SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities and Exchange Act of 1934
(Amendment No. )*
Southern Peru Copper Corporation
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(Name of Issuer)
Common Stock, Par Value $0.01 Per Share
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(Title of Class of Securities)
843611 10 4
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(CUSIP Number)
Scott A. Crozier
Phelps Dodge Corporation
2600 North Central Avenue
Phoenix, Arizona 85004
(602) 234-8143
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(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
January 2, 1996
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(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 box
[ ].
Check the following box if a fee is being paid with this statement [X].
(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 defined in Item 1; and (2) has filed no amendment
subsequent thereto reporting beneficial ownership of less than five parent 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.
* The remainder of this cover page shall be filled out for a reporting
person's initial filing on this for 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.
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).
<PAGE>
CUSIP No. 843611 10 4
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1) Names of Reporting Persons S.S. or I.R.S. Identification Nos. of Above
Persons
Phelps Dodge Overseas Capital Corporation
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2) Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [ ]
(b) [ ]
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3) SEC Use Only
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4) Source of Funds (See Instructions)
OO
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5) Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d)
or 2(e)
[ ]
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6) Citizenship or Place of Organization
Delaware
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Number of Shares (7) Sole Voting Power
Beneficially -----------------------------------------------------
(8) Shared Voting Power
Owned by 11,173,796 Shares
-----------------------------------------------------
Each Report- (9) Sole Dispositive Power
ing Person -----------------------------------------------------
(10) Shared Dispositive Power
With 11,173,796 Shares
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11) Aggregate Amount Beneficially Owned by Each Reporting Person
11,173,796 Shares
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12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See
Instructions)
[ ]
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13) Percent of Class Represented by Amount in Row (11)
13.9%
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14) Type of Reporting Person (See Instructions)
CO
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<PAGE>
CUSIP No. 843611 10 4
- --------------------------------------------------------------------------------
1) Names of Reporting Persons S.S. or I.R.S. Identification Nos. of Above
Persons
Phelps Dodge Corporation
- --------------------------------------------------------------------------------
2) Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [ ]
(b) [ ]
- --------------------------------------------------------------------------------
3) SEC Use Only
- --------------------------------------------------------------------------------
4) Source of Funds (See Instructions)
OO
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5) Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d)
or 2(e)
[ ]
- --------------------------------------------------------------------------------
6) Citizenship or Place of Organization
New York
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Number of Shares (7) Sole Voting Power
Beneficially -----------------------------------------------------
(8) Shared Voting Power
Owned by 11,173,796 Shares
-----------------------------------------------------
Each Report- (9) Sole Dispositive Power
ing Person -----------------------------------------------------
(10) Shared Dispositive Power
With 11,173,796 Shares
- --------------------------------------------------------------------------------
11) Aggregate Amount Beneficially Owned by Each Reporting Person
11,173,796 Shares
- --------------------------------------------------------------------------------
12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See
Instructions)
[ ]
- --------------------------------------------------------------------------------
13) Percent of Class Represented by Amount in Row (11)
13.9%
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14) Type of Reporting Person (See Instructions)
CO
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<PAGE>
Item 1. Security and Issuer
This statement relates to the Common Stock, par value $0.01
per share (the "Common Stock), of Southern Peru Copper Corporation, a Delaware
corporation (the "Company"). The Company's principal executive offices are at
Avenida Caminos del Inca No. 171, Chacarilia del Estanque, Santiago de Surco,
Lima 33 Peru; and 180 Maiden Lane, New York, New York 10038.
Item 2. Identity and Background
This statement is being filed on behalf of Phelps Dodge
Overseas Capital Corporation, a Delaware corporation ("Phelps Dodge Overseas")
and Phelps Dodge Corporation, a New York corporation ("PDC"). Phelps Dodge
Overseas is a wholly-owned subsidiary of PDC. The principal business of Phelps
Dodge Overseas is to hold PDC's investment in the Company. The principal
business of PDC is mining and manufacturing. The address of the principal
business and office of Phelps Dodge Overseas and PDC is 2600 North Central
Avenue, Phoenix, Arizona 85004.
The name, business address, present principal occupation or
employment, and citizenship of each director and executive officer of Phelps
Dodge Overseas is set forth on Schedule A attached hereto. The name, business
address, present principal occupation or employment, and citizenship of each
director and executive officer of PDC is set forth on Schedule B attached
hereto.
During the past five years, neither Phelps Dodge Overseas nor
PDC nor any other person controlling either Phelps Dodge Overseas or PDC, nor,
to the best knowledge of Phelps Dodge Overseas or PDC, any of the persons listed
on Schedules A and B attached hereto, has been convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors) or has been a
party to any 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
violations with respect to such laws.
Item 3. Source and Amount of Funds or Other
Consideration
Phelps Dodge Overseas acquired an interest in the Common Stock
in connection with an exchange offer (the "Exchange Offer") conducted by the
Company, pursuant to which the Company offered to exchange its Common Stock for
any and all outstanding labor shares (the "Labor Shares") of the Peruvian Branch
(the "Branch") of Southern Peru Limited, a Delaware corporation having
substantially all of its operating assets in Peru ("SP Limited"). The Company
was formed to conduct the Exchange Offer and to act as a holding company for SP
Limited, which conducts copper mining operations in Peru through the Branch. The
Branch consists of substantially all of the assets and liabilities of SP Limited
associated with its copper operations in Peru. Pursuant to the Branch's
registration with the Peruvian government as a branch of a foreign mining
company, the Branch is deemed to have equity capital, of which SP Limited, prior
to the Exchange Offer, owned 82.69%. The remaining equity interest was
represented by the Labor Shares. The Branch was required to issue the Labor
Shares to its employees as part of a profit-sharing system under Peruvian law.
In connection with the Exchange Offer, Phelps Dodge Overseas
and the other stockholders of SP Limited (together, the "Founding Stockholders")
exchanged their common shares of SP Limited for Class A Common Stock, par value
$0.01 per share (the "Class A Common Stock"), of the Company (the "Founding
Stockholder Exchange"). The Founding Stockholder Exchange was effected
separately from the Exchange Offer in a private transaction exempt from
registration under Section 4(2) of the Securities Exchange Act of 1933, as
amended.
Each Founding Stockholder is entitled at any time to convert
shares of Class A Common Stock into shares of Common Stock. Additionally, Class
A Common Stock automatically converts into Common Stock in the event that record
or beneficial ownership of Class A Common Stock is transferred to any person
other than another Founding Stockholder or an affiliate thereof. All shares of
Class A Common Stock will automatically convert into Common Stock in the event
that the total number of shares of Class A Common Stock represents less than 35%
of the total number of shares of Class A Common Stock and Common Stock then
outstanding.
Item 4. Purpose of Transaction
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 both the New York Stock Exchange and the Lima Stock
Exchange, (ii) establish public trading markets in the United States and Peru
for the Company's Common Stock, (iii) simplify the Company's consolidated
capital structure, and (iv) provide the Company with improved access to capital
markets.
The Founding Stockholder Exchange was conducted in order to
achieve the goal of providing 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.
Phelps Dodge Overseas held its shares in SP Limited, and
acquired its shares of Class A Common Stock of the Company, for investment
purposes. Depending upon market and other conditions, Phelps Dodge Overseas or
PDC may acquire additional securities of the Company or may dispose of all or a
portion of the securities of the Company now owned or hereafter acquired.
Other than as described above, Phelps Dodge Overseas or PDC
has no plans or proposals which relate to or would result in: (a) the
acquisition by any person of additional securities of the Company, or the
disposition of securities of the Company; (b) an extraordinary corporate
transaction, such as a merger, reorganization or liquidation, involving the
Company or any of its subsidiaries; (c) a sale or transfer of a material amount
of assets of the Company or any of its subsidiaries; (d) any change in the
present Board of Directors or management of the Company, including any plans or
proposals to change the number or term of directors or to fill any existing
vacancies on the Board; (e) any material change in the present capitalization or
dividend policy of the Company; (f) any other material change in the Company's
business or corporate structure; (g) changes in the Company's charter, bylaws or
instruments corresponding thereto or other action which may impede the
acquisition of control of the Company by any person; (h) causing a class of
securities of the Company to be delisted from a national securities exchange or
cease to be authorized to be quoted in an inter-dealer quotation system or a
registered national securities association; (i) a class of equity securities of
the Company becoming eligible for termination of registration pursuant to
Section 12(g)(4) of the Act; or (j) any action similar to those enumerated
above.
Item 5. Interest in Securities of the Issuer
(a) Through its right to convert its Class A Common Stock into
Common Stock, Phelps Dodge Overseas may be deemed to be the beneficial owner of
11,173,796 shares of Common Stock, representing 13.9% of the equity capital of
the Company. As the parent company of Phelps Dodge Overseas, PDC may also be
deemed to be the beneficial owner of 11,173,796 shares of Common Stock,
representing 13.9% of the equity capital of the Company.
To the best knowledge of Phelps Dodge Overseas and PDC, none
of the persons listed on Schedules A or B attached hereto is the beneficial
owner of any shares of Common Stock.
(b) In the event that its Class A Common Stock were converted
into Common Stock, Phelps Dodge Overseas and PDC would have the shared power to
vote or to direct the vote, and shared power to dispose or direct the
disposition, of such Common Stock.
(c) On January 2, 1996, the Exchange Offer and the Founding
Stockholder Exchange were completed, resulting in the acquisition by Phelps
Dodge Overseas of 11,173,796 shares of Class A Common Stock of the Company.
Item 6. Contracts, Arrangements, Understandings
or Relationships with Respect to Securities of the Issuer
Each of the Founding Stockholders, in connection with the
Exchange Offer, has entered into the Stockholders' Agreement. The Stockholders'
Agreement contemplates, among other things, that the Board of Directors of the
Company will be composed of 15 members, one of whom is the President
of the Company.
Under the terms of the Stockholders' Agreement, each Founding
Stockholder will have the right to nominate that number of 12 directors which is
in proportion to the percentage of Class A Common Stock 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 Board member 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 12 directors, then the Founding Stockholder
whose fractional interest in a director 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 12 directors, then
the Founding Stockholder whose fractional interest in a director 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 12 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. Each of the
Foregoing Stockholders will vote its shares of Class A Common Stock in favor of
the directors nominated in accordance with the above provisions. The Founding
Stockholders have also agreed to nominate and vote for the President as a
director.
The Stockholders' Agreement will terminate, and each share of
Class A Common Stock will automatically convert into one share of Common Stock
(voting share for share as a single class on all matters including election of
directors), if at any time the number of shares of Class A Common Stock owned by
the Founding Stockholders (or affiliates of the Founding Stockholders) shall be
less than 35% of the outstanding shares of Class A Common Stock and Common Stock
of the Company. In addition, the rights and obligations of each Founding
Stockholder under the Stockholders' Agreement will terminate in the event such
Founding Stockholder (or its affiliates) shall cease to own shares of Class A
Common Stock.
The Stockholders' Agreement replaced a prior agreement (the
"Prior Agreement") among the Founding Stockholders which governed the election
of directors and other matters. The Founding Stockholders have agreed to
terminate a provision in the Prior Agreement relating to the acquisition of
mining concessions by the Founding Stockholders within a specified area in
Southern Peru, in which certain mines are located. The Company and the Founding
Stockholders have agreed that each of the Founding Stockholders may acquire
mining concessions within this area for its own account.
The Stockholders' Agreement is attached as Exhibit 1 hereto
and is incorporated herein by reference. The foregoing description of the
Stockholders' Agreement is qualified in its entirety by reference to the text of
the Stockholders' Agreement.
Item 7. Material to be Filed as Exhibits
Exhibit 1 -- Stockholders' Agreement
Exhibit 2 -- Joint Filing Agreement
Signatures
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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.
Date: January 12, 1996
PHELPS DODGE OVERSEAS CAPITAL
CORPORATION
By: /s/ Thomas M. Foster
-----------------------------------------------
Name: Thomas M. Foster
Title: Vice President and
Controller
PHELPS DODGE CORPORATION
By: /s/ Thomas M. Foster
-----------------------------------------------
Name: Thomas M. Foster
Title: Vice President and
Controller
<PAGE>
Schedule A
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DIRECTORS AND EXECUTIVE OFFICERS OF
PHELPS DODGE OVERSEAS CAPITAL CORPORATION
-----------------------------------------
The name, business address, title, present principal
occupation or employment, and citizenship of each of the directors and executive
officers of Phelps Dodge Corporation are set forth below. Unless otherwise
indicated, the business address of each person listed below is 2600 North
Central Avenue, Phoenix, Arizona 85004. Unless otherwise indicated, each person
listed below is a United States citizen.
Directors
- ---------
James L. Madson
Vice President
Phelps Dodge Corporation
Thomas M. St. Clair
Senior Vice President and
Chief Financial Officer
Phelps Dodge Corporation
J. Steven Whisler
Senior Vice President
Phelps Dodge Corporation
Douglas C. Yearley
Chairman of the Board, President
and Chief Executive Officer
Phelps Dodge Corporation
Executive Officers
- ------------------
J. Steven Whisler
President
Thomas M. Foster
Vice President and Controller
James L. Madson
Vice President
Thomas M. St. Clair
Vice President
A. Daniel Luechtefeld
Vice President - Taxes
<PAGE>
Schedule B
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DIRECTORS AND EXECUTIVE OFFICERS OF
PHELPS DODGE CORPORATION
------------------------
The name, business address, title, present principal
occupation or employment, and citizenship of each of the directors and executive
officers of Phelps Dodge Corporation are set forth below. Unless otherwise
indicated, the business address of each person listed below is 2600 North
Central Avenue, Phoenix, Arizona 85004. Unless otherwise indicated, each person
listed below is a United States citizen.
Directors
- ---------
Edward L. Addison
Retired Chairman of the Board
and Chief Executive Officer
11 Sabine Drive
Pensacola Beach, Florida 32561
Robert N. Burt
Chairman of the Board and
Chief Executive Officer
FMC Corporation
200 East Randolph Drive
Chicago, Illinois 60601
Paul W. Douglas
Retired Chairman and
Chief Executive Officer
The Pittston Company
Suite 1900
250 Park Avenue
New York, New York 10177
William A. Franke
President
Franke & Company, Inc.;
Chairman of the Board and
Chief Executive Officer
America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, Arizona 85034
Paul Hazen
Chairman and Chief Executive Officer
Wells Fargo & Company and
Wells Fargo Bank, National Association
P.O. Box 63710
San Francisco, California 94163
Marie L. Knowles
President
ARCO Transportation Company;
Senior Vice President
Atlantic Richfield Company
300 Oceangate, Suite 1557
Long Beach, California 90802
Robert D. Krebs
President and Chief Executive Officer
Burlington Northern Santa Fe Corporation
777 Main Street
Fort Worth, Texas 76102
Southwood J. Morcott
Chairman, President and
Chief Executive Officer
Dana Corporation
4500 Dorr Street
Toledo, Ohio 43615
Gordon R. Parker
Retired Chairman of the Board
and former Chief Executive Officer
Newmont Mining Corporation and
Newmont Gold Company
1700 Lincoln Street
Denver, Colorado 80203
J. Steven Whisler
Senior Vice President
Phelps Dodge Corporation
Douglas C. Yearley
Chairman of the Board, President
and Chief Executive Officer
Phelps Dodge Corporation
Executive Officers
- ------------------
Douglas C. Yearley
Chairman of the Board, President
and Chief Executive Officer
Manuel J. Iraola
Senior Vice President
Thomas M. St. Clair
Senior Vice President and Chief
Financial Officer
J. Steven Whisler
Senior Vice President
<PAGE>
Exhibit Index
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Exhibit Description Page
- ------- ----------- ----
1 Stockholders' Agreement among
Southern Peru Copper Corporation,
Southern Peru Limited, ASARCO
Incorporated, Cerro Trading Company,
Inc. and Phelps Dodge Overseas
Capital Corporation
2 Joint Filing Agreement between
Phelps Dodge Overseas Capital
Corporation and Phelps Dodge
Corporation
Exhibit 1
---------
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.
<PAGE>
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
Corporation)
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
ASARCO INCORPORATED PHELPS DODGE OVERSEAS
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
180 Maiden Lane 2600 North Central Avenue
New York, New York 10038 Phoenix, Arizona 85004
Telecopier Number: Telecopier Number:
(212) 510-1908 (602) 234-8050
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
<PAGE>
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
<PAGE>
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 automatically 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%
- --------------------------------------------------------------------------------
================================================================================
Exhibit 2
---------
JOINT FILING AGREEMENT
Phelps Dodge Overseas Capital Corporation ("Phelps Dodge
Overseas") and Phelps Dodge Corporation ("PDC") hereby agree that the Schedule
13D to which this Joint Filing Agreement is attached as an exhibit is filed with
Securities and Exchange Commission on behalf of each of Phelps Dodge Overseas
and PDC.
IN WITNESS WHEREOF, the parties have signed this Joint Filing
Agreement as of the 12th day of January, 1996.
PHELPS DODGE OVERSEAS CAPITAL
CORPORATION
By: /s/ Thomas M. Foster
---------------------------------------
Name: Thomas M. Foster
Title: Vice President and
Controller
PHELPS DODGE CORPORATION
By: /s/ Thomas M. Foster
---------------------------------------
Name: Thomas M. Foster
Title: Controller
