First Amendment to Agreement Among Certain Stockholders of Southern Peru Copper Corporation (June 11, 2001)

Summary

This amendment updates the 1996 agreement among certain stockholders of Southern Peru Copper Corporation to reflect Grupo Mexico's acquisition of ASARCO Incorporated. Grupo Mexico is substituted as a Founding Stockholder, assuming all of ASARCO's rights and obligations under the agreement. The amendment also revises the definition of Founding Stockholder and updates share certificate legends. These changes take effect once the related amendment to the corporation's Restated Certificate of Incorporation becomes effective under Delaware law.

EX-10.1 3 a2063724zex-10_1.txt EXHIBIT 10.1 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 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. 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 PHELPS DODGE OVERSEAS CAPITAL CORPORATION By: /s/ German Larrea Mota-Velasco By: /s/ J. Steven Whisler - ----------------------------------- ----------------------------------------- Name: German Larrea Mota-Velasco Name: J. Steven Whisler Title: Chairman Title: President 1150 North 7th Ave. 2600 North Central Avenue Tucson, AZ, 85705-0747 Phoenix, Arizona 85004 Telecopier No: (1-520) 798-7747 Telecopier Number: (1-602) 234-8050 ASARCO INCORPORATED CERRO TRADING COMPANY, INC. By: /s/ German Larrea Mota-Velasco By: /s/ Robert A. Pritzker - ------------------------------------- ---------------------------------------- Name: German Larrea Mota-Velasco Name: Robert A. Pritzker Title: Chairman Title: President 1150 North 7th Ave. 225 West Washington Street, Suite 1900 Tucson, AZ, 85705-0747 Chicago, IL, 60606 Telecopier No. (1-520) 798-7747 Telecopier No. (-312) 372-9586 GRUPO MEXICO, S.A. DE C.V. By: /s/ German Larrea Mota-Velasco - ------------------------------------ Name: German Larrea Mota-Velasco Title: Chairman Baja California No 200, Col. Roma Sur 06760, Mexico, D.F. Telecopier No.: (52-5) 564-7066 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 Phelps Dodge Overseas Capital Corporation and their respective successors; 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." June 11th, 2001