UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
SOUTHERN PERU COPPER CORPORATION
(Name of Issuer)
Common Stock
$0.01 par value
(Title of Class of Securities)
843611 10 4
(CUSIP Number)
Augustus B. Kinsolving
Vice President, General Counsel and Secretary
ASARCO Incorporated
Tel. No. (212) 510-2000
(Name, Address and Telephone Number of
Person Authorized to Receive Notices
and Communications)
January 2, 1996
(Date of Event which Requires Filing of
this Statement)
If the 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: [ ].
Check the following box if a fee is being paid with
this statement: [X].
Exhibit Index at Page 16
SCHEDULE 13D
______________________________ ________________________________
| | | |
|CUSIP No. 843611 10 4 | | Page 2 of 27 Pages |
|____________________________| |______________________________|
___________________________________________________________________________
| 1 | NAME OF REPORTING PERSON |
| | S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSON |
| | |
| | ASARCO Incorporated Employer ID No. 13-492440 |
|____|____________________________________________________________________|
| 2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP |
| | _ |
| | (a) |_| |
| | _ |
| | (b) |x| |
| | |
|____|____________________________________________________________________|
| 3 | SEC USE ONLY |
| | |
|____|____________________________________________________________________|
| 4 | SOURCE OF FUNDS |
| | 00 |
|____|____________________________________________________________________|
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED _ |
| | PURSUANT TO ITEMS 2(d) or 2(E) |_| |
| | |
|____|____________________________________________________________________|
| 6 | CITIZENSHIP OR PLACE OF ORGANIZATION |
| | New Jersey |
|____|____________________________________________________________________|
| | 7 | SOLE VOTING POWER |
| | | 43,348,949 |
| NUMBER OF |____|_______________________________________________|
| SHARES | 8 | SHARED VOTING POWER |
| BENEFICIALLY | | 0 |
| OWNED BY |____|_______________________________________________|
| EACH | 9 | SOLE DISPOSITIVE POWER |
| REPORTING | | 43,348,949 |
| PERSON |____|_______________________________________________|
| WITH | 10 | SHARED DISPOSITIVE POWER |
| | | 0 |
|____________________|____|_______________________________________________|
| 11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
| | 43,348,949 |
|____|____________________________________________________________________|
| 12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES _ |
| | CERTAIN SHARES |_| |
|____|____________________________________________________________________|
| 13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
| | 54.1% of total Common Shares; 63.0% of Class A Common Stock |
|____|____________________________________________________________________|
| 14 | TYPE OF REPORTING PERSON |
| | CO |
|____|____________________________________________________________________|
SEC 1746 (9-88)
Item 1. Security and Issuer.
The class of equity securities to which this statement relates
is the common stock, $0.01 par value per share (the "Common Stock") and the
Class A Common Stock, $0.01 par value per share (the "Class A Common Stock"
and, together with the Common Stock, the "Common Shares") of Southern Peru
Copper Corporation, a Delaware corporation (the "Company"). The principal
executive offices of the Company are located at 180 Maiden Lane, New York, New
York 10038.
Item 2. Identity and Background.
The name of the person filing this statement is ASARCO
Incorporated, a New Jersey corporation ("Asarco").
The address of the principal offices of Asarco is 180 Maiden
Lane, New York, New York 10038. The name, business address, present principal
occupation or employment, and citizenship of each director and executive
officer of Asarco is set forth on Schedule A.
Asarco is a producer of nonferrous metals, principally copper, lead,
zinc, silver and gold. Asarco also produces specialty chemicals and minerals
and provides environmental services.
During the last five years, neither Asarco nor, to the best of its
knowledge, any of the persons listed on Schedule A attached hereto, has been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors) or has been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such
proceeding was or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities subject to,
federal or state securities laws or finding any violation with respect to such
laws.
Item 3. Source and Amount of Funds or Other Consideration.
In connection with a reorganization of Southern Peru Copper
Corporation, Asarco and the other founding stockholders of Southern Peru
Limited, Cerro Trading Company, Inc. ("Cerro") and Phelps Dodge Overseas
Capital Corporation ("Phelps Dodge") (collectively, the "Founding
Stockholders") surrendered 41,436,360 shares, 13,600,334 shares and 10,680,799
shares, respectively, of Southern Peru Limited representing 100% of the
outstanding shares of Southern Peru Limited, in exchange for shares of Class A
Common Stock of the Company (the "Founding Stockholder Exchange").
Item 4. Purpose of Transaction.
In connection with the Founding Stockholder Exchange, the
Company conducted an exchange offer (the "Exchange Offer") pursuant to which
it offered to exchange Common Stock for outstanding labor shares of the
Peruvian Branch of Southern Peru Limited. The Exchange Offer was conducted in
order to (i) provide holders of labor shares with an opportunity to receive
securities of the Company which are listed on the New York Stock Exchange and
the Lima Stock Exchange, (ii) establish public trading markets in the United
States and in Peru for the Company's Common Stock, (iii) simplify the
Company's consolidated capital structure and (iv) provide the Company in the
future with improved access to the capital markets. The Founding Stockholder
Exchange was conducted in order to provide holders of labor shares with
representation on the Board of Directors of the Company while maintaining
ultimate stockholder direction in the hands of the Founding Stockholders. On
January 2, 1996, the Company completed the Exchange Offer.
Asarco held its shares in Southern Peru Limited as a long-term
investment and has acquired the Class A Common Stock of the Company with the
same intent. Except as set forth above, Asarco has no plans or proposals
which relate to or would result in any of the transactions described in
subparagraphs (a) through (j) of Item 4 of Schedule 13D.
Item 5. Interest in Securities of the Company.
(a) Asarco has acquired and, for the purpose of Rule 13d-3
promulgated under the Securities Exchange Act of 1934, as amended (the "Act"),
beneficially owns 43,348,949 Common Shares, representing approximately 54% of
the outstanding Common Shares of the Company and 63.05% of the outstanding
Class A Common Stock of the Company. Class A Common Stock is convertible on a
one-for-one basis to Common Stock at the option of the holder or automatically
upon the sale or transfer of the Class A Common Stock to a non-affiliate of a
Founding Stockholder.
Asarco believes certain of its executive officers beneficially
own Common Stock as set forth in Schedule C.
Except as set forth herein, neither Asarco, nor, to the best of
its knowledge, any individuals named in Schedule A hereto, except for those
individuals named in Schedule C hereto, beneficially owns any Common Shares.
(b) Asarco has sole power to vote and to dispose of 43,348,949
Shares of Class A Common Stock. Except with respect to the election of
directors or as required by law, the Common Stock and Class A Common Stock
vote together as a single class.
(c) Information concerning acquisitions of Common Shares since
November 2, 1995 is set forth on Schedule B.
(d) Inapplicable.
(e) Inapplicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of the Company.
Each of the Founding Stockholders has entered into a
Stockholders' Agreement pursuant to which each Founding Stockholder has the
right to nominate that number of 12 directors of the Company which is in
proportion to the percentage of Class A Common Stock owned by such Founding
Stockholder (or its affiliates) out of the aggregate Class A Common Stock then
owned by all holders of Class A Common Stock (without any minimum required
number of shares). The foregoing is qualified in its entirety by reference to
the Stockholders' Agreement which is filed as Exhibit 1 hereto and
incorporated herein by reference.
Except for the Stockholders' Agreement described above, to the
best knowledge of Asarco, there are no contracts, arrangements, understandings
or relationships (legal or otherwise) between the persons enumerated in Item
2, and any other person, with respect to any securities of the Company,
including, but not limited to, transfer or voting of any of the securities,
finder's fees, joint ventures, loan or option arrangements, puts or calls,
guarantees of profits, division of profits or loss, or the giving or
withholding of proxies.
Item 7. Material to be Filed as Exhibits.
Exhibit 1: Stockholders' Agreement dated as of January
2, 1996 among the Company, Southern Peru
Limited and the Founding Stockholders.
SIGNATURES
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: January 12, 1996
ASARCO Incorporated
By: /s/ Kevin R. Morano
_______________________
Name: Kevin R. Morano
Title: Vice President
Schedule A
DIRECTORS AND EXECUTIVE OFFICERS OF
ASARCO INCORPORATED
The name, title, present principal occupation or employment and
business address of each of the directors and executive officers of ASARCO
Incorporated ("Asarco") are set forth below. If no business address is given,
the director's or officer's business address is Asarco's address. Unless
otherwise indicated, each occupation following an individual's name refers to
Asarco. Unless otherwise indicated, all of the persons listed below are
citizens of the United States of America.
Directors
- ---------
Richard de J. Osborne
Chairman of the Board, Chief Executive Officer and President
Francis R. McAllister
Executive Vice President
Willard C. Butcher
Director of Texaco Inc., International Paper Company, and M.I.M. Holdings
Limited
101 Park Avenue
New York, New York 10178
James C. Cotting
Chairman of the Board and
Chairman of the Executive Committee
Navistar International Corporation
455 N. Cityfront Plaza Drive
Chicago, Illinois 60611
David C. Garfield
Director of Schering-Plough Corporation
200 Chestnut Ridge Road
Woodcliff Lake, New Jersey 07675
Schedule A (continued)
E. Gordon Gee
President
The Ohio State University
2416 Commonwealth Park, North
Bexley, Ohio 43209
Harry Holiday, Jr.
Director of NBD Bancorp, Inc. and
Birmingham Steel Corporation
1 Sandpiper Drive
Village of Golf, Florida 33436
James W. Kinnear
Director of Corning Incorporated and
PaineWebber Group Inc.
Four Stamford Plaza
Stamford, Connecticut 06904
Martha T. Muse
Chairman, President and Chief Executive Officer
The Tinker Foundation
55 East 59th Street
New York, New York 10022
Michael T. Nelligan
President and Chief Executive Officer
Don Ward & Co.
241 West 56th Avenue
Denver, Colorado 80216
John D. Ong
Chairman and Chief Executive Officer
The BFGoodrich Company
3925 Embassy Parkway
Akron, Ohio 44333
James Wood
Chairman of the Board and Chief Executive Officer
The Great Atlantic & Pacific Tea Company, Inc.
2 Paragon Drive
Montvale, NJ 07645
British Citizen
Schedule A (continued)
Executive Officers (Who Are Not Directors)
- ------------------------------------------
Augustus B. Kinsolving
Vice President and General Counsel
James J. Kerr
Vice President
Kevin R. Morano
Vice President and Chief Financial Officer
Robert J. Muth
Vice President
Robert M. Novotny
Vice President
Gerald D. Van Voorhis
Vice President
Michael O. Varner
Vice President
David B. Woodbury
Vice President
Robert Ferri
Secretary
Thomas J. Findley
Treasurer
William Dowd
Controller
James L. Wiers
General Auditor
Schedule B
----------
Transactions in Shares
of the Company Since November 2, 1996 by Asarco
-----------------------------------------------
The acquisition of Class A Common Stock set forth below was
made by Asarco.
Number Price Aggregate
Date of of Shares Nature of Per Purchase
Transaction Acquired Purchase Share Price
- ----------- --------- --------- ----- ---------
1/2/96 43,348,949 Exchange n/a n/a
of shares
Schedule C
----------
BENEFICIAL OWNERSHIP OF COMMON STOCK BY
CERTAIN EXECUTIVE OFFICERS OF ASARCO
Asarco believes certain of its executive officers beneficially
own Common Stock acquired January 5-8, 1996, through open market purchases
with personal funds as follows:
Name: Richard de J. Osborne
Shares Acquired: 2,000
Price per Share: 15
Beneficial Ownership: Voting and investment power
shared with spouse
Name: Francis R. McAllister
Shares Acquired: 1,000
Price per Share: 15
Beneficial Ownership: Sole voting and investment power
Name: James J. Kerr
Shares Acquired: 500
Price per Share: 15
Beneficial Ownership: Sole voting and investment power
Name: Kevin R. Morano
Shares Acquired: 1,000
Price per Share: 15
Beneficial Ownership: Sole voting and investment power
Name: Robert J. Muth
Shares Acquired: 1,000
Price per Share: 15
Beneficial Ownership: Sole voting and investment power
Name: Robert M. Novotny
Shares Acquired: 500
Price per Share: 15
Beneficial Ownership: Sole voting and investment power
Name: Michael O. Varner
Shares Acquired: 400
Price per Share: 15
Beneficial Ownership: Sole voting and investment power
Schedule C (continued)
Name: David B. Woodbury
Shares Acquired: 1,000
Price per Share: 16 1/8
Beneifical Ownership: Voting and investment power
shared with spouse
Name: Thomas J. Findley
Shares Acquired: 750
Price per Share: 15 1/8
Beneficial Ownership: Sole voting and investment power
Name: William Dowd
Shares Acquired: 800
Price per Share: 16 1/8
Beneficial Ownership: 500 shares -- Voting and
investment power shared with spouse
300 shares -- Sole voting and
investment power
100 shares -- Voting and
investment power held solely
by spouse, with Mr. Dowd
disclaiming beneficial ownership
Exhibit Index
- -------------
Exhibit Description Page
- ------- ----------- ----
1 Stockholders' Agreement 16
CONFORMED COPY
AGREEMENT AMONG CERTAIN STOCKHOLDERS
OF SOUTHERN PERU COPPER CORPORATION
THIS AGREEMENT AMONG CERTAIN STOCKHOLDERS OF SOUTHERN PERU
COPPER CORPORATION dated as of January 2, 1996 (the "Agreement"), is entered
into by and among Southern Peru Copper Corporation (the "Corporation"),
Southern Peru Limited, ASARCO Incorporated, Cerro Trading Company, Inc. and
Phelps Dodge Overseas Capital Corporation.
RECITALS
WHEREAS, the Corporation, in a proposed reorganization to be
effected in connection with the Exchange Offer (as defined below), will become
the holding company of Southern Peru Limited, a Delaware corporation formerly
known as Southern Peru Copper Corporation ("SP Limited");
WHEREAS, the Corporation proposes to offer its common stock,
par value one cent ($0.01) per share (the "Common Stock"), for any and all
outstanding labor shares (the "Labor Shares") of the branch (the "Branch") of
SP Limited pursuant to a registered exchange offer (the "Exchange Offer") on
the terms and subject to the conditions described in the prospectus (the
"Prospectus") included in the Corporation's Registration Statement on Form
S-4, File No. 33-97790, filed with the Securities and Exchange Commission on
October 4, 1995, as such Prospectus may be supplemented or amended;
WHEREAS, the Corporation, in connection with the consummation
of the Exchange Offer, proposes to amend and restate its Certificate of
Incorporation (as amended and restated in the manner set forth by Exhibits
A-1, A-2 and B hereto, the "Restated Certificate") to provide, among other
things, for 100,000,000 shares of authorized capital stock, par value one cent
($0.01) per share, initially designated as (i) 68,750,833 shares of Class A
Common Stock, par value one cent ($0.01) per share (the "Class A Common
Stock") and (ii) 31,249,167 shares of Common Stock (the Common Stock together
with the Class A Common Stock, the "Common Shares");
WHEREAS, pursuant to the Restated Certificate, the Founding
Stockholders and their Affiliates (as such terms are defined below) will hold
all the issued and outstanding shares of Class A Common Stock and, pursuant to
the Restated Certificate, any transfer of shares of Class A Common Stock to
(or ownership by) persons other than Founding Stockholders or their Affiliates
will result in an automatic conversion of the transferred shares into Common
Stock;
WHEREAS, pursuant to the Restated Certificate and the By-Laws
of the Corporation (as adopted in the form attached hereto as Exhibit C, the
"By-Laws"), the holders of Class A Common Stock, voting as a class, shall be
entitled to elect thirteen members of the Board of Directors of the
Corporation, one of whom shall be the President of the Corporation;
WHEREAS, (i) the parties hereto desire to provide for certain
rights and obligations relating to the designation for nomination and removal
of Directors and the filling of vacancies on the Board of Directors and (ii)
the Founding Stockholders desire to provide for the governance of their (and
their Affiliates) continuing relations as holders of the Class A Common Stock
of the Corporation;
WHEREAS, in connection with the adoption of the Restated
Certificate, the parties hereto desire to terminate certain existing
agreements among themselves as holders of SP Limited's outstanding common
stock;
NOW, THEREFORE, the parties hereto agree as follows:
I. CERTAIN DEFINITIONS
"Affiliate" of a Person shall mean any Person (other than the
Corporation) that directly or indirectly through one or more intermediaries
controls, is controlled by, or is under common control with, the first Person.
For the purposes of the above definition, the term "control" (including, with
correlative meaning, the terms "controlled by" and "under common control
with") shall mean the possession, directly or indirectly, of more than 50% of
the then outstanding voting stock entitled to elect directors of such Person.
"Person" shall mean any natural person, firm, partnership, association,
corporation, company, trust, business trust, joint venture, unincorporated
organization or government or any department or agency thereof.
"Founding Stockholder" shall mean each of ASARCO Incorporated,
Cerro Trading Company, Inc. and Phelps Dodge Overseas Capital Corporation and
their respective successors and assigns qualifying pursuant to Section 4.3
hereof; provided that each of Cerro Trading Company, Inc. and Phelps Dodge
Overseas Capital Corporation shall remain a Founding Stockholder for purposes
hereof only for such time as it would also qualify as an Affiliate of The
Marmon Corporation or Marmon Holdings, Inc. or Phelps Dodge Corporation, or
their respective successors, as the case may be.
"1955 Stockholders' Agreement" means the Agreement dated
September 30, 1955 between American Smelting and Refining Company, Cerro de
Pasco Corporation, Newmont Mining Corporation, Phelps Dodge Corporation and
Southern Peru Copper Corporation (now known as SP Limited), and their
respective successors, as amended and as in effect as of the date hereof as to
all parties except Newmont Mining Corporation and its successors.
II. DIRECTOR DESIGNATION AND VOTING AGREEMENTS
2.1 Board of Directors. The Founding Stockholders hereby
agree and agree to take all necessary action in order that:
(a) The Board of Directors of the Corporation shall consist
of fifteen persons, one of whom shall be the President of the
Corporation.
(b) The holders of Class A Common Stock, voting as a class,
shall be entitled to elect thirteen Directors, one of whom shall be
the President of the Corporation.
(c) Each Founding Stockholder will have the right to nominate
that number of twelve Directors which is in proportion to the
percentage of Class A Common Stock then owned by it (or its
Affiliates) out of the aggregate Class A Common Stock then owned by
all holders of Class A Common Stock (without any minimum required
number of shares), rounded to the nearest whole number (with 0.5
being rounded up). In the event that the foregoing rounding
procedure would permit the Founding Stockholders as a group to
nominate (i) more than twelve Directors, then the Founding
Stockholder whose fractional interest in a number shall represent
the smallest fraction of a whole number that was rounded up shall not
be entitled to nominate a Director with respect to that fractional
interest or (ii) less than twelve Directors, then the Founding
Stockholder whose fractional interest in a number shall represent the
largest fraction of a whole number that was rounded down shall be
entitled to nominate a Director with respect to that fractional
interest. In the event the procedure described in the immediately
preceding sentence would not result in twelve Directors being
nominated by the Founding Stockholders as a group, the procedure
described in the foregoing sentence shall be repeated among the
Founding Stockholders not affected by the previous application of
such procedure, as may be necessary to achieve the required result.
(d) The Founding Stockholders will nominate the President of
the Corporation then holding such office for election to the Board of
Directors.
(e) At all meetings of the Board of Directors, the presence of
eight Directors shall be necessary to constitute a quorum for the
transaction of business and the affirmative vote of a majority of the
Directors present at a meeting at which a quorum of Directors is
present shall be necessary for the adoption of any resolution or the
taking of any action.
2.2 Agreement to Vote for Directors. The Founding
Stockholders agree to vote all shares of Class A Common Stock now or hereafter
owned by them, or that they have the right to vote (the "Voting Shares"), at
any regular or special meeting of stockholders of the Corporation, or in lieu
of any such meeting, to give their written consent, to the election or removal
of Directors of the Corporation so as to elect Directors in accordance with
the provisions of Section 2.1. The Founding Stockholders agree to vote their
Voting Shares for the removal (including removal without cause) of any
Director (and for the replacement of such Director pursuant to Section 2.1(c))
upon receipt of written instructions requesting such action from a Founding
Stockholder entitled to designate such Director; provided that a replacement
Director shall have been concurrently designated by such Founding Stockholder
entitled to designate the replacement Director and such replacement Director
shall be elected to the Board of Directors concurrently with the vote for
removal of the Director proposed to be replaced.
2.3 Specification of Designees. In order to maintain
representation on the Board of Directors in proportion to the rights of the
respective Founding Stockholders to elect Directors as set forth under
Section 2.1(c) (as such proportions may change from time to time as a
result of transfer or conversion of Class A Common Stock or otherwise), the
Corporation agrees to take all action necessary from time to time to call a
meeting of stockholders or solicit written consents for the purpose of the
election or removal of Directors. The Secretary of the Corporation shall
deliver written notice of any such proposed corporate or stockholder action
for the election or removal of Directors to the Founding Stockholders not
later than fifteen (15) days prior to the date on which nominations or
designees to the Board of Directors will be required to be received by the
Corporation. Within ten (10) days of the receipt of any such notice from
the Corporation, the Founding Stockholders shall notify the Corporation of
the identity of their respective Board designees. The foregoing time
periods may be shortened upon receipt of a written waiver from all Founding
Stockholders, provided that the Corporation and the Founding Stockholders
shall have been notified of the identity of all proposed Board designees.
2.4 Agreement of Founding Stockholders to Vote. The Founding
Stockholders agree to vote all of their Voting Shares for the election or
removal of Directors in accordance with the provisions of Sections 2.1, 2.2
and 2.3 at any regular or special meeting of stockholders of the Corporation,
or in lieu of any such meeting, to give their written consent when requested
by the Secretary of the Corporation to any such election or removal. In
advance of any such meeting or any solicitation of such written consent, the
Secretary of the Corporation shall give uniform instructions (identifying any
Directors proposed to be elected or removed) to each Founding Stockholder and
requesting it to vote its Voting Shares so as to accomplish the purposes of
Sections 2.1, 2.2 and 2.3. To the extent any Founding Stockholder fails to so
cast a vote or so provide its consent with respect to any of its Voting
Shares, such Founding Stockholder hereby irrevocably appoints the Secretary of
the Corporation the proxy of such Founding Stockholder, with full power of
substitution, to vote in accordance with this Agreement all of the Voting
Shares that the undersigned Founding Stockholder shall be entitled to vote.
Each such proxy shall be considered coupled with an interest and is given by
each Founding Stockholder in consideration of the proxies and the other
covenants of the other Founding Stockholders set forth herein.
2.5 Shares Legend. Certificates representing Class A Common
Stock shall bear the following legend until termination of this Agreement:
"THE SHARES OF CLASS A COMMON STOCK REPRESENTED BY THIS CERTIFICATE
ARE SUBJECT TO PROVISIONS CONTAINED IN THE AGREEMENT AMONG CERTAIN
STOCKHOLDERS OF SOUTHERN PERU COPPER CORPORATION DATED AS OF JANUARY
2, 1996, A COPY OF WHICH IS ON FILE IN THE OFFICE OF THE SECRETARY OF
SOUTHERN PERU COPPER CORPORATION."
III. TERMINATION OF 1955 STOCKHOLDERS' AGREEMENT
3.1 Termination of Prior Agreement. Upon the effectiveness of
this Agreement, the 1955 Stockholders' Agreement shall be terminated and none
of the provisions of such agreement shall have any further force or effect.
IV. MISCELLANEOUS
4.1 Effective Date. This Agreement shall become effective
upon the effectiveness of the exchange by the Founding Stockholders of shares
of Common Stock of SP Limited for shares of Class A Common Stock of the
Corporation.
4.2 Termination. (a) This Agreement shall terminate (and,
pursuant to the Restated Certificate, the Class A Common Stock shall
automatically be converted into Common Stock) if at any time the number of
shares of Class A Common Stock owned by the Founding Stockholders and their
Affiliates (in the aggregate) shall not represent at least 35% of the
outstanding Common Shares.
(b) In addition, the rights and obligations of any Founding
Stockholder under this Agreement shall terminate in the event such Founding
Stockholder (including any of its Affiliates to which it has assigned
rights or obligations hereunder) ceases to own shares of Class A Common
Stock.
4.3 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of and be enforceable by the respective
successors and assigns of the parties hereto; provided that (i) the
Corporation may not assign or transfer any of its rights or obligations
hereunder without the prior written consent of the Founding Stockholders and
(ii) each Founding Stockholder may assign or transfer its rights or
obligations hereunder only to its Affiliates, for such period as such Founding
Stockholder remains a Founding Stockholder hereunder and such Affiliates
remain Affiliates of such Founding Stockholder, and only if such Affiliates
agree in writing to be bound by the terms hereof. Any transferee or
subsequent transferee of all of the shares of Class A Common Stock now held by
Cerro Trading Company, Inc. which acquires such shares in compliance with the
preceding sentence shall be deemed to be a Founding Stockholder hereunder, and
this Agreement shall not be affected by any change in the ownership of the
stock or assets of Cerro Trading Company, Inc. or any subsequent transferor of
such Class A Common shares after it no longer owns such shares of Class A
Common Stock.
4.4 Improper Transfer. Any attempt to sell, assign, transfer,
grant or sell a participation in, pledge or otherwise dispose of any shares of
Class A Common Stock not in compliance with this Agreement shall be null and
void and neither the Corporation nor any transfer agent shall give any effect
in the Corporation's stock records to such attempted sale, assignment,
transfer, grant or sale of a participation, pledge or other disposition.
4.5 Amendments. Any provision of this Agreement may be
amended and the observance thereof may be waived with the prior written
consent of the Founding Stockholders.
4.6 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
4.7 Titles and Subtitles. The titles and subtitles used in
this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
4.8 Notices. Any notice required or permitted under this
Agreement shall be given in writing and shall be deemed effectively given (i)
five (5) days after deposit with the United States Postal Service, by
registered or certified mail, postage prepaid, or (ii) if sent by telecopier,
when sent and an appropriate electronic message confirming receipt by the
addressee has been received, in each case, addressed to the party to be
notified at the address or telecopier number indicated for such party on the
signature page hereof, or at such other address or telecopier number as such
party may hereafter designate by advance written notice to the other parties,
except that any communication with respect to a change of address shall be
deemed to be given when received by the party to whom such communication is
addressed.
4.9 Severability. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, such provision shall be
excluded from this Agreement and the balance of this Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
4.10 Entire Agreement. This Agreement constitutes the entire
agreement among the parties pertaining to the subject matter contained herein
and supersedes all prior agreements and understandings of the parties.
4.11 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without
reference to the principles of conflicts of laws thereunder.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
SOUTHERN PERU COPPER SOUTHERN PERU LIMITED
CORPORATION (formerly Southern Peru Copper
By /s/ Charles G. Preble By /s/ Charles G. Preble
________________________ _________________________
Name: Charles G. Preble Name: Charles G. Preble
Title: President Title: President
180 Maiden Lane 180 Maiden Lane
New York, New York 10038 New York, New York 10038
Telecopier Number: Telecopier Number:
(212) 510-1908 (212) 510-1908
PHELPS DODGE OVERSEAS
ASARCO INCORPORATED CAPITAL CORPORATION
By /s/ Richard de J. Osborne By /s/ J. Steven Whisler
________________________ ________________________
Name: Richard de J. Osborne Name: J. Steven Whisler
Title: Chairman Title: President
2600 North Central Avenue
180 Maiden Lane Phoenix, Arizona 85004
New York, New York 10038 Telecopier Number:
Telecopier Number: (602) 234-8050
(212) 510-1908
CERRO TRADING COMPANY, INC.
By /s/ Robert A. Pritzker
________________________
Name: Robert A. Pritzker
Title: President
225 West Washington Street
Suite 1900
Chicago, Illinois 60606
Telecopier Number:
(312) 372-9586
IN WITNESS WHEREOF, the undersigned have executed this
Agreement for the limited purpose of terminating the 1955 Stockholders'
Agreement pursuant to Section 3.1 hereof as of the date of the
effectiveness of this Agreement.
THE MARMON CORPORATION CERRO COAL TRADING COMPANY
By /s/ Robert A. Pritzker By /s/ Robert A. Pritzker
________________________ ____________________________
Name: Robert A. Pritzker Name: Robert A. Pritzker
Title: President & CEO Title: Presdident
25 West Washington Street, 25 West Washington Street,
19th Floor 19th Floor
Chicago, IL 60606 Chicago, IL 60606
Telecopier Number: Telecopier Number:
(312) 372-9586 (312) 372-9586
PHELPS DODGE CORPORATION
By /s/ J. Steven Whisler
____________________________
Name: J. Steven Whisler
Title: Senior Vice President
2600 North Central Avenue
Phoenix, AZ 85004
Telecopier Number:
(602) 234-8050
Schedule A
Ownership of Class A Common Stock
The following table sets forth information regarding ownership
of Class A Common Stock as of the date hereof. Pursuant to the terms of
the Corporation's Restated Certificate, in connection with any sale of
shares of Class A Common Stock to persons other than Founding Stockholders
or their Affiliates, transferred shares shall be auto-matically converted
into shares of Common Stock.
Shares of Percentage of Percentage of
Class A Class A Outstanding
Name of Stockholder Common Stock Common Stock Common Shares
___________________ ____________ ____________ _____________
ASARCO Incorporated 43,348,949 63.0% 54.1%
Cerro Trading Company, Inc. 14,228,088 20.7 17.8
Phelps Dodge Overseas
Capital Corporation 11,173,796 16.3 13.9
__________ ______ ______
Total 68,750,833 100.0% 85.8%
