-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, EwIOE1kEXjxXWcucsl/DRXYvokFXqvWJ2EAwdrfReKQLMrhD8pxQ+uz+eEFAV0cp T3MPR7nzO6hAGYd1pPEA0w== 0000950123-04-015347.txt : 20041229 0000950123-04-015347.hdr.sgml : 20041229 20041229163831 ACCESSION NUMBER: 0000950123-04-015347 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20041229 DATE AS OF CHANGE: 20041229 GROUP MEMBERS: CLIMAX MOLYBDENUM BV GROUP MEMBERS: PHELPS DODGE OVERSEAS CAPITAL CORPORATION SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: SOUTHERN PERU COPPER CORP/ CENTRAL INDEX KEY: 0001001838 STANDARD INDUSTRIAL CLASSIFICATION: METAL MINING [1000] IRS NUMBER: 133849074 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-44663 FILM NUMBER: 041231515 BUSINESS ADDRESS: STREET 1: 2575 EAST CAMELBACK ROAD, SUITE 500 CITY: PHOENIX STATE: AZ ZIP: 85016 BUSINESS PHONE: (602) 977-6500 MAIL ADDRESS: STREET 1: 2575 EAST CAMELBACK ROAD, SUITE 500 CITY: PHOENIX STATE: AZ ZIP: 85016 FORMER COMPANY: FORMER CONFORMED NAME: SOUTHERN PERU COPPER HOLDING CO DATE OF NAME CHANGE: 19951006 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: PHELPS DODGE CORP CENTRAL INDEX KEY: 0000078066 STANDARD INDUSTRIAL CLASSIFICATION: PRIMARY SMELTING & REFINING OF NONFERROUS METALS [3330] IRS NUMBER: 131808503 STATE OF INCORPORATION: NY FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: ONE NORTH CENTRAL AVE CITY: PHOENIX STATE: AZ ZIP: 85004-3089 BUSINESS PHONE: 6022348100 MAIL ADDRESS: STREET 1: ONE NORTH CENTRAL AVENUE CITY: PHOENIX STATE: AZ ZIP: 85004-3089 SC 13D/A 1 y04230sc13dza.txt SC 13D/A UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (AMENDMENT NO. 1) Southern Peru Copper Corporation (Name of Issuer) COMMON STOCK, PAR VALUE $0.01 PER SHARE (Title of Class of Securities) 843611104 (CUSIP Number) S. DAVID COLTON, ESQ. PHELPS DODGE CORPORATION ONE NORTH CENTRAL AVENUE PHOENIX, AZ 85004 (602) 234-8143 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) Copy to: MICHAEL W. BLAIR, ESQ. DEBEVOISE & PLIMPTON LLP 919 THIRD AVENUE NEW YORK, NY 10022 (212) 909-6000 DECEMBER 22, 2004 (Date of Event which Requires Filing Statement on Schedule 13D) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box [ ]. NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 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 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. 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). (Continued on following pages) 2 SCHEDULE 13D (AMENDMENT NO. 1) CUSIP NO. 843611104 (1) NAME OF REPORTING PERSON Phelps Dodge Overseas Capital Corporation I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (A) [X] (B) [ ] (3) SEC USE ONLY (4) SOURCE OF FUNDS N/A (5) CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ] PURSUANT TO ITEMS 2(D) OR 2(E) (6) CITIZENSHIP OR PLACE OF ORGANIZATION Delaware NUMBER OF (7) SOLE VOTING POWER SHARES None BENEFICIALLY OWNED BY (8) SHARED VOTING POWER EACH 8,963,796 Shares REPORTING PERSON (9) SOLE DISPOSITIVE POWER WITH None (10) SHARED DISPOSITIVE POWER 8,963,796 Shares (11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 11,173,796 (12) CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] (13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 14.0% of total Common Shares (1), 17.0% of Class A Common Stock (14) TYPE OF REPORTING PERSON CO (1) Assuming conversion of all outstanding shares of Class A Common Stock into Common Stock on a one-to-one basis. 3 CUSIP NO. 843611104 (1) NAME OF REPORTING PERSON Climax Molybdenum B.V. I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (A) [X] (B) [ ] (3) SEC USE ONLY (4) SOURCE OF FUNDS N/A (5) CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ] PURSUANT TO ITEMS 2(D) OR 2(E) (6) CITIZENSHIP OR PLACE OF ORGANIZATION Netherlands NUMBER OF (7) SOLE VOTING POWER SHARES None BENEFICIALLY OWNED BY (8) SHARED VOTING POWER EACH 2,210,000 Shares REPORTING PERSON (9) SOLE DISPOSITIVE POWER WITH None (10) SHARED DISPOSITIVE POWER 2,210,000 Shares (11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 11,173,796 (12) CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] (13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 14.0% of total Common Shares (1), 17.0% of Class A Common Stock (14) TYPE OF REPORTING PERSON CO (1) Assuming conversion of all outstanding shares of Class A Common Stock into Common Stock on a one-to-one basis. 4 CUSIP NO. 843611104 (1) NAME OF REPORTING PERSON Phelps Dodge Corporation I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (A) [X] (B) [ ] (3) SEC USE ONLY (4) SOURCE OF FUNDS N/A (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 NUMBER OF (7) SOLE VOTING POWER SHARES None BENEFICIALLY OWNED BY (8) SHARED VOTING POWER EACH 11,173,796 Shares REPORTING PERSON (9) SOLE DISPOSITIVE POWER WITH None (10) SHARED DISPOSITIVE POWER 11,173,796 Shares (11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 11,173,796 (12) CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] (13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 14.0% of total Common Shares (1), 17.0% of Class A Common Stock (14) TYPE OF REPORTING PERSON CO (1) Assuming conversion of all outstanding shares of Class A Common Stock into Common Stock on a one-to-one basis. 5 This Amendment No. 1 ("Amendment No. 1") amends and supplements the statement on Schedule 13D initially filed on January 12, 1996 (the "Original Filing"). Information reported in the Original Filing remains in effect except to the extent that it is amended, restated or superseded by information contained in this Amendment No. 1. Capitalized terms used and not defined in this Amendment No. 1 have the meanings set forth in the Original Filing. ITEM 1. SECURITY AND ISSUER Item 1 of the Original Filing is hereby amended and restated in its entirety as follows: The 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 2575 East Camelback Rd., Phoenix, AZ 85016. ITEM 2. IDENTITY AND BACKGROUND. Item 2 of the Original Filing is hereby amended and restated in its entirety as follows: This statement is being filed on behalf of Phelps Dodge Overseas Capital Corporation, a Delaware corporation ("Phelps Dodge Overseas"), Climax Molybdenum B.V., a Dutch corporation ("Climax"), and Phelps Dodge Corporation, a New York corporation ("PDC"). Phelps Dodge Overseas and Climax are wholly-owned subsidiaries of PDC. The principal business of Phelps Dodge Overseas is to hold stock in SPCC. The principal business of Climax is to process molybdenum. The principal business of PDC is mining and manufacturing. The address of the principal business and office of Phelps Dodge Overseas and PDC is One North Central Avenue, Phoenix, Arizona 85004. The address of the principal business and office of Climax is P.O. Box 1130, 3180 AC Rozenburg, Theemsweg 20, 3197 KM Botlek, Rotterdam, The Netherlands. 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 managing director of Climax is set forth on Schedule B 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 C attached hereto. During the past five years, neither Phelps Dodge Overseas, Climax nor PDC nor any other person controlling either Phelps Dodge Overseas, Climax or PDC, nor, to the best knowledge of Phelps Dodge Overseas, Climax or PDC, any of the persons listed on Schedules A, B and C 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. 6 ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION Item 3 of the Original Filing is hereby amended and supplemented by adding the following: On December 17, 2004, Phelps Dodge Overseas transferred 2,210,000 shares of Class A Common Stock of the Company to PDC as a dividend. Through a series of capital contributions and an inter-company purchase in exchange for a note, the 2,210,000 shares of Class A Common Stock of the Company were subsequently transferred to Climax on December 22, 2004. As a result of these transactions, Phelps Dodge Overseas currently holds 8,963,796 Shares of the Class A Common Stock of the Company, and Climax holds 2,210,000 Shares of the Class A Common Stock of the Company. ITEM 4. PURPOSE OF TRANSACTION Item 4 of the Original Filing is hereby amended and restated in its entirety as follows: The Exchange Offer was conducted 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 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. The transfer of 2,210,000 shares of Class A Common Stock of the Company to Climax Molybdenum Company was conducted to implement an inter-company restructuring. On December 22, 2004, PDC entered into a Letter Agreement (the "Letter Agreement") with Americas Mining Corporation ("AMC") under which AMC agreed to use its reasonable best efforts to cause the Company to enter into a registration rights agreement (the "Registration Rights Agreement") with PDC as soon as possible. The Registration Rights Agreement is anticipated to include the terms set forth in Annex A to the Letter Agreement, as well as terms that are customary for registration rights agreements. The Letter Agreement contemplates that the Registration Rights Agreement will require the Company, as promptly as practicable after the closing of the Transaction described below, to file a shelf registration covering the sale of all of the Common Stock of the Company owned by PDC, which sales may only be effected through underwritten offerings sponsored by the Company during the first six months following the effectiveness of the shelf registration (the "Initial Six Month Period"). Under the Letter Agreement, PDC agreed not to sell its Common Stock in the Company, other than through a secondary offering effected pursuant to the Registration Rights Agreement, from the closing of the Transaction, until the earlier of (i) the end of the Initial Six Month Period and (ii) eight months after the closing of the Transaction. 7 Also under the Letter Agreement, at the request of AMC, PDC expressed its current intent to (i) submit its proxy to vote in favor of the Transaction and (ii) to take all action reasonably necessary to effect simultaneously with the closing of the Transaction the conversion of PDC's Class A Common Stock of the Company into Common Stock. The Transaction involves Minera Mexico, S.A. de C.V. ("MM") becoming a subsidiary of the Company in consideration for the issuance of Common Stock by the Company to AMC for its approximately 99% MM ownership. The foregoing is qualified in its entirety by reference to the Letter Agreement which is filed as Exhibit 1 hereto and incorporated herein by reference. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER Item 5 of the Original Filing is hereby amended and restated in its entirety as follows: (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 8,963,796 shares of Common Stock, representing 11.20% of the equity capital of the Company. Through its right to convert its Class A Common Stock into Common Stock, Climax may be deemed to be the beneficial owner of 2,210,000 shares of Common Stock, representing 2.76% of the equity capital of the Company. As the parent company of Phelps Dodge Overseas and Climax, PDC may be deemed to be the beneficial owner of 11,173,796 shares of Common Stock, representing 13.96% of the equity capital of the Company. To the best knowledge of Phelps Dodge Overseas, Climax and PDC, none of the persons listed on Schedules A, B or C attached hereto is the beneficial owner of any shares of Common Stock, other than J. Steven Whisler, who owns 800 shares of Common Stock, and Ramiro G. Peru, who owns 600 shares of Common Stock. (b) In the event that its Class A Common Stock were converted into Common Stock, Phelps Dodge Overseas, Climax 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. On December 17, 2004, Phelps Dodge Overseas transferred 2,210,000 shares of Class A Common Stock of the Company to PDC as a dividend. Through a series of capital contributions and an inter-company purchase, the 2,210,000 shares of Class A Common Stock of the Company were subsequently transferred to Climax on December 22, 2004. ITEM 6. CONTRACTS ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER. Item 6 of the Original Filing is hereby amended and supplemented by adding the following: 8 On December 22, 2004, PDC entered into a Letter Agreement with AMC under which AMC agreed to use its reasonable best efforts to cause the Company to enter into the Registration Rights Agreement with PDC as soon as possible. The description of the Letter Agreement under Item 4 is incorporated herein by reference in its entirety. ITEM 7. MATERIALS TO BE FILED AS EXHIBITS.
Exhibit No. Title - -------------------------------------------------------------------------------- 1 Letter Agreement dated December 22, 2004 between Americas Mining Corporation and Phelps Dodge Corporation. 2 Joint Filing Agreement dated December 28, 2004 between Phelps Dodge Overseas Capital Corporation, Climax Molybdenum B.V. and Phelps Dodge Corporation
9 SIGNATURE 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: December 29, 2004 PHELPS DODGE OVERSEAS CAPITAL CORPORATION By: /s/ S. David Colton ------------------------------------- Name: S. David Colton Title: Senior Vice President, General Counsel and Secretary CLIMAX MOLYBDENUM B.V. By: /s/ David H. Thornton ------------------------------------- Name: David H. Thornton Title: Director PHELPS DODGE CORPORATION By: /s/ S. David Colton ------------------------------------- Name: S. David Colton Title: Senior Vice President and General Counsel 10 Schedule A 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 Overseas Capital Corporation are set forth below. Unless otherwise indicated, the business address of each person listed below is One North Central Avenue, Phoenix, Arizona 85004. Unless otherwise indicated, each person listed below is a United States citizen. DIRECTORS - --------- Ramiro G. Peru Executive Vice President and Chief Financial Officer Phelps Dodge Corporation Timothy R. Snider President and Chief Operating Officer Phelps Dodge Corporation President Phelps Dodge Mining Company Gregory W. Stevens Vice President Phelps Dodge Corporation J. Steven Whisler Chairman of the Board and Chief Executive Officer Phelps Dodge Corporation EXECUTIVE OFFICERS - ------------------ J. Steven Whisler President S. David Colton Senior Vice President, General Counsel & Secretary Ramiro G. Peru Executive Vice President Timothy R. Snider Senior Vice President A. Daniel Luechtefeld Vice President, Taxes 11 Denise R. Danner Vice President & Controller Stanton K. Rideout Vice President & Treasurer Eric E. Kinneberg Assistant Treasurer Jerry F. Schatza Director of Taxes 12 Schedule B DIRECTORS AND MANAGING DIRECTORS OF CLIMAX MOLYBDENUM B.V. The name, business address, title, present principal occupation or employment, and citizenship of each of the directors and managing directors of Climax Molybdenum B.V. are set forth below. Other than its directors and managing directors, Climax Molybdenum B.V. does not have any executive officers. Unless otherwise indicated, the business address of each person listed below is P.O. Box 1130, 3180 AC Rozenburg, Theemsweg 20, 3197 KM Botlek, Rotterdam, The Netherlands. Unless otherwise indicated, each person listed below is a United States citizen. Directors - --------- Johan van der Wal (Dutch citizen) Controller Climax Molybdenum B.V. David H. Thornton President Climax Molybdenum Company One North Central Avenue Phoenix, Arizona 85004 Mike P. Ciricillo (Canadian citizen) Managing Director Climax Molybdenum B.V. 13 Schedule C 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. The business address of each person listed below is One North Central Avenue, Phoenix, Arizona 85004. Unless otherwise indicated, each person listed below is a United States citizen. DIRECTORS Marie L. Knowles Retired Executive Vice President and Chief Financial Officer of Atlantic Richfield Company John C. Madonna Former Chairman of the Board of DigitalThink, Inc. Gordon R. Parker Retired Chairman of Newmont Mining Corporation Robert D. Johnson President and Chief Executive Officer Honeywell Aerospace Archie W. Dunham Retired Chairman of ConocoPhillips William A. Franke Retired Chairman of America West Holdings Corporation J. Steven Whisler Chairman and Chief Executive Officer Phelps Dodge Corporation Robert N. Burt Retired Chairman of the Board and Chief Executive Officer of FMC Corporation Robert D. Krebs Retired Chairman of Burlington Northern Santa Fe Corporation William J. Post Chairman of the Board Pinnacle West Capital Corporation Jack E. Thompson Vice Chairman of Barrick Gold Corporation 14 EXECUTIVE OFFICERS - ------------------ J. Steven Whisler Chairman of the Board and Chief Executive Officer Timothy R. Snider President and Chief Operating Officer; President, Phelps Dodge Mining Company Ramiro G. Peru Executive Vice President and Chief Financial Officer Arthur R. Miele Senior Vice President - Marketing; President, Phelps Dodge Sales Company Kalidas V. Madhavpeddi Senior Vice President - Asia; President, Phelps Dodge Wire and Cable Group S. David Colton Senior Vice President and General Counsel David L. Pulatie Senior Vice President - Human Resources James P. Berresse President and Chief Executive Officer, Columbian Chemicals Company 15 EX-99.1 2 y04230exv99w1.txt LETTER AGREEMENT Exhibit 1 December 22, 2004 Phelps Dodge Corporation (PD) As you know, Southern Peru Copper Corporation, hereinafter referred to as SPCC, has been discussing the possibility of entering into a strategic transaction (the "Transaction") involving Minera Mexico, S.A. de C.V. ("MM"). The Transaction involves MM becoming a subsidiary of SPCC in consideration for the issuance of Common Stock by SPCC to Americas Mining Corporation ("AMC") for its approximately 99% MM ownership. The Transaction would involve the solicitation of votes of the shareholders of SPCC in order to approve the issuance of Common Stock in connection with the acquisition by SPCC of MM. We would like to obtain the expression of your current intent to vote to approve this Transaction in accordance with the paragraphs below. We are convinced that the Transaction would transform SPCC into one of the world's premier mining companies, with superior scale and market position, high-quality asset portfolio, geographic and country diversification, commodity and semi-manufactured product diversification, great synergies, sizable combined sales and EBITDA to compete internationally, and one class of shares to improve liquidity and access to the capital markets. Proposed Liquidity and Support Provisions AMC is willing to use its reasonable best efforts to cause SPCC to provide registration rights to Phelps Dodge Corporation, hereinafter referred to as PD, in accordance with a Registration Rights Agreement that will include the terms set forth in Annex A to this letter and will otherwise contain terms customary for registration rights agreements. AMC will use its reasonable best efforts to cause SPCC to, and PD will, in good faith as soon as possible after the execution of this letter, negotiate, complete, execute and deliver such a Registration Rights Agreement. In connection with such Registration Rights Agreement and after the conversion of shares of Class A Common Stock in SPCC held by PD into shares of Common Stock, PD agrees not to sell its shares of SPCC during the period beginning on the closing of the Transaction until the end of the Initial Six Month Period (as defined in Annex A hereto) but in no event to exceed eight months from the closing of the Transaction, if any, other than through a secondary offering effected pursuant to the Registration Rights Agreement; provided, however, that PD shall be permitted to dividend or otherwise transfer all or any portion of its shares of SPCC to PD's parent corporation, and PD and its parent corporation shall each be permitted to dividend or otherwise transfer all or any portion of such shares to the parent corporation's trust shareholders and/or beneficiaries of such trusts; and provided, further, that such parent corporation, trust shareholders and/or beneficiaries, as the case may be, shall first execute one or more counterparts to this letter agreeing to be bound by its terms. During the period described in the prior paragraph, PD agrees that the maximum number of shares of SPCC that it will sell will be subject to the volume limitations set forth in the Registration Rights Agreement. AMC agrees not to sell and will use its best efforts to prevent its affiliates shares of SPCC from selling during the during the period beginning on the closing of the Transaction until the end of the Initial Six Month Period (as defined in Annex A hereto) but in no event to exceed eight months from the closing of the Transaction. AMC further agrees to use its reasonable best efforts to cause SPCC to not conduct a primary offering of its shares during the first six months following the closing of the Transaction, subject to the Company's right to issue shares in connection with acquisitions, mergers, business combinations, applicable benefit plans and other similar transactions. Other than pursuant to an offering effected in accordance with the Registration Rights Agreement, PD will not, following the closing of the Transaction, knowingly sell PD's shares in SPCC to any strategic buyers or competitors of the Company without AMC's prior approval, which approval shall not be unreasonably withheld. Taking into account that the Special Committee of disinterested Directors of SPCC did recommend to the Board of Directors of SPCC the approval of the Transaction and the Board consequently voted in favor of it, we kindly propose that PD, together with AMC, express their current intent, and PD and AMC do hereby express their current intent, to (i) submit their proxies to vote in favor of the Transaction and for such actions as are required to consummate the Transaction in accordance with the Special Committee's recommendation and (ii) take all action reasonably necessary to effect simultaneously with the closing of the Transaction the conversion of their Class A Common Stock into a single class of Common Stock with the rights and privileges as set forth in SPCC's Certificate of Incorporation as it currently exists, which would provide greater liquidity for all investors. This letter will be governed by the laws of the State of New York applicable to contracts to be performed wholly within such state. -2- We hope you agree that the Transaction is in the best interests of all of the stockholders of SPCC and we encourage you to sign in the space provided below to indicate your agreement to the terms of this letter. Sincerely, AMERICAS MINING CORPORATION /s/ Armando Ortega --------------------------------- By: Armando Ortega Title: Secretary Acknowledged and Agreed: PD /s/ S. David Colton ------------------------------- By: Title: -3- Annex A Registration Rights Agreement Term Sheet Parties Phelps Dodge Corporation ("PD") and Southern Peru Copper Corporation (the "Company"). Shelf Registration As promptly as practicable after the closing Statement of the Transaction, the Company will file with the SEC a shelf registration statement (the "Shelf Registration Statement") covering all Company common stock owned by PD (the "Registrable Securities"). The Company will use reasonable best efforts to cause the Shelf Registration Statement to be declared effective as promptly as practicable and to remain effective for a period of at least one year. The plan of distribution in the Shelf Registration Statement will contemplate only underwritten offerings sponsored by the Company during the Initial Six Month Period, as defined below. Demand Registrations PD will have the right to demand an unlimited number of registrations of its Registrable Securities during the first six months following the effectiveness of the Shelf Registration (the "Initial Six Month Period"), provided that the Registrable Securities sold will be determined by the underwriters upon consultation with the Company and PD to be the maximum number of shares that the underwriters determine could be sold without causing a significant disruption in the market for shares of Common Stock of SPCC and, in any event, at least 10,000,000 shares. PD will also have the right to sell Registrable Securities during the first six months following the Initial Six Month Period subject to a maximum number of up to 1 million shares per month during such period. Selection of Bookrunning For each underwritten offering in which PD Managing Underwriter participates, the Company will have the right to select the underwriter subject to PD's reasonable approval. Certain Time Limitations Under certain circumstances, the Company may postpone, once in any 360-day period, an underwritten offering for up to 30 days, subject to an appropriate board determination (e.g., a A-1 pending material transaction). Selling Efforts At PD's request, the Company will during the Initial Six Month Period enter into underwriting agreements (containing customary terms and conditions that will inure to the benefit of PD) and participate in customary selling efforts, such as road shows. SPCC will use its reasonable best efforts to provide full management support for any offering pursuant to a demand registration, including the following: SPCC will use its reasonable best efforts to arrange, organize and participate in customary "road show" presentations to institutional investors, analysts, money managers and others. Such presentations will take place in such locations, include such members of management and last for such duration as SPCC and the underwriters deem appropriate. Such presentations will be carried out in a manner comparable to similar presentations for issuances of the size and complexity involved. Underwriting Agreement With respect to any demand registration that will be an underwritten offering, SPCC will enter into a customary underwriting agreement with the underwriters that is reasonably satisfactory to PD and contains such terms as are customarily included in underwriting agreements, including customary indemnities no less favorable to the recipient than those contained in underwriting agreements with respect to offerings of similar size and complexity. PD will enter into such an underwriting agreement at the request of SPCC. All representations, warranties and other agreements on the part of SPCC to and for the benefit of the underwriters will also be made to and for the benefit of PD. PD will not be required to make any representations, warranties or agreements other than those regarding PD, its Registrable Securities, its intended method of distribution and that which may be required by law. Lockups The Company and, to the extent so requested by the managing underwriter for an underwritten offering under the Agreement, the executive officers and directors of the Company will be subject to appropriate lockup obligations with respect to any underwritten offering, for up to 10 days prior to and 60 (or, if so requested by the managing underwriter in connection with any particular underwritten offering, up to 90) days after such offering has been effected or terminated. PD will be subject to appropriate holdback obligations with respect to any Company registration of Company stock, for up A-2 to 10 days prior to and 60 (or, if so requested by the managing underwriter in connection with any particulars underwritten offering, up to 90) days after such offering has been effected or terminated. Indemnification/ The Company and PD will provide customary Contribution indemnification/contribution protection to the underwriters for misstatements or omissions in connection with information supplied for inclusion in the Shelf Registration, including without limitation any prospectus supplement. Expenses PD will bear those expenses directly attributable to the registration of its Registrable Securities, including registration and filing fees, fees and expenses of compliance with "Blue Sky" laws, out-of-pocket expenses and legal and accounting expenses; provided, that such expenses are reasonable and customary. In addition, PD will be responsible for its own underwriting discounts and commissions and transfer taxes attributable to its sales. Notwithstanding the foregoing, SPCC will be responsible for, and PD will not bear, any internal expenses of SPCC, including overhead and salaries and expenses of its officers and employees. Assignability The registration rights granted to PD will be assignable to the indirect trust shareholders of PD and/or beneficiaries of such trusts and to transferees of greater than 50% of the original number of PD's Registrable Shares. Third Party Registration Rights If SPCC grants registration rights to other Third Party, such rights will be on the same terms and conditions as the rights granted to PD under the Registration Rights Agreement. In all events, SPCC will not provide registration rights to any holder or prospective holder of SPCC shares that are more favorable, in terms of timing or otherwise, than the rights conferred upon PD under the Registration Rights Agreement unless PD is also provided with the opportunity to receive such more favorable rights. A-3 EX-99.2 3 y04230exv99w2.txt JOINT FILING AGREEMENT Exhibit 2 JOINT FILING AGREEMENT Phelps Dodge Overseas Capital Corporation ("Phelps Dodge Overseas"), Climax Molybdenum B.V. ("Climax"), and Phelps Dodge Corporation ("PDC") hereby agree that the Amendment No. 1 to Schedule 13D to which this Joint Filing Agreement is attached as an exhibit is filed with the Securities and Exchange Commission on behalf of each of Phelps Dodge Overseas, Climax and PDC. IN WITNESS WHEREOF, the parties have signed this Joint Filing Agreement as of the 29th day of December, 2004. PHELPS DODGE OVERSEAS CAPITAL CORPORATION By: /s/ S. David Colton ------------------------------------- Name: S. David Colton Title: Senior Vice President, General Counsel and Secretary CLIMAX MOLYBDENUM B.V. By: /s/ David H. Thornton ------------------------------------- Name: David H. Thornton Title: Director PHELPS DODGE CORPORATION By: /s/ S. David Colton ------------------------------------- Name: S. David Colton Title: Senior Vice President and General Counsel 2 -----END PRIVACY-ENHANCED MESSAGE-----