Exhibit 10.1
FIRST AMENDMENT TO THE AGREEMENT
AMONG CERTAIN STOCKHOLDERS
OF SOUTHERN PERU COPPER CORPORATION
This First Amendment, dated June 11th., 2001, to the 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"), the other parties to the Agreement, and Grupo
Mexico, S.A., de C. V. ("Grupo Mexico").
RECITALS
WHEREAS, Grupo Mexico has acquired all of the outstanding equity
securities of ASARCO Incorporated;
WHEREAS, the Board of Directors of the Corporation has recommended to
the stockholders of the Corporation that Section 4.9 (a) of the
Corporation's Restated Certificate of Incorporation be amended to read
in its entirety as set forth in Exhibit 1 hereto, (the "Restated
Certificate of Incorporation Amendment"); and,
WHEREAS, the parties hereto wish to effect a corresponding amendment to
the Agreement to substitute Grupo Mexico for ASARCO Incorporated as a
Founding Stockholder under the Agreement;
NOW, THEREFORE, effective upon, and subject to, the Restated Certificate
of Incorporation Amendment becoming effective under the laws of the State
of Delaware, the parties hereto agree as follows:
1. The Agreement shall be amended so that the definition of "Founding
Stockholder" in Section 1 of the Agreement shall read in its
entirety as follows:
"Founding Stockholder" shall mean each of Grupo Mexico, S.A.
de C.V., Cerro Trading Company, Inc., and Xxxxxx 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 Xxxxxx
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 Xxxxxx Corporation or
Xxxxxx Holdings, Inc., or Xxxxxx Dodge Corporation, or their
respective successors, as the case may be.
2. Section 2.5 of the Agreement shall be amended to read in its
entirety as follows:
"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, AS AMENDED
BY A FIRST AMENDMENT THERETO DATED JUNE 11Th., 2001,
COPIES OF WHICH ARE ON FILE IN THE OFFICE OF THE SECRETARY
OF SOUTHERN PERU COPPER CORPORATION."
3. The Agreement shall be binding upon and inure to the benefit of and
be enforceable by Grupo Mexico, and Grupo Mexico hereby
unconditionally assumes, and agrees to honor and discharge, all of
Asarco, Incorporated's obligations of any nature under the
Agreement in accordance with the terms thereof. Grupo Mexico shall
cause any of its Affiliates which receives an assignment of shares
of Class A Common Stock at or before or after the time at which the
amendment referred to in Section 1 becomes effective to agree in
writing at the time it receives such assignment to be bound by the
terms of the Agreement, and each such Affiliate shall be treated as
an assignee of Grupo Mexico's rights and obligations pursuant to
Section 4.3 of the Agreement, and the Agreement shall be binding
upon and inure to the benefit of and be enforceable by such
Affiliate.
IN WITNESS WHEREOF, the parties have executed this Amendment
No 1 as of the date first above written.
SOUTHERN PERU COPPER CORPORATION XXXXXX DODGE OVERSEAS CAPITAL CORPORATION
By: /s/ German Xxxxxx Xxxx-Xxxxxxx By: /s/ J. Xxxxxx Xxxxxxx
----------------------------------- -----------------------------------------
Name: German Xxxxxx Xxxx-Xxxxxxx Name: J. Xxxxxx Xxxxxxx
Title: Chairman Title: President
0000 Xxxxx 0xx Xxx. 0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxx, XX, 00000-0000 Xxxxxxx, Xxxxxxx 00000
Telecopier No: (0-000) 000-0000 Telecopier Number: (0-000) 000-0000
ASARCO INCORPORATED CERRO TRADING COMPANY, INC.
By: /s/ German Xxxxxx Xxxx-Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------- ----------------------------------------
Name: German Xxxxxx Xxxx-Xxxxxxx Name: Xxxxxx X. Xxxxxxxx
Title: Chairman Title: President
0000 Xxxxx 0xx Xxx. 000 Xxxx Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX, 00000-0000 Xxxxxxx, XX, 00000
Telecopier No. (0-000) 000-0000 Telecopier No. (-000) 000-0000
GRUPO MEXICO, S.A. DE C.V.
By: /s/ German Xxxxxx Xxxx-Xxxxxxx
------------------------------------
Name: German Xxxxxx Xxxx-Xxxxxxx
Title: Chairman
Baja California Xx 000,
Xxx. Xxxx Xxx 00000, Xxxxxx, D.F.
Telecopier No.: (00-0) 000-0000
EXHIBIT 1
To the First Amendment to the Agreement
among Certain Stockholders of SOUTHERN
PERU COPPER CORPORATION
Section 4.9 (a) of the Corporation's Restated Certificate of Incorporation is to
be amended to read in its entirety as follows:
4.9. "CONVERSION RIGHTS. (a) AUTOMATIC CONVERSION. Each share of Class
A Common Stock shall convert automatically into one fully paid and
non-assessable share of Common Stock upon (i) the sale, gift, or other
transfer of such share of Class A Common Stock to a party other than a
Founding Stockholder or its Affiliate (as such terms are defined below)
or (ii) the ownership of such share of Class A Common Stock by any
person other than a Founding Stockholder or its Affiliate. In addition,
all outstanding shares of Class A Common Stock shall convert
automatically into an equal number of fully paid and non-assessable
shares of Common Stock upon the date on which the Founding Stockholders
and their Affiliates (in the aggregate) no longer own at least 35% of
the outstanding Common Shares. Each of the foregoing automatic
conversion events shall be referred to hereinafter as an "Event of
Automatic Conversion."
For purposes of this Paragraph 4.9, the term "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; the term "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. Additionally, for the
purposes of this Paragraph 4.9, the term "Founding Stockholder" shall
mean each of Grupo Mexico, S. A. de C. V., Cerro Trading Company, Inc.
and Xxxxxx Dodge Overseas Capital Corporation and their respective
successors; PROVIDED that each of Cerro Trading Company, Inc. and
Xxxxxx 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 Xxxxxx Corporation or Xxxxxx Holdings,
Inc. or Xxxxxx Dodge Corporation, or their respective successors, as
the case may be."
June 11th, 2001
