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
Xxxxxx 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
X-0, X-0 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 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.
"1955 Stockholders' Agreement" means the Agreement dated
September 30, 1955 between American Smelting and Refining Company, Cerro de
Pasco Corporation, Newmont Mining Corporation, Xxxxxx Dodge Corporation and
Southern Peru Copper Corporation (now known as SP Limited), and their
respective successors, as amended and as in effect as of the date hereof as to
all parties except Newmont Mining Corporation and its successors.
II. DIRECTOR DESIGNATION AND VOTING AGREEMENTS
2.1 Board of Directors. The Founding Stockholders hereby
agree and agree to take all necessary action in order that:
(a) The Board of Directors of the Corporation shall consist
of fifteen persons, one of whom shall be the President of the
Corporation.
(b) The holders of Class A Common Stock, voting as a class,
shall be entitled to elect thirteen Directors, one of whom shall be
the President of the Corporation.
(c) Each Founding Stockholder will have the right to nominate
that number of twelve Directors which is in proportion to the
percentage of Class A Common Stock then owned by it (or its
Affiliates) out of the aggregate Class A Common Stock then owned by
all holders of Class A Common Stock (without any minimum required
number of shares), rounded to the nearest whole number (with 0.5
being rounded up). In the event that the foregoing rounding
procedure would permit the Founding Stockholders as a group to
nominate (i) more than twelve Directors, then the Founding
Stockholder whose fractional interest in a number shall represent
the smallest fraction of a whole number that was rounded up shall not
be entitled to nominate a Director with respect to that fractional
interest or (ii) less than twelve Directors, then the Founding
Stockholder whose fractional interest in a number shall represent the
largest fraction of a whole number that was rounded down shall be
entitled to nominate a Director with respect to that fractional
interest. In the event the procedure described in the immediately
preceding sentence would not result in twelve Directors being
nominated by the Founding Stockholders as a group, the procedure
described in the foregoing sentence shall be repeated among the
Founding Stockholders not affected by the previous application of
such procedure, as may be necessary to achieve the required result.
(d) The Founding Stockholders will nominate the President of
the Corporation then holding such office for election to the Board of
Directors.
(e) At all meetings of the Board of Directors, the presence of
eight Directors shall be necessary to constitute a quorum for the
transaction of business and the affirmative vote of a majority of the
Directors present at a meeting at which a quorum of Directors is
present shall be necessary for the adoption of any resolution or the
taking of any action.
2.2 Agreement to Vote for Directors. The Founding
Stockholders agree to vote all shares of Class A Common Stock now or hereafter
owned by them, or that they have the right to vote (the "Voting Shares"), at
any regular or special meeting of stockholders of the Corporation, or in lieu
of any such meeting, to give their written consent, to the election or removal
of Directors of the Corporation so as to elect Directors in accordance with
the provisions of Section 2.1. The Founding Stockholders agree to vote their
Voting Shares for the removal (including removal without cause) of any
Director (and for the replacement of such Director pursuant to Section 2.1(c))
upon receipt of written instructions requesting such action from a Founding
Stockholder entitled to designate such Director; provided that a replacement
Director shall have been concurrently designated by such Founding Stockholder
entitled to designate the replacement Director and such replacement Director
shall be elected to the Board of Directors concurrently with the vote for
removal of the Director proposed to be replaced.
2.3 Specification of Designees. In order to maintain
representation on the Board of Directors in proportion to the rights of the
respective Founding Stockholders to elect Directors as set forth under
Section 2.1(c) (as such proportions may change from time to time as a
result of transfer or conversion of Class A Common Stock or otherwise), the
Corporation agrees to take all action necessary from time to time to call a
meeting of stockholders or solicit written consents for the purpose of the
election or removal of Directors. The Secretary of the Corporation shall
deliver written notice of any such proposed corporate or stockholder action
for the election or removal of Directors to the Founding Stockholders not
later than fifteen (15) days prior to the date on which nominations or
designees to the Board of Directors will be required to be received by the
Corporation. Within ten (10) days of the receipt of any such notice from
the Corporation, the Founding Stockholders shall notify the Corporation of
the identity of their respective Board designees. The foregoing time
periods may be shortened upon receipt of a written waiver from all Founding
Stockholders, provided that the Corporation and the Founding Stockholders
shall have been notified of the identity of all proposed Board designees.
2.4 Agreement of Founding Stockholders to Vote. The Founding
Stockholders agree to vote all of their Voting Shares for the election or
removal of Directors in accordance with the provisions of Sections 2.1, 2.2
and 2.3 at any regular or special meeting of stockholders of the Corporation,
or in lieu of any such meeting, to give their written consent when requested
by the Secretary of the Corporation to any such election or removal. In
advance of any such meeting or any solicitation of such written consent, the
Secretary of the Corporation shall give uniform instructions (identifying any
Directors proposed to be elected or removed) to each Founding Stockholder and
requesting it to vote its Voting Shares so as to accomplish the purposes of
Sections 2.1, 2.2 and 2.3. To the extent any Founding Stockholder fails to so
cast a vote or so provide its consent with respect to any of its Voting
Shares, such Founding Stockholder hereby irrevocably appoints the Secretary of
the Corporation the proxy of such Founding Stockholder, with full power of
substitution, to vote in accordance with this Agreement all of the Voting
Shares that the undersigned Founding Stockholder shall be entitled to vote.
Each such proxy shall be considered coupled with an interest and is given by
each Founding Stockholder in consideration of the proxies and the other
covenants of the other Founding Stockholders set forth herein.
2.5 Shares Legend. Certificates representing Class A Common
Stock shall bear the following legend until termination of this Agreement:
"THE SHARES OF CLASS A COMMON STOCK REPRESENTED BY THIS CERTIFICATE
ARE SUBJECT TO PROVISIONS CONTAINED IN THE AGREEMENT AMONG CERTAIN
STOCKHOLDERS OF SOUTHERN PERU COPPER CORPORATION DATED AS OF JANUARY
2, 1996, A COPY OF WHICH IS ON FILE IN THE OFFICE OF THE SECRETARY OF
SOUTHERN PERU COPPER CORPORATION."
III. TERMINATION OF 1955 STOCKHOLDERS' AGREEMENT
3.1 Termination of Prior Agreement. Upon the effectiveness of
this Agreement, the 1955 Stockholders' Agreement shall be terminated and none
of the provisions of such agreement shall have any further force or effect.
IV. MISCELLANEOUS
4.1 Effective Date. This Agreement shall become effective
upon the effectiveness of the exchange by the Founding Stockholders of shares
of Common Stock of SP Limited for shares of Class A Common Stock of the
Corporation.
4.2 Termination. (a) This Agreement shall terminate (and,
pursuant to the Restated Certificate, the Class A Common Stock shall
automatically be converted into Common Stock) if at any time the number of
shares of Class A Common Stock owned by the Founding Stockholders and their
Affiliates (in the aggregate) shall not represent at least 35% of the
outstanding Common Shares.
(b) In addition, the rights and obligations of any Founding
Stockholder under this Agreement shall terminate in the event such Founding
Stockholder (including any of its Affiliates to which it has assigned
rights or obligations hereunder) ceases to own shares of Class A Common
Stock.
4.3 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of and be enforceable by the respective
successors and assigns of the parties hereto; provided that (i) the
Corporation may not assign or transfer any of its rights or obligations
hereunder without the prior written consent of the Founding Stockholders and
(ii) each Founding Stockholder may assign or transfer its rights or
obligations hereunder only to its Affiliates, for such period as such Founding
Stockholder remains a Founding Stockholder hereunder and such Affiliates
remain Affiliates of such Founding Stockholder, and only if such Affiliates
agree in writing to be bound by the terms hereof. Any transferee or
subsequent transferee of all of the shares of Class A Common Stock now held by
Cerro Trading Company, Inc. which acquires such shares in compliance with the
preceding sentence shall be deemed to be a Founding Stockholder hereunder, and
this Agreement shall not be affected by any change in the ownership of the
stock or assets of Cerro Trading Company, Inc. or any subsequent transferor of
such Class A Common shares after it no longer owns such shares of Class A
Common Stock.
4.4 Improper Transfer. Any attempt to sell, assign, transfer,
grant or sell a participation in, pledge or otherwise dispose of any shares of
Class A Common Stock not in compliance with this Agreement shall be null and
void and neither the Corporation nor any transfer agent shall give any effect
in the Corporation's stock records to such attempted sale, assignment,
transfer, grant or sale of a participation, pledge or other disposition.
4.5 Amendments. Any provision of this Agreement may be
amended and the observance thereof may be waived with the prior written
consent of the Founding Stockholders.
4.6 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
4.7 Titles and Subtitles. The titles and subtitles used in
this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
4.8 Notices. Any notice required or permitted under this
Agreement shall be given in writing and shall be deemed effectively given (i)
five (5) days after deposit with the United States Postal Service, by
registered or certified mail, postage prepaid, or (ii) if sent by telecopier,
when sent and an appropriate electronic message confirming receipt by the
addressee has been received, in each case, addressed to the party to be
notified at the address or telecopier number indicated for such party on the
signature page hereof, or at such other address or telecopier number as such
party may hereafter designate by advance written notice to the other parties,
except that any communication with respect to a change of address shall be
deemed to be given when received by the party to whom such communication is
addressed.
4.9 Severability. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, such provision shall be
excluded from this Agreement and the balance of this Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
4.10 Entire Agreement. This Agreement constitutes the entire
agreement among the parties pertaining to the subject matter contained herein
and supersedes all prior agreements and understandings of the parties.
4.11 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without
reference to the principles of conflicts of laws thereunder.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
SOUTHERN PERU COPPER SOUTHERN PERU LIMITED
CORPORATION (formerly Southern Peru Copper
By /s/ Xxxxxxx X. Xxxxxx By /s/ Xxxxxxx X. Xxxxxx
________________________ _________________________
Name: Xxxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxxx
Title: President Title: President
000 Xxxxxx Xxxx 000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Telecopier Number: Telecopier Number:
(000) 000-0000 (000) 000-0000
XXXXXX DODGE OVERSEAS
ASARCO INCORPORATED CAPITAL CORPORATION
By /s/ Xxxxxxx de X. Xxxxxxx By /s/ J. Xxxxxx Xxxxxxx
________________________ ________________________
Name: Xxxxxxx de X. Xxxxxxx Name: J. Xxxxxx Xxxxxxx
Title: Chairman Title: President
0000 Xxxxx Xxxxxxx Xxxxxx
000 Xxxxxx Xxxx Xxxxxxx, Xxxxxxx 00000
Xxx Xxxx, Xxx Xxxx 00000 Telecopier Number:
Telecopier Number: (000) 000-0000
(000) 000-0000
CERRO TRADING COMPANY, INC.
By /s/ Xxxxxx X. Xxxxxxxx
________________________
Name: Xxxxxx X. Xxxxxxxx
Title: President
000 Xxxx Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telecopier Number:
(000) 000-0000
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 XXXXXX CORPORATION CERRO COAL TRADING COMPANY
By /s/ Xxxxxx X. Xxxxxxxx By /s/ Xxxxxx X. Xxxxxxxx
________________________ ____________________________
Name: Xxxxxx X. Xxxxxxxx Name: Xxxxxx X. Xxxxxxxx
Title: President & CEO Title: Presdident
00 Xxxx Xxxxxxxxxx Xxxxxx, 00 Xxxx Xxxxxxxxxx Street,
00xx Xxxxx 00xx Xxxxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Telecopier Number: Telecopier Number:
(000) 000-0000 (000) 000-0000
XXXXXX DODGE CORPORATION
By /s/ J. Xxxxxx Xxxxxxx
____________________________
Name: J. Xxxxxx Xxxxxxx
Title: Senior Vice President
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Telecopier Number:
(000) 000-0000
Schedule A
Ownership of Class A Common Stock
The following table sets forth information regarding ownership
of Class A Common Stock as of the date hereof. Pursuant to the terms of
the Corporation's Restated Certificate, in connection with any sale of
shares of Class A Common Stock to persons other than Founding Stockholders
or their Affiliates, transferred shares shall be auto-matically converted
into shares of Common Stock.
Shares of Percentage of Percentage of
Class A Class A Outstanding
Name of Stockholder Common Stock Common Stock Common Shares
___________________ ____________ ____________ _____________
ASARCO Incorporated 43,348,949 63.0% 54.1%
Cerro Trading Company, Inc. 14,228,088 20.7 17.8
Xxxxxx Dodge Overseas
Capital Corporation 11,173,796 16.3 13.9
__________ ______ ______
Total 68,750,833 100.0% 85.8%
