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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A
Under the Securities Exchange Act of 1934
(Amendment No. 17)*
ASARCO INCORPORATED
(Name of Issuer)
Common Stock, without par value
(Title of Class of Securities)
043413103
(CUSIP Number)
David M. Munro Copy to: Allan M. Chapin
M.I.M. Holdings Limited Sullivan & Cromwell
M.I.M. Plaza 250 Park Avenue
410 Ann Street New York, NY 10177
Brisbane, Queensland 4000 (212) 558-4000
Australia (011) 617-833-8000
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
November 17, 1994
(Date of Event which Requires Filing of this Statement)
If a filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the
following box [ ].
Check the following box if a fee is being paid with this statement [ ].
(A fee is not required only if the reporting person: (1) has a previous
statement on file reporting beneficial ownership of more than five percent
of the class of securities described in Item 1; and (2) has filed no
amendment subsequent thereto reporting beneficial ownership of five percent
or less of such class.) (See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be
filed with the Commission. See Rule 13d-1(a) for other parties to whom
copies are to be sent.
[FN]
*The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter disclosures provided in a prior cover page.
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The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities
Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of
that section of the Act but shall be subject to all other provisions of the
Act (however, see the Notes).
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- --------------------
CUSIP NO. 043413103
- --------------------
- ------------------------------------------------------------
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
M.I.M. Holdings Limited (None)
- ------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [ X ]
- ------------------------------------------------------------
3. SEC USE ONLY
- ------------------------------------------------------------
4. SOURCE OF FUNDS
N/A
- ------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E)
[ ]
- ------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Queensland, Australia
- ------------------------------------------------------------
7. SOLE VOTING POWER
NUMBER OF 10,353,363
SHARES ----------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY
EACH ----------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 10,353,363
WITH ----------------------------------------
10. SHARED DISPOSITIVE POWER
- ------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
10,353,363
- ------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
[ ]
- ------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
Approximately 24.6%
- ------------------------------------------------------------
14. TYPE OF REPORTING PERSON
HC, CO
- ------------------------------------------------------------
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This Amendment No. 17 To the Statement on Schedule 13D
filed by M.I.M. Holdings Limited, a corporation organized under the
laws of the State of Queensland, Commonwealth of Australia ("MIM"),
with the Securities and Exchange Commission on July 26, 1981, as
amended on August 18, September 2 and September 24, 1981, January 19,
March 19, June 8 and June 22, 1982, September 4, September 30, October 10
and October 31, 1985, October 2, 1987, September 26 and December 24,
1990, July 16, 1993 and October 12, 1994 (as so amended, the
"Statement"), with respect to shares of Common Stock, without par value
(the "Common Stock"), of ASARCO Incorporated, a New Jersey corporation
(the "Issuer"), supplements and, to the extent inconsistent therewith,
amends the information set forth in the Statement.
Item 1. Security and Issuer.
The class of equity securities to which the Statement relates
is the Common Stock of the Issuer. The Issuer has its principal executive
offices at 180 Maiden Lane, New York, New York 10038.
Item 4. Purpose of Transaction.
MIM acquired 10,353,363 shares (the "Shares") of the Common
Stock prior to 1986 as an investment and to increase the Australian
ownership of MIM. On November 17, 1994, MIM and the Issuer and CS First
Boston Corporation ("CSFBC") and S.G. Warburg & Co. Inc., as
representatives of the several underwriters party thereto (the
"Underwriters"), entered into an underwriting agreement, dated
November 17, 1994 (the "Underwriting Agreement") providing for the sale
of 6,650,000 of the Shares at a purchase price of $27.02 per Share to
the Underwriters. The Underwriting Agreement is attached hereto as
Exhibit A. Also on November 17, 1994, MIM and the Issuer and CS First
Boston Limited, S.G. Warburg Securities Ltd., Barclays De Zoete Wedd
Limited, James Capel & Co. Limited, Cazenove & Co., Commerzbank
Aktiengesellschaft, Credit Lyonnais Securities, Deutsche Bank
Aktiengesellschaft, Generale Bank, Internationale Nederlanden Bank N.V.,
Natwest Securities Limited, RBC Dominion Securities Inc., Robert
Fleming & Co. Limited and Swiss Bank Corporation, entered into
a subscription agreement, dated November 17, 1994 (the "Subscription
Agreement"), providing for the sale of 2,850,000 of the Shares at a
purchase price of $27.02 per Share to the managers party thereto (the
"Managers"). The Subscription Agreement is attached hereto as Exhibit B.
Pursuant to the Underwriting Agreement and the Subscription Agreement, the
Underwriters and the Managers were granted an option,
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exercisable by CSFBC, expiring at the close of business on the 30th day
after November 17, 1994 to purchase up to 853,363 additional Shares at
$27.02 per Share. CSFBC advised MIM on November 18, 1994 of its intention
to exercise the option in full. The transaction is scheduled to close on
November 23, 1994.
Item 6. Contracts, Arrangements, Understandings or
Relationships with respect to Securities
of the Issuer.
The Underwriting Agreement provides for the sale of 6,650,000
Shares to the several Underwriters at a price per Share of $27.02 on the
terms and subject to the conditions set forth therein. The Subscription
Agreement provides for the sale of 2,850,000 Shares to the Managers at a
price per share of $27.02. Pursuant to the Underwriting Agreement and the
Subscription Agreement, the Underwriters and the Managers were granted an
option, exercisable by CSFBC, expiring at the close of business on the
30th day after November 17, 1994 to purchase up to 853,363 additional
Shares at $27.02 per Share. CSFBC advised MIM on November 18, 1994,
of its intention to exercise the option in full. If the transactions
are consummated as planned, MIM will have sold all of the Shares.
On October 18, 1994, MIM, the Issuer and CSFBC entered into an
agreement (the "Distribution Agreement") pursuant to which in connection
with any underwritten public offering of the Shares by or through CSFBC,
CSFBC agreed to use its best efforts to arrange as wide a distribution as
reasonably practicable of such Shares. In the absence of the prior
consent of the Issuer, CSFBC agreed not to: (i) sell more than 1,000,000
Shares to any purchaser; (ii) sell any Shares to any person or group who
has filed a Schedule 13-D with respect to the Issuer continuing to reflect
ownership of more than 5% of the Issuer's Common Stock; or (iii) sell any
Shares to any purchaser that CSFBC is aware is acting in concert with any
other person for the purpose of acquiring more than 1,000,000 Shares in
such underwritten public offering. Also pursuant to the Distribution
Agreement, the Issuer waived any right of first refusal it may have had
in connection with an underwritten public offering so arranged. The
Distribution Agreement is attached hereto as Exhibit C.
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Item 7. Material to be Filed as Exhibits.
<TABLE>
<CAPTION>
Description Exhibit
<S> <C>
Underwriting Agreement, dated November 17, 1994 1
among MIM and the Issuer, and CS First Boston
Corporation and S.G. Warburg & Co. Inc.,
as representatives of the several Underwriters
Subscription Agreement, dated November 17, 1994, 2
among MIM, the Issuer and CS First Boston
Limited, S.G. Warburg Securities Ltd.,
Barclays De Zoete Wedd Limited, James
Capel & Co. Limited, Cazenove & Co.,
Commerzbank Aktiengesellschaft, Credit
Lyonnais Securities, Deutsche Bank
Aktiengesellschaft, Generale Bank,
Internationale Nederlanden Bank N.V.,
Natwest Securities Limited, RBC Dominion
Securities Inc., Robert Fleming & Co. Limited
and Swiss Bank Corporation
Agreement, dated October 18, 1994, among MIM, 3
the Issuer and CS First Boston Corporation
Press Release, dated November 17, 1994 4
</TABLE>
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SIGNATURES
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is
true, complete and correct.
Dated: November 21, 1994 M.I.M. Holdings Limited
By: /s/ N.C. Fussell
Name: N.C. Fussell
Title: Managing Director
and Chief
Executive Officer
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Sequential Description Page No.
<C> <S> <C>
Underwriting Agreement, dated November 17, 1994, among MIM and the Issuer, and CS First
Boston Corporation and S.G. Warburg & Co. Inc. as representatives of the several
(1) underwriters
Subscription Agreement, dated November 17, 1994, among MIM, the Issuer and CS First
Boston Limited, S.G. Warburg Securities Ltd., Barclays De Zoete Wedd Limited, James
Capel & Co. Limited, Cazenove & Co., Commerzbank Aktiengesellschaft, Credit Lyonnais
Securities, Deutsche Bank Aktiengesellschaft, Generale Bank, Internationale Nederlanden
Bank N.V., Natwest Securities Limited, RBC Dominion Securities Inc., Robert Fleming &
(2) Co. Limited, and Swiss Bank Corporation
Agreement, dated October 18, 1994, among MIM, the Issuer and CS First Boston
(3) Corporation
(4) Press Release, dated November 17, 1994
</TABLE>
<PAGE> 1
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 with the Optional
Securities that may be sold to the Managers by MIM ("International Optional
Securities") are
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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 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
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<PAGE> 3
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 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
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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 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
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circumstances in which they were made, not misleading, it being
understood that such circumstances include that the Company has a
15.5% ownership in MIM.
(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 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
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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 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
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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 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
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<PAGE> 8
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 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
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<PAGE> 9
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.
(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
<PAGE>
<PAGE> 10
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 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
<PAGE>
<PAGE> 11
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
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
<PAGE>
<PAGE> 12
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 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
<PAGE>
<PAGE> 13
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 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
<PAGE>
<PAGE> 14
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 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
<PAGE>
<PAGE> 15
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 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
<PAGE>
<PAGE> 16
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 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
<PAGE>
<PAGE> 17
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 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
<PAGE>
<PAGE> 18
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 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
<PAGE>
<PAGE> 19
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;
(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
<PAGE>
<PAGE> 20
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);
(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;
<PAGE>
<PAGE> 21
(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 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
<PAGE>
<PAGE> 22
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 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,
<PAGE>
<PAGE> 23
financial condition or operations of MIM and its subsidiaries
taken as a whole; and
(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>
<PAGE> 24
(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 association or other constituent
documents of MIM, except for conflicts, violations, breaches or
<PAGE>
<PAGE> 25
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 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,
<PAGE>
<PAGE> 26
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
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
<PAGE>
<PAGE> 27
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 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
<PAGE>
<PAGE> 28
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 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
<PAGE>
<PAGE> 29
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 (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
<PAGE>
<PAGE> 30
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 obligations 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. 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 Underwriters 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
<PAGE>
<PAGE> 31
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 purchased 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, representations, 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 Underwriters
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 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 Representatives, c/o CS First Boston Corporation,
Park Avenue Plaza, New York,
<PAGE>
<PAGE> 32
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 Representatives 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.
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,
<PAGE>
<PAGE> 33
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:
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>
<PAGE> 34
SCHEDULE A
<TABLE>
<CAPTION>
Number of U.S. Firm
Underwriter 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>
<PAGE> 1
EXECUTION COPY
9,500,000 Shares
ASARCO INCORPORATED
Common Stock
(No Par Value)
SUBSCRIPTION AGREEMENT
London, England
November 17, 1994
To: CS FIRST BOSTON LIMITED
S.G.WARBURG SECURITIES LTD.
BARCLAYS DE ZOETE WEDD LIMITED
JAMES CAPEL & CO. LIMITED
CAZENOVE & CO.
COMMERZBANK AKTIENGESELLSCHAFT
CREDIT LYONNAIS SECURITIES
DEUTSCHE BANK AKTIENGESELLSCHAFT
GENERALE BANK
INTERNATIONALE NEDERLANDEN BANK N.V.
NATWEST SECURITIES LIMITED
RBC DOMINION SECURITIES INC.
ROBERT FLEMING & CO. LIMITED
SWISS BANK CORPORATION
c/o CS First Boston Limited ("CSFBL")
One Cabot Square
London, England E14 4QJ
Dear Sirs:
1. Introductory. M.I.M. Holdings Limited (A.C.N.
009 814 019), a corporation incorporated in Queensland, Commonwealth of
Australia ("MIM"), proposes to sell to the several Managers named in
Schedule A hereto ("Managers"), for whom CSFBL and S.G.Warburg Securities
Ltd. are acting as representatives ("Representatives"), 2,850,000 shares of
the Common Stock, no par value per share ("Securities"), of ASARCO
Incorporated, a New Jersey corporation ("Company") (such 2,850,000 shares
of Securities being hereinafter referred to as the "International Firm
Securities"). MIM also proposes to sell to the Managers and the U.S.
Underwriters (as defined below), at the option of the Managers and the U.S.
Underwriters, an aggregate of not more than 853,363 additional shares of
Securities (collectively, "Optional Securities") as set forth below. The
International Firm Securities and the Optional Securities that may be sold
to the Managers ("International Optional
<PAGE>
<PAGE> 2
Securities") are herein collectively called the "International Securities".
It is understood that the Company and MIM are concurrently
entering into an Underwriting Agreement, dated the date hereof
("Underwriting Agreement"), with certain United States underwriters listed
in Schedule A thereto (the "U.S. Underwriters"), for whom CS First Boston
Corporation ("CSFBC") and S.G.Warburg & Co. Inc. are acting as
representatives (the "U.S. Representatives"), relating to the concurrent
offering and sale of 6,650,000 shares of Securities ("U.S. Firm
Securities", which together with the Optional Securities that may be sold
to the U.S. Underwriters by MIM ("U.S. Optional Securities") are
hereinafter called the "U.S. Securities") in the United States and Canada
("U.S. 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 U.S. 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 Managers as
follows:
2. Representations and Warranties of the Company and MIM. (a)
The Company represents and warrants to, and agrees with, the several
Managers 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 CSFBL 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,
<PAGE>
<PAGE> 3
was declared effective by the Commission, or (y) if the Company has
advised CSFBL 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 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 CSFBL 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),
<PAGE>
<PAGE> 4
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 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 Manager through CSFBL or by any U.S. Underwriter
through the U.S. Representatives 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 Managers 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
<PAGE>
<PAGE> 5
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 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, not misleading, it being understood that such
circumstances include that the Company has a 15.5% ownership in MIM.
(iv) This Agreement and the Underwriting 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 Underwriting
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 Underwriting 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
Underwriting Agreement, respectively.
<PAGE>
<PAGE> 6
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 Managers and the Managers agree, severally and not jointly, to
purchase from MIM, at a purchase price of $27.02 per share, the respective
numbers of shares of International Firm Securities set forth opposite the
names of the Managers in Schedule A hereto.
MIM will deliver the International Firm Securities to CSFBL for
the accounts of the Managers, 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
CSFBL and MIM determine, such time being herein referred to as the "First
Closing Date". The certificates for the International Firm Securities so
to be delivered will be in definitive form, in such denominations and
registered in such names as CSFBL 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 CSFBC 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 Managers and the
U.S. Underwriters may purchase all or less than all the Optional
Securities, at the purchase price per Security to be paid for the
International Firm Securities. Unless otherwise agreed between CSFBL and
CSFBC, the Optional Securities to be so purchased by the Managers shall be
in the same proportion as the International Firm Securities bear to the
Firm Securities. MIM agrees to sell to the Managers such International
Optional Securities and the Managers agree, severally and not jointly, to
purchase such International Optional Securities. Such International
Optional Securities shall be purchased for the account of each Manager in
the same proportion as the number of shares of International Firm
Securities set forth opposite such Manager's name bears to the total number
of shares of International Firm Securities (subject to adjustment by CSFBL
to eliminate fractions) and may be purchased by the Managers only for the
purpose of covering over-allotments made in connection with the sale of the
International Firm Securities. No Optional Securities shall be sold or
delivered unless the International Firm Securities and the U.S. Firm
Securities previously have been, or simultaneously are, sold and delivered.
The right to purchase the Optional Securities or
<PAGE>
<PAGE> 7
any portion thereof may be exercised from time to time and to the extent
not previously exercised may be surrendered and terminated at any time upon
notice by CSFBC on behalf of the Managers and the U.S. Underwriters to MIM.
Each time for the delivery of and payment of the International
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 CSFBC 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 International Optional
Securities being purchased on each Optional Closing Date to CSFBL for the
accounts of the several Managers 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
International Optional Securities will be in definitive form, in such
denominations and registered in such names as CSFBL requests upon
reasonable notice prior to such Optional Closing Date and will be made
available for checking and packaging at the above offices of Cravath,
Swaine & Moore, at a reasonable time in advance of the such Optional
Closing Date.
4. Offering by Managers. It is understood that the several
Managers propose to offer the International Securities for sale to the
public as set forth in the International Prospectus.
In connection with the distribution of the International
Securities, the Managers, through a stabilizing manager, may over-allot or
effect transaction on any exchange, in any over-the-counter market or
otherwise, which stabilize or maintain the market prices of the
International Securities at levels other than those which might otherwise
prevail, but in such event and in relation thereto, the Managers will act
for themselves and not as agents of the Company, and any loss resulting
from over-allotment and stabilization will be borne, and any profit arising
therefrom will be beneficially retained, by the Managers. Such
stabilizing, if commenced, may be discontinued at any time.
5. Certain Agreements of the Company and MIM. The Company
agrees with the several Managers 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
<PAGE>
<PAGE> 8
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 CSFBL 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 CSFBL and MIM (which consent, in
either case, shall not be unreasonably withheld) subparagraph (5)).
The Company will advise CSFBL and MIM promptly of any such filing
pursuant to Rule 424(b).
(b) The Company will advise CSFBL 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 CSFBL's and MIM's prior consent (which
consent, in either case, shall not be unreasonably withheld); and the
Company will also advise CSFBL 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 U.S. Underwriter, Manager 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 CSFBL 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
<PAGE>
<PAGE> 9
omission or an amendment which will effect such compliance. Neither
CSFBL's consent to, nor the Manager'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 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 copies of
the Registration Statement (four of which will be signed and will
include all exhibits), each preliminary prospectus relating to the
International 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 U.S. Underwriter or dealer,
the International Prospectus and all amendments and supplements to
such documents, in each case as soon as available and in such
quantities as CSFBL 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 CSFBC 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) No action has been or, prior to the completion of the
distribution of the Offered Securities, will be taken by the Company
or MIM in any jurisdiction outside the United States and Canada that
would permit a public offering of the Offered Securities, or
possession or distribution of the International Prospectus, or any
amendment or
<PAGE>
<PAGE> 10
supplement thereto, or any related preliminary prospectus issued in
connection with the offering of the Offered Securities, or any other
offering material, in any country or jurisdiction where action for
that purpose is required.
(h) During the period of two years hereafter, the Company will
furnish to the Representatives and, upon request, to each of the
other Managers, 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 (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 CSFBL may reasonably
request.
(i) MIM will indemnify and hold harmless the Managers 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.
(j) 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 CSFBC 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
<PAGE>
<PAGE> 11
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 U.S. Underwriters
(if and to the extent incurred by them) for any filing fees 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
CSFBC 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 U.S.
Underwriters.
MIM agrees to deliver to CSFBL as representative of the several
Managers 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 Managers. The
obligations of the several Managers to purchase and pay for the
International Firm Securities on the First Closing Date and the
International 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
<PAGE>
<PAGE> 12
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
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
<PAGE>
<PAGE> 13
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
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
<PAGE>
<PAGE> 14
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 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
<PAGE>
<PAGE> 15
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 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
<PAGE>
<PAGE> 16
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 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
CSFBL. If the
<PAGE>
<PAGE> 17
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 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
Managers 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 & 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 Managers 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 International 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>
<PAGE> 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 Underwriting
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
Underwriting 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 specified in such
opinion, the U.S. Prospectus either was filed with the
Commission pursuant to
<PAGE>
<PAGE> 19
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 Underwriting
Agreement have been duly authorized, executed and delivered by
the Company;
(vii) To the best knowledge of such counsel, no stop
order suspending the effectiveness of the Registration
Statement has been issued and no
<PAGE>
<PAGE> 20
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);
(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 descrip
<PAGE>
<PAGE> 21
tion 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 Underwriting 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
Underwriting 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 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
<PAGE>
<PAGE> 22
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 Underwriting
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 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
<PAGE>
<PAGE> 23
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
Underwriting 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 guarantee 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
(iii) Each of this Agreement and the Underwriting
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.
<PAGE>
<PAGE> 24
(g) The Representatives shall have received from Cravath,
Swaine & Moore, counsel for the Managers, 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 Managers 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.
(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:
<PAGE>
<PAGE> 25
(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
Underwriting 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
Underwriting 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 Underwriting Agreement;
(vi) To such counsel's knowledge, the execution, delivery
and performance of this Agreement and the Underwriting
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 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 Underwriting
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
<PAGE>
<PAGE> 26
Queensland and the Federal laws of the Commonwealth of Australia.
(k) On such Closing Date, the U.S. Underwriters shall have
purchased the U.S. Firm Securities or the U.S. Optional Securities,
as the case may be, pursuant to the Underwriting Agreement.
The Company and MIM will furnish the Managers with such
conformed copies of such opinions, certificates, letters and documents as
the Managers reasonably request.
7. Indemnification and Contribution. (a) The Company will
indemnify and hold harmless each Manager and MIM and MIM's or MIM's
affiliates' (other than, if deemed an affiliate, the Company's) officers,
affiliates (other than the Company's), directors, agents and employees
(together, the "MIM Indemnified Persons") against any losses, claims,
damages or liabilities, joint or several, to which such Manager 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 Manager and the MIM Indemnified Persons (as applicable) for any legal
or other expenses reasonably incurred by such Manager 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 Manager 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 Manager consists of the information described
as such in subsection (c) below and
<PAGE>
<PAGE> 27
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 Manager 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 Manager under the Act in
connection with such purchase and any such loss, claim, damage or liability
results from the fact that a Manager 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 Manager.
(b) MIM will indemnify and hold harmless, each Manager 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 Manager 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 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 Manager and the Company Indemnified Persons (as applicable) for any
legal or other expenses reasonably incurred by such Manager 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
<PAGE>
<PAGE> 28
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
Manager through CSFBL specifically for use therein, it being understood and
agreed that the only information furnished by any Manager 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 Manager
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 Manager under the Act in connection with such
purchase and any such loss, claim, damage or liability results from the
fact that a Manager 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 Manager.
This indemnity is limited in respect of the Registration Statement insofar
as it relates to the Offered Securities.
(c) Each Manager 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 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 Manager through CSFBL
specifically for use therein, and will reimburse any legal or other
expenses reasonably incurred by
<PAGE>
<PAGE> 29
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
Manager consists of the following information in the International
Prospectus furnished on behalf of each Manager: the last paragraph at the
bottom of the cover page concerning the terms of the offering by the
Managers, 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 "Subscription and Sale" and the
information furnished on behalf of CSFBL or S.G.Warburg Securities Ltd., as
the case may be, in the last paragraph under the caption "Subscription and
Sale".
(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 indem-
nifying 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 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
<PAGE>
<PAGE> 30
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 Managers on the other from the offering of the International
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
Managers 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 Managers on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering of the International
Securities (before deducting expenses) received by the Company and MIM bear
to the total underwriting discounts and commissions received by the
Managers. 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 Managers 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 sub-
section (e), no Manager shall be required to contribute any amounts in
excess of the amount by which the total price at which the International
Securities underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such Manager 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
<PAGE>
<PAGE> 31
person who was not guilty of such fraudulent misrepresentation. The
Managers' 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 Manager within the meaning of the
Act; and the obligations of the Managers under this Section shall be in
addition to any liability which the respective Managers 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 Managers. If any Manager or Managers default in
their obligations to purchase International Securities hereunder on either
the First Closing Date or any Optional Closing Date and the aggregate
number of shares of International Securities that such defaulting Manager
or Managers agreed but failed to purchase does not exceed 10% of the total
number of shares of International Securities that the Managers are
obligated to purchase on such Closing Date, CSFBL may make arrangements
satisfactory to the Company and MIM for the purchase of such International
Securities by other persons, including any of the Underwriters, but if no
such arrangements are made by such Closing Date the non-defaulting Managers
shall be obligated severally, in proportion to their respective com-
mitments hereunder, to purchase the International Securities that such
defaulting Managers agreed but failed to purchase on such Closing Date. If
any Manager or Managers so default and the aggregate number of shares of
International Securities with respect to which such default or defaults
occur exceeds 10% of the total number of shares of International Securities
that the Managers are obligated to purchase on such Closing Date and
arrangements satisfactory to CSFBL, the Company and MIM for the purchase of
such International 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 Manager, the Company or MIM, except as provided
in Section 9 (provided that if such default occurs with respect to
International Optional Securities after the First Closing Date, this
Agreement will not terminate as to the International Firm Securities or any
International Optional Securities purchased prior to such termination). As
used in this Agreement, the term "Manager" includes any person substituted
for a Manager under this Section. Nothing herein will relieve a defaulting
Manager from liability for its default.
<PAGE>
<PAGE> 32
9. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers, of MIM and of the several
Managers 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 Manager, 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
International Securities. If this Agreement is terminated pursuant to
Section 8 or if for any reason the purchase of the International
Securities by the Managers 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 Managers pursuant to Section 7 shall remain in effect and if any
International Securities have been purchased hereunder the representations
and warranties in Section 2 and all obligations under Section 5 shall also
remain in effect. If the purchase of the International Securities by the
Managers 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 Managers for all
out-of-pocket expenses (including reasonable fees and disbursements of
counsel) reasonably incurred by them in connection with the offering of the
International Securities.
10. Notices. All communications hereunder will be in writing
and, if sent to the Managers, will be mailed, delivered or facsimiled and
confirmed to CSFBL at One Cabot Square, London E14 4QJ England, Attention:
Company Secretary, 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.; 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 a Manager pursuant to Section 7 will
be mailed, delivered or facsimiled and confirmed to such Manager.
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 Managers. CSFBL will act for the several
Managers in connection with this financing,
<PAGE>
<PAGE> 33
and any action under this Agreement taken by CSFBL will be binding upon all
the Managers.
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.
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 Managers'
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 Managers in accordance with its terms.
Very truly yours,
ASARCO INCORPORATED
By__________________
M.I.M. HOLDINGS LIMITED
By__________________
<PAGE>
<PAGE> 34
The foregoing Subscription Agreement
is hereby confirmed and accepted as
of the date first above written.
CS FIRST BOSTON LIMITED
By______________________
S.G.WARBURG SECURITIES LTD.
BARCLAYS DE ZOETE WEDD LIMITED
JAMES CAPEL & CO. LIMITED
CAZENOVE & CO.
COMMERZBANK AKTIENGESELLSCHAFT
CREDIT LYONNAIS SECURITIES
DEUTSCHE BANK AKTIENGESELLSCHAFT
GENERALE BANK
INTERNATIONALE NEDERLANDEN BANK N.V.
NATWEST SECURITIES LIMITED
RBC DOMINION SECURITIES INC.
ROBERT FLEMING & CO. LIMITED
SWISS BANK CORPORATION
Each by its duly authorized
attorney-in-fact,
By______________________
<PAGE>
<PAGE> 35
SCHEDULE A
<TABLE>
<CAPTION>
Number of International
Firm Securities
Underwriter
<S> <C>
CS FIRST BOSTON LIMITED . . . . . . . . . . . . . 1,065,000
S.G.WARBURG SECURITIES LTD. . . . . . . . . . . . 1,065,000
BARCLAYS DE ZOETE WEDD LIMITED . . . . . . . . . 60,000
JAMES CAPEL & CO. LIMITED . . . . . . . . . . . . 60,000
CAZENOVE & CO. . . . . . . . . . . . . . . . . . 60,000
COMMERZBANK AKTIENGESELLSCHAFT . . . . . . . . . 60,000
CREDIT LYONNAIS SECURITIES . . . . . . . . . . . 60,000
DEUTSCHE BANK AKTIENGESELLSCHAFT . . . . . . . . 60,000
GENERALE BANK . . . . . . . . . . . . . . . . . . 60,000
INTERNATIONALE NEDERLANDEN BANK N.V. . . . . . . 60,000
NATWEST SECURITIES LIMITED . . . . . . . . . . . 60,000
RBC DOMINION SECURITIES INC. . . . . . . . . . . 60,000
ROBERT FLEMING & CO. LIMITED . . . . . . . . . . 60,000
SWISS BANK CORPORATION . . . . . . . . . . . . . 60,000
Total . . . . . . . . . . . . . . . 2,850,000
</TABLE>
<PAGE> 1
October 18, 1994
Re: Distribution of Asarco Common Stock by MIM
CS First Boston Corporation
Park Avenue Plaza
55 East 52nd Street
New York, NY 10055
Gentlemen:
This letter sets forth the agreement among M.I.M. Holdings Limited
("MIM"), ASARCO Incorporated ("Asarco"), and CS First Boston Corporation on
behalf of itself and its affiliates (collectively, the "Lead Underwriter")
with respect to all underwritten public offerings pursuant to the
agreements currently contemplated by the parties hereto by or through the
Lead Underwriter of Asarco Common Stock currently owned by M.I.M. Holdings
Limited (the "MIM Asarco Stock").
The Lead Underwriter agrees with MIM and ASARCO to use its best
efforts to arrange as wide a distribution as reasonably practicable of the
MIM Asarco Stock. Accordingly, in the absence of the prior consent of
Asarco, the Lead Underwriter agrees not (i) to sell more than 1,000,000
shares of Asarco Common Stock to any purchaser; (ii) to sell any shares of
Asarco Common Stock to any person or group who has filed a Schedule 13D
with respect to Asarco continuing to reflect ownership of more than 5% of
Asarco's Common Stock and (iii) to sell any shares of Asarco Common Stock
to any purchaser which the Lead Underwriter is aware is acting in concert
with any other person for the purpose of acquiring more than 1,000,000
shares of Asarco Common Stock in the offering. Asarco waives any right of
first refusal it may have in connection with any underwritten offering so
arranged.
<PAGE>
<PAGE> 2
Kindly sign and return one of the enclosed copies of this letter to
confirm your acceptance of the foregoing instructions from MIM and ASARCO
and that the foregoing agreement constitutes a valid and binding obligation
of the Lead Underwriter.
Very truly yours,
M.I.M. HOLDINGS LIMITED ASARCO Incorporated
By /s/ David M. Munro By /s/ Kevin Morano
David M. Munro Kevin R. Morano
Secretary and General Counsel Chief Financial Officer
Confirmed and Agreed:
CS FIRST BOSTON CORPORATION
By /s/ Alan H. Howard
Alan H. Howard
Director
<PAGE> 1
M.I.M. HOLDINGS LIMITED
A.C.N. 009 814 019
M.I.M. Plaza
410 Ann Street, Brisbane, Q. 4000
Telephone: (07) 833 8000
Facsimile: (07) 839 4009
information release
Thursday November 17 1994
AGREEMENT ON SALE OF ASARCO SHARES
M.I.M. Holdings Limited announces that agreement has been reached with CS
First Boston and S.G. Warburg & Co. Inc. for sale by underwritten public
offering of its shareholding in ASARCO Incorporated at a price of US$28 per
share, in simultaneous United States and international offerings.
The share price is slightly in excess of the current book value per share.
Further information:
Collin Myers
Manager Group Public Affairs
Ph: 07 833 8285
A/h: 07 378 8704
