EXHIBIT 4.12
FORM OF SUBSCRIPTION AND JOINDER AGREEMENT
This agreement was executed separately by each of the following individuals. The
lettered columns in the chart below correspond to information about the shares
with regard to each investor found in Exhibit B to those agreements.
A B C
Shares of Class A Shares of Class L Aggregate Purchase
MANAGEMENT INVESTOR Common Stock Common Stock Price and Advance
- ------------------- ------------ ------------ -----------------
Gary Bruce Burwell 1,162 1,162 $15,000
Patrick F. D'Agostino 1,162 1,162 $15,000
Frank J. Fitzgerald 1,162 1,162 $15,000
Peter R. McCourt 1,162 1,162 $15,000
Patrick J. Melia 1,162 1,162 $15,000
Karen L. Shaw Nelson 1,162 1,162 $15,000
Frank Oerlemans 1,162 1,162 $15,000
Michael E. Puhala 1,162 1,162 $15,000
David R. Whatley 1,162 1,162 $15,000
SUBSCRIPTION AND JOINDER AGREEMENT
This Subscription and Joinder Agreement is made effective as
of December 31, 2003 (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.
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B. 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") and Class L Common Stock, par value $0.01 per share (the "CLASS L COMMON
STOCK" and together with the Class A Common Stock, the "SHARES").
C. The Management Investor is currently an employee of
the Company who was offered by the Company prior to December 31, 2003 the
opportunity to purchase shares of Class A Common Stock and/or Class L Common
Stock on the terms and conditions set forth herein.
D. Execution of this Agreement by the Management
Investor evidences the Management Investor's acceptance of the Company's offer
at the time it was made and memorializes the agreement between the Company and
Management Investor on or before December 31, 2003.
E. 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.
(a) Issuance. Subject to the terms and
conditions set forth herein, the Company issues to the Management Investor
listed on Exhibit B hereto effective as of December 31, 2003 the number of
shares of Class A Common Stock and/or Class L Common Stock set forth opposite
such Management Investor's name on Exhibit B hereto with an aggregate value
equal to $ (see Column C above) (the "PURCHASE PRICE").
(b) Consideration. As of December 31, 2003, the
Company was obligated to distribute a certain amount of cash to the Management
Investor as a performance bonus (the "BONUS") earned by such Management Investor
for fiscal year 2003. Effective December 31, 2003, the Company agreed to advance
$ (see Column C above) of the Bonus to the Management Investor ("ADVANCE") and
use the proceeds of such Advance to pay the Purchase Price, and the Management
Investor agreed to such arrangement. The Management Investor agrees that its
claim against the Company for payment of the portion of his or her Bonus to be
used to pay the Purchase Price was released in connection therewith.
Section 1.2. Joinder to Agreement.
(a) Effective December 31, 2003, 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.
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(b) Effective December 31, 2003, the Management
Investor agrees that the shares of Class A Common Stock and/or Class L Common
Stock purchased hereunder shall be deemed to be "Class A Common Stock" and
"Class L Common Stock" as those terms are defined and used in the Stockholders
Agreement and shall be subject to certain restrictions on transfer as set forth
in the Stockholders Agreement and that certain Supplemental Stockholders
Agreement, effective as of the date hereof (the "SUPPLEMENTAL AGREEMENT").
Section 1.3. Stock Certificates. Within a reasonable time following the
execution of this Agreement, the Company shall deliver to the Management
Investor a certificate or certificates representing the shares of Class A Common
Stock and/or Class L Common Stock purchased by such Management Investor.
Section 1.4. Representations Warranties and Covenants of the Management
Investor. The Management Investor hereby represents and warrants to, and
covenants and agrees with, the Company that as of December 31, 2003 and the date
of execution of this Agreement:
(a) he or she had and has sufficient knowledge
and experience in investing in companies similar to the Company in terms of the
Company's stage of development so as to be able to evaluate the risks and merits
of his investment in the Company, and he was and is able financially to bear the
risks thereof;
(b) the Shares being purchased by him or her are
being acquired for his or her own account for the purpose of investment and not
with a view to or for sale in connection with any distribution thereof;
(c) he or she understands that (i) the Shares
have not been registered under the Securities Act of 1933 (the "SECURITIES ACT")
by reason of their issuance in a transaction exempt from the registration
requirements of the Securities Act pursuant to Section 4(2) thereof or Rule 505
or 506 promulgated under the Securities Act, (ii) the Shares must be held
indefinitely unless a subsequent disposition thereof is registered under the
Securities Act or is exempt from such registration, (iii) the Shares will bear a
legend to such effect, and (iv) the Company will make a notation on its transfer
books to such effect;
(d) he or she had and has no present need for
liquidity in connection with his or her purchase of the Shares; and
(e) the purchase of the Shares is consistent
with the general investment objectives of such Management Investor, and that he
or she understands that the purchase of the Shares involves a high degree of
risk.
Section 1.5. Company Covenant. The Management Investor is entitled to
receive out of any Unliquidating Distribution (as defined in the Certificate of
Incorporation of the Company) made by the Company to the holders of Class L
Common Stock from the proceeds of a currently contemplated note offering by
ERICO International Corporation (a) notwithstanding anything to the contrary in
the Certificate of Incorporation of the Company, the Yield (as defined in the
Certificate of Incorporation of the Company) that has accrued since December 31,
2003 on the shares of Class L Common Stock purchased by the Management Investor
hereunder, and (b) to
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the extent any portion of the distribution remains, his or her pro rata portion
of any Unreturned Original Cost (as defined in the Certificate of Incorporation
of the Company).
Section 1.6. 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 and the
Supplemental 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, the
Stockholders Agreement or the Supplemental 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, the Stockholders Agreement and the Supplemental
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.
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on _____________________ ____, 2004 and have made this Agreement
effective as of December 31, 2003.
ERICO GLOBAL COMPANY
By: /s/ Peter B. Korte
------------------------------
Name: Peter B. Korte
Title: General Counsel and Secretary
________________________________________
Printed Name:
Subscription and Joinder Agreement - Signature Page
Exhibit A
Securities Exchange, Purchase and Holders Agreement
OMITTED
Subscription and Joinder Agreement - Exhibit Page
EXHIBIT B
Management Shares of Class A Shares of Class L Aggregate
Investor Common Stock Common Stock Purchase Price
-------- ------------ ------------ --------------
__________________ A B C