-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Iu89/k9daHguZc+heN5YBr0U8TLodwEdL5o0ez2S07KtE5rRv5vtwy8vKTRL2Qw4 arQalodafj0uIpYnZfpfeQ== 0001144204-08-017338.txt : 20080325 0001144204-08-017338.hdr.sgml : 20080325 20080325171407 ACCESSION NUMBER: 0001144204-08-017338 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20080325 DATE AS OF CHANGE: 20080325 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: WOLVERINE TUBE INC CENTRAL INDEX KEY: 0000821407 STANDARD INDUSTRIAL CLASSIFICATION: ROLLING DRAWING & EXTRUDING OF NONFERROUS METALS [3350] IRS NUMBER: 630970812 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-43063 FILM NUMBER: 08710046 BUSINESS ADDRESS: STREET 1: 200 CLINTON AVENUE WEST STREET 2: SUITE 1000 CITY: HUNTSVILLE STATE: AL ZIP: 35801 BUSINESS PHONE: 2568900460 MAIL ADDRESS: STREET 1: 200 CLINTON AVENUE WEST STREET 2: SUITE 1000 CITY: HUNTSVILLE STATE: AL ZIP: 35801 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: ALPINE GROUP INC /DE/ CENTRAL INDEX KEY: 0000004164 STANDARD INDUSTRIAL CLASSIFICATION: DRAWING AND INSULATING NONFERROUS WIRE [3357] IRS NUMBER: 221620387 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: ONE MEADOWLANDS PLAZA STREET 2: SUITE 801 CITY: EAST RUTHERFORD STATE: NJ ZIP: 07073 BUSINESS PHONE: 201-549-4400 MAIL ADDRESS: STREET 1: ONE MEADOWLANDS PLAZA STREET 2: SUITE 801 CITY: EAST RUTHERFORD STATE: NJ ZIP: 07073 FORMER COMPANY: FORMER CONFORMED NAME: ALPINE GEOPHYSICAL CORP DATE OF NAME CHANGE: 19841202 FORMER COMPANY: FORMER CONFORMED NAME: ALPINE GEOPHYSICAL ASSOCIATES INC DATE OF NAME CHANGE: 19810120 SC 13D/A 1 v108054_13da.htm


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Washington, D.C. 20549

SCHEDULE 13D

Under the Securities Exchange Act of 1934

(Amendment No. 1)*

WOLVERINE TUBE, INC.

(Name of Issuer)

Common Stock, $0.01 par value

(Title of Class of Securities)

978093 10 2

(CUSIP Number)

Ronald R. Papa, Esq.

Proskauer Rose LLP

1585 Broadway

New York, New York 10036-8299

(212) 969-3000

(212) 969-2900 - Facsimile

(Name, Address and Telephone Number of Person Authorized to

Receive Notices and Communications)

March 20, 2008

(Date of Event which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 249.13d-1(g), check the following box. o

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.

* The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

Potential persons who are to respond to the collection of information contained in this form are not required to respond unless the form displays a currently valid OMB control number.


CUSIP NO. 978093 10 2

1.	Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only) The Alpine Group, Inc.
2.	Check the Appropriate Box if a Member of a Group (See Instructions)	(a) x
		(b) o
3.	SEC Use only
4.	Source of funds (See Instructions) WC
5.	Check if disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)	o
6.	Citizenship or Place of Organization Delaware


Number of Shares Beneficially Owned by Each Reporting Person With:	7.	Sole Voting Power	0

	8.	Shared Voting Power	38,835,130 (See Item 5)

	9.	Sole Dispositive Power	23,563,979 (See Item 5)

	10.	Shared Dispositive Power	0


11	Aggregate Amount Beneficially Owned by Each Reporting Person 38,835,130 (See Item 5)
12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) x
13.	Percent of Class Represented by Amount in Row (11) 49.0% (See Item 5)
14.	Type of Reporting Person (See Instructions) CO

Item 1.

Security and Issuer

This Amendment No. 1 (this “Amendment No. 1”) amends and supplements the Schedule 13D filed by The Alpine Group, Inc. (“Alpine”) on February 26, 2007 (the “Schedule 13D”). Certain capitalized terms used but not defined in this Amendment No. 1 have the meanings given to them in the Schedule 13D.

The Schedule 13D is hereby amended and supplemented as follows:

Item 3.

Source and Amount of Funds or Other Consideration

The following paragraphs shall be added to the final paragraph of Item 3 of the Schedule 13D:

On January 27, 2008, Alpine purchased from the Company an additional 4,494 shares of Series A Preferred Stock (the “Alpine Option Shares”) at a price of $1,000 per share for a total of $4,494,000 (the “Option Share Purchase”), pursuant to Alpine’s right to purchase Option Shares as described in Item 6 below, on the terms more fully set forth in the Preferred Stock Purchase Agreement described in Item 6 below and filed as Exhibit 1 hereto and the Letter Agreement described in Item 6 below and filed as Exhibit 3 hereto.

Alpine purchased the Alpine Option Shares using its own working capital.

On March 20, 2008, the Company entered into a Series B Preferred Stock Purchase Agreement with Alpine (filed as Exhibit 8 hereto) with respect to the issuance and sale to Alpine of 10,000 shares of a new class of preferred stock of the Company to be designated as Series B Convertible Preferred Stock, par value $1.00 per share (the “Series B Preferred Stock”), for a purchase price of $1,000 per share and an aggregate purchase price of $10,000,000 (the “Series B Transaction”). The Company agreed, in connection therewith, to pay Alpine a cash fee of $300,000. The Series B Transaction was also consummated on March 20, 2008 (the “Series B Closing”).

Alpine purchased the Series B Preferred Stock for an aggregate purchase price of $10,000,000 using its own working capital.

The Series B Preferred Stock ranks pari passu with the Series A Preferred Stock and its rights and preferences are substantially identical to the Series A Preferred Stock (including, without limitation, a conversion price of $1.10 per share of Common Stock), except that the initial cumulative dividend rate of the Series B Preferred Stock is 8.50% per annum. In connection with the Series B Closing, the Company filed the certificate of designations in the form attached as Exhibit 9 hereto (the “Series B Certificate of Designations”) with the Delaware Secretary of State, stating the designation and number of shares and fixing the relative designations and the powers, preferences and rights, and the qualifications, limitations and restrictions of the Series B Preferred Stock. Also in connection with the Series B Closing, the Voting Agreement (as described in Item 5(c) below) was amended to expressly reference that the voting rights of the Series B Preferred Stock would be subject to the terms and limitations thereof. The Amendment to the Voting Agreement is filed as Exhibit 10 hereto.

As further described in the Form 8-K filed on April 2, 2007 by the Company, on March 29, 2007 the Company adopted the 2007 Non-Qualified Stock Option Plan filed as Exhibit 10.1 to such Form 8-K (the “Plan”) and granted to Alpine options to purchase 4,399,059 shares of Common Stock (the “Alpine Stock Options”) pursuant to the Non-Qualified Stock Option Agreement between the Company and Alpine filed as Exhibit 10.2 to such Form 8-K (the “Alpine Stock Option Agreement”), in connection with the services provided to the Company by Alpine pursuant to the Management Agreement described in Item 6 below and filed as Exhibit 5 hereto. Pursuant to the terms of the Plan and the Alpine Stock Option Agreement, the Alpine Stock Options were increased to 6,483,533 shares of Common Stock as a result of (a) the Rights Offering described in Item 6 below and consummated by the Company on October 29, 2007, and (b) Alpine’s purchase of the Alpine Option Shares described above. Also pursuant to the terms of the Plan and the Alpine Stock Option Agreement, on March 29, 2008, 20% of the increased Alpine Stock Options (equal to approximately 1,296,706 shares of Common Stock) will vest and become exercisable by Alpine. Of these vesting Alpine Stock Options, 40% (equal to 518,682 shares of Common Stock) are exercisable at a price of $1.10 per share, 30% (equal to approximately 389,012 shares of Common Stock) are exercisable at a price of $1.40 per share and 30% (equal to approximately 389,012 shares of Common Stock) are exercisable at a price of $2.20 per share.

Item 4.

Purpose of Transaction

The following paragraphs shall be added after the first paragraph of Item 4 of the Schedule 13D:

The purpose of Option Share Purchase was to increase the Purchasers’ aggregate ownership of the Common Stock to 55% on an as-converted, fully-diluted basis in accordance with the terms set forth in the Preferred Stock Purchase Agreement described in Item 6 below and the Letter Agreement described in Item 6 below.

The purpose of the Series B Transaction was to increase Alpine’s aggregate ownership of equity capital in the Company as described herein.

The Alpine Stock Options were granted to Alpine by the Company in connection with the services provided to the Company by Alpine pursuant to the Management Agreement described in Item 6 below.

Alpine has no current plans to exercise the Alpine Stock Options.

Item 5.

Interest in Securities of the Issuer

The following shall replace (a) and (b) of Item 5 of the Schedule 13D:

(a) Aggregate Number and Percentage of Class Beneficially Owned: 38,835,130; 49.0% (See Item 5(c) below).

(b) Number of shares as to which such person has:

(i)	Sole power to vote or to direct the vote:	0 (See Item 5(c) below).

(ii)	Shared power to vote or to direct the vote:	38,835,130 (See Item 5(c) below).

(iii)	Sole power to dispose or to direct the disposition of:	23,563,979 (See Item 5(c) below).

(iv)	Shared power to dispose or to direct the disposition of:	0 (See Item 5(c) below).

The second paragraph of Item 5(c) of the Schedule 13D shall be deleted and replaced with the following paragraphs:

The Series A Preferred Stock is convertible into Common Stock at a conversion price of $1.10 per share of Common Stock. Accordingly, Alpine’s 14,494 shares of Series A Preferred Stock can be converted into 13,176,364 shares of Common Stock. Plainfield’s 38,000 shares of Series A Preferred Stock can be converted into 34,545,455 shares of Common Stock. The 2,000 Alkest Shares can be converted into 1,818,182 shares of Common Stock.

On October 9, 2007, Plainfield purchased an additional 153,499 shares of Common Stock at a price per share of $1.10 for an aggregate purchase price of $168,849 in connection with the Rights Offering described in Item 6 below and conducted by the Company on October 29, 2007.

On January 27, 2008, Alpine purchased an additional 4,494 shares of Series A Preferred Stock at a price per share of $1,000 for an aggregate purchase price of $4,494,000 pursuant to its right to purchase Option Shares as described in Item 6 below.

On March 20, 2008, Alpine purchased 10,000 shares of Series B Preferred Stock at a price per share of $1,000 for an aggregate purchase price of $10,000,000. The Series B Preferred Stock is convertible into Common Stock at a conversion price of $1.10 per share of Common Stock. Accordingly, Alpine’s 10,000 shares of Series B Preferred Stock can be converted into 9,090,909 shares of Common Stock.

On March 29, 2008, options granted to Alpine to purchase 1,296,706 shares of Common Stock will vest and become exercisable as described in Item 3 above.

The fourth paragraph of Item 5(c) of the Schedule 13D shall be deleted and replaced with the following paragraph:

Pursuant to a voting agreement among the Company and the Purchasers entered into at the Closing (the “Voting Agreement”) and pursuant to the terms of the Series A Preferred Stock, for so long as any of the Company's 10.5% Senior Notes due 2009 are outstanding, neither Alpine or Plainfield (together with any other person with whom that Purchaser would be considered a “person” (as that term is used in Sections 13(d) and 14(d) of the Exchange Act) with respect to the Series A Preferred Stock or the Common Stock, which may include Alkest) may vote Common Stock and Series A Preferred Stock in excess of 49% of the total voting power of all voting securities of the Company. Accordingly, based on the 40,623,736 shares of Common Stock reported outstanding by the Company, and given Plainfield’s holdings of 203,499 shares of Common Stock, the 49% limitation dictates that the maximum aggregate voting power of all shares of Series A Preferred Stock and Common Stock currently beneficially owned by Alpine, Plainfield and Alkest is 38,835,130. The Voting Agreement was amended in connection with the Series B Closing as described in Item 3 above.

Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer

The following paragraph shall be added to Item 6:

Series B Preferred Stock Purchase Agreement

The Series B Preferred Stock Purchase Agreement provides for the issuance of the 10,000 shares of Series B Preferred Stock described in Item 5(c) above.

Item 7.

Material to Be Filed as Exhibits

Exhibit 8	Series B Preferred Stock Purchase Agreement dated March 20, 2008, by and between Wolverine Tube, Inc. and Alpine Group, Inc.

Exhibit 9	Form of Certificate of Designations of Wolverine Tube, Inc.’s Series B Convertible Preferred Stock

Exhibit 10	Amendment to Voting Agreement dated March 20, 2008, by and among Wolverine Tube, Inc. and the other parties signatory thereto

SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, I certify that that information set forth in this statement is true, complete and correct.

March 25, 2008

Date

/s/ Stewart H. Wahrsager

Signature

Senior Vice President, General Counsel & Corporate Secretary

Title

The original statement shall be signed by each person on whose behalf the statement is filed or his authorized representative. If the statement is signed on behalf of a person by his authorized representative (other than an executive officer or general partner of the filing person), evidence of the representative’s authority to sign on behalf of such person shall be filed with the statement, provided, however, that a power or attorney for this purpose which is already on file with the Commission may be incorporated by reference. The name and any title of each person who signs the statement shall be typed or printed beneath his signature.

Attention: Intentional misstatements or omissions of fact constitute Federal criminal violations (See 18 U.S.C. 1001)

EX-8 2 v108054_ex8.htm

EXECUTION VERSION

SERIES B PREFERRED STOCK PURCHASE AGREEMENT

dated as of March 20, 2008

by and between

WOLVERINE TUBE, INC.

and

THE ALPINE GROUP, INC.

TABLE OF CONTENTS

			Page
ARTICLE I		DEFINITIONS	2
	1.1	Definitions	2

ARTICLE II		PURCHASE AND SALE	2
	2.1	Closing	2
	2.2	Closing Deliveries.	2

ARTICLE III		REPRESENTATIONS AND WARRANTIES	4
	3.1	Representations and Warranties of the Company	4
	3.2	Disclaimer of Other Representations and Warranties.	5
	3.3	Representations and Warranties of the Purchaser	5

ARTICLE IV		OTHER AGREEMENTS OF THE PARTIES	7
	4.1	Transfer Restrictions.	7
	4.2	Furnishing of Information	8
	4.3	Integration	8
	4.4	Indemnification	8

ARTICLE V		CONDITIONS	9
	5.1	[Omitted].	9

ARTICLE VI		MISCELLANEOUS	9
	6.1	[Omitted].	9
	6.2	[Omitted].	9
	6.3	Fees and Expenses	9
	6.4	[Omitted].	9
	6.5	Entire Agreement	9
	6.6	Notices	9
	6.7	Amendments; Waivers	10
	6.8	Construction	10
	6.9	Successors and Assigns	10
	6.10	No Third-Party Beneficiaries	10
	6.11	Governing Law; Venue; Waiver of Jury Trial	11
	6.12	Survival	11
	6.13	Execution	11
	6.14	Severability	11
	6.15	Adjustments in Share Numbers and Prices	11

SERIES B PREFERRED STOCK PURCHASE AGREEMENT

This Series B Preferred Stock Purchase Agreement (this “Agreement”) is entered into and dated as of March 20, 2008 (the “Closing Date”), by and between WOLVERINE TUBE, INC., a corporation incorporated under the laws of the state of Delaware (the “Company”), and THE ALPINE GROUP, INC., a corporation incorporated under the laws of the State of Delaware (the “Purchaser,” and together with the Company, the “Parties” and each, individually, a “Party”).

WHEREAS, subject to the terms and conditions set forth in this Agreement and pursuant to Section 4(2) of the Securities Act, as amended, and Rule 506 promulgated thereunder, the Company desires to issue and sell to the Purchaser, and the Purchaser desires to purchase from the Company, certain securities of the Company pursuant to the terms set forth herein.

WHEREAS, the Company has authorized a new series of convertible preferred stock designated as the Series B Convertible Preferred Stock of the Company (the “Series B Preferred Stock”), having the rights, preferences, privileges and restrictions set forth in the Series B Preferred Stock Certificate of Designations (the “Series B Certificate of Designations”), attached hereto as Exhibit A, which Series B Preferred Stock shall be convertible into the Common Stock, par value $0.01 per share, of the Company (the “Common Stock”) in accordance with the terms of the Series B Certificate of Designations.

NOW, THEREFORE, in consideration of the mutual covenants contained in this Agreement, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Company and the Purchaser, agree as follows:

ARTICLE I

DEFINITIONS

1.1 Definitions. In addition to the terms defined elsewhere in this Agreement, capitalized terms used herein shall have the meanings set forth in Annex A hereto:

ARTICLE II

PURCHASE AND SALE

2.1 Closing. Subject to the terms and conditions set forth in this Agreement, at the Closing, the Company shall issue and sell to the Purchaser, and the Purchaser shall purchase from the Company, 10,000 Shares for a purchase price of $1,000 per Share and an aggregate purchase price of $10,000,000 (the “Aggregate Purchase Price”). The Closing shall take place at the New York offices of Purchaser Counsel at 10:00 a.m. local time, on the Closing Date.

2.2 Closing Deliveries.

(a) At the Closing, the Company shall deliver or cause to be delivered to the Purchaser the following:

(i) a certificate representing 10,000 Shares registered in the name of the Purchaser;

(ii) evidence that the Series B Certificate of Designations has been filed with the Secretary of State of the State of Delaware and become effective on or prior to the Closing Date;

(iii) the Series B Preferred Stock Registration Rights Agreement, duly executed by the Company;

(iv) the Series A Holders Consent, duly executed by Plainfield, Alkest and the Company;

(v) the Stockholders’ Agreement Supplement, duly executed by PSSMF and Alkest;

(vi) the Voting Agreement Amendment, duly executed by the Company, PSSMF and Alkest;

(vii) the legal opinion of Company Counsel, in the form of Exhibit F-1, executed by such counsel and the legal opinion of in-house counsel of the Company in the form of Exhibit F-2, executed by such counsel;

(viii) a certificate dated as of the Closing Date and signed by the Chief Executive Officer of the Company certifying that no Bankruptcy Event (as such term is defined in the Series B Certificate of Designations) has occurred;

(ix) a certificate of the Secretary of the Company, dated as of the Closing Date, certifying as to: (A) the signatures and titles of the officers of the Company executing each of the Transaction Documents to which the Company is a party; and (B) resolutions of the Board authorizing and approving all matters in connection with the Transaction Documents to which the Company is a party and the Transactions;

(x) a cash fee in the amount of $100,000;

(xi) the Company shall have delivered evidence reasonably satisfactory to the Purchaser that the Company has obtained amendments (collectively, the “Facilities Amendments”) to certain provisions of the Amended and Restated Credit Agreement among the Company and its U.S. subsidiaries, the lenders named therein and Wachovia Bank, National Association (“Wachovia”), as administrative agent, as amended (the “Revolving Credit Facility”), and the Amended and Restated Receivables Purchase Agreement and the Receivables Sales Agreement among the Company, Wachovia and the other parties thereto, each as amended (collectively, the “Receivables Credit Facility”), in each case on terms reasonably satisfactory to the Purchaser;

(xii) the Company shall have delivered to the Purchaser a letter confirming its intention to seek approval of the Series A Amendment (as such term is defined in the Series A Holders Consent) as soon as it may practically do so; and

(xiii) any other documents reasonably requested by the Purchaser or Purchaser Counsel.

(b) At the Closing, the Purchaser or an authorized officer thereof shall deliver or cause to be delivered to the Company the following: (i) the Aggregate Purchase Price, in U.S. Dollars and in immediately available funds, by wire transfer to an account designated in writing by the Company for such purpose; and (ii) each Transaction Document (including the Series B Preferred Stock Registration Rights Agreement, the Series A Holders Consent, the Stockholders’ Agreement Supplement and the Voting Agreement Amendment) to which the Purchaser is a signatory, duly executed by the Purchaser.

ARTICLE III

REPRESENTATIONS AND WARRANTIES

3.1 Representations and Warranties of the Company. The Company hereby represents and warrants to the Purchaser, as of the Closing as follows:

(a) Authorization; Enforcement. The Company has the requisite power and authority to enter into and to consummate the Transactions and otherwise to carry out its obligations under the Transaction Documents to which the Company is a party. The execution and delivery of each of the Transaction Documents to which the Company is a party by the Company and the consummation by the Company of the Transactions have been duly authorized by all necessary action on the part of the Company and no further consent or action is required by the Company, its Board or, subject to approval of the Transactions by the Series A Holders, its stockholders. Each Transaction Document to which the Company is a party has been (or upon delivery will have been) duly executed by the Company and, when delivered in accordance with the terms hereof, will constitute the valid and binding obligation of the Company enforceable against the Company in accordance with its terms.

(b) No Conflicts. The execution, delivery and performance of the Transaction Documents to which the Company is a party by the Company and the consummation of the Transactions do not and will not (i) conflict with or violate any provision of the Company’s or any Subsidiary’s certificate or articles of incorporation, bylaws or other organizational or charter documents, or (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument (evidencing a Company or Subsidiary debt or otherwise) or other understanding to which the Company or any Subsidiary is a party or by which any property or asset of the Company or any Subsidiary is bound or affected after giving effect to the Series A Holders Consent and the Facilities Amendments (except for such conflicts, defaults, rights or violations as would not have a Material Adverse Effect), or (iii) result in a violation of any Law.

(c) Filings, Consents and Approvals. Neither the Company nor any Subsidiary is required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any Governmental Authority or other Person in connection with the execution or delivery by the Company of the Transaction Documents or the consummation of the Transactions, other than (i) approval of the Transactions by the Series A Holders; (ii) the filing of the Series B Certificate of Designations pursuant to Section 2.2(a)(ii); (iii) the filing with the Commission and the effectiveness of the registration statement pursuant to the Series B Preferred Stock Registration Rights Agreement; (iv) applicable Blue Sky filings; and (v) the consents, amendments and acknowledgements contemplated by Sections 2.2(a)(iv) and 2.2(a)(xi).

(d) Issuance of the Securities. The Securities are duly authorized and, when issued and paid for in accordance with the Transaction Documents, will be duly and validly issued, fully paid and nonassessable, free and clear of all Liens and not subject to preemptive rights or similar rights of stockholders. The Company has authorized and has reserved, and covenants to continue to reserve, a number of shares of Common Stock equal to at least the number of shares of Common Shares issuable upon conversion of the Shares and in satisfaction of any other obligation or right of the Company to issue Common Shares pursuant to the Transaction Documents, and in each case, any securities issued or issuable in exchange for or in respect of such securities (the “Underlying Shares”). The issuance of the Securities to the Purchaser will not subject the Purchaser to any liability or obligation of any kind in respect of or relating to the operation of the business of the Company.

(e) Certain Fees. Except as provided in Section 6.3 and as set forth in Schedule 3.1(e), no brokerage or finder’s fees or commissions are or will be payable by the Company based on arrangements made by the Company or any of its Affiliates or any Person on behalf of any of them to any broker, financial advisor or consultant, finder, placement agent, investment banker, bank or other Person with respect to the Transactions. The Purchaser shall not have any obligation based on any arrangements made by the Company or any of its Affiliates or any Person on behalf of any of them for fees or claimed fees of a type contemplated in this Section 3.1(e) that may be due in connection with the Transactions. The Company shall indemnify and hold harmless the Purchaser, its respective employees, officers, directors, agents, and partners, and their respective Affiliates, from and against all claims, Losses, damages, costs (including the costs of preparation and attorney’s fees) and expenses suffered in respect of any claimed or existing fees that are based on arrangements made by the Company or any of its Affiliates or any Person on behalf of any of them, as such fees and expenses are incurred.

(f) Private Placement. Neither the Company nor any Person acting on the Company’s behalf has sold or offered to sell or solicited any offer to buy the Securities by means of any form of general solicitation or advertising. Neither the Company nor any of its Affiliates nor any Person acting on the Company’s behalf has, directly or indirectly, at any time within the past six (6) months, made any offer or sale of any security or solicitation of any offer to buy any security under circumstances that would (i) eliminate the availability of the exemption from registration under Regulation D under the Securities Act in connection with the offer and sale of the Securities as contemplated hereby, or (ii) cause the offering of the Securities pursuant to the Transaction Documents to be integrated with prior offerings by the Company for purposes of any applicable Law or stockholder approval provisions, including, without limitation, under the rules and regulations of the Trading Market.

(g) Disclosure. The Company has provided all information requested by the Purchaser or its representatives and has not knowingly omitted to provide any materials relating to any such request.

3.2 Disclaimer of Other Representations and Warranties.

THE COMPANY HAS NOT MADE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, OF ANY NATURE WHATSOEVER RELATING TO THE COMPANY OR ANY OF ITS SUBSIDIARIES OR THE BUSINESS OF THE COMPANY OR ANY OF ITS SUBSIDIARIES OR OTHERWISE IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY, OTHER THAN THOSE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS.

3.3 Representations and Warranties of the Purchaser. The Purchaser hereby represents and warrants to the Company as of the Closing as follows:

(a) Organization; Authority. The Purchaser is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization with the requisite power and authority to enter into and to consummate the Transactions and otherwise to carry out its obligations thereunder. The execution, delivery and performance by the Purchaser of the Transaction Documents to which it is a party have been duly authorized by all necessary action on the part of the Purchaser and no further consent or action is required by the Purchaser in connection with the execution and delivery. Each of the Transaction Documents to which the Purchaser is a party has been duly executed by the Purchaser and, when delivered by the Purchaser in accordance with terms hereof will constitute the valid and legally binding obligation of the Purchaser, enforceable against it in accordance with its terms.

(b) No Conflicts. The execution, delivery and performance of the Transaction Documents by the Purchaser and the consummation of the Transactions do not and will not conflict with or violate any provision of the Purchaser’s certificate of incorporation or bylaws.

(c) Filings, Consents and Approvals. The Purchaser is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any Governmental Authority or other Person in connection with the execution or delivery by the Purchaser of the Transaction Documents to which it is a party or the consummation of the Transactions.

(d) Investment Intent. The Purchaser is acquiring the Securities as principal for its own account for investment purposes and not with a view to distributing or reselling such Securities or any part thereof in violation of applicable securities laws, without prejudice, however, to the Purchaser’s right at all times to sell or otherwise dispose of all or any part of such Securities in compliance with applicable federal and state securities laws. Nothing contained herein shall be deemed a representation or warranty by the Purchaser to hold the Securities for any period of time. The Purchaser understands that the Securities have not been registered under the Securities Act, and therefore the Securities may not be sold, assigned or transferred in the U.S. other than pursuant to (i) an effective registration statement under the Securities Act or (ii) an exemption from such registration requirements. The Purchaser acknowledges that it is able to bear the financial risks associated with an investment in the Shares and that it has received such information as it has deemed necessary or appropriate to conduct its due diligence investigation and has sufficient knowledge and experience in investing in companies similar to the Company so as to be able to evaluate the risks and merits of its investment in the Company.

(e) Certain Fees. Except as provided in Section 6.3, no brokerage or finder’s fees or commissions are or will be payable by the Purchaser based on any arrangements made by the Purchaser or any of its Affiliates or any Person on behalf of any of them to any broker, financial advisor or consultant, finder, placement agent, investment banker, bank or other Person with respect to the Transactions. The Company shall not have any obligation based on any arrangements made by the Purchaser or any of its Affiliates or any Person on behalf of any of them for fees or claimed fees of a type contemplated in this Section 3.3(e) that may be due in connection with the Transactions. The Purchaser shall indemnify and hold harmless the Company, its employees, officers, directors, agents, and partners, and their respective Affiliates, from and against all claims, Losses, damages, costs (including the costs of preparation and attorney’s fees) and expenses suffered in respect of any claimed or existing fees based on any arrangement made by such Purchaser or any of its Affiliates or any Person on behalf of any of them, as such fees and expenses are incurred.

(f) Purchaser Status. The Purchaser is an “accredited investor” within the meaning of Rule 501(a) of Regulation D under the Securities Act.

(g) General Solicitation. The Purchaser is not purchasing the Securities as a result of any advertisement, article, notice or other communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or any other general solicitation or general advertisement.

(h) Reliance on Exemptions. The Purchaser understands that the Securities are being offered and sold to it in reliance on specific exemptions from the registration requirements of U.S. federal and state securities Laws and that the Company is relying in part upon the truth and accuracy of, and the Purchaser’s representations and warranties set forth herein in order to determine the availability of such exemptions and the eligibility of such Purchaser to acquire the Securities.

ARTICLE IV

OTHER AGREEMENTS OF THE PARTIES

4.1 Transfer Restrictions.

(a) Securities may only be disposed of pursuant to an effective registration statement under the Securities Act or pursuant to an available exemption from the registration requirements of the Securities Act, and in compliance with any applicable state securities laws. In connection with any transfer of Securities other than pursuant to an effective registration statement or to the Company or pursuant to Rule 144, except as otherwise set forth herein, the Company may require the transferor to provide to the Company an opinion of counsel selected by the transferor, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration under the Securities Act. Notwithstanding the foregoing, the Company hereby consents to and agrees to register on the books of the Company and with its transfer agent, without any such legal opinion, any transfer of Securities by the Purchaser to an Affiliate of the Purchaser.

(b) The Purchaser agrees to the imprinting on any certificate evidencing Securities, except as otherwise permitted by Section 4.1(c), of a restrictive legend in substantially the form as follows, together with any additional legend required by (i) any applicable state securities laws and (ii) any Trading Market upon which such Securities may be listed:

“THESE 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 IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), 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. NOTWITHSTANDING THE FOREGOING, THESE SECURITIES AND THE SECURITIES ISSUABLE UPON CONVERSION OF THESE SECURITIES MAY BE PLEDGED TO AN “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(A) UNDER THE SECURITIES ACT IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT SECURED BY SUCH SECURITIES.”

(c)Certificates evidencing Securities shall not be required to contain such legend or any other legend (i) while a registration statement covering the resale of such Securities is effective under the Securities Act, and (ii) following any sale of such Securities pursuant to Rule 144, or (iii) if such legend is not required under applicable requirements of the Securities Act (including judicial interpretations and pronouncements issued by the staff of the Commission). Following the Effectiveness Date (as such term is defined in the Series B Preferred Stock Registration Rights Agreement) or at such earlier time as a legend is no longer required for certain Securities, the Company will, no later than three (3) Trading Days following the delivery by the Purchaser to the Company or the Company’s transfer agent of a legended certificate representing such Securities, deliver or cause to be delivered to the Purchaser a certificate representing such Securities that is free from all restrictive and other legends. Except as may be required to comply with a change in law, the Company may not make any notation on its records or give instructions to any transfer agent of the Company that enlarge the restrictions on transfer set forth in this Section 4.1(c).

(d)The Company acknowledges and agrees that the Purchaser may from time to time pledge or grant a security interest in some or all of the Securities in connection with a bona fide margin agreement or other loan or financing arrangement secured by the Securities and, if required under the terms of such agreement, loan or arrangement, the Purchaser may transfer pledged or secured Securities to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. From and after the Effectiveness Date, at the Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of Securities may reasonably request in connection with a pledge or transfer of the Securities, including the preparation and filing of any required prospectus supplement under Rule 424(b)(3) of the Securities Act or other applicable provision of the Securities Act to appropriately amend the list of “Selling Stockholders” thereunder.

4.2 Furnishing of Information. The Company covenants that it will take such action as any holder of Securities may reasonably request, all to the extent required from time to time to enable such Person to sell such Securities without registration under the Securities Act, within the limitations of the exemptions provided by Rule 144.

4.3 Integration. The Company shall not, and shall use its best efforts to ensure that no Affiliate of the Company shall, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in Section 2 of the Securities Act) that would be integrated with the offer or sale of the Securities in a manner that would require the registration under the Securities Act of the sale of the Securities to the Purchasers, or that would be integrated with the offer or sale of the Securities for purposes of the rules and regulations of the Trading Market.

4.4 Indemnification. (a) To the fullest extent lawful, subject to the limitations in Section 4.4(b), the Company shall indemnify and hold harmless the Purchaser and Related Persons from and against any and all Losses, as incurred, directly or indirectly arising out of, based upon or relating to (i) any breach by the Company of any of the representations, warranties, covenants or other agreements made by the Company in any of the Transaction Documents, or any allegation by a third party that, if true, would constitute such a breach, or (ii) any Proceeding brought by or against any Person, directly or indirectly, in connection with or as a result of any of the Transactions. The indemnification and expense reimbursement obligations of the Company under this paragraph shall be in addition to any liability that the Company may otherwise have and shall be binding upon and inure to the benefit of any of the respective successors, assigns, heirs and personal representatives of the Purchaser and any such Related Persons. If the Company breaches its obligations under any Transaction Document, then, in addition to any other liabilities the Company may have under any Transaction Document or applicable Law, the Company shall pay or reimburse the Purchaser on demand for all costs of collection and enforcement incurred by the Purchaser (including reasonable attorneys fees and expenses). Without limiting the generality of the foregoing, the Company specifically agrees to reimburse the Purchaser on demand for all costs of the Purchaser incurred (i) in enforcing the indemnification obligations in this Section 4.4, and (ii) in connection with the amendment, modification or supplementation of any Transaction Document.

(b) The Company shall not be required to indemnify any Purchaser or any Related Persons for any Persons pursuant to Section 4.4(a)(i) for Losses arising from breaches of representations, warranties, covenants or other agreements made by the Company (i) unless the aggregate of all Losses for which the Company would, but for this Section 4.4(b)(i), be liable exceeds $100,000 on a cumulative basis (and then from the first dollar); and (ii) to the extent such Losses are in excess of the aggregate proceeds to the Company paid by the Purchaser under all of the provisions of this Agreement. The amount of any Losses incurred by the Purchaser or any Related Person shall be reduced by the net amount the Purchaser or Related Party receives (after deducting all reasonable attorneys' fees, expenses and other costs of recovery) from any insurer of the Company pursuant to a policy held by the Company or other party liable for such Losses.

ARTICLE V

CONDITIONS

5.1 [Omitted].

ARTICLE VI

MISCELLANEOUS

6.1 [Omitted].

6.2 [Omitted].

6.3 Fees and Expenses. The Company shall pay to the Purchaser upon the Closing the legal, accounting, consulting, travel and all other out-of-pocket expenses incurred by the Purchaser and Purchaser Counsel in connection with the preparation and negotiation of the Transaction Documents and otherwise in connection with the Transactions (the “Fees and Expenses”). The Company shall pay all transfer agent fees, stamp taxes and other taxes and duties levied in connection with the issuance of any Securities.

6.4 [Omitted].

6.5 Entire Agreement. The Transaction Documents, together with the exhibits and schedules thereto and the other agreements referenced herein or therein, contain the entire understanding of the parties with respect to the subject matter hereof and supersede all prior agreements and understandings, oral or written, with respect to such matters, which the parties acknowledge have been merged into such documents, exhibits and schedules. At or after the Closing, and without further consideration, each Party will execute and deliver to the other Party such further documents as may be reasonably requested in order to give practical effect to the intention of the parties under the Transaction Documents. Each Party acknowledges that the other Party has made any representations, warranties, promises or commitments other than as set forth in the Transaction Documents, including any promises or commitments for any additional investment by such Party.

6.6 Notices. Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall be deemed given and effective on the earliest of (i) the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number specified in this Section 6.6 prior to 5:00 p.m. (New York City time) on a Trading Day, (ii) the Trading Day after the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number specified in this Agreement later than 5:00 p.m. (New York City time) on any date and earlier than 11:59 p.m. (New York City time) on such date, (iii) the Trading Day following the date of sending, if sent by nationally recognized overnight courier service, specifying next business day delivery, or (iv) upon actual receipt by the party to whom such notice is required to be given if delivered by hand. The address for such notices and communications shall be as follows:

If to the Company:	WOLVERINE TUBE, INC.
	200 Clinton Avenue West, Suite 1000 Huntsville, Alabama 35801
	Attn: David Owen
	Phone: (256) 580-3500 Fax: (256) 580-3996

If to a Purchaser:	To the address set forth under the Purchaser’s name on the signature pages attached hereto.

In each case, with a copy (which shall not constitute notice) to:	Proskauer Rose LLP 1585 Broadway New York, NY 10036-8299
	Facsimile No.: (212) 969-2900
	Attn: Ronald R. Papa, Esq. and Adam J. Kansler, Esq.

or such other address as may be designated in writing hereafter, in the same manner, by such Person by two (2) Trading Days’ prior notice to the other party in accordance with this Section 6.6.

6.7 Amendments; Waivers. No provision of this Agreement may be waived or amended except in a written instrument signed, in the case of an amendment, by the Company and the Purchaser, or, in the case of a waiver, by the Purchaser. Any waiver executed by the Purchaser shall be binding on the Company and all holders of Securities. No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of either party to exercise any right hereunder in any manner impair the exercise of any such right.

6.8 Construction. The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any of the provisions hereof. The language used in this Agreement will be deemed to be the language chosen by the Parties to express their mutual intent, and no rules of strict construction will be applied against either Party. The representations and warranties in this Agreement are the product of negotiations among the Parties and are for the sole benefit of the Parties. Any inaccuracies in such representations and warranties are subject to waiver by the Parties in accordance with this Agreement without notice or liability to any other Person. In some instances, the representations and warranties in this Agreement may represent an allocation among the Parties of risks associated with particular matters regardless of the knowledge of any of the Parties. Consequently, except as expressly provided in Section 4.4, Persons other than the Parties may not rely upon the representations and warranties in this Agreement as characterizations of actual facts or circumstances as of the date of this Agreement or as of any other date.

6.9 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns. The Company may not assign this Agreement or any rights or obligations hereunder without the prior written consent of the Purchaser. The Purchaser may from time to time assign its rights under this Agreement to any Person or Persons to whom such Purchaser assigns or transfers any Securities; provided such transferee agrees in writing to be bound, with respect to the transferred Securities, by the provisions hereof and of the applicable Transaction Documents that apply to the “Purchaser.”

6.10 No Third-Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective successors and permitted assigns and is not for the benefit of, nor may any provision hereof be enforced by, any other Person, except that each Related Person is an intended third party beneficiary of Section 4.4 and (in each case) may enforce the provisions thereof directly against the parties with obligations thereunder.

6.11 Governing Law; Venue; Waiver of Jury Trial. All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents shall be governed by and construed and enforced in accordance with the internal laws of the State of New York. Each party agrees that all Proceedings concerning the interpretations, enforcement and defense of the Transactions (whether brought against a party hereto or its respective affiliates, directors, officers, stockholders, employees or agents) shall be commenced exclusively in the state and U.S. federal courts sitting in the City of New York, Borough of Manhattan. Each party hereto hereby irrevocably submits to the exclusive jurisdiction of the state and U.S. 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 of the Transactions (including with respect to the enforcement of any of the Transaction Documents), and hereby irrevocably waives, and agrees not to assert in any Proceeding, any claim that it is not personally subject to the jurisdiction of any such court, or that such Proceeding is improper. Each party hereto hereby irrevocably waives personal service of process and consents to process being served in any such Proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by applicable Law. Each party hereto hereby irrevocably waives, to the fullest extent permitted by applicable Law, any and all right to trial by jury in any Proceeding arising out of or relating to any of the Transaction Documents or the Transactions. If any party shall commence a Proceeding to enforce any provisions of any Transaction Document, then the prevailing party in such Proceeding shall be reimbursed by the other party for its reasonable attorneys fees and other reasonable costs and expenses incurred with the investigation, preparation and prosecution of such Proceeding.

6.12 Survival. The representations, warranties, agreements and covenants contained herein shall survive the Closing and the delivery, exercise and/or conversion of the Securities, as applicable.

6.13 Execution. This Agreement may be executed in two (2) or more counterparts, all of which when taken together shall be considered one (1) and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party, it being understood that both parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) the same with the same force and effect as if such facsimile signature page were an original thereof.

6.14 Severability. If any provision of this Agreement is held to be invalid or unenforceable in any respect, the validity and enforceability of the remaining terms and provisions of this Agreement shall not in any way be affected or impaired thereby and the parties will attempt in good faith to agree upon a valid and enforceable provision that is a reasonable substitute therefor, and upon so agreeing, shall incorporate such substitute provision in this Agreement.

6.15 Adjustments in Share Numbers and Prices. In the event of any stock split, subdivision, dividend or distribution payable in Common Shares or Common Share Equivalents, combination or other similar recapitalization or event occurring after the date hereof, each reference in this Agreement to a number of shares or a price per share shall be amended to appropriately account for such event.

IN WITNESS WHEREOF, the parties hereto have caused this Series B Preferred Stock Purchase Agreement to be duly executed and delivered by their respective authorized signatories as of the date first indicated above.

WOLVERINE TUBE, INC.

By:	/s/ David A. Owen
	Name: David A. Owen
	Title: Chief Financial Officer

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK

SIGNATURE PAGE OF PURCHASER FOLLOWS.]

PURCHASER:

THE ALPINE GROUP, INC.

By:	/s/ K. Mitchell Posner
	Name: K. Mitchell Posner
	Title: Executive Vice President

Address for Notice:

One Meadowlands Plaza East Rutherford, New Jersey Phone: (201) 549-4400 Fax: (201) 549-4428 Attn: Steven S. Elbaum

ANNEX A

Series B Preferred Stock Purchase Agreement

“Affiliate” of a Person means any other Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with the first Person.

“Aggregate Purchase Price” has the meaning set forth in Section 2.1.

“Alkest” means Alkest, LLC, a Delaware limited liability company.

“Board” means the board of directors of the Company.

“Business Day” means any day except Saturday, Sunday and any day on which banking institutions in New York City are authorized or required by law or other governmental action to close.

“Closing” means the closing of the purchase and sale of the Shares pursuant to Section 2.1.

“Closing Date” has the meaning set forth in the Preamble.

“Commission” means the U.S. Securities and Exchange Commission.

“Common Share Equivalents” has the meaning ascribed thereto in the Series B Certificate of Designations.

“Common Shares” means the shares of Common Stock of the Company and any securities into which such shares may hereafter be reclassified.

“Common Stock” has the meaning set forth in the recitals to this Agreement.

“Company Counsel” means, collectively, (i) Jennifer Brinkley, Esq., the Company’s General Counsel, and Balch & Bingham LLP, counsel to the Company.

“Exchange Act” means the Securities Exchange Act of 1934, as amended.

“Facilities Amendments” has the meaning set forth in Section 2.2(a)(xi).

“Fees and Expenses” has the meaning set forth in Section 6.3.

“Governmental Authority” means any government or quasi-governmental or political subdivision or any agency, authority, bureau, central bank, commission, department or instrumentality, self-regulatory entity or any court, tribunal, grand jury or arbitrator, in each case whether foreign or domestic.

“Laws” means any federal, state, local, municipal or other law, common law, rule, regulation, order, judgment, injunction, decree, code, ordinance, ruling, policy, guideline or common, decision, arbitral or administrative law or principle of law or equity or other restriction of any Governmental Authority to which the Company or a Subsidiary is subject (including federal and state securities laws and regulations), or by which any property or asset of the Company or a Subsidiary is bound or affected.

A-1

“Lien” means any lien, charge, claim, security interest, encumbrance, right of first refusal or other restriction.

“Losses” means any and all damages, fines, penalties, deficiencies, liabilities, claims, losses (including loss of value), judgments, awards, settlements, taxes, actions, obligations and costs and expenses in connection therewith (including, without limitation, interest, court costs and fees and expenses of attorneys, accountants and other experts, and any other expenses of litigation or other Proceedings (including costs of investigation, preparation and travel) or of any default or assessment), but not including punitive damages unless such punitive damages are awarded to a Person in a Third Party Claim.

“Material Adverse Effect” means any event, occurrence, fact, circumstance, violation, development or change, that, individually or in the aggregate with any other event, occurrence, fact, circumstance, violation, development or change, has had or could reasonably be expected to have: (i) a material adverse effect on the legality, validity or enforceability of any Transaction Document, or (ii) a material adverse effect on the results of operations, assets, business, prospects or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole, or (iii) a material impairment of the Company’s or any Subsidiary’s ability to perform fully on a timely basis its obligations under any Transaction Document; provided, however, that “Material Adverse Effect” shall exclude any such effect arising out of or in connection with: (A) general economic or business conditions or changes therein, including changes in interest or currency rates or commodity prices, or any act of terrorism, similar calamity or war or any escalation or worsening of the same; provided that in each case no such condition, change or act disproportionately affects the Company; or (B) the negotiation, execution, announcement or existence or terms of this Agreement or the performance of this Agreement or the consummation of the transactions contemplated hereby (including any occurrence or condition arising out of the identity of or facts relating to the Purchaser).

“Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, Governmental Authority (or an agency or subdivision thereof) or other entity of any kind.

“Plainfield” means Plainfield Asset Management LLC and any permitted successor or assignee thereof.

“Proceeding” means an action, claim, suit, grievance, arbitration, complaint, inquiry, notice of violation, investigation or proceeding (including, without limitation, an investigation or partial proceeding, such as a deposition).

“PSSMF” means Plainfield Special Situations Master Fund Limited, a Cayman Island entity.

“Purchaser Counsel” means Proskauer Rose LLP, counsel to the Purchaser.

“Related Person” means any Affiliate of the Purchaser and any officer, director, partner, advisor, controlling person, employee or agent of the Purchaser or any of their respective Affiliates.

“Rule 144” and “Rule 424” means Rule 144 and Rule 424, respectively, promulgated by the Commission pursuant to the Securities Act, as such Rules may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule.

A-2

“Securities” means the Shares and the Underlying Shares issued or issuable (as applicable) to the Purchaser pursuant to the Transaction Documents.

“Securities Act” means the Securities Act of 1933, as amended.

“Series A Certificate of Designations” means the Certificate of Designations of Series A Preferred Stock of the Company.

“Series A Holders” means holders of the Series A Preferred Stock.

“Series A Holders Consent” means that certain Series A Holders Consent and Agreement, dated as of the Closing Date, by and among the Series A Holders, the Company and the Purchaser, substantially in the form of Exhibit C, as the same may be amended, modified or supplemented from time to time.

“Series A Preferred Stock” means the series of convertible preferred stock of the Company designated as the Series A Preferred Stock in the Series A Certificate of Designations.

“Series B Certificate of Designations” has the meaning set forth in the recitals to this Agreement.

“Series B Preferred Stock” has the meaning set forth in the recitals to this Agreement.

“Series B Preferred Stock Registration Rights Agreement” means that certain Registration Rights Agreement dated as of the Closing Date, by and between the Company and the Purchaser, substantially in the form of Exhibit B, as the same may be amended, modified or supplemented from time to time.

“Shares” means the shares of Series B Preferred Stock which are being purchased by the Purchaser pursuant to this Agreement.

“Stockholders’ Agreement Supplement” means that certain Stockholders’ Agreement Supplement, dated as of the Closing Date, by and among Purchaser, PSSMF and Alkest, substantially in the form of Exhibit D, as the same may be amended, modified or supplemented from time to time.

“Subsidiary” means any corporation (or other legal entity) of which at least a majority of the outstanding capital stock having voting power under ordinary circumstances to elect directors of such corporation shall at the time be held, directly or indirectly, by the Company, by the Company and one or more Subsidiaries or by one or more Subsidiaries.

“Third Party Claim” means the assertion of any claim or demand made by, or any action, proceeding or investigation instituted by, any Person not a party to this Agreement.

“Trading Day” means (a) any day on which the Common Shares are listed or quoted and traded on a Trading Market, or (b) if the Common Shares are not then listed or quoted and traded on a Trading Market, then any Business Day.

“Trading Market” means the New York Stock Exchange or, at any time the Common Shares are not listed for trading on the New York Stock Exchange, any other national securities exchange, other trading market or quotation system, if the Common Shares are then listed or quoted on such exchange, market or system.

A-3

“Transaction Documents” means this Agreement, the Series B Certificate of Designations, the Securities, the Series B Preferred Stock Registration Rights Agreement, the Voting Agreement Amendment, the Stockholders’ Agreement Supplement, the Series A Holders Consent and any other documents or agreements executed in connection with the transactions contemplated by this Agreement.

“Transactions” means the transactions contemplated by the Transaction Documents.

“Underlying Shares” has the meaning set forth in Section 3.1(d).

“U.S.” means the United States of America.

“Voting Agreement Amendment” means that certain Voting Agreement Amendment, dated as of the Closing Date, by and among the Company, the Purchaser, PSSMF and Alkest, substantially in the form of Exhibit E, as the same may be amended, modified or supplemented from time to time.

A-4

EX-9 3 v108054_ex9.htm Unassociated Document

EXECUTION VERSION

WOLVERINE TUBE, INC.

CERTIFICATE OF DESIGNATIONS

SERIES B CONVERTIBLE PREFERRED STOCK

(Pursuant to Section 151 of the Delaware General Corporation Law)

Wolverine Tube, Inc., a Delaware corporation (the “Corporation”), in accordance with the provisions of Section 103 of the Delaware General Corporation Law (the “DGCL”) does hereby certify that, in accordance with Section 141(b) of the DGCL, the following resolution was duly adopted by the Board of Directors of the Corporation as of March 7, 2008:

RESOLVED, that the Board of Directors (the “Board”) of the Corporation pursuant to authority expressly vested in it by the provisions of the Restated Certificate of Incorporation of the Corporation, hereby authorizes the issuance of a series of preferred stock designated as the Series B Convertible Preferred Stock, par value $1.00 per share, of the Corporation and hereby fixes the designation, number of shares, powers, preferences, rights, qualifications, limitations and restrictions thereof (in addition to any provisions set forth in the Restated Certificate of Incorporation of the Corporation which are applicable to the Preferred Stock of all classes and series) as follows:

SERIES B CONVERTIBLE PREFERRED STOCK

1. Designation, Amount and Par Value. There is hereby designated a series of the Corporation’s preferred stock as Series B Convertible Preferred Stock (the “Series B Preferred Stock”), and the number of shares so designated shall be 25,000. Each share of Series B Preferred Stock shall have a par value of $1.00 per share. The “Stated Value” for each share of Series B Preferred Stock shall equal $1,000.00.

2. Definitions. In addition to the terms defined elsewhere in this Certificate of Designations the following terms have the meanings indicated:

“Bankruptcy Event” means any of the following events: (a) the Corporation or a Subsidiary of the Corporation commences a case or other proceeding under any bankruptcy, reorganization, arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or liquidation or similar law of any jurisdiction relating to the Corporation or any Subsidiary thereof; (b) there is commenced against the Corporation or any Subsidiary any such case or proceeding that is not dismissed within 60 days after commencement; (c) the Corporation or any Subsidiary is adjudicated insolvent or bankrupt or any order of relief or other order approving any such case or proceeding is entered; (d) the Corporation or any Subsidiary suffers any appointment of any custodian or the like for it or any substantial part of its property that is not discharged or stayed within 60 days; (e) the Corporation or any Subsidiary makes a general assignment for the benefit of creditors; (f) the Corporation or any Subsidiary fails to pay, or states that it is unable to pay or is unable to pay, its debts generally as they become due; (g) the Corporation or any Subsidiary calls a meeting of its creditors with a view to arranging a composition, adjustment or restructuring of its debts; or (h) the Corporation or any Subsidiary, by any act or failure to act, expressly indicates its consent to, approval of or acquiescence in any of the foregoing or takes any corporate or other action for the purpose of effecting any of the foregoing.

“Business Day” means any day except Saturday, Sunday and any day on which banking institutions in New York City are authorized or required by law or other governmental action to close.

“Cash End Availability” means all cash and financing available to the Corporation for the payment of dividends, including without limitation resulting from any accounts receivable financing or securitization, proceeds from the issuance of Series B Preferred Stock and any other capital stock or other securities issued by the Corporation for cash.

“Commission” means the United States Securities and Exchange Commission.

“Common Share Equivalents” has the meaning ascribed thereto in Section 15(d).

“Common Stock” means the common stock of the Corporation, par value $0.01 per share, and any securities into which such common stock may hereafter be reclassified.

“Continuing Director” means (i) any individual who is a member of the Board on the date of execution of the Purchase Agreement and (ii) any individual who is appointed to the Board or nominated for election to the Board by other Continuing Directors.

“Conversion Price” shall equal $1.10 as adjusted for stock dividends, stock splits, stock combinations or other similar events and as adjusted pursuant to the terms of this Certificate of Designations.

“Equity Conditions” means, with respect to all shares of Common Stock issuable upon conversion of the Series B Preferred Stock, that each of the following conditions is satisfied: (i) the number of authorized but unissued and otherwise unreserved shares of Common Stock is sufficient for such issuance; and (ii) such shares of Common Stock are registered for resale by the Holders and may be sold by the Holders pursuant to an effective registration statement under the Securities Act or all such shares may be sold without volume restrictions pursuant to Rule 144(k) under the Securities Act.

“Exchange Act” means the Securities Exchange Act of 1934, as amended.

“Excluded Stock” means (a) any Common Stock or Common Share Equivalents, restricted stock, stock options or stock appreciation rights issued or issuable to employees, consultants or directors of the Corporation pursuant to a stock option plan, stock purchase plan, stock bonus plan, deferred compensation plan, employee benefit plan or management grant (“Incentives”), in each case as in effect on the date of the Purchase Agreement or as approved by the Board (including any Directors elected by the Holders voting separately as a class) after the date of the Purchase Agreement, and shares of Common Stock issued or issuable upon the exercise of any of the foregoing Incentives and (b) Common Stock or Common Share Equivalents issued or issuable in connection with a bona fide business acquisition by the Corporation of another company or entity, not principally for the purpose of acquiring cash.

“Fundamental Transaction” means the occurrence of any of the following in one or a series of related transactions: (i) an acquisition after the date of the Purchase Agreement by an individual or legal entity or “group” (as described in Rule 13d-5(b)(1) under the Exchange Act) of fifty percent or more of the voting rights or voting equity interests in the Corporation; (ii) Continuing Directors cease to constitute more than one-half of the members of the Board; (iii) a merger or consolidation of the Corporation or any Subsidiary or a sale of all or substantially all of the assets of the Corporation or any Subsidiary in one or a series of related transactions, unless following such transaction or series of transactions, the holders of the Corporation’s securities prior to the first such transaction continue to hold at least one-half of the voting rights or voting equity interests in of the surviving entity or acquirer of such assets; (iv) a recapitalization, reorganization or other transaction involving the Corporation or any Subsidiary that constitutes or results in a transfer of more than one-half of the voting rights or voting equity interests in the Corporation; (v) consummation of a “Rule 13e-3 transaction” as defined in Rule 13e-3 under the Exchange Act with respect to the Corporation; (vi) any tender offer or exchange offer (whether by the Corporation or another Person) is completed pursuant to which holders of Common Stock are permitted to tender or exchange their shares for other securities, cash or property and as a result of which the Persons who own Common Stock immediately prior to the launch of such tender offer or exchange offer do not own a majority of the outstanding equity interests of the Corporation, directly or indirectly, immediately after the consummation thereof; (vii) the Corporation effects any reclassification of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property; or (viii) the execution by the Corporation of an agreement directly or indirectly providing for any of the foregoing events.

“Holder” means any holder of Series B Preferred Stock.

“Indebtedness” of any Person means (a) all indebtedness representing money borrowed which is created, assumed, incurred or guaranteed in any manner by such Person or for which such Person is responsible or liable (whether by guarantee of such indebtedness, agreement to purchase indebtedness of, or to supply funds to or invest in, others or otherwise), (b) any direct or contingent obligations of such Person arising under any letter of credit (including standby and commercial), bankers acceptances, bank guaranties, surety bonds and similar instruments, and (c) all indebtedness pursuant to clauses (a) and (b) above of another entity secured by any lien existing on property or assets owned by such Person.

“Involuntary Change of Control” means any Fundamental Transaction not approved by at least five (5) members of the Board.

“Junior Securities” means the Common Stock and all other equity or equity equivalent securities of the Corporation.

“Liquidation Event” means any liquidation, dissolution or winding up of the Corporation, either voluntary or involuntary.

“Original Issue Date” means the date of the first issuance of any shares of the Series B Preferred Stock, regardless of the number of transfers of any particular shares of Series B Preferred Stock and regardless of the number of certificates that may be issued to evidence shares of Series B Preferred Stock.

“Person” means any individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.

“Purchase Agreement” means the Preferred Stock Purchase Agreement, dated as of March , 2008, among the Corporation and the purchasers of the Series B Preferred Stock, as amended from time to time.

“Registration Rights Agreement” means the Registration Rights Agreement, dated as of the date of the Purchase Agreement, among the Corporation and the Holders.

“Rule 144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule.

“Securities Act” means the Securities Act of 1933, as amended.

“Series A Certificate of Designations” means the Certificate of Designations of Series A Convertible Preferred Stock, par value $1.00 per share, of the Corporation as in effect on the date hereof.

“Series A Holders” means any holder of Series A Preferred Stock.

“Series A Preferred Stock” means the Series A Convertible Preferred Stock, par value $1.00 per share, of the Corporation.

“Series A Preferred Stock Liquidation Preference” has the meaning ascribed thereto in Section 6 of the Series A Certificate of Designations.

“Subsidiary” means any significant subsidiary of the Corporation as defined in Rule 1-02(w) of Regulation S-X promulgated by the Commission.

“Trading Day” means (a) any day on which the Common Stock is listed or quoted and traded on a Trading Market, or (b) if the Common Stock is not then listed or quoted and traded on a Trading Market, then any Business Day.

“Trading Market” means the New York Stock Exchange or, at any time the Common Stock is not listed for trading on the New York Stock Exchange, any other national securities exchange, other trading market or quotation system, if the Common Stock is then listed or quoted on such exchange, market or system.

“Transaction Documents” means the Purchase Agreement, the Registration Rights Agreement, this Certificate of Designations and any other documents or agreements executed or delivered in connection with the transactions contemplated under the Purchase Agreement.

“2009 Indenture” means that certain Indenture, dated as of March 27, 2002, by the Corporation, the subsidiary guarantors described therein and U.S. Bank Corporate Trust Services (successor to First Union National Bank), as Trustee.

“Underlying Shares” means the shares of Common Stock issuable upon conversion of the shares of Series B Preferred Stock and in satisfaction of any other obligation of the Corporation to issue shares of Common Stock pursuant to the Transaction Documents.

3. Registration of Issuance and Ownership of Series B Preferred Stock. The Corporation shall register the issuance and ownership of shares of the Series B Preferred Stock, upon records to be maintained by the Corporation for that purpose (the “Series B Preferred Stock Register”), in the name of the record Holders thereof from time to time. The Corporation may deem and treat the registered Holder of shares of Series B Preferred Stock as the absolute owner thereof for the purpose of any conversion hereof or any distribution to such Holder, and for all other purposes, absent actual notice to the contrary.

4. Registration of Transfers. The Corporation shall register the transfer of any shares of Series B Preferred Stock in the Series B Preferred Stock Register, upon surrender of certificates evidencing such shares to the Corporation at its address specified herein. Upon any such registration or transfer, a new certificate evidencing the shares of Series B Preferred Stock so transferred shall be issued to the transferee and a new certificate evidencing the remaining portion of the shares not so transferred, if any, shall be issued to the transferring Holder.

5. Dividends.

(a) Each Holder shall be entitled to receive, and the Corporation shall pay, cumulative dividends on the Series B Preferred Stock at the rate per share (as a percentage of the Stated Value per share, plus any accumulated and unpaid dividends per share) of 8.50% per annum (subject to adjustment pursuant to Sections 5(b) and 5(g) below), compounded quarterly and payable quarterly in arrears commencing on April 30, 2008 and thereafter on each July 31, October 31, January 31 and April 30, except if such date is not a Trading Day, in which case such dividend shall be payable on the next succeeding Trading Day (each, a “Dividend Payment Date”). Dividends on the Series B Preferred Stock shall be calculated on the basis of a 360-day year that has been divided into four 90-day quarters, shall accrue daily commencing on the Original Issue Date for such Series B Preferred Stock, and shall be deemed to accrue from such date whether or not earned or declared and whether or not there are profits, surplus or other funds of the Corporation legally available for the payment of dividends.

(b) Subject to the conditions and limitations in Section 5(c) below, the Corporation may elect, by written notice to the holders of Series B Preferred Stock, to defer the payment of dividends otherwise payable on any Dividend Payment Date. In the event of any dividend deferral, or if any accrued dividends remain unpaid, the amount of the dividends payable per share of Series B Preferred Stock on such Dividend Payment Date on which the dividends would otherwise have been paid, or any subsequent Dividend Payment Date until such deferred dividends have been paid, shall be: (i) determined based upon the dividends on the Series B Preferred Stock having accumulated during the preceding quarter (or other measurement period) at the rate per share (as a percentage of the Stated Value per share plus all previously accrued and unpaid dividends on such share) of (x) 10.50% per annum for any Dividend Payment Date occurring prior to January 31, 2012 (or, if such date is not a Trading Day, the next succeeding Trading Day), and (y) 12.50% per annum for any Dividend Payment Date occurring subsequent to January 31, 2012 (or, if such date is not a Trading Day, the next succeeding Trading Day); and (ii) compounded as of such quarterly Dividend Payment Date and remain accrued and unpaid until the subsequent payment thereof by the Corporation.

(c) The Corporation may elect to defer a dividend payment otherwise payable on a Dividend Payment Date only if and to the extent the Cash End Availability is less than the amount of the dividend payable on the Dividend Payment Date, as determined in good faith by a majority of the members of the Board other than any director affiliated with or nominated by any Holder.

(d) On each Dividend Payment Date, to the extent that there is Cash End Availability, the Corporation shall pay, pro rata on a share for share basis among the Holders of Series B Preferred Stock and the Series A Holders as if the Series A Preferred Stock and Series B Preferred Stock were a single class, any accrued and unpaid dividends, with the dividends that have remained unpaid longest being paid first, until all accrued and unpaid dividends have been paid. In addition, all accrued and unpaid dividends on each share of Series B Preferred Stock shall be paid upon the earlier to occur of (i) a Liquidation Event, or (ii) conversion of such share of Series B Preferred Stock.

(e) So long as any shares of Series B Preferred Stock are outstanding: (i) neither the Corporation nor any Subsidiary shall, directly or indirectly, redeem, purchase or otherwise acquire any Junior Securities or set aside any monies for such a redemption, purchase or other acquisition, and (ii) the Corporation shall not pay or declare any dividend or make any distribution on any Junior Securities, except pro rata stock dividends on the Common Stock payable in additional shares of Common Stock and dividends due and paid in the ordinary course on the Series B Preferred Stock.

(f) No dividends shall be paid on the Series B Preferred Stock as a separate class other than the dividends provided in this Section 5.

(g) Notwithstanding anything to the contrary, in the event that at any time after June 30, 2008, the Equity Conditions are not satisfied (or waived in writing by the applicable Holder) on each Trading Day within a given quarter preceding a Dividend Payment Date with respect to all of the Underlying Shares then issuable upon conversion in full of all outstanding Series B Preferred Stock, the dividend rate at that Dividend Payment Date shall be deemed to have been increased by 50 basis points for the dividend period preceding that quarter, up to a maximum aggregate increase pursuant to this Section 5(g) of 200 basis points. Following such adjustment(s) and upon satisfaction of the Equity Conditions (or waiver in writing by the applicable Holder) with respect to all of the Underlying Shares then issuable upon conversion in full of all outstanding Series B Preferred Stock, the dividend rate shall be returned to the rate in effect before giving effect to adjustments under this Section 5(g) (until any subsequent failure).

6. Liquidation.

(a) Upon the occurrence of any Liquidation Event, the Holders shall be entitled to receive, prior and in preference to any distribution of any of the assets or funds of the Corporation to the holders of Junior Securities by reason of their ownership thereof, an amount per share in cash equal to the greater of (i) the Stated Value for each share of Series B Preferred Stock then held by them (as adjusted for any stock split, stock dividend, stock combination or other similar transactions with respect to the Series B Preferred Stock), plus all accrued but unpaid dividends on such Series B Preferred Stock as of the date of such event, and (ii) the amount per share that would be payable to a Holder (including without limitation the payment of all accrued but unpaid dividends) had all shares of Series B Preferred Stock been converted to Underlying Shares immediately prior to such Liquidation Event (the “Series B Preferred Stock Liquidation Preference”). If, upon the occurrence of a Liquidation Event, the assets and funds thus distributed among the Holders shall be insufficient to permit the payment to such Holders of the full Series B Preferred Stock Liquidation Preference, then the entire assets and funds of the Corporation legally available for distribution shall be distributed ratably on a share for share basis among the Holders and the Series A Holders as if the Series A Preferred Stock and Series B Preferred Stock were a single class in proportion to the aggregate Series B Preferred Stock Liquidation Preference and the Series A Preferred Stock Liquidation Preference that would otherwise be payable to each of such Holders and the Series A Holders, respectively.

(b) Upon the occurrence of a Liquidation Event, following completion of the distributions required by the first sentence of Section 6(a), if assets or surplus funds remain in the Corporation, the holders of the Common Stock and other Junior Securities shall share in all remaining assets of the Corporation.

(c) The Corporation shall provide written notice of any Liquidation Event or Fundamental Transaction to each record Holder not less than 45 days prior to the payment date or effective date thereof. Unless a Holder otherwise notifies the Corporation, which notice must be delivered prior to the effective date of a Fundamental Transaction (or, if later, within five (5) Trading Days after such Holder receives notice of such Fundamental Transaction from the Corporation), such Fundamental Transaction will be treated as a Liquidation Event with respect to such Holder for the purposes of this Section 6. Notwithstanding anything in this Certificate of Designations of Series B Convertible Preferred Stock to the contrary, for so long as the Corporation’s 10.5% Senior Notes due 2009 remain outstanding, the Corporation shall have no obligation with respect to any Fundamental Transaction referred to in this Section 6 unless the Corporation has fully satisfied all of its obligations under Sections 4.06 and 4.10 of the 2009 Indenture.

(d) In the event that, immediately prior to the closing of a Liquidation Event that is not a Fundamental Transaction, the cash distributions required by Section 6(a) have not been made, the Corporation shall forthwith either: (i) cause such closing to be postponed until such time as such cash distributions have been made; or (ii) cancel such transaction, in which event the rights, preferences and privileges of the Holders shall revert to and be the same as such rights, preferences and privileges existing immediately prior to the date of the first notice by the Corporation required under Section 6(c).

(e) For so long as 5,000 shares of Series B Preferred Stock remain outstanding, in the event that, immediately prior to the closing of a Liquidation Event that is a Fundamental Transaction, the cash distributions required by Section 6(a) have not been made, the Corporation shall forthwith either: (i) cause such closing to be postponed until such time as such cash distributions have been made; or (ii) cancel such transaction, in which event the rights, preferences and privileges of the Holders shall revert to and be the same as such rights, preferences and privileges existing immediately prior to the date of the first notice by the Corporation required under Section 6(c).

7. Conversion. At the option of any Holder, any shares of Series B Preferred Stock held by that Holder may be converted into Common Stock based on the Conversion Price then in effect for the Series B Preferred Stock. A Holder may convert shares of Series B Preferred Stock into Common Stock pursuant to this paragraph at any time and from time to time after the Original Issue Date, by delivering to the Corporation a conversion notice (the “Conversion Notice”), in the form attached hereto as Exhibit A, appropriately completed and duly signed, and the date any such Conversion Notice is delivered to the Corporation (as determined in accordance with the notice provisions hereof) is a “Conversion Date.”

8. Mechanics of Conversion.

(a) The number of Underlying Shares issuable upon any conversion of shares of Series B Preferred Stock hereunder shall equal the Stated Value of such shares of Series B Preferred Stock to be converted divided by the Conversion Price on the Conversion Date.

(b) Upon conversion of any shares of Series B Preferred Stock, the Corporation shall promptly (but in no event later than three (3) Trading Days after the Conversion Date) issue or cause to be issued and cause to be delivered to the Holder, or upon the written order of the Holder and in such name or names as the Holder may designate, a certificate or certificates for the Underlying Shares issuable upon such conversion, free of restrictive legends unless such Underlying Shares are still required to bear a restrictive legend. The Holder, or any Person so designated by the Holder to receive Underlying Shares, shall be deemed to have become holder of record of such Underlying Shares as of the Conversion Date. If the shares are then not required to bear a restrictive legend, the Corporation shall, upon request of the Holder, deliver Underlying Shares hereunder electronically through The Depository Trust Corporation or another established clearing corporation performing similar functions, and shall credit the number of shares of Common Stock to which the Holder shall be entitled to the Holder’s or its designee’s balance account with The Depository Trust Corporation through its Deposit Withdrawal Agent Commission System.

(c) A Holder shall deliver the original certificate(s) evidencing the Series B Preferred Stock being converted (or an affidavit of lost certificate and any indemnity or bond required by the Corporation’s transfer agent) together with a duly completed Conversion Notice in proper form in order to effect a conversion of such Series B Preferred Stock. Upon surrender of a certificate following one or more partial conversions, the Corporation shall promptly deliver to the Holder a new certificate representing the remaining shares of Series B Preferred Stock.

(d) The Corporation’s obligations to issue and deliver Underlying Shares upon conversion of Series B Preferred Stock in accordance with the terms hereof are absolute and unconditional, irrespective of any action or inaction by any Holder to enforce the same, any waiver or consent with respect to any provision hereof, the recovery of any judgment against any Person or any action to enforce the same, or any setoff, counterclaim, recoupment, limitation or termination, or any breach or alleged breach by any Holder or any other Person of any obligation to the Corporation or any violation or alleged violation of law by any Holder or any other Person, and irrespective of any other circumstance which might otherwise limit such obligation of the Corporation to any Holder in connection with the issuance of such Underlying Shares.

9. Redemption.

(a) On the earlier to occur of (x) an Involuntary Change of Control and (y) January 31, 2017 (the date of such earlier event, the “Mandatory Redemption Date”), the Corporation shall redeem all of the then outstanding Series B Preferred Stock at a price equal to 100% of the Stated Value of such shares of Series B Preferred Stock, plus all accrued but unpaid dividends thereon to the date of payment, in cash (the “Redemption Price”). The Corporation shall provide each Holder not less than 60 days prior written notice of the Mandatory Redemption Date. The terms of this section may be waived by a Holder with respect to the shares of Series B Preferred Stock held by that Holder in the event of a Mandatory Redemption Date in respect of clause (x) above but not in respect of clause (y).

(b) If the funds of the Corporation legally available to redeem shares of Series B Preferred Stock on the Mandatory Redemption Date are insufficient to redeem the total number of such shares required to be redeemed on such date or the Corporation is otherwise prohibited from redeeming the total number of such shares, the Corporation shall (i) take any action necessary or appropriate, to the extent reasonably within its control, to remove promptly any impediments to its ability to redeem the total number of shares of Series B Preferred Stock required to be so redeemed, including to the extent permissible under applicable law, reducing the stated capital of the Corporation or causing a revaluation of the assets of the Corporation under Section 154 of the DGCL to create sufficient surplus to make such redemption, and (ii) in any event, use any funds legally available to redeem the maximum possible number of such shares from the holders of such shares to be redeemed in proportion to the respective number of such shares that otherwise would have been redeemed if all such shares had been redeemed in full. At any time thereafter when additional funds of the Corporation are legally available to redeem such shares of Series B Preferred Stock, the Corporation shall immediately use such funds to redeem the balance of the shares that the Corporation becomes obligated to redeem on the Mandatory Redemption Date (but that it has not yet redeemed) at the Redemption Price. In the event that shares of Series B Preferred Stock required to be redeemed are not redeemed and continue to be outstanding, such shares shall continue to be entitled to dividends thereon as provided in Section 5 until the date on which the Corporation actually redeems such shares.

(c) Until the aggregate Redemption Price has been paid for all shares of Series B Preferred Stock being redeemed: (A) no dividend whatsoever shall be paid or declared, and no distribution shall be made, on any capital stock of the Corporation (other than dividends payable solely in Common Stock, the continued accrual of dividends as provided in this Certificate of Designations and the continued accrual of dividends as provided in the Series A Certificate of Designations); and (B) no shares of capital stock of the Corporation (other than the Series B Preferred Stock in accordance with this Section 9) shall be purchased, redeemed or acquired by the Corporation and no monies shall be paid into or set aside or made available for a sinking fund for the purchase, redemption or acquisition thereof; provided, however, to the extent any shares of Series A Preferred Stock are then outstanding, the Corporation’s obligation to redeem shares of Series B Preferred Stock in accordance with this Section 9 shall be deemed amended and modified to provide that the shares of Series B Preferred Stock and Series A Preferred Stock shall be redeemed ratably on a share for share basis in proportion to the aggregate Redemption Price and the aggregate redemption price of the Series A Preferred Stock (as provided in the Series A Certificate of Designations).

(d) If any shares of Series B Preferred Stock are not redeemed on the Mandatory Redemption Date for any reason, all such unredeemed shares shall remain outstanding and entitled to all the rights and preferences provided herein, and the Corporation shall pay interest on the Redemption Price and any dividend accruing after the Mandatory Redemption Date applicable to such unredeemed shares at an aggregate per annum rate equal to eighteen percent (18%) (increased by 1% at the end of each three (3) month period thereafter until the Redemption Price, and any interest thereon, is paid in full), with such interest to accrue daily in arrears and to be compounded quarterly; provided, that in no event shall such interest exceed the maximum permitted rate of interest under applicable law, and provided further that the Corporation shall make all filings necessary to raise such rate to the maximum permitted rate of interest under applicable law (the “Maximum Permitted Rate”). In the event that fulfillment of any provision hereof results in such rate of interest being in excess of the Maximum Permitted Rate, the amount of interest required to be paid hereunder shall automatically be reduced to eliminate such excess; provided, that any subsequent increase in the Maximum Permitted Rate shall be retroactively effective to the applicable Mandatory Redemption Date to the extent permitted by law.

(e) If any shares of Series B Preferred Stock are not redeemed on the Mandatory Redemption Date for any reason, the number of directors constituting the Board shall automatically be increased by a number equal to the number of directors then constituting the Board, plus one (1), and the holders of outstanding shares of Series B Preferred Stock, together with the holders of outstanding shares of Series A Preferred Stock, shall be entitled, voting as a single class (to the exclusion of the holders of all other securities and classes of capital stock of the Corporation), to elect such additional directors. For the avoidance of doubt, such additional directors shall constitute a majority of the Board. The period beginning on the Mandatory Redemption Date and ending on the date upon which all shares of Series B Preferred Stock required to be redeemed are so redeemed is referred to herein as the “Voting Period.” As soon as practicable after the commencement of the Voting Period, the Corporation shall call a special meeting of the Holders and Series A Holders to be held not more than twenty (20) days after the date of mailing of notice of such meeting. If the Corporation fails to send a notice, any such Holder or Series A Holder may call the meeting on like notice. The record date for determining the Holders and Series A Holders entitled to notice of and to vote at such special meeting shall be the close of business on the fifth (5^th) business day preceding the day on which such notice is mailed. At any such special meeting and at each meeting of Holders held during a Voting Period at which directors are to be elected (or with respect to any action by written consent in lieu of a meeting of stockholders), such Holders and Series A Holders, voting together as a single class to the exclusion of the holders of all other securities and classes of capital stock of the Corporation, shall be entitled to elect the number of directors prescribed in this Section 9(e), and each share of Series B Preferred Stock and Series A Preferred Stock shall be entitled to one (1) vote (whether voted in person by the holder thereof or by proxy or pursuant to a stockholders’ consent). The terms of office of all persons who are incumbent directors of the Corporation at the time of a special meeting of the Holders and Series A Holders to elect such additional directors shall continue, notwithstanding the election at such meeting of the additional directors that such Holders and Series A Holders are entitled to elect, and the additional directors so elected by such Holders and Series A Holders, together with such incumbent directors, shall constitute the duly elected directors of the Corporation. Simultaneously with the termination of a Voting Period, the terms of office of the additional directors elected by the Holders and Series A Holders under this Section 9(e) shall terminate, such incumbent directors shall constitute the directors of the Corporation and the rights of the Holders and Series A Holders to elect additional directors pursuant to this Section 9(e) shall cease.

(f) Notwithstanding anything in this Certificate of Designations of Series B Convertible Preferred Stock to the contrary, for so long as any of the Corporation’s 10.5% Senior Notes due 2009 remain outstanding, the Corporation shall have no obligation to redeem shares of Series B Preferred Stock as a result of an Involuntary Change of Control unless the Corporation has fully satisfied all of its obligations under Sections 4.06 and 4.10 of the 2009 Indenture.

10. Call Right.

(a) Subject to the provisions of this Section 10, the Corporation shall have the right (the “Call Right”) at any time on or after January 31, 2014 to repurchase all (but not less than all) of the then outstanding shares of Series B Preferred Stock at a price equal to the Redemption Price. The Corporation must deliver a written notice of the exercise of the Call Right to each Holder at least 30 days prior to the date on which the shares of Series B Preferred Stock are to be repurchased (the “Call Repurchase Date”), which notice shall state the Call Repurchase Date and the Redemption Price. Not less than five (5) Trading Days prior to the Call Repurchase Date, the Corporation shall deposit the entire Redemption Price for all shares of Series B Preferred Stock into an account with a commercial bank having not less than $500,000,000 in assets, such funds to be held exclusively for the purpose of paying the Redemption Price to the Holders. Upon receipt of payment of the Redemption Price by the Holders, each such Holder will deliver the certificate(s) evidencing the Series B Preferred Stock redeemed by the Corporation, unless such Holder is awaiting receipt of a new certificate evidencing such shares from the Corporation pursuant to another provision hereof. At any time on or prior to the Call Repurchase Date, a Holder may convert any or all of the shares of Series B Preferred Stock held by it, and the Corporation shall honor any such conversions in accordance with the terms hereof.

(b) Notwithstanding Section 10(a) above, the Corporation may not exercise its Call Right or redeem shares of Series B Preferred Stock on the Call Repurchase Date pursuant to this Section 10, and any notice delivered under Section 10(a) will be void, unless (A) from the period commencing on the Corporation’s delivery of the irrevocable written notice electing an exercise of the Call Right through the Call Repurchase Date, the Equity Conditions are satisfied (or waived in writing by the applicable Holder) on each Trading Day with respect to all of the Underlying Shares then issuable upon conversion in full of all outstanding Series B Preferred Stock, (B) the exercise of the Call Right was approved by a majority of the Board other than any other director who is nominated by or an affiliate of a Holder and (C) concurrently with the exercise of the Call Right pursuant to the provisions of this Section 10, the Corporation exercises the comparable Call Right under Section 10 of the Series A Certificate of Designations (the “Series A Call Right”). The Corporation further agrees not to exercise the Series A Call Right unless it concurrently exercises the Call Right hereunder.

11. Voting Rights; Board of Directors.

(a) Except as otherwise provided herein or as required by applicable law, the Holders shall be entitled to vote on all matters on which holders of Common Stock are entitled to vote, including, without limitation, the election of directors. For such purposes, each Holder shall be entitled to a number of votes in respect of the shares of Series B Preferred Stock owned by it equal to the number of shares of Common Stock into which such shares of Series B Preferred Stock are convertible by the Holders as of the record date for the determination of stockholders entitled to vote on such matter, or if no record date is established, at the date such vote is taken or any written consent of stockholders is solicited. Except as otherwise provided herein, in any relevant agreement or as required by applicable law, the Holders and the holders of Common Stock shall vote together as a single class on all matters submitted to a vote or consent of stockholders.

(b) Notwithstanding anything to the contrary, for so long as at least 5,000 shares of Series B Preferred Stock remain outstanding, the Corporation shall not, without the affirmative vote of the holders of a majority of the shares of Series B Preferred Stock and Series A Preferred Stock, voting as a single class (to the exclusion of the holders of all other securities and Capital Stock of the Corporation) then outstanding:

(i) amend or propose to amend the Restated Certificate of Incorporation or by-laws or other comparable governing instruments of the Corporation or any of the Subsidiaries, or this Certificate of Designations (whether by amendment, amalgamation, merger or otherwise);

(ii) issue or authorize the issuance of any equity of the Corporation with rights on liquidation. as to dividends, on redemption, as to voting, or otherwise, senior to or pari passu with the Series B Preferred Stock (other than the Series A Preferred Stock), or authorize or issue any shares of Series B Preferred Stock;

(iii) dissolve or liquidate the Corporation;

(iv) purchase, redeem (other than pursuant to any equity plan outstanding as of the date of the Purchase Agreement giving the Corporation the right to repurchase stock or other securities of the Corporation at cost upon the termination of an employee’s or director’s services and approved by the Continuing Directors) or set aside any sums for the purchase or redemption of, or declare or pay any dividend (including a dividend payable in securities of the Corporation) or declare or pay any dividends or make any distributions of cash, property or securities of the Corporation in respect of any Common Stock or any other class of Junior Securities or any other Common Share Equivalents (other than the Series A Preferred Stock);

(v) acquire any other corporation or business concern, whether by acquisition of assets, capital stock, merger or otherwise, and whether by payment of cash, the issuance of capital stock or otherwise, other than acquisitions of up to $5,000,000 per annum, not exceeding $15,000,000 in the aggregate;

(vi) enter into (A) a merger or consolidation of the Corporation with or into another entity (with respect to which less than a majority of the outstanding voting power of the surviving or consolidated company immediately following such event is held by Persons who were stockholders of the Corporation immediately prior to such event), (B) the sale, disposition, license or transfer, directly or indirectly, of any assets or property with a value equal to or greater than $1,000,000 or that are otherwise material to the Corporation or its business;

(vii) be acquired by any Person (or group of affiliated or associated Persons) of beneficial ownership of a majority of the equity of the Corporation (whether or not newly-issued shares) in a single transaction or a series of related transactions, redeem or repurchase shares representing a majority of the voting power of the outstanding shares of capital stock of the Corporation, or undergo any other change of control of 50% or more of the outstanding voting power of the Corporation;

(viii) fail to maintain its corporate existence, or change the nature of the Corporation’s principal business to any business which is fundamentally and materially distinct and separate from the business currently conducted by the Corporation;

(ix) create, incur, assume or suffer to exist any Indebtedness, other than Indebtedness outstanding as of the date hereof or any extensions, refinancing or renewals thereof (which extensions, refinancings or renewals, other than any such extension refinancing or renewal specifically contemplated in the Purchase Agreement, shall be on terms no less favorable to the Corporation than the current terms of such Indebtedness), in excess of $15,000,000 in the aggregate, other than (A) trade Indebtedness incurred to finance the purchase of equipment, components and other similar property and operating assets, in each case, in the ordinary course of business consistent with past practice, and any extensions, refinancings and renewals of any of the foregoing; provided that such extensions, refinancings or renewals do not or will not impose more burdensome terms, conditions or obligations upon the Corporation or any Subsidiary or increase the commitments or loan amounts thereunder, and (B) inter-company Indebtedness between the Corporation and any wholly-owned Subsidiary incurred in the ordinary course of business and consistent with past practice; or

(x) enter into any agreement to do any of the foregoing or cause or permit any Subsidiary of the Corporation directly or indirectly to take any actions described in clauses (i) through (ix) above.

(c) The holders of outstanding shares of Series B Preferred Stock shall be entitled to vote in the election of all directors of the Corporation together with holders of all other shares of the Corporation’s outstanding capital stock entitled to vote thereon, voting as a single class, with each outstanding share of Series B Preferred Stock entitled to the number of votes specified in Section 11(a).

(d) Notwithstanding anything herein to the contrary, for so long as any of the Corporation’s 10.5% Senior Notes due 2009 remain outstanding, no Holder shall have or may exercise voting rights in respect of a number of shares of Common Stock issuable upon conversion of the Series B Preferred Stock, together with any other shares of Common Stock or Series A Preferred Stock as to which such Holder, together with any other Person with whom such Holder would be considered a “person” (as defined in Section 13(d) and 14(d) under the Exchange Act) in relation to such Common Stock, Series A Preferred Stock or Series B Preferred Stock, is the direct or indirect “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act (and including all shares of Common Stock, that such Holder and any such other Person has the right to acquire, whether such right is exercisable immediately or only after the passage of time)), directly or indirectly representing more than 49% of the then outstanding Common Stock.

12. Charges, Taxes and Expenses. Issuance of certificates for shares of Series B Preferred Stock and for Underlying Shares issued on conversion of (or otherwise in respect of) the Series B Preferred Stock shall be made without charge to the Holders for any issue tax, withholding tax, transfer agent fee or other incidental tax or expense in respect of the issuance of such certificates, all of which taxes and expenses shall be paid by the Corporation. The Holder shall be responsible for all transfer tax and other tax liability that may arise as a result of holding or transferring the Series B Preferred Stock or receiving Underlying Shares in respect of the Series B Preferred Stock.

13. Replacement Certificates. If any certificate evidencing Series B Preferred Stock or Underlying Shares is mutilated, lost, stolen or destroyed, or a Holder fails to deliver such certificate as may otherwise be provided herein, the Corporation shall issue or cause to be issued in exchange and substitution for and upon cancellation thereof, or in lieu of and substitution for such certificate, a new certificate, but only upon receipt of evidence reasonably satisfactory to the Corporation of such loss, theft or destruction (in such case) and, in each case, customary and reasonable indemnity, if requested. Applicants for a new certificate under such circumstances shall also comply with such other reasonable regulations and procedures and pay such other reasonable third-party costs as the Corporation may prescribe.

14. Reservation of Underlying Shares. The Corporation shall, at all times reserve and keep available out of the aggregate of its authorized but unissued and otherwise unreserved Common Stock, solely for the purpose of enabling it to issue Underlying Shares as required hereunder, the number of Underlying Shares which are then issuable and deliverable upon the conversion of (and otherwise in respect of) all outstanding Series B Preferred Stock (taking into account the adjustments of Section 15), free from preemptive rights or any other contingent purchase rights of Persons other than the Holders. All Underlying Shares so issuable and deliverable shall, upon issuance in accordance with the terms hereof, be duly and validly authorized, issued and fully paid and nonassessable. The Corporation covenants that it shall use its reasonable best efforts to satisfy each of the Equity Conditions.

15. Certain Adjustments. The Conversion Price is subject to adjustment from time to time as set forth in this Section 15.

(a) Stock Dividends and Splits. If the Corporation, at any time while Series B Preferred Stock is outstanding, (i) pays a stock dividend on its Common Stock or otherwise makes a distribution on any class of capital stock that is payable in shares of Common Stock, (ii) subdivides outstanding shares of Common Stock into a larger number of shares, or (iii) combines outstanding shares of Common Stock into a smaller number of shares, then in each such case the applicable Conversion Price shall be multiplied by a fraction of which the numerator shall be the number of shares of Common Stock outstanding immediately before such event and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event. Any adjustment made pursuant to clause (i) of this paragraph shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend or distribution, and any adjustment pursuant to clause (ii) or (iii) of this paragraph shall become effective immediately after the effective date of such subdivision or combination.

(b) Pro Rata Distributions. If the Corporation, at any time while Series B Preferred Stock is outstanding, distributes or pays as a dividend to holders of Common Stock (i) evidences of its Indebtedness, (ii) any security (other than a distribution of Common Stock covered by the preceding paragraph), (iii) rights or warrants to subscribe for or purchase any security, or (iv) any other asset (including, without limitation, cash) (in each case, “Distributed Property”), then in each such case the Corporation shall simultaneously deliver to each Holder the Distributed Property that each such Holder would have been entitled to receive in respect the number of Underlying Shares then issuable pursuant to Section 8(a) above had the Holder been the record holder of such Underlying Shares immediately prior to the applicable record or payment date.

(c) Fundamental Transactions. If the Corporation, at any time while Series B Preferred Stock is outstanding, effects any Fundamental Transaction, then upon any subsequent conversion of Series B Preferred Stock, each Holder shall have the right to receive, for each Underlying Share that would have been issuable upon such conversion absent such Fundamental Transaction, the same kind and amount of securities, cash or property as it could have been entitled to receive upon the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, the holder of one share of Common Stock (the “Alternate Consideration”). For purposes of any such conversion, the determination of the Conversion Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one share of Common Stock in such Fundamental Transaction, and the Corporation shall apportion the Conversion Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then each Holder shall be given the same choice as to the Alternate Consideration it receives upon any conversion of Series B Preferred Stock following such Fundamental Transaction. To the extent necessary to effectuate the foregoing provisions, any successor to the Corporation or surviving entity in such Fundamental Transaction shall issue to the Holder a new series of preferred stock consistent with the foregoing provisions and evidencing the Holders’ right to convert such preferred stock into Alternate Consideration. The terms of any agreement pursuant to which a Fundamental Transaction is effected shall include terms requiring any such successor or surviving entity to comply with the provisions of this Section 15(c) and insuring that the Series B Preferred Stock (or any such replacement security) will be similarly adjusted upon any subsequent transaction analogous to a Fundamental Transaction.

(d) Subsequent Equity Sales. If at any time while any shares of Series B Preferred Stock remain outstanding the Corporation or any Subsidiary issues additional shares of Common Stock or rights, warrants, options or other securities or debt convertible, exercisable or exchangeable for Common Stock or otherwise entitling any Person to acquire Common Stock (collectively, “Common Share Equivalents”) at a purchase price per share of Common Stock (the “Effective Price”) less than the Conversion Price (as adjusted hereunder to such date), then the Conversion Price shall be adjusted to a Conversion Price determined by multiplying the Conversion Price then in effect by a fraction, (i) the numerator of which shall be the sum of (x) the number of shares of Common Stock outstanding on the date of such issuance and (y) the number of additional shares Common Stock which the aggregate offering price of the total number shares of Common Stock so issued (or the sum of the aggregate offering price of the total number of Common Share Equivalents so issued and the aggregate amount of cash due upon exercise, exchange or conversion of such Common Share Equivalents) would purchase at the Conversion Price then in effect, and (ii) the denominator of which shall be the sum of (x) the number of shares of Common Stock outstanding on the date of such issuance and (y) the number of additional shares of Common Stock issued (or the number of shares of Common Stock for which or into which the Common Share Equivalents so offered are exercisable, exchangeable or convertible at the Effective Price). For purposes of this paragraph, in connection with any issuance of any Common Share Equivalents, (A) the maximum number of shares of Common Stock potentially issuable at any time upon conversion, exercise or exchange of such Common Share Equivalents (the “Deemed Number”) shall be deemed to be outstanding upon issuance of such Common Share Equivalents, (B) the Effective Price applicable to such Common Shares shall equal the minimum dollar value of consideration payable to the Corporation to purchase such Common Share Equivalents and to convert, exercise or exchange them into shares of Common Stock, divided by the Deemed Number, (C) no further adjustment shall be made to the Conversion Price upon the actual issuance of Common Shares upon conversion, exercise or exchange of such Common Share Equivalents, and (D) to the extent that any such Common Share Equivalents expire before fully converted, exercised or exchanged, the Conversion Price will be readjusted to reflect such expiration. If, at any time while any shares of Series B Preferred Stock are outstanding, the Corporation or any Subsidiary directly or indirectly issues Common Share Equivalents with an Effective Price or a number of underlying shares that floats or resets or otherwise varies or is subject to adjustment based (directly or indirectly) on market prices of the Common Stock (a “Floating Price Security”), then for purposes of applying this Section 15(d) in connection with any subsequent conversion, the Effective Price will be determined separately on each Conversion Date and will be deemed to equal the lowest Effective Price at which any holder of such Floating Price Security is entitled to acquire Common Shares on such Conversion Date (regardless of whether any such holder actually acquires any shares on such date). Notwithstanding the foregoing, no adjustment will be made under this paragraph (d) in respect of any issuances of Common Stock and Common Share Equivalents made pursuant to the definition of Excluded Stock.

(e) Calculations. All calculations under this Section 15 shall be made to the nearest cent or the nearest 1/100th of a share, as applicable. The number of shares of Common Stock outstanding at any given time shall not include shares owned or held by or for the account of the Corporation, and the disposition of any such shares shall be considered an issue or sale of Common Stock.

(f) Notice of Adjustments. Upon the occurrence of each adjustment pursuant to this Section 15, the Corporation at its expense will promptly compute such adjustment in accordance with the terms hereof and prepare a certificate describing in reasonable detail such adjustment and the transactions giving rise thereto, including all facts upon which such adjustment is based. Upon written request, the Corporation will promptly deliver a copy of each such certificate to each Holder and to the Corporation’s transfer agent.

(g) Notice of Corporate Events. If the Corporation (i) declares a dividend (other than a dividend pursuant to Section 5 above) or any other distribution of cash, securities or other property in respect of its Common Stock, including, without limitation, any granting of rights or warrants to subscribe for or purchase any capital stock of the Corporation or any Subsidiary, (ii) authorizes or approves, enters into any agreement contemplating or solicits stockholder approval for any Fundamental Transaction or (iii) authorizes the voluntary dissolution, liquidation or winding up of the affairs of the Corporation, then the Corporation shall deliver to each Holder a notice describing the material terms and conditions of such transaction, at least 20 calendar days prior to the applicable record or effective date on which a Person would need to hold Common Stock in order to participate in or vote with respect to such transaction.

16. Fractional Shares. The Corporation shall not be required to issue or cause to be issued fractional Underlying Shares on conversion of Series B Preferred Stock. If any fraction of an Underlying Share would, except for the provisions of this Section 16, be issuable upon conversion of Series B Preferred Stock, the number of Underlying Shares to be issued will be rounded up to the nearest whole share.

17. Notices. Any and all notices or other communications or deliveries hereunder (including without limitation any Conversion Notice) shall be in writing and shall be deemed given and effective on the earliest of (i) the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number specified in this Section prior to 4:30 p.m. (New York City time) on a Trading Day, (ii) the next Trading Day after the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number specified in this Section on a day that is not a Trading Day or later than 4:30 p.m. (New York City time) on any Trading Day, (iii) the Trading Day following the date of mailing, if sent by nationally recognized overnight courier service, or (iv) upon actual receipt by the party to whom such notice is required to be given. The addresses for such communications shall be: (i) if to the Corporation, to 200 Clinton Avenue West, Suite 1000, Huntsville, Alabama 35801, facsimile: (256) 580-3996, Attention: David Owen, or (ii) if to a Holder, to the address or facsimile number appearing on the Corporation’s stockholder records or such other address or facsimile number as such Holder may provide to the Corporation in accordance with this Section 17.

18. Miscellaneous.

(a) The headings herein are for convenience only, do not constitute a part of this Certificate of Designations and shall not be deemed to limit or affect any of the provisions hereof.

(b) No provision of this Certificate of Designations may be amended, except in a written instrument signed by the Corporation and holders of at least two-thirds of the shares of Series B Preferred Stock then outstanding. Notwithstanding anything in the certificate of incorporation of the Corporation to the contrary, the Holders of Series B Preferred Stock may take any action hereunder by written consent. Any of the rights of the Holders set forth herein, including any Equity Conditions or any other similar conditions for the Holders’ benefit, may be waived by the affirmative vote of holders of at least two-thirds of the shares of Series B Preferred Stock then outstanding, except that each Holder may waive its own rights as provided in this Certificate of Designations. No waiver of any default with respect to any provision, condition or requirement of this Certificate of Designations shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of either party to exercise any right hereunder in any manner impair the exercise of any such right.

IN WITNESS WHEREOF, Wolverine Tube, Inc. has caused this Certificate of Designations to be duly executed as of this 20^th day of March, 2008.

WOLVERINE TUBE, INC.

By:	/s/ David A. Owen
	Name: David A. Owen
	Title: Chief Financial Officer

EXHIBIT A

FORM OF CONVERSION NOTICE

(To be executed by the registered Holder

in order to convert shares of Series B Preferred Stock)

The undersigned hereby elects to convert the number of shares of Series B Convertible Preferred Stock indicated below into shares of Common Stock of Wolverine Tube, Inc., according to the conditions hereof, as of the date written below.


Date to Effect Conversion


Number of shares of Series B Preferred Stock owned prior to Conversion


Number of shares of Series B Preferred Stock to be Converted


Stated Value of shares of Series B Preferred Stock to be Converted


Number of shares of Common Stock to be Issued


Applicable Conversion Price


Number of shares of Series B Preferred Stock subsequent to Conversion


Name of Holder
By:
Name:
Title:

A-1

EX-10 4 v108054_ex10.htm

WOLVERINE TUBE, INC.

AMENDMENT

VOTING AGREEMENT

This Amendment to Voting Agreement (the “Amendment”) is made as of March 20, 2008 by and among Wolverine Tube, Inc., a Delaware corporation (the “Company”), the holders of shares of the Company’s Series A Convertible Preferred Stock, par value $1.00 per share (the “Series A Preferred Stock”) listed on the signature page hereto (each such holder of Series A Preferred Stock is hereinafter referred to as a “Series A Holder” and, collectively, as the “Series A Holders”) and the holders of shares of the Company’s Series B Convertible Preferred Stock, par value $1.00 per share (the “Series B Preferred Stock”) listed on the signature page hereto (each such holder of Series B Preferred Stock is hereinafter referred to as a “Series B Holder” and, collectively, as the “Series B Holders”).

RECITALS

WHEREAS, the Company and the Series A Holders have previously entered into that certain Voting Agreement, dated as of February 16, 2007 (the “Voting Agreement”; capitalized terms used herein but not defined herein shall have the meanings ascribed thereto in the Voting Agreement);

WHEREAS, substantially concurrently with the execution and delivery of this Amendment, the Company is issuing its Series B Preferred Stock to the Series B Holder;

WHEREAS, the Company, the Series A Holders and the Series B Holders desire to enter into this Amendment for the purpose of amending the Voting Agreement to include the shares of Series B Convertible Preferred Stock;

NOW, THEREFORE, in consideration of the mutual promises and covenants hereinafter set forth, the parties hereto hereby agree as follows:

Amendment of Definition of “Voting Securities”.

1.1

For the avoidance of doubt, the parties hereto agree that the term “Voting Securities” as used in the Voting Agreement is hereby amended and restated in its entirety as follows: “Voting Securities” means Common Stock, Series A Preferred Stock, Series B Convertible Preferred Stock, par value $1.00 per share, of the Company and all other securities of the Company that entitle the holders thereof to vote on all matters on which holders of Common Stock are entitled to vote.”

1.2

The Series B Holders agree to become party to the Voting Agreement and to be bound by the terms thereof, including those provisions applicable to an Investor.

1.3

Except as set forth above, the Voting Agreement shall remain in full force and effect.

[Remainder of Page Intentionally left Blank

Signature Page follows]

IN WITNESS WHEREOF, the parties hereto have executed this Voting Agreement Amendment as of the date first written above.

COMPANY:

WOLVERINE TUBE, INC.

By:	/s/ David A. Owen
	Name: David A. Owen
	Title: Chief Financial Officer

SERIES A HOLDERS:

THE ALPINE GROUP, INC.

By:	/s/ K. Mitchell Posner
	Name: K. Mitchell Posner
	Title: Executive Vice President

ALKEST, LLC

By:	/s/Alan Kestenbaum
	Alan Kestenbaum, as its
	Sole Member

PLAINFIELD SPECIAL SITUATIONS MASTER FUND LIMITED

By:	/s/ Thomas X. Fritsch
	Name: Thomas X. Fritsch
	Title: Authorized Individual

SERIES B HOLDERS:

THE ALPINE GROUP, INC

By:	/s/ K. Mitchell Posner
	Name: K. Mitchell Posner
	Title: Executive Vice President

Voting Agreement Amendment Signature Page

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