed and authenticated in accordance with the
Indenture and delivered to and paid for by the Purchasers in
accordance with this Agreement, the Indenture, the Notes and the
Registration Rights Agreement will constitute valid and legally
binding obligations of the Company enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws relating to
or affecting the enforcement of creditors' rights generally and to
general equity principles regardless of whether enforcement is
sought in law or equity.
11
(iii) The Exchange Securities have been duly authorized by the
Company and each Delaware Guarantor; and when the Exchange
Securities are issued, executed and authenticated in accordance with
the terms of the Exchange Offer and the Indenture, the Exchange
Securities will be entitled to the benefits of the Indenture and
will be the valid and legally binding obligations of the Company and
the Delaware Guarantors, enforceable in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles regardless of whether enforcement is sought in law or
equity.
(iv) The Guarantee to be endorsed on the Offered Securities by
each Delaware Guarantor has been duly authorized by each such
Guarantor. When the Offered Securities have been issued, executed
and authenticated in accordance with the Indenture and delivered to
and paid for by the Purchasers in accordance with the terms of this
Agreement, the Guarantee of each Delaware Guarantor endorsed thereon
will be a valid and legally binding obligation of such Guarantor,
enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws relating to or affecting the enforcement of creditors'
rights generally and to general equity principles regardless of
whether enforcement is sought in law or equity.
(v) The Guarantee to be endorsed on the Exchange Securities by
each Delaware Guarantor has been duly authorized by each such
Guarantor. When the Exchange Securities have been issued, executed,
authenticated and delivered in accordance with the terms of the
Exchange Offer and the Indenture, the Guarantee of each Delaware
Guarantor endorsed thereon will be a valid and legally binding
obligation of such Guarantor, enforceable in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws relating to or affecting
the enforcement of creditors' rights generally and to general equity
principles regardless of whether enforcement is sought in law or
equity.
(vi) Neither the Company nor any Guarantor is and, after
giving effect to the offering and sale of the Offered Securities and
the application of the proceeds thereof as described in the Offering
Circular, none of them will be an "investment company" as defined in
the Investment Company Act.
(vii) No consent, approval, authorization or order of, or
filing with, any U.S. Federal, New York or Delaware governmental
agency or body or court is required by the Company or the Delaware
Guarantors (or, with respect to U.S. Federal governmental agencies,
bodies or courts only, Wolverine Finance Company), for the
consummation of the transactions contemplated by this Agreement and
the Registration Rights Agreement in connection with the issuance or
sale of the Offered Securities by the Company, except (a) such as
may be required under state securities laws (with respect to which
counsel need express no opinion); (b) in connection with the
registration of the Exchange Securities, or the filing and
effectiveness of the Exchange Offer Registration Statement and the
Shelf Registration Statement, all pursuant to the Registration
Rights Agreement, (c) for the qualification of the Indenture under
the Trust Indenture Act of 1939, as amended, in connection with the
Exchange Offer or the Shelf Registration Statement and (d) for such
consents, approvals, authorizations, orders, or filings the failure
to so make or obtain as would not have a Material Adverse Effect and
would not materially adversely effect on the consummation of the
transactions contemplated by the Purchase Agreement and the
Registration Rights Agreement.
(viii) The execution, delivery and performance of the
Indenture, this Agreement and the Registration Rights Agreement and
the issuance and sale of the Offered Securities and compliance with
the terms and provisions thereof will not result in (i) a breach or
violation of any of the terms and provisions of, or constitute a
default under, any U.S. Federal or New York statute, rule or
regulation, the Delaware General Corporation Law, Delaware Limited
Liability Company Act or Delaware Revised Uniform Limited
Partnership Act or, to the extent known to such counsel, order of
any U.S. Federal, New York or Delaware governmental agency or body
or court having jurisdiction over the Company or any Delaware
Guarantor or any of the Company's other Delaware subsidiaries or any
of their properties except for such breaches, violations and
defaults as would not, individually or in the
12
aggregate, have a Material Adverse Effect or materially and
adversely affect the consummation of the transactions contemplated
by this Agreement or the Transactions; (ii) a material breach or
violation of any of the terms of, or constitute a material default
under any material agreement or instrument to which the Company, any
Delaware Guarantor or any such subsidiary is a party or by which the
Company, any Delaware Guarantor or any such subsidiary is bound or
to which any of the properties of the Company, any Delaware
Guarantor or any such subsidiary is subject which agreement or
instrument is filed as an exhibit to the Company's Annual Report on
Form 10-K for the year ended December 31, 2001 or to any subsequent
report filed with the SEC pursuant to the Exchange Act (except for
breaches, violations or defaults under any financial covenants,
ratios or tests, as to which such counsel need express no opinion);
or (iii) a breach or violation of any of the terms or provisions of
the charter or by-laws of the Company, any Delaware Guarantor or any
such subsidiary.
(ix) This Agreement has been duly authorized, executed and
delivered by the Company.
(x) The Indenture conforms in all material respects to the
requirements of the Trust Indenture Act of 1939, as amended (the
"TIA" or "TRUST INDENTURE ACT"), and the rules and regulations of
the Commission applicable to an indenture which is qualified
thereunder.
(xi) Assuming the representations of the Purchasers set forth
in Section 4 of this Agreement are true, complete and correct and
assuming compliance by the Purchasers with the covenants set forth
in this Agreement and with applicable U.S. Federal and state
securities laws in connection with the initial resale of the Offered
Securities, it is not necessary in connection with (i) the offer,
sale and delivery of the Offered Securities by the Company and the
Guarantors to the several Purchasers pursuant to this Agreement or
(ii) the initial resales of the Offered Securities by the several
Purchasers in the manner contemplated by this Agreement and the
Offering Circular, to register the Offered Securities under the
Securities Act or to qualify an indenture in respect thereof under
the Trust Indenture Act.
(xii) The information set forth under the caption "Description
of the Notes" in the Offering Circular, insofar as it constitutes
summaries of the terms of contracts and other documents including,
without limitation, the Indenture, the Notes, the Guarantees and the
Exchange Securities, summarizes in all material respects the terms
of such contracts and documents.
In addition, such counsel shall state that it has participated in conferences
with representatives of the Company, representatives of the independent
certified public accountants for the Company and your representatives, at which
the contents of the Offering Document and related matters were discussed and,
although it has not undertaken to determine independently, nor does such counsel
pass upon or assume any responsibility, explicitly or implicitly, for the
accuracy, completeness or fairness of the statements contained in the Offering
Document, or any amendment or supplement thereto, or any Exchange Act Report
incorporated by reference therein, on the basis of and subject to the foregoing,
no facts have come to such counsel's attention that cause such counsel to
believe that the Offering Circular, or any amendment or supplement thereto prior
to the date of such opinion, or any Exchange Act Report incorporated by
reference therein as of its date and the date of this letter, contained an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (in each case, except
as to the financial statements and the notes thereto and the schedules and other
financial and statistical data included therein or omitted therefrom, as to
which such counsel shall express no view).
(e) The Purchasers shall have received an opinion, dated the Closing
Date, of Xxxxx & Xxxxxxx LLP, counsel for the Company and the Delaware
Guarantors, to the effect that: Each Delaware Guarantor is a corporation,
limited liability company or limited partnership validly existing and in
good standing under the laws of its state of incorporation or
organization, with the requisite power and authority to own its properties
and conduct its business as described in the Offering Document; and each
Delaware Guarantor is duly qualified to do business as a foreign entity in
good standing in the respective states identified in Schedule B-3 hereto.
All of the issued and outstanding capital stock or other equity interests
of each of the Delaware Guarantors has been duly authorized and validly
issued, is fully paid and nonassessable and is owned of record, directly
or through subsidiaries, by the Company.
13
In addition, such counsel shall state that it has participated in conferences
with representatives of the Company, representatives of the independent
certified public accountants for the Company and your representatives, at which
the contents of the Offering Document and related matters were discussed and,
although it has not undertaken to determine independently, nor does such counsel
pass upon or assume any responsibility, explicitly or implicitly, for the
accuracy, completeness or fairness of the statements contained in the Offering
Document, or any amendment or supplement thereto, or any Exchange Act Report
incorporated by reference therein, on the basis of and subject to the foregoing,
no facts have come to such counsel's attention that cause such counsel to
believe that the Offering Circular or any amendment or supplement thereto prior
to the date of such opinion, or any Exchange Act Report incorporated by
reference therein, as of its date and the date of this letter, contained an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (in each case, except
as to the financial statements and the notes thereto and the schedules and other
financial and statistical data included therein or omitted therefrom, as to
which such counsel shall express no view).
(f) The Purchasers shall have received an opinion of Xxxxxx X.
Xxxxxxx, Xx., General Counsel of the Company, to the effect that:
(i) The Indenture has been duly authorized, executed and
delivered by Wolverine Finance Company, a Tennessee corporation
("Wolverine Finance").
(ii) The Guarantee to be endorsed on the Offered Securities by
Wolverine Finance has been duly authorized by Wolverine Finance, and
has been duly executed and delivered by Wolverine Finance. When the
Offered Securities have been issued, executed, authenticated and
delivered in accordance with the Indenture and delivered to and paid
for by the Purchasers in accordance with the terms of this
Agreement, the Guarantee of Wolverine Finance endorsed thereon will
be a valid and legally binding obligation of Wolverine Finance,
enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent conveyances, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors rights and to general equity principles regardless of
whether enforcement is sought in law or in equity.
(iii) The Guarantee to be endorsed on the Exchange Securities
by Wolverine Finance has been duly authorized by Wolverine Finance,
and has been duly executed and delivered by Wolverine Finance. When
the Exchange Securities have been issued, executed, authenticated
and delivered in accordance with the terms of the Exchange Offer and
the Indenture, the Guarantee of Wolverine Finance endorsed thereon
will be a valid and legally binding obligation of Wolverine Finance,
enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent conveyances, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors rights and to general equity principles regardless of
whether enforcement is sought in law or in equity.
(iv) The execution, delivery and performance of the Indenture,
this Agreement and the Registration Rights Agreement and the
Issuance and sale of the Offered Securities and compliance with the
terms and provisions thereof will not result in a breach or
violation of any of the terms and provisions of, or constitute a
default under, any agreement or instrument to which the Company or
any Guarantor is a party or by which the Company or any Guarantor is
bound or to which any of the properties of the Company or any
Guarantor is subject except for such breaches, violations and
defaults as would not, individually or in the aggregate, have a
Material Adverse Effect or materially and adversely affect the
consummation of the transactions contemplated by this Agreement.
(v) The execution, delivery and performance of the Indenture,
this Agreement and the Registration Rights Agreement and compliance
with the terms and provisions thereof by Wolverine Finance will not
result in (i) a breach or violation of any of the terms and
provisions of, or constitute a default under, any U.S. Federal
statute, rule or regulation or, to the extent known to such counsel,
order of any U.S. Federal government agency or body or court having
jurisdiction over Wolverine Finance or any of its properties, except
for such breaches, violations and defaults as would not,
individually or in the aggregate, have a Material Adverse Effect or
materially and adversely affect the consummation of the transactions
contemplated by this Agreement or the Transactions; or (ii) a breach
or violation of any of the terms and provisions of the charter or
by-laws of Wolverine Finance.
14
(vi) There are no contracts, agreements or understandings
between the Company or any Guarantor and any person granting such
person the right to require the Company or such Guarantor to file a
registration statement under the Securities Act with respect to any
securities of the Company or such Guarantor or to require the
Company or such Guarantor to include such securities with the
Securities and Guaranties registered pursuant to any Registration
Statement;
(vii) The Company is duly qualified to do business as a
foreign entity in good standing in the states in which its ownership
or lease of property or the conduct of its business requires such
qualification (which jurisdiction are set forth on Schedule B-2)
except where the failure to be so qualified would not, individually
or in the aggregate, have a Material Adverse Effect. Each Guarantor
is duly qualified to do business as a foreign entity in good
standing in the states in which its ownership or lease of property
or the conduct of its business requires such qualification (which
jurisdictions are set forth in Schedule B-3) except where the
failure to be so qualified would not, individually or in the
aggregate, have a Material Adverse Effect; and
(viii) There are no pending actions, suits or proceedings
against or affecting the Company or any Guarantor, any of the
Company's subsidiaries or any of their respective properties that,
if determined adversely to the Company or any Guarantor or any of
the Company's other subsidiaries, would individually or in the
aggregate have a Material Adverse Effect, or would materially and
adversely affect the ability of the Company or any Guarantor to
perform its obligations under the Indenture, this Agreement or the
Registration Rights Agreement, or which are otherwise material in
the context of the sale of the Offered Securities; and no such
actions, suits or proceedings are threatened or, to such counsel's
knowledge, contemplated except as disclosed in the Offering
Document.
(g) The Purchasers shall have received from Cravath, Swaine & Xxxxx,
counsel for the Purchasers, such opinion or opinions, dated the Closing
Date, with respect to the incorporation of the Company, the validity of
the Offered Securities, the Offering, the exemption from registration for
the offer and sale of the Offered Securities by the Company and the
Guarantors to the several Purchasers and the resales by the several
Purchasers as contemplated hereby and other related matters as CSFBC may
require, and the Company and each of the Guarantors shall have furnished
to such counsel such documents as they request for the purpose of enabling
them to pass upon such matters.
(h) The Purchasers shall have received a certificate, dated the
Closing Date, of the President or any Vice President and a principal
financial or accounting officer of the Company and each of the Guarantors
in which such officers, to the best of their knowledge after reasonable
investigation, shall state that the representations and warranties of the
Company and each of the Guarantors in this Agreement are true and correct,
that the Company and each of the Guarantors have complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date, and that, subsequent
to the respective dates of the most recent financial statements in the
Offering Document or Exchange Act Reports there has been no material
adverse change, nor any development or event involving a prospective
material adverse change, in the condition (financial or other), business,
properties or results of operations of the Company, the Guarantors and
each of the Company's other subsidiaries taken as a whole except as set
forth in or contemplated by the Offering Document or Exchange Act Reports
or as described in such certificate.
(i) The Purchasers shall have received a letter, dated the Closing
Date, of Ernst & Young which meets the requirements of subsection (a) of
this Section, except that the specified date referred to in such
subsection will be a date not more than three days prior to the Closing
Date for the purposes of this subsection.
(j) Concurrently with or prior to the issuance and sale of the
Offered Securities by the Company, the initial borrowings under the Credit
Agreement, if any, shall have occurred. There shall exist at and as of the
Closing Date (after giving effect to the transactions contemplated by this
Agreement and the Transactions) no condition that would constitute a
default under the Credit Agreement or any related document thereto.
(k) The Purchasers shall be satisfied that a Report of Independent
Auditors on the Company's audited consolidated financial statements as of
December 31, 2001, dated March 11, 2002 and the Closing Date, of Ernst &
Young will be reissued and delivered concurrently with the issuance
15
and sale of the Offered Securities and the Transactions on the Closing
Date, which shall replace the fifth paragraph in Ernst & Young's Report of
Independent Auditors dated March 11, 2002 (which report is contained in
each of the Preliminary Offering Circular and the Offering Circular) with
a paragraph substantially identical to the following:
"Since the date of completion of our audit of the accompanying
financial statements and initial issuance of our report thereon
dated March 11, 2002, which report contained an explanatory
paragraph regarding the Company's ability to continue as a going
concern, the Company, as discussed in Note X, has completed the sale
of $120 million in Senior Notes and has obtained a new $37.5 million
secured revolving credit facility. Therefore, the conditions that
raised substantial doubt about whether the Company will continue as
a going concern no longer exist."
The Company will furnish the Purchasers with such conformed copies of such
opinions, certificates, letters and documents as the Purchasers reasonably
request. CSFBC may in its sole discretion waive on behalf of the Purchasers
compliance with any conditions to the obligations of the Purchasers hereunder.
7. Indemnification and Contribution. (a) The Company and the Guarantors,
jointly and severally will indemnify and hold harmless each Purchaser, its
partners, directors and officers and each person, if any, who controls such
Purchaser within the meaning of Section 15 of the Securities Act, against any
losses, claims, damages or liabilities, joint or several, to which such
Purchaser may become subject, under the Securities Act or the Exchange Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Offering Document, or any
amendment or supplement thereto, or any related preliminary offering circular or
the Exchange Act Reports, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, including any losses,
claims, damages or liabilities arising out of or based upon the Company's
failure to perform its obligations under Section 5(a) of this Agreement, and
will reimburse each Purchaser for any legal or other expenses reasonably
incurred by such Purchaser in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Company and the Guarantors will not be liable in any
such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement in or
omission or alleged omission from any of such documents in reliance upon and in
conformity with written information furnished to the Company by any Purchaser
through CSFBC specifically for use therein, it being understood and agreed that
the only such information consists of the information described as such in
subsection (b) below and provided, further, that with respect to any untrue
statement or alleged untrue statement in or omission or alleged omission from
any preliminary offering circular, the indemnity agreement contained in this
subsection (a) shall not inure to the benefit of any Purchaser that sold the
Offered Securities concerned to the person asserting any such losses, claims,
damages or liabilities, to the extent that such sale was an initial resale by
such Purchaser and any such loss, claim, damage or liability of such Purchaser
results from the fact that there was not sent or given to such person, at or
prior to the written confirmation of the sale of such Offered Securities to such
person, a copy of the Offering Document, if the Company had previously
furnished, in a reasonably prompt manner, copies thereof to such Purchaser.
(b) Each Purchaser will severally and not jointly indemnify and hold
harmless the Company, its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the Securities Act,
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Securities Act or the Exchange Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Offering Document, or any
amendment or supplement thereto, or any related preliminary offering circular,
or arise out of or are based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Company by such Purchaser through CSFBC specifically for use
therein, and will reimburse any legal or other expenses reasonably incurred by
the Company in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred, it being understood
and agreed that the only such information furnished by any Purchaser consists of
(i) the following information in the Offering Document furnished on behalf of
each Purchaser: under the caption "Plan of Distribution" paragraphs three and
ten, the names of the purchasers set forth in paragraph one, the second sentence
of paragraph four, the third sentence
16
of paragraph nine and the penultimate sentence and the last sentence of
paragraph eleven; and (ii) the following information in the Offering Document
furnished on behalf of First Union Securities, Inc.: under the caption "Plan of
Distribution", paragraph twelve; provided, however, that the Purchasers shall
not be liable for any losses, claims, damages or liabilities arising out of or
based upon the Company's failure to perform its obligations under Section 5(a)
of this Agreement.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof. If an indemnified party shall fail so to notify the
indemnifying party, the indemnifying party shall be relieved from any liability
which it may have to such indemnified party under subsections (a) or (b) above
to the extent it was materially prejudiced by the failure to give such notice;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
subsection (a) or (b) above. In case any such action is brought against any
indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement (i) includes an unconditional release
of such indemnified party from all liability on any claims that are the subject
matter of such action and (ii) does not include a statement as to or an
admission of fault, culpability or failure to act by or on behalf of any
indemnified party.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company and the Guarantors on the one hand and the Purchasers on the other
from the offering of the Offered Securities or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and the Guarantors on the one
hand and the Purchasers on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities as well
as any other relevant equitable considerations. The relative benefits received
by the Company and the Guarantors on the one hand and the Purchasers on the
other shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the Company and the
Guarantors bear to the total discounts and commissions received by the
Purchasers from the Company under this Agreement. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or any Guarantor
or the Purchasers and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any action or claim which is the subject of this subsection (d). Notwithstanding
the provisions of this subsection (d), no Purchaser shall be required to
contribute any amount in excess of the amount by which the total discounts, fees
and commissions received by such Purchaser exceeds the amount of any damages
which such Purchaser has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. The Purchasers'
obligations in this subsection (d) to contribute are several in proportion to
their respective purchase obligations and not joint.
(e) The obligations of the Company and each of the Guarantors under
this Section shall be in addition to any liability which the Company and each of
the Guarantors may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Purchaser within the
meaning of the Securities Act or the Exchange Act; and the obligations of the
Purchasers under this Section shall be in addition to any liability which the
respective Purchasers may otherwise have and shall extend, upon the same terms
and conditions, to each person, if any, who controls the Company or any
Guarantor within the meaning of the Securities Act or the Exchange Act.
17
8. Default of Purchasers. If any Purchaser or Purchasers default in their
obligations to purchase Offered Securities hereunder and the aggregate principal
amount of Offered Securities that such defaulting Purchaser or Purchasers agreed
but failed to purchase does not exceed 10% of the total principal amount of
Offered Securities, the non-defaulting Purchaser may make arrangements
satisfactory to the Company for the purchase of such Offered Securities by other
persons, including any of the Purchasers, but if no such arrangements are made
by the Closing Date, the non-defaulting Purchasers shall be obligated severally,
in proportion to their respective commitments hereunder, to purchase the Offered
Securities that such defaulting Purchasers agreed but failed to purchase. If any
Purchaser or Purchasers so default and the aggregate principal amount of Offered
Securities with respect to which such default or defaults occur exceeds 10% of
the total principal amount of Offered Securities and arrangements satisfactory
to the non-defaulting Purchaser and the Company for the purchase of such Offered
Securities by other persons are not made within 36 hours after such default,
this Agreement will terminate without liability on the part of any
non-defaulting Purchaser or the Company, except as provided in Section 9. As
used in this Agreement, the term "Purchaser" includes any person substituted for
a Purchaser under this Section. Nothing herein will relieve a defaulting
Purchaser from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company and each Guarantor or each of its respective officers and of the several
Purchasers set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Purchaser, the Company, the
Guarantors and each of their respective representatives, officers or directors
or any controlling person, and will survive delivery of and payment for the
Offered Securities. If this Agreement is terminated pursuant to Section 8 or if
for any reason the purchase of the Offered Securities by the Purchasers is not
consummated, the Company shall remain responsible for the expenses to be paid or
reimbursed by it pursuant to Section 5 and the respective obligations of the
Company, the Guarantors and the Purchasers pursuant to Section 7 shall remain in
effect. If the purchase of the Offered Securities by the Purchasers is not
consummated for any reason other than solely because of the termination of this
Agreement pursuant to Section 8 or the occurrence of any event specified in
clause, (iv), (v), or (vii) of Section 6(b), the Company will reimburse the
Purchasers for all out-of-pocket expenses (including fees and disbursements of
counsel) reasonably incurred by them in connection with the offering of the
Offered Securities.
10. Notices. All communications hereunder will be in writing and, if sent
to the Purchasers will be mailed, delivered or telegraphed and confirmed to the
Purchasers, c/o Credit Suisse First Boston Corporation, Eleven Madison Avenue,
New York, N.Y. 10010-3629, Attention: Transactions Advisory Group, or, if sent
to the Company, will be mailed, delivered or telegraphed and confirmed to it at
000 Xxxxxxx Xxxxxx Xxxx, Xxxxx 0000, Xxxxxxxxxx, XX 00000, Attention: Chief
Financial Officer; provided, however, that any notice to a Purchaser pursuant to
Section 7 will be mailed, delivered or telegraphed and confirmed to such
Purchaser.
11. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the controlling
persons referred to in Section 7, and no other person will have any right or
obligation hereunder, except that holders of Offered Securities shall be
entitled to enforce the agreements for their benefit contained in the second and
third sentences of Section 5(b) hereof against the Company as if such holders
were parties thereto.
12. Representation of Purchasers. You will act for the several Purchasers
in connection with this purchase, and any action under this Agreement taken by
you will be binding upon all the Purchasers.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York without regard to principles
of conflicts of laws.
15. Submission to Jurisdiction. The Company hereby submits to the
non-exclusive jurisdiction of the Federal and state courts in the Borough of
Manhattan in The City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to us one of the counterparts hereof, whereupon it will
become a binding agreement between the Company and the several Purchasers in
accordance with its terms.
Very truly yours,
WOLVERINE TUBE, INC.
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President, Chief
Financial Officer and Secretary
TF INVESTORS, INC.
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President and Treasurer
TUBE FORMING, L.P.
By: Wolverine Tube, Inc., as General Partner.
------------------------------------------------
Name:
Title:
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President, Chief
Financial Officer and Secretary
WOLVERINE FINANCE COMPANY, INC.
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President and Treasurer
WOLVERINE CHINA INVESTMENTS, LLC
By: Wolverine Tube, Inc., as Managing Member
------------------------------------------------
Name:
Title:
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President, Chief
Financial Officer and Secretary
STPC HOLDING, INC.
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President and Treasurer
SMALL TUBE MANUFACTURING CORP.
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President and Treasurer
WOLVERINE JOINING TECHNOLOGIES, INC.
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President and Treasurer
The foregoing Purchase Agreement
is hereby confirmed and accepted as
of the date first above written.
CREDIT SUISSE FIRST BOSTON
CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
Acting on behalf of itself and as the
Representative of the several Purchasers
SCHEDULE A
Principal Amount of
Manager Offered Securities
-------
Credit Suisse First Boston Corporation............................ $ 102,000,000
First Union Securities, Inc....................................... $ 18,000,000
-------------
Total................................ $ 120,000,000
=============
SCHEDULE B-1
STATE OF
INCORPORATION/ FOREIGN
ENTITY ORGANIZATION QUALIFICATIONS
WOLVERINE TUBE, Delaware Mississippi, North
INC. Carolina, Oklahoma,
Texas
SCHEDULE B-2
STATE OF
INCORPORATION/ FOREIGN
ENTITY ORGANIZATION JURISDICTIONS
WOLVERINE TUBE, Delaware Alabama, Mississippi,
INC. North Carolina,
Oklahoma, Tennessee,
Texas
SCHEDULE B-3
WOLVERINE TUBE, INC.
U.S. SUBSIDIARIES
STATE OF
INCORPORATION/ FOREIGN
ENTITY ORGANIZATION QUALIFICATIONS
TF INVESTOR, INC. Delaware --
TUBE FORMING, L.P. Delaware Texas
WOLVERINE Tennessee --
FINANCE
COMPANY
WOLVERINE CHINA Delaware --
INVESTMENTS, LLC
STPC HOLDING, Delaware --
INC.
SMALL TUBE Delaware Mississippi
MANUFACTURING Pennsylvania
CORPORATION
WOLVERINE Delaware California
JOINING New Jersey
TECHNOLOGIES, Rhode Island
INC. Texas
SCHEDULE C
List of Documents Delivered with
Offering Circular
NONE
SCHEDULE D
Subsidiaries
DIRECT/INDIRECT
OWNERSHIP INTEREST
OF WOLVERINE TUBE, JURISDICTION OF ISSUED AND OUTSTANDING CAPITAL
SUBSIDIARY INC. ORGANIZATION STOCK
---------- ------------------ --------------- ------------------------------
TF Investor, Inc. 100% Delaware 100 shares common stock
Tube Forming, LP 100% Delaware 99% limited partnership int.
1% general partnership int.
1105836 Ontario, Inc. 100% Ontario 1063 common shares
1158909 Ontario, Inc. 100% Ontario 10,500,001 common shares
Wolverine Tube (Canada) Inc. 100% Ontario 50,000 common shares
18,700 Class A Pref. Shares
Wolverine Finance Company 100% Tennessee 1000 shares common stock
STPC Holding, Inc. 100% Delaware 100 shares common stock
Small Tube Manufacturing Corp. 100% Delaware 100 shares common stock
Small Tube Europe, N.V. 74% Netherlands 75,000 cumulative pref.
52,500 common
Small Tube Poland, Inc. 100% Poland Not ascertainable, but 100% is
owned indirectly by Wolverine
Tube, Inc.
Wolverine Europe (EURL) 100% French Not applicable
Wolverine Tube Asia, LTD 100% Hong Kong 10,000 Ordinary Shares
Wolverine Tube International LTD 100% U.S.V.I. X00
Xxxxxxxxx Joining Technologies, Inc.
100% Delaware 1000 shares common stock
Wolverine Joining Technologies
(Canada) Inc. 100% Canada 1,000 Class A common shares
1263143 Ontario, Inc. 100% Ontario 7,800,001 common shares
Wolverine Tube BV 100% Dutch 200 common shares
DIRECT/INDIRECT
OWNERSHIP INTEREST
OF WOLVERINE TUBE, JURISDICTION OF ISSUED AND OUTSTANDING CAPITAL
SUBSIDIARY INC. ORGANIZATION STOCK
---------- ------------------ --------------- ------------------------------
Wolverine China Investments, LLC 100% Delaware 99% interests Wolverine Tube
(Canada) Inc.
1% interests Wolverine Tube, Inc.
Wolverine Tube (Shanghai) Co., Ltd. 100% Chinese Not applicable
Wolverine European Holdings BV 100% Dutch 18,200 shares
Wolverine Scholte Metalen BV 100% Dutch 18,200 shares
Wolverine Ratcliffs, Inc. 85.9% Canada 745 common shares
Ratcliffs Copper and Brass Sales, 85.9% UK Two 1(pound) ordinary shares
Ltd.
Wolverine Tubagem (Portugal) LDA 100% Portugal 499900 euro Wolverine Tube BV
100 euro Wolverine European
Holdings BV
