exv10w9



 



Exhibit 10.9




CONTROL OPTION AGREEMENT



     Control Option Agreement, dated as of November 1, 2003 (the “Agreement”),
between Lafarge North America Inc., a Maryland corporation (the “Company”), and
Lafarge S.A., a French corporation (the “Parent”).


     Whereas, the Company currently has outstanding Common Stock, $1.00 par
value (“Common Stock”), and Voting Stock, $0.0001 par value (“Voting Stock”);


     Whereas, the Company’s subsidiary, Lafarge Canada Inc. (“LCI”), currently
has outstanding Exchangeable Preference shares (“Exchangeable Shares”);


     Whereas, the holders of Exchangeable Shares, through a trust holding
Voting Stock (“Exchange Trust”), vote as a class with the holders of Common
Stock and any other class or series of capital stock of the Company having
general voting rights in the Company;


     Whereas, the Parent directly and indirectly holds as of October 31, 2003
such number of Exchangeable Shares and shares of Common Stock so that the
Parent is entitled to cast, either directly or indirectly, approximately 53% of
the total votes available to be cast at a meeting of the Company’s stockholders
on that date;


     Whereas, by virtue of its ownership of Common Stock and Exchangeable
Shares, the Parent has the power to elect all of the directors of the Company
and to control decisions to be voted upon by stockholders, except as otherwise
provided by law;


     Whereas, the loss of such voting control could have adverse consequences
for the Parent and the Company under certain laws of France, Canada and the
United States, as well as certain of the Company’s credit agreements, and the
Parent has informed the Company of its intention to maintain such voting
control for the foreseeable future;


     Whereas, the Parent, in consideration for benefits conferred upon the
Company by the Parent, has requested that the Company agree as set forth
herein;


     Now, Therefore, in consideration of the premises and the mutual and
dependent promises hereinafter set forth, the parties hereto agree as follows:


     Section 1.    Definitions


     “Applicable Interest Rate” shall mean for each calendar quarter or part
thereof 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.


     “Includible Voting Securities” shall mean all Voting Securities other than
(i) Common Stock issuable upon exercise of the exchange rights of Exchangeable
Shares or upon exercise of the conversion, exchange or similar rights of other
Includible Voting Securities, (ii) securities reserved for issuance under any
Stock Plan and (iii) securities covered by options under employee Stock Plans.


     “Relevant Voting Security” shall mean any Voting Security other than (i)
Common Stock issuable upon exercise of the exchange rights of Exchangeable
Shares, (ii) Common Stock or other Voting Securities issuable upon exercise of
conversion or similar rights of an outstanding Includible Voting Security,
(iii) Voting Securities issued, or reserved for issuance, pursuant to a Stock
Plan, as defined above, (iv) securities covered by outstanding options under
any Stock Plan which is an employee Stock Plan, and (v) Voting Stock issued to
the trustee under the Exchange Trust as a consequence of the issuance of
additional Exchangeable Shares.


     “Stock Plan” shall mean any employee stock purchase plan, profit sharing
plan, incentive, compensation or bonus plan, dividend reinvestment plan,
optional stock dividend plan, stock option plan or any other similar plan
either (i) approved by the Company’s Board of Directors pursuant to which any
securities are issued by the Company to its stockholders or to employees of the
Company or a subsidiary, or (ii) approved by the Board of Directors of LCI
pursuant to which any securities are issued by LCI to its employees or
stockholders.


     “Total Voting Power” shall mean the total number of votes attributable to
all Includible Voting Securities of the Company.


     “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.


     “Voting Securities” shall mean all shares of Common Stock, Voting Stock,
and any other securities of the Company or of a subsidiary of the Company (such
as Exchangeable Shares) entitled to vote (regardless of whether such voting
rights (i) are presently exercisable or (ii) directly appertain to such
securities or (iii) are only available upon subsequent conversion, option or
warrant exercise, exchange or other disposition of such securities) on all
matters with holders of Common Stock and Voting Stock at meetings of the
stockholders of the Company.


     Section 2.    Issuance of Relevant Voting Securities


     (a)    If the Company shall from time to time issue to any person other than
the Parent any Relevant Voting Securities, as defined above, the Parent shall
have the right to purchase from the Company up to the amount of such Relevant
Voting Securities as shall be necessary to permit the Parent to achieve (on a
basis assuming the exercise of all


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conversion, exchange and similar rights of outstanding securities except
employee stock options) a control margin of up to 1,000,000 votes in excess of
50% of the total Voting Power, as defined above, to be represented by all
Includible Voting Securities, as defined above, to be outstanding (or deemed to
be outstanding) after such issuances by the Company and purchases by the Parent
and the other purchaser(s).


     For purposes of this Section 2(a), the issuance by a subsidiary of the
Company (to a person other than the Company) of securities which have the
rights of or are convertible into or exchangeable for Voting Securities, and
the sale by the Company of any securities issued by a subsidiary with the
aforesaid characteristics, shall be deemed to constitute an issuance of Voting
Securities by the Company.


     Nothing in this Agreement shall be construed to prevent or constrain the
Parent from acquiring outstanding shares of Common Stock, Exchangeable Shares
or any other securities of the Company or of any subsidiary on the open market
or otherwise.


     (b)    The Company shall notify the Parent in writing sufficiently in advance
of any proposed issue of any Relevant Voting Security covered by the right to
purchase granted to the Parent in Section 2(a) so that the Parent, after its
receipt of such notice but prior to any such issuance, shall have a period of
at least 15 days (the “Notice Period”) to determine whether to exercise its
right to purchase shares of such Relevant Voting Security. 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 Notice Period, notifies the Company (which notice shall
specify whether the Parent intends to purchase all or only a specified portion
of the shares it could elect to acquire) of its intention to exercise this
right, then, simultaneously with, or immediately prior to, the issue of such
Relevant Voting Securities, the Parent shall purchase from the Company, and the
Company shall issue and sell to the Parent, the number of shares of the
Relevant Voting Security determined as provided above in Section 2(a) (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 2(c) below.


     (c)(1) If the Company issues Relevant Voting Securities for cash in a
public offering subject to a registration statement filed with the U.S.
Securities and Exchange Commission and/or a comparable filing with the Canadian
provincial securities administration, the price at which the Parent shall be
entitled to purchase shares of Relevant voting Securities shall be the price at
which such shares are offered to the public.


     (c)(2) If the Company issues Relevant Voting Securities pursuant to any
transaction, contract, distribution, agreement or arrangement (except as
provided in subsection (c)(1) above), the definitive terms of which are or have
previously been publicly disclosed or announced, by press release,
communication to stockholders, U.S. Securities and Exchange Commission filings
or otherwise (the “Announcement”):


               (i)    the per share price at which the Parent shall be entitled to purchase
shares of Common Stock pursuant to Section 2(a) shall be equal to the average
of the


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closing prices for Common Stock during the 30-day trading period
commencing 15 days prior to the Announcement and ending 14 days after such
announcement (if the closing to a third party is scheduled to occur prior to
the 15th trading day after the Announcement, the measuring period shall be the
30 trading days ending the day prior to the date of such closing);


              (ii)    the price at which the Parent shall be entitled to purchase Relevant
Voting Securities other than Common Stock shall be 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)(3) If the Company issues Relevant Voting Securities without the making
of a prior Announcement relating to such issuance:


              (i)    the per share price at which the Parent shall have the right to
purchase shares of Common Stock pursuant to Section 2(a) shall be equal to the
average of the closing prices for Common Stock during the 30-day trading period
commencing 31 days prior to the date upon which the Company issues the shares
of Common Stock to a party other than the Parent (the “Issuance Date”) and
ending on the day prior to such Issuance Date;


              (ii)    the price at which the Parent shall be entitled to purchase Relevant
Voting Securities other than Common Stock shall be 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).


     (d)    At the closing for the purchase and sale of such Common Stock or other
Relevant Voting Security (as the case may be), the Company will deliver to the
Parent a certificate or certificates (or other appropriate evidence)
representing the securities being purchased, registered in the name of the
Parent or its designee, against payment therefore of same day funds in an
amount equal to the aggregate purchase price. The Parent may designate, as the
purchaser on its behalf, any corporation (excluding the Company and its
subsidiaries) or other entity owned or controlled by it (the Parent and all
such corporations and other entities are herein collectively called the
“Lafarge Group”).


     (e)    If the Company is unable to issue any Relevant Voting Securities that
the Parent has the right to purchase pursuant to this Section 2 because the
Company’s charter does not authorize a sufficient number of shares, the Company
shall use its best efforts to cause the stockholders of the Company to amend
the Company’s charter to increase the number of authorized shares of such
Relevant Voting Securities to the number necessary to permit such issuance and
the closing of the sale of such shares of Relevant Voting Securities to the
Parent shall be postponed to a date when the Company’s charter permits such
issue.


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     (f)    If the Parent shall be entitled to purchase Relevant Voting Securities
pursuant to this Agreement and shall have informed the Company of its intent to
make such purchase but the closing of the sale to the Parent cannot be
accomplished because of a necessity to obtain required approvals from
governmental authorities having jurisdiction over the Parent or the Company,
then such closing may be delayed at the affected party’s request for a period
of up to 60 days, provided that the aggregate purchase price shall be increased
by an interest factor equal to the Applicable Interest Rate during the period.


     Section 3.    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:


     (1)    purchase Relevant Voting Securities from the Company pursuant to the
terms and conditions set forth in this Agreement other than in this Section 3,
or


     (2)    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 up to
1,000,000 votes in excess of 50% of the total Voting Power, as defined above,
to be represented by all Includible Voting Securities, as defined above, 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 3(a)(2) above, the Parent shall
pay the greater of the following to the Company for each Underlying Security it
shall purchase:


     (1)    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;


     (2)    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


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each share of Underlying Security paid by the holder of the Convertible
Securities upon exercise or conversion thereof; or


     (3)    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 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 2(b) above, 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 Notice Period above which of alternatives
(1) or (2) in Section 3(a) above it shall follow with respect to such issuance
of Relevant Voting Securities. If the Parent does not so notify the Company
within the Notice Period, the Parent’s rights with respect to such Relevant
Voting Securities shall be as set forth in alternative (1) in Section 3(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 3(a)(2) above so that Parent, after
receipt of such notice but prior to any such issuance, shall have a period of
no less than 15 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 15-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 determined as
provided in Section 3(a)(2) of this Agreement (or such reduced amounts as may
be specified in the Parent’s notice to the Company) at a price per share
determined as provided in Section 3(b) above.


     Section 4.    Representations and Warranties of the Company


     (a)    The Company is a corporation duly organized and existing in good
standing under the laws of the State of Maryland. The Company has the
corporate power to own the property owned by it and to conduct the business
presently being conducted by it.


     (b)    As of the date hereof, the authorized capital stock of the Company
consists of (i) 30,000,000 shares of voting Stock, of which 4,292,017 shares
are issued and


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outstanding, and (ii) 150,000,000 shares of Common Stock, of which
69,135,921 shares were issued and outstanding on October 31, 2003. All
outstanding shares of capital stock are validly authorized and issued, fully
paid and nonassessable.


     Section 5.    Successors and Assigns


     The rights of the Parent under this Agreement may not be assigned or
otherwise transferred except to (a) a member of the Lafarge Group or (b) a
corporation or entity which succeeds to the ownership of more than 80% of the
assets and business of the Parent.


     Section 6.    Termination


     Unless sooner terminated pursuant to the following sentence, this
Agreement shall terminate on October 31, 2013. Either the Company or the
Parent may terminate this Agreement unilaterally at any time in advance of
October 31, 2013 by giving the other party written notice of such termination
at least one year in advance of the date on which such termination shall be
effective.


     Section 7.    Notice


     Any notices or other communications required or permitted hereunder shall
be sufficiently given if sent by registered or certified mail, postage prepaid,
or by internationally recognized overnight courier to the following address:



	 	For the Company

Lafarge North America Inc.

12950 Worldgate Drive, Suite 500

Herndon, VA 20170

Attention: General Counsel




	 	For the Parent

Lafarge S.A.

61, rue des Belles Feuilles

75782 Paris, France

Attention: Directeur des Affaires Juridiques



or such other address as may be specified by the parties for such purposes.


     Section 8.    Governing Law


     This Agreement 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.


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     Section 9.    Regulatory Approval


     This Agreement is subject to and contingent upon receipt of all regulatory
approval that may be applicable to this Agreement.


     Section 10.    Counterparts


     This Agreement 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.


     IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement
as of the day and year first above written.



	 	 	 	 
	 	
       LAFARGE NORTH AMERICA INC.	 
	 
	 	By: 	
   /s/ Larry J. Waisanen



Larry J. Waisanen

Executive Vice President and

Chief Financial Officer	 
	 
	 	
       LAFARGE S.A.	 
	 
	 	By: 	
   /s/ Jean-Jacques Gauthier



Jean-Jacques Gauthier

Executive Vice President and

Chief Financial Officer	 




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