PURCHASE AND SALE AGREEMENT
The
Alpine Group, Inc.
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Gentlemen:
1.
Description of
Securities.
(a)
The Alpine Group, Inc. (“Seller”) is the owner of (i) 14,000 shares of
Wolverine Tube, Inc. (“Wolverine”) Series A Convertible Preferred Stock (par
value, $1.00 per share, CUSIP No. 978093 409; the “Series
A Preferred”) with stated liquidation value of $1,000 per share and convertible
into 909 shares of Wolverine common stock per share of Series A Preferred, and
(ii) 6,000 shares of Wolverine Series B Convertible Preferred Stock (par value
$1.00 per share, CUSIP No. 978093 300; the “Series B Preferred”) with stated
liquidation value of $1,000 per share and convertible into 909 shares of
Wolverine common stock per share of Series B Preferred. Alpine is
selling the foregoing Preferred to “accredited investors”.
(b) Exhibit
A hereto lists all of the currently outstanding Series A Preferred and
Series B Preferred (at times referred to collectively as the “Preferred
Stock”). Following the sale, Seller will continue to own 494 shares
of Series A Preferred and 4,000 shares of Series B Preferred. Exhibit
B and Exhibit
C hereto reference the full texts of the respective Certificates of
Designations of the Preferred Stock as incorporated among the public filings of
Wolverine with the Securities and Exchange Commission (“SEC”).
The
Preferred Stock are unregistered and vote on an as converted basis together with
the Wolverine common stock. Except as to dividend rate (discussed
below), the rights and privileges of holders of the Preferred Stock are equal
and pari passu,
including without limitation, rights to receive dividends and proceeds upon
redemption or liquidation. The initial dividend provided for under
the Preferred Stock was 8% for the Series A Preferred and 8½% for the Series B
Preferred, respectively. As a result of Wolverine’s election to defer
rather than current pay cash dividends and its failure to register the Preferred
Stock and underlying Wolverine common stock, the dividend under the Series A
Preferred is currently accruing at 12% and the Series B Preferred is currently
accruing at 12½%. As of the date hereof, $198.35 in deferred and
unpaid dividends were accrued in respect of each share of Series A Preferred,
and $196.36 in deferred and unpaid dividends were accrued in respect of each
share of Series B Preferred.
2. Sale and
Purchase. Subject to the terms and conditions of
this Sale and Purchase Agreement (the “Agreement”) and in reliance on the
representations, warranties and agreements herein set forth, Seller hereby sells
to ______________________ (“Purchaser”), and Purchaser
hereby purchases from Seller the number of shares of Series A Preferred and/or
Series B Preferred set forth on Exhibit
D hereto, for the “Purchase Price” per share described in paragraph
3. The sale and purchase of each share of Preferred Stock includes
all dividends unpaid and accrued in respect thereof as of the date
hereof.
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3. Purchase
Price. The Purchase Price for each share of Preferred Stock is
(a) $18.18 in cash plus (b) an additional contingent payment of up to $145.44
per share of Preferred Stock payable only if there shall occur any of the events
described below. In the event (i) any share(s) of the Preferred Stock
are sold, redeemed or exchanged or any dividend or distribution shall be made in
respect thereof prior to June 30, 2012, and (ii) the “Value” of the
consideration received by Purchaser on account of such event(s) exceeds $72.72
per share, then Seller will be entitled to receive, and Purchaser shall pay to
Seller, such Value in excess of $72.72 per share up to a maximum of an
additional $145.44 per share. To the extent that Value includes
consideration other than cash, such Value shall be paid in the form received (as
described in paragraph 4 below) and shall be determined as at the time of sale
or exchange by an independent third party experienced in valuations of
securities and similar instruments. Such independent third party
shall be designated by Seller. Exhibit
E lists examples of how the additional contingent purchase price formula
may operate.
4. Payment.
(a)
Concurrently with the execution hereof, Purchaser has paid by check
or has wire transferred the full amount of the initial Purchase Price shown on
Exhibit
D hereto for all shares of Preferred Stock purchased
hereunder. Any additional contingent Purchase Price payable in
accordance with paragraph 3 shall be paid or transferred by Purchaser to Seller
in the form of the consideration in which it is received reasonably promptly
following receipt thereof in the case of cash, and reasonably promptly following
valuation thereof, in the case of securities or other
instruments. In the event Value has been received in the form of
securities or other instruments, Purchaser shall not be obligated to transfer
the same to Seller unless and until such transfer is permissible under any
applicable restrictions and securities law and regulation. All such
securities or instruments shall be transferred to Seller by assignment free and
clear of all liens and security interests suffered and created by such
Purchaser.
(b)
Seller shall promptly mail to Purchaser, at Purchaser’s address set forth
on the Signature Page to the Agreement via nationally recognized overnight
courier: (i) certificate(s) in Purchaser’s name for the Preferred Stock
purchased pursuant to the Agreement, or (ii) certificate(s) in Seller’s name for
such purchased Preferred Stock with Assignment thereof duly executed by Seller
in favor of Purchaser.
5. Purchaser
Representations: Purchaser hereby represents, warrants and
confirms to Seller that:
(a) Purchaser
has received and read all documents required by Purchaser to make an informed
decision with regard to the purchase of the Preferred
Stock. Additionally, Purchaser confirms that he has been directed to
Wolverine’s website (▇▇▇.▇▇▇.▇▇▇) which
contains information concerning Wolverine’s current and periodic filings with
the SEC and has had the opportunity to review the same. Purchaser has
had sufficient experience in business and investment matters to evaluate the
merits and risks involved in the investment made hereby.
(b) Purchaser
understands that the Preferred Stock and underlying common stock into which it
may be converted has not been registered under the Securities Act of 1933, as
amended (the “Act”) or under state securities laws and is being sold in a
private sale in reliance upon exemptions from the registration and/or prospectus
delivery requirements of the Act and in reliance upon certain exemptions from
the registration requirements of applicable state securities laws; and Purchaser
further understands that Wolverine has no present intention of registering the
same, and, therefore, Purchaser must be prepared to bear the economic risk of
such investment indefinitely. Purchaser further understands that the
exemptions from registration relied upon by Seller depend upon, among other
things, the bona fide nature of Purchaser’s investment intent expressed above
and Purchaser’s other representations herein.
(c)
Purchaser understands that there is no assurance (i) that any event will
occur that will create Value for the holders of the Preferred Stock or the
common stock into which it may be converted; or (ii) that there ever will be any
Value for such holders.
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(d)
Purchaser is acquiring the Preferred Stock for its account and not with a view
to any sale or distribution thereof within the meaning of the
Act, and the rules and regulations of the SEC thereunder as amended from time to
time (the “Regulations”), except to the extent permitted by the Act and the
Regulations. Purchaser will make no sale, offer to sell or transfer
of any Shares in violation of the Act, the Regulations or any other federal or
state securities law, or in violation of the terms of this
Agreement.
(e) Purchaser
is acting on its own behalf and has full power and authority to enter into and
to perform this Agreement in accordance with its terms.
(f)
Purchaser is an “accredited investor” as such term is defined in Rule 501
of Regulation D under the Act.
(g)
Purchaser agrees that the following legend or a substantially similar
legend may be placed on the certificate of certificates representing the
Preferred Stock:
THE
SECURITIES AND THE SECURITIES INTO WHICH THESE SECURITIES ARE CONVERTIBLE HAVE
NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN COMPLIANCE WITH
APPLICABLE STATE SECURITIES LAWS OR BLUE SKY LAWS.
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A STOCKHOLDERS’
AGREEMENT DATED AS OF FEBRUARY 16, 2007 ( AS AMENDED FROM TIME TO TIME), AMONG
CERTAIN OF THE COMPANYS’ STOCKHOLDERS, THE TERMS OF WHICH INCLUDE,
AMONG OTHER THINGS, RESTRICTIONS ON TRANSFERS AND AGREEMENTS RELATED TO
VOTING.
(h) Purchaser understands that
Seller is a “Stockholder” signatory to a certain Stockholders’
Agreement dated February16, 2007, currently in effect among all of the owners of
the Preferred Stock (as amended from time to time, the “Stockholders’
Agreement”). The terms of the Stockholders’ Agreement include, among
other things, restrictions on transfer and agreements related to
voting. Any Purchaser who is a shareholder of Seller hereby confirms
that he shall be bound by the provisions of the Stockholders’ Agreement in the
same manner as if such Purchaser were an original signatory to such
Stockholders’ Agreement. If requested by Seller, Purchaser shall
promptly execute and deliver a joinder agreement confirming the
foregoing. A complete copy of the Stockholders’ Agreement is
available at ▇▇▇▇://▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇/▇▇▇▇▇/▇▇▇▇/▇▇▇▇/▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇_▇▇▇▇.▇▇▇.
6. Seller’s
Representations. Seller has all requisite power and authority
to execute, deliver and perform this Agreement.
7. Successors and
Assigns. This Agreement shall be binding upon the respective
successors and assigns of Purchaser and Seller.
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8. Survival. All
the agreements, representations and warranties made by Purchaser in this
Agreement shall survive the execution and delivery of this Agreement and of the
delivery of the Preferred Stock.
9. Complete
Agreement. This Agreement constitutes the complete agreement
and understanding between the parties.
10. Counterparts. This
Agreement may be executed in separate facsimile counterparts each of which shall
be an original and all of which taken together shall constitute one and the same
agreement.
11. Notices. All
notices or other communications to be given or made hereunder shall be in
writing and shall be delivered personally or mailed, postage prepaid, to
Purchaser at its address set forth on the signature pages hereto and if to
Seller at the address set forth on the signature pages hereto.
12. Interpretation. All
nouns and pronouns and any variations thereof used herein shall be deemed to
refer to the masculine, feminine, neuter, singular or plural as the identity of
the person or persons may require.
13. Governing
Law. The Agreement shall be governed and construed in
accordance with the laws of the State of New York as applied to residents of
that state executing contracts wholly to be performed in that
state.
IN
WITNESS WHEREOF, Purchaser has executed this Sale and Purchase Agreement this
__day of _________, 2009.
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PURCHASER
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Signature
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Social
Security Number
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Print:__________________________________
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Address
for Notice
_________________________________
_________________________________
_________________________________
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SELLER
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By: ____________________________
Name:
Title:
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Address
for Notice
_________________________________
_________________________________
_________________________________
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