Exhibit 3
EXECUTION COPY - DECEMBER 29, 2000
THIS WARRANT AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 AS AMENDED AND THIS WARRANT MAY NOT
BE EXERCISED BY OR ON BEHALF OF ANY U.S. PERSON UNLESS REGISTERED UNDER THE ACT
OR AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.
THE SECURITIES REPRESENTED HEREBY AND THE SECURITIES ISSUABLE UPON THE EXERCISE
HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AS AMENDED OR
ANY STATE SECURITIES LAW AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED
OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR A VALID EXEMPTION
FROM REGISTRATION UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS.
WARRANT TO PURCHASE
LAFARGE CORPORATION COMMON STOCK
This certifies that in consideration of Twenty One Million Six Hundred
Thirty Seven Thousand Canadian Dollars (Cdn. $21,637,000), Xxxxxx Xxx Xxxxxxxx
Co. Limited or its registered assigns ("Holder") is entitled, subject to the
terms set forth below, to purchase from Lafarge Corporation, a Maryland
corporation (the "Company"), Four Million Four Hundred Thousand (4,400,000)
shares of the Company's common stock, par value $1.00 per share ("Common Stock")
upon surrender hereof at the principal office of the Company after delivery of
the Notice of Exercise attached as Attachment A hereto duly executed and the
payment therefor on the exercise date set forth therein at the Exercise Price as
set forth in Section 2 below in lawful money of the United States. The number
and Exercise Price of such shares of Common Stock are subject to adjustment as
provided below. The term "Warrant" as used herein shall include the Warrant
under this Warrant and any warrants delivered in substitution or exchange
therefor as provided herein.
1. Term. Subject to the terms and conditions set forth herein, the Warrant
shall be exercisable (in whole or in part) for a period of ten (10) years
commencing on December 29, 2005 and ending on December 29, 2015.
1.1 Early Exercise. Notwithstanding any provision of this Warrant to the
contrary, (i) if the Company is the subject of a "going private" transaction
involving the acquisition of the Company's Common Stock prior to December 29,
2005, the Holder may exercise this Warrant (in whole but not in part) in
conjunction with such transaction if and only if the Holder participates in and
sells or otherwise transfers pursuant to such transaction all of the Common
Stock receivable by such Holder upon such exercise of this Warrant; and (ii) if
a "change in control" transaction occurs prior to December 29, 2005, the Holder
may exercise this warrant (in whole or in part) in conjunction with such
transaction. For this purpose, (i) a "going private" transaction is any
transaction or series of transactions described in Rule 13e-3(a)(3) under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and (ii) a
"change in control" transaction is: (a) the consummation of a merger or
consolidation, to which the Company is a party and in which the beneficial
owners of the outstanding Common Stock immediately prior to the merger or
consolidation own beneficially less than 50% of the
outstanding shares of common stock of the entity succeeding to the business of
the Company immediately after such transaction, regardless of which entity
survives; (b) the adoption by the stockholders of the Company of a plan of
complete liquidation and dissolution; (c) the first purchase of shares of Common
Stock by the Company, whether for cash or securities or other property, pursuant
to an "issuer tender offer" (as that term is defined in Rule 13e-4 under the
Exchange Act) pursuant to which the Company acquires more than 50% of the shares
of Common Stock outstanding immediately prior to the commencement (as defined in
Rule 13e-4) of such offer; or (d) the first purchase of shares of Common Stock
pursuant to a tender or exchange offer made in connection with an agreement
between the Company and a person, firm or corporation providing for the
acquisition of the Company by merger or otherwise if either (1) more than 50% of
the outstanding shares of Common Stock are purchased pursuant to such tender or
exchange offer, or (2) less than 50% of such outstanding shares are so
purchased, but such acquisition is subsequently consummated.
The Company shall notify the Holders not less than 45 days prior to the
occurrence of any going private transaction or change of control transaction in
the manner described in Section 11 of this Warrant.
1.2 Cashless Exercise. Subject to the other provisions of this Agreement
other than those requiring payment of the Exercise Price in cash, if this
Warrant becomes exercisable prior to December 29, 2005 pursuant to the
provisions of Section 1.1 of this Warrant, the Holder may elect to exercise this
Warrant in whole or in part by surrendering this Warrant in the manner specified
in Section 3.2 of this Warrant in exchange for the number of shares of Common
Stock equal to the product of (i) the number of shares of Common Stock as to
which the Warrant is being exercised multiplied by (ii) a fraction, (y) the
numerator of which is the Fair Market Value of a share of Common Stock on the
Exercise Date (as defined below) less the Exercise Price and (z) the denominator
of which is the Fair Market Value of a share of Common Stock on such Exercise
Date. Fair Market Value shall be equal to the average of the last sale price of
Common Stock on each of the ten trading days prior to the Exercise Date of this
Warrant on the principal exchange of which the Common Stock may at the time be
listed; or, if there shall have been no sales on such exchange on any such
trading day, the average of the closing bid and asked prices on such exchange on
such trading day; or, if there is no such bid and asked price or if the Common
Stock shall not be so listed, the average of the closing sales prices as
reported by NASDAQ (including its bulletin board) at the end of each of the ten
trading days prior to the Exercise Date in the over-the counter market.
2. Exercise Price. Subject to adjustment in accordance with the provisions
of this Agreement, the exercise price at which this Warrant may be exercised
shall be Twenty Nine and 00/100 U.S. Dollars (U.S.$29.00) per each share of
Common Stock (the "Exercise Price").
3. Number of Shares; Exercise of Warrant.
3.1 Exercise and Number of Shares. Subject to the provisions of this
Agreement, the Holder shall have the right to purchase from the Company (and the
Company shall issue and sell to such Holder) in the aggregate up to Four Million
Four Hundred Thousand shares of Common Stock. This Warrant may be exercised in
whole or in part in as many exercises as Holder may elect.
2
3.2 Delivery. The Warrant shall be exercisable by (i) delivering to the
Company the form of Notice of Exercise attached as Attachment A hereto at least
thirty (30) days prior to the exercise date set forth therein (the "Exercise
Date") duly executed and signed by the Holder or by the duly appointed legal
representative or duly authorized attorney thereof and depositing with the
Company the original of this Warrant in conjunction therewith and (ii) paying
the aggregate Exercise Price for the number of shares of Common Stock in respect
of which the Warrant is being exercised no later than the Exercise Date set
forth in the Notice of Exercise. Upon each partial exercise of the Warrant, a
new Warrant evidencing the balance of the shares of Common Stock issuable
hereunder will be issued to the Holder, as soon as reasonably practicable, on
the same terms as the Warrant partially exercised. All payments due upon any
exercise of this Warrant shall be made in immediately available funds by deposit
to an account of the Company as directed by the Company.
3.3 Time of Exercise. This Warrant shall be deemed to have been exercised
immediately prior to the close of business on the later of i) the Exercise Date
or ii) its surrender for exercise and payment in full of the Exercise Price, and
the Person entitled to receive the shares of Common Stock issuable upon such
exercise shall be treated for all purposes as the holder of record of such
shares as of the close of business on such date; provided, however, that in the
event that the transfer books of the Company are closed on such date, the Holder
shall be deemed to have become a stockholder of record on the next succeeding
day that the transfer books are open and until such date, the Company shall be
under no duty to cause to be delivered any certificate for such shares. As
promptly as practicable on or after such date but in any event by the end of the
day on the third New York Stock Exchange trading day following such date, the
Company shall issue and deliver to the Person or Persons entitled to receive the
same a certificate or certificates for the number of shares of Common Stock
issuable upon such exercise. If this Warrant is exercised in part, the Company
will execute and deliver a new Warrant of like tenor exercisable for the balance
of shares of Common Stock for which this Warrant may then be exercised.
4. Payment of Taxes and Expenses. The Company shall pay all expenses in
connection with, and all taxes and other governmental charges that may be
imposed with respect to, the issuance or delivery of this Warrant and the Common
Stock issuable upon exercise hereof, unless any such tax or charge is imposed by
law upon the income or gain of Holder in connection with this Warrant, in which
case such tax or charge shall be paid by the Holder. The Company shall not be
required, however, to pay any tax or other charge imposed in connection with any
transfer involved in the issuance of any certificate for shares of Common Stock
in any name other than that of the Holder, and in such case the Company shall
not be required to issue or deliver any stock certificate until such tax or
other charge has been paid or it has been established to the satisfaction of the
Company that no such tax or other charge is due.
5. No Fractional Shares. No fractional shares shall be issued upon the
exercise of this Warrant. In lieu of any fractional share to which the Holder
would otherwise be entitled, the Company shall make a cash payment equal to the
Exercise Price multiplied by such fraction.
6. Replacement of Warrant. On receipt of evidence reasonably satisfactory
to the Company of the loss, theft, destruction or mutilation of this Warrant
and, in the case of loss, theft or destruction, on delivery of an indemnity
agreement reasonably satisfactory in form and
3
substance to the Company or, in the case of mutilation, or surrender and
cancellation of this Warrant, the Company shall execute and deliver, in lieu of
this Warrant, a new warrant of like tenor and amount.
7. Adjustments. The number of shares of Common Stock for which this Warrant
is exercisable and the Exercise Price at which such shares may be purchased
shall be subject to adjustment from time to time as set forth in this Section 7.
All calculations under this Section 7 shall be made to the nearest cent or to
the nearest one-hundredth of a share, as the case may be. Notwithstanding any
provision of this Warrant to the contrary, none of the adjustments set forth in
this Section 7 shall apply and no adjustment in either the number of shares of
Common Stock receivable upon exercise of this Warrant or to the Exercise Price
shall be made upon the adoption by the Company of a shareholder rights plan
(commonly referred to as a "poison pill") and the issuance by the Company of
"rights" or securities pursuant thereto.
7.1 Stock Dividends, Subdivisions and Combinations. If at any time the
Company shall: (i) pay or make a dividend on Common Stock payable in additional
shares of Common Stock or make a distribution of additional shares of Common
Stock; (ii) subdivide its outstanding shares of Common Stock into a larger
number of shares of Common Stock; or (iii) combine its outstanding shares of
Common Stock into a smaller number of shares of Common Stock; (iv) increase or
decrease the number of shares of Common Stock outstanding by reclassification of
its Common Stock; then the number of shares of Common Stock for which this
Warrant is exercisable immediately after the happening of such event shall be
adjusted to equal the number of shares of Common Stock which a record holder of
the same number of shares of Common Stock into which this Warrant is exercisable
immediately prior to the happening of such event would own or be entitled to
receive after the happening of such event.
7.2 Issue of Rights, Options or Warrants. If the Company shall issue
rights, options, warrants or convertible or exchangeable securities to all
holders of its outstanding Common Stock without any charge to such holders,
entitling them to subscribe for or purchase shares of Common Stock at a price
per share which is lower at the record date for the determination of
stockholders entitled to receive such distribution than the then current
Exercise Price, the number of shares of Common Stock for which this Warrant is
exercisable immediately following such event shall be determined by multiplying
the number of shares for which this Warrant is exercisable immediately prior to
such event by a fraction, the numerator of which shall be the number of shares
of Common Stock outstanding on the date of issuance of such rights, options,
warrants or convertible or exchangeable securities plus the number of additional
shares of Common stock offered for subscription or purchase in connection with
such rights, options, warrants or convertible or exchangeable securities and the
denominator of which shall be the number of shares of Common Stock outstanding
on the date of issuance of such rights, options, warrants or convertible or
exchangeable securities plus the number of shares which the aggregate offering
price of the total number of shares so offered would purchase at the current
Exercise Price at such record date. Such adjustments shall become effective on
the date of issuance of such rights, options or warrants.
7.3 Reorganization, Reclassification, Consolidation or Merger. If the
Company shall (i) effect any reorganization or reclassification of its capital
stock not covered by an adjustment under Section 7.1 or (ii) consolidate or
merge with or into, or transfer all or substantially all of its
4
properties and assets to, any other Person, in either case in a transaction in
connection with which a Holder has not exercised this Warrant, then, upon any
exercise of this Warrant subsequent to the consummation thereof, such Holder
shall be entitled to receive, in lieu of the Common Stock issuable upon exercise
immediately prior to such consummation, the highest amount of stock, other
securities or property (including cash) to which such Holder would have been
entitled upon such consummation if such Holder had exercised this Warrant
immediately prior thereto, all subject to further adjustments thereafter as
provided in this Section 7.3. In the case of a consolidation, merger, sale or
transfer which includes an election as to the kind of consideration to be
received by the holders, and the transfer is not the same for each share of
Common Stock, then for the purposes of this Section the kind and amount of
securities, cash and other property receivable upon such consolidation, merger,
sale or transfer shall be deemed to be the kind and amount so receivable per
share by a plurality of the holders. In the case of any consolidation of the
Company with or merger of the Company into another entity or in the case of any
sale or transfer to another entity of all or substantially all of the property
of the Company, such successor or purchasing entity shall be required by
contract to execute an agreement that the Holder shall have the right thereafter
upon payment of the Exercise Price in effect immediately prior to such action to
purchase upon exercise of each Warrant the kind and amount of securities, cash
and property which the Holders would have owned or been entitled to receive
after the happening of such consolidation, merger, sale or transfer had such
Warrant been exercised immediately prior to such action. Upon the execution of
such agreement, this Warrant shall be exercisable only for such securities, cash
and property. The Company shall mail by first class mail, postage prepaid, to
the Holder, notice of the execution of any such agreement. Such agreement shall
provide for adjustments, which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Section 7.3. The provisions
of this Section 7.3 shall similarly apply to successive consolidations, mergers,
sales or transfers.
7.4 Distribution of Property. If the Company shall distribute to all
holders of its outstanding Common Stock: (i) evidences of its indebtedness or
assets or securities other than its Common Stock (excluding cash distributions
payable out of consolidated or earned surplus and dividends or distributions
referred to in Section 7.1); or (ii) rights, options or warrants (other than as
contemplated by Section 7.2); or (iii) convertible or exchangeable securities,
containing the right to subscribe for or purchase shares of Common Stock (other
than as contemplated by Section 7.2), then the number of shares of Common Stock
for which this Warrant is exercisable shall be determined by multiplying the
number of shares of Common Stock theretofore purchasable upon the exercise of
this Warrant by a fraction, of which the numerator shall be the Exercise Price
on the date of such distribution, and of which the denominator shall be such
Exercise Price less the then fair value up to the Exercise Price less $.01 (as
determined by the Board of Directors of the Company, whose reasonable
determination shall be conclusive) of the portion of the evidence of
indebtedness, assets, securities, rights, options, warrants or convertible or
exchangeable securities so distributed attributable to one share of Common
Stock. Such adjustment shall be made whenever any such distribution is made, and
shall become effective on the date of distribution retroactive to the record
date for the determination of stockholders entitled to receive such
distribution.
7.5 Price Adjustment. Whenever the number of shares of Common Stock
purchasable upon the exercise of this Warrant is adjusted, as herein provided,
the Exercise Price payable upon exercise of this Warrant shall be adjusted by
multiplying such Exercise Price
5
immediately prior to such adjustment by a fraction, of which the numerator shall
be the number of shares of Common Stock purchasable upon the exercise of this
Warrant immediately prior to such adjustment, and of which the denominator shall
be the number of shares of Common Stock purchasable immediately thereafter.
7.6 Notice of Adjustment. Whenever the number of shares of Common Stock or
other securities or property purchasable upon the exercise of this Warrant or
the Exercise Price is adjusted, as herein provided, the Company shall promptly
mail to the Holder by first class mail, postage prepaid, notice of such
adjustment or adjustments setting forth in reasonable detail the method of
calculation and the facts upon which such adjustment is based.
8. No Rights of Stockholders. The Holder shall not be entitled to vote, to
receive dividends or subscription rights, or to be deemed the holder of Common
Stock or any other securities of the Company that may at any time be issuable on
the exercise hereof for any purpose, nor shall anything contained herein be
construed to confer upon the Holder, as such, any of the rights of a stockholder
of the Company, including without limitation any right to vote for the election
of directors or upon any matter submitted to stockholders, to give or withhold
consent to any corporate action (whether upon any recapitalization, issuance of
stock, reclassification of stock, change of par value or change of stock to no
par value, consolidation, merger, conveyance, or otherwise), to receive notices,
or otherwise, until the Warrant shall have been exercised as provided herein.
9. Transfer of Warrant.
9.1 Warrant Register. The Company will maintain a register (the "Warrant
Register") containing the names and addresses of the Holder or Holders. Any
Holder of this Warrant or any portion thereof may change its address as shown on
the Warrant Register by written notice to the Company requesting such change,
and the Company shall promptly make such change. Until this Warrant is
transferred on the Warrant Register, the Company may treat the Holder as shown
on the Warrant Register as the absolute owner of this Warrant for all purposes,
notwithstanding any notice to the contrary.
9.2 Exchange of Warrant Upon a Transfer. On surrender of this Warrant for
exchange, properly endorsed on the Assignment attached hereto and subject to the
provisions of this Warrant and with the limitations on assignments and transfers
as contained in this Warrant, the Company shall issue to or to the order of the
Holder a new warrant or warrants of like tenor, in the name of the Holder or as
the Holder (on payment by the Holder of any applicable transfer taxes) may
direct, for the number of shares issuable upon exercise hereof.
9.3 Transfers to Non-Affiliates. If the Holder wishes to transfer in any
manner by sale or otherwise to any Person who is not an affiliate of the Holder
of this Warrant at the time of such transfer (a "Third Party Recipient") a
portion of the Warrant that is exercisable for shares representing less than two
percent (2%) of the Common Stock then outstanding on a fully diluted basis, the
Holder shall first offer to sell such portion of the Warrant to the Company
specifying the price and other terms of the offer. If the Company does not
accept such offer within 30 days, the Holder may then sell that portion of this
Warrant to a Third Party Recipient at no less than such price and on terms that
are no more favorable than those offered to the Company.
6
Notwithstanding any provision of this Warrant to the contrary, a Holder may not
transfer this Warrant (or any portion thereof) in any manner by sale or
otherwise to any Third Party Recipient when after such transfer the combined
total number of shares of Common Stock previously received or then receivable
upon exercise of any portion of this Warrant or upon exercise of any portion of
the original of this Warrant by such Third Party Recipient represents two
percent (2%) or more of the Common Stock then outstanding on a fully diluted
basis unless (i) the transferring Holder first notifies the Company that it has
received a bona fide offer to purchase such Warrant, such notification to
identify the Third Party Recipient and provide the terms and conditions of the
offer and (ii) offers to transfer such Warrant to the Company on terms no less
favorable to the Company than contemplated in the transfer to the Third Party
Recipient and (iii) the Company shall have notified the transferring Holder in
writing within 30 days of receipt of the offer that it declines to then acquire
such Warrant on such terms. The limitations set forth above shall not restrict
the Holder's ability to pledge the Warrant (or any portion of the Warrant) as
security to a lender that is not an affiliate of the Holder or apply to a
transfer of the Warrant (or any portion of the Warrant) to any such lender as a
result of its exercise of its remedies against the Holder in accordance with
such a pledge. For purposes of this Warrant, "Person" shall mean any individual,
corporation, company, limited liability company, group, partnership or other
entity and "affiliate" shall mean, as to any Person, any other Person which
directly or indirectly controls, or is under common control with, or is
controlled by, such Person and, in the case of an individual, includes the
spouse and children and other descendants of such Person. As used herein,
"control" (including, with its correlative meanings, "controlled by" and "under
common control with") shall mean possession, directly or indirectly, of power to
direct or cause the direction of management or policies (whether through
ownership of securities or partnership or other ownership interest, by contract
or otherwise).
10. Reservation and Authorization of Common Stock, (i) The Company shall at
all times reserve and keep available for issuance upon the exercise of this
Warrant that number of its authorized but unissued shares of Common Stock as
could then potentially be required to permit the exercise in full of this and
all outstanding Warrants. All shares of Common Stock issuable upon exercise of
any Warrant and payment therefor in accordance with the terms of such Warrant
shall be duly and validly issued and fully paid and nonassessable, and not
subject to or privileged with any preemptive rights, (ii) Before taking any
action which would cause an adjustment reducing the Exercise Price below the
then par value, if any, of the shares of Common Stock issuable upon exercise of
the Warrants, the Company shall take any corporate action which may be necessary
in order that the Company may validly and legally issue fully paid and
nonassessable shares of such Common Stock at such adjusted Exercise Price.
11. Notices. Any notice, request, consent or other communication required
to be made hereunder shall be deemed to have been made: (i) in the case of
personal delivery, on the date of such delivery; (ii) in the case of mailing, on
the third business day following the date of such mailing; and (iii) in the case
of facsimile transmission, when confirmed by facsimile machine report to the
parties at the following addresses: If to Holder: Scotia Plaza, Suite 2700, P.O.
Box 000, 00 Xxxx Xxxxxx Xxxx, Xxxxxxx, Xxxxxxx, XXX 0X0, Fax: (000) 000-0000; If
to Company: 00000 Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000 Fax: (000) 000-0000.
12. Legend. Neither this Warrant nor the shares of Common Stock issuable
upon exercise of this Warrant have been registered under the Securities Act of
1933, as amended (the
7
"Securities Act"), or under the securities laws of any state. Neither this
Warrant nor the shares of Common Stock issued upon exercise of this Warrant may
be sold, transferred, pledged or hypothecated in the absence of (i) an effective
registration statement for this Warrant or the shares of Common Stock, as the
case may be, under the Securities Act and such registration or qualification as
may be necessary under the securities laws of any state, or (ii) an opinion of
counsel reasonably satisfactory to the Company that such registration or
qualification is not required. The Company shall cause a certificate or
certificates evidencing all or any of the shares of Common Stock issued upon
exercise of this Warrant prior to said registration and qualification of such
shares to bear one or more of the following legends:
THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES LAWS OF ANY
STATE. THE SHARES MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED IN
THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, AND SUCH REGISTRATION OR QUALIFICATION AS MAY BE
NECESSARY UNDER THE SECURITIES LAWS OF ANY STATE, OR A VALID EXEMPTION FROM
REGISTRATION UNDER SUCH LAWS.
The legend requirements of this Section 12 shall terminate when either (i) the
security in question shall have been effectively registered under the Securities
Act and disposed of pursuant thereto or (ii) the Company shall have received an
opinion of counsel reasonably satisfactory to it that such legend is not
required in order to insure compliance with the Securities Act.
13. Registration Rights.
13.1 Demand Registration Rights. The Company currently is eligible to use
the Form S-3 registration statement and will reasonably endeavor to maintain
such eligibility (or eligibility for any replacement short form registration
statement) during the term of this Warrant. So long as the Company is then
eligible to register its securities on a Form S-3 short form registration
statement (or such other short form registration statement that shall then be
available to the Company in replacement of Form S-3), the Holder, after exercise
of this Warrant, may request the Company to register on Form S-3 (or such other
short form registration statement then available to the Company), and the
Company agrees to then register, any or all of the shares received by the Holder
upon exercise of this Warrant (the "Underlying Shares") and to then undertake
commercially reasonable efforts to maintain such registration until the
Underlying Shares so registered have been sold. Notwithstanding the immediately
preceding sentence, the Company shall not be required to maintain the
effectiveness of any registration statement for greater than nine (9) months.
The Company will pay all costs typically borne by a registrant in connection
with a registration on Form S-3 (or any replacement form), which shall not
include, however, costs and expenses of legal counsel retained by Holder in
connection with such registration and any broker discounts or fees incurred in
connection with the sale of the Underlying Shares by the Holder. Xxxxxx agrees
to execute and deliver all documents and agreements generally executed and
delivered by selling stockholders in connection with and to make such
representations and warranties with respect to the Underlying Shares generally
made by selling stockholders in connection with sales of securities by a selling
stockholder pursuant to
8
a Form S-3 registration statement. Holder may exercise the demand registration
rights set forth in this Section no more than one time in any twelve month
period. The Company may, upon written notice to the Holder, delay any
registration of Underlying Shares for up to 90 days if the Company concludes
that such registration is likely to interfere with any planned financing
transaction then contemplated by the Company. Notwithstanding any provision of
this Warrant to the contrary, the Company shall have no obligation to undertake
for or on behalf of the Holder any underwritten offering of any Underlying
Shares or to engage any underwriter to effect any offer, sale or distribution of
any Underlying Shares.
13.2 Piggyback Registration Rights. If the Company proposes to: (i) file a
registration statement under the Securities Act, covering securities of the
Company, whether for the Company's own account or for the account of selling
security holders, other than registration statement relating to an acquisition
or merger or a registration statement on Form S-8 or subsequent similar form; or
(ii) qualify a prospectus, statement of material facts or similar public
offering document pursuant to the securities legislation of one or more
provinces of Canada or in any other jurisdiction; it shall (i) advise the
Holders by written notice at least sixty (60) days prior to the filing of such
registration statement or prospectus, statement of material facts or other
public offering document (the "Public Offering Document"), which notice shall
include a list of the jurisdictions in which the Company intends to attempt to
qualify such securities under the securities laws; and (ii) will upon the
request of any such Holder include in any Public Offering Document and in any
underwriting involved therewith such information as may be required to permit a
public offering of the shares of Common Stock received by the Holder on the
exercise of this Warrant. The Company is not required to include such shares in
a Public Offering Document relating to an offering of securities if the managing
underwriter has advised the Company that the inclusion of such Warrant Interest
will have an adverse effect upon the offering (in which case, the amount of
securities to be offered for the accounts of Holders will be reduced (or
eliminated) to the extent necessary to reduce the total amount of securities to
be included in such offering to the amount recommended by such managing
underwriter). In so excluding the shares, the Company may not treat the Holders
less favourably than others having piggyback registration rights. The Company
shall keep such Public Offering Document effective for a period of nine months
from the effective date of such Public Offering Document or until such earlier
date the distribution of the registered shares has been completed. In connection
with such registration, the Holders will execute and deliver such customary
underwriting documents and provide such information as are requested by the
managing underwriter as a condition to the inclusion of the shares in the Public
Offering Document.
14. Indemnification and Contribution. The Company and the Holder each agree
that they will provide indemnification and contribution to the other (and to
each Person who controls the other (within the meaning of the Securities Act),
and to each other's directors, officers, agents, employees and to such other
Persons to the extent customary in underwriting agreements at the time of any
registration of Underlying Shares effected pursuant hereto and all of them shall
be entitled to receive indemnities from underwriters, selling brokers, dealer
managers and other securities industry professionals participating in the
distribution to the extent customary in underwriting agreements at the time of
any registration of such Underlying Shares.
14.1 Indemnification by the Company. In the case of each registration
effected by the Company pursuant to this Agreement, the Company agrees to
indemnify and hold harmless, to
9
the full extent permitted by law, the Holder, its officers, directors, agents,
employees, general partners and limited partners and each Person who controls
such Holder (within the meaning of the Securities Act) against all losses,
claims, damages, liabilities and expenses arising out of or based upon any
untrue or alleged untrue statement of a material fact contained in the
registration statement under which Underlying Shares owned by the Holder were
registered under the Securities Act, any prospectus or preliminary prospectus or
in any amendment or supplement thereto or any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
statements therein (in the case of a prospectus, in the light of the
circumstances under which they were made) not misleading, except insofar as the
same arise out of, are based upon or are contained in any information furnished
in writing to the Company by the Holder for use therein or by the Holder's
failure to deliver a copy of the applicable registration statement or prospectus
after the Company has furnished the Holder with a sufficient number of copies of
the same. The Company shall also indemnify underwriters, selling brokers, dealer
managers and similar securities industry professionals participating in the
distribution, their officers, directors, agents, employees, general partners and
limited partners and each person who controls such Persons (within the meaning
of the Securities Act) to the same extent as provided above with respect to the
indemnification of the Holder.
14.2 Indemnification by the Holder. In connection with any registration
statement in which the Holder is participating, the Holder shall furnish to the
Company in writing such information and affidavits as the Company reasonably
requests for use in connection with any registration statement or prospectus and
agrees to indemnify and hold harmless to the full extent permitted by law, the
Company, its directors, officers, agents, employees and each Person who controls
the Company (within the meaning of the Securities Act) against any losses,
claims, damages, liabilities and expenses arising out of or based upon any
untrue or alleged untrue statement of a material fact contained in the
registration statement under which Underlying Shares were registered under the
Securities Act, any prospectus or preliminary prospectus or in any amendment or
supplement thereto or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make statements
therein (in the case of the prospectus, in the light of the circumstances under
which they were made) not misleading, to the extent, but only to the extent,
that such untrue or alleged untrue statement or omission or alleged omission is
contained or fails to be contained in any information or affidavit so furnished
in writing by such Holder to the Company for inclusion in such registration
statement or prospectus. In no event shall the liability of any Holder hereunder
be greater in amount than the dollar amount of the proceeds received by the
Holder upon the sale of the Underlying Shares giving rise to such
indemnification obligation.
14.3 Conduct of Indemnification Proceedings. Any Person entitled to
indemnification hereunder shall (i) give prompt written notice to the
indemnifying party of any claim with respect to which it shall seek
indemnification and (ii) unless in the reasonable judgment of counsel to such
indemnified party a conflict of interest is likely to exist between such
indemnified party and the indemnifying party with respect to such claim, permit
the indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If the indemnifying party
assumes the defense of such claim, it shall not be obligated to pay the fees and
expenses of more than one counsel with respect to such claim and the
indemnifying party shall in no event be liable to an indemnified party for legal
and other expenses incurred by such indemnified party in connection with the
defense of a claim
10
subsequent to the assumption of such defense by such indemnifying party. The
indemnifying party shall not be subject to any liability for any settlement made
without its consent.
14.4 Contribution. If for any reason the indemnification provided for in
the preceding Sections of this Warrant is unavailable to an indemnified party or
is insufficient to hold harmless as contemplated by the preceding Sections, then
the indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage, liability or expense in such proportion as is
appropriate to reflect not only the relative benefits received by the
indemnified party and the indemnifying party, but also the relative fault of the
indemnified party and the indemnifying party in connection with the actions
which resulted in such loss, claim, damage, liability or expense as well as any
other relevant equitable considerations. The relative fault of such indemnifying
party and indemnified party shall be determined by reference to, among other
things, whether any action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact, has been made by, or relates to information supplied by, such indemnifying
party or indemnified party, and the indemnifying and indemnified parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such action. The amount paid or payable by a party as a result of the
losses, claims, damages, liabilities and expenses referred to above shall be
deemed to include, subject to the limitations set forth in the preceding
paragraph, any legal or other fees or expenses reasonably incurred by such party
in connection with any investigation or proceeding.
The Company and the Holder agree that it would not be just and equitable if
contribution pursuant to this section were determined by pro rata allocation or
by any other method of allocation which does not take into account the equitable
considerations referred to in the immediately preceding paragraph. No Person
guilty of fraudulent misrepresentation (within the meaning of Section 1l(f) of
the Securities Act) shall be entitled to contribution from any Person who is not
guilty of such fraudulent misrepresentation. The Holder shall not be required to
contribute in an amount greater than the dollar amount of proceeds received by
the Holder with respect to the sale of the Holder's Underlying Shares.
15. Compliance with Rule 144. At all times when the Company is subject to
the reporting requirements of the Exchange Act, as amended, the Company shall
take such steps as shall be necessary or appropriate to cause to be made
available (within the meaning of paragraph (c) of Rule 144 of the Securities and
Exchange Commission, or any corresponding provisions of any rule or regulation
issued in substitution therefor) adequate current public information with
respect to the Company (within the meaning of and as determined in accordance
with said paragraph) to enable the Holder upon exercise of this Warrant to
thereafter sell the securities purchased within the limitations of the
exemptions provided by said Rule 144 or any rule or regulation issued in
substitution therefor.
16. Investment Covenant. The Holder by his or her acceptance hereof
covenants that this Warrant is and any common stock issued hereunder has been
acquired for investment purposes, and that the Holder will not distribute the
same in violation of any state or federal law or regulation.
11
17. Amendments. The terms and provisions of this Warrant may not be
modified or amended, or any provisions hereof waived, temporarily or
permanently, except by written consent of the Company and the Holder.
18. Successors and Assigns. This Warrant and the rights and duties of the
Holder set forth herein may be transferred or assigned, in whole or in part, by
the Holder.
19. Governing Law. This Warrant shall be governed by, and construed in
accordance with, the laws of the State of Maryland without regard to the
principles of conflicts of law thereof.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed on
its behalf and under its corporate seal as of December 29, 2000 by one of its
duly authorized officers and its execution hereof to be attested by another of
its duly authorized officers.
LAFARGE CORPORATION
Attest: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxxxx
----------------------------- ------------------------------------
Xxxxxxx X. Xxxxxx Xxxxx X. Xxxxxxxx
Assistant Secretary Executive Vice President and
Chief Financial Officer
12
ASSIGNMENT
For value received, __________________________________________, hereby
sells, assigns and transfers unto __________________________________________ the
within Warrant to the extent of __________________________________________
shares of the Company's Common Stock exercisable therefore, together with all
right, title and interest therein, and does hereby irrevocably constitute and
appoint __________________________________________ attorney, to transfer said
Warrant on the books of the within-named Company, with full power of
substitution of the premises.
Dated: ____________ _____, 20___
By:
---------------------------------
ATTACHMENT A
NOTICE OF EXERCISE
To: LAFARGE CORPORATION (the "Company")
The undersigned hereby irrevocably elects to exercise the right to purchase
set forth within and represented by the Warrant attached hereto
____________________________________________ shares of Common Stock of the
Company as provided for therein, which exercise is to be effective as of
__________________ _____, 20_____ (the "Exercise Date") and agrees to tender no
later than such Exercise Date payment of the full purchase price for such shares
in the form of a wire transfer in immediately available funds in the aggregate
amount of $___________________________ U.S. Dollars. If said number of shares
shall not be all the shares purchasable under the within Warrant, a new Warrant
Certificate is to be issued in the name of said undersigned for the balance
remaining of the shares purchasable thereunder less any fraction of a share paid
in cash. Please issue a certificate or certificates for such shares of Common
Stock in the name of, and pay any cash for any fractional share to
___________________________________________.
The undersigned certifies that he/she is not a U.S. person and the warrant
being exercised hereby is not being exercised on behalf of a U.S. person as such
term is defined within Regulation 902(k) promulgated under the Securities Act of
1933, as amended.
Dated: ____________ _____, 20___
By: Signature:
--------------------------------- -----------------------------
Print Name:
------------------------
14
