EXHIBIT 4.11
FORM OF SUBSCRIPTION AND JOINDER AGREEMENT
The below agreement was executed separately by each of the following
individuals. The lettered columns in the below chart correspond to information
about shares of stock and purchase for each investor found in Exhibits A-1 and
A-2 to those Agreements.
MANAGEMENT
INVESTOR A B C D E
-------- - - - - -
Polly J. Lynam Bloom 22,727 100 $249,997 16,200 $ 16,200
Nicholas C. Cirino 19,091 84 $210,001 0 0
Bernard Fai Sang Li 22,727 100 $249,997 0 0
Mike Gassman 22,727 100 $249,997 0 0
William R. Hasler Trust, 22,727 100 $249,997 16,200 $ 16,200
William R. Hasler, Trustee
John Love 18,182 80 $200,002 0 0
Edward J. Lynch 37,273 164 $410,003 16,200 $ 16,200
Daria L. Roebuck 22,727 100 $249,997 16,200 $ 16,200
Steve Rohacz 81,818 360 $899,998 40,500 $ 40,500
Andrew Weisel 90,909 400 $999,999 16,200 $ 16,200
Andy Henderson 0 0 0 16,200 $ 16,200
Peter B. Korte 0 0 0 16,200 $ 16,200
Robert Nicholson 0 0 0 16,200 $ 16,200
Jeff R. Steinhilber 0 0 0 40,500 $ 40,500
Robert Van Der Kolk 0 0 0 16,200 $ 16,200
L. Martin Vettel 0 0 0 16,200 $ 16,200
SUBSCRIPTION AND JOINDER AGREEMENT, dated as of December 2,
2002 (the "Agreement"), by and among ERICO GLOBAL COMPANY, a Delaware
corporation (the "Company"), and the undersigned Management Investor set forth
on the signature page hereto.
Background
A. The Company entered into that certain Securities
Exchange, Purchase and Holders Agreement (the "Stockholders Agreement") dated as
of July 31, 2002 by and among the Company, Citicorp Venture Capital Equity
Partners, L.P., CVC Executive Fund LLC, CVC/SSB Employee Fund, L.P. and Bill
Roj, a copy of which is attached hereto as Exhibit A. Pursuant to Section 8.15
of the Stockholders Agreement, any person who is granted the right to acquire
Securities from the Company after the date of the Stockholders Agreement may
become a signatory to the Stockholders Agreement by executing a written
instrument agreeing to be bond by the terms and conditions therein.
B. Pursuant to the terms of the Stockholders Agreement,
the Company has authorized the Management Investor to exchange shares of ERICO
Holding Company's ("ERICO") Class A Common Stock and/or Class B Common Stock
(the "ERICO Shares") for the number of shares of the Company's Class L Common
Stock, par value $.01 per share (the "Class L Common Stock") set forth opposite
such Management Investor's name on Exhibit A-1.
C. Pursuant to the terms of the Stockholders Agreement,
the Company has authorized the Management Investor to purchase shares of the
Company's Class A Common Stock, par value $0.01 per share (the "Class A Common
Stock"). The shares of Class A Common Stock set forth opposite such Management
Investor's name on Exhibit A-2 hereto are sometimes called "Incentive Shares."
D. As used herein, the Class L Common Stock, the Class A
Common Stock and the Class B Common Stock, par value $.01 per share (the "Class
B Common Stock") are sometimes collectively hereinafter referred to as the
"Common Stock" or "Shares."
E. The Management Investor is currently an employee of
the Company who desires to purchase shares of Class A Common Stock and exchange
his/her ERICO Shares for Class L Common Stock, on the terms and conditions set
forth herein.
F. Capitalized terms used but not defined herein shall
have the meaning ascribed to such term in the Stockholders Agreement.
Terms
In consideration of the mutual representations, warranties and
covenants contained herein, and intending to be legally bound hereby, the
parties hereto agree as follows:
Section 1.1. Acquisition of Securities. Subject to the terms and
conditions set forth herein, at the Closing:
(a) The Company will issue to the Management
Investor listed on Exhibit A-1 hereto the number of shares of Class L Common
Stock set forth opposite such
Management Investor's name on Exhibit A-1 hereto, in exchange for the number of
ERICO Shares set forth opposite such Management Investor's name on such Exhibit
A-1.
(b) The Company will issue and sell to the
Management Investor listed on Exhibit A-2 hereto the number of shares of Class A
Common Stock set forth opposite such Management Investor's name on such Exhibit
A-2 at a purchase price of $1.00 per share.
Section 1.2. Joinder to Agreement.
(a) The Management Investor agrees to become
bound by the terms and conditions of the Stockholders Agreement, to become
entitled to the benefits of the Stockholders Agreement and to become a party to
the Stockholders Agreement as a "Management Investor" with the same effect as if
such Management Investor had executed the Stockholders Agreement on and as of
the original date thereof.
(b) The Management Investor hereby represents
and warrants that all representations and warranties of a "Management Investor"
contained in the Stockholders Agreement are true and correct as to the
Management Investor as of the date hereof.
(c) The Management Investor agrees that the
shares of Class A Common Stock shall be subject to transfer restrictions and
forced sale provisions in the Stockholders Agreement.
Section 1.3. Closing; Termination. The closing (the "Closing") of the
issuance of the Securities will take place immediately prior to the closing
under the Merger Agreement at such date and time as selected by the Company and
Roj (the "Closing Date"). At the Closing:
(a) The Company will deliver to the Management
Investor certificates evidencing the number of Incentive Shares to be purchased
by such Management Investor against payment of the purchase price therefor in
cash or such other consideration as is acceptable to the Company in its sole
discretion.
(b) The Company will deliver to the Management
Investor certificates evidencing the number of shares of Class L Common Stock
being acquired by such Management Investor, less certificates for the number of
such Management Investor's Escrowed Shares, against delivery by such Management
Investor of the ERICO Shares being exchanged for such Rollover Shares, duly
endorsed for transfer. The Company will deliver all of the Escrowed Shares on
behalf of the Management Investor to the escrow agent pursuant to the terms of
the Escrow Agreement.
Section 1.4. Conditions to the Management Investor's Obligations. The
obligation of the Management Investor to deliver the ERICO Shares, cash or other
consideration at the Closing is subject to the satisfaction on or prior to the
Closing Date of the conditions set forth in Section 1.3 of the Stockholders
Agreement.
Section 1.5. Conditions to Company's Obligations. The obligations of
the Company to issue the Shares at the Closing are subject to the satisfaction
on or prior to the Closing Date of the conditions set forth in Section 1.4 of
the Stockholders Agreement.
Section 1.6. Representations, Warranties and Covenants of the
Management Investor. The Management Investor hereby represents and warrants to,
and covenants and agrees with the Company that:
(a) Such Management Investor (i) is familiar
with the business of the Company, (ii) has had the opportunity to ask questions
of the officers and directors of the Company and to obtain (and that such
Management Investor has received to his satisfaction) such information about the
business and financial conditions of the Company as he has reasonably requested,
and (iii) either alone or with the assistance of his or her financial advisor,
has such knowledge and experience in financial and business matters that such
Management Investor is capable of evaluating the merits and risks of the
prospective investment in Securities.
Section 1.7. Miscellaneous.
(a) This Agreement and all of the provisions
hereof shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns and executors, administrators
and heirs. This Agreement, together with the Stockholders Agreement, sets forth
the entire agreement and understanding among the parties as to the subject
matter hereof and merges and supersedes all prior discussions and understandings
of any and every nature among them.
(b) The validity, performance, construction and
effect of this Agreement shall be governed by and construed in accordance with
the internal law of Delaware, without giving effect to principles of conflicts
of law.
(c) The headings in this Agreement are for
convenience of reference only and shall not constitute a part of this Agreement,
nor shall they affect its meaning, construction or effect.
(d) Each party shall cooperate and take such
action as may be reasonably requested by another party in order to carry out the
provisions and purposes of this Agreement and the transactions contemplated
hereby.
(e) In the event of a breach or a threatened
breach by any party hereto of such party's obligations under this Agreement or
the Stockholders Agreement, any party injured or to be injured by such breach,
in addition to being entitled to exercise all rights granted by law, including
recovery of damages, will be entitled to specific performance of such party's
rights thereunder. The parties agree that the provisions of this Agreement and
the Stockholders Agreement shall be specifically enforceable, it being agreed by
the parties that the remedy at law, including monetary damages, for breach of
such provision will be inadequate compensation for any loss and that any defense
in any action for specific performance that a remedy at law would be adequate is
waived.
(f) This Agreement may be executed in two or
more counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original, and all of which taken
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
ERICO GLOBAL COMPANY
By: /s/ Jeffrey R. Steinhilber
-------------------------------
Name: Jeffrey R. Steinhilber
Title: Vice President and Chief
Financial Officer
___________________________________
[Management Investor]
Exhibit A
STOCKHOLDERS AGREEMENT
OMITTED
Exhibit A-1
MANAGEMENT Shares of Class Shares of Aggregate
INVESTOR L Common Stock ERICO Shares Purchase Price
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A B C
Exhibit A-2
MANAGEMENT Shares of Aggregate
INVESTOR Class A Common Stock Purchase Price
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D E