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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), Kilmer Van
Nostrand 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
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December 29, 2000
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
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Stock. This
Warrant may be exercised in whole or in part in as many exercises
as Holder may elect.
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.
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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
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.
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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 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
dis
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