FORM F-3
As filed with the Securities and Exchange Commission on
July 10, 2006
Registration
No. 333-
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form F-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
LAFARGE S.A.
(Exact name of Registrant as specified in its charter)
Republic of France
(State or other
jurisdiction of Incorporation or organization)
Not Applicable
(I.R.S. Employer Identification Nos.)
61, rue des Belles Feuilles
75116 Paris
France
+33 1 44 34 11 11
(Address and telephone number of Registrants principal
executive offices)
CT Corporation System
111 Eighth Avenue
New York, New York 10011
212-894-8940
(Name, address and telephone number of agent for service)
Please send copies of all communications to:
|
|
|
|
|
Michel Bisiaux |
|
Andrew A. Bernstein |
|
Margaret E. Tahyar |
General Counsel |
|
Cleary Gottlieb Steen & Hamilton LLP |
|
Davis Polk & Wardwell |
Lafarge S.A. |
|
12, rue de Tilsitt |
|
15, avenue Matignon |
61, rue des Belles Feuilles |
|
75008 Paris |
|
75008 Paris |
75116 Paris |
|
France |
|
France |
France |
|
+33 1 40 74 68 00 |
|
+33 1 56 59 36 00 |
+33 1 44 34 11 11 |
|
|
|
|
Approximate date of commencement of proposed sale to the
public: From time to time after the effective date of this
registration statement as determined by market conditions.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following
box. o
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, please check the
following
box. þ
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same
offering. o
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering. o
If this Form is a registration statement pursuant to General
Instruction I.C. or a post-effective amendment thereto that
shall become effective upon filing with the Securities and
Exchange Commission pursuant to Rule 462(e) under the
Securities Act, check the following
box. þ
If this Form is a post-effective amendment to a registration
statement pursuant to General Instruction I.C. filed to
register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities
Act, check the following
box. o
CALCULATION OF REGISTRATION FEE
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Amount to be Registered/Proposed |
|
|
|
|
|
|
Maximum Offering Price per |
|
|
|
Title of Each Class of |
|
|
Unit/Proposed Maximum Offering |
|
|
Amount of |
Securities to be Registered |
|
|
Price(1) |
|
|
Registration Fee(1) |
|
|
|
|
|
|
|
Debt Securities
|
|
|
|
|
|
$0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
An unspecified aggregate initial offering price and number of
the securities is being registered as may from time to time be
offered at unspecified prices. In accordance with
Rules 456(b) and 457(r), the registrant is deferring
payment of all of the registration fee. In connection with the
securities offered hereby, the registrant will pay
pay-as-you-go
registration fees in accordance with Rule 456(b). |
PROSPECTUS
LAFARGE
Debt Securities
Lafarge S.A. may use this prospectus to offer debt securities
from time to time.
You should read this prospectus and the accompanying prospectus
supplement carefully before you invest. We may sell these
securities to or through underwriters, and also to other
purchasers or through agents. The names of the underwriters will
be set forth in the accompanying prospectus supplement.
Investing in these securities involves certain risks. See
Risk Factors beginning on page 2.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or passed upon the accuracy or adequacy of this
prospectus. Any representation to the contrary is a criminal
offense.
Prospectus dated July 10, 2006.
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we
filed with the U.S. Securities and Exchange Commission,
which we refer to as the SEC, utilizing a shelf registration
process. Under this shelf process, we may sell the debt
securities described in this prospectus in one or more
offerings. This prospectus provides you with a general
description of the debt securities we may offer. Each time we
offer securities pursuant to this prospectus, we will attach a
prospectus supplement to the front of this prospectus that will
contain specific information about the terms of those securities
and their offering. We may also add, update or change
information contained in this prospectus by means of a
prospectus supplement or by incorporating by reference
information that we file or furnish to the SEC. The registration
statement that we filed with the SEC includes exhibits that
provide more detail on the matters discussed in this prospectus.
Before you invest in any securities offered by this prospectus,
you should read this prospectus, any related prospectus
supplements and the related exhibits filed with the SEC,
together with the additional information described under the
heading Where You Can Find More Information About Us.
In this prospectus, unless otherwise specified or the context
otherwise requires, references to Lafarge are to
Lafarge S.A. and its consolidated subsidiaries. Terms such as
we, us and our generally
refer to Lafarge.
ENFORCEABILITY OF CERTAIN CIVIL LIABILITIES
Lafarge is a société anonyme incorporated under
the laws of France. Many of our directors and officers reside
outside the United States, principally in France. In addition, a
large portion of our assets and the assets of our directors and
officers is located outside of the United States. As a result,
U.S. investors may find it difficult in a lawsuit based on
the civil liability provisions of the U.S. federal
securities laws:
|
|
|
|
|
to effect service within the United States upon us or our
directors and officers located outside the United States; |
|
|
|
to enforce in U.S. courts or outside the United States
judgments obtained against us or those persons in the
U.S. courts; |
|
|
|
to enforce in U.S. courts judgments obtained against us or
those persons in courts in jurisdictions outside the United
States; and |
|
|
|
to enforce against us or those persons in France, whether in
original actions or in actions for the enforcement of judgments
of U.S. courts, civil liabilities based solely upon the
U.S. federal securities laws. |
1
RISK FACTORS
Investing in the debt securities offered using this prospectus
involves risk. You should consider carefully the risks relating
to our business and the debt securities being offered described
below, which are discussed in more detail in the documents
incorporated by reference into this prospectus, and any risk
factors included in the prospectus supplement, before you decide
to buy our debt securities. If any of these risks actually
occurs, our business, financial condition and results of
operations could suffer, and the trading price and liquidity of
the debt securities offered using this prospectus could decline,
in which case you may lose all or part of your investment.
Industry and company risks
|
|
|
We depend heavily on construction sector activity levels,
which tend to be cyclical and which differ throughout the
countries in which we operate |
Our results depend heavily on residential, commercial and
infrastructure construction activity and spending levels.
Construction activity and spending levels vary across our many
markets, and the construction industry in a given market tends
to be cyclical, especially in mature economies. The construction
industry is sensitive to interest rates and economic and other
factors outside our control. Economic downturns may lead to
recessions in the construction industry, either in individual
markets or globally, and construction spending can fall even in
growing economies. While our geographic diversification
mitigates risks associated with downturns in construction
spending, we may be affected significantly by downturns globally
or in individually significant markets.
|
|
|
Adverse weather lessens demand for our products, which is
seasonal in many of our markets |
Construction activity, and thus demand for our products,
decreases substantially during periods of cold weather, when it
snows or when heavy or sustained rains fall. Consequently,
demand for our products is significantly lower during the winter
in temperate countries and during the rainy season in tropical
countries. Our principal markets are located in Western Europe
and in North America, where winter weather significantly reduces
our first quarter sales, and to a lesser extent our fourth
quarter sales. Our operations in these and similar markets are
seasonal, with sales generally increasing during the second and
third quarters because of normally better weather conditions.
However, high levels of rainfall can adversely impact our
operations during these periods as well. Such adverse weather
conditions can materially and adversely affect our results of
operations and profitability if they occur with unusual
intensity, during abnormal periods, or last longer than usual in
our major markets, especially during peak construction periods.
|
|
|
Competition in our industry could adversely affect our
results of operations |
We operate in many local or regional markets around the world,
and many factors affect the competitive environments we face in
any particular market. These factors include the number of
competitors in the market, the pricing policies and financial
strength of those competitors, the total production capacity
serving the market, the barriers to enter the market and the
proximity of natural resources, as well as general economic
conditions and demand for construction materials within the
market. These factors combine in varying ways in each of our
markets, and can adversely impact demand for our products and
our results of operations.
|
|
|
We are exposed to risks inherent in the growing markets in
which we operate |
In 2005, we derived approximately 33% of our revenues from
growing markets, which we define as countries outside Western
Europe and North America other than Japan, Australia and New
Zealand. Our growth strategy focuses significantly on
opportunities in growing markets and we expect that an
increasing portion of our total revenues will continue to come
from such markets. Our presence in such markets exposes us to
risks such as volatility in gross domestic products, significant
and unstable currency fluctuations, political, financial and
social uncertainty and unrest, high rates of inflation, the
possible implementation of exchange controls, less certainty
regarding legal rights and enforcement mechanisms and potential
nationalization or expropriation of private assets, any of which
could damage or disrupt our operations in a given market.
2
|
|
|
Increased energy and fuel costs may have a material
adverse effect on our results |
Our operations consume significant amounts of energy and fuel,
the cost of which in many parts of the world has increased
substantially in recent years.
We protect ourselves to some extent against rising energy and
fuel costs through long-term supply contracts and forward energy
agreements, and by outfitting many of our plants to switch among
several fuel sources, including many alternative fuels such as
used oil, recycled tires and other recycled materials or
industrial by-products. Despite these measures, energy and fuel
costs have been significantly affected, and may continue to
affect, our results of operations and profitability. See
Sections 3.3 (Business description) and 4.6 (Market
risks) of our annual report on
Form 20-F for the
year ended December 31, 2005, which is incorporated herein
by reference.
|
|
|
Exchange rate fluctuations could adversely affect our
results of operations and financial condition |
While we report our results in euros, in 2005 we earned
approximately 70% of our revenues in currencies other than the
euro, with approximately 30% being denominated in
U.S. dollars and Canadian dollars. In addition, at the end
of 2005, approximately 73% of our capital employed were located
outside the member states of the European Monetary Union.
Consequently, exchange rate fluctuations may significantly
affect our financial condition and results of operations. This
effect may be positive or negative depending on the actual
exchange rate movement as well as the nature of any currency
hedging instruments we may put in place from time to time.
See Sections 4.4 (Liquidity and capital resources) and
4.6 (Market risks) of our annual report on
Form 20-F for the
year ended December 31, 2005, which is incorporated herein
by reference.
|
|
|
We are subject to risks associated with the acquisition of
other businesses |
Our growth strategy involves, in part, the acquisition of new
operations and the integration of those operations with our own.
Our strategy may not be successful if we cannot identify
suitable acquisition targets or complete acquisitions at
appropriate prices. Also, synergies from acquisitions may prove
less than we originally expect. Further, acquisition candidates
may have liabilities or adverse operating issues that we fail to
discover prior to the acquisition. If we fail to implement a
successful acquisition strategy, we may not be able to grow in
the long term at an acceptable rate.
In connection with our growth strategy through external
acquisitions, we may announce potential or actual acquisitions
or investments at any time. Financing for these acquisitions may
be secured through the issuance of new shares or on an increase
in our debt. Such acquisitions and investments could dilute the
interests of our existing shareholders or increase our debt
burden and may cause our share price to fall.
|
|
|
We do not control some of the businesses in which we have
invested |
We do not have a controlling interest in some of the businesses
in which we have invested and may make future investments in
which we will not have a controlling interest. Some key matters,
such as approval of business plans and the timing and amount of
cash distributions, may require the consent of our partners or
may be approved without our consent. These and other limitations
arising from our investments in companies we do not control may
prevent us from achieving our objectives for these investments.
|
|
|
We are restricted by the rights of minority investors in
some of our subsidiaries |
We conduct our operations through many subsidiaries, some of
which have one or more minority investors.
The interests of such minority investors are not always aligned
with ours. Restrictions arising from minority interests may
adversely impact our operating and financial strategies and
results by, among other things, impeding our ability to
implement organizational efficiencies through transferring cash
and other assets from one subsidiary to another to allocate
assets most effectively.
3
|
|
|
An increase in our indebtedness could limit our operating
and financial flexibility |
We have significant indebtedness outstanding, which may increase
in the future. Our indebtedness includes, for example, debt
incurred as a result of our recent purchase of the outstanding
shares of Lafarge North America Inc. that we did not already
own. If our total debt increases materially a) we could
face increased financial charges, b) we may need to
allocate a greater portion of our operating cash flow to cover
debt service payments, c) our credit ratings may be
downgraded, with resultant increases in our borrowing costs and
a possible decrease in the availability of adequate financing
sources, d) our exposure to interest and exchange rate
fluctuations may increase substantially, and e) lenders may
impose significant restrictions on our capital resources and/or
operations. Some of our debt agreements contain and some of our
future debt agreements may contain financial, operating and
other covenants and obligations that could limit our operating
and financial flexibility. Our ability to comply with these
obligations depends on the future performance of our businesses.
Our failure to abide by these obligations or to meet these
covenants may impair our ability to finance operations,
distribute dividends, finance acquisitions and expansions and
maintain flexibility in managing our operations.
|
|
|
Changes in the cost or availability of raw materials
supplied by third parties may adversely affect our operating and
financial performance |
We generally maintain our own reserves of limestone, gypsum,
aggregates and other materials that we use to manufacture our
products. Increasingly, however, we obtain certain raw materials
from third parties who produce such materials as by-products of
industrial processes, such as synthetic gypsum, slag and fly
ash. While we try to secure our needed supply of such materials
through long-term renewable contracts, we have not always been,
and may not in the future be, able to do so. Should our existing
suppliers cease operations or reduce or eliminate production of
these by-products, our costs to procure these materials may
increase significantly or we may be obliged to procure
alternatives to replace these materials which may affect our
results of operations.
|
|
|
Governmental policies and laws, particularly those
relating to protection of the environment, significantly impact
our operations |
Our operations are regulated extensively by national and local
governments, particularly in the areas of land use and
protection of the environment (e.g. regulations relating to
greenhouse gases). Our operations require numerous governmental
approvals and permits, which often require us to make
significant capital and maintenance expenditures to comply with
zoning and environmental laws and regulations. In addition,
future developments, such as the discovery of new facts or
conditions, stricter laws and regulations, or stricter
interpretation of existing laws or regulations, may impose new
liabilities on us, require additional investments by us, or
prevent us from opening or expanding plants or facilities that
could have a material adverse effect on our financial condition
or results of operations.
While we are not currently aware of any environmental
liabilities or of any non-compliance with environmental
regulations that we expect will have a material adverse effect
on our financial condition or results of operations,
environmental matters cannot be predicted with certainty and
there can be no assurance that the amounts we have budgeted and
reserved will be adequate. See Section 3.5 (Environment)
of our annual report on
Form 20-F for the
year ended December 31, 2005, which is incorporated herein
by reference.
|
|
|
You may not be able to effect claims or enforce judgments
against us or our directors or officers for violations of the
U.S. securities laws |
We are a société anonyme organized under the
laws of France. A majority of our directors and officers are
non-U.S. residents.
A substantial portion of our assets and the assets of our
directors and officers are, and we expect will continue to be,
located outside the United States. Consequently, you may not be
able to effect service of process within the United States upon
us or most of these persons, enforce judgments against us or
them in United States courts or enforce or obtain judgments in
French courts against us or these persons predicated upon the
securities laws of the United States.
4
|
|
|
If we fail to maintain proper and effective internal
control, our ability to produce accurate financial statements
could be impaired |
Our business organization is complex in scope. Ensuring that we
have adequate internal financial and accounting controls and
procedures in place to help ensure that we produce accurate
financial statements on a timely basis is a costly and
time-consuming effort. In connection with Section 404 of
the Sarbanes-Oxley Act, we have instituted an annual assessment
of the effectiveness of our internal control over financial
reporting and our independent auditor issues an attestation
report on managements assessment of such internal control.
During this process, we may identify material weaknesses or
significant deficiencies in our internal control over financial
reporting, or areas for further attention or improvement.
Implementing any appropriate changes to our internal control may
require specific compliance training of our directors, officers
and employees, entail substantial costs in order to modify our
existing accounting systems, or take a significant period of
time to complete. Such changes may not be effective in
maintaining the adequacy of our internal control.
Any failure to maintain that adequacy or our ability to produce
accurate financial statements on a timely basis could increase
our operating costs and materially impair our ability to operate
our business. In addition, investors perceptions that our
internal controls are inadequate or subject to material
weaknesses or significant deficiencies or are otherwise
perfectible, or that we are unable to produce accurate financial
statements may adversely affect the trading price of our
securities.
Risks related to the offering and owning the debt
securities
|
|
|
Since we conduct our operations through subsidiaries, your
right to receive payments on the debt securities is subordinated
to the other liabilities of our subsidiaries |
We carry on a significant portion of our operations through
subsidiaries. Our subsidiaries are not guarantors of the debt
securities we may offer. Moreover, these subsidiaries are not
required and may not be able to pay dividends to us. Claims of
the creditors of our subsidiaries have priority as to the assets
of such subsidiaries over the claims of our creditors.
Consequently, holders of our debt securities are in effect
structurally subordinated, on our insolvency, to the prior
claims of the creditors of our subsidiaries.
|
|
|
Our ability to make debt service payments depends on our
ability to transfer income and dividends from our
subsidiaries |
We are a holding company with no significant assets other than
direct and indirect interests in the many subsidiaries through
which we conduct operations. A number of our subsidiaries are
located in countries that may impose regulations restricting the
payment of dividends outside of the country through exchange
control regulations. To our knowledge, there are currently no
countries in which we operate that restrict payment of
dividends. However, there is no assurance that such risk may not
exist in the future.
Furthermore, the continued transfer to us of dividends and other
income from our subsidiaries may be limited by various credit or
other contractual arrangements and/or tax constraints, which
could make such payments difficult or costly. We do not believe
that any of these covenants or restrictions will have any
material impact on our ability to meet our financial
obligations. However, if in the future these restrictions are
increased and we are unable to ensure the continued transfer of
dividends and other income to us from these subsidiaries, our
ability to pay dividends and make debt payments will be impaired.
|
|
|
Since the debt securities are unsecured, your right to
receive payments may be adversely affected |
The debt securities that we are offering will be unsecured. The
debt securities are not subordinated to any of our other debt
obligations, and therefore they will rank equally with all our
other unsecured and unsubordinated indebtedness. As of
December 31, 2005, our total debt amounted to
8,742 million,
and we had
475 million
of property collateralizing debt. We recently incurred
US$3.5 billion of debt to purchase the minority interests
in Lafarge North America Inc. and
447 million
of debt in connection with our dividend payment. If we default
on the debt securities, or after bankruptcy, liquidation or
reorganization, then, to the
5
extent the relevant obligor has granted security over its
assets, the assets that secure the obligors debts will be
used to satisfy the obligations under that secured debt before
the obligor can make payment on the debt securities. As a
result, there may only be limited assets available to make
payments on the debt securities in the event of an acceleration
of the debt securities. If there are not enough assets to
satisfy the obligations of the secured debt, then the remaining
amounts on the secured debt would share equally in the remaining
assets with all unsubordinated unsecured indebtedness.
|
|
|
At any point in time there may or may not be an active
trading market for our debt securities |
At any point in time there may or may not be an active trading
market for our debt securities. If any of the debt securities
are traded after their initial issuance, they may trade at a
discount from their initial offering price. We may decide to
list a particular series of debt securities on one or more stock
exchanges. Factors that could cause the debt securities to trade
at a discount rate are:
|
|
|
|
|
an increase in prevailing interest rates; |
|
|
|
a decline in our credit worthiness; |
|
|
|
a weakness in the market for similar securities; and |
|
|
|
declining general economic conditions. |
|
|
|
We are not restricted in our ability to dispose of our
assets by the terms of the debt securities |
The indenture governing our debt securities contains a negative
pledge that prohibits us and our principal subsidiaries from
pledging assets to secure other bonds or similar debt
instruments, unless we make a similar pledge to secure the debt
securities offered by this prospectus. However, we are generally
permitted to sell or otherwise dispose of substantially all of
our assets to another corporation or other entity under the
terms of the debt securities. If we decide to dispose of a large
amount of our assets, you will not be entitled to declare an
acceleration of the maturity of the debt securities, and those
assets will no longer be available to support our debt
securities.
6
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, including the documents incorporated by
reference herein, and the related prospectus supplement contain
forward-looking statements regarding prices and demand for our
products, our financial results, our plans for investments,
divestitures and geographic expansion, expected cost increases,
including with respect to energy, and other matters. When used
in this prospectus, the documents incorporated by reference and
the related prospectus supplement, the words aim(s),
expect(s), intend(s), will,
may, believe(s),
anticipate(s), seek(s) and similar
expressions are intended to identify forward-looking statements.
Such statements are subject to certain risks and uncertainties
that could cause actual results to differ materially from those
projected. Specifically, statements herein regarding the future,
including our strategy, plans, product and process developments,
facility expansion and improvements, synergies, acquisitions,
our ability to manage rising energy costs, partnerships and
general business prospects are subject to uncertainty arising
from numerous factors outside our control, including market
conditions, raw material prices, currency fluctuations, customer
demand, the actions of competitors and regulators, technological
developments and other factors, as more fully set forth in
Risk Factors above. You are cautioned not to place
undue reliance on these forward-looking statements, which speak
only as of the date they are made. We do not undertake, except
as required by law, to update any forward-looking statements set
forth in this prospectus, the documents incorporated by
reference herein and any related prospectus supplement to
reflect new information or subsequent events or circumstances.
7
WHERE YOU CAN FIND MORE INFORMATION ABOUT US
We file annual reports and other reports and information with
the SEC. You may read and copy any document we file at the
SECs public reference room at 450 Fifth Street, N.W.,
Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330 for
further information on the public reference room. In addition,
our SEC filings are available to the public at the SECs
web site at http://www.sec.gov.
Our American depositary shares are listed on the New York Stock
Exchange. The principal trading market for our shares is the
Eurolist of Euronext Paris. You can consult reports and other
information about our Company that we file pursuant to the rules
of the New York Stock Exchange at such exchange.
The SEC allows us to incorporate by reference into
this prospectus the information in documents filed with the SEC.
This means that we can disclose important information to you by
referring you to those documents. Each document incorporated by
reference is current only as of the date of such document, and
the incorporation by reference of such documents shall not
create any implication that there has been no change in our
affairs since the date thereof or that the information contained
therein is current as of any time subsequent to its date. The
information incorporated by reference is considered to be a part
of this prospectus and should be read with the same care. When
we update the information contained in documents that have been
incorporated by reference by making future filings with the SEC,
the information incorporated by reference in this prospectus is
considered to be automatically updated and superseded. In other
words, in the case of a conflict or inconsistency between
information contained in this prospectus and information
incorporated by reference into this prospectus, you should rely
on the information contained in the document that was filed
later. This means that you should look at all of the SEC filings
that we incorporate by reference to determine if any of the
statements in this prospectus or in any documents previously
incorporated by reference have been modified or superseded.
We incorporate by reference the documents listed below and any
documents we file with the SEC in the future under
Section 13(a), 13(c), 14, or 15(d) of the Securities
Exchange Act of 1934 (the Exchange Act) until the
offerings made under this prospectus are completed:
|
|
|
|
|
our annual report on
Form 20-F for the
year ended December 31, 2005, filed with the SEC on
March 24, 2006; |
|
|
|
any future annual reports on
Form 20-F filed
with the SEC after the date of this prospectus and prior to the
termination of the offering of the debt securities offered by
this prospectus; |
|
|
|
our reports on
Form 6-K,
furnished to the SEC on May 2, 2006, May 15, 2006 and
July 10, 2006; |
|
|
|
any future reports on
Form 6-K that we
furnish to the SEC after the date of this prospectus that are
identified in such reports as being incorporated by reference in
this prospectus. |
You may request a copy of these filings, other than an exhibit
to a filing unless that exhibit is specifically incorporated by
reference into that filing, at no cost, by writing to or
telephoning Lafarge at the following address: 61, rue des Belles
Feuilles, 75116 Paris, France, +33 1 44 34 11 11.
You should rely only on the information that we incorporate by
reference or provide in this prospectus or the prospectus
supplement. We have not authorized anyone to provide you with
different information. We are not making an offer of these
securities in any jurisdiction where the offer is not permitted.
You should not assume that the information in this prospectus or
the prospectus supplement is accurate as of any date other than
the date on the front of those documents.
8
LAFARGE
Lafarge S.A. is a limited liability company incorporated in
France and governed by French law (société
anonyme). We produce and sell construction
materials cement, aggregates, concrete, roofing
products, gypsum wallboard, and related products
worldwide, primarily under the commercial name
Lafarge.
Based on sales, we are the world leader in construction
materials. Our products are used for residential, commercial and
public works construction projects throughout the world, whether
for new construction or renovation. Based on both internal and
external analyses, we believe that we are co-leader of the
cement industry, the second largest producer of aggregates and
concrete worldwide, the largest producer of concrete and clay
roofing tiles worldwide and the third-largest manufacturer of
gypsum wallboard worldwide.
Our financial reporting currency is the euro
(). In fiscal
2005, we generated
16.0 billion
in sales and we earned current operating income of
2.4 billion
and net income-Group share of
1.1 billion.
At year-end 2005, our assets totaled
27.9 billion.
We currently employ approximately 80,000 people throughout the
76 countries in which we operate.
We began operations in the early 1800s and were incorporated in
1884 under the name J. et A. Pavin de Lafarge. Our
shares are a component of the French CAC-40 market index (and
have been since its inception) and are included in the SBF 250
index and the Dow Jones Eurostoxx 50 index. Our shares also
trade on the New York Stock Exchange (NYSE) under
the symbol LR in the form of American Depositary
Shares (ADS). Each ADS represents one-fourth of one
share. Our market capitalization totaled
17.3 billion
at the close of the market on June 30, 2006 including
164 million
attributable to our treasury shares.
9
RATIO OF EARNINGS TO FIXED CHARGES
(Unaudited)
The following table shows the ratios of earnings to fixed
charges for Lafarge, computed in accordance with International
Financial Reporting Standards (IFRS) for the fiscal years ended
December 31, 2005 and 2004 and in accordance with
accounting principles generally accepted in the United States of
America (U.S. GAAP) for the fiscal years ended
December 31, 2005, 2004, 2003, 2002 and 2001. As a
first-time adopter of IFRS in 2005 and in accordance with
General Instruction G to
Form 20-F, we are
providing the ratio of earnings to fixed charges for 2005 and
2004 in accordance with IFRS and for 2005, 2004, 2003, 2002 and
2001 in accordance with U.S. GAAP.
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31, |
|
|
|
|
|
2005 |
|
2004 |
|
2003 |
|
2002 |
|
2001 |
|
|
|
|
|
|
|
|
|
|
|
For Lafarge
(IFRS)(1)
|
|
4.62 |
|
3.95 |
|
|
|
|
|
|
For Lafarge in accordance with U.S. GAAP
|
|
4.30 |
|
3.54 |
|
3.29 |
|
2.67 |
|
2.84 |
|
|
(1) |
2004 IFRS ratio is based on figures that are restated from
French GAAP, as set forth in our consolidated financial
statements for the year ended December 31, 2005. |
In calculating the ratio of earnings to fixed charges, we used
the following definitions:
The term fixed charges means the sum of the
following: (a) interest expensed and capitalized,
(b) amortized premiums, discounts and capitalized expenses
related to indebtedness, (c) an estimate of the interest
within rental expense and (d) preference security dividend
requirements of consolidated subsidiaries.
The term earnings is the amount resulting from
adding and subtracting the following items. Add the following:
(a) Pre-tax income from continuing operations before
adjustment for minority interests in consolidated subsidiaries
or income or loss from equity investees, (b) fixed charges,
(c) distributed income of equity investees, and
(d) our share of pre-tax losses of equity investees for
which charges arising from guarantees are included in fixed
charges. Amortization of capitalized interest would normally be
added as well, but has not been taken into account for the
purpose of this calculation as the amounts are immaterial. From
the total of the added items, subtract the following:
(a) interest capitalized, (b) preference security
dividend requirements of consolidated subsidiaries, and
(c) the minority interest in pre-tax income of subsidiaries
that have not incurred fixed charges. Equity investees are
investments that we account for using the equity method of
accounting.
10
CAPITALIZATION AND INDEBTEDNESS OF LAFARGE
(Unaudited)
The following table sets out the consolidated capitalization and
long-term indebtedness, as well as short-term indebtedness, of
Lafarge at December 31, 2005, prepared on the basis of
IFRS. You should read this table together with our consolidated
financial statements and the other financial data appearing
elsewhere, or incorporated by reference, in this prospectus.
|
|
|
|
|
|
|
|
(in millions) | |
Short-term borrowings, including current portion of long-term
debt
|
|
|
|
|
|
Current portion of long-term debt
|
|
|
1,555 |
|
|
Short-term borrowings and Bank overdrafts
|
|
|
331 |
|
|
|
|
|
Total short-term indebtedness
|
|
|
1,886 |
|
|
|
|
|
Long-term borrowings
|
|
|
6,856 |
|
Minority interests
|
|
|
2,571 |
|
Shareholders equity parent company
|
|
|
|
|
Common shares
|
|
|
704 |
|
Additional paid in capital
|
|
|
6,316 |
|
Retained earnings
|
|
|
2,025 |
|
Foreign currency translation adjustment
|
|
|
741 |
|
Treasury shares
|
|
|
(98 |
) |
Other reserves
|
|
|
70 |
|
|
|
|
|
Total shareholders equity parent company
|
|
|
9,758 |
|
|
|
|
|
Total capitalization and long-term indebtedness
|
|
|
19,185 |
|
|
|
|
|
As of December 31, 2005, we had an issued share capital of
175,985,303 ordinary fully-paid shares (including 1,785,074
treasury shares from shareholders equity), with a nominal
value of
4 per
share, and securities with rights to up to
6,938,951 shares. From December 31, 2005 to
June 30, 2006, we issued 184,384 shares in connection
with the exercise of stock options by employees.
As of December 31, 2005, property collateralizing debt
amounted to
475 million.
As of December 31, 2005, we had
271 million
of outstanding guarantees to third parties. For more information
about our commitments and contingencies, put options on shares
of subsidiaries and derivative instruments, see Notes 29,
26 and 27 of the notes to our audited consolidated financial
statements in our annual report on
Form 20-F for the
year ended December 31, 2005, which is incorporated herein
by reference. Since December 31, 2005, we have incurred
US$3.5 billion of debt in connection with our purchase of
the minority interests in Lafarge North America Inc. and
447 million
of debt in connection with our dividend payment.
Except as disclosed herein or in the prospectus supplement,
there have been no material changes in the consolidated
capitalization, indebtedness and contingent liabilities of
Lafarge since December 31, 2005.
11
USE OF PROCEEDS
Unless otherwise indicated in an accompanying prospectus
supplement, the net proceeds from the sale of securities will be
used for our general corporate purposes. These purposes include
working capital for our company or other companies in our group
and the repayment of existing borrowings of our company and our
subsidiaries.
12
DESCRIPTION OF DEBT SECURITIES
General
We may issue debt securities using this prospectus. As required
by U.S. federal law for all bonds and notes of companies
that are publicly offered, the debt securities that we may issue
are governed by a contract between us and Law Debenture Trust
Company of New York, as trustee, called an indenture.
The trustee under the indenture has two main roles:
|
|
|
|
|
first, it can enforce your rights against us if we default.
There are some limitations on the extent to which the trustee
acts on your behalf, described under Default and Related
Matters Events of Default Remedies If an
Event of Default Occurs below; and |
|
|
|
second, the trustee performs administrative duties for us, such
as sending you interest payments, transferring your debt
securities to a new buyer if you sell your debt securities and
sending you notices. |
The indenture and its associated documents contain the full
legal text governing the matters described in this section. The
indenture and the debt securities are governed by New York law.
A form of the indenture is an exhibit to our registration
statement. See Where You Can Find More Information About
Us for information on how to obtain a copy.
This section summarizes the material provisions of the indenture
and the debt securities. However, because it is a summary, it
does not describe every aspect of the indenture or the debt
securities. This summary is subject to and qualified in its
entirety by reference to all the provisions of the indenture,
including some of the terms used in the indenture. We describe
the meaning for only the more important terms. We also include
references in parentheses to some sections of the indenture.
Whenever we refer to particular sections or defined terms of the
indenture in this prospectus or in the prospectus supplement,
those sections or defined terms are incorporated by reference
herein or in the prospectus supplement. This summary also is
subject to and qualified by reference to the description of the
particular terms of your series described in the prospectus
supplement.
We may issue as many distinct series of debt securities under
the indenture as we wish. This section summarizes all material
terms of the debt securities that are common to all series,
unless otherwise indicated in the prospectus supplement relating
to a particular series.
We may issue the debt securities as original issue discount
securities, which are debt securities that are offered and sold
at a substantial discount to their stated principal amount.
(Section 101) Special U.S. federal income tax,
accounting and other considerations may apply to original issue
discount securities. These considerations are discussed below
under Tax Considerations United States Tax
Considerations. The debt securities may also be issued as
indexed securities or securities denominated in foreign
currencies or currency units, as described in more detail in the
prospectus supplement relating to any such debt securities.
Unless otherwise specified in a prospectus supplement, we may
issue debt securities of the same series as an outstanding
series of debt securities without the consent of holders of
securities in the outstanding series. Any additional debt
securities so issued will have the same terms as the existing
debt securities of the same series in all respects (except for
the first interest payment on the new series, if any), so that
such additional debt securities will be consolidated and form a
single series with the existing debt securities of the same
series.
In addition, the specific financial, legal and other terms
particular to a series of debt securities are described in the
prospectus supplement and the underwriting agreement relating to
the series. Those terms may vary from the terms described here.
Accordingly, this summary also is subject to and qualified by
reference to the description of the terms of the series
described in the prospectus supplement.
13
The prospectus supplement relating to a series of debt
securities will describe the following terms of the series:
|
|
|
|
|
the title of the series of debt securities; |
|
|
|
any limit on the aggregate principal amount of the series of
debt securities; |
|
|
|
any stock exchange on which we list the series of debt
securities; |
|
|
|
whether the debt securities are subject to subordination to our
other indebtedness and if so, the terms of such subordination; |
|
|
|
the date or dates on which we will pay the principal of the
series of debt securities; |
|
|
|
any provisions for the conversion or exchange of the debt
securities into or for other debt securities; |
|
|
|
the rate or rates, which may be fixed or variable, per annum at
which the series of debt securities will bear interest, if any,
and the date or dates from which that interest, if any, will
accrue; |
|
|
|
the dates on which interest, if any, on the series of debt
securities will be payable and the regular record dates for the
interest payment dates; |
|
|
|
any mandatory or optional sinking funds or analogous provisions
or provisions for redemption at the option of the holder; |
|
|
|
the date, if any, after which and the price or prices at which
the series of debt securities may, in accordance with any
optional or mandatory redemption provisions that are not
described in this prospectus, be redeemed and the other detailed
terms and provisions of those optional or mandatory redemption
provisions, if any; |
|
|
|
the denominations in which the series of debt securities will be
issuable; |
|
|
|
the currency of payment of principal of, premium, if any, and
interest on the series of debt securities and the manner of
determining the equivalent amount in the currency of the United
States of America, if applicable; |
|
|
|
any index used to determine the amount of payment of principal
of, premium, if any, and interest on the series of debt
securities; |
|
|
|
whether we will be required to pay additional amounts for
withholding taxes or other governmental charges and, if
applicable, a related right to an optional tax redemption for
such a series; |
|
|
|
any additional Events of Default or negative covenants
applicable to the series of debt securities; |
|
|
|
whether the series of debt securities will be issuable in whole
or in part in the form of a global security as described under
Legal Ownership Global Securities, and
the depositary or its nominee with respect to the series of debt
securities, and any special circumstances under which the global
security may be registered for transfer or exchange in the name
of a person other than the depositary or its nominee; |
|
|
|
if applicable, a discussion of material U.S. federal income tax
considerations not described under Tax
Considerations United States Tax
Considerations; and |
|
|
|
any other special features of the series of debt securities. |
The debt securities will be issued only in fully registered form
without interest coupons.
Legal Ownership
|
|
|
Street Name and Other Indirect Holders |
We generally will not recognize investors who hold securities in
accounts at banks or brokers as legal holders of securities.
When we refer to the holders of securities, we mean only the
actual legal and (if
14
applicable) record holder of those securities. Holding
securities in accounts at banks or brokers is called holding in
street name. If you hold securities in street name, we will
recognize only the bank or broker or the financial institution
the bank or broker uses to hold its securities. These
intermediary banks, brokers and other financial institutions
pass along principal, interest and other payments on the debt
securities, either because they agree to do so in their customer
agreements or because they are legally required to do so. If you
hold securities in street name, you should check with your own
institution to find out:
|
|
|
|
|
how it handles securities payments and notices; |
|
|
|
whether it imposes fees or charges; |
|
|
|
how it would handle voting if it were ever required to vote; |
|
|
|
how and when you should notify it to exercise on your behalf
exercisable rights and options that may exist under the debt
securities; |
|
|
|
whether and how you can instruct it to send you securities
registered in your own name so you can be a direct holder as
described below; and |
|
|
|
how it would pursue rights under the debt securities if there
were a default or other event triggering the need for holders to
act to protect their interests. |
Our obligations, as well as the obligations of the trustee and
those of any third parties employed by us or the trustee, under
the debt securities run only to persons who are registered as
holders of securities. As noted above, we do not have
obligations to you if you hold in street name or other indirect
means, either because you choose to hold securities in that
manner or because the debt securities are issued in the form of
global securities as described below. For example, once we make
payment to the registered holder, we have no further
responsibility for the payment even if that holder is legally
required to pass the payment along to you as a street name
customer but does not do so.
What is a Global Security? A global security is a special
type of indirectly held security, as described above under
Street Name and Other Indirect Holders.
If we choose to issue debt securities in the form of global
securities, the ultimate beneficial owners can only be indirect
holders.
The financial institution that acts as the sole direct holder of
the global security is called the depositary. We require that
the debt securities included in the global security not be
transferred to the name of any other direct holder unless the
special circumstances described below occur. Any person wishing
to own a security must do so indirectly by virtue of an account
with a broker, bank or other financial institution that in turn
has an account with the depositary. The prospectus supplement
relating to an offering of a series of securities will indicate
whether the series will be issued only in the form of global
securities.
Special Investor Considerations for Global Securities. As
an indirect holder, your rights relating to a global security
will be governed by the account rules of the investors
financial institution and of the depositary, as well as general
laws relating to securities transfers. We do not recognize this
type of investor as a holder of securities and instead deal only
with the depositary that holds the global security.
You should be aware that if the debt securities are issued only
in the form of global securities that:
|
|
|
|
|
You cannot have securities registered in your own name. |
|
|
|
You cannot receive physical certificates for your interest in
the debt securities. |
|
|
|
You will be a street name holder and must look to your own bank
or broker for payments on the debt securities and protection of
your legal rights relating to the debt securities, as explained
above under Street Name and Other Indirect
Holders. |
15
|
|
|
|
|
You may not be able to sell interests in the debt securities to
some insurance companies and other institutions that are
required by law to own their securities in the form of physical
certificates. |
|
|
|
The depositarys policies will govern payments, transfers,
exchange and other matters relating to your interest in the
global security. We, the trustee and the registrar have no
responsibility for any aspect of the depositarys actions
or for its records of ownership interests in the global
security. We, the trustee and the registrar also do not
supervise the depositary in any way. |
|
|
|
The depositary will require that interests in a global security
be purchased or sold within its system using same-day funds for
settlement. |
Special Situations When the Global Security Will Be
Terminated. In a few special situations described below, the
global security will terminate and interests in it will be
exchanged for physical certificates representing securities.
After that exchange, the choice of whether to hold securities
directly or in street name will be up to you. You must consult
your own bank or broker to find out how to have your interests
in securities transferred to your own name so that you will be a
direct holder. The rights of street name investors and direct
holders in the debt securities have been previously described
above under Street Name and Other Indirect
Holders and Direct Holders.
The special situations for termination of a global security
representing our debt securities are:
|
|
|
|
|
When the depositary notifies us that it is unwilling, unable or
no longer qualified to continue as depositary, and a new
depositary does not take the old depositarys place. |
|
|
|
When an event of default on the debt securities has occurred and
has not been cured. Defaults on debt securities are discussed
below under Description of Debt Securities
Default and Related Matters Events of Default. |
|
|
|
When we notify the trustee that the global security is
exchangeable for physical certificates. |
The prospectus supplement may also list additional situations
for terminating a global security that would apply only to the
particular series of debt securities covered by the prospectus
supplement. When a global security terminates, the depositary,
and not we or the trustee, is responsible for deciding the names
of the institutions that will be the initial direct holders.
In the remainder of this description of debt securities
you means direct holders and not street name or
other indirect holders of securities. Indirect holders should
read the previous subsection entitled Street
Name and Other Indirect Holders.
Additional Mechanics
The debt securities will be issued:
|
|
|
|
|
Only in fully registered form; |
|
|
|
Without interest coupons; and |
|
|
|
In denominations that are indicated in the prospectus supplement. |
You may have your debt securities of any series broken into more
debt securities of smaller denominations of the same series or
combined into fewer debt securities of larger denominations of
the same series, as long as the total principal amount is not
changed. (Section 305) This is called an exchange.
You may exchange or transfer registered debt securities at the
corporate trust office of the trustee. The trustee acts as our
agent for registering debt securities in the names of holders
and transferring registered debt securities. We may change this
appointment to another entity or perform the service ourselves.
The entity
16
performing the role of maintaining the list of registered
holders is called the security registrar. It will also register
transfers of the registered debt securities.
(Section 305)
You will not be required to pay a service charge to transfer or
exchange debt securities, but you may be required to pay for any
tax or other governmental charge associated with the exchange or
transfer. The transfer or exchange of a registered debt security
will only be made if the security registrar is satisfied with
your proof of ownership. (Section 305)
If we have designated additional transfer agents, they are named
in the prospectus supplement. We may cancel the designation of
any particular transfer agent. We may also approve a change in
the office through which any transfer agent acts.
(Section 1002)
If the debt securities are redeemable and we redeem less than
all of the debt securities of a particular series, we may block
the transfer or exchange of debt securities during a specified
period of time in order to freeze the list of holders to prepare
the mailing. The period begins 15 days before the day we
mail the notice of redemption and ends on the day of that
mailing. We may also refuse to register transfers or exchanges
of debt securities selected for redemption. However, we will
continue to permit transfers and exchanges of the unredeemed
portion of any security being partially redeemed.
(Section 305)
|
|
|
Payment and Paying Agents |
We will pay interest to you if you are a direct holder listed in
the trustees records at the close of business on a
particular day in advance of each due date for interest, even if
you no longer own the security on the interest due date. That
particular day, usually about two weeks in advance of the
interest due date, is called the regular record date and is
stated in the prospectus supplement. (Section 307)
We will pay interest, principal and any other money due on the
registered debt securities at the office of Citibank N.A.,
London branch, located at 21st Floor, Citigroup Centre,
Canada Square, Canada Wharf, London E14 5LB, United
Kingdom. You must make arrangements to have your payments picked
up at or wired from that office. We may also choose to pay
interest by mailing checks. Interest on global securities will
be paid to the holder thereof by wire transfer.
We may also arrange for additional payment offices, use the
trustees corporate trust office and may cancel or change
these offices. These offices are called paying agents. We may
also choose to act as our own paying agent. We must notify you
through the trustee of changes in the paying agents for any
particular series of debt securities. (Section 1002)
Street name and other indirect holders should consult
their banks or brokers for information on how they will receive
payments.
Regardless of who acts as paying agent, all money that we pay to
a paying agent that remains unclaimed at the end of two years
after the amount is due to direct holders will be repaid to us.
After that two-year period, you may look only to us for payment
and not to the trustee, any other paying agent or anyone else.
(Section 1003)
We and the trustee will send notices only to direct holders,
using their addresses as listed in the trustees records.
(Section 106)
Special Situations
|
|
|
Mergers and Similar Events |
We are generally permitted to consolidate or merge with another
company or firm. We are also permitted to sell or lease
substantially all of our assets to another corporation or other
entity or to buy or lease
17
substantially all of the assets of another corporation or other
entity. In addition, we are permitted to transfer our
obligations, as issuer of the debt securities, to any
majority-owned subsidiary of our company, so long as the
obligations of that subsidiary are guaranteed by us.
(Section 802)
No vote by holders of debt securities approving any of these
actions is required, unless as part of the transaction we make
changes to the applicable indenture requiring your approval, as
described below under Modification and
Waiver. We may take these actions as part of a transaction
involving outside third parties or as part of an internal
corporate reorganization. We may take these actions even if they
result in:
|
|
|
|
|
a lower credit rating being assigned to the debt
securities; or |
|
|
|
additional amounts becoming payable in respect of withholding
tax. |
Except as provided below, we have no obligation under the
indenture to seek to avoid these results, or any other legal or
financial effects that are disadvantageous to you, in connection
with a merger, consolidation or sale or lease of assets that is
permitted under the indenture. However, we may not take any of
these actions unless all the following conditions are met:
|
|
|
|
|
Where we merge out of existence or sell or lease substantially
all of our assets, or transfer our obligations to a substitute
obligor, the other entity must be duly organized and validly
existing under the laws of the relevant jurisdiction. |
|
|
|
The merger, sale or lease of assets or other transaction, or the
transfer of obligations to a substitute obligor, must not cause
a default on the debt securities, and we must not already be in
default. For purposes of this no-default test, a default would
include an event of default that has occurred and not been
cured, as described below under Default and Related
Matters Events of Default What is An
Event of Default? A default for this purpose would also
include any event that would be an event of default if the
requirements for giving us default notice or our default having
to continue for a specific period of time were disregarded. |
|
|
|
If we merge out of existence or sell or lease substantially all
of our assets, or transfer our obligations to a substitute
obligor, the other entity must assume our obligations under the
applicable indenture and debt securities, including our
obligation to pay additional amounts described below under
Payment of Additional Amounts. In the
event the jurisdiction of incorporation or tax residence of the
successor or substitute obligor is not the Republic of France,
such successor or substitute obligor will also agree to be bound
to the obligations described below under
Payment of Additional Amounts and
Optional Tax Redemption but shall
substitute the successors or substitute obligors
jurisdiction of incorporation or tax residence for the Republic
of France. (Section 801) |
It is possible that the U.S. Internal Revenue Service may
deem a merger or other similar transaction to cause an exchange
for U.S. federal income tax purposes of debt securities for
new securities by the holders of the debt securities. This could
result in the recognition of taxable gain or loss for
U.S. federal income tax purposes and possible other adverse
tax consequences.
There are three types of changes we can make to the indenture
and the debt securities.
Changes Requiring Your Approval. First, there are changes
that cannot be made to your debt securities without your
specific approval, for example, by calling a meeting of holders
and seeking a 100% quorum and unanimous consent, or, more
likely, by obtaining written consents from each holder. We must
obtain your specified approval in order to:
|
|
|
|
|
change the stated maturity of the principal or interest on a
debt security; |
|
|
|
reduce any amounts due on a debt security; |
|
|
|
reduce the amount of principal payable upon acceleration of the
maturity of a debt security following a default; |
18
|
|
|
|
|
change the place or currency of payment on a debt security; |
|
|
|
impair your right to sue for payment; |
|
|
|
reduce the percentage of holders of debt securities whose
consent is needed to modify or amend the applicable indenture; |
|
|
|
reduce the percentage of holders of debt securities whose
consent is needed to waive compliance with various provisions of
the applicable indenture or to waive various defaults; and |
|
|
|
modify any other aspect of the provisions dealing with
modification and waiver of the applicable indenture.
(Section 902) |
Changes Requiring a Majority Vote. The second type of
change to the indenture and the debt securities is the kind that
requires a vote in favor by holders of debt securities owning a
majority of the principal amount of the particular series
affected. Most changes fall into this category, except for
clarifying changes and other changes that would not adversely
affect holders of the debt securities in any material respect.
(Section 901) The same vote would be required for us
to obtain a waiver of all or part of the covenants described
below, or a waiver of a past default. However, we cannot obtain
a waiver of a payment default or any other aspect of the
indenture or the debt securities described above under
Changes Requiring Your Approval unless
we obtain your individual consent, for example, by calling a
meeting of holders and seeking a 100% quorum and unanimous
consent, or, more likely, by obtaining written consents from
each holder, to the waiver. (Section 513)
Changes Not Requiring Approval. The third type of change
does not require any vote by holders of debt securities. This
type is limited to clarifications and other changes that would
not adversely affect holders of the debt securities in any
material respect. (Section 901)
Further Details Concerning Voting. When taking a vote, we
will use the following rules to decide how much principal amount
to attribute to a security:
|
|
|
|
|
For original issue discount securities, we will use the
principal amount that would be due and payable on the voting
date if the maturity of the debt securities were accelerated to
that date because of a default. |
|
|
|
For debt securities whose principal amount is not known (for
example, because it is based on an index), we will use a special
rule for that security described in the prospectus supplement. |
|
|
|
For debt securities denominated in one or more foreign
currencies or currency units, we will use the U.S. dollar
equivalent as of the date of original issuance. |
|
|
|
Debt securities will not be considered outstanding, and
therefore not eligible to vote, if we have deposited or set
aside in trust for you money for their payment or redemption.
Debt securities will also not be eligible to vote if they have
been fully defeased pursuant to any applicable defeasance
provisions described in the prospectus supplement. |
|
|
|
We will generally be entitled to set any day as a record date
for the purpose of determining the holders of outstanding debt
securities that are entitled to vote or take other action under
the applicable indenture (or failing us in certain
circumstances, the trustee). If we set a record date for a vote
or other action to be taken by holders of a particular series,
that vote or action may be taken only by persons who are holders
of outstanding debt securities of that series on the record date
and must be taken within 90 days following the record date
or another period that we may specify (or as the trustee may
specify, if it set the record date). We may shorten or lengthen
(but not beyond 90 days) this period from time to time.
(Sections 101, 501, 502, 512, 513 and 902) |
19
Street name and other indirect holders should consult
their banks or brokers for information on how approval may be
granted or denied if we seek to change the indenture or the debt
securities or request a waiver.
The prospectus supplement will state whether the debt securities
are redeemable by us or subject to repayment at the
holders option, other than as described below under
Optional Tax Redemption.
We or our affiliates may purchase debt securities from investors
who are willing to sell from time to time, either in the open
market at prevailing prices or in private transactions at
negotiated prices. Debt securities that we or they purchase will
be canceled.
|
|
|
Payment of Additional Amounts |
We will make payments on the debt securities without withholding
any taxes unless otherwise required to do so by law. If the
Republic of France or any tax authority therein requires us to
withhold or deduct amounts from payment on a debt security or
any amounts to be paid as additional amounts for or on account
of taxes or any other governmental charges, or any other
jurisdiction requires such withholding or deduction as a result
of a merger or similar event (the jurisdiction imposing the tax,
the taxing jurisdiction), we may be required to pay
you an additional amount so that the net amount you receive will
be the amount specified in the debt security to which you are
entitled.
We will not have to pay additional amounts under any of the
following circumstances:
|
|
|
|
|
The holder of the debt securities (or a third party holding on
behalf of the holder) is subject to such tax or governmental
charge by reason of having some connection to the taxing
jurisdiction requiring such withholding or deduction, other than
the mere holding of the debt security. |
|
|
|
The tax or governmental charge is imposed due to the
presentation of a debt security, if presentation is required,
for payment on a date more than 30 days after the security
became due or after the payment was provided for, whichever
occurs later. |
|
|
|
The tax or governmental charge is on account of an estate,
inheritance, gift, sale, transfer, personal property or similar
tax or other governmental charge. |
|
|
|
The tax or governmental charge is for a tax or governmental
charge that is payable in a manner that does not involve
withholding or deduction. |
|
|
|
The tax or governmental charge is imposed or withheld because
the holder or beneficial owner failed: |
|
|
|
|
|
to provide information about the nationality, residence or
identity of the holder or beneficial owner; or |
|
|
|
to make a declaration or satisfy any information requirements |
|
|
|
that the statutes, treaties, regulations or administrative
practices of the taxing jurisdiction require as a precondition
to exemption from all or part of such tax or governmental charge. |
|
|
|
|
|
The withholding or deduction is imposed pursuant to the European
Union Directive 2003/48/ EC regarding the taxation of savings
income, or any law implementing such directive. |
|
|
|
The withholding or deduction is imposed on a holder or
beneficial owner who could have avoided such withholding or
deduction by presenting its debt securities to another paying
agent. |
|
|
|
The holder is a fiduciary or partnership or an entity that is
not the sole beneficial owner of the payment of the principal
of, or any interest on, any debt security, and the laws of the
taxing jurisdiction require the payment to be included in the
income of a beneficiary or settlor for tax purposes with respect
to |
20
|
|
|
|
|
such fiduciary or a member of such partnership or a beneficial
owner who would not have been entitled to such additional
amounts had it been the holder of such security. |
The prospectus supplement will describe the terms of any option
we may have to redeem the debt securities of a given series if,
as a result of any change in French tax treatment (or treatment
of any jurisdiction in which a successor to, or substitute
obligor of, our company is organized or resident for tax
purposes), we would be required to pay additional amounts as
described above under Payment of Additional
Amounts.
As long as any debt security issued under the indenture is
outstanding, we will not, and will ensure that none of our
Principal Subsidiaries will, create or permit to subsist any
mortgage, lien, charge, pledge or other form of security
interest upon any of our or their respective assets or revenues,
present or future, to secure any Relevant Indebtedness or any
guarantee or indemnity in respect of any Relevant Indebtedness
unless, at the same time or prior thereto, our obligations under
the debt securities are equally and ratably secured.
(Section 1008)
For the purpose of this covenant, Relevant
Indebtedness means any present or future indebtedness for
borrowed money in the form of, or represented by, bonds (which
are called obligations under French law), notes or other
securities (including securities that take the form of titres
de créances négociables under French law) which
are for the time being, or are capable of being, quoted, listed
or ordinarily dealt in on any stock exchange,
over-the-counter or
other securities market.
For the purpose of this covenant and the Events of
Default described below,
|
|
|
|
|
Principal Subsidiary means at any relevant time a
Subsidiary of our company: |
|
|
|
|
|
whose total revenues (or, where the Subsidiary in question
prepares consolidated financial statements, whose total
consolidated revenues) attributable to our group represent not
less than 5 percent of the total consolidated revenues of
our group, all as calculated by reference to the then latest
audited financial statements (or consolidated financial
statements, as the case may be) of such Subsidiary and the then
latest consolidated financial statements of our group; or |
|
|
|
to which is transferred all or substantially all the assets and
undertakings of a Subsidiary which immediately prior to such
transfer is a Principal Subsidiary. |
Subsidiary means, in relation to any person or
entity at any time, any other person or entity (whether or not
now existing) meeting the definition of Article L.
233-1 of the French
Commercial Code or any other person or entity controlled
directly or indirectly by such person or entity within the
meaning of Article L.
233-3 of the French
Commercial Code. These articles:
|
|
|
|
|
define a subsidiary as an entity for which a majority of the
share capital is owned by another entity (Article L.
233-1); and |
|
|
|
provide a list of the circumstances under which an entity is
considered to control another ((i) shareholding with majority
voting rights of an entity; (ii) majority voting rights of
an entity by virtue of an agreement with other shareholders that
is not contrary to the interests of the entity;
(iii) ability, given voting rights, to determine whether
resolutions are adopted at general shareholder meetings of an
entity; (iv) shareholding and ability to appoint or to
revoke the majority of the members of the board of directors or
the members of the supervisory board of an entity. An entity is
also deemed to exert this control if it directly or indirectly
holds more than 40% of the voting rights of another entity and
no other shareholder holds a greater shareholding. In addition,
two or more entities acting together are considered as jointly
controlling another when they are able to determine whether
resolutions are adopted at general shareholder meetings of
another entity.)(Article L.
233-3). |
21
The prospectus supplement will state if any defeasance
provisions apply to the debt securities.
Default and Related Matters
The debt securities are not secured by any of our property or
assets. Accordingly, your ownership of debt securities means you
are one of our unsecured creditors. The debt securities are not
subordinated to any of our other debt obligations and therefore
they rank equally with all our other unsecured and
unsubordinated indebtedness.
You will have special rights if an event of default occurs and
is not cured, as described later in this subsection.
What Is an Event of Default? The term event of
default means any of the following:
|
|
|
|
|
Any amount of principal of, or interest on, or any premium on,
the debt security is not paid on the due date thereof and such
default is not remedied within a period of 15 days from
such due date. |
|
|
|
Any other obligation of our company under the indenture or the
debt security is not complied with or performed within a period
of 30 days after we receive a notice of default stating we
are in breach. The notice must be sent by either the trustee or
holders of 25% of the principal amount of debt securities of the
affected series. |
|
|
|
Any other present or future indebtedness of our company or any
of our Principal Subsidiaries for borrowed monies in excess of
50,000,000 (or
its equivalent in any other currency), whether individually or
in the aggregate, becomes due and payable prior to its stated
maturity as a result of a default thereunder, or if any such
indebtedness shall not be paid when due or, as the case may be,
within any applicable grace period therefore, or if any steps
shall be taken to enforce any security in respect of such
indebtedness or any guarantee or indemnity given by our company
or any of our Principal Subsidiaries for, or in respect of, any
such indebtedness of others shall not be honored when due and
called upon. |
|
|
|
If the company or any of its Principal Subsidiaries becomes
subject to certain insolvency-related events. This means that
the relevant entity (i.e., we or the Principal Subsidiary) makes
any proposal for a general moratorium in relation to its debt or
applies for the appointment of a conciliator
(conciliateur) or enters into an amicable settlement
(accord amiable) with its creditors or a judgment is
issued for the judicial liquidation (liquidation
judiciaire) or for a judicial transfer of the whole of its
business (cession totale de lentreprise) or, to the
extent permitted by applicable law, if the relevant entity makes
any conveyance, assignment or other arrangement for the benefit
of its creditors or enters into a composition with its creditors. |
|
|
|
It is or will become unlawful for us to perform or comply with
any one or more of our obligations under the debt securities
issued under the indenture. |
|
|
|
Any other event of default described in the prospectus
supplement occurs. (Section 501) |
Remedies If an Event of Default Occurs. If an event of
default has occurred and has not been cured, the trustee or the
holders of 25% in principal amount of the debt securities of the
affected series may declare the entire principal amount of all
the debt securities of that series to be due and immediately
payable. This is called a declaration of acceleration of
maturity. A declaration of acceleration of maturity may be
canceled by the holders of at least a majority in principal
amount of the debt securities of the affected series if certain
conditions are met. (Section 502)
22
Except in cases of default, where the trustee has some special
duties, the trustee is not required to take any action under the
indenture at the request of any holders unless the holders offer
the trustee reasonable protection from expenses and liability.
This protection is called an indemnity.
(Section 603) If reasonable indemnity is provided,
the holders of a majority in principal amount of the outstanding
debt securities of the relevant series may direct the time,
method and place of conducting any lawsuit or other proceeding
seeking any remedy available to the trustee. These majority
holders may also direct the trustee in performing any other
action under the indenture. (Section 512)
Before you bypass the trustee and bring your own lawsuit or
other formal legal action or take other steps to enforce your
rights or protect your interests relating to the debt
securities, the following must occur:
|
|
|
|
|
You must give the trustee written notice that an event of
default has occurred and remains uncured. |
|
|
|
The holders of 25% in principal amount of all outstanding debt
securities of the relevant series must make a written request
that the trustee take action because of the default, and must
offer reasonable indemnity to the trustee against the cost and
other liabilities of taking that action. |
|
|
|
The trustee must have not taken action for 60 days after
receipt of the above notice, request and offer of indemnity. |
|
|
|
No direction inconsistent with such written request must have
been given to the trustee during such
60-day period by
holders of a majority in principal amount of all outstanding
debt securities of that series. (Section 507) |
Nothing, however, will prevent an individual holder from
bringing suit to enforce payment. (Section 508)
Street name and other indirect holders should consult
their banks or brokers for information on how to give notice or
direction to or make a request of the trustee and to make or
cancel a declaration of acceleration.
We will furnish to the trustee every year a written statement of
certain of our officers certifying that, to their knowledge, we
are in compliance with the indenture and the debt securities, or
else specifying any default. (Section 1005)
23
CLEARANCE AND SETTLEMENT
Securities we issue may be held through one or more
international and domestic clearing systems. The principal
clearing systems we will use are the book-entry systems operated
by the Depository Trust Company (DTC) in the United
States, Clearstream Banking, société anonyme,
in Luxembourg (Clearstream) and the Euroclear
System, in Belgium (Euroclear). These systems have
established electronic securities and payment, transfer,
processing, depositary and custodial links among themselves and
others, either directly or through custodians and depositaries.
These links allow securities to be issued, held and transferred
among the clearing systems without the physical transfer of
certificates.
Special procedures to facilitate clearance and settlement have
been established among these clearing systems to trade
securities across borders in the secondary market. Where
payments for securities we issue in global form will be made in
U.S. dollars, these procedures can be used for cross-market
transfers and the debt securities will be cleared and settled on
a delivery against payment basis.
If we issue debt securities to you outside of the United States,
its territories and possessions, you must initially hold your
interests through Euroclear, Clearstream or the clearance system
that is described in the applicable prospectus supplement.
Cross-market transfers of securities that are not in global form
may be cleared and settled in accordance with other procedures
that may be established among the clearing systems for these
securities.
The policies of DTC, Clearstream and Euroclear will govern
payments, transfers, exchanges and other matters relating to
your interest in securities held by them. This is also true for
any other clearance system that may be named in a prospectus
supplement.
We have no responsibility for any aspect of the actions of DTC,
Clearstream or Euroclear or any of their direct or indirect
participants. We have no responsibility for any aspect of the
records kept by DTC, Clearstream or Euroclear or any of their
direct or indirect participants. We also do not supervise these
systems in any way. This is also true for any other clearing
system indicated in a prospectus supplement.
DTC, Clearstream, Euroclear and their participants perform these
clearance and settlement functions under agreements they have
made with one another or with their customers. You should be
aware that they are not obligated to perform these procedures
and may modify them or discontinue them at any time.
The description of the clearing systems in this section reflects
our understanding of the rules and procedures of DTC,
Clearstream and Euroclear as they are currently in effect. Those
systems could change their rules and procedures at any time.
DTC
DTC is a limited-purpose trust company organized under the New
York Banking Law, a banking organization within the
meaning of the New York Banking Law, a member of the Federal
Reserve System, a clearing corporation within the
meaning of the New York Uniform Commercial Code, and a
clearing agency registered pursuant to the
provisions of Section 17A of the Exchange Act. DTC holds
securities deposited with it by its participants and facilitates
the settlement of transactions among its participants in such
securities through electronic computerized book-entry changes in
accounts of the participants, thereby eliminating the need for
physical movement of securities certificates. DTCs
participants include securities brokers and dealers, banks,
trust companies, clearing corporations and certain other
organizations, some of whom (and/or their representatives) own
DTC. Access to DTCs book-entry system is also available to
others, such as banks, brokers, dealers and trust companies that
clear through or maintain a custodial relationship with a
participant, either directly or indirectly. According to DTC,
the foregoing information with respect to DTC has been provided
to the financial community for informational purposes only and
is not intended to serve as a representation, warranty or
contract modification of any kind.
24
Clearstream
Clearstream Banking, société anonyme
(Clearstream), was incorporated as a limited
liability company under Luxembourg law. Clearstream is owned by
Cedel International, société anonyme, and Deutsche
Börse AG. The shareholders of these two entities are banks,
securities dealers and financial institutions.
Clearstream holds securities for its customers and facilitates
the clearance and settlement of securities transactions between
Clearstream customers through electronic book-entry changes in
accounts of Clearstream customers, thus eliminating the need for
physical movement of certificates. Clearstream provides to its
customers, among other things, services for safekeeping,
administration, clearance and settlement of internationally
traded securities, securities lending and borrowing and
collateral management. Clearstream interfaces with domestic
markets in a number of countries. Clearstream has established an
electronic bridge with Euroclear Bank S.A./ N.V., the operator
of the Euroclear System, to facilitate settlement of trades
between Clearstream and Euroclear.
As a registered bank in Luxembourg, Clearstream is subject to
regulation by the Luxembourg Commission for the Supervision of
the Financial Sector. Clearstream customers are recognized
financial institutions around the world, including underwriters,
securities brokers and dealers, banks, trust companies and
clearing corporations. In the United States, Clearstream
customers are limited to securities brokers and dealers and
banks, and may include the underwriters for the debt securities.
Other institutions that maintain a custodial relationship with a
Clearstream customer may obtain indirect access to Clearstream.
Clearstream is an indirect participant in DTC.
Distributions with respect to the debt securities held
beneficially through Clearstream will be credited to cash
accounts of Clearstream customers in accordance with its rules
and procedures, to the extent received by Clearstream.
The Euroclear System
The Euroclear System was created in 1968 to hold securities for
participants of the Euroclear System and to clear and settle
transactions between Euroclear participants through simultaneous
electronic book-entry delivery against payment, thus eliminating
the need for physical movement of certificates and risk from
lack of simultaneous transfers of securities and cash.
Transactions may now be settled in many currencies, including
United States dollars and Japanese Yen. The Euroclear System
provides various other services, including securities lending
and borrowing and interfaces with domestic markets in several
countries generally similar to the arrangements for cross-market
transfers with DTC described below.
The Euroclear System is operated by Euroclear Bank S.A./ N.V.
(the Euroclear Operator), under contract with
Euroclear Clearance System plc, a U.K. corporation (the
Euroclear Clearance System). The Euroclear Operator
conducts all operations, and all Euroclear securities clearance
accounts and Euroclear cash accounts are accounts with the
Euroclear Operator, not the Euroclear Clearance System. The
Euroclear Clearance System establishes policy for the Euroclear
System on behalf of Euroclear participants. Euroclear
participants include banks (including central banks), securities
brokers and dealers and other professional financial
intermediaries and may include the underwriters. Indirect access
to the Euroclear System is also available to other firms that
clear through or maintain a custodial relationship with a
Euroclear participant, either directly or indirectly. Euroclear
is an indirect participant in DTC.
The Euroclear Operator is a Belgian bank. The Belgian Banking
Commission and the National Bank of Belgium regulate and examine
the Euroclear Operator.
The Terms and Conditions Governing Use of Euroclear and the
related Operating Procedures of the Euroclear System and
applicable Belgian law govern securities clearance accounts and
cash accounts with the Euroclear Operator. Specifically, these
terms and conditions govern:
25
|
|
|
|
|
transfers of securities and cash within the Euroclear System; |
|
|
|
withdrawal of securities and cash from the Euroclear
System; and |
|
|
|
receipts of payments with respect to securities in the Euroclear
System. |
All securities in the Euroclear System are held on a fungible
basis without attribution of specific certificates to specific
securities clearance accounts. The Euroclear Operator acts under
the terms and conditions only on behalf of Euroclear
participants and has no record of or relationship with persons
holding securities through Euroclear participants.
Distributions with respect to debt securities held beneficially
through Euroclear will be credited to the cash accounts of
Euroclear participants in accordance with the Euroclear Terms
and Conditions, to the extent received by the Euroclear Operator
and by Euroclear.
Settlement
You will be required to make your initial payment for the debt
securities in immediately available funds. Secondary market
trading between DTC participants will occur in the ordinary way
in accordance with DTC rules and will be settled in immediately
available funds using DTCs Same-Day Funds Settlement
System. Secondary market trading between Clearstream customers
and/or Euroclear participants will occur in the ordinary way in
accordance with the applicable rules and operating procedures of
Clearstream and Euroclear and will be settled using the
procedures applicable to conventional eurobonds in immediately
available funds.
Cross-market transfers between persons holding directly or
indirectly through DTC, on the one hand, and directly or
indirectly through Clearstream customers or Euroclear
participants, on the other, will be effected in DTC in
accordance with DTC rules on behalf of the relevant European
international clearing system by the U.S. depositary;
however, such cross-market transactions will require delivery of
instructions to the relevant European international clearing
system by the counterparty in such system in accordance with its
rules and procedures and within its established deadlines (based
on European time). The relevant European international clearing
system will, if the transaction meets its settlement
requirements, deliver instructions to the U.S. depositary
to take action to effect final settlement on its behalf by
delivering or receiving debt securities in DTC, and making or
receiving payment in accordance with normal procedures for
same-day funds settlement applicable to DTC. Clearstream
customers and Euroclear participants may not deliver
instructions directly to their respective U.S. depositaries.
Because of time-zone differences, credits of debt securities
received in Clearstream or Euroclear as a result of a
transaction with a DTC participant will be made during
subsequent securities settlement processing and dated the
business day following the DTC settlement date. Such credits or
any transactions in such debt securities settled during such
processing will be reported to the relevant Clearstream
customers or Euroclear participants on such business day. Cash
received in Clearstream or Euroclear as a result of sales of
debt securities by or through a Clearstream customer or a
Euroclear participant to a DTC participant will be received with
value on the DTC settlement date but will be available in the
relevant Clearstream or Euroclear cash account only as of the
business day following settlement in DTC.
Although DTC, Clearstream and Euroclear have agreed to the
foregoing procedures in order to facilitate transfers of debt
securities among participants of DTC, Clearstream and Euroclear,
they are under no obligation to perform or continue to perform
such procedures and such procedures may be discontinued at any
time.
Other Clearing Systems
We may choose any other clearing system for a particular series
of securities. The clearance and settlement procedures for the
clearing system we choose will be described in the applicable
prospectus supplement.
26
TAX CONSIDERATIONS
French Taxation
The following generally summarizes the material French tax
consequences of purchasing, owning and disposing of the debt
securities described in this prospectus. The statements related
to French tax laws set forth below are based on the laws in
force as of the date hereof, and are subject to any changes in
applicable laws and tax treaties after such date.
This discussion is intended only as a descriptive summary and
does not purport to be a complete analysis or listing of all
potential effects of the purchase, ownership or disposition of
the debt securities described in this prospectus.
The following summary does not address the treatment of debt
securities that are held by a resident of France or in
connection with a permanent establishment or fixed base through
which a holder carries on business or performs personal services
in France.
Investors should consult their own tax advisers regarding the
tax consequences of the purchase, ownership and disposition of
debt securities in the light of their particular circumstances.
French Taxation. Payments in respect of the debt
securities will be made without withholding or deduction for, or
on account of taxes imposed by or on behalf of France, as
provided by article 131 quater of the French Tax Code (Code
général des impôts), provided that the debt
securities are issued or deemed to be issued outside the
Republic of France in accordance with French tax law.
Since the debt securities will constitute obligations
under French law, they will be issued (or deemed to be
issued) outside France (i) in the case of syndicated or
non-syndicated issues of debt securities, if such debt
securities are denominated in euro, (ii) in the case of
syndicated issues of debt securities denominated in currencies
other than euro, if, inter alia, we and the relevant
dealers agree not to offer the debt securities to the public in
the Republic of France in connection with their initial
distribution and such debt securities are offered in the
Republic of France only through an international syndicate to
qualified investors (investisseurs qualifiés) as
described in Article L. 411-2 of the French Code
monétaire et financier (other than individuals) and the
issue of debt securities is not subject to the Autorité
des marchés financiers (other than a submission to the
Autorité des marchés financiers for the sole
purpose of listing such debt securities on Euronext
Paris S.A.) or (iii) in the case of non-syndicated
issues of debt securities denominated in currencies other than
euro, if each of the subscribers of the debt securities is
domiciled or resident for tax purposes outside the Republic of
France and does not act through a permanent establishment or
fixed base therein, in each case as more fully set out in the
Circular 5 I-11-98 of the Direction Générale des
Impôts dated September 30, 1998.
EU Taxation. On June 3, 2003, the European Council
of Economics and Finance Ministers adopted a Directive (in this
section Tax Considerations, the
Directive) on the taxation of savings income under
which EU Member States are required from July 1, 2005, to
provide to the tax authorities of another Member State details
of payments of interest (or similar income) paid by a person
within its jurisdiction to an individual resident in that other
Member State, except that, for a transitional period, Belgium,
Luxembourg and Austria are instead required (unless during that
period they elect otherwise) to operate a withholding system in
relation to such payments, provided however that the relevant
beneficial owner of the payment may instead elect for the
disclosure of information method or for the tax certificate
procedure, as applicable. The rate of such withholding tax
equals 15% for the first three years after the date of
implementation of the Directive, this rate being increased to
20% for the subsequent three years and 35% thereafter. The
ending of the transitional period is dependent upon the
conclusion of certain other agreements relating to information
exchange with certain other countries.
In relation to French taxation, the Directive has been
implemented in French law under Article 242 ter of the
Code général des impôts and
Articles 49 I ter to 49 I sexies of the Schedule III
to the Code général des impôts.
27
Additional amounts. If the French tax laws or regulations
applicable to us (or to any of our successors) change and
payments in respect of the debt securities become subject to
withholding or deduction, we may be required to pay you
additional amounts to offset such withholding except as provided
above in Description of the Debt Securities
Special Situations Payment of Additional
Amounts or in any applicable prospectus supplement.
|
|
|
Taxation on Sale, Disposal or Redemption of Debt
Securities |
Non-French resident holders of debt securities who do not hold
the debt securities in connection with a business or profession
conducted in France will not be subject to any French income tax
or capital gains tax on the sale, disposal or redemption of debt
securities. Transfers of debt securities made outside France
will not be subject to any stamp duty or other transfer taxes
imposed in France.
France imposes estate and gift tax on securities of a French
company that are acquired by inheritance or gift. The tax
applies without regard to the residence of the transferor.
However, France has entered into estate and gift tax treaties
with a number of countries pursuant to which, assuming certain
conditions are met, residents of the treaty country may be
exempted from such tax or obtain a tax credit.
Under the estate and gift tax convention between the United
States and France, a transfer of debt securities by gift or by
reason of the death of a U.S. holder entitled to benefits
under that convention will not be subject to French gift or
inheritance tax, so long as the donor or decedent was not
domiciled in France at the time of the transfer and the debt
securities were not used or held for use in the conduct of a
business or profession through a permanent establishment or
fixed base in France.
French wealth tax (impôt de solidarité sur la
fortune) generally does not apply to debt securities owned
by non-French residents.
United States Tax Considerations
The following discussion summarizes certain U.S. federal
income tax considerations that may be relevant to you if you
invest in debt securities and are a U.S. holder. You will
be a U.S. holder if you are an individual who is a citizen
or resident of the United States, a U.S. domestic
corporation, or any other person that is subject to
U.S. federal income tax on a net income basis in respect of
an investment in the debt securities. This summary deals only
with U.S. holders that hold debt securities as capital
assets. It does not address considerations that may be relevant
to you if you are an investor that is subject to special tax
rules, such as a bank, thrift, real estate investment trust,
regulated investment company, insurance company, dealer in
securities or currencies, trader in securities or commodities
that elects mark to market treatment, person that will hold debt
securities as a hedge against currency risk or as a position in
a straddle or conversion transaction, tax-exempt
organization partnership or other entity classified as a
partnership for U.S. federal income tax purposes, person subject
to the alternative minimum tax or a person whose
functional currency is not the U.S. dollar.
This summary is based on laws, regulations, rulings and
decisions as of the date hereof, all of which may change. Any
change could apply retroactively and could affect the continued
validity of this summary.
You should consult your tax adviser about the tax consequences
of holding debt securities, including the relevance to your
particular situation of the considerations discussed below, as
well as the relevance to your particular situation of state,
local or other tax laws.
|
|
|
Payments or Accruals of Interest |
Payments or accruals of qualified stated interest
(as defined below) on a debt security will be taxable to you as
ordinary interest income at the time that you receive or accrue
such amounts (in accordance with your regular method of tax
accounting). If you use the cash method of tax accounting and
you receive payments of interest pursuant to the terms of a debt
security in a currency other than U.S. dollars (a
foreign currency), the amount of interest income you
will realize will be the U.S. dollar value of the foreign
currency
28
payment based on the exchange rate in effect on the date you
receive the payment, regardless of whether you convert the
payment into U.S. dollars. If you are an accrual-basis
U.S. holder, the amount of interest income you will realize
will be based on the average exchange rate in effect during the
interest accrual period (or with respect to an interest accrual
period that spans two taxable years, at the average exchange
rate for the partial period within the taxable year).
Alternatively, as an accrual-basis U.S. holder, you may
elect to translate all interest income on foreign
currency-denominated debt securities at the spot rate on the
last day of the accrual period (or the last day of the taxable
year, in the case of an accrual period that spans more than one
taxable year) or on the date that you receive the interest
payment if that date is within five business days of the end of
the accrual period. If you make this election, you must apply it
consistently to all debt instruments from year to year and you
cannot change the election without the consent of the Internal
Revenue Service. If you use the accrual method of accounting for
tax purposes, you will recognize foreign currency gain or loss
on the receipt of a foreign currency interest payment if the
exchange rate in effect on the date the payment is received
differs from the rate applicable to a previous accrual of that
interest income. This foreign currency gain or loss will be
treated as ordinary income or loss, but generally will not be
treated as an adjustment to interest income received on the debt
security.
|
|
|
Purchase, Sale and Retirement of Debt Securities |
Initially, your tax basis in a debt security generally will
equal the cost of the debt security to you. Your basis will
increase by any amounts that you are required to include in
income under the rules governing original issue discount and
market discount, and will decrease by the amount of any
amortized premium and any payments other than qualified stated
interest made on the debt security. (The rules for determining
these amounts are discussed below.) If you purchase a debt
security that is denominated in a foreign currency, the cost to
you (and therefore generally your initial tax basis) will be the
U.S. dollar value of the foreign currency purchase price on
the date of purchase calculated at the exchange rate in effect
on that date. If the foreign currency debt security is traded on
an established securities market and you are a cash-basis
taxpayer (or if you are an accrual-basis taxpayer that makes a
special election), you will determine the U.S. dollar value
of the cost of the debt security by translating the amount of
the foreign currency that you paid for the debt security at the
spot rate of exchange on the settlement date of your purchase.
The amount of any subsequent adjustments to your tax basis in a
debt security in respect of foreign currency-denominated
original issue discount, market discount and premium will be
determined in the manner described below. If you convert
U.S. dollars into a foreign currency and then immediately
use that foreign currency to purchase a debt security, you
generally will not have any taxable gain or loss as a result of
the conversion or purchase.
When you sell or exchange a debt security, or if a debt security
that you hold is retired, you generally will recognize gain or
loss equal to the difference between the amount you realize on
the transaction (less any accrued qualified stated interest,
which will be subject to tax in the manner described above under
Payments or Accruals of Interest) and
your tax basis in the debt security. If you sell or exchange a
debt security for a foreign currency, or receive foreign
currency on the retirement of a debt security, the amount you
will realize for U.S. tax purposes generally will be the
dollar value of the foreign currency that you receive calculated
at the exchange rate in effect on the date the foreign currency
debt security is disposed of or retired. If you dispose of a
foreign currency debt security that is traded on an established
securities market and you are a cash-basis U.S. holder (or
if you are an accrual-basis holder that makes a special
election), you will determine the U.S. dollar value of the
amount realized by translating the amount at the spot rate of
exchange on the settlement date of the sale, exchange or
retirement.
The special election available to you if you are an
accrual-basis taxpayer in respect of the purchase and sale of
foreign currency debt securities traded on an established
securities market, which is discussed in the two preceding
paragraphs, must be applied consistently to all debt instruments
from year to year and cannot be changed without the consent of
the Internal Revenue Service.
Except as discussed below with respect to market discount and
foreign currency gain or loss, the gain or loss that you
recognize on the sale, exchange or retirement of a debt security
generally will be capital gain or loss. The gain or loss on the
sale, exchange or retirement of a debt security will be
long-term capital gain or loss if you have held the debt
security for more than one year on the date of disposition. Net
long-term capital gain recognized by an individual
U.S. holder generally will be subject to tax at a lower
rate than net short-term
29
capital gain or ordinary income. The ability of
U.S. holders to offset capital losses against ordinary
income is limited.
Despite the foregoing, the gain or loss that you recognize on
the sale, exchange or retirement of a foreign currency debt
security generally will be treated as ordinary income or loss to
the extent that the gain or loss is attributable to changes in
exchange rates during the period in which you held the debt
security. This foreign currency gain or loss will not be treated
as an adjustment to interest income that you receive on the debt
security.
If we issue debt securities at a discount from their stated
redemption price at maturity, and the discount is equal to or
more than the product of one-fourth of one percent (0.25%) of
the stated redemption price at maturity of the debt securities
multiplied by the number of full years to their maturity, the
debt securities will be Original Issue Discount Debt
Securities. The difference between the issue price and the
stated redemption price at maturity of the debt securities will
be the original issue discount. The issue
price of the debt securities will be the first price at
which a substantial amount of the debt securities are sold to
the public (i.e., excluding sales of debt securities to
underwriters, placement agents, wholesalers, or similar
persons). The stated redemption price at maturity
will include all payments under the debt securities other than
payments of qualified stated interest. The term qualified
stated interest generally means stated interest that is
unconditionally payable in cash or property (other than debt
instruments issued by the Company) at least annually during the
entire term of a debt security at a single fixed interest rate
or, subject to certain conditions, based on one or more interest
indices.
If you invest in an Original Issue Discount Debt Security, you
generally will be subject to the special tax accounting rules
for original issue discount obligations provided by the Internal
Revenue Code and certain U.S. Treasury regulations. You
should be aware that, as described in greater detail below, if
you invest in an Original Issue Discount Debt Security, you
generally will be required to include original issue discount in
ordinary gross income for U.S. federal income tax purposes
as it accrues, although you may not yet have received the cash
attributable to that income.
In general, and regardless of whether you use the cash or the
accrual method of tax accounting, if you are the holder of an
Original Issue Discount Debt Security with a maturity greater
than one year, you will be required to include in ordinary gross
income the sum of the daily portions of original
issue discount on that debt security for all days during the
taxable year that you own the debt security. The daily portions
of original issue discount on an Original Issue Discount Debt
Security are determined by allocating to each day in any accrual
period a ratable portion of the original issue discount
allocable to that period. Accrual periods may be any length and
may vary in length over the term of an Original Issue Discount
Debt Security, so long as no accrual period is longer than one
year and each scheduled payment of principal or interest occurs
on the first or last day of an accrual period. If you are the
initial holder of the debt security, the amount of original
issue discount on an Original Issue Discount Debt Security
allocable to each accrual period is determined by:
|
|
|
(i) multiplying the adjusted issue price (as
defined below) of the debt security at the beginning of the
accrual period by a fraction, the numerator of which is the
annual yield to maturity (defined below) of the debt security
and the denominator of which is the number of accrual periods in
a year; and |
|
|
(ii) subtracting from that product the amount (if any)
payable as qualified stated interest allocable to that accrual
period. |
In the case of an Original Issue Discount Debt Security that is
a floating rate debt security, both the annual yield to
maturity and the qualified stated interest will be
determined for these purposes as though the debt security will
bear interest in all periods at a fixed rate generally equal to
the rate that would be applicable to interest payments on the
debt security on its date of issue or, in the case of some
floating rate debt securities, the rate that reflects the yield
that is reasonably expected for the debt security. (Additional
rules may apply if interest on a floating rate debt security is
based on more than one interest index.) The adjusted issue
price of an Original Issue Discount Debt Security at the
beginning of any accrual period will generally be the sum of its
issue price (including any accrued interest) and the amount of
original issue discount allocable to all prior accrual periods,
reduced by the amount of all payments other than any qualified
stated
30
interest payments on the debt security in all prior accrual
periods. All payments on an Original Issue Discount Debt
Security (other than qualified stated interest) will generally
be viewed first as payments of previously accrued original issue
discount (to the extent of the previously accrued discount),
with payments considered made from the earliest accrual periods
first, and then as a payment of principal. The annual
yield to maturity of a debt security is the discount rate
(appropriately adjusted to reflect the length of accrual
periods) that causes the present value on the issue date of all
payments on the debt security to equal the issue price. As a
result of this constant yield method of including
original issue discount income, the amounts you will be required
to include in your gross income if you invest in an Original
Issue Discount Debt Security denominated in U.S. dollars
generally will be lesser in the early years and greater in the
later years than amounts that would be includible on a
straight-line basis.
You generally may make an irrevocable election to include in
income your entire return on a debt security (i.e., the excess
of all remaining payments to be received on the debt security,
including payments of qualified stated interest, over the amount
you paid for the debt security) under the constant yield method
described above. If you purchase debt securities at a premium or
market discount and if you make this election, you will also be
deemed to have made the election (discussed below under the
Premium and Market Discount) to amortize
premium or to accrue market discount currently on a constant
yield basis in respect of all other premium or market discount
bonds that you hold.
In the case of an Original Issue Discount Debt Security that is
also a foreign currency debt security, you should determine the
U.S. dollar amount includible as original issue discount
for each accrual period by (i) calculating the amount of
original issue discount allocable to each accrual period in the
foreign currency using the constant yield method described above
and (ii) translating that foreign currency amount at the
average exchange rate in effect during that accrual period (or,
with respect to an interest accrual period that spans two
taxable years, at the average exchange rate for each partial
period). Alternatively, you may translate the foreign currency
amount at the spot rate of exchange on the last day of the
accrual period (or the last day of the taxable year, for an
accrual period that spans two taxable years) or at the spot rate
of exchange on the date of receipt, if that date is within five
business days of the last day of the accrual period, provided
that you have made the election described above under
Payments or Accruals of Interest. Because exchange
rates may fluctuate, if you are the holder of an Original Issue
Discount Debt Security that is also a foreign currency debt
security, you may recognize a different amount of original issue
discount income in each accrual period than would be the case if
you were the holder of an otherwise similar Original Issue
Discount Debt Security denominated in U.S. dollars. Upon
the receipt of an amount attributable to original issue discount
(whether in connection with a payment of an amount that is not
qualified stated interest or the sale or retirement of the
Original Issue Discount Debt Security), you will recognize
ordinary income or loss measured by the difference between the
amount received (translated into U.S. dollars at the
exchange rate in effect on the date of receipt or on the date of
disposition of the Original Issue Discount Debt Security, as the
case may be) and the amount accrued (using the exchange rate
applicable to such previous accrual).
If you purchase an Original Issue Discount Debt Security outside
of the initial offering at a cost less than its remaining
redemption amount (i.e., the total of all future payments
to be made on the debt security other than payments of qualified
stated interest), or if you purchase an Original Issue Discount
Debt Security in the initial offering at a price other than the
debt securitys issue price, you generally will also be
required to include in gross income the daily portions of
original issue discount, calculated as described above. However,
if you acquire an Original Issue Discount Debt Security at a
price greater than its adjusted issue price, you will be
required to reduce your periodic inclusions of original issue
discount to reflect the premium paid over the adjusted issue
price.
Floating rate debt securities generally will be treated as
variable rate debt instruments under the OID
Regulations. Accordingly, the stated interest on a Floating Rate
Debt Security generally will be treated as qualified
stated interest and such a debt security will not have OID
solely as a result of the fact that it provides for interest at
a variable rate. If a floating rate debt security does not
qualify as a variable rate debt instrument, the debt
security will be subject to special rules that govern the tax
treatment of debt obligations that provide for contingent
payments. We will provide a detailed description of the tax
considerations relevant to U.S. holders of any such debt
securities in the prospectus supplement.
31
Certain Original Issue Discount Debt Securities may be redeemed
prior to maturity, either at the option of the Company or at the
option of the holder, or may have special repayment or interest
rate reset features as indicated in the prospectus supplement.
Original Issue Discount Debt Securities containing these
features may be subject to rules that differ from the general
rules discussed above. If you purchase Original Issue Discount
Debt Securities with these features, you should carefully
examine the prospectus supplement and consult your tax adviser
about their treatment since the tax consequences of original
issue discount will depend, in part, on the particular terms and
features of the debt securities.
|
|
|
Short-Term Debt Securities |
The rules described above will also generally apply to Original
Issue Discount Debt Securities with maturities of one year or
less (short-term debt securities), but with some
modifications.
First, the original issue discount rules treat none of the
interest on a short-term debt security as qualified stated
interest, but treat a short-term debt security as having
original issue discount. Thus, all short-term debt securities
will be Original Issue Discount Debt Securities. Except as noted
below, if you are a cash-basis holder of a short-term debt
security and you do not identify the short-term debt security as
part of a hedging transaction you will generally not be required
to accrue original issue discount currently, but you will be
required to treat any gain realized on a sale, exchange or
retirement of the debt security as ordinary income to the extent
such gain does not exceed the original issue discount accrued
with respect to the debt security during the period you held the
debt security. You may not be allowed to deduct all of the
interest paid or accrued on any indebtedness incurred or
maintained to purchase or carry a short-term debt security until
the maturity of the debt security or its earlier disposition in
a taxable transaction. Notwithstanding the foregoing, if you are
a cash-basis U.S. holder of a short-term debt security, you
may elect to accrue original issue discount on a current basis
(in which case the limitation on the deductibility of interest
described above will not apply). A U.S. holder using the
accrual method of tax accounting and some cash method holders
(including banks, securities dealers, regulated investment
companies and certain trust funds) generally will be required to
include original issue discount on a short-term debt security in
gross income on a current basis. Original issue discount will be
treated as accruing for these purposes on a ratable basis or, at
the election of the holder, on a constant yield basis based on
daily compounding.
Second, regardless of whether you are a cash-basis or
accrual-basis holder, if you are the holder of a short-term debt
security you may elect to accrue any acquisition
discount with respect to the debt security on a current
basis. Acquisition discount is the excess of the remaining
redemption amount of the debt security at the time of
acquisition over the purchase price. Acquisition discount will
be treated as accruing ratably or, at the election of the
holder, under a constant yield method based on daily
compounding. If you elect to accrue acquisition discount, the
original issue discount rules will not apply.
Finally, the market discount rules described below will not
apply to short-term debt securities.
If you purchase a debt security at a cost greater than the debt
securitys remaining redemption amount, you will be
considered to have purchased the debt security at a premium, and
you may elect to amortize the premium as an offset to interest
income, using a constant yield method, over the remaining term
of the debt security. If you make this election, it generally
will apply to all debt instruments that you hold at the time of
the election, as well as any debt instruments that you
subsequently acquire. In addition, you may not revoke the
election without the consent of the Internal Revenue Service. If
you elect to amortize the premium, you will be required to
reduce your tax basis in the debt security by the amount of the
premium amortized during your holding period. Original Issue
Discount Debt Securities purchased at a premium will not be
subject to the original issue discount rules described above. In
the case of premium on a foreign currency debt security, you
should calculate the amortization of the premium in the foreign
currency. Premium amortization deductions attributable to a
period reduce interest income in respect of that period, and
therefore are translated into U.S. dollars at the rate that
you use for interest payments in respect of that period.
Exchange gain or loss will be realized with respect to amortized
premium on a foreign currency debt security based on the
difference between the exchange rate computed on the date or
dates the premium is amortized against interest payments on the
debt security and the exchange rate on the date the holder
acquired the debt security.
32
If you do not elect to amortize premium, the amount of premium
will be included in your tax basis in the debt security.
Therefore, if you do not elect to amortize premium and you hold
the debt security to maturity, you generally will be required to
treat the premium as capital loss when the debt security matures.
If you purchase a debt security at a price that is lower than
the debt securitys remaining redemption amount (or in the
case of an Original Issue Discount Debt Security, the debt
securitys adjusted issue price), by 0.25% or more of the
remaining redemption amount (or adjusted issue price),
multiplied by the number of remaining whole years to maturity,
the debt security will be considered to bear market
discount in your hands. In this case, any gain that you
realize on the disposition of the debt security generally will
be treated as ordinary interest income to the extent of the
market discount that accrued on the debt security during your
holding period. In addition, you may be required to defer the
deduction of a portion of the interest paid on any indebtedness
that you incurred or continued to purchase or carry the debt
security. In general, market discount will be treated as
accruing ratably over the term of the debt security, or, at your
election, under a constant yield method. You must accrue market
discount on a foreign currency debt security in the specified
currency. The amount that you will be required to include in
income in respect of accrued market discount will be the
U.S. dollar value of the accrued amount, generally
calculated at the exchange rate in effect on the date that you
dispose of the note.
You may elect to include market discount in gross income
currently as it accrues (on either a ratable or constant yield
basis), in lieu of treating a portion of any gain realized on a
sale of the debt security as ordinary income. If you elect to
include market discount on a current basis, the interest
deduction deferral rule described above will not apply. If you
do make such an election, it will apply to all market discount
debt instruments that you acquire on or after the first day of
the first taxable year to which the election applies. The
election may not be revoked without the consent of the Internal
Revenue Service. Any accrued market discount on a foreign
currency debt security that is currently includible in income
will be translated into U.S. dollars at the average
exchange rate for the accrual period (or portion thereof within
the holders taxable year).
|
|
|
Indexed Debt Securities and Other Debt Securities
Providing for Contingent Payments |
Special rules govern the tax treatment of debt obligations that
provide for contingent payments (contingent debt
obligations). These rules generally require accrual of
interest income on a constant yield basis in respect of
contingent debt obligations at a yield determined at the time of
issuance of the obligation, and may require adjustments to these
accruals when any contingent payments are made. We will provide
a detailed description of the tax considerations relevant to
U.S. holders of any contingent debt obligations in the
prospectus supplement.
|
|
|
Information Reporting and Backup Withholding |
The paying agent must file information returns with the United
States Internal Revenue Service in connection with debt security
payments made to certain United States persons. If you are a
United States person, you generally will not be subject to
United States backup withholding tax on such payments if you
provide your taxpayer identification number to the paying agent.
You may also be subject to information reporting and backup
withholding tax requirements with respect to the proceeds from a
sale of the debt securities. If you are not a United States
person, you may have to comply with certification procedures to
establish that you are not a United States person in order to
avoid information reporting and backup withholding tax.
33
PLAN OF DISTRIBUTION
We may sell the securities offered by this prospectus:
|
|
|
|
|
through underwriters; |
|
|
|
through dealers; |
|
|
|
through agents; or |
|
|
|
directly to purchasers. |
The prospectus supplement relating to any offering will identify
or describe:
|
|
|
|
|
any underwriter, dealers or agents; |
|
|
|
their compensation; |
|
|
|
the net proceeds to us; |
|
|
|
the purchase price of the securities; |
|
|
|
the initial public offering price of the securities; and |
|
|
|
any exchange on which the securities will be listed, if
applicable. |
Underwriters
If we use underwriters in the sale, they will acquire securities
for their own account and may resell the securities from time to
time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying
prices determined at the time of sale. Unless we otherwise state
in the prospectus supplement, various conditions to the
underwriters obligation to purchase securities apply, and
the underwriters will be obligated to purchase all of the
securities contemplated in an offering if they purchase any of
such securities. Any initial public offering price and any
discounts or concessions allowed or reallowed or paid to dealers
may be changed from time to time.
Dealers
If we use dealers in the sale, unless we otherwise indicate in
the prospectus supplement, we will sell securities to the
dealers as principals. The dealers may then resell the
securities to the public at varying prices that the dealers may
determine at the time of resale.
Agents and Direct Sales
We may sell securities directly or through agents that we
designate. The prospectus supplement will name any agent
involved in the offering and sale and state any commissions we
will pay to that agent. Unless we indicate otherwise in the
prospectus supplement, any agent is acting on a best efforts
basis for the period of its appointment.
Contracts with Institutional Investors for Delayed
Delivery
If we indicate in the prospectus supplement, we will authorize
underwriters, dealers or agents to solicit offers from various
institutional investors to purchase securities. In this case,
payment and delivery will be made on a future date that the
prospectus supplement specifies. The underwriters, dealers or
agents may impose limitations on the minimum amount that the
institutional investor can purchase. They may also
34
impose limitations on the portion of the aggregate amount of the
securities that they may sell. These institutional investors
include:
|
|
|
|
|
commercial and savings banks; |
|
|
|
insurance companies; |
|
|
|
pension funds; |
|
|
|
investment companies; |
|
|
|
educational and charitable institutions; and |
|
|
|
other similar institutions as we may approve. |
The obligations of any of these purchasers pursuant to delayed
delivery and payment arrangements will not be subject to any
conditions. However, one exception applies. An
institutions purchase of the particular securities cannot
at the time of delivery be prohibited under the laws of any
jurisdiction that governs:
|
|
|
|
|
the validity of the arrangements; or |
|
|
|
the performance by us or the institutional investor. |
Indemnification
Agreements that we will enter into with underwriters, dealers or
agents may entitle them to indemnification by us against various
civil liabilities. These include liabilities under the
Securities Act of 1933. The agreements may also entitle them to
contribution for payments which they may be required to make as
a result of these liabilities. Underwriters, dealers and agents
may be customers of, engage in transactions with, or perform
services for, us in the ordinary course of business.
Market Making
In the event that we do not list securities of any series on a
U.S. national securities exchange, various broker-dealers
may make a market in the securities, but will have no obligation
to do so, and may discontinue any market making at any time
without notice. Consequently, it may be the case that no
broker-dealer will make a market in securities of any series or
that the liquidity of the trading market for the securities will
be limited.
Expenses
The expenses of any offering of debt securities will be detailed
in the relevant prospectus supplement.
35
VALIDITY OF DEBT SECURITIES
Unless otherwise specified in the applicable prospectus
supplement, Cleary Gottlieb Steen & Hamilton LLP
will pass upon the validity of the debt securities as to matters
of French law and as to matters of New York law for our
company. Davis Polk & Wardwell or any other law firm
named in the applicable prospectus supplement will pass upon the
validity of the debt securities as to French law and New York
law for any underwriters or agents.
EXPERTS
The consolidated financial statements of Lafarge S.A., as of and
for the years ended December 31, 2005 and 2004, and Lafarge
S.A. managements assessment of the effectiveness of
internal control over financial reporting as of
December 31, 2005, appearing in our annual report on
Form 20-F for the
year ended December 31, 2005, which is incorporated herein
by reference, have been audited by Deloitte &
Associés, independent registered public accounting firm, as
set forth in its reports thereon included therein and
incorporated herein by reference, which is based in part on the
reports of Ernst & Young LLP, independent registered
public accounting firm, with respect to the consolidated
financial statements of Lafarge North America Inc. for the years
ended December 31, 2005 and 2004 and Lafarge North America
Inc. managements assessment of the effectiveness of
internal control over financial reporting as of
December 31, 2005. Such consolidated financial statements
and managements assessments are incorporated herein by
reference in reliance upon such reports given on the authority
of said firms as experts in accounting and auditing.
36
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
|
|
Item 8. |
Indemnification of Directors and Officers |
The French Commercial Code prohibits provisions of statuts
that limit the liability of directors. The French Commercial
Code also prohibits a company from indemnifying its directors
against liability. However, if a director is sued by a third
party and ultimately prevails in the litigation on all counts,
but is nevertheless required to bear attorneys fees and
costs, the company may reimburse those fees and costs pursuant
to an indemnification arrangement with the director.
Lafarge maintains liability insurance for its directors and
officers, including insurance against liabilities under the
U.S. Securities Act of 1933, as amended.
|
|
|
|
|
Exhibit |
|
|
Number |
|
Description of Document |
|
|
|
|
1 |
.1 |
|
Form of Underwriting Agreement for Lafarge Debt Securities. |
|
|
4 |
.1 |
|
Form of Indenture, among Lafarge and Law Debenture Trust Company
of New York. |
|
|
4 |
.2 |
|
Form of Debt Securities for Lafarge relating thereto (included
in Exhibit 4.1). |
|
|
4 |
.3 |
|
Statuts of Lafarge (incorporated by reference to
Exhibit 1 filed in Lafarge S.A.s annual report on
Form 20-F for the fiscal year ended December 31, 2005). |
|
|
5 |
.1 |
|
Opinion of Cleary Gottlieb Steen & Hamilton LLP as to
the validity of the Debt Securities as to certain matters of
French law. |
|
|
5 |
.2 |
|
Opinion of Cleary Gottlieb Steen & Hamilton LLP as to
the validity of the Debt Securities as to certain matters of New
York law. |
|
|
8 |
.1 |
|
Opinion of Cleary Gottlieb Steen & Hamilton LLP as to
certain matters of French taxation (included in Exhibit 5.1
above). |
|
|
8 |
.2 |
|
Opinion of Cleary Gottlieb Steen & Hamilton LLP as to
certain matters of United States taxation (included in Exhibit
5.2 above). |
|
|
12 |
.1 |
|
Computation of ratio of earnings to fixed charges. |
|
|
23 |
.1 |
|
Consent of Deloitte & Associés. |
|
|
23 |
.2 |
|
Consent of Ernst & Young LLP. |
|
|
23 |
.3 |
|
Consent of Cleary Gottlieb Steen & Hamilton LLP
(included in Exhibit 5.1 above). |
|
|
23 |
.4 |
|
Consent of Cleary Gottlieb Steen & Hamilton LLP
(included in Exhibit 5.2 above). |
|
|
25 |
.1 |
|
Statement of eligibility of Trustee on Form T-1 with
respect to Exhibit 4.1 above. |
II-1
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
|
|
|
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933; |
|
|
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Securities and Exchange Commission
pursuant to Rule 424(b) if, in the aggregate, the changes
in volume and price represent no more than 20% change in the
maximum aggregate offering price set forth in the
Calculation of Registration Fee table in the
effective registration statement; |
|
|
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement; |
|
|
|
Provided however, that paragraphs (i), (ii) and
(iii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs is
contained in reports filed with or furnished to the Securities
and Exchange Commission by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the
registration statement, or is contained in a form of prospectus
filed pursuant to 424(b) that is part of the registration
statement. |
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(4) To file a post-effective amendment to the registration
statement to include any financial statements required by
Item 8.A of
Form 20-F at the
start of any delayed offering or throughout a continuous
offering. Financial statements and information otherwise
required by Section 10(a)(3) of the Securities Act of 1933
need not be furnished, provided that the registrant
includes in the prospectus, by means of a post-effective
amendment, financial statements required pursuant to this
paragraph (4) and other information necessary to
ensure that all other information in the prospectus is at least
as current as the date of those financial statements.
Notwithstanding the foregoing, a post-effective amendment need
not be filed to include financial statements and information
required by Section 10(a)(3) of the Securities Act of 1933
or Item 8.A of
Form 20-F if such
financial statements and information are contained in periodic
reports filed with or furnished to the Securities and Exchange
Commission by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in this registration statement.
(5) That, for the purpose of determining liability under
the Securities Act of 1933 to any purchaser:
|
|
|
(i) Each prospectus filed by the registrant pursuant to
Rule 424(b)(3) shall be deemed to be part of the
registration statement as of the date the filed prospectus was
deemed part of and included in the registration
statement; and |
|
|
(ii) Each prospectus required to be filed pursuant to
Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration
statement in reliance on Rule 430B relating to an offering
made pursuant to Rule 415(a)(1)(i), (vii), or (x) for
the purpose of providing the information required by
Section 10(a) |
II-2
|
|
|
of the Securities Act of 1933 shall be deemed to be part of and
included in the registration statement as of the earlier of the
date such form of prospectus is first used after effectiveness
or the date of the first contract of sale of securities in the
offering described in the prospectus. As provided in
Rule 430B, for liability purposes of the issuer and any
person that is at that date an underwriter, such date shall be
deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to
which that prospectus relates, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof. Provided, however, that no
statement made in a registration statement or prospectus that is
part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of
contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement
or prospectus that was part of the registration statement or
made in any such document immediately prior to such effective
date. |
(6) That, for the purpose of determining liability of the
registrant under the Securities Act of 1933 to any purchaser in
the initial distribution of the securities: the undersigned
registrant undertakes that in a primary offering of securities
of the undersigned registrant pursuant to this registration
statement, regardless of the underwriting method used to sell
the securities to the purchaser, if the securities are offered
or sold to such purchaser by means of any of the following
communications, the undersigned registrant will be a seller to
the purchaser and will be considered to offer or sell such
securities to such purchaser:
|
|
|
(i) Any preliminary prospectus or prospectus of the
undersigned registrant relating to the offering required to be
filed pursuant to Rule 424; |
|
|
(ii) Any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned registrant or used
or referred to by the undersigned registrant; |
|
|
(iii) The portion of any other free writing prospectus
relating to the offering containing material information about
the undersigned registrant or its securities provided by or on
behalf of the undersigned registrant; and |
|
|
(iv) Any other communication that is an offer in the
offering made by the undersigned registrant to the purchaser. |
(7) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act
of 1933, each filing of the registrants annual report
pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by
reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act of 1933
and will be governed by the final adjudication of such issue.
II-3
SIGNATURES OF LAFARGE
Pursuant to the requirements of the Securities Act, the
registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on
Form F-3 and has
duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in Paris,
France on July 10, 2006.
|
|
|
|
|
Name: Bruno Lafont |
|
Title: Chief Executive Officer |
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following
persons in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature |
|
Title |
|
Date |
|
|
|
|
|
|
/s/ Bertrand Collomb
Bertrand
Collomb |
|
Chairman of the Board of Directors |
|
July 10, 2006 |
|
/s/ Bruno Lafont
Bruno
Lafont |
|
Director and Group Chief Executive Officer |
|
July 10, 2006 |
|
/s/ Michel Rose
Michel
Rose |
|
Group Chief Operating Officer |
|
July 10, 2006 |
|
/s/ Jean-Jacques Gauthier
Jean-Jacques
Gauthier |
|
Group Chief Financial Officer |
|
July 10, 2006 |
|
Bernard
Kasriel |
|
Vice-Chairman of the Board |
|
|
|
/s/ Jacques Lefèvre
Jacques
Lefèvre |
|
Vice-Chairman of the Board |
|
July 10, 2006 |
|
Michael
Blakenham |
|
Director |
|
|
|
/s/ Jean-Pierre Boisivon
Jean-Pierre
Boisivon |
|
Director |
|
July 10, 2006 |
|
/s/ Michel Bon
Michel
Bon |
|
Director |
|
July 10, 2006 |
|
/s/ Philippe Charrier
Philippe
Charrier |
|
Director |
|
June 15, 2006 |
|
Oscar
Fanjul |
|
Director |
|
|
|
Guilherme
Frering |
|
Director |
|
|
II-4
|
|
|
|
|
|
|
Signature |
|
Title |
|
Date |
|
|
|
|
|
|
Juan
Gallardo |
|
Director |
|
|
|
/s/ Alain Joly
Alain
Joly |
|
Director |
|
July 10, 2006 |
|
Raphaël
de Lafarge |
|
Director |
|
|
|
/s/ Michel Pébereau
Michel
Pébereau |
|
Director |
|
July 10, 2006 |
|
/s/ Hélène Ploix
Hélène
Ploix |
|
Director |
|
July 10, 2006 |
|
*By: |
|
Attorney-in-Fact |
|
|
|
|
|
/s/ Mark Soule
Mark
Soule |
|
Chief Accounting Officer |
|
July 10, 2006 |
|
/s/ Jean-Pierre Cloiseau
Jean-Pierre
Cloiseau |
|
Authorized Representative in the United States |
|
June 26, 2006 |
II-5
INDEX TO EXHIBITS
|
|
|
|
|
Exhibit |
|
|
Number |
|
Description of Document |
|
|
|
|
1 |
.1 |
|
Form of Underwriting Agreement for Lafarge Debt Securities. |
|
4 |
.1 |
|
Form of Indenture, among Lafarge and Law Debenture Trust Company
of New York. |
|
|
4 |
.2 |
|
Form of Debt Securities for Lafarge relating thereto (included
in Exhibit 4.1). |
|
|
4 |
.3 |
|
Statuts of Lafarge (incorporated by reference to
Exhibit 1 filed in Lafarge S.A.s annual report on
Form 20-F for the fiscal year ended December 31, 2005). |
|
|
5 |
.1 |
|
Opinion of Cleary Gottlieb Steen & Hamilton LLP as to
the validity of the Debt Securities as to certain matters of
French law. |
|
|
5 |
.2 |
|
Opinion of Cleary Gottlieb Steen & Hamilton LLP as to
the validity of the Debt Securities as to certain matters of New
York law. |
|
|
8 |
.1 |
|
Opinion of Cleary Gottlieb Steen & Hamilton LLP as to
certain matters of French taxation (included in Exhibit 5.1
above). |
|
|
8 |
.2 |
|
Opinion of Cleary Gottlieb Steen & Hamilton LLP as to
certain matters of United States taxation (included in Exhibit
5.2 above). |
|
|
12 |
.1 |
|
Computation of ratio of earnings to fixed charges. |
|
|
23 |
.1 |
|
Consent of Deloitte & Associés. |
|
|
23 |
.2 |
|
Consent of Ernst & Young LLP. |
|
|
23 |
.3 |
|
Consent of Cleary Gottlieb Steen & Hamilton LLP
(included in Exhibit 5.1 above). |
|
|
23 |
.4 |
|
Consent of Cleary Gottlieb Steen & Hamilton LLP
(included in Exhibit 5.2 above). |
|
|
25 |
.1 |
|
Statement of eligibility of Trustee on Form T-1 with
respect to Exhibit 4.1 above. |