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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT - November 17, 1994
(Date of earliest event reported)
ASARCO INCORPORATED
(Exact name of registrant as specified in its charter)
Commission File No. 1-164
New Jersey 13-4924440
(State of incorporation) (IRS Employer
Identification No.)
180 Maiden Lane
New York, New York 10038
(Address of principal (Zip Code)
executive offices)
Registrant's telephone number,
including area code: (212) 510-2000
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Item 5. Other Events.
On November 17, 1994 ASARCO Incorporated (the "Company") and M.I.M.
Holdings Limited, a corporation incorporated under the laws of the State of
Queensland, Commonwealth of Australia (the "Selling Shareholder"), entered into
(a) an Underwriting Agreement with CS First Boston Corporation and S.G. Warburg
& Co. Inc. acting on behalf of themselves and as representatives of the several
underwriters named in Schedule A attached thereto for the sale by the Selling
Shareholder to such underwriters of 6,650,000 shares of Common Stock, no par
value ("Common Stock") of the Company, and (b) a Subscription Agreement with CS
First Boston Limited and S.G. Warburg Securities Ltd. acting on behalf of
themselves and as representatives of the several underwriters named in Schedule
A attached thereto for the sale to such underwriters of 2,850,000 shares of
Common Stock of the Company, in each case at a price to the public of $ 28.00
per share.
The Common Stock is being offered pursuant to Registration Statement
No. 33-55993, which was filed with the Securities and Exchange Commission on
October 12, 1994 and became effective on October 25, 1994, the Prospectus dated
October 25, 1994 and a Prospectus Supplement dated November 17, 1994.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits
(c) Exhibits.
1. Underwriting Agreement among ASARCO Incorporated, MIM
Holdings Limited, and CS First Boston Corporation and
S.G. Warburg & Co. Inc. acting on behalf of
themselves and as representatives of the several
underwriters named in Schedule A attached thereto,
dated November 17, 1994.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
ASARCO Incorporated
/s/ Kevin R. Morano
Kevin R. Morano
Vice President and
Chief Financial Officer
Dated: November 17, 1994
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EXHIBIT INDEX
1. Underwriting Agreement among ASARCO Incorporated, MIM
Holdings Limited, and CS First Boston Corporation and
S.G. Warburg & Co. Inc. acting on behalf of
themselves and as representatives of the several
underwriters named in Schedule A attached thereto,
dated November 17, 1994.
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EXECUTION COPY
9,500,000 Shares
ASARCO INCORPORATED
Common Stock
(No Par Value)
UNDERWRITING AGREEMENT
November 17, 1994
CS FIRST BOSTON CORPORATION
S.G.WARBURG & CO. INC.
As Representatives of the Several Underwriters,
c/o CS First Boston Corporation,
Park Avenue Plaza,
New York, NY 10055.
Dear Sirs:
1. Introductory. M.I.M. Holdings Limited (A.C.N. 009 814 019) a
corporation incorporated under the laws of the State of Queensland,
Commonwealth of Australia ("MIM") proposes to sell to the several Underwriters
named in Schedule A hereto ("Underwriters"), for whom CS First Boston
Corporation ("CS First Boston") and S.G.Warburg & Co. Inc. ("S.G.Warburg") are
acting as representatives ("Representatives"), 6,650,000 shares of the Common
Stock, no par value per share ("Securities"), of ASARCO Incorporated, a New
Jersey corporation ("Company") (such 6,650,000 shares of Securities being
hereinafter referred to as the "U.S. Firm Securities"). MIM also proposes to
sell to the Underwriters and the Managers (as defined below), at the option of
the Underwriters and the Managers, an aggregate of not more than 853,363
additional shares (collectively, "Optional Securities") of Securities as set
forth below. The U.S. Firm Securities and the Optional Securities that may be
sold to the Underwriters ("U.S. Optional Securities") are herein collectively
called the "U.S. Securities".
It is understood that the Company and MIM are concurrently entering
into a Subscription Agreement, dated the date hereof ("Subscription
Agreement"), with CS First Boston Limited ("CSFB") and S.G.Warburg Securities
Ltd. and the other managers named therein (together with CSFB and S.G.Warburg
Securities Ltd., the "Managers") relating to the concurrent offering and sale
by MIM of 2,850,000 shares of Securities ("International Firm Securities",
which together
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with the Optional Securities that may be sold to the Managers by MIM
("International Optional Securities") are hereinafter called the
"International Securities") outside the United States and Canada
("International Offering"). The U.S. Securities and the International
Securities are collectively referred to as the "Offered Securities". To
provide for the coordination of their activities, the Underwriters and the
Managers have entered into an Agreement Between U.S. Underwriters and Managers
which permits them, among other things, to sell the Offered Securities to each
other for purposes of resale.
The Company and MIM hereby agree with the several Underwriters as
follows:
2. Representations and Warranties of the Company and MIM. (a) The
Company represents and warrants to, and agrees with, the several Underwriters
that:
(i) A registration statement (No. 33-55993) relating to the
Offered Securities, including a form of prospectus relating to the
U.S. Securities, has been filed with the Securities and Exchange
Commission ("Commission") and either (x) has been declared effective
under the Securities Act of 1933 ("Act") and is not proposed to be
amended or (y) is proposed to be amended by amendment or post-effective
amendment. If the Company does not propose to amend such registration
statement and if any post-effective amendment to such registration
statement has been filed with the Commission prior to the execution and
delivery of this Agreement, the most recent such amendment has been
declared effective by the Commission. For purposes of this Agreement,
"Effective Time" means (x) if the Company has advised CS First Boston
that it does not propose to amend such registration statement, the date
and time as of which such registration statement, or the most recent
post- effective amendment thereto (if any) filed prior to the execution
and delivery of this Agreement, was declared effective by the Commission,
or (y) if the Company has advised CS First Boston that it proposes to
file an amendment or post-effective amendment to such registration
statement, the date and time as of which such registration statement, as
amended by such amendment or post-effective amendment, as the case may
be, is declared effective by the Commission. "Effective Date" means the
date of the Effective Time. Such registration statement, as amended at
the Effective Time, including all material
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incorporated by reference therein and including all information (if
any) deemed to be a part of such registration statement as of the
Effective Time pursuant to Rule 430A(b) under the Act, is hereinafter
referred to as the "Registration Statement", and the form of prospectus
relating to the U.S. Securities, as first filed with the Commission
pursuant to and in accordance with Rule 424(b) ("Rule 424(b)") under the
Act or (if no such filing is required) as included in the Registration
Statement, including all material incorporated by reference in such
prospectus, is hereinafter referred to as the "U.S. Prospectus", and the
form of prospectus relating to the International Securities as of the
Effective Time, which is identical to the U.S. Prospectus except for the
outside front cover page, the inside front cover page, the outside back
cover page, the text under the captions "Underwriting" and "Subscription
and Sale" in the U.S. Prospectus and the form of prospectus relating to
the International Securities, respectively, and the inclusion of certain
additional text under the caption "U.S. Taxation" in the form of
prospectus relating to the International Securities (copies of such pages
and text having been heretofore delivered to CSFB on behalf of the
Managers), is hereinafter referred to as the "International Prospectus";
and the U.S. Prospectus and the International Prospectus are hereinafter
collectively referred to as the "Prospectuses".
(ii) If the Effective Time is prior to the execution and delivery of
this Agreement: (x) on the Effective Date, the Registration Statement
conformed in all material respects to the requirements of the Act and the
rules and regulations of the Commission ("Rules and Regulations") and did
not include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, (y) on the date of this Agreement, the
Registration Statement conforms, and at the time of filing of the U.S.
Prospectus pursuant to Rule 424(b), the Registration Statement and the
U.S. Prospectus will conform, in all material respects to the
requirements of the Act and the Rules and Regulations, and (z) on the
date of this Agreement and at the time of filing the U.S. Prospectus
pursuant to Rule 424(b), (i) the Registration Statement does not and will
not contain any untrue statement of a material fact or omits or will omit
to state any material fact required to be
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stated therein or necessary to make the statements therein not
misleading and (ii) the Prospectuses do not and will not contain any
untrue statement of a material fact or omit or will omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
If the Effective Time is subsequent to the execution and delivery of this
Agreement: on the Effective Date, the Registration Statement and the
U.S. Prospectus will conform in all material respects to the requirements
of the Act and the Rules and Regulations, the Registration Statement will
not contain any untrue statement of a material fact and will not omit to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading, and the Prospectuses will not
contain any untrue statement of a material fact and will not omit to
state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading. The two preceding sentences do not apply to statements
in or omissions from the Registration Statement or either of the
Prospectuses based upon written information furnished to the Company by
any Underwriter through the Representatives or by any Manager through
CSFB specifically for use therein, it being understood and agreed that
the only such information is that described as such in Section 7(c).
(b) MIM represents and warrants to, and agrees with, the several
Underwriters that:
(i) MIM has been duly incorporated and is validly existing under the
laws of the State of Queensland, Commonwealth of Australia.
(ii) On the date hereof, except as disclosed in the Prospectuses, MIM
has and on the Closing Date hereinafter mentioned will have valid and
unencumbered title to the Offered Securities and full right, power and
authority to enter into this Agreement and to sell, assign, transfer and
deliver the Offered Securities and upon the delivery of and payment for
the Offered Securities hereunder the several Underwriters will acquire
valid and unencumbered title to the Offered Securities.
(iii) MIM is familiar with the Registration Statement and, in relation
to any information concerning MIM included or incorporated by reference
in
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the Registration Statement or any Prospectus (including, in each case,
any amendment or supplement thereto) as confirmed in writing by
representatives of MIM or the Company ("MIM Information") has no
knowledge of any untrue statement of a material fact therein, or has no
knowledge of any omission to state any material fact required to be
stated therein or necessary to make the statements therein, in the light
of the circumstances in which they were made, it being understood that
such circumstances include that the Company has a 15.5% ownership in MIM,
not misleading.
(iv) This Agreement and the Subscription Agreement have been duly
authorized, executed and delivered by MIM.
(v) No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required to be
obtained or made by MIM for the consummation of the transactions
contemplated by this Agreement or the Subscription Agreement in
connection with the sale of Offered Securities by MIM, except such as
have been obtained and made under the Act, such as may have been
filed or will be filed under the Securities Exchange Act of 1934 (the
"Exchange Act") and such as may be required under state securities laws.
(vi) The execution, delivery and performance of this Agreement and
the Subscription Agreement and the consummation of the transactions herein
and therein contemplated, will not result in a breach or violation of any
of the terms and provisions of, or constitute a default under, any
statute, any rule, regulation or order of any governmental agency or body
or any court, domestic or foreign, having jurisdiction over MIM or any of
its properties, or any agreement or instrument to which MIM is a party or
by which MIM is bound or to which any of the properties of MIM is
subject, or the memorandum or articles of association or any other
constituent documents of MIM, and MIM has full power and authority to
sell the Offered Securities as contemplated by this Agreement and the
Subscription Agreement, respectively.
3. Purchase, Sale and Delivery of Offered Securities. On the basis
of the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, MIM agrees to sell to the
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Underwriters, and the Underwriters agree, severally and not jointly, to
purchase from MIM, at a purchase price of $27.02 per share, the respective
numbers of shares of U.S. Firm Securities set forth opposite the names of the
Underwriters in Schedule A hereto.
MIM will deliver the U.S. Firm Securities to the Representatives for
the accounts of the Underwriters, against payment of the purchase price by wire
transfer of immediately available funds (less two day's interest) to an account
designated by MIM, at 9:00 A.M., New York time, on November 23, 1994 or at such
other time not later than seven full business days thereafter as CS First
Boston and MIM determine, such time being herein referred to as the "First
Closing Date". The certificates for the U.S. Firm Securities so to be
delivered will be in definitive form, in such denominations and registered in
such names as CS First Boston requests and will be made available for checking
and packaging at the above offices of Cravath, Swaine & Moore, at least 24
hours prior to the First Closing Date.
In addition, upon written notice from CS First Boston given to the
Company and MIM from time to time not more than 30 days subsequent to the date
of the public offering of the Offered Securities, the Underwriters and the
Managers may purchase all or less than all the Optional Securities at the
purchase price per Security to be paid for the U.S. Firm Securities. Unless
otherwise agreed between CS First Boston and CSFB, the Optional Securities to
be so purchased by the Underwriters shall be in the same proportion as the U.S.
Firm Securities bear to the Firm Securities. MIM agrees, to sell to the
Underwriters such U.S. Optional Securities and the Underwriters agree,
severally and not jointly, to purchase such U.S. Optional Securities. Such
U.S. Optional Securities shall be purchased for the account of each Underwriter
in the same proportion as the number of shares of U.S. Firm Securities set
forth opposite such Underwriter's name bears to the total number of shares of
U.S. Firm Securities (subject to adjustment by CS First Boston to eliminate
fractions) and may be purchased by the Underwriters only for the purpose of
covering over-allotments made in connection with the sale of the U.S. Firm
Securities. No Optional Securities shall be sold or delivered unless the U.S.
Firm Securities and the International Firm Securities previously have been, or
simultaneously are, sold and delivered. The right to purchase the Optional
Securities or any portion thereof may be exercised from time to time and to the
extent not previously exercised may be surrendered and terminated at
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any time upon notice by CS First Boston on behalf of Underwriters and the
Managers to MIM.
Each time for the delivery of and payment of the U.S. Optional
Securities, being herein referred to as an "Optional Closing Date", which may
be the First Closing Date (the First Closing Date and each Optional Closing
Date, if any, being sometimes referred to as a "Closing Date"), shall be
determined by CS First Boston but shall be not later than seven full business
days after written notice of election to purchase Optional Securities is given.
MIM will deliver the U.S. Optional Securities being purchased on each Optional
Closing Date to the Representatives for the accounts of the several
Underwriters, against payment of the purchase price therefor by wire transfer
in immediately available funds (less one day's interest) to an account
designated by MIM. The certificates for the U.S. Optional Securities will be
in definitive form, in such denominations and registered in such names as CS
First Boston requests upon reasonable notice prior to such Optional Closing
Date and will be made available for checking and packaging at the above office
of Cravath, Swaine & Moore, at a reasonable time in advance of the such
Optional Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the U.S. Securities for sale to the public as set
forth in the U.S. Prospectus.
5. Certain Agreements of the Company and MIM. The Company agrees with
the several Underwriters and MIM that:
(a) If the Effective Time is prior to the execution and delivery of
this Agreement, the Company will file the U.S. Prospectus with the
Commission pursuant to and in accordance with the following subparagraph of
Rule 424(b) not later than the second business day following the execution
and delivery of this Agreement: (A) if such filing is made on or before the
fifth business day after the Effective Date, subparagraph (1) (or, if
applicable and if consented to by CS First Boston and MIM (which consent, in
either case, shall not be unreasonably withheld), subparagraph (4)) or (B)
if such filing is made after the fifth business day after the Effective
Date, subparagraph (2) (or, if applicable and if consented to by CS First
Boston and MIM (which consent, in either case, shall not be unreasonably
withheld) subparagraph (5)). The
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Company will advise CS First Boston and MIM promptly of any such filing
pursuant to Rule 424(b).
(b) The Company will advise CS First Boston and MIM promptly of any
proposal to amend or supplement the registration statement as filed or
the related prospectus or the Registration Statement or either of the
Prospectuses and will not effect such amendment or supplementation
without CS First Boston's and MIM's prior consent (which consent, in
either case, shall not be unreasonably withheld), and the Company will
also advise CS First Boston and MIM promptly of the effectiveness of the
Registration Statement (if the Effective Time is subsequent to the
execution and delivery of this Agreement) and of any amendment or
supplementation of the Registration Statement or either of the
Prospectuses and of the institution by the Commission of any stop order
proceedings in respect of the Registration Statement and will use its
best efforts to prevent the issuance of any such stop order and to obtain
as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of which
either or both of the Prospectuses as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, or if it is
necessary at any time to amend either or both of the Prospectuses to
comply with the Act, the Company will promptly notify CS First Boston and
MIM of such event and will promptly prepare and, in the case of the U.S.
Prospectus, file with the Commission, at its own expense, an amendment or
supplement which will correct such statement or omission or an amendment
which will effect such compliance. Neither CS First Boston's consent to,
nor the Underwriter's delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 6.
(d) As soon as practicable, but not later than the Availability Date
(as defined below), the Company will make generally available to its
securityholders an earning statement covering a period of at least 12
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months beginning after the Effective Date which will satisfy the
provisions of Section 11(a) of the Act. For the purpose of the preceding
sentence, "Availability Date" means the 45th day after the end of the
fourth fiscal quarter following the fiscal quarter that includes the
Effective Date, except that, if such fourth fiscal quarter is the last
quarter of the Company's fiscal year, "Availability Date" means the 90th
day after the end of such fourth fiscal quarter.
(e) The Company will furnish to the Representatives and MIM copies of
the Registration Statement (four of which will be signed and will include
all exhibits), each preliminary prospectus relating to the U.S.
Securities, and, so long as delivery of a prospectus relating to the
Offered Securities is required to be delivered under the Act in
connection with sales by any Underwriter or dealer, the U.S. Prospectus
and all amendments and supplements to such documents, in each case as
soon as available and in such quantities as CS First Boston reasonably
requests. The Company will pay the expenses of printing and distributing
all such documents.
(f) The Company will arrange for the qualification of the Offered
Securities for sale under the laws of such jurisdictions in the United
States and Canada as CS First Boston designates and will continue such
qualifications in effect so long as required for the distribution;
provided, however, that in no event shall the Company be required to
qualify as a foreign corporation or to file a general consent for service
of process in any such jurisdiction.
(g) During the period of two years hereafter, the Company will
furnish to the Representatives and MIM and, upon request, to each of the
other Underwriters, as soon as practicable after the end of each fiscal
year, a copy of its annual report to stockholders for such year; and the
Company will furnish to the Representatives and MIM (i) as soon as
available, a copy of each report or definitive proxy statement of the
Company filed with the Commission under the Securities Exchange Act of
1934 or mailed to stockholders, and (ii) from time to time, such other
information concerning the Company as CS First Boston and MIM may
reasonably request.
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(h) MIM will indemnify and hold harmless the Underwriters against any
documentary, stamp or similar issuance tax, including any interest and
penalties, on the creation, issuance and sale of the Offered Securities
and on the execution and delivery of this Agreement. All payments to be
made by MIM hereunder shall be made without withholding or deduction or
on account of any present or future taxes, duties or governmental charges
whatsoever unless MIM is compelled by law to deduct or withhold such
taxes, duties or charges. In that event, MIM shall pay such additional
amounts as may be necessary in order that the net amounts received after
such withholding or deduction shall equal the amounts that would have
been received if no withholding or deduction had been made.
(i) Each of the Company and MIM will not, and will not allow any of
their respective subsidiaries or affiliates to, offer, sell, contract to
sell, pledge or otherwise dispose of, directly or indirectly, or cause to
be filed with the Commission a registration statement under the Act
relating to, or announce any offering of, any additional shares of the
Company's Securities or securities convertible or exchangeable into or
exercisable for any shares of Securities without the prior written
consent of CS First Boston for a period of 60 days after the date of the
sale of the Offered Securities, except that the Company may issue and
sell Securities (or options exercisable for Securities) pursuant to any
employee or non-employee director stock option, stock ownership, stock
bonus or stock compensation plan, any dividend reinvestment plan or any
savings plan of the Company, the Company may issue Securities or warrants
as contemplated by the Shareholder Rights Plan (as defined in the
Prospectuses) as it is in effect as of the date hereof and the Company
may issue Securities or any securities convertible into or exchangeable
for, or exercisable into shares of Securities pursuant to the terms of
any securities outstanding at the date hereof or other obligations
binding upon the Company and in effect at the date hereof.
The Company and MIM agree with the several Underwriters that the
Company and MIM will pay all expenses incident to the performance of the
obligations of the Company and MIM, as the case may be, under this Agreement
and will, jointly and severally, reimburse the Underwriters (if and to the
extent incurred by them) for any filing fees
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and other expenses (including reasonable fees and disbursements of counsel)
incurred by them in connection with qualification of the Offered Securities for
sale under the laws of such jurisdictions in the United States and Canada as CS
First Boston designates and the printing of memoranda relating thereto and for
expenses incurred in distributing preliminary prospectuses and the Prospectuses
(including any amendments and supplements thereto) to the Underwriters.
MIM agrees to deliver to CS First Boston as representative of the
several Underwriters on or prior to the Closing Date a properly completed and
executed United States Treasury Department Form W-8 (or other applicable form or
statement specified by Treasury Department regulations in lieu thereof).
6. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the U.S. Firm
Securities on the First Closing Date and the U.S. Optional Securities to be
purchased on each Optional Closing Date will be subject to the accuracy of the
representations and warranties on the part of the Company and of MIM herein,
to the accuracy in all material respects of the statements of Company, MIM and
each of their respective officers made pursuant to the provisions hereof, to
the performance by the Company and by MIM of their respective obligations
hereunder and to the following additional conditions precedent:
(a) The Representatives shall have received a letter, dated
the date of delivery thereof (which, if the Effective Time is prior to
the execution and delivery of this Agreement, shall be on or prior to the
date of this Agreement or, if the Effective Time is subsequent to the
execution and delivery of this Agreement, shall be prior to the filing of
the amendment or post-effective amendment to the registration statement
to be filed shortly prior to the Effective Time), of Coopers & Lybrand
confirming that they are independent public accountants within the
meaning of the Act and the applicable published Rules and Regulations
thereunder and stating to the effect that:
(i) They have audited the consolidated balance sheets of the Company
and its subsidiaries as of December 31, 1993 and 1992, and the
consolidated statements of income, stockholders' equity and cash
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flows for each of the three years in the period ended December 31,
1993, and the related financial statement schedules, all included in the
Company's annual report on Form 10-K for the year ended December 31, 1993
(the "10-K"), and incorporated by reference in the Registration
Statement; their report with respect thereto is also incorporated by
reference in the Registration Statement.
(ii) In connection with the Registration Statement --
A. They are independent certified public accountants with respect to
the Company within the meaning of the Act and the applicable published
rules and regulations thereunder.
B. In their opinion, the consolidated financial statements and financial
statement schedules of the Company audited by them and incorporated by
reference in the Registration Statement comply as to form in all
material respects with the applicable accounting requirements of the
Act and the Exchange Act and the related published rules and
regulations.
C. They have not audited any financial statements of the Company as of any
date or for any period subsequent to December 31, 1993; although they
have conducted an audit for the year ended December 31, 1993, the
purpose (and therefore the scope) of the audit was to enable them to
express their opinion on the consolidated financial statements as of
December 31, 1993, and for the year then ended, but not on the
financial statements for any interim period within that year.
Therefore, they are unable to and do not express any opinion on the
unaudited consolidated balance sheet as of March 31, June 30 and
September 30, 1994, and the unaudited consolidated statements of
income, stockholders' equity and cash flows for the three-month
periods ended March 31, 1994 and 1993, the three-month and six-month
periods ended June 30, 1994 and 1993 and the three-month and
nine-month periods ended September 30, 1994 and 1993 (collectively the
"10-Qs"), all as incorporated by reference in the Registration
Statement, or on the financial position, results of operations or cash
flows as
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of any date or for any period subsequent to December 31, 1993.
D. For purposes of their letter, they have read the 1994 minutes of
meetings of the Board of Directors and the finance, pension advisory,
audit, and organization and compensation committees of the Board of
Directors of the Company as set forth in the minute books at
November 11, 1994, officials of the Company having advised them that
the minutes of all such meetings through that date were set forth
therein; they have carried out other procedures to November 11, 1994,
as follows:
a. With respect to the three-month periods ended March 31, 1994 and
1993, the three-month and six-month periods ended June 30, 1994
and 1993,and the three-month and nine-month periods ended
September 30, 1994 and 1993 they have --
(i) Performed the procedures specified by the American
Institute of Certified Public Accountants for a review of
interim financial information as described in SAS No. 71.
Interim Financial Information, on the unaudited condensed
consolidated financial statements, described in C, included
in the 10-Qs incorporated by reference in the Registration
Statement.
(ii) Inquired of certain officials of the Company who have
responsibility for financial and accounting matters whether
the unaudited condensed consolidated financial statements
referred to in paragraph D.a(i) comply as to form in all
material respects with the applicable accounting
requirements of the Exchange Act as it applies to Form
10-Q and the related published rules and regulations.
b. With respect to the period from October 1, 1994 to November 11,
1994, they have been advised by officials of the Company that as
of November 11, 1994, no financial statements
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as of any date or for any period subsequent to September 30, 1994,
were available.
E. Nothing came to their attention as a result of the foregoing procedures,
however, that caused them to believe that --
a. (i) Any material modifications should be made to the unaudited
condensed consolidated financial statements described in
paragraph C incorporated by reference in the Registration
Statement, for them to be in conformity with generally accepted
accounting principles.
(ii) The unaudited condensed consolidated financial statements
described in paragraph C do not comply as to form in all
material respects with the applicable accounting requirements of
the Exchange Act as it applies to Form 10-Q and the related
published rules and regulations.
F. As mentioned in paragraph D.b., Company officials have advised them that
as of November 11, 1994 no financial statements as of any date or for any
period subsequent to September 30, 1994, were available. They have
inquired of certain officials of the Company who have responsibility for
financial and accounting matters regarding whether (a) at November 11,
1994, there was any change in the capital stock, increases in short-term
debt or long-term debt or any decreases in net current assets or net
assets as compared with amounts shown on the September 30, 1994 unaudited
consolidated balance sheet incorporated by reference in the Registration
Statement; or (b) for the period from October 1, 1994 to November 11, 1994
there were any decreases, as compared with the corresponding period in the
preceding year, in net sales, operating income, net income or earnings per
share. These certain officials were unable to comment on whether (i) at
November 11, 1994, there were any decreases in net current assets or net
assets as compared with amounts shown on the September 30, 1994, unaudited
condensed consolidated balance sheet incorporated
<PAGE> 15
15
by reference in the Registration Statement; or (ii) for the period from
October 1, 1994 to November 11, 1994, there were any decreases, as
compared with the corresponding period in the prior year, in net sales,
operating income, net income or earnings per share. On the basis of these
inquiries and their reading of the minutes as described in paragraph D,
nothing came to their attention that caused them to believe that there was
any such change, increase, or decrease, except in all instances for
changes, increases, or decreases that the Registration Statement discloses
have occurred or may occur and except as described in their letter.
G. For purposes of their letter, they have also read the circled items on the
attached copies of certain pages of the Registration Statement, the 10-K
and the 10-Qs and performed the procedures referred to in paragraph I
below.
H. Their audits of the consolidated financial statements for the periods
referred to in the introductory paragraph of their letter comprised audit
tests and procedures deemed necessary for the purpose of expressing an
opinion on such financial statements taken as a whole. For none of the
periods referred to therein, or any other period, did they perform audit
tests for the purpose of expressing an opinion on individual balances of
accounts, percentages, ratios or summaries of selected transactions such
as those referred to in paragraph G above and, accordingly, they express
no opinion thereon.
I. For purposes of their letter they have performed the following additional
procedures, which were applied as indicated with respect to the items
referred to in paragraph G above. The procedure performed for each item
as indicated by letters (a) through (d) on copies of certain pages from
the Registration Statement, the 10-K and the 10-Qs attached to their
letter correspond with the procedures described by the same letter below.
(a) compared specified dollar amounts, per share amounts and percentages
to the corresponding amounts and percentages in the audited condensed
consolidated financial statements
<PAGE> 16
16
described in the introductory paragraph of their letter, to the
1993 or 1992 audited consolidated financial statements or, where
applicable, to the corresponding amounts and percentages in the
unaudited consolidated financial statements described in paragraph
D.a, filed on Form 10-Q, to the extent such amounts and percentages
are included in or can be derived from such statements, and found
them to be in agreement;
(a-1) compared specified dollar amount to the corresponding dollar amount
appearing in the 1993 audited financial statements of Southern Peru
Copper Corporation and found them to be in agreement.
(b) compared specified dollar and other amounts not derived directly
from audited or unaudited consolidated financial statements to
amounts in the Company's accounting records to the extent such
amounts could be so compared directly to, and found them to be in
agreement;
(c) compared specified dollar and other amounts not derived directly
from audited or unaudited consolidated financial statements, or
that could not be compared directly to the Company's accounting
records, to amounts in analyses or schedules prepared by the
Company from its accounting records, and found them to be in
agreement;
(d) proved the arithmetic accuracy of the ratios based upon the above
mentioned financial statements, accounting records and analyses.
(b) If the Effective Time is not prior to the execution and
delivery of this Agreement, the Effective Time shall have occurred not
later than 10:00 P.M., New York time, on the date of this Agreement or
such later date as shall have been consented to by CS First Boston. If
the Effective Time is prior to the execution and delivery of this
Agreement, the U.S. Prospectus shall have been filed with the
Commission in accordance with the Rules and Regulations and
Section 5(a) of this
<PAGE> 17
17
Agreement. Prior to such Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the
knowledge of the Company or the Representatives, shall be contemplated by
the Commission.
(c) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting particularly the business or properties
of the Company or its subsidiaries which, in the judgment of a majority in
interest of the Underwriters including the Representatives, materially
impairs the investment quality of the Offered Securities; (ii) any
downgrading in the rating of any debt securities or preferred stock of the
Company by either Standard and Poor's Corporation or Moody's Investor
Services, Inc., or any public announcement that any such organization has
under surveillance or review its rating of any debt securities or preferred
stock of the Company for possible downgrading; (iii) any suspension or
limitation of trading in securities generally on the New York Stock
Exchange, or any setting of minimum prices for trading on such exchange, or
any suspension of trading of any securities of the Company on any exchange
or in the over-the-counter market; (iv) any banking moratorium declared by
Federal or New York authorities; or (v) any outbreak or escalation of major
hostilities in which the United States is involved, any declaration of war
by Congress or any other substantial national or international calamity or
emergency if, in the judgment of a majority in interest of the Underwriters
including the Representatives, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or inadvisable to
proceed with completion of the sale of and payment for the U.S. Securities.
(d) The Representatives shall have received an opinion, dated such
Closing Date, of White & Case, counsel for the Company, to the effect that:
(i) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of New Jersey,
with corporate power and authority to own its
<PAGE> 18
18
properties and conduct its business as described in the Prospectuses;
(ii) The Company's authorized equity capital is, as to all legal
matters in all material respects, as set forth in the Prospectuses; the
Offered Securities delivered on the Closing Date conform in all
material respects to the description thereof contained in the
Prospectuses; the certificates for the Offered Securities are in valid
form; and the stockholders of the Company have no preemptive rights
with respect to the Offered Securities;
(iii) No consent, approval, authorization or order of, or filing
with, any Federal or, to the best of such counsel's knowledge, after
due inquiry, other governmental agency or body or any court having
jurisdiction over the Company is required to be obtained by the Company
for the consummation of the transactions contemplated by this Agreement
or the Subscription Agreement in connection with the sale of the
Offered Securities, except such as have been obtained and made under
the Act and such as may be required under state securities or Blue Sky
laws;
(iv) The execution, delivery and performance by the Company of its
obligations under this Agreement and the Subscription Agreement and the
issuance and sale of the Offered Securities will not result in a breach
or violation of any of the terms and provisions of, or constitute a
default under, any New York or Federal statute, any rule, regulation or
order of any governmental agency or body or any court having
jurisdiction over the Company or any Significant Subsidiary (as such
term is defined in the indenture dated as of October 1, 1994, between
the Company and Chemical Bank as trustee) of the Company or any of their
properties, or any agreement or instrument for borrowed money known to
such counsel to which the Company is a party or by which the Company is
bound or to which any material properties of the Company is subject, or
the charter or by-laws of the Company;
(v) The Registration Statement was declared effective under the
Act as of the date and time
<PAGE> 19
19
specified in such opinion, the U.S. Prospectus either was filed with
the Commission pursuant to the subparagraph of Rule 424(b) specified in
such opinion on the date specified therein or was included in the
Registration Statement (as the case may be), and, to the best of the
knowledge of such counsel, no stop order suspending the effectiveness of
the Registration Statement or any part thereof has been issued and no
proceedings for that purpose have been instituted or are pending or
contemplated under the Act, and the Registration Statement and the U.S.
Prospectus, and each amendment or supplement thereto, as of their
respective effective or issue dates, complied as to form in all material
respects with the requirements of the Act and the Rules and Regulations;
such counsel have no reason to believe that, as of their respective
effective or issue dates or as of the Closing Date, (i) the Registration
Statement (including any amendment or supplement thereto) contained any
untrue statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading, or (ii) either of the Prospectuses (including
any amendment or supplement thereto) contained any untrue statement of a
material fact or omitted to state any material fact necessary in order
to make the statements therein, in the light of the circumstances under
which they were made, not misleading; and such counsel do not know of
any legal or governmental proceedings required to be described in the
Registration Statement or the Prospectuses which are not described as
required or of any contracts or documents of a character required to be
described in the Registration Statement or the Prospectuses or to be
filed as exhibits to the Registration Statement which are not described
and filed as required; it being understood that such counsel need
express no opinion as to the financial statements and related Schedules
therein or other financial or statistical data contained or incorporated
by reference in the Registration Statement or the Prospectuses;
(vi) Each of this Agreement and the Subscription Agreement have
been duly authorized, executed and delivered by the Company;
<PAGE> 20
20
(vii) To the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceeding for that purpose have been instituted or
threatened; and
(viii) The statements in the Prospectuses under the headings
"Description of Common Stock", "Description of Preferred Stock",
"Description of Depositary Shares", "Description of Debt Securities",
"Description of Warrants", "Corporate Provisions" and "Certain U.S.
Federal Tax Considerations for non-United States Holders" fairly
summarize, in all material respects, the matters therein described.
In rendering such opinion, White & Case may rely as to all matters
governed by New Jersey law on the opinion of Pitney, Hardin, Kipp & Szuch;
provided however, that they will furnish a copy thereof to the
Representatives and state in their opinion that they and the Representatives
are justified in relying on such opinion of New Jersey counsel for such
matters.
(e) The Representatives shall have received an opinion, dated such
Closing Date, of Augustus B. Kinsolving, Esq., Vice President, General
Counsel and Secretary of the Company, to the effect that:
(i) Each of the Company and its Significant Subsidiaries (as such
term is defined in the indenture dated as of October 1, 1994, between
the Company and Chemical Bank, as trustee) has been duly incorporated
and is an existing corporation or partnership in good standing under the
laws of the jurisdiction of its incorporation or partnership formation,
with corporate power and authority to own its properties and conduct its
business as described in the Prospectuses; and each of the Company and
its Significant Subsidiaries is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions in which
its ownership or lease of property or the conduct of its business
requires such qualification (except where the failure to so qualify or
be in good standing would not have a material adverse effect on the
Company and its subsidiaries taken as a whole);
<PAGE> 21
21
(ii) The Company's authorized equity capital is, as to all legal
matters in all material respects, as set forth in the Prospectuses; the
Offered Securities delivered on the Closing Date conform in all material
respects to the description thereof contained in the Prospectuses; the
certificates for the Offered Securities are in valid form; and the
stockholders of the Company have no preemptive rights with respect to
the Offered Securities;
(iii) No consent, approval, authorization or order of, or filing
with, any Federal or, to the best of such counsel's knowledge, after due
inquiry, other governmental agency or body or any court is required to
be obtained by the Company for the consummation of the transactions
contemplated by this Agreement or the Subscription Agreement, except
such as have been obtained and made under the Act and such as may be
required under state securities laws;
(iv) The execution, delivery and performance by the Company of its
obligations under this Agreement and the Subscription Agreement and the
sale of the Offered Securities will not result in a breach or violation
of any of the terms and provisions of, or constitute a default under,
any statute, any rule, regulation or order of any governmental agency or
body or any court having jurisdiction over the Company or any
Significant Subsidiary of the Company or any of their material
properties, or any agreement or instrument for borrowed money known to
such counsel to which the Company or any such Significant Subsidiary is
a party or by which the Company or any such Significant Subsidiary is
bound or to which any of the properties of the Company or any such
Significant Subsidiary is subject, or the charter or by-laws of the
Company or any such Significant Subsidiary;
(v) The Registration Statement and the Prospectuses and each
amendment or supplement thereto, as of their respective effective or
issue dates, complied as to form in all material respects with the
requirements of the Act and the Rules and Regulations; such counsel
believes that, as of their respective effective or issue dates or
<PAGE> 22
22
as of the Closing Date (x) the Registration Statement (including any
amendment or supplement thereto) did not contain any untrue statement of
a material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading and (y) neither of the Prospectuses (including any amendment
or supplement thereto) contained any untrue statement of a material fact
or omitted to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; the descriptions in the Registration
Statement and the Prospectuses of statutes, legal and governmental
proceedings and contracts and other documents are accurate and fairly
present the information required to be shown; and such counsel does not
know of any legal or governmental proceedings required to be described
in the Registration Statement or the Prospectuses which are not
described as required or of any contracts or documents of a character
required to be described in the Registration Statement or the
Prospectuses or to be filed as exhibits to the Registration Statement
which are not described and filed as required; it being understood that
such counsel need express no opinion as to the financial statements and
related Schedules therein or other financial or statistical data
contained or incorporated by reference in the Registration Statement or
the Prospectuses;
(vi) Each of this Agreement and the Subscription Agreement has
been duly authorized, executed and delivered by the Company;
(vii) The Offered Securities delivered on the Closing Date have
been duly authorized and validly issued and are fully paid and non
assessable;
(viii) To the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or
threatened; and
(ix) No holders of securities of the Company have rights to the
registration of such securities
<PAGE> 23
23
except as specifically referred to in the Prospectuses.
In rendering such opinion, Augustus B. Kinsolving may rely as to all matters
governed by New Jersey law on the opinion of Pitney, Hardin, Kipp & Szuch;
provided however, that he will furnish a copy thereof to the Representatives
and state in his opinion that he and the Representatives are justified in
relying on such opinion of New Jersey counsel for such matters.
(f) The Representatives shall have received an opinion, dated such
Closing Date, of Sullivan & Cromwell, special counsel for MIM, to the effect
that:
(i) No consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required to be
obtained or made by MIM for the consummation of the transactions
contemplated by this Agreement and the Subscription Agreement in
connection with the sale of the Offered Securities, except such as
have been obtained and made under the Act, such as may have been filed
or will be filed under the Exchange Act and such as may be required
under state securities laws;
(ii) To such counsel's knowledge, the execution, delivery and
performance of this Agreement and the Subscription Agreement, and the
consummation of the transactions herein and therein contemplated will
not result in a breach or violation of any of the terms and provisions
of, or constitute a default under, any statute, any rule, regulation or
order of any governmental agency or body of any court having
jurisdiction over MIM or any of its properties or any of the agreements
between MIM and the Company dated September 29, 1985, September 14,
1987, September 10, 1990 and July 1, 1993 or the Stock Purchase
Agreement between MIM and the Company dated June 24, 1981 or MIM's
guarantees of the Senior Unsecured Notes of Mount Isa Finance N.V. due
2000 and 2005 except for conflicts, violations, breaches or defaults
which would not have a material adverse effect on the business,
financial condition or operations of MIM and its subsidiaries taken as a
whole; and
<PAGE> 24
24
(iii) Each of this Agreement and the Subscription Agreement has
been duly delivered by MIM.
In rendering such opinion, Sullivan & Cromwell may (A) limit their opinion to
matters governed by the laws of the State of New York and the Federal laws of
the United States of America and (B) rely as to all matters governed by
Australian law on the opinion of Feez Ruthning.
(g) The Representatives shall have received from Cravath, Swaine &
Moore, counsel for the Underwriters, such opinion or opinions, dated such
Closing Date, with respect to the incorporation of the Company, the
validity of the Offered Securities delivered on such Closing Date, the
Registration Statement, the Prospectuses and other related matters as the
Underwriters may require, and the Company and MIM shall have furnished to
such counsel such documents as they request for the purpose of enabling them
to pass upon such matters. In rendering such opinion, Cravath, Swaine &
Moore may rely as to the incorporation of the Company and all other matters
governed by New Jersey law upon the opinion of Pitney, Hardin, Kipp & Szuch
referred to above.
(h) The Representatives shall have received a certificate, dated such
Closing Date, of the President, any Executive Vice President or any
Vice-President and a principal financial or accounting officer of the Company
in which such officers, to the best of their knowledge after reasonable
investigation, shall state that the representations and warranties of the
Company in this Agreement are true and correct, that the Company has complied
with all agreements and satisfied all conditions on its part to be performed
or satisfied hereunder at or prior to such Closing Date in all material
respects, that no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are contemplated by the Commission and that, subsequent to the
date of the most recent financial statements in the Prospectuses, there has
been no material adverse change in the financial position or results of
operation of the Company and its subsidiaries taken as a whole except as set
forth in or contemplated by the Prospectuses or as described in such
certificate.
<PAGE> 25
25
(i) The Representatives shall have received a letter, dated such
Closing Date, of Coopers & Lybrand which meets the requirements of
subsection (a) of this Section, except that the specified date referred to
in such subsection will be a date not more than five days prior to such
Closing Date for the purpose of this subsection.
(j) The Representatives shall have received an opinion from Feez
Ruthning, Australian counsel for MIM, to the effect that:
(i) MIM has been duly incorporated and is validly existing under
the laws of Queensland;
(ii) MIM has the power, and has taken all necessary corporate
action, to enter into this Agreement and the Subscription Agreement
and to effect the transactions contemplated in each such document
("Transactions");
(iii) no notification, consent, authorization or filing is
required from or to any governmental agency in connection with the
Transactions;
(iv) such Transactions do not violate any applicable law of the
state of Queensland and this Agreement and the Subscription Agreement
constitute valid and binding obligations of MIM;
(v) MIM had valid and unencumbered title to the Offered
Securities and had full right, power and authority to sell, assign,
transfer and deliver the Offered Securities hereunder and under the
Subscription Agreement;
(vi) To such counsel's knowledge, the execution, delivery and
performance of this Agreement and the Subscription Agreement, and the
consummation of the transactions herein and therein contemplated will
not result in a breach or violation of any of the terms and provisions
of, or constitute a default under, any statute, any rule, regulation or
order of any governmental agency or body of any court having
jurisdiction over MIM or any of its properties or any agreement or
instrument to which MIM is a party or by which MIM is bound or to which
any of the properties of MIM is subject, or the memorandum, articles of
<PAGE> 26
26
association or other constituent documents of MIM, except for
conflicts, violations, breaches or defaults which would not have a
material adverse effect on the business, financial condition or
operations of MIM and its subsidiaries taken as a whole; and
(vii) Each of this Agreement and the Subscription
Agreement has been duly authorized and executed by MIM.
In rendering such opinion, Feez Ruthning may limit their opinion to matters
governed by the laws of the State of Queensland and the Federal laws of the
Commonwealth of Australia.
(k) On such Closing Date, the Managers shall have purchased the
International Firm Securities or the International Optional Securities, as
the case may be, pursuant to the Subscription Agreement.
The Company and MIM will furnish the Underwriters with such conformed
copies of such opinions, certificates, letters and documents as the
Underwriters reasonably request.
7. Indemnification and Contribution. (a) The Company will indemnify
and hold harmless each Underwriter and MIM and MIM's or MIM's affiliates' (other
than, if deemed an affiliate, the Company's) officers, affiliates (other than
the Company), directors, agents and employees (together, the "MIM Indemnified
Persons") against any losses, claims, damages or liabilities, joint or several,
to which such Underwriter may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, either
of the Prospectuses, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon (i) in the case of
the Registration Statement, the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading; and (ii) in the case of any prospectus, the omission or
alleged omission to state therein any material fact necessary in order to make
the statements therein, in the light of the circumstances in which they were
made, not misleading, and will reimburse each Underwriter and the MIM
<PAGE> 27
27
Indemnified Persons (as applicable) for any legal or other expenses reasonably
incurred by such Underwriter or such MIM Indemnified Persons, as the case may
be, in connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that (A)
the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission from
any of such documents in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter through
the Representatives or by or on behalf of MIM through its representative
specifically for use therein, it being understood and agreed that the only
information furnished by any Underwriter consists of the information described
as such in subsection (c) below and the information furnished by MIM consists
of the MIM Information and (B) the Company shall not be liable to any of the
MIM Indemnified Persons or to any Underwriter with respect to the basic
prospectus or any preliminary prospectus to the extent that a prospectus
relating to such Offered Securities was required to be delivered by such
Underwriter under the Act in connection with such purchase and any such loss,
claim, damage or liability results from the fact that an Underwriter sold
Securities to a person to whom there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the final prospectus as then
amended or supplemented where the untrue statement or omission of a material
fact contained in the basic prospectus or any preliminary prospectus was
corrected in the final prospectus (or the final prospectus as supplemented) if
the Company had previously furnished copies thereof to such Underwriter.
(b) MIM will indemnify and hold harmless, each Underwriter and the
Company and the Company's or the Company's affiliates' (other than, if deemed an
affiliate, MIM's) officers, affiliates (other than MIM), directors, agents and
employees (together, the "Company Indemnified Persons") against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter or
the Company may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of
any material fact contained in the Registration Statement, either of the
Prospectuses, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon (i) in the case of
the Registration
<PAGE> 28
28
Statement, the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading; and (ii) in the case of any prospectus, the omission or alleged
omission to state therein any material fact necessary in order to make the
statements therein, in the light of circumstances in which they were made, not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission was made in reliance
upon and in conformity with MIM Information and will reimburse each Underwriter
and the Company Indemnified Persons (as applicable) for any legal or other
expenses reasonably incurred by such Underwriter or such Company Indemnified
Persons (as the case may be) in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that (i) MIM will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and agreed
that the only information furnished by any Underwriter consists of the
information described as such in subsection (c) below and (ii) MIM shall not be
liable to any of the Company Indemnified Persons or to any Underwriter with
respect to the basic prospectus or any preliminary prospectus to the extent
that a prospectus relating to such Offered Securities was required to be
delivered by such Underwriter under the Act in connection with such purchase
and any such loss, claim, damage or liability results from the fact that an
Underwriter sold Securities to a person to whom there was not sent or given, at
or prior to the written confirmation of such sale, a copy of the final
prospectus as then amended or supplemented where the untrue statement or
omission of a material fact contained in the basic prospectus or any
preliminary prospectus was corrected in the final prospectus (or the final
prospectus as supplemented) if the Company had previously furnished copies
thereof to such Underwriter.
This indemnity is limited in respect of the Registration Statement insofar as
it relates to the Offered Securities.
(c) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company and MIM against any losses, claims, damages or liabilities
to which the Company or MIM may become subject, under the Act or
<PAGE> 29
29
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the Registration
Statement, either of the Prospectuses, or any amendment or supplement thereto,
or any related preliminary prospectus, or arise out of or are based upon (i) in
the case of the Registration Statement, the omission or the alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading; and (ii) in the case of any
prospectus, the omission or alleged omission to state therein any material fact
necessary in order to make the statements therein, in the light of the
circumstances in which they were made, not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such
Underwriter through the Representatives specifically for use therein, and will
reimburse any legal or other expenses reasonably incurred by the Company or MIM
in connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred, it being understood and
agreed that the only such information furnished by any Underwriter consists of
the following information in the U.S. Prospectus furnished on behalf of each
Underwriter: the last paragraph at the bottom of the cover page concerning the
terms of the offering by the Underwriters, the legend concerning
over-allotments and stabilizing on the inside front cover page, the concession
and reallowance figures appearing in the paragraph under the caption
"Underwriting" and the information furnished on behalf of CS First Boston or
S.G.Warburg, as the case may be, in the last paragraph under the caption
"Underwriting".
(d) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a), (b) or (c) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a), (b) or (c) above. In case any such action
is brought against any indemnified party and it notifies the indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it
<PAGE> 30
30
may wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel satisfactory to such indemnified party
(who shall not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the prior written
consent of the indemnified party or, if any Underwriter is an indemnified
party, without the prior written consent of each Underwriter or the
Representatives on behalf of each Underwriter, effect any settlement of any
pending or threatened action in respect of which any indemnified party is a
party and indemnity can be sought hereunder by such indemnified party unless
such settlement includes an unconditional release of such indemnified party
from all liability on any claims that are the subject matter of such action.
(e) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a), (b)
or (c) above, in each case as limited by (a), (b) or (c) above then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of the losses, claims, damages or liabilities
referred to in subsection (a), (b) or (c) above (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and MIM on
the one hand and the Underwriters on the other from the offering of the U.S.
Securities (ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault
of the Company and MIM on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations or (iii) as between MIM and the Company in such proportion as is
appropriate to reflect both the relative fault of MIM and the Company and the
relative benefits received by MIM and the Company. The relative benefits
received by the Company and MIM on the one hand and the Underwriters on the
other shall be deemed to be in the same proportion as the total net proceeds
from the offering of the U.S. Securities
<PAGE> 31
31
(before deducting expenses) received by the Company and MIM bear to the total
underwriting discounts and commissions received by the Underwriters. The
relative benefits received by the Company, on the one hand, and MIM on the
other, in each case shall be deemed to be in the same proportion as the total
net proceeds received by each. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company, MIM or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
amount paid by an indemnified party as a result of the losses, claims, damages
or liabilities referred to in the first sentence of this subsection (e) shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim which is the subject of this subsection (e). Notwithstanding the
provisions of this subsection (e), no Underwriter shall be required to
contribute any amounts in excess of the amount by which the total price at
which the U.S. Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Under-writers' obligations in this subsection (e) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(f) The obligations of the Company and MIM under this Section shall be
in addition to any liability which the Company and MIM may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obliga-tions of
the Underwriters under this Section shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each director of the Company, to each officer of the
Company who has signed the Registration Statement, to the MIM Indemnified
Persons and to each person, if any, who controls the Company within the meaning
of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters
default in their obligations to purchase U.S.
<PAGE> 32
32
Securities hereunder on either the First Closing Date or any Optional Closing
Date and the aggregate number of shares of U.S. Securities that such defaulting
Underwriter or Under-writers agreed but failed to purchase does not exceed 10%
of the total number of shares of U.S. Securities that the Underwriters are
obligated to purchase on such Closing Date. CS First Boston may make
arrangements satisfactory to the Company and MIM for the purchase of such U.S.
Securities by other persons, including any of the Underwriters, but if no such
arrangements are made by such Closing Date the non-defaulting Underwriters
shall be obligated severally, in proportion to their respective commitments
hereunder, to purchase the U.S. Securities that such defaulting Underwriters
agreed but failed to purchase on such Closing Date. If any Underwriter or
Underwriters so default and the aggregate number of shares of U.S. Securities
with respect to which such default or defaults occur exceeds 10% of the total
number of shares of U.S. Securities that the Underwriters are obligated to
purchase on such Closing Date and arrangements satisfactory to CS First Boston,
the Company and MIM for the purchase of such U.S. Securities by other persons
are not made within 36 hours after such default, this Agreement will terminate
without liability on the part of any non-defaulting Underwriter, the Company or
MIM, except as provided in Section 9 (provided that if such default occurs with
respect to U.S. Optional Securities after the First Closing Date, this
Agreement will not terminate as to the U.S. Firm Securities or any U.S.
Optional Securities pur-chased prior to such termination). As used in this
Agree-ment, the term "Underwriter" includes any person substituted for an
Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, repre-sentations, warranties and other statements of
the Company or its officers, of MIM and of the several Underwriters set forth
in or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation, or statement as to the results thereof, made
by or on behalf of any Underwriter, MIM, the Company or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the U.S. Securities. If this Agreement is
terminated pursuant to Section 8 or if for any reason the purchase of the U.S.
Securities by the Under-writers is not consummated, the Company and MIM shall
remain responsible for the expenses to be paid or reimbursed by them pursuant
to Section 5 and the respective obligations of the Company, MIM and the
Underwriters pursuant to Section 7 shall remain in effect and if any U.S.
Securities have been purchased
<PAGE> 33
33
hereunder the representations and warranties in Section 2 and all obligations
under Section 5 shall also remain in effect. If the purchase of the U.S.
Securities by the Underwriters is not consummated for any reason other than
solely because of the termination of this Agreement pursuant to Section 8 or
the occurrence of any event specified in clause (iii), (iv), or (v) of Section
6(c), the Company and MIM will, jointly and severally reimburse the
Underwriters for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) reasonably incurred by them in connection with the
offering of the U.S. Securities.
10. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or facsimiled and
confirmed to the Repre-sentatives, c/o CS First Boston Corporation, Park
Avenue Plaza, New York, NY 10055, Attention: Investment Banking
Department--Transactions Advisory Group, or, if sent to the Company, will be
mailed, delivered or facsimiled and confirmed to it at 180 Maiden Lane,
New York, New York 10038, Attention: Augustus B. Kinsolving, Esq., Vice
President, General Counsel and Secretary; or, if sent to MIM, will be mailed,
delivered or facsimiled and confirmed to M.I.M. Holdings Limited, M.I.M.
Plaza, 410 Ann Street, Brisbane 4000, Queensland, Australia, Attention:
David Munro, General Counsel and Secretary; provided, however, that any notice
to an Underwriter pursuant to Section 7 will be mailed, delivered or
facsimiled and confirmed to such Underwriter.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 7, and no
other person will have any right or obligation hereunder.
12. Representation of Underwriters. The Repre-sentatives will act for
the several Underwriters in connection with this financing, and any
action under this Agreement taken by the Representatives jointly or by CS First
Boston will be binding upon all the Underwriters.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
<PAGE> 34
34
Each of the Company and MIM hereby submits to the non-exclusive
jurisdiction of the Federal and state courts in the Borough of Manhattan in
The City of New York in any suit or proceeding arising out of or relating to
this Agreement or the transactions contemplated hereby; provided, however,
that the Underwriters and the Company acknowledge that MIM expressly
reserves all rights it may have to remove any suit brought in any such state
court to the appropriate Federal court in the Borough of Manhattan in the City
of New York.
If the foregoing is in accordance with the Representatives'
understanding of our agreement, kindly sign and return to us the Company of
the counterparts hereof, whereupon it will become a binding agreement between
the Company and the several Underwriters in accordance with its terms.
Very truly yours,
ASARCO INCORPORATED
By
----------------------------
Name:
<PAGE> 35
35
M.I.M. HOLDINGS LIMITED
By
----------------------------
Name:
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
CS FIRST BOSTON CORPORATION
S.G.WARBURG & CO. INC.
Acting on behalf of themselves and as
the Representatives of the several
Underwriters.
By CS FIRST BOSTON CORPORATION
By
----------------------------
Name:
By S.G.WARBURG & CO. INC.
By
----------------------------
Name:
<PAGE> 36
36
SCHEDULE A
<TABLE>
<CAPTION>
Number of U.S.
Underwriter Firm Securities
----------- --------------
<S> <C>
CS First Boston Corporation . . . . . . . . . . . . . . . . . . . . . . . . 1,725,000
S.G.Warburg & Co. Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . 1,725,000
Bear, Stearns & Co. Inc. . . . . . . . . . . . . . . . . . . . . . . . . . 200,000
Dain Bosworth Incorporated . . . . . . . . . . . . . . . . . . . . . . . . 100,000
Donaldson, Lufkin & Jenrette Securities Corporation . . . . . . . . . . . . 200,000
Goldman, Sachs & Co. . . . . . . . . . . . . . . . . . . . . . . . . . . . 200,000
Gordon Capital, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . 100,000
Kemper Securities, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . 100,000
Kidder, Peabody & Co. Incorporated . . . . . . . . . . . . . . . . . . . . 200,000
C.J. Lawrence/Deutsche Bank Securities Corporation . . . . . . . . . . . . 100,000
J.P. Morgan Securities Inc. . . . . . . . . . . . . . . . . . . . . . . . . 200,000
Morgan Stanley & Co. Incorporated . . . . . . . . . . . . . . . . . . . . . 200,000
NatWest Securities Limited . . . . . . . . . . . . . . . . . . . . . . . . 200,000
PaineWebber Incorporated . . . . . . . . . . . . . . . . . . . . . . . . . 200,000
Prudential Securities Incorporated . . . . . . . . . . . . . . . . . . . . 200,000
RBC Dominion Securities Corporation . . . . . . . . . . . . . . . . . . . . 200,000
Salomon Brothers Inc . . . . . . . . . . . . . . . . . . . . . . . . . . . 200,000
Smith Barney Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200,000
UBS Securities Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200,000
Wood Gundy Corp. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200,000
---------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,650,000
=========
</TABLE>
