<DOCUMENT>
<TYPE>EX-99.5
<SEQUENCE>6
<FILENAME>y17717exv99w5.txt
<DESCRIPTION>UNANIMOUS SHAREHOLDERS AGREEMENT
<TEXT>
<PAGE>
Exhibit 5
UNANIMOUS SHAREHOLDERS AGREEMENT
BETWEEN
LAFARGE CANADA INC.
AND
KILMER VAN NOSTRAND CO. LIMITED
AND
LCI-WARREN MERGER INC.
MADE AS OF
DECEMBER 29, 2000
<PAGE>
EXECUTION COPY
UNANIMOUS SHAREHOLDERS AGREEMENT
THIS AGREEMENT made as of December 29, 2000;
BETWEEN:
LAFARGE CANADA INC., a corporation incorporated under the laws of
Canada (hereinafter referred to as "Lafarge"),
OF THE FIRST PART,
-and-
KILMER VAN NOSTRAND CO. LIMITED, a corporation incorporated under
the laws of Ontario (hereinafter referred to as "KVN"),
OF THE SECOND PART,
-and-
LCI-WARREN MERGER INC., FORMERLY 3787532 CANADA INC., a
corporation incorporated under the laws of Canada (hereinafter
referred to as the "Corporation"),
OF THE THIRD PART
WHEREAS the authorized capital of the Corporation consists of an
unlimited number of common shares ("Common Shares"), of which 61,488,156 are
issued and outstanding, and 166,434,000 preferred shares ("Preferred Shares"),
of which 166,434,000 are issued and outstanding;
AND WHEREAS at the date hereof all of the issued shares of the
Corporation are beneficially owned by Lafarge and KVN as follows:
<TABLE>
<CAPTION>
SHAREHOLDERS COMMON SHARES PREFERRED SHARES
------------ ------------- ----------------
<S> <C> <C>
Lafarge 61,488,156 Nil
KVN Nil 166,434,000
</TABLE>
AND WHEREAS the Shareholders and the Corporation have agreed to enter
into this Agreement to give effect to the understandings between the parties
with respect to the Preferred Shares;
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the
premises and the mutual covenants and agreements herein contained and the
payment by
<PAGE>
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each party to each other party of the sum of One Dollar ($1.00) of lawful money
of Canada (the receipt and sufficiency of which are hereby acknowledged) the
parties hereto agree as follows:
ARTICLE 1 - INTERPRETATION
1.01 DEFINITIONS
In this Agreement, unless something in the subject matter or context
is inconsistent therewith:
(a) "Agreement" means this agreement and all amendments made hereto and
thereto by written agreement between the Shareholders and the
Corporation;
(b) "Call Rights" means the Liquidation Call Right, the Redemption Call
Right and the Retraction Call Right (as each term is defined in the
Preferred Share Conditions), collectively;
(c) "Preferred Share Conditions" means the conditions attaching to the
Preferred Shares as set forth in the Articles of Amendment of the
Corporation dated December 21, 2000;
(d) "Shares" means the shares of the Corporation that the Shareholders at
the date hereof or hereafter may beneficially own; and
(e) "Shareholders" means Lafarge and KVN, together with such other persons
as may become parties to this Agreement, collectively and
"Shareholder" means any one of such persons individually.
1.02 SECTIONS AND HEADINGS
The division of this Agreement into Articles and Sections and the
insertion of headings are for the convenience of reference only and shall not
affect the construction or interpretation of this Agreement. The terms "this
Agreement", "hereof, "hereunder" and similar expressions refer to this Agreement
and not to any particular Article, Section or other portion hereof and include
any agreement or instrument supplemental or ancillary hereto. Unless something
in the subject matter or context is inconsistent therewith, references herein to
Articles and Sections are to Articles and Sections of this Agreement.
1.03 NUMBER
Words importing the singular number only shall include the plural and
vice versa, words importing the masculine gender shall include the feminine and
neuter genders and vice versa and words importing persons shall include
individuals, partnerships, associations, trusts, unincorporated organizations
and corporations and vice versa.
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1.04 UNANIMOUS SHAREHOLDER AGREEMENT
This Agreement is a unanimous shareholder agreement within the
provisions of Section 146 of the Canada Business Corporations Act.
ARTICLE 2 - CALL RIGHTS
2.01 GRANT OF CALL RIGHTS
In consideration of the sum of Two Dollars ($2.00) now paid by Lafarge
to KVN (the receipt and sufficiency of which are hereby acknowledged by KVN),
KVN hereby grants to Lafarge the Call Rights to be exercisable in the manner,
within the time, at the price and otherwise on the terms, provisions and
conditions set out in the Preferred Share Conditions.
ARTICLE 3 - DEALING WITH SHARES
3.01 TRANSFER OF PREFERRED SHARES
Notwithstanding the restrictions on share transfers in the articles of
the Corporation, each holder of Preferred Shares may, without the consent of the
Corporation, transfer any of its right, title or interest in or to any Preferred
Shares, now or hereafter owned of record beneficially by the holder of Preferred
Shares and each Shareholder covenants and agrees to cause its nominees to the
board of directors of the Corporation to consent to any transfer of Preferred
Shares owned by KVN or any permitted assignee or transferee thereof at any time
and from time to time that KVN or such permitted assignee or transferee wishes
to effect such a transfer; provided, however that any transferee of such
Preferred Shares shall be a corporation resident in Canada for purposes of the
Income Tax Act (Canada).
3.02 EXCHANGE OF PREFERRED SHARES
The Corporation covenants and agrees that at any time after the fifth
anniversary of the date of issuance of the Preferred Shares and upon the
acquisition of Preferred Shares from KVN pursuant to the exercise of a Call
Right, Lafarge will be entitled to elect to require the Corporation to exchange
all Preferred Shares owned by Lafarge into Common Shares.
3.03 ENDORSEMENT ON CERTIFICATES
All share certificates of the Corporation will bear the following
language either as an endorsement or on the face thereof:
"The shares represented by this certificate are subject to all the
terms and conditions of an agreement made as of December 29, 2000, a
copy of which is on file at the registered office of the Corporation."
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ARTICLE 4 - GENERAL
4.01 BENEFIT OF THE AGREEMENT
This Agreement shall enure to the benefit of and be binding upon the
respective successors and permitted assigns of the parties hereto.
4.02 ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof and cancels and supersedes any
prior understandings and agreements between the parties hereto with respect
thereto. There are no representations, warranties, terms, conditions,
undertakings or collateral agreements, express, implied or statutory, between
the parties other than as expressly set forth in this Agreement.
4.03 AMENDMENTS AND WAIVERS
No amendment to this Agreement shall be valid or binding unless set
forth in writing and duly executed by all of the parties hereto. No waiver of
any breach of any provision of this Agreement shall be effective or binding
unless made in writing and signed by the party purporting to give the same and,
unless otherwise provided in the written waiver, shall be limited to the
specific breach waived.
4.04 ASSIGNMENT AND TRANSFER
Except as may be expressly provided in this Agreement, none of the
parties hereto may assign its rights or obligations under this Agreement without
the prior written consent of all of the other parties hereto. No transfer of
shares of the Corporation will be effective unless at or prior to the time of
the proposed transfer the transferee agrees with the Shareholders, by agreement
in writing in form and substance satisfactory to the Shareholders, to be bound
by the terms and conditions of this Agreement as if the proposed transferee had
entered into this Agreement in the place of the transferor.
4.05 TERMINATION
This Agreement shall terminate upon:
(a) the written agreement of all of the Shareholders; or
(b) one Shareholder becoming the beneficial owner of all of the Shares.
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4.06 SEVERABILITY
If any provision of this Agreement is determined to be invalid or
unenforceable in whole or in part, such invalidity or unenforceability shall
attach only to such provision or part thereof and the remaining part of such
provision and all other provisions hereof shall continue in full force and
effect.
4.07 GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
the laws of the Province of Ontario and the laws of Canada applicable therein.
<PAGE>
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IN WITNESS WHEREOF the parties have executed this Agreement.
LAFARGE CANADA INC.
By:
------------------------------------
By:
------------------------------------
KILMER VAN NOSTRAND CO. LIMITED
By:
------------------------------------
By:
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LCI-WARREN MERGER INC.
By:
------------------------------------
By:
------------------------------------
</TEXT>
</DOCUMENT>