LAFARGE S.A. Debt Securities Underwriting Agreement Standard Provisions
Exhibit 1.1
LAFARGE S.A.
Debt Securities
Underwriting Agreement Standard Provisions
From time to time, Lafarge S.A., a société anonyme organized under the laws of the Republic of
France (the “Company”), may enter into one or more underwriting agreements in the form of Annex A
hereto that incorporate by reference these Standard Provisions (collectively with these Standard
Provisions, an “Underwriting Agreement”) that provide for the sale of the securities designated in
such Underwriting Agreement (the “Securities”) to the several Underwriters named therein (the
“Underwriters”), for whom the Underwriter(s) named therein shall act as representative (the
“Representative”). The Underwriting Agreement, including these Standard Provisions, is sometimes
referred to herein as the “Agreement.” The Securities will be issued pursuant to an indenture [to
be] dated as of [ ], 2006 (the “Indenture”) between the Company and Law Debenture Trust Company of
New York, as trustee (the “Trustee”).
1. Registration Statement. The Company has prepared and filed with the Securities and
Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, and the rules
and regulations of the Commission thereunder (collectively, the “Securities Act”), a registration
statement on Form F-3 (File No. ___), including a prospectus (the “Basic Prospectus”), relating
to the debt securities to be issued from time to time by the Company. The Company has also filed,
or proposes to file, with the Commission pursuant to Rule 424 under the Securities Act a prospectus
supplement specifically relating to the Securities (the “Prospectus Supplement”). The registration
statement, as amended at the time it becomes effective, including the information, if any, deemed
pursuant to Rule 430A, 430B or 430C under the Securities Act to be part of the registration
statement at the time of its effectiveness, is referred to herein as the “Registration Statement”;
and as used herein, the term “Prospectus” means the Basic Prospectus as supplemented by the
prospectus supplement specifically relating to the Securities in the form first used (or made
available upon request of purchasers pursuant to Rule 173 under the Securities Act) in connection
with confirmation of sales of the Securities and the term “Preliminary Prospectus” means the
preliminary prospectus supplement specifically relating to the Securities together with the Basic
Prospectus. Capitalized terms used but not defined herein shall have the meanings given to such
terms in the Registration Statement and the Prospectus. References herein to the Registration
Statement, the Basic
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Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein. The terms “supplement,” “amendment” and
“amend” as used herein with respect to the Registration Statement, any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include any documents filed by the Company under the
Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission
thereunder (the “Exchange Act”) subsequent to the date of the Underwriting Agreement which are
deemed to be incorporated by reference therein. For purposes of this Agreement, the term
“Effective Time” means the effective date of the Registration Statement with respect to the
offering of Securities, as determined for the Company pursuant to Section 11 of the Securities Act
and Item 512 of Regulation S-K, as applicable.
At or prior to the time when sales of the Securities will be first made (the “Time of Sale”),
the Company will prepare certain information, identified in Schedule 3 to the Underwriting
Agreement for such offering of Securities, which together with (i) the Basic Prospectus, as amended
and supplemented to the date of the Underwriting Agreement, and (ii) the Preliminary Prospectus
used most recently prior to the execution of the Underwriting Agreement, constitute the “Time of
Sale Information.”
2. Purchase of the Securities by the Underwriters.
(a) Subject to the terms and conditions and in reliance upon the representations and
warranties herein set forth, the Company agrees to issue and sell the Securities to the several
Underwriters named in the Underwriting Agreement, and each Underwriter, subject to the terms and
conditions and in reliance upon the representations and warranties herein set forth, agrees,
severally and not jointly, to purchase from the Company the respective principal amount of
Securities set forth opposite such Underwriter’s name in the Underwriting Agreement at the purchase
price set forth in the Underwriting Agreement.
(b) Payment for and delivery of the Securities will be made at the time and place set forth in
the Underwriting Agreement. The time and date of such payment and delivery is referred to herein as
the “Closing Date.”
(c) The Company acknowledges and agrees that the Underwriters named in the Underwriting
Agreement are acting solely in the capacity of an arm’s length contractual counterparty to the
Company with respect to any offering of Securities contemplated hereby (including in connection
with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an
agent of, the Company or any other person. Additionally, no such Underwriter is advising the
Company or any other person as to any legal, tax, investment, accounting or regulatory matters in
any jurisdiction. The Company shall consult with its own advisors concerning such matters and
shall be responsible for making its own independent investigation and appraisal of the transactions
contemplated hereby, and such Underwriters shall have no responsibility or liability to the Company
with respect thereto. Any review by such Underwriters named in the Underwriting Agreement of the
Company, the transactions
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contemplated thereby or other matters relating to such transactions will be performed solely for
the benefit of the Underwriters and shall not be on behalf of the Company.
3. Representations and Warranties of the Company. The Company represents and warrants
to each Underwriter that:
(a) Registration Statement and Prospectus. The Registration Statement is an “automatic
effective registration statement” as defined under Rule 405 of the Securities Act that has been
filed with the Commission not earlier than three years prior to the date hereof; and no notice of
objection of the Commission to the use of such registration statement or any post-effective
amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the
Company. No order suspending the effectiveness of the Registration Statement has been issued by
the Commission and no proceeding for that purpose or pursuant to Section 8A of the Securities Act
against the Company or related to the offering has been initiated or threatened by the Commission;
as of the Effective Time, the Registration Statement complied in all material respects with the
Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of
the Commission thereunder (collectively, the “Trust Indenture Act”), and did not or will not
contain any untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein not misleading; and as of the
date of the Prospectus and any amendment or supplement thereto and as of the Closing Date, the
Prospectus did not and will not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading; provided that
the Company makes no representation and warranty with respect to (i) that part of the Registration
Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee
under the Trust Indenture Act or (ii) any statements or omissions in the Registration Statement and
the Prospectus and any amendment or supplement thereto made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing by such Underwriter
through the Representative expressly for use therein.
(b) Time of Sale Information. The Time of Sale Information, at the Time of Sale and at the
Closing Date did not and will not, contain any untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that the Company makes no
representation and warranty with respect to any statements or omissions made in reliance upon and
in conformity with information relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representative expressly for use in such Time of Sale Information.
(c) Issuer Free Writing Prospectus. Other than any Preliminary Prospectus and the Prospectus,
the Company (including its agents and representatives, other than the Underwriters in their
capacity as such) has not made, used, prepared, authorized,
approved or referred to and will not prepare, make, use, authorize, approve or refer to
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any
“written communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer
to sell or solicitation of an offer to buy the Securities (each such communication by the Company
or its agents and representatives (other than a communication referred to in clause (i) below) an
“Issuer Free Writing Prospectus”) other than (i) any document not constituting a prospectus
pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii)
the documents listed on Schedule 3 to the Underwriting Agreement and other written communications
approved in writing in advance by the Representative. Each such Issuer Free Writing Prospectus
complied in all material respects with the Securities Act, has been filed in accordance with the
Securities Act (to the extent required thereby) and, when taken together with any Preliminary
Prospectus accompanying, or delivered prior to delivery of, or filed prior to the first use of such
Issuer Free Writing Prospectus, did not, and at the Closing Date will not, contain any untrue
statement of a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading;
provided that the Company makes no representation and warranty with respect to any statements or
omissions made in each such Issuer Free Writing Prospectus in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing by such Underwriter
through the Representative expressly for use in any Issuer Free Writing Prospectus. Each Issuer
Free Writing Prospectus does not include any information that conflicts with the information
contained in the Registration Statement, including any document incorporated therein and any
prospectus supplement deemed to be a part thereof that has not been superseded or modified.
(d) Incorporated Documents. The documents incorporated by reference in the Registration
Statement, the Prospectus or the Time of Sale Information, when filed with the Commission,
conformed or will conform, as the case may be, in all material respects with the requirements of
the Exchange Act and did not and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
(e) Financial Statements. The financial statements and the related notes thereto included or
incorporated by reference in the Registration Statement, the Time of Sale Information and the
Prospectus comply in all material respects with the applicable requirements of the Securities Act
and the Exchange Act, as applicable, and present fairly the financial position of the Company and
its subsidiaries as of the dates indicated and the results of their operations and the changes in
their cash flows for the periods specified; such financial statements have been prepared in
conformity with International Financial Reporting Standards applied on a consistent basis
throughout the periods covered thereby, and the supporting schedules included or incorporated by
reference in the Registration Statement present fairly the information required to be stated
therein; and the other financial information included or incorporated by reference in the
Registration Statement, the Time of Sale Information and the Prospectus has
been derived from the accounting records of the Company and its subsidiaries and presents
fairly the information shown thereby.
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(f) No Material Adverse Change. Except as disclosed in or incorporated by reference in the
Registration Statement, the Time of Sale Information and the Prospectus, since the date of the
latest audited financial statements of the Company included or incorporated by reference in the
Registration Statement, the Time of Sale Information and the Prospectus, there has been no material
adverse change, nor any development or event involving a prospective material loss or adverse
change, in the condition (financial or other), business, prospects, properties or results of
operations of the Company and its subsidiaries taken as a whole, and, except as disclosed in,
contemplated by or incorporated by reference in the Registration Statement, the Time of Sale
Information and the Prospectus, there has been no dividend or distribution of any kind declared,
set aside for payment, paid or made by the Company on any class of
its capital stock, neither the Company nor any of its subsidiaries
has incurred any liability or obligation, direct or contingent,
outside of the ordinary course, that is material to the Company and
its subsidiaries taken as a whole, nor has there
been any material loss or interference with the business of the Company and its subsidiaries from
fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor
disturbance or dispute or any action, order or decree of any court or arbitrator or governmental or
regulatory authority, except in each case as otherwise disclosed in the Registration Statement, the
Time of Sale Information and the Prospectus.
(g) Organization and Good Standing. The Company and each of its Principal Subsidiaries (as
defined below) have been duly organized and are validly existing and in good standing (where
applicable) under the laws of their respective jurisdictions of organization, are duly qualified to
do business and are in good standing (where applicable) in each jurisdiction in which their
respective ownership or lease of property or the conduct of their respective businesses requires
such qualification, and have all power and authority necessary to own or hold their respective
properties and to conduct the businesses in which they are engaged, except where the failure to be
so qualified or have such power or authority would not, individually or in the aggregate, have a
material adverse effect on the business, properties, management, financial position, results of
operations or prospects of the Company and its subsidiaries taken as a whole or on the performance
by the Company of its obligations under the Securities (a “Material Adverse Effect”).
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(h) Capitalization. The Company has an authorized capitalization as set forth in the
Registration Statement, the Time of Sale Information and the Prospectus under the heading
“Capitalization and Indebtedness of Lafarge”; and all the outstanding shares of capital stock or
other equity interests of each Principal Subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and are owned directly or indirectly by
the Company, free and clear of any lien, charge, encumbrance, security interest, restriction on
voting or transfer or any other claim of any third party (except in each case as otherwise
described in the Registration Statement, the Time of Sale Information and the Prospectus).
(i) Due Authorization. The Company has full right, power and authority to execute and deliver
this Agreement, the Securities and the Indenture (collectively, the “Transaction Documents”) and to
perform its obligations hereunder and thereunder; and all action required to be taken for the due
and proper authorization, execution and delivery of each of the Transaction Documents and the
consummation of the transactions contemplated thereby has been duly and validly taken.
(j) The Indenture. The Indenture has been duly authorized, executed and delivered by the
Company and has been duly qualified under the Trust Indenture Act and constitutes a valid and
legally binding agreement of the Company enforceable against the Company in accordance with its
terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights
generally and to general principles of equity (collectively, the “Enforceability Exceptions”).
(k) The Securities. The Securities have been duly authorized by the Company and, when duly
executed, authenticated, issued and delivered as provided in the Indenture and paid for as provided
herein, will be duly and validly issued and outstanding and will constitute valid and legally
binding obligations of the Company enforceable against the Company in accordance with their terms,
subject to the Enforceability Exceptions, and will be entitled to the benefits of the Indenture.
(l) Descriptions of the Transaction Documents. Each Transaction Document conforms in all
material respects to the description thereof contained in the Registration Statement, the Time of
Sale Information and the Prospectus.
(m) Underwriting Agreement. The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
(n) No Violation or Default. The Company is not (i) in violation of its charter or by-laws or
similar organizational documents; (ii) in default, and no event has occurred
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that, with notice or
lapse of time or both, would constitute such a default, in the due performance or observance of any
term, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Company is a party or by which the Company is bound or
to which any of the property or assets of the Company is subject; or (iii) in violation of any law
or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or
regulatory authority, except, in the case of clauses (ii) and (iii) above, for any such default or
violation that would not, individually or in the aggregate, have a Material Adverse Effect.
(o) No Conflicts. The execution, delivery and performance by the Company of each of the
Transaction Documents, the issuance and sale of the Securities and compliance by the Company with
the terms thereof and the consummation of the transactions contemplated by the Transaction
Documents will not (i) conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company pursuant to, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company is a
party or by which the Company is bound or to which any of the property or assets of the Company is
subject, (ii) result in any violation of the provisions of the charter or by-laws or similar
organizational documents of the Company or (iii) result in the violation of any law or statute or
any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory
authority, except, in the case of clauses (i) and (iii) above, for any such conflict, breach or
violation that would not, individually or in the aggregate, have a Material Adverse Effect.
(p) No Consents Required. No consent, approval, authorization, order, registration or
qualification of or with any court or arbitrator or governmental or regulatory authority is
required for the execution, delivery and performance by the Company of each of the Transaction
Documents, the issuance and sale of the Securities and compliance by the Company with the terms
thereof and the consummation of the transactions contemplated by the Transaction Documents, except
for such consents, approvals, authorizations, orders and registrations or qualifications (i) as
have been obtained under the Securities Act and the Trust Indenture Act and (ii) as may be required
under applicable state securities laws in connection with the purchase and distribution of the
Securities by the Underwriters.
(q) Legal Proceedings. Except as described in the Registration Statement, the Time of Sale
Information and the Prospectus, there are no legal, governmental or regulatory investigations,
actions, suits or proceedings pending to which the Company or any of its subsidiaries is or may be
a party or to which any property of the Company
or any of its subsidiaries is or may be the subject that, individually or in the aggregate, if
determined adversely to the Company or any of its subsidiaries, could reasonably be expected to
have a Material Adverse Effect; no such investigations, actions, suits or proceedings are
threatened or, to the best knowledge of the Company, contemplated by any governmental or regulatory
authority or threatened by others; and (i) there are
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no current or pending legal, governmental or
regulatory actions, suits or proceedings that are required under the Securities Act to be described
in the Registration Statement that are not so described in the Registration Statement and the
Prospectus and (ii) there are no contracts or other documents that are required under the
Securities Act to be filed as exhibits to the Registration Statement or described in the
Registration Statement or the Prospectus that are not so filed as exhibits to the Registration
Statement or described in the Registration Statement, the Time of Sale Information and the
Prospectus.
(r) Independent Accountants. Deloitte & Associés, who have certified certain financial
statements of the Company and its subsidiaries, and Ernst & Young LLP, who have certified certain
financial statements of Lafarge North America Inc., are each an independent registered public
accounting firm with respect to the Company and its subsidiaries within the applicable rules and
regulations adopted by the Commission and the Public Accounting Oversight Board (United States) and
as required by the Securities Act.
(s) Investment Company Act. The Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as described in the Registration
Statement, the Time of Sale Information and the Prospectus, will not be an “investment company” or
an entity “controlled” by an “investment company” within the meaning of the Investment Company Act
of 1940, as amended, and the rules and regulations of the Commission thereunder (collectively,
“Investment Company Act”).
(t) Forward-Looking Statements. No forward-looking statement (within the meaning of Section
27A of the Securities Act and Section 21E of the Exchange Act) contained or incorporated by
reference in the Registration Statement, the Time of Sale Information and the Prospectus has been
made or reaffirmed without a reasonable basis or has been disclosed other than in good faith.
(u) Status under the Securities Act. The Company is not an ineligible issuer and is a
well-known seasoned issuer, in each case as defined under the Securities Act, in each case at the
times specified in the Securities Act in connection with the offering of the Securities.
4. Further Agreements of the Company. The Company covenants and agrees with each
Underwriter that:
(a) Filings with the Commission. The Company will (i) pay the registration fees for this
offering within the time period required by Rule 456(b)(1) under the Securities Act prior to the
Closing Date and (ii) file the Prospectus in a form approved by the Underwriters with the
Commission pursuant to Rule 424 under the Securities Act not later than the close of business on
the second business day following the date of determination of the public offering price of the
Securities or, if applicable, such earlier time as may be required by Rule 424(b) and Rule 430A,
430B or 430C under the
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Securities Act. The Company will file any Issuer Free Writing Prospectus to
the extent required by Rule 433 under the Securities Act; and the Company will furnish copies of
the Prospectus and each Issuer Free Writing Prospectus (to the extent not previously delivered) to
the Underwriters in [New York City prior to 10:00 A.M., New York City time], on the business day
next succeeding the date of this Agreement in such quantities as the Representative may reasonably
request.
(b) Delivery of Copies. The Company will deliver, without charge, to each Underwriter during
the Prospectus Delivery Period (as defined below), as many copies of the Prospectus (including all
amendments and supplements thereto) and each Issuer Free Writing Prospectus (if applicable) as the
Representative may reasonably request. As used herein, the term “Prospectus Delivery Period” means
such period of time after the first date of the public offering of the Securities as in the opinion
of counsel for the Underwriters a prospectus relating to the Securities is required by law to be
delivered (or required to be delivered but for Rule 172 under the Securities Act) in connection
with sales of the Securities by any Underwriter or dealer.
(c) Issuer Free Writing Prospectus. The Company (including its agents and representatives,
other than the Underwriters in their capacity as such) agrees that, unless it has obtained or will
obtain, as the case may be, the prior written consent of the Representative, it has not made and
will not make any offer relating to the Securities that would constitute an Issuer Free Writing
Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405)
required to be filed by the Company with the Commission or retained by the Company under Rule 433;
provided that the prior written consent of the Representative shall be deemed to have been given in
respect of the Issuer Free Writing Prospectuses, if any, included on Schedule 3 to the Underwriting
Agreement.
(d) Amendments or Supplements; Issuer Free Writing Prospectuses. Before preparing, using,
authorizing, approving, referring to or filing any Issuer Free Writing Prospectus, and before
filing any amendment or supplement to the Registration Statement or the Prospectus, the Company
will furnish to the Representative and counsel for the Underwriters a copy of the proposed Issuer
Free Writing Prospectus, amendment or supplement for review and will not prepare, use, authorize,
approve, refer to or file any such Issuer Free Writing Prospectus or file any such proposed
amendment or supplement to which the Representative reasonably objects unless, in the case of a
filing, the Company is required by law to make such filing.
(e) Notice to the Representative. The Company will advise the Representative promptly, and
confirm such advice in writing, (i) when any amendment to the Registration Statement has been filed
or becomes effective; (ii) when any supplement to the Prospectus or any amendment to the Prospectus
or any Issuer Free Writing Prospectus has been filed; (iii) of any request by the Commission for
any amendment to the Registration Statement or any amendment or supplement to the Prospectus or the
receipt of any comments from the Commission relating to the Registration Statement or any other
request by the Commission for any additional
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information; (iv) of the issuance by the Commission of
any order suspending the effectiveness of the Registration Statement or preventing or suspending
the use of any Preliminary Prospectus or the Prospectus or the initiation or threatening of any
proceeding for that purpose or pursuant to Section 8A of the Securities Act; (v) of the occurrence
of any event within the Prospectus Delivery Period as a result of which the Prospectus, the Time of
Sale Information or any Issuer Free Writing Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the light of the
circumstances existing when the Prospectus, the Time of Sale Information or any such Issuer Free
Writing Prospectus is delivered to a purchaser, not misleading; (vi) of the receipt by the Company
of any notice of objection of the Commission to the use of the Registration Statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act; and (vii) of
the receipt by the Company of any notice with respect to any suspension of the qualification of the
Securities for offer and sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose. The Company will use its reasonable best efforts to prevent the
issuance of any such order suspending the effectiveness of the Registration Statement, preventing
or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such
qualification of the Securities and, if any such order is issued, to obtain as soon as possible the
withdrawal thereof.
(f) Ongoing Compliance. (1) If during the Prospectus Delivery Period (i) any event shall
occur or condition shall exist as a result of which the Prospectus as then amended or supplemented
would include any untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein, in the light of the
circumstances existing when the Prospectus is delivered to a purchaser, not misleading or (ii) it
is necessary to amend or supplement the Prospectus to comply with law, the Company will immediately
notify the Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file
with the Commission and furnish to the Underwriters and to such dealers as the Representative may
designate, such amendments or supplements to the Prospectus as may be necessary so that the
statements in the Prospectus as so amended or supplemented will not, in the light of the
circumstances existing when the Prospectus is delivered to a purchaser, be misleading or so that
the Prospectus will comply with law and (2) if at any time prior to the Closing Date (i) any event
shall occur or condition shall exist as a result of which the Time of Sale Information as then
amended or supplemented would include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of the circumstances,
not misleading or (ii) it is necessary to amend or supplement the Time of Sale Information to
comply with law, the Company will immediately notify the Underwriters thereof and forthwith prepare
and, subject to paragraph (d) above, file with the Commission (to the extent required) and furnish
to the Underwriters and to such dealers as the Representative may designate, such amendments or
supplements to the Time of Sale Information as may be necessary so that the statements in the Time
of Sale Information as so amended or supplemented will not, in the light of the
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circumstances, be
misleading or so that the Time of Sale Information will comply with law.
(g) Blue Sky Compliance. The Company will arrange, if necessary, for the qualification of the
Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as the
Representative shall reasonably request and will continue such qualifications in effect so long as
required for distribution of the Securities; provided that the Company shall not be
required to (i) qualify as a foreign corporation or other entity or as a dealer in securities in
any such jurisdiction where it would not otherwise be required to so qualify, (ii) file any general
consent to service of process in any such jurisdiction or (iii) subject itself to taxation in any
such jurisdiction if it is not otherwise so subject.
(h) Earning Statement. The Company will make generally available to its security holders and
the Representative as soon as practicable an earning statement that satisfies the provisions of
Section 11(a) of the Securities Act and Rule 158 of the Commission promulgated thereunder.
(i) Clear Market. During the period from the date hereof through and including the Closing
Date or such later date as is specified in the Underwriting Agreement, the Company will not,
without the prior written consent of the Representative, offer, sell, contract to sell or otherwise
dispose of any debt securities issued or guaranteed by the Company and having a tenor of more than
one year, other than debt securities offered and sold exclusively outside the United States in
reliance on Regulation S under the Securities Act.
(j) Use of Proceeds. The Company will apply the net proceeds from the sale of the Securities
as described in the Registration Statement, the Time of Sale Information and the Prospectus under
the heading “Use of Proceeds.”
(k) No Stabilization. The Company will not take, directly or indirectly, any action designed
to or that could reasonably be expected to cause or result in any stabilization or manipulation of
the price of the Securities.
(l) Filing of Exchange Act Documents. The Company will file promptly all reports required to
be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act during the Prospectus Delivery Period.
(m) Record Retention. The Company will, pursuant to reasonable procedures developed in good
faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission
in accordance with Rule 433 under the Securities Act.
(n) French
selling restriction. The Company represents and agrees that it
has not offered or sold and will not offer or sell, directly or
indirectly, the Securities to the public in France (xxxxx public
à
l’épargne), and has not distributed or caused to be
distributed and will not distribute or cause to be distributed to the
public in France, the Prospectus or any other offering material
relating to the Securities, and that such offers, sales and
distributions have been and will only be made in France through an
international syndicate to qualified investors (investisseurs
qualifiés), as defined in, and in accordance with,
Articles L.411-1, L.411-2, D.411-1, D.411-2, D.734-1, D.744-1,
D.754-1 and D.764-1 of the French Code monétaire et
financier, except that qualified investors shall not include
individuals. The direct or indirect distribution to the public in
France of any Securities so acquired may be made only as provided by
Articles L.411-1, L.411-2, L.412-1 and L.671-8 to L.671-8-3 of
the Code monétaire et financier and applicable
regulations thereunder.
5. Certain Agreements of the Underwriters. Each Underwriter hereby represents and
agrees that
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(a) It has not and will not use, authorize use of, refer to, or participate in the planning
for use of, any “free writing prospectus”, as defined in Rule 405 under the Securities Act (which
term includes use of any written information furnished to the Commission by the Company and not
incorporated by reference into the Registration Statement and any press release issued by the
Company) other than (i) a free writing prospectus that, solely as a result of use by such
Underwriter, would not trigger an obligation to file such free writing prospectus with the
Commission pursuant to Rule 433 (other than a free writing prospectus permitted under clause (b)
below); (ii) any Issuer Free Writing Prospectus listed on Schedule 3 to the Underwriting Agreement
or prepared pursuant to Section 4(d) above; or (iii) any free writing prospectus prepared by such
underwriter and approved by the Company in advance in writing (each such free writing prospectus
referred to in clauses (i) or (iii), an “Underwriter Free Writing Prospectus”).
(b) It has not and will not, without the prior written consent of the Company, use any free
writing prospectus that contains the final terms of the Securities unless such terms have
previously been included in a free writing prospectus filed with the Commission; provided that
Underwriters may use a term sheet substantially in the form of Schedule 4 to the Underwriting
Agreement without the consent of the Company or containing substantially the same information as
contained in Schedule 4.
(c) It is not subject to any pending proceeding under Section 8A of the Securities Act with
respect to the offering (and will promptly notify the Company if any such proceeding against it is
initiated during the Prospectus Delivery Period).
(d) Each Underwriter severally represents, warrants and agrees that: in relation to each Member State
of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant
Member State”), it has not made and will not make an offer of the Securities to the public in that
Relevant Member State, except that it may make an offer of Securities to the public in that
Relevant Member State at any time under the following exemptions under the Prospectus Directive (as
defined below), if they have been implemented in that Relevant Member State: (i) to legal entities
which are authorized or regulated to operate in the financial markets or, if not so authorized or
regulated, whose corporate purpose is solely to invest in securities; (ii) to any legal entity
which has two or more of the following (1) an average of at least 250 employees during the last
financial year; (2) a total balance sheet of more than €43,000,000 and (3) an annual net turnover
of more than €50,000,000, as shown in its last annual or consolidated accounts; (iii) to fewer than
100 natural or legal persons (other than qualified investors as defined in the Prospectus
Directive) subject to obtaining the prior consent of the [Joint Book-running Managers] for any such
offer; or (iv) in any other circumstances falling within Article 3(2) of the Prospectus Directive,
provided that no such offer of Securities to the public shall result in a requirement for
the publication by the Company or the Underwriters of a prospectus pursuant to Article 3 of the
Prospectus Directive.
12
For the purposes of the preceding paragraphs, the expression “offer of Securities to the public” in
relation to any Securities in any Relevant Member State means the communication in any form and by
any means of sufficient information on the terms of the offer and the Securities to be offered so
as to enable an investor to decide to purchase the Securities, as the same may be varied in that
Member State by any measure implementing the Prospectus Directive in that Member State and the
expression “Prospectus Directive” means Directive 2003/71/EC and includes any relevant implementing
measure in each Relevant Member State.
(e) Each
Underwriter severally represents and agrees that it has not offered
or sold and will not offer or sell, directly or indirectly, the
Securities to the public in France (xxxxx public à
l’épargne), and has not distributed or caused to be
distributed and will not distribute or cause to be distributed to the
public in France, the Prospectus or any other offering material
relating to the Securities, and that such offers, sales and
distributions have been and will only be made in France through an
international syndicate to qualified investors (investisseurs
qualifiés), as defined in, and in accordance with,
Articles L.411-1, L.411-2, D.411-1, D.411-2, D.734-1, D.744-1,
D.754-1 and D.764-1 of the French Code monétaire et
financier, except that qualified investors shall not include
individuals. The direct or indirect distribution to the public in
France of any Securities so acquired may be made only as provided by
Articles L.411-1, L.411-2, L.412-1 and L.621-8 to L.621-8-3 of
the Code monétaire et financier and applicable
regulations thereunder.
6. Conditions of Underwriters’ Obligations. The obligation of each Underwriter to
purchase Securities on the Closing Date as provided herein is subject to the performance by the
Company of its covenants and other obligations hereunder and to the following additional
conditions:
(a) Registration Compliance; No Stop Order. No order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceeding for such purpose, pursuant to Rule
401(g)(2) or pursuant to Section 8A under the Securities Act shall be pending before or threatened
by the Commission; the Prospectus and each Issuer Free Writing Prospectus shall have been timely
filed with the Commission under the Securities Act (in the case of an Issuer Free Writing
Prospectus, to the extent required by Rule 433 under the Securities Act) and in accordance with
Section 4(a) hereof.
(b) Representations and Warranties. The representations and warranties of the Company
contained herein shall be true and correct on the date hereof and on and as of the Closing Date;
and the statements of the Company and its officers made in any certificates delivered pursuant to
this Agreement shall be true and correct on and as of the Closing Date.
(c) No Downgrade. Subsequent to the execution and delivery of this Agreement, (i) no
downgrading shall have occurred in the rating accorded the Securities or any other debt securities
of the Company by any “nationally recognized statistical rating organization,” as such term is
defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act and (ii) no such
organization shall have publicly announced that it has under surveillance or review, or has changed
its outlook with respect to, its rating of the Securities or of any other debt securities of the
Company (other than an announcement with positive implications of a possible upgrading).
(d) No Material Adverse Change. No event or condition of a type described in Section 3(f)
hereof shall have occurred or shall exist, which event or condition is not described in the Time of
Sale Information (excluding any amendment or supplement thereto) and the Prospectus (excluding any
amendment or supplement thereto) and the
13
effect of which in the judgment of the Representative
makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the
Securities on the terms and in the manner contemplated by this Agreement, the Time of Sale
Information and the Prospectus.
(e) Officer’s Certificate. The Representative shall have received on and as of the Closing
Date a certificate of an executive officer of the Company who has specific knowledge of the
Company’s financial matters and is satisfactory to the Representative (i) confirming that such
officer has carefully reviewed the Registration Statement, the Time of Sale Information and the
Prospectus and, to the best knowledge of such officer, the representations set forth in Sections
3(a) and 3(b) hereof are true and correct, (ii) confirming that the other representations and
warranties of the Company in this Agreement are true and correct and that the Company has complied
with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder
at or prior to the Closing Date and (iii) to the effect set forth in paragraphs (a), (c) and (d)
above.
(f) Comfort
Letters. On the date of this Agreement and on the Closing Date, Deloitte &
Associés and Ernst & Young Audit shall have furnished to the Representative, at the request of the
Company, letters, dated the respective dates of delivery thereof and addressed to the Underwriters,
in form and substance reasonably satisfactory to the Representative, containing statements and
information of the type customarily included in accountants’ “comfort letters” to underwriters with
respect to the financial statements and certain financial information contained or incorporated by
reference in the Registration Statement, the Time of Sale Information and the Prospectus;
provided
that the letter delivered on the Closing Date shall use a “cut-off” date no more than three
business days prior to the Closing Date.
(g) Opinion of Counsel for the Company. Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, counsel for the
Company, shall have furnished to the Representative, at the request of the Company, their written
opinion, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably
satisfactory to the Representative, to the effect set forth in Annex B hereto.
(h) Opinion of Internal Counsel for the Company. Xxxxxx Xxxxxxx, general counsel of the
Company, shall have furnished to the Representative a written opinion, dated the Closing Date and
addressed to the Underwriters, in form and substance reasonably satisfactory to the Representative,
to the effect set forth in Annex C hereto.
(i) Opinion of Counsel for the Underwriters. The Representative shall have received on and as
of the Closing Date an opinion of Xxxxx Xxxx & Xxxxxxxx, counsel for the Underwriters, with respect
to such matters as the Representative may reasonably request, and such counsel shall have received
such documents and information as they may reasonably request to enable them to pass upon such
matters.
14
(j) No
Legal Impediment to Issuance. No action shall have been taken and
no statute, rule, regulation or order shall have been enacted,
adopted or issued by any federal, state or foreign governmental or
regulatory authority that would, as of the Closing Date, prevent the
issuance or sale of the Securities; and no injunction or order of any
federal, state or foreign court shall have been issued that would, as
of the Closing Date, prevent the issuance or sale of the Securities.
(k) Good Standing. The Representative shall have received on and as of the Closing Date an
extract from the commercial registry of Paris with respect to the
Company and satisfactory evidence of the good standing of Lafarge
North America Inc. and Lafarge Canada Inc. in their respective
jurisdictions of organization.
(l) Additional Documents. On or prior to the Closing Date, the Company shall have furnished
to the Representative such further certificates and documents as the Representative may reasonably
request.
All opinions, letters, certificates and evidence mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel for the Underwriters.
7. Indemnification and Contribution.
(a) Indemnification of the Underwriters. The Company agrees to indemnify and hold harmless
each Underwriter, its affiliates, directors and officers and each person, if any, who controls such
Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages and liabilities (including, without
limitation, legal fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted as such fees and expenses are incurred), joint or several, that
arise out of, or are based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary in order to make the
statements therein, not misleading, or (ii) any untrue statement or
alleged untrue statement of a material fact contained in the Prospectus (or any amendment or
supplement thereto), any Issuer Free Writing Prospectus or any Time of Sale Information, or caused
by any omission or alleged omission to state therein a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made, not misleading, in
each case except insofar as such losses, claims, damages or liabilities arise out of, or are based
upon, any untrue statement or omission or alleged untrue statement or omission made therein in
reliance upon and in conformity with any information relating to any Underwriter furnished to the
Company in writing by such Underwriter through the Representative
expressly for use therein.
15
(b) Indemnification of the Company. Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who signed the Registration
Statement and each person, if any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the indemnity set forth in
paragraph (a) above, but only with respect to any losses, claims, damages or liabilities that arise
out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with any information relating to such Underwriter furnished
to the Company in writing by such Underwriter through the Representative expressly for use in the
Registration Statement, the Prospectus (or any amendment or supplement thereto), any Issuer Free
Writing Prospectus or any Time of Sale Information, it being understood and agreed that the only
such information consists of the information identified in the Underwriting Agreement as being
provided by the Underwriters.
(c) Notice and Procedures. If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against any person in
respect of which indemnification may be sought pursuant to either paragraph (a) or (b) above, such
person (the “Indemnified Person”) shall promptly notify the person against whom such
indemnification may be sought (the
“Indemnifying Person”) in writing; provided that the failure to notify the Indemnifying
Person shall not relieve it from any liability that it may have under this Section 7 except to the
extent that it has been materially prejudiced (through the forfeiture of substantive rights or
defenses) by such failure; and provided, further, that the failure to notify the
Indemnifying Person shall not relieve it from any liability that it may have to an Indemnified
Person otherwise than under this Section 7. If any such proceeding shall be brought or asserted
against an Indemnified Person and it shall have notified the Indemnifying Person thereof, the
Indemnifying Person shall retain counsel reasonably satisfactory to the Indemnified Person to
represent the Indemnified Person and any others entitled to indemnification pursuant to this
Section 7 that the Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding as incurred. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees and expenses of
such counsel shall be at the expense of such Indemnified Person unless (i) the Indemnifying Person
and the Indemnified Person shall have mutually agreed to the contrary, (ii) the Indemnifying Person
has failed within a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person; (iii) the Indemnified Person shall have reasonably concluded that there may be legal
defenses available to it that are different from or in addition to those available to the
Indemnifying Person; or (iv) the named parties in any such proceeding (including any impleaded
parties) include both the Indemnifying Person and the Indemnified Person and representation of both
parties by the same counsel would be inappropriate due to actual or potential differing interests
between them. It is
16
understood and agreed that the Indemnifying Person shall not, in connection
with any proceeding or related proceeding in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local counsel) for all Indemnified
Persons, and that all such fees and expenses shall be reimbursed as they are incurred. Any such
separate firm for any Underwriter, its affiliates, directors and officers and any control persons
of such Underwriter shall be designated in writing by the Representative and any such separate firm
for the Company, its directors, its officers who signed the Registration Statement and any control
persons of the Company shall be designated in writing by the Company. The Indemnifying Person
shall not be liable for any settlement of any proceeding effected without its written consent, but
if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying
Person agrees to indemnify each Indemnified Person from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an
Indemnified Person shall have requested that an Indemnifying Person reimburse the Indemnified
Person for fees and expenses of counsel as contemplated by this paragraph, the Indemnifying Person
shall be liable for any settlement of any proceeding effected without its written consent if (i)
such settlement is entered into more than 30 days after receipt by the Indemnifying Person of such
request and (ii) the Indemnifying Person shall not have reimbursed the Indemnified Person in
accordance with such request prior to the date of such settlement. No Indemnifying Person shall,
without the written consent of the Indemnified Person, effect any settlement of any pending or
threatened proceeding in respect of which any Indemnified Person is or could have been a party and
indemnification could have been sought hereunder by such Indemnified Person, unless such settlement
(x) includes an unconditional release of each Indemnified Person
in form and substance reasonably satisfactory to such Indemnified Person from all liability on claims that
are the subject matter of such proceeding and (y) does not include any statement as to or any
admission of fault, culpability or a failure to act by or on behalf of any Indemnified Person.
(d) Contribution. If the indemnification provided for in paragraphs (a) and (b) above is
unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other from the offering of the Securities or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i) but also the
relative fault of the Company on the one hand and the Underwriters on the other in connection with
the statements or omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received by the Company on
the one hand and the Underwriters on the other shall be deemed to be in the same respective
proportions as the net proceeds (before deducting expenses) received by the Company from the sale
of the Securities and the total underwriting discounts and commissions received by the Underwriters
in
17
connection therewith, in each case as set forth in the table on the cover of the Prospectus,
bear to the aggregate offering price of the Securities. The relative fault of the Company on the
one hand and the Underwriters on the other shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company or by the
Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(e) Limitation on Liability. The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such purpose) or
by any other method of allocation that does not take account of the equitable considerations
referred to in paragraph (d) above. The amount paid or payable by an Indemnified Person as a
result of the losses, claims, damages and liabilities referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth above, any legal or other expenses incurred
by such Indemnified Person in connection with any such action or claim. Notwithstanding the
provisions of this Section 7, in no event shall an Underwriter be required to contribute any amount
in excess of the amount by which the total underwriting discounts and
commissions received by such
Underwriter with respect to the offering of the Securities exceeds the amount of any damages that such Underwriter has
otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. The
Underwriters’ obligations to contribute pursuant to this Section 7 are several in proportion to
their respective purchase obligations hereunder and not joint.
(f) Non-Exclusive Remedies. The remedies provided for in this Section 7 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any Indemnified Person
at law or in equity.
8. Termination. This Agreement may be terminated in the absolute discretion of the
Representative, by notice to the Company, if after the execution and delivery of this Agreement and
prior to the Closing Date (i) trading generally shall have been suspended or materially limited on
the New York Stock Exchange; (ii) trading of any securities issued or guaranteed by the Company
shall have been suspended on any exchange (except on a temporary basis
by Euronext pending an announcement by the Company);
(iii) a general moratorium on commercial banking activities shall have been declared by federal or
New York State authorities; or (iv) there shall have occurred any outbreak or escalation of
hostilities or any change in financial markets or any calamity or crisis, either within or outside
the United States, that, in the judgment of the Representative, is material and adverse and makes
it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on
the terms and in the manner contemplated by this Agreement, the Time of Sale Information and the
Prospectus.
18
9. Defaulting Underwriter. (a) If, on the Closing Date, any Underwriter defaults on
its obligation to purchase the Securities that it has agreed to purchase hereunder, the
non-defaulting Underwriters may in their discretion arrange for the purchase of such Securities by
other persons satisfactory to the Company on the terms contained in this Agreement. If, within 36
hours after any such default by any Underwriter, the non-defaulting Underwriters do not arrange for
the purchase of such Securities, then the Company shall be entitled to a further period of 36 hours
within which to procure other persons satisfactory to the non-defaulting Underwriters to purchase
such Securities on such terms. If other persons become obligated or agree to purchase the
Securities of a defaulting Underwriter, either the non-defaulting Underwriters or the Company may
postpone the Closing Date for up to five full business days in order to effect any changes that in
the opinion of counsel for the Company or counsel for the Underwriters may be necessary in the
Registration Statement and the Prospectus or in any other document or arrangement, and the Company
agrees to promptly prepare any amendment or supplement to the Registration Statement and the
Prospectus that effects any such changes. As used in this Agreement, the term “Underwriter”
includes, for all purposes of this Agreement unless the context otherwise requires, any person not
listed in the Underwriting Agreement that, pursuant to this Section 9, purchases Securities that a
defaulting Underwriter agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as
provided in paragraph (a) above, the aggregate principal amount of such Securities that remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of all the Securities,
then the Company shall have the right to require each non-defaulting Underwriter to purchase the
principal amount of Securities that such Underwriter agreed to purchase hereunder plus such
Underwriter’s pro rata share (based on the principal amount of Securities that such
Underwriter agreed to purchase hereunder) of the Securities of such defaulting Underwriter or
Underwriters for which such arrangements have not been made.
(c) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as
provided in paragraph (a) above, the aggregate principal amount of such Securities that remains
unpurchased exceeds one-eleventh of the aggregate principal amount of all the Securities, or if the
Company shall not exercise the right described in paragraph (b) above, then this Agreement shall
terminate without liability on the part of the non-defaulting Underwriters. Any termination of
this Agreement pursuant to this Section 9 shall be without liability on the part of the Company,
except that the Company will continue to be liable for the payment of expenses as set forth in
Section 10 hereof, and except that the provisions of Section 7 hereof shall not terminate and shall
remain in effect.
19
(d) Nothing contained herein shall relieve a defaulting Underwriter of any liability it may
have to the Company or any non-defaulting Underwriter for damages caused by its default.
10. Payment of Expenses. All expenses incident to the performance of each party’s
obligations under this Agreement shall be paid in the manner specified in the Underwriting
Agreement.
11. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective successors and the officers
and directors and any controlling persons referred to herein, and the affiliates of each
Underwriter referred to in Section 7 hereof. Nothing in this Agreement is intended or shall be
construed to give any other person any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein. No purchaser of Securities from any
Underwriter shall be deemed to be a successor merely by reason of such purchase.
12. Survival. The respective indemnities, rights of contribution, representations,
warranties and agreements of the Company and the Underwriters contained in this Agreement or made
by or on behalf of the Company or the Underwriters pursuant to this Agreement or any certificate
delivered pursuant hereto shall survive the delivery of and payment for the Securities and shall
remain in full force and effect, regardless of any
termination of this Agreement or any investigation made by or on behalf of the Company or the
Underwriters.
13. Certain Defined Terms. For purposes of this Agreement, (a) except where otherwise
expressly provided, the term “affiliate” has the meaning set forth in Rule 405 under the Securities
Act; (b) the term “business day” means any day other than a day on which banks are permitted or
required to be closed in New York City; and (c) the term “subsidiary” has the meaning set forth in
Rule 405 under the Securities Act.
For
the purposes of this Agreement, “Principal Subsidiary” means at any relevant time a Subsidiary of the Company:
(i) Whose total revenues (or, where the Subsidiary in question prepares consolidated financial
statements, whose total consolidated revenues) attributable to the Company and its consolidated
subsidiaries represent not less than 5 percent of the total consolidated revenues of the Company
and its consolidated subsidiaries, all as calculated by reference to the then latest audited
financial statements (or consolidated financial statements, as the case may be) of such Subsidiary
and the then latest consolidated financial statements of the Company and its consolidated
subsidiaries; or
(ii) To which is transferred all or substantially all the assets and undertakings of a
Subsidiary which immediately prior to such transfer is a Principal Subsidiary.
For the purpose of the definition of “Principal Subsidiary,” “Subsidiary” means, in relation to any
person or entity at any time, any other person or entity (whether or not now existing) meeting the definition of Article L.233-1 of the French Commercial Code or any other person or entity controlled directly
or indirectly by such person or entity within the meaning of Article L.233-3 of the French
Commercial Code.
14. Miscellaneous. (a) Authority of the Representative. Any action by the
Underwriters hereunder may be taken by the Representative on behalf of the Underwriters, and any
such action taken by the Representative shall be binding upon the Underwriters.
(b) Notices. All notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted and confirmed by any standard form of
telecommunication. Notices to the Underwriters shall be given to the Representative at the address
set forth in the Underwriting Agreement. Notices to the Company shall be given to it at 00, xxx
xxx Xxxxxx Xxxxxxxx, 00000 Xxxxx, Xxxxxx, Attention: Xxxxxx Xxxxxxx, or if different,
to the address set forth in the Underwriting Agreement.
20
(c) Governing Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
(d) Amendments or Waivers. No amendment or waiver of any provision of this Agreement, nor any
consent or approval to any departure therefrom, shall in any event be effective unless the same
shall be in writing and signed by the parties hereto.
(e) Headings. The headings herein are included for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this Agreement.
21
Annex A
[Form of Underwriting Agreement]
Underwriting Agreement
, 200___
[Name(s)
of Representative(s)]
As Representative(s) of the
several Underwriters listed
in Schedule 1 hereto
several Underwriters listed
in Schedule 1 hereto
c/o [Name(s) and Address(es) of Representative(s)]
Ladies and Gentlemen:
Lafarge S.A., a société anonyme organized under the laws of the Republic of France (the
“Company”), proposes to issue and sell to the several Underwriters listed in Schedule 1 hereto (the
“Underwriters”), for whom you are acting as representative (the “Representative”), $
principal amount of its ___% Notes due 20___ having the terms set forth in Schedule 2 hereto (the
“Securities”). The Securities will be issued pursuant to an Indenture [to be] dated as of
,
200___ (the “Indenture”) between the Company and Law Debenture Trust Company of New
York, as trustee (the “Trustee”).
Subject to the terms and conditions and in reliance upon the representations and warranties
herein set forth, the Company agrees to issue and sell the Securities to the several Underwriters
named in the Underwriting Agreement, and each Underwriter, subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, agrees, severally and not
jointly, to purchase from the Company the respective principal amount of Securities set forth
opposite such Underwriter’s name in Schedule 1 hereto at a price equal to ___% of the principal
amount thereof plus accrued interest, if any, from
, 200___ to the Closing Date (as
defined below). The Company will not be obligated to deliver any of the Securities except upon
payment for all the Securities to be purchased as provided herein.
The Company understands that the Underwriters intend to make a public offering of the
Securities as soon after the effectiveness of this Agreement as in the judgment of the
Representative is advisable, and initially to offer the Securities on the
terms set forth in the Time of Sale Information and the Prospectus. Schedule 3 hereto sets forth
22
information that together with (i) the Basic Prospectus, as amended and supplemented to the date of
the Underwriting Agreement, and (ii) the Preliminary Prospectus used most recently prior to the
execution of the Underwriting Agreement, constitute the Time of Sale Information made available at
the Time of Sale. The Company acknowledges and agrees that the Underwriters may offer and sell
Securities to or through any affiliate of an Underwriter and that any such affiliate may offer and
sell Securities purchased by it to or through any Underwriter.
Payment for and delivery of the Securities shall be made at the offices of Xxxxx Xxxx &
Xxxxxxxx, [450 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000] at [10:00 A.M.], [New York City] time, on
, 200___, or at such other time or place on the same or such other date, not later than
the fifth business day thereafter, as the Representative and the Company may agree upon in writing.
Payment for the Securities shall be made by wire transfer in immediately available funds to
the account(s) specified by the Company to the Representative against delivery to the nominee of
The Depository Trust Company, for the account of the Underwriters, of one or more global notes
representing the Securities (collectively, the “Global Note”), with any transfer taxes payable in
connection with the sale of the Securities duly paid by the Company. [The Global Note will be made
available for inspection by the Representative not later than 1:00 P.M., New York City time, on the
business day prior to the Closing Date.]
The Company and the Underwriters acknowledge and agree that the only information relating to
any Underwriter that has been furnished to the Company in writing by any Underwriter through the
Representative expressly for use in the Registration Statement, the Prospectus (or any amendment or
supplement thereto) any Issuer Free Writing Prospectus or any Time of Sale Information and [any
Preliminary Prospectus] consists of the following: [insert references to appropriate paragraphs]
[and the following information in the Issuer Free Writing
Prospectus dated , 20
;
[insert description of information provided by Underwriters]].
[Payment of Expenses]
[Other than as set forth in the following paragraph,][a][A]ll provisions contained in the
document entitled Lafarge Debt Securities Underwriting Agreement Standard Provisions are
incorporated by reference herein in their entirety and shall be deemed to be a part of this
Underwriting Agreement to the same extent as if such provisions had been set forth in full herein,
except that if any term defined in such Underwriting Agreement Standard Provisions is otherwise
defined herein, the definition set forth herein shall control.
[Qualifications to Any Covenants or Representations Made by the Company]
23
This Agreement may be signed in counterparts (which may include counterparts delivered by any
standard form of telecommunication), each of which shall be an original and all of which together
shall constitute one and the same instrument.
24
If the foregoing is in accordance with your understanding, please indicate your acceptance of
this Agreement by signing in the space provided below.
Very truly yours, | ||||
LAFARGE | ||||
By | ||||
Title: |
Accepted: , 200___
[NAME(S) OF REPRESENTATIVE(S)]
For [itself] [themselves] and on behalf of the
several Underwriters listed
in Schedule 1 hereto.
several Underwriters listed
in Schedule 1 hereto.
By
Authorized Signatory
25
Schedule 1
Underwriter | Principal Amount | |||||||
$ | ||||||||
Total | $ |
26
Schedule 2
Representative(s) and Address(es) for Notices:
Certain Terms of the Securities:
Title of Securities: % Notes due 20__
Aggregate Principal Amount of Securities: $
Maturity Date: , 20__
Interest Rate: %
Interest Payment Dates: and , commencing , 200_
Record Dates: and
Redemption Provisions:
Redemption Provisions:
[Other Provisions:]
27
Schedule 3
[List each Issuer Free Writing Prospectus to be included in the Time of Sale Information]
[The Final Term Sheet substantially in the form of Schedule 4 to the Underwriting Agreement or
containing substantially the same information as contained in Schedule 4]
28
Schedule 4
[Form for Debt]
Pricing Term Sheet
Issuer: |
||
Size:
|
$ | |
Maturity:
|
___, 20___ | |
Coupon:
|
% | |
Price:
|
% of face amount | |
Yield to maturity:
|
% | |
Interest Payment Dates:
|
and , commencing , 2006 | |
Redemption Provisions: |
||
Settlement:
|
T+_; , 200___ | |
[CUSIP:
|
] | |
[Ratings:
|
] |
Note: A securities rating is not a recommendation to buy, sell or hold securities and
may be subject to revision or withdrawal at any time.
The issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents the issuer has filed with the SEC for more complete
information about the issuer and this offering. You may get these documents for free by visiting
XXXXX on the SEC Web site at xxx.xxx.xxx. Alternatively, the issuer, any underwriter or any dealer
participating in the offering will arrange to send you the prospectus if you request it by calling
toll-free 1-8[xx-xxx-xxxx] [or emailing [ ] at [ ] ].
29
Annex B
[Form of Opinion of Counsel for the Company]
30
Annex C
[Form of Opinion of Internal Counsel for the Company]
31