SECURITIES PURCHASE AGREEMENT
THIS
SECURITIES PURCHASE AGREEMENT (this “Agreement”)
is
made as of this 26th
day of
February, 2007, by and between
Alkest,
LLC, a Delaware limited liability company (the “Buyer”)
and
Plainfield Special Situations Master Fund Limited (the “Seller”).
WHEREAS,
pursuant to that certain Preferred Stock Purchase Agreement dated as of January
31, 2007 by and among Wolverine Tube Inc., a Delaware corporation (the
“Company”),
the
Seller and The Alpine Group, Inc. (“Alpine”),
(the
“Original
Purchase Agreement”),
the
Seller purchased shares of Series A Convertible Preferred Stock of the Company
(such series to shares being referred hereinafter as “Series
A Preferred Shares”);
WHEREAS,
subject to the terms hereof, the Seller desires
to sell
to the Buyer, and the Buyer desires to purchase from the Seller, 2,000 shares
of
Series A Preferred Shares ; and
WHEREAS,
subject to the terms hereof, the Seller desires to grant to the Buyer an
option
to purchase an additional number of Series A Shares, if the Seller is required
to purchase Standby Shares or if the Seller purchases Option Shares, each
as
defined in the Original Purchase Agreement.
NOW,
THEREFORE, in consideration of the mutual promises contained herein, the
parties
agree as follows:
SECTION
1 SALE
AND TRANSFER OF BUYER PREFERRED SHARES; GRANTING OF STANDBY
OPTION
1.1. Closing.
Subject
to the terms and conditions of this Agreement, at the closing of the
transactions contemplated hereby (the “Closing,”
and
the date thereof, the “Closing
Date”),
the
Seller shall sell to the Buyer, and the Buyer shall purchase from Seller,
2,000
shares of Series A Preferred Shares (the “Buyer
Preferred Shares”)
for
the aggregate purchase price of $2,000,000 (the “Purchase
Price”).
The
Closing shall take place at the New York offices of Proskauer Rose LLP and
shall
occur immediately following the execution hereof, or at such other location
or
time as the parties may agree. At
the
Closing:
(a)
the
Seller shall deliver to Buyer the Buyer Preferred Shares and such duly executed
instruments of assignment as shall be required to transfer to the Buyer all
right title and interest in the Buyer Preferred shares; and
(b)
the
Buyer shall:
(i) deliver
the Purchase Price in immediately available funds by wire transfer to an
account
designated in writing by the Seller;
(ii) enter
into a letter agreement with the Company, the Seller and Alpine in the form
attached here to as Exhibit A;
(iii) execute
a
Joinder Agreement in the form attached as Exhibit A to the Stockholders
Agreement dated February 16, 2007, between the Alpine Holders and the Plainfield
Holders (each as defined therein), (the “Stockholders’
Agreement”);
and
(iv) deliver
to the Seller a written waiver executed by Alpine of the transfer restrictions
contained in the Stockholders’ Agreement.
1.2. Assignment
of Rights.
In
connection with the sale of the Buyer Preferred Shares to the Buyer, the
Seller
hereby assigns to the Buyer, and the Buyer accepts, all of the Seller’s right,
title and interest in any and all rights arising from or relating to the
Buyer
Preferred Shares
arising
under the Original Purchase Agreement or the Registration Rights Agreement,
dated as of February 16, 2007, by and among the Company, the Seller and the
other purchasers listed on the signature page of the Original Purchase Agreement
(the “Registration
Rights Agreement”),
(collectively, the “Transferred
Rights”).
Except
as
specifically set forth herein or in any other agreement entered into by the
Buyer on or around the date hereof in connection with the sale of the Buyer
Preferred Shares hereunder, the Buyer is not assuming any obligations of
any of
the Seller under the Original Purchase Agreement or any other agreement entered
into by the Seller in connection therewith.
1.3. Option
to Purchase Standby Shares.
Seller
hereby grants Buyer an option (the “Additional
Share Option”)
to
acquire all right, title and interest in, a number of the additional Series
A
Preferred Shares, if any, the Seller buys from the Company as either Standby
Shares or Option Shares (each as defined in the Original Purchase Agreement,
and
collectively the “Additional
Shares”)
not to
exceed in the aggregate the Buyer Additional Share Maximum (as defined herein),
at a per share exercise price equal to the per share purchase price paid
by the
Seller for such Additional Shares (the “Additional
Share Strike Price”).
The
Additional Share Option shall only become exercisable, if at all, on any
date
(each, an “Option
Start Date”)
the
Seller (i) becomes definitively obligated to purchase Standby Shares from
the
Company, or (ii) exercises its right to buy Option Shares, and shall remain
exercisable for a period of ten (10) business days following such Option
Start
Date (each, an “Option
Exercise Period”).
To
exercise the Additional Share Option, the Buyer shall deliver to the Seller
(a)
an irrevocable written notice (an “Exercise
Notice”),
indicating the number of Additional Shares it will purchase (the “Additional
Call Amount”),
(b)
an amount in cash equal to the product obtained from multiplying the Additional
Call Amount by the Additional Share Strike Price, and (c) an executed purchase
agreement, reasonably acceptable to the Seller, containing representations
and
warranties of the Buyer no less favorable to the Seller than the Buyer’s
representations and warranties contained herein. The
Seller shall have the right at any time and from time to time, during any
Option
Exercise Period, to require the Buyer to exercise its Additional Share Option
in
whole or in part (the “Required
Exercise Right”).
To
exercise its Required Exercise Right, the Seller shall provide to the Buyer
written notice (the “Required
Exercise Notice”)
of the
number of Additional Shares that the Buyer is required to purchase (the
“Required
Additional Call Amount”),
and
the Buyer shall have five (5) business days from the date following receipt
of
the Required Exercise Notice to deliver (a)
an
amount in cash equal to the product obtained from multiplying the Required
Additional Call Amount by the Additional Share Strike Price and (b) an executed
purchase agreement, reasonably acceptable to the Seller, containing
representations and warranties of the Buyer no less favorable to the Seller
than
the Buyer’s representations and warranties contained herein.
For
purposes of this Agreement the Buyer Additional Share Maximum shall equal
the
lesser of (x) five percent (5%) of the number of Additional Shares purchased
by
the Seller after subtracting the number of Additional Shares that are subject
to
Alpine’s right to purchase any of the Additional Shares pursuant to Section 2 of
that certain Letter Agreement between Alpine and Seller dated January 31,
2007
and (y) $1,000,000 divided by the Additional Share Strike Price, rounded
to the
nearest whole number. Notwithstanding anything to the contrary, in no event
shall the Buyer have the right to purchase a number of Additional Shares
having
an aggregate Additional Share Strike Price greater than $1,000,000.
SECTION
2 REPRESENTATIONS
AND WARRANTIES OF SELLER
The
Seller hereby represents
and
warrants to the Buyer that as of the Closing Date:
2.1. No
consent, approval, or authorization of, or declaration, filing, or registration
with, any United States federal
or state
governmental or regulatory authority is required to be made or obtained by
the
Seller in connection with the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated by this
Agreement.
2.2. This
Agreement constitutes the valid, legal and binding agreement of the Seller,
enforceable against Seller in accordance with its terms.
2.3. The
Seller owns, has and is hereby selling to the Buyer good and sole legal and
beneficial title to the Transferred Rights free and clear of any and all
liens,
security interests, encumbrances or claims of any kind or nature whatsoever.
2.4. By
virtue
of the transfer of the Buyer Preferred Shares to Buyer at the Closing, the
Buyer
will obtain full title to such Buyer Preferred Shares, free and clear of
all
liens, claims, charges, restrictions, security interests, equities, proxies,
pledges, or encumbrances of any kind.
SECTION
3 REPRESENTATIONS
AND WARRANTIES OF BUYER
The
Buyer
represents and warrants to
the
Seller that as of the Closing Date:
3.1. The
Buyer
has the requisite power and authority to enter into and perform its obligations
under this Agreement. No consent, approval, or authorization of, or declaration,
filing, or registration with, any United States federal or state governmental
or
regulatory authority is required to be made or obtained by the Buyer in
connection with the execution, delivery and performance of this Agreement
and
the consummation of the transactions contemplated by this
Agreement.
3.2. The
Buyer
(i) is acquiring the Buyer Preferred Shares for its own account and not with
a
view towards, or for resale in connection with, the public sale or distribution
thereof, except pursuant to sales registered or exempted under the Securities
Act of 1933, as amended (the “Securities
Act”),
(ii)
will acquire the common stock it receives upon any conversion of the Buyer
Preferred Shares, for its own account and not with a view towards, or for
resale
in connection with, the public sale or distribution thereof, except pursuant
to
sales registered or exempted under the Securities Act, and (iii) does not
have
any agreement or understanding, directly or indirectly, with any person or
entity to distribute any of the Buyer Preferred Shares or the underlying
common
shares. The Buyer has no intent to and covenants not to resell or otherwise
transfer any or all of the Buyer Preferred Shares except in compliance with
applicable securities laws. The Buyer is aware of the Company’s business affairs
and financial condition and has acquired sufficient information about the
Company to reach an informed and knowledgeable decision to purchase the Buyer
Preferred Shares.
3.3. The
Buyer
understands that the Buyer Preferred Shares are “restricted securities” under
applicable U.S. federal and state laws and that, pursuant to these laws,
Buyer
must hold the Buyer Preferred Shares indefinitely unless they are registered
with the Securities and Exchange Commission and qualified by state authorities,
or an exemption from such registration and qualification requirements is
available. The Buyer acknowledges that the Company has no obligation to register
or qualify the Buyer Preferred Shares for resale other than as otherwise
provided in the Registration Rights Agreement. The Buyer further acknowledges
that if an exemption from registration or qualification is available, it
may be
conditioned on various requirements including, but not limited to, the time
and
manner of sale, the holding period for the Buyer Preferred Shares, and
requirements relating to the Company which are outside of the Buyer’s control,
and which the Company may be under no obligation and may not be able to
satisfy.
3.4. The
Buyer
is an accredited investor as defined in Rule 501(a) of Regulation D of the
Securities Act and a sophisticated institutional investor with such knowledge
and experience in financial and business matters and expertise in assessing
credit risk, that is capable of evaluating the merits, risks and suitability
of
investing in the Buyer Preferred Shares. The Buyer further represents that
it is
relying exclusively on its own sources of information and analysis with respect
to the Buyer Preferred Shares and that it is able to bear the economic risks
of
and an entire loss of its investment in the Buyer Preferred Shares.
3.5. The
Buyer
understands that the Buyer Purchased Shares are being offered and sold to
it in
reliance on specific exemptions from the registration requirements of United
States federal and state securities laws and that the Company is relying
in part
upon the truth and accuracy of, and the Buyer's compliance with, the
representations, warranties, agreements, acknowledgments and understandings
of
the Buyer set forth herein in order to determine the availability of such
exemptions and the eligibility of the Buyer to acquire the
Securities.
SECTION
4 MISCELLANEOUS
4.1. Expenses.
Each
party shall be responsible for its own costs and expenses incurred or to
be
incurred in negotiating and preparing this Agreement and in closing and carrying
out the transactions contemplated by this Agreement.
4.2. Entire
Agreement; Modification; Waiver.
This
Agreement, together with all Exhibits hereto which are made a part hereof,
constitutes the entire agreement between the parties pertaining to its subject
matter, and supersedes, merges and voids all prior and contemporaneous
agreements, representations and understandings of the parties with respect
thereto, whether written or oral. No supplement, modification or amendment
of
this Agreement shall be binding unless executed in writing by all the parties.
No waiver of any of the provisions of this Agreement shall be deemed, or
shall
constitute, a waiver of any other provision, whether or not similar, nor
shall
any waiver constitute a continuing waiver unless it expressly provides such
by
its terms. No waiver shall be binding unless executed in writing by the party
making the waiver.
4.3. Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument.
4.4. Assignment.
This
Agreement shall be binding on, and shall inure to the benefit of the parties
and
their respective heirs, legal representatives, successors and assigns. Neither
party may assign its rights or its obligations hereunder without the consent
of
the other party.
4.5. Notices.
All
notices, requests, demands and other communications under this Agreement
shall
be in writing, addressed to the respective party or parties as set forth
on the
final page of this Agreement, and shall be deemed to have been duly given
on the
date of service if served personally on the party to whom notice is to be
given
or by facsimile receipt acknowledged and followed up by hand delivery, which
may
be by courier. Any party may change its address for purposes of this
Section 4.5 by giving the other parties written notice of the new address
in the manner set forth above.
4.6. Governing
Law; Consent to Jurisdiction.
This
Agreement shall be governed by and construed in accordance with the laws
of New
York. Each party hereby irrevocably submits to the exclusive jurisdiction
of the
state and federal courts sitting in The City of New York, Borough of Manhattan,
for the adjudication of any dispute hereunder or in connection herewith or
with
any transaction contemplated hereby or discussed herein, and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim
that it is not personally subject to the jurisdiction of any such court,
that
such suit, action or proceeding is brought in an inconvenient forum or that
the
venue of such suit, action or proceeding is improper.
4.7. Further
Assurances.
Each of
the Seller and the Buyer agree to (i) execute and deliver, or cause to be
executed and delivered, all such other and further agreements, documents
and
instruments and (ii) take or cause to be taken all such other and further
actions as the other party may reasonably request to effectuate the intent
and
purposes and carry out the terms, of this Agreement.
SECTION
5 RELEASE
The
Buyer, by purchasing the Buyer Preferred Shares, acknowledges that (i) the
Seller may have come into possession of information, with respect to the
Company, that is not known to the Buyer and that might be material to a decision
to purchase or sell the Buyer Preferred Shares (“Excluded
Information”),
(ii)
the Buyer has determined to purchase the Buyer Preferred Shares notwithstanding
its lack of knowledge of the Excluded Information, if any, and (iii) the
Seller
shall have no liability to the Buyer, and that the Buyer waives and releases
any
claims that it might have against the Seller pursuant to this purchase of
the
Buyer Preferred Shares, whether under applicable securities laws or otherwise,
for any cause whatsoever including with respect to any nondisclosure of Excluded
Information, if any, now or in the future, in connection with the purchase
and
sale of the Buyer Preferred Shares.
[Signature
Page Follows]
IN
WITNESS WHEREOF, the parties to this Agreement have duly executed it as of
the
date first written above.
|
BUYER
ALKEST,
LLC
|
||
| By: | Xxxx Xxxxxxxxxx, as its Sole Member | |
| /s/ Xxxx Kestnenbaum | ||
| SELLER | ||
|
PLAINFIELD
SPECIAL SITUATIONS MASTER FUND LIMITED
|
||
| |
|
|
| By: | /s/ Xxxxxx Xxxxxxx | |
| Name: Xxxxxx Xxxxxxx | ||
| Title: Authorized Signatory | ||
Acknowledged and Agreed
to:
WOLVERINE TUBE, INC.
By:
______________________________________
Name:
____________________________________
Title:
_____________________________________
