-----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, RK0ZGoiIuRjElHRIXv36lsvIjtS3H+xBN9guVFAiKlggTTC/hShT9BC/dDq2IKWp o8S7NG7fAQUIthjvnix9LQ== 0000950147-96-000013.txt : 19960116 0000950147-96-000013.hdr.sgml : 19960116 ACCESSION NUMBER: 0000950147-96-000013 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19960112 SROS: NYSE GROUP MEMBERS: PHELPS DODGE CORP GROUP MEMBERS: PHELPS DODGE OVERSEAS CAPITAL CORPORATION SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: SOUTHERN PERU COPPER HOLDING CO 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 SEC ACT: 1934 Act SEC FILE NUMBER: 005-44663 FILM NUMBER: 96503128 BUSINESS ADDRESS: STREET 1: 180 MAIDEN LANE CITY: NEW YORK STATE: NY ZIP: 10038 BUSINESS PHONE: 2125102000 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 BUSINESS ADDRESS: STREET 1: 2600 NORTH CENTRAL AVE CITY: PHOENIX STATE: AZ ZIP: 85004 BUSINESS PHONE: 6022348100 MAIL ADDRESS: STREET 1: 2600 NORTH CENTRAL AVENUE CITY: PHOENIX STATE: AZ ZIP: 85004-3089 SC 13D 1 SCHEDULE 13D SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities and Exchange Act of 1934 (Amendment No. )* Southern Peru Copper Corporation - -------------------------------------------------------------------------------- (Name of Issuer) Common Stock, Par Value $0.01 Per Share - -------------------------------------------------------------------------------- (Title of Class of Securities) 843611 10 4 - -------------------------------------------------------------------------------- (CUSIP Number) Scott A. Crozier Phelps Dodge Corporation 2600 North Central Avenue Phoenix, Arizona 85004 (602) 234-8143 - -------------------------------------------------------------------------------- (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 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). CUSIP No. 843611 10 4 - -------------------------------------------------------------------------------- 1) Names of Reporting Persons S.S. or I.R.S. Identification Nos. of Above Persons Phelps Dodge Overseas Capital 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 - -------------------------------------------------------------------------------- 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 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% - -------------------------------------------------------------------------------- 14) Type of Reporting Person (See Instructions) CO - -------------------------------------------------------------------------------- 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 - -------------------------------------------------------------------------------- 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 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% - -------------------------------------------------------------------------------- 14) Type of Reporting Person (See Instructions) CO - -------------------------------------------------------------------------------- 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 ---------- 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 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 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 Schedule B ---------- 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 Exhibit Index ------------- 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 EX-1 2 STOCKHOLDERS AGREEMENT 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. 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 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 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% - -------------------------------------------------------------------------------- ================================================================================ EX-2 3 JOINT FILING AGREEMENT 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 -----END PRIVACY-ENHANCED MESSAGE-----