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EXECUTION COPY Exhibit 10.1
AMENDMENT NO. 1 TO
OPTION AGREEMENT FOR COMMON STOCK
AMENDMENT AGREEMENT No. 1, dated as of May 2, 2000 ("Amendment No.1"),
between Lafarge Corporation, a Maryland corporation (the "Company"),
and Lafarge S.A., a French corporation formerly known as Lafarge Coppee S.A.
(the "Parent").
WITNESSETH
WHEREAS, the Company and Parent are parties to an Option Agreement for
Common Stock dated as of November 1, 1993 (the "Original Agreement").
WHEREAS, the Original Agreement provides that whenever the Company
issues Relevant Voting Securities to any person other than the Parent, the
Parent shall have the right to purchase from the Company that amount of Relevant
Voting Securities necessary to permit the Parent to maintain a control margin of
1,000,000 votes in excess of 50% of the Total Voting Power of the Company as
defined within the Original Agreement (the "Control Right").
WHEREAS, the Parent, through its present holdings of the Company's
securities, currently maintains the control margin reflected within the Control
Right.
WHEREAS, the Control Right applies when the Company issues securities
that do not then carry voting rights but which are at some future date
exercisable for or convertible into the Company's Voting Securities such that
the Parent would be required to purchase from the Company similar convertible
securities at the same time the Company issues such convertible securities to
persons other than the Parent.
WHEREAS, the underlying purpose of the Original Agreement is to permit
the Parent to maintain the control margin reflected within the Control Right.
WHEREAS, when the Company issues convertible securities to persons
other than the Parent, the underlying purpose of the Original Agreement does not
require the Parent to purchase convertible securities at the same time that the
Company issues such convertible securities to persons other than the Parent.
WHEREAS, when the Company issues convertible securities to persons
other than the Parent, the underlying purpose of the Original Agreement can be
achieved by giving the Parent the right to purchase from the Company an
appropriate number of Relevant Voting Securities for or into which such
convertible securities are exercisable or convertible when the persons to whom
the Company issued the convertible securities exercises or converts such
convertible securities.
WHEREAS, the Company and the Parent desire to amend the Original
Agreement so that whenever the Company issues convertible securities to persons
other than the Parent, the Parent can choose to maintain the control margin
reflected within the Control Right by either purchasing from the Company an
appropriate amount of Relevant Voting Securities at the same
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time that the Company issues such convertible securities or purchasing from the
Company an appropriate amount of Relevant Voting Securities upon the exercise or
conversion of such convertible securities and the related issuance by the
Company to persons other than the Parent of Relevant Voting Securities for or
into which such convertible securities are exercisable or convertible.
WHEREAS, all capitalized terms used but not defined herein shall have
the meanings given them in the Original Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual and
dependent promises hereinafter set forth, the parties hereto agree as follows:
SECTION 1. Issuance of Convertible Securities
(a) When the Company shall issue to any person other than the Parent
any Relevant Voting Securities which are also Convertible Securities, the Parent
shall have the right, in its sole discretion, to either:
(i) purchase Relevant Voting Securities from the Company pursuant
to the terms and conditions set forth in the Original Agreement
as if this Amendment No. 1 had never been executed and delivered,
or
(ii) Purchase from the Company at the time the Company issues
Underlying Securities to any person other than the Parent up
to the amount of Underlying Securities as shall be necessary
to permit the Parent to achieve (on a basis assuming the
exercise of all conversion, exchange and similar rights of
outstanding securities except employee stock options) a
control margin of 1,000,000 votes in excess of 50% of the
Total Voting Power to be represented by all Includible Voting
Securities to be outstanding (or deemed to be outstanding)
after such issuances by the Company and purchases by the
Parent and the other purchaser(s).
(b) If the Parent elects to purchase Underlying Securities from the
Company pursuant to the provisions of Section 1(a)(ii) above, the Parent shall
pay the greater of the following to the Company for each Underlying Security it
shall purchase:
(i) if the Convertible Securities giving rise to the Underlying
Securities to be purchased by the Parent are interest bearing
securities (e.g. convertible debentures), the total
consideration paid to the Company for the Convertible
Securities, divided by the total number of Underlying
Securities which the Convertible Securities entitled the
holder thereof to receive upon conversion or exercise thereof;
plus the additional consideration, if any, per each share of
Underlying Security paid by the holder of the Convertible
Securities upon exercise or conversion thereof;
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(ii) if the Convertible Securities giving rise to the Underlying
Securities to be purchased by the Parent are non-interest
bearing securities (e.g. warrants), the total consideration
paid to the Company for the Convertible Securities, plus
interest on such amount from the date of issuance of the
Convertible Securities through the date of issuance of the
Underlying Securities (the "Interest Period") at the
Applicable Interest Rate (calculated for actual days elapsed
on the basis of a 360-day year) for each calendar quarter, or
part thereof, within the Interest Period, divided by the
total number of Underlying Securities which the
Convertible Securities entitled the holder thereof to receive
upon conversion or exercise thereof; plus the additional
consideration, if any, per each share of Underlying Security
paid by the holder of the Convertible Securities upon
exercise or conversion thereof; or
(iii) a price per each share of Underlying Security equal to (x) if
the Underlying Securities are Common Stock, the average of
the closing prices for the Common Stock during the thirty
(30) day trading period ending the day prior to the closing
of the issuance by the Company of the Underlying Securities
to the persons other than the Parent, or (y) if the
Underlying Securities are other than Common Stock, the fair
market value thereof as determined by reference to the
current issuance thereof (assuming, if not the case, that
such shares were issued in a public offering and based on an
opinion of an independent investment banking firm or other
expert retained by the Company, which expert shall be
acceptable to the Parent in the exercise of its reasonable
discretion).
(c) Within the notice to Parent required by Section 1(b) of the
Original Agreement, the Company shall indicate whether the Relevant Voting
Security of which it is giving notice is also a Convertible Security. If the
Relevant Voting Security of which the Company gives notice is also a Convertible
Security, the Parent shall notify the Company within the fifteen (15) day
response period provided to Parent by Section 1(b) of the Original Agreement
which of alternatives (i) or (ii) in Section 1(a) above it shall follow with
respect to such issuance of Relevant Voting Securities. If the Parent does not
so notify the Company within such fifteen (15) day period, the Parent's rights
with respect to such Relevant Voting Securities shall be as set forth in
alternative (i) in Section 1(a) above.
(d) The Company shall notify the Parent in writing sufficiently in
advance of any proposed issue of Underlying Securities covered by the right to
purchase granted to the Parent pursuant to Section 1(a)(ii) above so that
Parent, after receipt of such notice but prior to any such issuance, shall have
a period of fifteen days to determine whether to exercise its right to purchase
Underlying Securities. The Company's notice, to the extent information is known
or reasonably subject to estimation, shall include information as to the
estimated nature and date of the proposed issue and the estimated price and
amount of securities to be issued. If the Parent, within the fifteen day period,
notifies the Company (which notice shall specify whether the Parent intends to
purchase all or only a specified portion of the Underlying Securities
it could elect to purchase) of its intention to exercise this right, then,
simultaneously with, or immediately prior to, the issue of such Underlying
Securities, the Parent shall purchase from the Company, and the Company shall
issue and sell to the Parent, the number of Underlying Securities
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determined as provided in Section 1(a)(ii) of this Amendment No. 1 (or such
reduced amount as may be specified in the Parent's notice to the Company) at a
price per share determined as provided in Section 1(b) of this Amendment No. 1.
"Applicable Interest Rate" shall mean for each calendar quarter, or
part thereof, within the Interest Period the three month London Interbank
Offered Rate for the first business day of such calendar quarter as reported in
the next business day's Wall Street Journal, plus that number of basis points
charged or chargeable to the Company on such day under the Company's then
existing committed credit facilities above the London Interbank Offered Rate
then applicable under such credit facilities.
"Convertible Securities" shall mean Relevant Voting Securities which
are not entitled to vote but which i) entitle the holder thereof (or which the
holder thereof may exercise) to purchase from the Company Relevant Voting
Securities having the right to vote or ii) which are convertible by the holder
thereof into Relevant Voting Securities having the right to vote.
"Underlying Securities" shall mean Relevant Voting Securities having
the right to vote which a holder of Convertible Securities is entitled to
receive pursuant to the terms of or upon the exercise or conversion of
Convertible Securities.
SECTION 2. Entire Agreement
All provisions of the Original Agreement shall remain in full force and
effect and the provisions thereof, in conjunction with the provisions of this
Amendment No. 1, shall represent the entire agreement of the Company and the
Parent with respect to the matters addressed therein and herein.
SECTION 3 Regulatory Approval
This Amendment No. 1 is contingent upon receipt of all applicable
regulatory approval.
SECTION 4. Governing Law
This Amendment No. 1 relates to the securities of a Maryland
corporation, and shall be construed in accordance with, and the rights of the
parties shall be governed by, the law of the State of Maryland, without regard
to the principals of conflict of laws.
SECTION 5. Counterparts
This Amendment No. 1 may be executed in any number of counterparts, each
of which shall be deemed to be an original and all of which together shall be
deemed to be one and the same instrument.
[Signature page follows]
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IN WITNESS WHEREOF, each of the parties hereto has executed this
Amendment No. 1 as of the day and year first above written.
LAFARGE CORPORATION
By:/s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
Executive Vice President and
Chief Financial Officer
LAFARGE S.A.
By: /s/ Xxxx-Xxxxxx Cloiseau
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Xxxx-Xxxxxx Cloiseau
Senior Vice President Finance
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