Southern Peru Copper Corporation
20,978,497 Shares(1)
Common Stock
($0.01 par value)
Underwriting Agreement
New York, New York
June 9, 2005
Citigroup Global Markets Inc.
UBS Securities LLC
As Representatives of the several Underwriters,
c/o Citigroup Global Markets Inc.
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
c/o UBS Securities LLC
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
The stockholders of Southern Peru Copper Corporation, a corporation
organized under the laws of Delaware (the "Company"), named in Schedule II
hereto (the "Selling Stockholders") propose to sell to the several underwriters
named in Schedule I hereto (the "Underwriters"), for whom you (the
"Representatives") are acting as representatives, 20,978,497 shares of Common
Stock, $0.01 par value ("Common Stock"), of the Company (said shares to be sold
by the Selling Stockholders being hereinafter called the "Underwritten
Securities"), with each Selling Stockholder selling the number of Underwritten
Securities set forth opposite such Selling Stockholder's name on Schedule II
hereto. The Selling Stockholders also propose to grant to the Underwriters an
option to purchase up to 1,573,387 additional shares of Common Stock to cover
over-allotments (the "Option Securities"; the Option Securities, together with
the Underwritten Securities, being hereinafter called the "Securities"). To the
extent there are no additional Underwriters listed on Schedule I other than you,
the term Representatives as used herein shall mean you, as Underwriters, and the
terms Representatives and Underwriters shall mean either the singular or plural
as the context requires. The use of the neuter in this Agreement shall include
the feminine and masculine wherever appropriate. Any reference herein to the
Registration Statement, the
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(1) Plus an option to purchase from the Selling Stockholders up to 1,573,387
additional shares of Common Stock to cover over-allotments.
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Basic Prospectus, any Preliminary Prospectus or the Final Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Exchange Act on or
before the Effective Date of the Registration Statement or the issue date of the
Basic Prospectus, any Preliminary Prospectus or the Final Prospectus, as the
case may be (the "Incorporated Documents"), it being understood that in the case
of any Incorporated Document that is supplemented or amended by a subsequent
Incorporated Document, the Incorporated Document as amended or supplemented
shall be the relevant document with respect to any representations and
warranties concerning such Incorporated Document herein; and any reference
herein to the terms "amend", "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, any Preliminary Prospectus or the
Final Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act after the Effective Date of the Registration
Statement or the issue date of the Basic Prospectus, any Preliminary Prospectus
or the Final Prospectus, as the case may be, deemed to be incorporated therein
by reference. Certain terms used herein are defined in Section 19 hereof.
1. Representations and Warranties.
(i) The Company represents and warrants to, and agrees with, each
Underwriter and each Selling Stockholder as set forth below in this Section
1(i).
(a) The Company meets the requirements for use of Form S-3 under the
Act and has prepared and filed with the Commission a registration
statement (file number 333-124439) on Form S-3, including a related basic
prospectus, for registration under the Act of the offering and sale of the
Securities. The Company may have filed one or more amendments thereto,
including a Preliminary Prospectus, each of which has previously been
furnished to you. The Company will next file with the Commission one of
the following: (1) after the Effective Date of such registration
statement, a final prospectus supplement relating to the Securities in
accordance with Rules 430A and 424(b), (2) prior to the Effective Date of
such registration statement, an amendment to such registration statement
(including the form of final prospectus supplement) or (3) a final
prospectus in accordance with Rules 415 and 424(b). In the case of clause
(1), the Company has included in such registration statement, as amended
at the Effective Date, all information (other than Rule 430A Information)
required by the Act and the rules thereunder to be included in such
registration statement and the Final Prospectus. As filed, such final
prospectus supplement or such amendment and form of final prospectus
supplement shall contain all Rule 430A Information, together with all
other such required information, and, except to the extent the
Representatives shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the Execution
Time or, to the extent not completed at the Execution Time, shall contain
only such specific additional information and other changes (beyond that
contained in the Basic Prospectus and any Preliminary Prospectus) as the
Company has advised you, prior to the Execution Time, will be included or
made therein. The Registration Statement, at the Execution Time, meets the
requirements set forth in Rule 415(a)(1)(i).
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(b) On the Effective Date, the Registration Statement did or will,
and when the Final Prospectus is first filed (if required) in accordance
with Rule 424(b) and on the Closing Date (as defined herein) and on any
date on which Option Securities are purchased, if such date is not the
Closing Date (a "settlement date"), the Final Prospectus (and any
supplement thereto) will, comply in all material respects with the
applicable requirements of the Act and the rules thereunder; the
Incorporated Documents, when they were filed, complied in all material
respects with the applicable requirements of the Exchange Act and the
rules thereunder; on the Effective Date and at the Execution Time, the
Registration Statement did not or will not contain any untrue statement of
a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading; and, on the Effective Date, the Final Prospectus, if not filed
pursuant to Rule 424(b), will not, and on the date of any filing pursuant
to Rule 424(b) and on the Closing Date and any settlement date, the Final
Prospectus (together with any supplement thereto) will not, include any
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the Company makes no representations or warranties as to the
information contained in or omitted from the Registration Statement or the
Final Prospectus (or any supplement thereto) in reliance upon and in
conformity with information furnished in writing to the Company by or on
behalf of any Underwriter through the Representatives or any Selling
Stockholder specifically for inclusion in the Registration Statement or
the Final Prospectus (or any supplement thereto), it being understood and
agreed that the only such information is that described in Section 8(c)
and 8(b) hereof, respectively.
(c) Each of the Company and its material subsidiaries listed on
Schedule III hereof (each a "Material Subsidiary" and together the
"Material Subsidiaries") has been duly incorporated and is validly
existing as a corporation in good standing (to the extent applicable)
under the laws of the jurisdiction in which it is chartered or organized
with full corporate power and authority to own or lease, as the case may
be, and to operate its properties and conduct its business as described in
the Final Prospectus, and is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each jurisdiction
which requires such qualification, except where the failure to be so
qualified would not, individually or in the aggregate, have a material
adverse effect on the condition (financial or otherwise), prospects,
results of operations, business or properties of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business (a "Material Adverse Effect"). Schedule III
lists each subsidiary of the Company and the jurisdiction in which it is
chartered or organized. The subsidiaries of the Company which are not
Material Subsidiaries do not individually or, taken together, constitute a
"Significant Subsidiary" of the Company (as defined in Regulation S-X).
(d) All the outstanding shares of capital stock of each Material
Subsidiary have been duly and validly authorized and issued and are fully
paid and
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nonassessable, and, except as otherwise set forth in the Final Prospectus
or on Schedule III, all outstanding shares of capital stock of the
subsidiaries are owned by the Company either directly or through wholly
owned Material Subsidiaries free and clear of any security interests,
claims, liens or encumbrances.
(e) The Company's authorized equity capitalization is as set forth
in the Final Prospectus; the capital stock of the Company conforms in all
material respects to the description thereof contained in the Final
Prospectus; the outstanding shares of Common Stock (including the
Securities) have been duly and validly authorized and issued and are fully
paid and nonassessable; the Securities have been approved for listing on
the New York Stock Exchange and the Lima Stock Exchange; the certificates
for the Securities are in due and proper form; the holders of outstanding
shares of capital stock of the Company are not entitled to preemptive or
other rights to subscribe for the Securities; and, except as set forth in
the Final Prospectus, no options, warrants or other rights to purchase,
agreements or other obligations to issue, or rights to convert any
obligations into or exchange any securities for, shares of capital stock
of or ownership interests in the Company are outstanding.
(f) The statements in the Final Prospectus (exclusive of any
supplement thereto) under the headings "Risk Factors," "Industry,"
"Business," "Related Party Transactions," "Taxation" and "Description of
Capital Stock," or, to the extent not superseded by the Final Prospectus,
in the equivalent portions of the Incorporated Documents insofar as such
statements summarize legal matters, agreements, documents or proceedings,
are accurate and fair summaries of such legal matters, agreements,
documents or proceedings; and there is no franchise, contract or other
document of a character required to be described in the Registration
Statement or Final Prospectus, or to be filed as an exhibit thereto, which
is not described or filed as required.
(g) This Agreement has been duly authorized, executed and delivered
by the Company.
(h) The Company is not and, after giving effect to the offering and
sale of the Securities as described in the Final Prospectus, will not be
an "investment company" as defined in the Investment Company Act of 1940,
as amended.
(i) No consent, approval, authorization, filing, order, registration
or qualification of or with any court or governmental agency or body is
required in connection with the transactions contemplated herein, except
such as have been obtained or made under the Act or the Exchange Act and
such as may be required under the securities laws of any jurisdiction in
connection with the purchase and distribution of the Securities by the
Underwriters in the manner contemplated herein and in the Final
Prospectus.
(j) Neither the execution and delivery of this Agreement nor the
sale of the Securities nor the consummation of any other of the
transactions herein
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contemplated nor the fulfillment of the terms hereof will conflict with,
result in a breach or violation of, constitute a default under, or result
in the imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its subsidiaries, pursuant to, (i) the
charter or by-laws of the Company or any of its subsidiaries, (ii) the
terms of any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation, condition,
covenant or instrument to which the Company or any of its subsidiaries is
a party or bound or to which its or their property is subject, or (iii)
any statute, law, rule, regulation, judgment, order or decree applicable
to the Company or any of its subsidiaries of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority
having jurisdiction over the Company or any of its subsidiaries or any of
its or their properties except, in the case of (ii) above, for such
conflicts, breaches, violations, liens, charges or encumbrances that would
not, individually or in the aggregate, have a Material Adverse Effect.
(k) No holders of securities of the Company have rights to the
registration of such securities under the Registration Statement, other
than the Selling Stockholders in respect of the securities registered
thereunder.
(l) The consolidated financial statements of the Company and its
consolidated subsidiaries incorporated by reference in the Final
Prospectus and the Registration Statement present fairly in all material
respects the financial condition, results of operations and cash flows of
the Company as of the dates and for the periods indicated, comply as to
form with the applicable accounting requirements of the Act and have been
prepared in conformity with United States generally accepted accounting
principles applied on a consistent basis throughout the periods involved
(except as otherwise noted therein). The combined consolidated financial
statements of the Company and its consolidated subsidiaries (including
Minera Mexico, S.A. de C.V. ("Minera Mexico") and its consolidated
subsidiaries) included in the Final Prospectus and the Registration
Statement (the "Combined Financial Statements") present fairly in all
material respects the combined financial condition, results of operations
and cash flows of the Company as of the dates and for the periods
indicated, comply as to form with the applicable accounting requirements
of the Act and have been prepared in conformity with United States
generally accepted accounting principles applied on a consistent basis
throughout the periods involved (except as otherwise noted therein). The
summary and selected combined consolidated financial data as of or for the
years ended December 31, 2000 and 2001 set forth under the captions
"Summary--Summary Combined Financial Information" and "Selected Combined
Financial Information" in the Final Prospectus and the Registration
Statement (i) have been derived from combined consolidated financial
statements of the Company and its consolidated subsidiaries (including
Minera Mexico and its consolidated subsidiaries) that present fairly in
all material respects the combined financial condition, results of
operations and cash flows of the Company as of the dates and for the
periods indicated, (ii) comply as to form with the applicable accounting
requirements of the Act and (iii) have been prepared (x) in conformity
with United States generally accepted accounting principles applied
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on a consistent basis throughout the periods involved (except as otherwise
noted therein) and (y) on a basis which is consistent in all respects with
the basis on which the Combined Financial Statements were prepared.
(m) On the Effective Date, on the Closing Date and on any settlement
date with respect to the Option Securities, all information related to the
Company's ore reserves included in the Registration Statement and the
Final Prospectus (collectively, the "Company Reserve Information") (i)
will be accurate in all material respects and (ii) will comply in all
material respects with the applicable requirements of the Act and the
Exchange Act, as applicable, and the respective rules thereunder. The
Company Reserve Information has been calculated in accordance with
standard mining engineering procedures used in the copper mining industry
and applicable government reporting requirements and applicable law. All
assumptions used in the calculation of the Company Reserve Information
were and are reasonable.
(n) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries or its or their property is pending or,
to the best knowledge of the Company, threatened that (i) could have a
material adverse effect on the ability of the Company to perform under
this Agreement or the consummation of any of the transactions contemplated
hereby or (ii) could have a Material Adverse Effect, except as set forth
in or contemplated in the Final Prospectus (exclusive of any supplement
thereto).
(o) Each of the Company and each of its subsidiaries owns or leases
all such properties as are necessary to the conduct of its operations as
presently conducted.
(p) Neither the Company nor any subsidiary is, or with the giving of
notice or lapse of time or both would be, in violation of or in default
under (i) any provision of its charter or bylaws, (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or
instrument to which it is a party or bound or to which its property is
subject, or (iii) any statute, law, rule, regulation, judgment, order or
decree of any court, regulatory body, administrative agency, governmental
body, arbitrator or other authority having jurisdiction over the Company
or such subsidiary or any of its properties, as applicable, except, in the
case of (ii) and (iii) above, for such violations or defaults that would
not, individually or in the aggregate, have a Material Adverse Effect.
(q) PricewaterhouseCoopers S.C., who have certified certain
financial statements of the Company and its consolidated subsidiaries and
delivered their reports with respect to the audited consolidated financial
statements and the audited combined consolidated financial statements
included in the Final Prospectus, are independent public accountants with
respect to the Company
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within the meaning of the Act and the applicable published rules and
regulations thereunder.
(r) Deloitte & Touche LLP, who have previously certified certain
financial statements of the Company, were at all times during their
engagement by the Company independent public accountants with respect to
the Company within the meaning of the Act and the applicable published
rules and regulations thereunder.
(s) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, who have previously certified certain
financial statements of the Company, were at all times during their
engagement by the Company independent public accountants with respect to
the Company within the meaning of the Act and the applicable published
rules and regulations thereunder.
(t) No stamp or other transfer taxes or duties and no capital gains,
income, stock exchange, value-added, withholding or other taxes are
payable in the United States, Peru, Mexico or any other jurisdiction in
which either the Company or any of its subsidiaries is organized or
engaged in business for tax purposes or, in each case, any political
subdivision thereof or any authority having power to tax, in connection
with the execution or delivery of this Agreement by the Company.
(u) The Company and each of its subsidiaries have filed all foreign,
federal, state and local tax returns that are required to be filed or have
requested extensions thereof (except in any case in which the failure so
to file would not have a Material Adverse Effect, except as set forth in
or contemplated in the Final Prospectus (exclusive of any supplement
thereto)) and has paid all taxes required to be paid by it and any other
assessment, fine or penalty levied against it, to the extent that any of
the foregoing is due and payable, except for any such assessment, fine or
penalty that is currently being contested in good faith or as would not
have a Material Adverse Effect, except as set forth in or contemplated in
the Final Prospectus (exclusive of any supplement thereto).
(v) No labor problem or dispute with the employees of the Company or
any of its subsidiaries exists or, to the knowledge of the Company, is
threatened and the Company is not aware of any existing or, to the
knowledge of the Company, threatened labor disturbance by the employees of
any of its or its subsidiaries' principal suppliers, contractors or
customers, that would have a Material Adverse Effect, except as set forth
in or contemplated in the Final Prospectus (exclusive of any supplement
thereto).
(w) The Company and each of its subsidiaries are insured by insurers
of recognized financial responsibility against such losses and risks and
in such amounts as the Company reasonably believes to be prudent and
customary in the businesses in which they are engaged; all policies of
insurance and fidelity or surety bonds insuring the Company or any of its
subsidiaries or their respective businesses, assets, employees, officers
and directors are in full force and effect;
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and the Company and its subsidiaries are in compliance with the terms of
such policies and instruments in all material respects.
(x) No Material Subsidiary of the Company is currently prohibited,
directly or indirectly, from paying dividends to the Company, from making
any other distribution on such subsidiary's capital stock, from repaying
to the Company any loans or advances to such subsidiary from the Company
or from transferring any of such subsidiary's property or assets to the
Company or any other subsidiary of the Company, except as described in or
contemplated by the Final Prospectus (exclusive of any supplement
thereto).
(y) The Company and its subsidiaries possess all licenses,
concessions, certificates, permits and other authorizations, in each case
that are material to its business or operations, issued by the appropriate
federal, national, state or foreign regulatory authorities necessary to
conduct their respective businesses as currently conducted ("Permits");
the Company and its subsidiaries have fulfilled and performed in all
material respects all of their respective obligations with respect to any
such Permits which are material to its business or operations and neither
the Company nor any such subsidiary has received any notice of proceedings
relating to the revocation or modification of any such Permit which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a Material Adverse Effect, except as set
forth in or contemplated in the Final Prospectus (exclusive of any
supplement thereto).
(z) The Company and each of its subsidiaries maintain and will
maintain a system of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with United States generally accepted accounting principles and
to maintain asset accountability; (iii) access to assets is permitted only
in accordance with management's general or specific authorization; and
(iv) the recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(aa) The Company has not taken, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected
to cause or result in, under the Exchange Act or otherwise, stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities.
(bb) The Company and its subsidiaries are (i) in compliance with any
and all applicable foreign, federal, national, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"); (ii) have received and are in
compliance with all permits, licenses or other approvals required of them
under applicable
9
Environmental Laws to conduct their respective businesses; and (iii) have
not received notice of any actual or potential liability under any
environmental law, except where such non-compliance with Environmental
Laws, failure to receive required permits, licenses or other approvals, or
liability would not, individually or in the aggregate, have a Material
Adverse Effect, except as set forth in or contemplated in the Final
Prospectus (exclusive of any supplement thereto).
(cc) There is and has been no failure on the part of the Company and
any of the Company's directors or officers, in their capacities as such,
to comply in all material respects with any provision of the Sarbanes
Oxley Act of 2002 and the rules and regulations promulgated in connection
therewith (the "Sarbanes Oxley Act"), including Section 402 related to
loans and Sections 302 and 906 related to certifications.
(dd) Neither the Company nor any of its Material Subsidiaries nor,
to the knowledge of the Company, any director, officer, agent, employee or
affiliate of the Company or any of its Material Subsidiaries is aware of
or has taken any action, directly or indirectly, that (i) would result in
a violation by such persons of the Foreign Corrupt Practices Act of 1977,
as amended, and the rules and regulations thereunder (the "FCPA"),
including, without limitation, making use of the mails or any means or
instrumentality of interstate commerce corruptly in furtherance of an
offer, payment, promise to pay or authorization of the payment of any
money, or other property, gift, promise to give, or authorization of the
giving of anything of value to any "foreign official" (as such term is
defined in the FCPA) or any foreign political party or official thereof or
any candidate for foreign political office, in contravention of the FCPA;
and (ii) the Company, its Material Subsidiaries and, to the knowledge of
the Company, its affiliates have conducted their businesses in compliance
in all material respects with the FCPA and have instituted and maintain
policies and procedures designed to ensure in all material respects, and
which are reasonably expected to continue to ensure in all material
respects, continued compliance therewith.
(ee) Neither the Company nor any of its subsidiaries nor any of its
or their properties or assets has any immunity from the jurisdiction of
any court or from any legal process (whether through service or notice,
attachment prior to judgment, attachment in aid of execution or otherwise)
under the laws of Mexico or Peru.
(ff) The acquisition of Minera Mexico by the Company has been
completed in accordance with the terms of the Merger Agreement. The Merger
Agreement has not been amended and none of the terms, conditions or
covenants of the Merger Agreement was waived by any of the parties to such
Agreement on or prior to April 1, 2005.
(gg) The Company has provided to the Representatives true, correct
and complete copies of all documentation pertaining to any extension of
credit in the form of a personal loan made, directly or indirectly, by the
Company or any
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subsidiary to any director or executive officer of the Company, or to any
family member or affiliate of any director or executive officer of the
Company; and on or after July 30, 2002, the Company has not, directly or
indirectly, including through any subsidiary: (i) extended credit,
arranged to extend credit, or renewed any extension of credit, in the form
of a personal loan, to or for any director or executive officer of the
Company, or to or for any family member or affiliate of any director or
executive officer of the Company; or (ii) made any material modification,
including any renewal thereof, to any term of any personal loan to any
director or executive officer of the Company, or any family member or
affiliate of any director or executive officer, which loan was outstanding
on July 30, 2002.
(hh) All of the shares of the Company's Class A common stock ("Class
A Shares") have been converted into an equal number of shares of Common
Stock.
Any certificate signed by any officer of the Company and delivered
to the Representatives or counsel for the Underwriters in connection with the
offering of the Securities shall be deemed a representation and warranty by the
Company, as to matters covered thereby, to each Underwriter.
(ii) Each Selling Stockholder, severally and not jointly, represents
and warrants to, and agrees with, each Underwriter that:
(a) Such Selling Stockholder is the record and beneficial owner of
the Securities to be sold by it hereunder free and clear of all liens,
encumbrances, equities and claims, has duly endorsed such Securities in
blank or accompanied by a blank stock power, has delivered such Securities
to the Bank of New York, the Company's stock transfer agent, and has
instructed such transfer agent to deliver the securities to DTC for credit
to the securities account or accounts of such Underwriter maintained with
DTC on the Closing Date. Upon the crediting of such Securities to the
securities account of such Underwriter maintained with DTC and payment
therefor by such Underwriter, as provided herein, such Underwriter will
have acquired a security entitlement (within the meaning of Section 8-501
of the UCC) to such Securities, and no action based on any adverse claim
may be asserted against such Underwriter with respect to such security
entitlement.
(b) Such Selling Stockholder has not taken, directly or indirectly,
any action designed to or that would constitute or that might reasonably
be expected to cause or result in, under the Exchange Act or otherwise,
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Securities.
(c) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is
required for the consummation by such Selling Stockholder of the
transactions contemplated herein, except such as may have been obtained or
made under the Act and the
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Exchange Act and such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of the
Securities by the Underwriters in the manner contemplated herein and in
the Final Prospectus.
(d) Neither the execution and delivery of this Agreement nor the
sale of the Securities being sold by such Selling Stockholder nor the
consummation of any other of the transactions herein contemplated by such
Selling Stockholder nor the fulfillment of the terms hereof by such
Selling Stockholder will conflict with, result in a breach or violation
of, or constitute a default under (i) any applicable law, statute, rule or
regulation, (ii) the charter, by-laws, certificate of formation or
operating agreement, as applicable, of such Selling Stockholder, (iii) the
terms of any indenture or other agreement or instrument to which such
Selling Stockholder or any of its subsidiaries is a party or bound, or
(iv) any judgment, order or decree applicable to such Selling Stockholder
or any of its subsidiaries of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction over such
Selling Stockholder or any of its subsidiaries, except, in the case of
(iii) and (iv) above, such conflicts, breaches, violations, or defaults
that would not, individually or the aggregate, have a material adverse
effect on the ability of such Selling Stockholder to fulfill its
obligations under, and consummate the transactions contemplated by, this
Agreement.
(e) On the Effective Date, the Registration Statement (solely with
respect to the Selling Stockholder Information (as defined below)
contained therein) did or will, and when the Final Prospectus is first
filed (if required) in accordance with Rule 424(b) and on the Closing Date
(as defined herein) and on any settlement date, the Final Prospectus (and
any supplement thereto) (solely with respect to the Selling Stockholder
Information contained therein) will, comply in all material respects with
the applicable requirements of the Act and the rules thereunder; on the
Effective Date and at the Execution Time, the Registration Statement
(solely with respect to the Selling Stockholder Information contained
therein) did not or will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading; and, on
the Effective Date, the Final Prospectus, if not filed pursuant to Rule
424(b), will not, and on the date of any filing pursuant to Rule 424(b)
and on the Closing Date and any settlement date, the Final Prospectus
(together with any supplement thereto) (solely with respect to the Selling
Stockholder Information contained therein) will not, include any untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; it being understood and agreed
that the only such information furnished by any Selling Stockholder (the
"Selling Stockholder Information") consists of (i) the name of such
Selling Stockholder, (ii) the number of Securities to be offered by such
Selling Stockholder, (iii) the number of shares of common stock
beneficially owned by such Selling Stockholder before the offering and
(iv) the number of shares of common stock beneficially owned by such
Selling Stockholder after the offering, in each case as
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set forth in the table under the caption "Principal and Selling
Stockholders--Selling Stockholders" in any Preliminary Prospectus and the
Final Prospectus.
(f) There are no affiliations or associations between any
Underwriter and such Selling Stockholder; none of the proceeds received by
such Selling Stockholder from the sale of the Securities to be sold by
such Selling Stockholder pursuant to this Agreement will be paid to any
Underwriter or any affiliate of any Underwriter.
(g) This Agreement has been duly authorized, executed and delivered
by such Selling Stockholder.
(h) At the time of purchase and each additional time of purchase,
all stock transfer taxes, if any, that are required to be paid in
connection with the sale and transfer of the Securities to be sold by such
Selling Stockholder to the several Underwriters hereunder shall have been
fully paid or provided for by such Selling Stockholder.
(i) Such Selling Stockholder has not, prior to the execution of this
Agreement, distributed any "prospectus" (within the meaning of the Act) or
offering material in connection with the offering or sale of (i) Class A
Shares or (ii) the Securities other than the Registration Statement and
the then most recent Preliminary Prospectus and will not, at any time on
or after the execution of this Agreement and prior to the completion of
the offering, distribute any "prospectus" (within the meaning of the Act)
or offering material in connection with the offering or sale of the
Securities other than the Registration Statement and the then most recent
Final Prospectus.
Any certificate signed by any officer of any Selling Stockholder and
delivered to the Representatives pursuant to Section 6(i) in connection with the
offering of the Securities shall be deemed a representation and warranty by such
Selling Stockholder, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale. (a) Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Selling
Stockholders agree, severally and not jointly, to sell to each Underwriter, and
each Underwriter agrees, severally and not jointly, to purchase from the Selling
Stockholders, at a purchase price of $40.635 per share, the amount of the
Underwritten Securities set forth opposite such Underwriter's name in Schedule I
hereto.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Selling Stockholders
hereby grant an option to the several Underwriters to purchase, severally
and not jointly, up to 1,573,387 Option Securities at the same purchase
price per share as the Underwriters shall pay for the Underwritten
Securities. Said option may be exercised only to cover over-allotments in
the sale of the Underwritten Securities by the Underwriters. Said option
may be exercised in whole or in part at any time
13
on or before the 30th day after the date of the Final Prospectus upon
written or telegraphic notice by the Representatives to the Selling
Stockholders setting forth the number of shares of the Option Securities
as to which the several Underwriters are exercising the option and the
settlement date. The maximum number of Option Securities that each Selling
Stockholder agrees to sell is set forth in Schedule II hereto. In the
event that the Underwriters exercise less than their full over-allotment
option, the number of Option Securities to be sold by each Selling
Stockholder listed in Schedule II shall be, as nearly as practicable, in
the same proportion as the maximum number of Option Securities to be sold
by each Selling Stockholder and the number of Option Securities to be
sold. The number of Option Securities to be purchased by each Underwriter
shall be the same percentage of the total number of shares of the Option
Securities to be purchased by the several Underwriters as such Underwriter
is purchasing of the Underwritten Securities, subject to such adjustments
as you in your absolute discretion shall make to eliminate any fractional
shares.
3. Delivery and Payment. Delivery of and payment for the
Underwritten Securities and the Option Securities (if the option provided for in
Section 2(b) hereof shall have been exercised on or before the third Business
Day prior to the Closing Date) shall be made at 10:00 AM, New York City time, on
June 15, 2005, or at such time on such later date not more than three Business
Days after the foregoing date as the Representatives shall designate, which date
and time may be postponed by agreement among the Representatives, the Company
and the Selling Stockholders or as provided in Section 9 hereof (such date and
time of delivery and payment for the Securities being herein called the "Closing
Date"). Delivery of the Securities shall be made to the Representatives for the
respective accounts of the several Underwriters against payment by the several
Underwriters through the Representatives of the aggregate purchase price of the
Securities being sold by each of the Selling Stockholders to or upon the order
of such Selling Stockholder by wire transfer payable in same-day funds to an
account specified by such Selling Stockholder. Delivery of the Underwritten
Securities and the Option Securities shall be made through the facilities of The
Depository Trust Company ("DTC").
Each Selling Stockholder will pay all applicable transfer taxes, if
any, involved in the transfer to the several Underwriters of the Securities to
be purchased by them from such Selling Stockholder and the respective
Underwriters will pay any additional stock transfer taxes involved in further
transfers.
If the option provided for in Section 2(b) hereof is exercised after
the third Business Day prior to the Closing Date, the Selling Stockholders will
deliver the Option Securities through the facilities of DTC on the date
specified by the Representatives (which shall be within three Business Days
after exercise of said option) for the respective accounts of the several
Underwriters, against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of each of
the Selling Stockholders by wire transfer payable in same-day funds to an
account specified by such Selling Stockholder. If settlement for the Option
Securities occurs after the Closing Date, the Company and the Selling
Stockholders will deliver to
14
the Representatives on the settlement date for the Option Securities, and the
obligation of the Underwriters to purchase the Option Securities shall be
conditioned upon receipt of, supplemental opinions, certificates and letters
confirming as of such date the opinions, certificates and letters delivered on
the Closing Date pursuant to Section 6 hereof.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Final Prospectus.
5. Agreements.
(i)The Company agrees with the several Underwriters and each Selling
Stockholder that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment
thereof, to become effective under the Act. Prior to the termination of
the offering of the Securities, the Company will not file any amendment of
the Registration Statement or supplement (including the Final Prospectus
or any Preliminary Prospectus) to the Basic Prospectus or any Rule 462(b)
Registration Statement unless the Company has furnished you a copy for
your review prior to filing and will not file any such proposed amendment
or supplement to which you reasonably object. Subject to the foregoing
sentence, if the Registration Statement has become or becomes effective
pursuant to Rule 430A, or filing of the Final Prospectus is otherwise
required under Rule 424(b), the Company will cause the Final Prospectus,
properly completed, and any supplement thereto to be filed in a form
approved by the Representatives with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed and
will provide evidence satisfactory to the Representatives of such timely
filing. The Company will promptly advise the Representatives (1) when the
Registration Statement, if not effective at the Execution Time, shall have
become effective, (2) when the Final Prospectus, and any supplement
thereto, shall have been filed (if required) with the Commission pursuant
to Rule 424(b) or when any Rule 462(b) Registration Statement shall have
been filed with the Commission, (3) when, prior to termination of the
offering of the Securities, any amendment to the Registration Statement
shall have been filed or become effective, (4) of any request by the
Commission or its staff for any amendment of the Registration Statement,
or any Rule 462(b) Registration Statement, or for any supplement to the
Final Prospectus or for any additional information, (5) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or, if known to the Company, the institution or
threatening of any proceeding for that purpose and (6) of the receipt by
the Company of any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or the
institution or threatening of any proceeding for such purpose. The Company
will use its reasonable best efforts to prevent the issuance of any such
stop order or the suspension of any such qualification and, if issued, to
obtain as soon as possible the withdrawal thereof.
15
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Final Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under
which they were made not misleading, or if it shall be necessary to amend
the Registration Statement or supplement the Final Prospectus to comply
with the Act or the Exchange Act or the respective rules thereunder, the
Company promptly will (1) notify the Representatives of such event, (2)
prepare and file with the Commission, subject to the second sentence of
paragraph (i)(a) of this Section 5, an amendment or supplement which will
correct such statement or omission or effect such compliance and (3)
supply any supplemented Final Prospectus to you in such quantities as you
may reasonably request.
(c) As soon as practicable, the Company will make generally
available to its securityholders and to the Representatives an earnings
statement or statements of the Company and its subsidiaries which will
satisfy the provisions of Section 11(a) of the Act and Rule 158 under the
Act.
(d) The Company will furnish to the Representatives and counsel for
the Underwriters, without charge, signed copies of the Registration
Statement (including exhibits thereto) and to each other Underwriter a
copy of the Registration Statement (without exhibits thereto) and, so long
as delivery of a prospectus by an Underwriter or dealer may be required by
the Act, as many copies of each Preliminary Prospectus and the Final
Prospectus and any supplement thereto as the Representatives may
reasonably request.
(e) The Company will arrange, if necessary, for the qualification of
the Securities for sale under the laws of such jurisdictions as the
Representatives may designate and will maintain such qualifications in
effect so long as required for the distribution of the Securities;
provided that in no event shall the Company be obligated to qualify to do
business in any jurisdiction where it is not now so qualified or to take
any action that would subject it to taxation or to service of process in
suits, other than those arising out of the offering or sale of the
Securities, in any jurisdiction where it is not now so subject.
(f) The Company will not, without the prior written consent of the
Representatives, offer, sell, contract to sell, pledge, or otherwise
dispose of (or enter into any transaction which is designed to, or might
reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by the Company or any affiliate of the Company or any person in
privity with the Company or any affiliate of the Company), except as
provided hereunder, directly or indirectly, including the filing (or
participation in the filing) of a registration statement with the
Commission in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within the
meaning of Section 16 of the Exchange Act, any other shares of Common
Stock or any securities
16
convertible into, or exercisable, or exchangeable for, shares of Common
Stock, or publicly announce an intention to effect any such transaction,
for a period of 90 days after the date of the Underwriting Agreement,
provided, however, that the Company may issue and sell Common Stock (i)
pursuant to registrations on Form S-4 in connection with acquisitions,
mergers, or business combinations, provided that each recipient of such
Common Stock shall have executed a letter substantially in the form of
Exhibit A hereto in conjunction with such issuance or sale, or (ii) in
connection with any employee benefit, stock option plan, stock ownership
plan or dividend reinvestment plan of the Company in effect at the
Execution Time and the Company may issue Common Stock issuable upon the
conversion of securities or the exercise of options, warrants or similar
rights outstanding at the Execution Time.
(g) The Company will not take, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected
to cause or result in, under the Exchange Act or otherwise, stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities.
(h) The Company will pay all costs, expenses, fees and taxes in
connection with the performance of its obligations hereunder to the extent
the Selling Stockholders are not obligated to pay such costs, expenses,
fees and taxes pursuant to paragraph (ii)(c) of this Section 5 or pursuant
to Section 2(b) of the Registration Rights Agreement.
(ii) Each Selling Stockholder agrees with the several Underwriters
that:
(a) Such Selling Stockholder will not take, directly or indirectly,
any action designed to or that would constitute or that might reasonably
be expected to cause or result in, under the Exchange Act or otherwise,
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Securities.
(b) Such Selling Stockholder will advise you promptly, and if
requested by you, will confirm such advice in writing, so long as delivery
of a prospectus relating to the Securities by an underwriter or dealer may
be required under the Act, of any change in information in the
Registration Statement or the Final Prospectus relating to such Selling
Stockholder.
(c) As between the Selling Stockholders and the Underwriters, the
Selling Stockholders severally agree to pay, in the manner set forth in
Section 2(b) of the Registration Rights Agreement, all costs, expenses,
fees and taxes, other than legal fees and disbursements of counsel to the
Underwriters (except as expressly provided in clauses (iv) and (vi) of
this paragraph (c) or otherwise expressly set forth in this Agreement), in
connection with (i) the preparation and filing of the Registration
Statement, each Preliminary Prospectus, the Final Prospectus and any
amendments or supplements thereto, and the printing and furnishing of
copies of each thereof to the Underwriters and to dealers (including costs
of mailing and
17
shipment), (ii) the registration, sale and delivery of the Securities
including any stock or transfer taxes and stamp or similar duties payable
upon the sale, issuance or delivery of the Securities to the Underwriters,
(iii) the producing, word processing and/or printing of any Agreement
Among Underwriters, any dealer agreements and the reproduction and/or
printing and furnishing of copies of each thereof to the Underwriters and
(except closing documents) to dealers (including costs of mailing and
shipment), (iv) the qualification of the Securities for offering and sale
under state or foreign laws and the determination of their eligibility for
investment under state or foreign law as aforesaid (including the legal
fees and filing fees and other disbursements of counsel for the
Underwriters) and the printing and furnishing of copies of any blue sky
surveys or legal investment surveys to the Underwriters and to dealers,
(v) any listing of the Securities on any securities exchange or
qualification of the Securities for quotation on the New York Stock
Exchange or the Lima Stock Exchange and any registration thereof under the
Exchange Act or applicable Peruvian law or regulation, (vi) any filing for
review of the public offering of the Securities by the NASD, including
filing fees and the reasonably incurred legal fees and disbursements of
one counsel to the Underwriters relating to NASD matters, (vii) the fees
and disbursements of any transfer agent or registrar for the Securities in
connection with the delivery of the Securities to the Underwriters, and
any fees or expenses payable to DTC or any similar system in Peru, (viii)
the costs and expenses of the Company, the Underwriters and each Selling
Stockholder relating to presentations or meetings undertaken in connection
with the marketing of the offering and sale of the Securities to
prospective investors and the Underwriters' sales forces, including,
without limitation, expenses associated with the production of road show
slides and graphics, fees and expenses of any consultants engaged in
connection with the road show presentations, travel, lodging and other
expenses incurred by the officers of the Company, by the Underwriters or
by any Selling Stockholder and any such consultants, and the cost of any
aircraft chartered in connection with the road show, and (ix) the
performance of each Selling Stockholder's other obligations hereunder;
provided that the foregoing shall not include (i) salaries of Company
personnel or general overhead expenses of the Company, (ii) auditing fees
or (iii) other expenses (A) for the preparation of regular periodic
financial statements or other data normally prepared by the Company in the
ordinary course of its business or (B) which the Company would have
incurred in any event. Except as otherwise expressly set forth in this
Agreement, the Underwriters shall be solely responsible for the fees and
disbursements of their counsel.
(iii) Notwithstanding anything to the contrary in this Agreement,
the Selling Stockholders severally agree to pay or reimburse the Company, in the
manner set forth in Section 2(b) of the Registration Rights Agreement (but
without duplication of any payment made pursuant to paragraph (ii)(above), all
Registration Expenses (as defined in the Registration Rights Agreement).
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Underwritten Securities and the
Option Securities, as the case may be, shall be subject to the accuracy of the
representations and warranties on
18
the part of the Company and the Selling Stockholders contained herein as of the
Execution Time, the Closing Date and any settlement date pursuant to Section 3
hereof, to the accuracy of the statements of the Company and the Selling
Stockholders made in any certificates pursuant to the provisions hereof, to the
performance by the Company and the Selling Stockholders of their respective
obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Representatives agree in writing to a later
time, the Registration Statement will become effective not later than 9:30
AM on the Business Day following the day on which the public offering
price was determined; if filing of the Final Prospectus, or any supplement
thereto, is required pursuant to Rule 424(b), the Final Prospectus, and
any such supplement, will be filed in the manner and within the time
period required by Rule 424(b); and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Milbank, Tweed,
▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP U.S. counsel for the Company, to have furnished to the
Representatives their opinions, dated the Closing Date and addressed to
the Representatives, in the forms set forth on Annex A hereto.
(c) The Company shall have requested and caused Payet, Rey, Cauvi
Abogados, Peruvian counsel for the Company, to have furnished to the
Representatives their opinion, dated the Closing Date and addressed to the
Representatives, in the form set forth on Annex B hereto.
(d) The Company shall have requested and caused Lic. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
G., General Counsel of the Company, to have furnished to the
Representatives his opinion, dated the Closing Date and addressed to the
Representatives, in the form set forth on Annex C hereto.
(e) Cerro Trading Company, Inc. and SPC Investors, L.L.C. shall have
requested and caused Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇.
▇▇▇▇▇, Esq., and ▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq., to have furnished to the
Representatives their opinions, dated the Closing Date and addressed to
the Representatives, in the forms set forth on Annexes ▇-▇, ▇-▇ and D-3
hereto.
(f) The ▇▇▇▇▇▇ Dodge Entities shall have requested and caused
Debevoise & ▇▇▇▇▇▇▇▇ LLP, Loyens & Loeff N.V. and ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Esq., to have furnished to the Representatives their opinions, dated the
Closing Date and addressed to the Representatives, in the forms set forth
on Annexes E-1, E-2 and E-3 hereto.
(g) The Representatives shall have received from (i) Cravath, Swaine
& ▇▇▇▇▇ LLP, New York counsel for the Underwriters, (ii) Estudio ▇▇▇▇
Echecopar
19
▇▇▇▇▇▇, Peruvian counsel for the Underwriters, and (iii) ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇, S.C., Mexican counsel for the Underwriters, such opinions, dated
the Closing Date and addressed to the Representatives, with respect to the
issuance and sale of the Securities, the Registration Statement, the Final
Prospectus (together with any supplement thereto) and other related
matters as the Representatives may reasonably require, and the Company and
each Selling Stockholder shall have furnished to such counsel such
documents as they reasonably request for the purpose of enabling them to
pass upon such matters.
(h) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the
Company, dated the Closing Date, to the effect that the signers of such
certificate have examined the Registration Statement, the Final
Prospectus, any supplements to the Final Prospectus and this Agreement and
that:
(i) the representations and warranties of the Company in this
Agreement are true and correct on and as of the Closing Date with
the same effect as if made on the Closing Date and the Company has
complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the Closing
Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the signers' knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included or incorporated by reference in the Final Prospectus
(exclusive of any supplement thereto), there has been no material
adverse effect on the condition (financial or otherwise), prospects,
results of operations, business or properties of the Company and its
subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business, except as set forth in or
contemplated in the Final Prospectus (exclusive of any supplement
thereto).
(i) Each Selling Stockholder shall have furnished to the
Representatives a certificate, signed on its behalf by an officer,
director or member, dated the Closing Date, to the effect that the signer
of such certificate has examined the Selling Stockholder Information
included in the Registration Statement, the Final Prospectus, any
supplement to the Final Prospectus and this Agreement and that the
representations and warranties of such Selling Stockholder in this
Agreement are true and correct in all material respects on and as of the
Closing Date to the same effect as if made on the Closing Date.
(j) The Company shall have requested and caused
PricewaterhouseCoopers S.C. to have furnished to the Representatives, at
the Execution Time and at the Closing Date, letters, dated respectively as
of the
20
Execution Time and as of the Closing Date, in form and substance
satisfactory to the Representatives, confirming that they are independent
accountants within the meaning of the Act and the applicable rules and
regulations thereunder adopted by the Commission and the Public Company
Accounting Oversight Board (United States) (PCAOB), and stating in effect
that:
(i) in their opinion the audited combined consolidated
financial statements and financial statement schedules included or
incorporated by reference in the Registration Statement and the
Final Prospectus and reported on by them comply as to form in all
material respects with the applicable accounting requirements of the
Act and the Exchange Act and the related rules and regulations
adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited
financial statements made available by the Company and its
subsidiaries; carrying out certain specified procedures (but not an
examination in accordance with generally accepted auditing
standards) which would not necessarily reveal matters of
significance with respect to the comments set forth in such letter;
a reading of the minutes of the meetings of the stockholders,
directors and the executive, compensation and audit committees of
the Company and its subsidiaries; and inquiries of certain officials
of the Company who have responsibility for financial and accounting
matters regarding the specific items for which representations are
requested below nothing came to their attention which caused them to
believe that:
(1) with respect to the period subsequent to March 31,
2005, there was any change, at a specified date not more than
five days prior to the date of the letter, in the long-term
debt, or decrease in total assets or stockholders' equity of
the combined company as compared with the amounts shown on the
March 31, 2005, unaudited balance sheet included or
incorporated by reference in the Registration Statement and
the Final Prospectus, or for the period from April 1, 2005, to
such specified date there were any decreases, as compared with
the corresponding period in the preceding year, in
consolidated total net sales, net earnings, operating income,
or basic and diluted net earnings per share, except in all
instances for changes or decreases set forth in such letter,
in which case the letter shall be accompanied by an
explanation by the Company as to the significance thereof
unless said explanation is not deemed necessary by the
Representatives; and
(2) the unaudited income statement for the three-month
periods ended March 31, 2005 and 2004 and balance sheet data
as of March 31, 2005 and 2004 included in the Final Prospectus
under the heading "Recent Developments" do not agree with the
amounts set forth in the unaudited financial statements for
the same periods
21
or were not determined on a basis substantially consistent
with that of the corresponding amounts in the audited
financial statements included or incorporated by reference in
the Registration Statement and the Final Prospectus; and
(iii) they have performed certain other specified procedures,
requested by the Representatives, as a result of which they
determined that certain information of an accounting, financial or
statistical nature (which is limited to accounting, financial or
statistical information derived from the general accounting records
of the Company and its subsidiaries) set forth in the Registration
Statement and the Final Prospectus that has previously been
identified to you agrees with the accounting records of the Company
and its subsidiaries, excluding any questions of legal
interpretation.
References to the Final Prospectus in this paragraph (j) include any
supplement thereto at the date of the letter.
(k) The Company shall have requested and caused Deloitte & Touche
LLP to have furnished to the Representatives, at the Execution Time and at
the Closing Date, letters, dated respectively as of the Execution Time and
as of the Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants within
the meaning of the Act and the Exchange Act and the respective applicable
rules and regulations adopted by the Commission thereunder, and stating in
effect that:
(i) in their opinion the audited consolidated financial
statements and financial statement schedules included or
incorporated by reference in the Registration Statement and the
Final Prospectus and reported on by them comply as to form in all
material respects with the applicable accounting requirements of the
Act and the Exchange Act and the related rules and regulations
adopted by the Commission;
(ii) they have performed certain other specified procedures,
requested by the Representatives, as a result of which they
determined that certain information of an accounting, financial or
statistical nature (which is limited to accounting, financial or
statistical information derived from the general accounting records
of the Company and its subsidiaries) set forth in the Registration
Statement and the Final Prospectus that has previously been
identified to you agrees with the accounting records of the Company
and its subsidiaries, excluding any questions of legal
interpretation.
References to the Final Prospectus in this paragraph (k) include any
supplement thereto at the date of the letter.
22
(l) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified
in the letter or letters referred to in paragraphs (j) or (k) of this
Section 6 or (ii) any change, or any development involving a prospective
change, in or affecting the condition (financial or otherwise), prospects,
results of operations, business or properties of the Company and its
subsidiaries, considered as one enterprise, whether or not arising in the
ordinary course of business, except as set forth in or contemplated in the
Final Prospectus (exclusive of any supplement thereto) the effect of
which, in any case referred to in clause (i) or (ii) above, is, in the
sole judgment of the Representatives, so material and adverse as to make
it impractical or inadvisable to proceed with the offering or delivery of
the Securities as contemplated by the Registration Statement (exclusive of
any amendment thereof) and the Final Prospectus (exclusive of any
supplement thereto).
(m) Prior to the Closing Date, the Company and the Selling
Stockholders shall have furnished to the Representatives such further
information, certificates and documents as the Representatives may
reasonably request.
(n) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or any notice given of any intended
or potential decrease in any such rating or of a possible change in any
such rating that does not indicate the direction of the possible change.
(o) At the Execution Time, the Company shall have furnished to the
Representatives a letter substantially in the form of Exhibit A hereto
from each stockholder and individual listed in Schedule IV hereto,
addressed to the Representatives.
(p) At the Execution Time, each Selling Stockholder shall have
furnished to the Representatives a letter substantially in the form of
Exhibit B hereto, addressed to the Representatives.
(q) The NASD shall not have raised any objection with respect to the
fairness or reasonableness of the underwriting, or other arrangements of
the transactions, contemplated hereby.
If any of the conditions specified in this Section 6 shall not have
been fulfilled when and as provided in this Agreement, or if any of the opinions
and certificates mentioned above or elsewhere in this Agreement shall not be
reasonably satisfactory in form and substance to the Representatives and counsel
for the Underwriters, this Agreement and all obligations of the Underwriters
hereunder may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of
23
such cancellation shall be given to the Company and each Selling Stockholder in
writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for the
Underwriters, at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the Closing
Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of the Company or any Selling
Stockholder to perform any agreement herein or comply with any provision hereof
other than by reason of a default by any of the Underwriters, the Selling
Stockholders will, in the manner set forth in Section 2(b) of the Registration
Rights Agreement, reimburse the Underwriters severally through Citigroup Global
Markets Inc. on demand for all out-of-pocket expenses (including fees and
disbursements of counsel reasonably incurred) that shall have been incurred by
them in connection with the proposed purchase and sale of the Securities;
provided that if the principal cause of such failure to consummate the sale of
the Securities provided for herein is the Company's failure to use reasonable
best efforts to fulfill its obligations under the Registration Rights Agreement,
the Company shall reimburse the Underwriters severally through Citigroup Global
Markets Inc. on demand for all out-of-pocket expenses (including reasonable fees
and disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter, each Selling Stockholder, the
directors, officers, employees and agents of each Underwriter and Selling
Stockholder and each person who controls any Underwriter or Selling Stockholder
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the registration of
the Securities as originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Prospectus or the Final Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein (in the case of the
Final Prospectus, in the light of the circumstances under which they were made)
not misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the
24
Company by or on behalf of any Underwriter through the Representatives or any
Selling Stockholder specifically for inclusion therein, it being understood and
agreed that the only such information is that described in Section 8(c) and 8(b)
hereof, respectively; provided, further, that with respect to any untrue
statement or omission of material fact made in any Preliminary Prospectus, the
indemnity agreement contained in this Section 8(a) shall not inure to the
benefit of any Underwriter from whom the person asserting any such loss, claim,
damage or liability purchased the securities concerned, to the extent that any
such loss, claim, damage or liability of such Underwriter occurs under the
circumstance where it shall have been determined by a court of competent
jurisdiction by final and nonappealable judgment that (A) the Company had
previously furnished copies of the Final Prospectus to the Representatives, (B)
delivery of the Final Prospectus was required by the Act to be made to such
person, (C) the untrue statement or omission of a material fact contained in the
Preliminary Prospectus was corrected in the Final Prospectus and (D) there was
not sent or given to such person, at or prior to the written confirmation of the
sale of such securities to such person, a copy of the Final Prospectus. This
indemnity agreement will be in addition to any liability which the Company may
otherwise have.
(b) Each Selling Stockholder, severally and not jointly, agrees to
indemnify and hold harmless the Company, each of its directors, each of
its officers who signs the Registration Statement, each Underwriter, the
directors, officers, employees and agents of each Underwriter and each
person who controls the Company or any Underwriter within the meaning of
either the Act or the Exchange Act and each other Selling Stockholder, if
any, to the same extent as the foregoing indemnity from the Company to
each Underwriter, but only with reference to the Selling Stockholder
Information. This indemnity agreement will be in addition to any liability
which any Selling Stockholder may otherwise have.
(c) Each Underwriter severally and not jointly agrees to indemnify
and hold harmless the Company and each Selling Stockholder, each of their
respective directors, each of its officers who signs the Registration
Statement, and each person who controls the Company and each Selling
Stockholder within the meaning of either the Act or the Exchange Act, to
the same extent as the foregoing indemnity to each Underwriter, but only
with reference to written information relating to such Underwriter
furnished to the Company by or on behalf of such Underwriter through the
Representatives specifically for inclusion in the documents referred to in
the foregoing indemnity. This indemnity agreement will be in addition to
any liability which any Underwriter may otherwise have. The Company and
each Selling Stockholder acknowledge that the statements set forth in the
last paragraph of the cover page regarding delivery of the Securities and,
under the heading "Underwriting" in any Preliminary Prospectus and the
Final Prospectus, (i) the sentences related to concessions and
reallowances; and (ii) the paragraphs related to stabilization, syndicate
covering transactions and penalty bids, constitute the only information
furnished in writing by or on behalf of the several Underwriters for
inclusion in any Preliminary Prospectus or the Final Prospectus.
25
(d) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the commencement thereof; but the failure so to notify the
indemnifying party (i) will not relieve it from liability under paragraph
(a), (b) or (c) above unless and to the extent it did not otherwise learn
of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not,
in any event, relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligation provided in
paragraph (a), (b) or (c) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate
counsel retained by the indemnified party or parties except as set forth
below); provided, however, that such counsel shall be reasonably
satisfactory to the indemnified party. Notwithstanding the indemnifying
party's election to appoint counsel to represent the indemnified party in
an action, the indemnified party shall have the right to employ separate
counsel (including local counsel), and the indemnifying party shall bear
the reasonably incurred fees, costs and expenses of such separate counsel
if (i) the use of counsel chosen by the indemnifying party to represent
the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any
such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that there may
be legal defenses available to it and/or other indemnified parties which
are different from or additional to those available to the indemnifying
party, (iii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution
of such action or (iv) the indemnifying party shall authorize the
indemnified party to employ separate counsel at the expense of the
indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or
threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not
the indemnified parties are actual or potential parties to such claim or
action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding and does not include an
admission of fault or culpability or a failure to act by or on behalf of
such indemnified party.
(e) In the event that the indemnity provided in paragraph (a), (b)
or (c) of this Section 8 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, the Company, the Selling
Stockholders and the Underwriters agree to contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with
26
investigating or defending same) (collectively "Losses") to which the
Company, one or more of the Selling Stockholders and one or more of the
Underwriters may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Company, by the Selling
Stockholders and by the Underwriters from the offering of the Securities;
provided, however, that in no case shall any Underwriter (except as may be
provided in any agreement among underwriters relating to the offering of
the Securities) be responsible for any amount in excess of the
underwriting discount or commission applicable to the Securities purchased
by such Underwriter hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Company,
the Selling Stockholders and the Underwriters shall contribute in such
proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company, of the Selling Stockholders
and of the Underwriters in connection with the statements or omissions
which resulted in such Losses as well as any other relevant equitable
considerations. The relative benefits received by the Company and the
Selling Stockholders on the one hand and the Underwriters on the other
shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the Company and
the Selling Stockholders bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth on the
cover page of the Final Prospectus. Relative fault shall be determined by
reference to, among other things, whether any untrue or any alleged untrue
statement of a material fact or the omission or alleged omission to state
a material fact relates to information provided by the Company, the
Selling Stockholders on the one hand or the Underwriters on the other, the
intent of the parties and their relative knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission.
The Company, the Selling Stockholders and the Underwriters agree that it
would not be just and equitable if contribution were determined by pro
rata allocation or any other method of allocation which does not take
account of the equitable considerations referred to above. Notwithstanding
the provisions of this paragraph (e), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person
who controls an Underwriter within the meaning of either the Act or the
Exchange Act and each director, officer, employee and agent of an
Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning
of either the Act or the Exchange Act, each officer of the Company who
shall have signed the Registration Statement and each director of the
Company shall have the same rights to contribution as the Company, subject
in each case to the applicable terms and conditions of this paragraph (e).
(f) The liability of each Selling Stockholder under such Selling
Stockholder's representations and warranties contained in Section 1 hereof
and under the indemnity and contribution agreements contained in this
Section 8 shall be limited to an amount equal to the initial public
offering price of the Securities sold by such Selling Stockholder to the
Underwriters.
27
9. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule I hereto bears to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Securities set forth in
Schedule I hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Securities,
and if such non-defaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any non-defaulting Underwriter,
the Selling Stockholders or the Company. In the event of a default by any
Underwriter as set forth in this Section 9, the Closing Date shall be postponed
for such period, not exceeding five Business Days, as the Representatives shall
determine in order that the required changes in the Registration Statement and
the Final Prospectus or in any other documents or arrangements may be effected.
Nothing contained in this Agreement shall relieve any defaulting Underwriter of
its liability, if any, to the Company, the Selling Stockholders and any
non-defaulting Underwriter for damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Representatives, by notice given to the Company
and the Selling Stockholders prior to delivery of and payment for the
Securities, if at any time prior to such time (i) trading in the Company's
Common Stock shall have been suspended by the Commission, the New York Stock
Exchange or the Lima Stock Exchange, or trading in securities generally on the
New York Stock Exchange or the Lima Stock Exchange shall have been suspended or
limited or minimum prices shall have been established on either of such
Exchanges, (ii) a banking moratorium shall have been declared either by Federal,
New York State, Mexican or Peruvian authorities or (iii) there shall have
occurred any outbreak or escalation of hostilities, act of terrorism,
declaration by the United States, Mexico or Peru of a national emergency or war,
or other calamity or crisis the effect of which on financial markets is such as
to make it, in the sole judgment of the Representatives, impractical or
inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Final Prospectus (exclusive of any supplement thereto).
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers, of each Selling Stockholder and of the Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of any Underwriter,
any Selling Stockholder or the Company or any of the officers, directors,
employees, agents or controlling persons referred to in Section 8 hereof, and
will survive delivery of and payment for the
28
Securities. The provisions of Sections 7 and 8 hereof shall survive the
termination or cancelation of this Agreement.
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed to (i) the Citigroup Global Markets Inc. General Counsel
(fax no.: (▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to the General Counsel, Citigroup Global
Markets Inc., at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention:
General Counsel, and (ii) the UBS Securities LLC General Counsel (fax no.: (212)
▇▇▇-▇▇▇▇) and confirmed to the General Counsel, UBS Securities LLC, at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention: General Counsel; or, if sent to
the Company, will be mailed, delivered or telefaxed to Southern Peru Copper
Corporation (fax no.:▇▇ (▇▇) ▇▇▇▇-▇▇▇▇) and confirmed to Southern Peru Copper
Corporation, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: General
Counsel; or if sent to any Selling Stockholder, will be mailed, delivered or
telefaxed and confirmed to it at the address set forth in Schedule II hereto.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
14. Applicable Law. This Agreement and any claim, counterclaim or
dispute of any kind or nature whatsoever arising out of or in any way relating
to this Agreement ("Claim"), directly or indirectly, will be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
15. Submission to Jurisdiction. Except as set forth below, no Claim
may be commenced, prosecuted or continued in any court other than the courts of
the State of New York located in the City and County of New York or in the
United States District Court for the Southern District of New York, which courts
shall have jurisdiction over the adjudication of such matters, and the Company
and the Selling Stockholders each consent to the jurisdiction of such courts and
personal service with respect thereto. The Company and the Selling Stockholders
each hereby consent to personal jurisdiction, service and venue in any court in
which any Claim arising out of or in any way relating to this Agreement is
brought by any third party against any Underwriter or any indemnified party.
Each Underwriter, the Company (on its behalf and, to the extent permitted by
applicable law, on behalf of its stockholders and affiliates) and each of the
Selling Stockholders (on its behalf and, to the extent permitted by applicable
law, on behalf of its stockholders and affiliates) waive all right to trial by
jury in any action, proceeding or counterclaim (whether based upon contract,
tort or otherwise) in any way arising out of or relating to this Agreement. Each
Underwriter, the Company and the Selling Stockholders each agree that a final
judgment in any such action, proceeding or counterclaim brought in any such
court shall be conclusive and binding upon each Underwriter, the Company and the
Selling Stockholders and may be enforced in any other courts to the jurisdiction
of which any Underwriter, the Company or any Selling Stockholder is or may be
subject, by suit upon such judgment.
29
16. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
17. Headings. The section headings used herein are for convenience
only and shall not affect the construction hereof.
18. Miscellaneous. UBS Securities LLC ("UBS"), an indirect, wholly
owned subsidiary of UBS AG, is not a bank and is separate from any affiliated
bank, including any U.S. branch or agency of UBS AG. Because UBS is a separately
incorporated entity, it is solely responsible for its own contractual
obligations and commitments, including obligations with respect to sales and
purchases of securities. Securities sold, offered or recommended by UBS are not
deposits, are not insured by the Federal Deposit Insurance Corporation, are not
guaranteed by a branch or agency, and are not otherwise an obligation or
responsibility of a branch or agency.
19. Definitions. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Basic Prospectus" shall mean the prospectus referred to in
paragraph 1(i)(a) above contained in the Registration Statement at the
Effective Date including any Preliminary Prospectus.
"Business Day" shall mean any day other than a Saturday, a Sunday or
a legal holiday or a day on which banking institutions or trust companies
are authorized or obligated by law to close in New York City or Mexico
City, DF.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement relating to
the Securities that was first filed pursuant to Rule 424(b) after the
Execution Time, together with the Basic Prospectus.
30
"Merger Agreement" shall mean the merger agreement dated October 21,
2004 by and among the Company, SPCC Merger Sub, Inc., Americas Sales
Company, Inc., Americas Mining Corporation and Minera Mexico.
"▇▇▇▇▇▇ Dodge Entities" shall mean Climax Molybdenum B.V. and ▇▇▇▇▇▇
Dodge Overseas Capital Corporation.
"Preliminary Prospectus" shall mean any preliminary prospectus
supplement to the Basic Prospectus which describes the Securities and the
offering thereof and is used prior to filing of the Final Prospectus,
together with the Basic Prospectus.
"Registration Rights Agreement" shall mean the registration rights
agreement dated as of March 21, 2005 by and between Cerro Trading Company,
Inc., SPC Investors, L.L.C., ▇▇▇▇▇▇ Dodge Corporation, the ▇▇▇▇▇▇ Dodge
Entities, the Company and Americas Mining Corporation.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(i)(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in
the event any post-effective amendment thereto or any Rule 462(b)
Registration Statement becomes effective prior to the Closing Date, shall
also mean such registration statement as so amended or such Rule 462(b)
Registration Statement, as the case may be. Such term shall include any
Rule 430A Information deemed to be included therein at the Effective Date
as provided by Rule 430A.
"Rule 415", "Rule 424", "Rule 430A" and "Rule 462" refer to such
rules under the Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement referred to
in Section 1(i)(a) hereof.
31
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company, the Selling Stockholders and the several Underwriters.
Very truly yours,
SOUTHERN PERU COPPER CORPORATION,
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
Name:
Title:
CERRO TRADING COMPANY, INC.,
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Secretary and General Counsel
SPC INVESTORS, L.L.C.,
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: President
32
▇▇▇▇▇▇ DODGE OVERSEAS CAPITAL CORPORATION,
By /s/ S. ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------
Name: S. ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President & Gen. Counsel
CLIMAX MOLYBDENUM B.V.,
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Director
33
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
Citigroup Global Markets Inc.
UBS Securities LLC
By: Citigroup Global Markets Inc.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
--------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
By: UBS Securities LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Director
For themselves and the other several Underwriters named in Schedule I to the
foregoing Agreement
SCHEDULE I
NUMBER OF UNDERWRITTEN
UNDERWRITERS SECURITIES TO BE PURCHASED
------------ --------------------------
Citigroup Global Markets Inc. .................................... 8,915,861
UBS Securities LLC ............................................... 8,915,861
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated................ 1,048,925
Scotia Capital Inc. .............................................. 1,048,925
BNP Paribas Securities Corp. ..................................... 1,048,925
----------
Total................................................ 20,978,497
==========
SCHEDULE II
NUMBER OF MAXIMUM NUMBER OF
UNDERWRITTEN OPTION SECURITIES
SELLING STOCKHOLDERS: SECURITIES TO BE SOLD TO BE SOLD
--------------------- --------------------- -----------------
Cerro Trading Company, Inc. 8,835,431 662,657
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
email: ▇▇▇▇▇▇.▇▇▇▇@▇▇▇▇▇▇.▇▇▇
SPC Investors, L.L.C. 1,748,837 131,163
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
email: ▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
▇▇▇▇▇▇ Dodge Overseas Capital Corporation 8,338,415 625,381
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
email: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Climax Molybdenum B.V. 2,055,814 154,186
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
email: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
---------- ---------
Total....................... 20,978,497 1,573,387
========== =========
SCHEDULE III
MATERIAL SUBSIDIARIES
PERCENT OWNED BY
SUBSIDIARY JURISDICTION THE COMPANY
---------- ------------ ----------------
Industrial Minera Mexico, S.A. de C.V. Mexico 99.99%
Mexicana de Cananea, S.A. de C.V. Mexico 99.99%
Mexicana de Cobre, S.A. de C.V. Mexico 99.97%
Minerales y Minas Mexicanas, S.A. de C.V. Mexico 100%
Minera Mexico, S.A. de C.V. Mexico 99.14%
Minerales Metalicos del Norte, S.A. Mexico 100%
Southern Peru Limited Delaware 100%
OTHER SUBSIDIARIES
PERCENT OWNED BY
SUBSIDIARY JURISDICTION THE COMPANY
---------- ------------ ----------------
Americas Mining de Mexico, S.A. de C.V. Mexico 100%
Compania de Terrenos e Inversiones de S.L.P., S.C. por A.S.A. Mexico 100%
Compania Minera Los Tolmos, S.A. Peru 100%
Hospital del ▇▇▇▇▇▇▇▇▇, S. de ▇.▇. de C.V. Mexico 100%
Mexicana del Arco, S.A. de C.V. Mexico 100%
Mexico Compania Inmobiliaria, S.A. Mexico 100%
Minera Cumobabi, S.A. de C.V. Mexico 100%
Minera Mexico Internacional, Inc. New York 100%
Minera Pilares, S.A. de C.V. Mexico 51%
Preparacion de Terrenos para Labranza, S.C. Mexico 100%
Proyecciones Urbanisticas, S. de ▇.▇. de C.V. Mexico 100%
Servicios de Apoyo Administrativo, S.A. de C.V. Mexico 100%
Taller Escuela de Plateria de Sombrerete, S.A. Mexico 98%
Western Copper Supplies Arizona 100%
Logistics Services Incorporated Delaware 100%
Global Natural Resources, Inc. Delaware 100%
Multimines Corporation Delaware 100%
Multimines Insurance Company, Ltd. ▇▇▇▇▇▇▇ ▇▇▇%
▇▇▇▇▇▇▇▇ ▇▇▇▇ Copper Corporation, Agencia Chile Chile 100%
SCHEDULE IV
5% STOCKHOLDERS
Americas Mining Corporation
SPHC II Incorporated
EXECUTIVE OFFICERS AND DIRECTORS
German ▇▇▇▇▇▇ ▇▇▇▇-▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ Muhech Dip
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ Vinageras ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Fano
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Gout
▇▇▇▇▇▇ ▇▇▇▇ Sancristan
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
EXHIBIT A
[LETTERHEAD OF OFFICER, DIRECTOR OR MAJOR STOCKHOLDER OF THE COMPANY]
Southern Peru Copper Corporation
Public Offering of Common Stock
[-], 2005
Citigroup Global Markets Inc.
UBS Securities LLC
As Representatives of the several Underwriters,
c/o Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
c/o UBS Securities LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
This letter is being delivered to you in connection with the
proposed Underwriting Agreement (the "Underwriting Agreement"), among Southern
Peru Copper Corporation, a Delaware corporation (the "Company"), the Selling
Stockholders listed on Schedule II thereto and each of you as representatives
(the "Representatives") of a group of Underwriters named therein, relating to an
underwritten public offering of Common Stock, $0.01 par value (the "Common
Stock"), of the Company.
In order to induce you and the other Underwriters to enter into the
Underwriting Agreement, the undersigned will not, without the prior written
consent of the Representatives, offer, sell, contract to sell, pledge or
otherwise dispose of (or enter into any transaction which is designed to, or
might reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by the undersigned or any affiliate of the undersigned or any person
in privity with the undersigned or any affiliate of the undersigned), directly
or indirectly, including the filing (or participation in the filing) of a
registration statement with the Securities and Exchange Commission in respect
of, or establish or increase a put equivalent position or liquidate or decrease
a call equivalent position within the meaning of Section 16 of the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Securities and Exchange Commission promulgated thereunder with respect to, any
shares of capital stock of the Company or any securities convertible into, or
exercisable or exchangeable for such capital stock, or publicly announce an
intention to effect any such transaction, for a period of 90 days after the date
of the Underwriting Agreement, other than shares of Common Stock (i) disposed of
as bona fide gifts approved by the Representatives, (ii) transferred to any
trust for the direct or indirect benefit of the undersigned or the immediate
family of the undersigned or (iii) held by a
corporation that are transferred to any of its subsidiaries or affiliates,
provided, that any such transferee pursuant to clause (i), (ii) or (iii) agrees
in writing to be bound by the restrictions set forth herein.
2
3
If for any reason the Underwriting Agreement shall be terminated
prior to the Closing Date (as defined in the Underwriting Agreement), the
agreement set forth above shall likewise be terminated.
Yours very truly,
[Signature of officer, director or major stockholder]
[Name and address of officer, director
or major stockholder]
EXHIBIT B
[LETTERHEAD OF SELLING STOCKHOLDER]
Southern Peru Copper Corporation
Public Offering of Common Stock
[-], 2005
Citigroup Global Markets Inc.
UBS Securities LLC
As Representatives of the several Underwriters,
c/o Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
c/o UBS Securities LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
This letter is being delivered to you in connection with the
proposed Underwriting Agreement (the "Underwriting Agreement"), among Southern
Peru Copper Corporation, a Delaware corporation (the "Company"), the Selling
Stockholders listed on Schedule II thereto and each of you as representatives
(the "Representatives") of a group of Underwriters named therein, relating to an
underwritten public offering of Common Stock, $0.01 par value (the "Common
Stock"), of the Company.
In order to induce you and the other Underwriters to enter into the
Underwriting Agreement, the undersigned will not, without the prior written
consent of the Representatives, offer, sell, contract to sell, pledge or
otherwise dispose of (or enter into any transaction which is designed to, or
might reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by the undersigned or any affiliate of the undersigned), directly or
indirectly, including the filing (or participation in the filing) of a
registration statement with the Securities and Exchange Commission in respect
of, or establish or increase a put equivalent position or liquidate or decrease
a call equivalent position within the meaning of Section 16 of the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Securities and Exchange Commission promulgated thereunder with respect to, any
shares of capital stock of the Company or any securities convertible into, or
exercisable or exchangeable for such capital stock, or publicly announce an
intention to effect any such transaction, for a period of 90 days after the date
of the Underwriting Agreement, other than shares of Common Stock (i) sold
pursuant to the Underwriting Agreement or (ii) disposed of as bona fide gifts
approved by the Representatives, (iii) with respect to each of Cerro Trading,
Inc. and SPC Investors, L.L.C., transferred to such Selling Stockholder's parent
corporation or such Selling
2
Stockholder's parent corporation's trust shareholders and/or beneficiaries and
any person owned or controlled by such trust shareholders and/or beneficiaries,
or (iv) with respect to the ▇▇▇▇▇▇ Dodge Entities, transferred to affiliates of
the ▇▇▇▇▇▇ Dodge Entities; provided that any such transferee pursuant to clause
(ii), (iii) or (iv) agrees in writing to be bound by the restrictions set forth
herein and provided, further, that the restrictions in this letter shall not
apply to any shares of capital stock of the Company that are (x) not registered
with the Securities and Exchange Commission pursuant to the Registration
Statement (as defined in the Underwriting Agreement) and (y) owned by any
affiliate of the undersigned that is a beneficial owner of less than 2,000
shares of capital stock of the Company. For the purposes of this agreement,
"affiliate" of any particular person means any other person controlling,
controlled by, or under common control with such particular person, where
"control" means the possession, directly or indirectly, of the power to direct
the management or policies of a person, whether through the ownership of voting
securities, by contract or otherwise.
3
If for any reason the Underwriting Agreement shall be terminated
prior to the Closing Date (as defined in the Underwriting Agreement), the
agreement set forth above shall likewise be terminated.
Yours very truly,
[Signature of Selling Stockholder]
[Name and address of Selling Stockholder]
ANNEX A
FORM OF MILBANK, TWEED, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP OPINION
June __, 2005
Citigroup Global Markets Inc.
UBS Securities LLC
As Representatives of the several Underwriters
c/o Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
c/o UBS Securities LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: Southern Peru Copper Corporation - Secondary Common Stock Offering
Ladies and Gentlemen:
We have acted as special counsel for Southern Peru Copper Corporation, a
Delaware corporation (the "Company"), in connection with the offer and sale by
the Selling Stockholders, and the purchase by you and the other several
underwriters named in Schedule II thereto (the "Underwriters"), of __________
shares (the "Shares") of the Company's Common Stock, par value $0.01 per share
(the "Common Stock") pursuant to an Underwriting Agreement dated June 9, 2005
(the "Underwriting Agreement"), by and among the Company, the Selling
Stockholders and you, as Representatives of the several Underwriters. This
opinion is being furnished to you pursuant to Section 6(b) of the Underwriting
Agreement. The capitalized terms used herein that are not defined herein shall
have the respective meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined such documents and
records as we have deemed appropriate, including the following:
(i) a signed copy of the Registration Statement on Form S-3, File
No. 333-124439, filed by the Company under the Securities Act of 1933, as
amended (the "Securities Act"), with the Securities and Exchange
Commission (the "Commission") on April 28, 2005, as amended by Amendment
No. 1 and Amendment No. 2 thereto;
2
(ii) copies of the prospectus related to the Shares in the form
filed by the Company with the Commission pursuant to Rule 424(b) under the
Securities Act (the Registration Statement, as amended through the date on
which it became effective, including the exhibits and schedules thereto,
being herein referred to as the "Registration Statement," and such
prospectus in the form in which it was filed with the Commission pursuant
to Rule 424(b) under the Securities Act, being herein referred to as the
"Prospectus");
(iii) signed copies of the Underwriting Agreement; and
(iv) a specimen stock certificate of the Company, certified by The
Bank of New York to be a true and complete, used to evidence the Common
Stock.
We have received oral advice from the Commission that the Registration Statement
was declared effective at 10 a.m. New York time on _____ __, 2005. Also, today a
member of the Staff of the Commission advised us orally that no stop order
suspending the effectiveness of the Registration Statement has been issued under
the Act or proceeding initiated for that purpose or threatened by the
Commission.
We have also examined originals, or copies certified or otherwise identified to
our satisfaction, of such corporate records of the Company, agreements and other
instruments, certificates of public officials, certificates of officers and
representatives of the Company and The Bank of New York, in its capacity as the
Company's registrar and transfer agent with respect to the Common Stock (the
"Transfer Agent") and other documents as we have deemed necessary as a basis for
the opinions hereinafter expressed. In our examination, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals, the conformity with the original documents of all documents
submitted to us as copies, and the authenticity of the originals of such
documents and the due organization of all parties other than the Company. As to
various questions of fact material to our opinions, we have, when relevant facts
were not independently established, relied upon certifications by officers of
the Company and the Transfer Agent and other appropriate persons and statements
contained in the Registration Statement and the representations and warranties
of the Company and the Selling Stockholders set forth in the Underwriting
Agreement.
In addition, we attended the closing held today at our offices in New York, New
York, during the course of which the Selling Stockholders delivered, or caused
to be delivered, the Shares to the Transfer Agent for the accounts of the
several Underwriters, in accordance with the Underwriting Agreement, against
payment therefor. Insofar as statements herein are based upon our actual
knowledge, such phrase means and is limited to the conscious awareness of facts
or other information by lawyers in this firm who gave substantive attention to
representation of the Company in connection with the Prospectus.
Based upon and subject to the foregoing and subject also to the comments and
qualifications set forth below, and having regard to legal considerations which
we deem relevant, we are of the opinion that:
3
1. The Company and Southern Peru Limited ("SPL") have each been duly
incorporated and each is validly existing as a corporation in good standing
under the laws of the State of Delaware, with corporate power and authority to
own or lease, as the case may be, and to operate its properties and conduct its
business as described in the Prospectus.
2. The Company's authorized equity capitalization is as set forth in the
Prospectus; the capital stock of the Company conforms in all material respects
to the description thereof contained in the Final Prospectus; the outstanding
shares of Common Stock being sold pursuant to the Underwriting Agreement by the
Selling Stockholders have been duly and validly authorized and issued and are
fully paid and nonassessable; the Shares being sold by the Selling Stockholders
are duly listed, and admitted and authorized for trading, on the New York Stock
Exchange; the certificates for the Securities are in due and proper form; and
the holders of outstanding shares of capital stock of the Company are not
entitled to any statutory preemptive or other rights pursuant to the Company's
charter to subscribe for the Common Stock.
3. To our knowledge, there is no pending action, investigation, suit or
proceeding by or before any court or governmental agency, authority or body of
the United States or any state thereof or any arbitrator in the United States or
any state thereof involving the Company or any of its subsidiaries or its or
their property of a character required to be disclosed in the Registration
Statement which is not disclosed in the Prospectus; there is no contract or
other document known to us required to be described in the Registration
Statement or Prospectus, or to be filed as an exhibit thereto, which is not
described or filed as required.
4. Subject to the limitations and qualifications stated therein the
statements set forth in the Prospectus under the caption "Taxation" and
"Business--Legal Proceedings--Class Action," to the extent that they address
matters of law or legal conclusions are correct in all material respects.
5. Based on oral advice received from the Commission, the Registration
Statement became effective under the Act on June 8, 2005; any required filing of
any preliminary prospectus and the Prospectus, and any supplements thereto,
pursuant to Rule 424(b) has been made in the manner and within the time period
required by Rule 424(b); to our knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued, based solely on the
oral advice of the Commission Staff described above, no proceedings for that
purpose have been instituted or, to our knowledge, threatened and the
Registration Statement and the Prospectus (other than the documents incorporated
therein by reference (the "Incorporated Documents") and other than the financial
statements and other financial and statistical information contained therein, as
to which we express no opinion) as of their respective effective or issue dates
appear on their face to be appropriately responsive in all material respects
relevant to the offering of the Shares to the requirements of the Securities Act
and the Exchange Act and the applicable rules and regulations of the Commission
thereunder.
4
6. The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
7. No consent, approval, authorization, filing, order, registration or
qualification of or with any United States Federal, New York State, or, to the
extent required under The Delaware General Corporation Law, Delaware court or
governmental agency or body is required to be obtained or made by the Company in
connection with the execution, delivery and consummation by the Company of the
transactions contemplated by the Underwriting Agreement and the Prospectus,
except such as have been obtained under the Act and the Exchange Act and such as
may be required under the Securities Act and the rules and regulations
thereunder and by securities or blue sky laws of any state of the United States
in connection with the purchase and distribution of the Shares by the
Underwriters in the manner contemplated in the Underwriting Agreement and in the
Prospectus.
8. To our knowledge, neither the Company nor SPL is, and with the giving
of notice or lapse of time or both would be, in violation of or in default under
its charter or by-laws.
10. Neither the execution and delivery by the Company of the Underwriting
Agreement nor the sale of the Shares by the Selling Stockholders nor the
consummation of any of the other transactions by the Company therein
contemplated nor the fulfillment of the terms thereof will conflict with, result
in a breach or violation of, or constitute a default under, or result in the
imposition of any lien, charge or encumbrance upon any property or assets of the
Company pursuant to, (i) the charter or by-laws of the Company or SPL, or (ii)
any statute, law, rule or regulation of the United States or the State of New
York or the General Corporation Law of the State of Delaware, that, in our
experience, is normally applicable to transactions of the type contemplated by
the Underwriting Agreement (except that we express no opinion in this paragraph
10 with regards to the application of the anti-fraud provisions of any United
States federal securities laws) or, to our knowledge, any judgment, order or
decree in each case applicable to the Company of any United States or New York
State court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company or any of its
properties.
Because the primary purpose of our professional engagement was not to
establish or confirm factual matters or financial, accounting or statistical
matters, because many determinations involved in the preparation of the
Registration Statement and the Prospectus are of a wholly or partially non-legal
character or relate to legal matters outside the scope of this opinion letter,
and because of the limitations inherent in the review made by us and the
knowledge available to us, we are not passing upon and do not
5
assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus, including
the Incorporated Documents (other than as set forth in paragraph 2 and 4, above)
and we make no representation that we have independently verified the accuracy,
completeness or fairness of such statements.
However, in the course of our acting as counsel for the Company in
connection with the preparation of the Registration Statement and the
Prospectus, we participated in conferences and telephone conversations with
representatives of the Company, accountants for the Company, your
representatives and your counsel, during which conferences and conversations the
contents of the Registration Statement and the Prospectus (including the
Incorporated Documents) were discussed. In addition, we reviewed certain
corporate documents furnished to us by the Company or otherwise in our
possession.
We have endeavored to see that the Registration Statement and the
Prospectus comply with the Act and the regulations under the Act relating to
registration statements on Form S-3 and related prospectuses, but we have not
participated in the preparation of the documents incorporated by reference in
the Registration Statement or the Prospectus and we therefore are unable to make
any representations to you as to the accuracy or completeness of statements of
fact contained in the Registration Statement or the Prospectus, including the
documents incorporated by reference therein. Based upon our participation in the
above-mentioned conferences and conversations and our review of the documents
described above, we advise you that none of the foregoing disclosed to us any
information that causes us to believe that as of its effective date, the
Registration
6
Statement (including the Incorporated Documents, except to the extent statements
contained in the Incorporated Documents have been modified or superseded by
statements contained in the Prospectus) other than the financial statements and
other financial or accounting data included therein or omitted therefrom, as to
which we express no belief and make no statement, contained an untrue statement
of a material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, or the
Prospectus (other than the financial statements and other financial or
accounting data included therein or omitted therefrom, as to which we express no
belief and make no statement), as of its date and as of the date hereof,
contained or contains an untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
In rendering the opinion expressed in numbered paragraph (4) above, we
have relied on the Internal Revenue Code of 1986, as amended (the "Code"), and
applicable regulations, rulings and judicial decisions, in each case as in
effect on the date hereof, and this opinion may be affected by amendments to the
Code or to the regulations thereunder or by subsequent judicial or
administrative interpretations thereof. Our opinion is not binding the Internal
Revenue Service or a court and there can be no assurance that the Internal
Revenue Service or a court will not adopt a contrary position. We express no
opinion as to tax maters other than as to the federal income tax laws of the
United States of America and we take undertake no responsibility to update or
supplement our opinion.
7
The law covered by the opinions expressed herein is limited to the federal
law of the United States of America, the law of the State of New York and the
Delaware General Corporation Law as in effect on the date hereof, and we express
no opinion as to the effect of the laws of other jurisdictions.
This opinion is furnished solely for the benefit of the Underwriters in
connection with the Underwriting Agreement and is not be to be used, circulated,
quoted or otherwise referred to for any other purpose or relied upon by any
other person without our express written permission. We disclaim any obligation
to update anything herein for events occurring after the date hereof.
Very truly yours,
MLF/RBW
ANNEX B
FORM OF PAYET, REY, CAUVI ABOGADOS OPINION
[-], 2005
Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
UBS Securities LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We have acted as Peruvian counsel to Southern Peru Copper
Corporation, a Delaware Corporation (the "COMPANY"), in connection with the
offer and sale by certain selling stockholders of the Company (the "SELLING
STOCKHOLDERS"), and the purchase by you and other several underwriters (the
"UNDERWRITERS") named in Schedule II to an Underwriting Agreement dated
______________________, 2005 (the "UNDERWRITING AGREEMENT"), of ________
shares (the "SHARES") of the Company's Common Stock, par value $0.01 per share
(the "COMMON STOCK") pursuant to the Underwriting Agreement, by and among the
Company, the Selling Stockholders and you, as Representatives of the several
Underwriters.
This opinion is rendered to you pursuant to Section 6(b) of the
Underwriting Agreement. Capitalized terms used but not otherwise defined herein
are used herein as defined in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined the
following documents:
(a) a signed copy of the Registration Statement on Form S-3, File No.
333-124439, filed by the Company under the Securities Act of 1933, as amended
(the "Securities Act"), with the Securities and Exchange Commission (the
"Commission") on April 28, 2005, as amended by Amendment No. 1 thereto,
(b) copy of the prospectus related to the Shares in the form filed by the
Company with the Commission pursuant to Rule 424(b) under the Securities Act
(the Registration Statement, as amended through the date on which it became
effective, including the exhibits and schedules thereto, being herein referred
to as the "Registration Statement," and such prospectus in the form in which it
was filed with the Commission pursuant to Rule 424(b) under the Securities Act,
being herein referred to as the "Final Prospectus"),
2
(c) a signed copy of the Underwriting Agreement.
The documents referred to in items (a), (b) and (c) above are herein
referred to as the "DOCUMENTS".
We have also examined the originals, or certified, conformed or
reproduction copies, of all records, agreements, instruments and documents as we
have deemed relevant or necessary as the basis for the opinions hereinafter
expressed. We have also obtained such additional information from Southern Peru
Copper Corporation, Sucursal del Peru ("SPCC-PERU BRANCH") as we have deemed
necessary for the purposes of delivering this opinion.
As to various questions of fact material to our opinions, we have,
when relevant facts were not independently established, relied upon
certifications by officers of SPCC-Peru Branch and other appropriate persons and
statements contained in the Registration Statement and the representations and
warranties of the Company and the Selling Stockholders set forth in the
Underwriting Agreement.
In giving this opinion, we have assumed, and the opinion is
therefore qualified by, the following:
(a) Insofar as any obligation needs to be performed in any
jurisdiction outside Peru, its performance will not be illegal, ineffective or
invalid by virtue of the laws of that jurisdiction.
(b) All signatures on the documents which, or copies of which, we
have examined are genuine.
(c) Each of the parties to the Documents has the capacity, power and
authority and is otherwise able lawfully to enter into such agreements and to
execute, deliver and perform the obligations thereunder.
(d) The execution and delivery of the Documents have been duly
authorized by each of the parties thereto, and such agreements have been
executed and delivered by such parties.
(e) Each of the Documents, as executed and delivered, constitute
valid and legally binding obligations enforceable in accordance with their
respective terms under the laws and jurisdictions specified therein.
(f) In rendering the opinions contained herein, we have considered
the laws of Peru as of the date hereof.
Based upon the foregoing, we are of the opinion that:
1. SPCC-Peru Branch is duly registered in Peru as a foreign branch of the
Company under the laws of Peru.
3
2. Under the laws of Peru, SPCC-Peru Branch has full power and authority to own
or lease, as the case may be, and to operate its properties and conduct its
business as described in the Final Prospectus.
3. The securities being sold by the Selling Stockholders are duly listed,
admitted and authorized for trading on the Lima Stock Exchange and are duly
registered with the Comision Nacional Supervisora de Empresas y Valores --
CONASEV under the Registro Publico del ▇▇▇▇▇▇▇ de Valores.
4. SPCC-Peru Branch has all public, regulatory or governmental licenses,
concessions, franchises, certificates, permits, consents, orders, approvals and
other authorizations necessary to own, lease and operate its respective
properties and to conduct their respective businesses as currently owned,
leased, operated and conducted ("PERMITS"), except such as, individually or in
the aggregate, could not reasonably be expected to have a material adverse
effect on the condition (financial or otherwise), prospects, earnings, business
or properties of SPCC-Peru Branch. SPCC-Peru Branch has fulfilled and performed
all its respective obligations with respect to such Permits, and has not
received any notice of proceedings relating to the revocation or modification of
any such Permit that, if determined adversely thereto, would individually or in
the aggregate have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of SPCC-Peru Branch.
5. To our knowledge, there is no pending or threatened action, investigation,
suit or proceeding by or before any Peruvian court or governmental agency,
authority or body or any arbitrator involving the Company or any of its
subsidiaries or its or their property that, if determined adversely thereto,
would individually or in the aggregate have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business or properties
of the SPCC-Peru Branch, except as set forth in or contemplated by the Final
Prospectus (exclusive of any supplement thereto); and the statements included or
incorporated by reference in the Final Prospectus under the headings "Risk
Factors--Risks Associated with Doing Business in Peru and Mexico--There is
uncertainty as to the termination and renewal of our mining concessions," "Risk
Factors--Risks Associated with Doing Business in Peru and Mexico--Peruvian
economic and political conditions may have an adverse impact on our business,"
"Exchange Rates--Exchange Rates in Peru," "Business--Mining Rights and
Concessions-Peru", "Business--Environmental and Related Matters--Peru" and
"Business--Legal Proceedings," insofar as such statements purport to summarize
or relate to legal proceedings in Peru or provisions of Peruvian laws or
regulations, are accurate and fair summaries of such laws or regulations;
6. We have no reason to believe that, solely with respect SPCC-Peru Branch, on
the Effective Date or the date the Registration Statement was last deemed
amended the Registration Statement contained any untrue statement of a material
fact or omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the Final
Prospectus as of its date and on the Closing Date included or includes any
untrue statement of a material fact or omitted or omits to state a material fact
necessary to make the statements therein, in the light of the circumstances
4
under which they were made, not misleading (in each case, other than the
financial statements and other financial and statistical information contained
therein, to which we express no opinion).
7. No consent, approval, authorization, filing, order, registration or
qualification of or with any Peruvian court or governmental agency or body, or
any Peruvian self-regulating organization or exchange by or in respect of the
Company or SPCC-Peru Branch or any subsidiary of the Company or any of the
Underwriters (or any agent thereof), is required in connection with the
transactions contemplated in the Underwriting Agreement (including, without
limitation, the Peru offering), except as have been obtained, all of which are
in full force and effect;
8. SPCC-Peru Branch(a) is in compliance with any and all applicable Peruvian
laws, regulations or other governmental requirements relating to the protection
of human health, safety or the environment or relating to hazardous or toxic
substances or wastes, pollutants or contaminants ("PERUVIAN ENVIRONMENTAL
LAWS"), (b) have received and are in compliance with all permits, licenses or
other approvals required of them under Peruvian Environmental Laws to conduct
their respective businesses ("PERUVIAN ENVIRONMENTAL PERMITS") and (c) have not
received notice of any actual or potential liability under any Peruvian
Environmental Law, except where such non-compliance, failure to receive or
comply with Peruvian Environmental Permits or actual or potential liability
would not, individually or in the aggregate, have a material adverse effect on
the condition (financial or otherwise), prospects, earnings, business or
properties of SPCC-Peru Branch, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated by the Final
Prospectus (exclusive of any supplement thereto).
9. SPCC-Peru Branch is not, or with the giving of notice or lapse of time or
both would be, in violation of or in default under (a) its registration as a
foreign branch of the Company, or (b) any indenture, contract, lease, mortgage,
deed of trust, note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which SPCC-Peru Branch is a party or bound
or to which any of its respective properties is subject.
10. No stamp or other transfer taxes or duties and no capital gains, income,
stock exchange, value-added, withholding or other taxes are payable in Peru or
any political subdivision thereof or any authority having power to tax, by the
Company or the Selling Stockholders, in connection with the execution or
delivery of the Underwriting Agreement by the Company or the sale or delivery of
the Securities by the Selling Stockholders to the Underwriters or the initial
resales thereof by the Underwriters in the manner contemplated by the
Underwriting Agreement and the Final Prospectus; provided that (i) the transfer
of the Securities is carried out at the trading floor ("▇▇▇▇▇ de bolsa") of the
Lima Stock Exchange; and (ii) no sum of money will be transferred from and/or
deposited in an account held at a Peruvian banks, in which case the Impuesto a
las Transacciones Financieras (tax upon financial transactions) would be
applicable.
5
11. Neither the execution and delivery of the Underwriting Agreement nor the
sale of the Securities nor the consummation of any other of the transactions
therein contemplated nor the fulfillment of the terms thereof will conflict
with, result in a breach or violation of, constitute a default under, or result
in the imposition of any lien, charge or encumbrance upon any property or assets
of the Company or its subsidiaries pursuant to (a) the registration of SPCC-Peru
Branch as a foreign branch of the Company (b) the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan agreement or
other agreement, obligation, condition, covenant or instrument to which
SPCC-Peru Branch is a party or bound or to which any of its respective
properties is subject, or (c) any statute, law, rule, regulation or decree
applicable to SPCC-Peru Branch of any Peruvian court, regulatory body,
administrative agency, governmental body or other Peruvian authority having
jurisdiction over SPCC-Peru Branch or any of its respective properties.
We are licensed to practice law in Peru, and we do not hold
ourselves out as being conversant with, and express no opinion as to, the laws
of any jurisdiction other than those of Peru.
The opinions expressed herein are solely for your benefit and may
not be relied upon in any manner or for any purpose by any other person without
our prior written consent, except that you may deliver this opinion letter to
any person that becomes your successor or assignee in accordance with the
provisions of the Underwriting Agreement.
Very truly yours,
▇▇▇▇▇/▇▇▇/▇▇▇▇▇
▇▇▇▇▇ ▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇., ▇▇▇. OPINION
___________, 2005
Citigroup Global Markets Inc.
UBS Securities LLC
As Representatives of the several Underwriters
c/o Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
c/o UBS Securities LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: Southern Peru Copper Corporation - Secondary Common Stock Offering
Ladies and Gentlemen:
I am acting in my capacity as General Counsel of Southern Peru Copper
Corporation, a Delaware corporation (the "Company"), in connection with the
offer and sale by certain selling stockholders of the Company (the "Selling
Stockholders"), and the purchase by you and the other several underwriters named
in Schedule II thereto (the "Underwriters"), of __________ shares (the "Shares")
of the Company's Common Stock, par value $0.01 per share (the "Common Stock")
pursuant to an Underwriting Agreement dated June__, 2005 (the "Underwriting
Agreement"), by and among the Company, the Selling Stockholders and you, as
Representatives of the several Underwriters. This opinion is being furnished to
you pursuant to Section 6 (d) of the Underwriting Agreement. The capitalized
terms used herein that are not defined herein shall have the respective meanings
set forth in the Underwriting Agreement.
In rendering the opinions set forth below, I have examined (i) a signed copy of
the Registration Statement on Form S-3, File No. 333-124439, filed by the
Company under the Securities Act of 1933, as amended (the "Securities Act"),
with the Securities and Exchange Commission (the "Commission") on April 28,
2005, as amended by Amendments ▇▇. ▇ ▇▇▇ ▇▇. ▇ ▇▇▇▇▇▇▇, (▇▇) copies of the
prospectus related to the Shares in the form filed by the Company with the
Commission pursuant to Rule 424(b) under the Securities Act (the Registration
Statement, as amended through the date on which it became effective, including
the exhibits and schedules thereto, being herein referred to as the
"Registration Statement," and such prospectus in the form in which it was filed
with the Commission pursuant to Rule 424(b) under the Securities Act, being
herein referred to as the "Prospectus"), and (iii) signed copies of the
Underwriting Agreement.
2
I have also examined originals, or certified, conformed or reproduction copies,
of all records, agreements and documents as I have deemed relevant or necessary
as the basis for the opinions hereinafter expressed. I have also obtained such
additional information from the Company as I have deemed necessary for the
purpose of delivering this opinion.
In stating my opinion, I have assumed the genuineness of all signatures on
original or certified copies, the authenticity of documents submitted to me as
originals and the conformity to original or certified copies of all copies
submitted to me as certified or reproduction copies. I have also assumed, for
purposes of the opinions expressed herein, that each of the parties to the
Underwriting Agreement, other than the Company, has the requisite corporate
power and authority to enter into such agreement and perform its obligations
thereunder, and that such agreement has been duly authorized, executed and
delivered by each such party.
Based upon and subject to the foregoing and subject also to the comments and
qualifications set forth below, and having regard to legal considerations which
I deem relevant, I am of the opinion that:
a) Each of Minera Mexico, S.A. de C.V. ("Minera Mexico") and its
subsidiaries listed on Schedule A (each a "Mexican Subsidiary" and collectively
the "Mexican Subsidiaries") has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the jurisdiction in which it
is chartered or organized, with full power and authority (corporate and other)
to own or lease, as the case may be, and to operate its properties and conduct
its business as described in the Prospectus, and is duly qualified to do
business as a foreign corporation and is in good standing under the laws of each
jurisdiction which requires such qualification;
b) all the outstanding shares of capital stock of Minera Mexico and each
of the Mexican Subsidiaries have been duly and validly authorized and issued and
are fully paid and nonassessable, and, except as otherwise set forth in the
Prospectus, all outstanding shares of capital stock of Minera Mexico and the
Mexican Subsidiaries are owned by the Company either directly or through wholly
owned subsidiaries, free and clear of any perfected security interest and, to my
knowledge, after due inquiry, any other security interest, claim, lien or
encumbrance;
c) the holders of outstanding shares of capital stock of the Company are
not entitled to preemptive or other rights to subscribe for the Common Stock;
except as set forth in the Prospectus, to my knowledge, no options, warrants or
other rights to purchase, agreements or other obligations to issue, or rights to
convert any obligations into or exchange any securities for, shares of capital
stock of or ownership interests in the Company are outstanding;
d) Minera Mexico and the Mexican Subsidiaries have all public, regulatory
or governmental licenses, concessions, franchises, certificates, permits,
consents, orders, approvals and other authorizations necessary to own, lease and
operate their respective properties and to conduct their respective businesses
as currently owned, leased, operated
3
and conducted ("Permits"), except such as, individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect, except as
set forth in or contemplated by the Final Prospectus (exclusive of any
supplement thereto). Minera Mexico and the Mexican Subsidiaries have fulfilled
and performed all of their respective obligations with respect to such Permits,
and none of Minera Mexico and the Mexican Subsidiaries has received any notice
of proceedings relating to the revocation or modification of any such Permit
that, if determined adversely thereto, would individually or in the aggregate
have a Material Adverse Effect;
e) to my knowledge, there is no pending or threatened action,
investigation, suit or proceeding by or before any Mexican court or governmental
agency, authority or body or any arbitrator involving the Company or any of its
subsidiaries or its or their property that, if determined adversely thereto,
would individually or in the aggregate have a Material Adverse Effect, except as
set forth in or contemplated by the Final Prospectus (exclusive of any
supplement thereto);
f) the statements included or incorporated by reference in the Final
Prospectus under the headings "Risk Factors--Risks Associated with Doing
Business in Peru and Mexico--There is uncertainty as to the termination and
renewal of our mining concessions," "Risk Factors--Risks Associated with Doing
Business in Peru and Mexico--Mexican economic and political conditions may have
an adverse impact on our business," "Exchange Rates--Exchange Rates in Mexico,"
"Business--Mining Rights and Concessions--Mexico", "Business--Environmental and
Related Matters--Mexico" and "Business--Legal Proceedings," insofar as such
statements purport to summarize or relate to legal proceedings in Mexico or
provisions of Mexican laws or regulations, are accurate and fair summaries of
such laws or regulations;
g) no consent, approval, authorization, filing, order, registration or
qualification of or with any Mexican court or governmental agency or body, or
any Mexican self-regulating organization or exchange, is required in connection
with the transactions contemplated in the Underwriting Agreement, except as have
been obtained, all of which are in full force and effect;
h) the Company and its subsidiaries (a) are in compliance with any and all
applicable Mexican laws, regulations or other governmental requirements relating
to the protection of human health, safety or the environment or relating to
hazardous or toxic substances or wastes, pollutants or contaminants ("Mexican
Environmental Laws"), (b) have received and are in compliance with all permits,
licenses or other approvals required of them under Mexican Environmental Laws to
conduct their respective businesses ("Mexican Environmental Permits") and (c)
have not received notice of any actual or potential liability under any Mexican
Environmental Law, except where such non-compliance, failure to receive or
comply with Mexican Environmental Permits or actual or potential liability would
not, individually or in the aggregate, have a Material Adverse Effect, except as
set forth in or contemplated by the Final Prospectus (exclusive of any
supplement thereto);
4
i) no stamp or other transfer taxes or duties and no capital gains,
income, stock exchange, value-added, withholding or other taxes are payable in
Mexico or any political subdivision thereof or any authority having power to
tax, in connection with the execution or delivery of the Underwriting Agreement
by the Company or the sale or delivery of the Securities by the Selling
Stockholders to the Underwriters or the initial resales thereof by the
Underwriters in the manner contemplated by the Underwriting Agreement and the
Prospectus;
j) to my knowledge, none of the Minera Mexico and the Mexican Subsidiaries
is, or with the giving of notice or lapse of time or both would be, in violation
of or in default under their respective acta constitutiva or estatutos sociales
or other constitutive documents;
k) to my knowledge, none of the Company and the Mexican Subsidiaries is,
or with the giving of notice or lapse of time or both would be, in violation of
or in default under any indenture, contract, lease, mortgage, deed of trust,
note agreement, loan agreement or other agreement, obligation, condition,
covenant or instrument to which any of the Company or any of the Mexican
Subsidiaries is a party or bound or to which any of their respective properties
is subject, except as set forth in or contemplated by the Prospectus (exclusive
of any supplement thereto) and for any other immaterial violations or defaults;
l) neither the execution and delivery of the Underwriting Agreement nor
the sale of the Securities nor the consummation of any other of the transactions
therein contemplated nor the fulfillment of the terms thereof will conflict
with, result in a breach or violation of, or constitute a default under, or
result in the imposition of any lien, charge or encumbrance upon any property or
assets of the Company or the subsidiaries pursuant to, (i) the charter or
by-laws of the Minera Mexico or the Mexican Subsidiaries, (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or instrument to
which the Company or its subsidiaries is a party or bound or to which its or
their respective properties is subject, or (iii) any statute, law, rule,
regulation, judgment, order or decree applicable to the Company or its
subsidiaries of any court, regulatory body, administrative agency, governmental
body, arbitrator or other authority having jurisdiction over the Company or its
subsidiaries or any of its or their respective properties; and
m) to my knowledge, no holders of securities of the Company have rights to
the registration of such securities under the Registration Statement that have
not been waived, other than the Selling Stockholders in respect of the
Securities.
I have acted as counsel to the Company in connection with the preparation of the
Registration Statement and the Prospectus, and based on the foregoing, I have no
reason to believe that as of its effective date, the Registration Statement
(including the Incorporated Documents, except to the extent statements contained
in the Incorporated Documents have been modified or superseded by statements
contained in the Prospectus) other than the financial statements and other
financial or accounting data included therein
5
or omitted therefrom, as to which I express no belief and make no statement,
contained an untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, or the Prospectus (other than the financial statements
and other financial or accounting data included therein or omitted therefrom, as
to which I express no belief and make no statement), as of its date and as of
the date hereof, contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
I am licensed to practice law in Mexico and I do not hold myself out as being
conversant with, and express not opinion as to, the laws of any jurisdiction
other than those of Mexico.
The opinions expressed herein are solely for your benefit and may not be relied
upon in any manner or for any person by any other person without my prior
written consent, except that this opinion letter may be relied upon by Milbank,
Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP in rendering its legal opinion in connection with the
closing under the Underwriting Agreement occurring today. I disclaim any
obligation to update anything herein for events occurring after the date hereof.
Very truly yours,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
General Counsel for the Company
ANNEX D-1
FORM OF ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP OPINION
June [__], 2005
CITIGROUP GLOBAL MARKETS INC.
UBS SECURITIES LLC
As Representatives of the several Underwriters,
c/o UBS Securities LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
c/o Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We have acted as special United States counsel to Cerro Trading
Company, Inc., a Delaware corporation ("Cerro") and SPC Investors, L.L.C., a
Delaware limited liability company ("SPC" and, together with Cerro, the "Selling
Stockholders"), in connection with the offering by the Selling Stockholders
pursuant to a registration statement on Form S-3 (File No. 333-124439) of
22,551,884 shares of common stock, par value $0.01 per share (the "Securities"),
of Southern Peru Copper Corporation, a Delaware corporation (the "Company").
Such registration statement, as amended when it became effective, including the
information deemed to be a part thereof as of such time pursuant to Rule 430A
under the Securities Act of 1933, as amended (the "Securities Act"), but
excluding the documents incorporated by reference therein, is herein called the
"Registration Statement," and the related prospectus, as first filed with the
Securities and Exchange Commission pursuant to Rule 424(b)(__) under the
Securities Act, but excluding the documents incorporated by reference therein,
is herein called the "Prospectus." [Sequence and types of filing TBD]. This
opinion letter is furnished pursuant to Section 6(e) of the underwriting
agreement dated June 9, 2005 (the "Underwriting Agreement") among the Company,
the Selling Stockholders, ▇▇▇▇▇▇ Dodge Overseas Capital Corporation, Climax
Molybdenum BV and the several underwriters named in Schedule I thereto (the
"Underwriters").
In arriving at the opinions expressed below, we have reviewed the
following documents:
(a) an executed copy of the Underwriting Agreement;
(b) the Registration Statement and the documents incorporated by
reference therein;
(c) the Prospectus and the documents incorporated by reference
therein; and
2
(d) the documents delivered to you by the Selling Stockholders at
the closing pursuant to the Underwriting Agreement.
In addition, we have reviewed the originals or copies certified or
otherwise identified to our satisfaction of all such corporate records of the
Selling Stockholders and such other instruments and other certificates of public
officials, officers and representatives of the Selling Stockholders and such
other persons, and we have made such investigations of law, as we have deemed
appropriate as a basis for the opinions expressed below.
In rendering the opinions expressed below, we have assumed the
authenticity of all documents submitted to us as originals and the conformity to
the originals of all documents submitted to us as copies. In addition, we have
assumed and have not verified the accuracy as to factual matters of each
document we have reviewed (including, without limitation, the accuracy of the
representations and warranties of the Selling Stockholders in the Underwriting
Agreement).
Based on the foregoing, and subject to the further assumptions and
qualifications set forth below, it is our opinion that:
1. The Underwriting Agreement has been duly executed and delivered
by the Selling Stockholders.
2. The sale of the Securities to the Underwriters pursuant to the
Underwriting Agreement does not, and the performance by the Selling Stockholders
of their respective obligations in the Underwriting Agreement will not, (a)
require any consent, approval, authorization, registration or qualification of
or with any governmental authority of the United States or the State of New York
that in our experience normally would be applicable to general business entities
with respect to such sale or performance, except such as have been obtained or
effected under the Securities Act and the Securities Exchange Act of 1934, as
amended (but we express no opinion relating to any state securities or Blue Sky
laws) or (b) result in a violation of any United States federal or New York
State law or published regulation that in our experience normally would be
applicable to general business entities with respect to such sale or performance
(but we express no opinion relating to the United States federal securities laws
or any state securities or Blue Sky laws).
3. Assuming that (a) The Depository Trust Company ("DTC") is a
"clearing corporation" as defined in Section 8-102(a)(5) of the Uniform
Commercial Code as in effect in the State of New York (the "UCC") and (b) each
Underwriter acquires its interest in the Securities it has purchased without
notice of any adverse claim (within the meaning of Section 8-105 of the UCC),
each Underwriter that has purchased Securities from the Selling Stockholders
delivered on the date hereof to DTC, made payment therefor pursuant to the
Underwriting Agreement and has had such Securities credited to the securities
account of such Underwriter maintained with DTC, then such Underwriter will have
a securities entitlement (as defined in Section 8-102(a)(17) of the
3
UCC) to such Securities, and no action based on an adverse claim may be asserted
against such Underwriter with respect to such security entitlement.
The foregoing opinions are limited to the federal law of the United
States of America and the law of the State of New York.
We are furnishing this opinion letter to you, as Representatives of
the Underwriters, solely for the benefit of the Underwriters in their capacity
as such in connection with the offering of the Securities. This opinion letter
is not to be relied on by or furnished to any other person or used, circulated,
quoted or otherwise referred to for any other purpose. We assume no obligation
to advise you or any other person, or to make any investigations, as to any
legal developments or factual matters arising subsequent to the date hereof that
might affect the opinions expressed herein.
Very truly yours,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
By___________________________________
ANNEX D-2
FORM OF ▇▇▇▇ ▇. ▇▇▇▇▇, ESQ. OPINION
▇▇▇▇ ▇. ▇▇▇▇▇, ESQ.
ATTORNEY AT LAW
▇▇ ▇.▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
June __, 2005
CITIGROUP GLOBAL MARKETS INC.
UBS SECURITIES LLC
As representatives of the several Underwriters,
c/o UBS Securities LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
c/o Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
I have acted as counsel to SPC Investors, L.L.C., a Delaware limited
liability company ("SPC") in connection with the offering by SPC pursuant to a
registration statement on Form S-3 (File No. 333-124439) of 22,551,884 shares of
common stock, par value $0.01 per share (the "Securities"), of Southern Peru
Copper Corporation, a Delaware corporation (the "Company). This opinion letter
is furnished pursuant to Section 6(e) of the underwriting agreement dated June
9, 2005 (the "Underwriting Agreement") among the Company, the Selling
Stockholders identified therein and the several underwriters named in Schedule I
thereto (the "Underwriters").
In arriving at the opinions expressed below, I have reviewed the following
documents:
(a) an executed copy of the Underwriting Agreement;
(b) the Certificate of Formation and Operating Agreement of SPC; and
(c) the documents delivered to you by SPC at the closing pursuant to the
Underwriting Agreement.
In addition, I have reviewed the originals or copies of all such records
of SPC and such other instruments and other certificates of public officials,
officers and representatives of SPC
2
and such other persons, and I have made such investigations of law, as I have
deemed appropriate as a basis for the opinions expressed below.
Based on the foregoing, and subject to the further assumptions and
qualifications set forth below, it is my opinion that:
1. The execution and delivery of the Underwriting Agreement have been
duly authorized by all necessary corporate action of SPC and SPC has
full legal right and authority to sell, transfer and deliver in the
manner provided in the Underwriting Agreement the Securities being
sold by it thereunder.
2. The execution and delivery of the Underwriting Agreement and the
sale of the Securities to the Underwriters pursuant to the
Underwriting Agreement do not, and the performance by SPC of its
obligations in the Underwriting Agreement will not, result in a
breach or violation of any of the terms and provisions of, or
constitute a default under, (a) the Certificate of Formation or
Operating Agreement of SPC, (b) the terms of any indenture or other
agreement or instrument known to me to which SPC is a party or
bound, or (c) any judgment, order or decree known to me to be
applicable to SPC of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction over
SPC.
As I am a member of the Bar of the State of Illinois only and am therefore
competent to opine only on the laws of that State and of the United States, the
foregoing opinions are limited to the federal law of the United States of
America and the law of the State of Illinois. Nonetheless, I have experience
with, and for the purposes hereof feel comfortable giving my views under, the
General Corporation Law of the State of Delaware to the extent relevant to any
of the opinions expressed herein.
I am furnishing this opinion letter to you, as Representatives of the
Underwriters, solely for the benefit of the Underwriters in their capacity as
such in connection with the offering of the Securities. This opinion letter is
not to be relied on by or furnished to any other person or used, circulated,
quoted or otherwise referred to for any other purpose. I assume no obligation to
advise you or any other person, or to make any investigations, as to any legal
developments or factual matters arising subsequent to the date hereof that might
affect the opinions expressed herein.
Very truly yours,
▇▇▇▇ ▇. ▇▇▇▇▇
ANNEX D-3
FORM OF ▇▇▇▇▇▇ ▇. ▇▇▇▇, ESQ. OPINION
CERRO TRADING COMPANY, INC.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
June __, 2005
CITIGROUP GLOBAL MARKETS INC.
UBS SECURITIES LLC
As representatives of the several Underwriters,
c/o UBS Securities LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
c/o Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
I have acted as counsel to Cerro Trading Company, Inc., a Delaware
corporation ("Cerro") in connection with the offering by Cerro pursuant to a
registration statement on Form S-3 (File No. 333-124439) of 22,551,884 shares of
common stock, par value $0.01 per share (the "Securities"), of Southern Peru
Copper Corporation, a Delaware corporation (the "Company"). This opinion letter
is furnished pursuant to Section 6(e) of the underwriting agreement dated June
9, 2005 (the "Underwriting Agreement") among the Company, the Selling
Stockholders identified therein and the several underwriters named in Schedule I
thereto (the "Underwriters").
In arriving at the opinions expressed below, I have reviewed the following
documents:
(a) an executed copy of the Underwriting Agreement;
(b) the Articles of Incorporation and By-Laws of Cerro; and
(c) the documents delivered to you by Cerro at the closing pursuant to
the Underwriting Agreement.
In addition, I have reviewed the originals or copies of all such records
of Cerro and such other instruments and other certificates of public officials,
officers and representatives of Cerro and such other persons, and I have made
such investigations of law, as I have deemed appropriate as a basis for the
opinions expressed below.
2
Based on the foregoing, and subject to the further assumptions and
qualifications set forth below, it is my opinion that:
1. The execution and delivery of the Underwriting Agreement have been
duly authorized by all necessary corporate action of Cerro and Cerro
has full legal right and authority to sell, transfer and deliver in
the manner provided in the Underwriting Agreement the Securities
being sold by it thereunder.
2. The execution and delivery of the Underwriting Agreement and the
sale of the Securities to the Underwriters pursuant to the
Underwriting Agreement do not, and the performance by Cerro of its
obligations in the Underwriting Agreement will not, result in a
breach or violation of any of the terms and provisions of, or
constitute a default under, (a) the Articles of Incorporation or
By-Laws of Cerro, (b) the terms of any indenture or other agreement
or instrument known to me to which Cerro is a party or bound, or (c)
any judgment, order or decree known to me to be applicable to Cerro
of any court, regulatory body, administrative agency, governmental
body or arbitrator having jurisdiction over Cerro.
As I am a member of the Bar of the State of Illinois only and am therefore
competent to opine only on the laws of that State and of the United States, the
foregoing opinions are limited to the federal law of the United States of
America and the law of the State of Illinois. Nonetheless, I have experience
with, and for the purposes hereof feel comfortable giving my views under, the
General Corporation Law of the State of Delaware to the extent relevant to any
of the opinions expressed herein.
I am furnishing this opinion letter to you, as Representatives of the
Underwriters, solely for the benefit of the Underwriters in their capacity as
such in connection with the offering of the Securities. This opinion letter is
not to be relied on by or furnished to any other person or used, circulated,
quoted or otherwise referred to for any other purpose. I assume no obligation to
advise you or any other person, or to make any investigations, as to any legal
developments or factual matters arising subsequent to the date hereof that might
affect the opinions expressed herein.
Very truly yours,
▇▇▇▇▇▇ ▇. ▇▇▇▇
General Counsel & Secretary
ANNEX E-1
FORM OF DEBEVOISE & ▇▇▇▇▇▇▇▇ LLP OPINION
[Date]
[Underwriters]
Southern Peru Copper Corporation
Ladies and Gentlemen:
We have acted as New York special counsel to ▇▇▇▇▇▇ Dodge Overseas Capital
Corporation, a Delaware corporation ("PDOCC"), and Climax Molybdenum BV, a Dutch
corporation ("Climax" and, together with PDOCC, the "PD Entities") in connection
with the sale by PDOCC on this day of - shares, and the sale by Climax on this
day of - shares (collectively, the "Shares") of the Common Stock, $.01 par value
(the "Common Stock"), of Southern Peru Copper Corporation, a Delaware
corporation (the "Company"), to the several Underwriters (the "Underwriters")
named in Schedule I to the Underwriting Agreement, dated - (the "Underwriting
Agreement"), between the Company, the stockholders of the Company named in
Schedule II to the Underwriting Agreement (the "Selling Stockholders") and you,
as Representatives of the several Underwriters and the preparation of the
Underwriting Agreement. All other capitalized terms used herein without
definition have the respective meanings specified in the Underwriting Agreement.
We are delivering this letter to you pursuant to Section 6(f) of the
Underwriting Agreement.
In connection with this opinion, we have examined originals or certified,
conformed or reproduction copies of such agreements, instruments, documents and
records of the PD Entities, such certificates of public officials, and such
other documents, and have made such investigations of law, as we have deemed
necessary or appropriate for the purposes of the opinions expressed below. In
all such examinations, we have assumed the legal capacity of all natural persons
executing documents, the genuineness of all signatures on original or certified
copies, the authenticity of all original or certified copies and the conformity
to original or certified documents of all copies submitted to us as conformed or
reproduction copies. For the purposes of the opinions expressed below, we have
relied as to factual matters upon, and assume the accuracy of, the statements
made in the certificates of officers of the PD Entities delivered to us, the
representations and warranties of the parties to the Underwriting Agreement that
are contained in or made pursuant to the Underwriting Agreement and certificates
and other statements or information of or from public officials and officers and
representatives of the Company, its subsidiaries and others.
We have also assumed that: (i) Climax has duly authorized and has the power and
authority to enter into and perform its obligations under the Underwriting
Agreement; (ii) Climax has duly executed and delivered the Underwriting
Agreement; and (iii) each of the parties to the Underwriting Agreement, other
than the PD Entities, have performed or complied with their covenants and
agreements contained therein.
2
Based on the foregoing, and subject to the limitations, qualifications and
assumptions set forth herein, we are of the opinion that:
1. The Underwriting Agreement has been duly authorized, executed and
delivered by PDOCC, and PDOCC has corporate power and authority to sell,
transfer and deliver in the manner provided in the Underwriting Agreement
the Shares being sold by it thereunder.
2. The execution, delivery and performance by each PD Entity of the
Underwriting Agreement does not, and the sale of the applicable Shares by
each PD Entity pursuant to the Underwriting Agreement will not, to our
knowledge, violate the General Corporation Law of the State of Delaware,
or any existing United States Federal or New York State statute, except as
would not reasonably be expected to have a material adverse effect on the
business, financial position or results of operations of either PD Entity
or the consummation of the sale of the applicable Shares by either PD
Entity pursuant to the Underwriting Agreement.
3. No consent, approval, authorization, order, registration or
qualification of or with any United States Federal or New York court or
governmental agency or body is required to be made or obtained by either
PD Entity for the execution, delivery and performance by such Entity of
the Underwriting Agreement and for the sale of the applicable Shares by
such Entity to the Underwriters as contemplated by the Underwriting
Agreement, except such as have been obtained under the Act, the Securities
Exchange Act of 1934, as amended, and such as may be required under state
securities or blue sky laws or by the rules and regulations of the NASD in
connection with the purchase and distribution of the Shares by the
Underwriters.
4. Assuming that each Underwriter acquires its interest in the Shares it
has purchased from the PD Entities without notice of any adverse claim
(within the meaning of Section 8-105 of the New York Uniform Commercial
Code as in effect in the State of New York (the "UCC")), each Underwriter
that has purchased such shares delivered on the Closing Date to The
Depository Trust Company or other securities intermediary by making
payment therefor as provided in the Underwriting Agreement and that has
had such shares credited to the securities account or accounts of such
Underwriters maintained with The Depository Trust Company or such other
securities intermediary will have acquired a security entitlement (within
the meaning of Section 8-102(a)(17) of the UCC) to such shares purchased
by such Underwriter, and no action based on an adverse claim (within the
meaning of Section 8-105 of the UCC) may be asserted against such
Underwriter with respect to such security entitlement.
The opinions expressed in paragraphs 1 and 2 above are limited to the Federal
laws of the United States, the laws of the State of New York and the General
Corporation Law of the State of Delaware, as currently in effect, and the
opinions expressed in paragraphs 3 and 4 above are limited to the Federal laws
of the United States and the laws of the State of New York, as currently in
effect.
* * * *
3
This letter is solely for your and the Underwriters' benefit and may not be
relied upon in any manner or for any purpose by any other person and may not be
quoted or disclosed in whole or in part without our prior written consent. We
assume no obligation to supplement this letter if any applicable laws change
after the date hereof or if we become aware of any facts that might change the
opinions or beliefs expressed herein after the date hereof.
Very truly yours,
ANNEX E-2
FORM OF LOYENS & LOEFF N.V. OPINION
To:
Each of the parties listed
on Schedule I attached hereto
SOUTHERN PERU COPPER CORPORATION
Privileged
London, [-] 2005
Ladies and Gentlemen,
You have requested us, the undersigned, as special counsel on certain matters of
Dutch law to Climax Molybdenum B.V., a private limited liability company,
incorporated under the laws of the Netherlands (the "COMPANY") to render an
opinion in connection with that certain underwriting agreement by and among the
Company, Southern Peru Copper Corporation, a Delaware corporation, organised
under the laws of Delaware, United States of America, Cerro Trading Company,
Inc., a corporation organised under the laws of [-], ▇▇▇▇▇▇ Dodge
Corporation, a corporation organised under the laws of [-], Citigroup
Global Markets Inc., a corporation organised under the laws of [-], and UBS
Securities LLC, a corporation organised under the laws of [-], dated as of
[-] (the "AGREEMENT").
Capitalised terms used herein which are not otherwise defined herein are used as
defined in the Agreement. Headings used in this opinion are for ease of
reference only and shall not affect the interpretation hereof.
In rendering this opinion, we have examined and relied upon a
[facsimile][electronically transmitted][original] copy of an executed copy of
the Agreement and upon the following documents:
(1) a facsimile copy of an excerpt dated [-], 2005 of the registration of the
Company in the trade register of the Chamber of Commerce of Rotterdam, the
Netherlands (the "TRADE REGISTER") (the "EXCERPT");
(2) a facsimile copy of the articles of association (statuten) of the Company,
as they read as per the date of amendment of May 12, 1998 (the
"ARTICLES"); and
2
(3) a copy of the resolution of the board of managing directors of the
Company, dated [-] 2005, resolving to enter into and approving, the
execution of and the performance of the obligations under the Agreement
(the "BOARD RESOLUTION").
For the purpose of the opinions expressed herein, we have assumed:
(i) the genuineness of all signatures;
(ii) the authenticity of all documents submitted to us as originals;
(iii) the conformity to the originals of documents submitted to us as copies;
(iv) that the information recorded in the Excerpt is true, accurate and
complete the date hereof [and on the date of the Board Resolution]
(although not constituting conclusive evidence thereof our assumption is
supported by information obtained by telephone today from the Trade
Register confirming that no changes were registered after the date of the
Excerpt);
(v) that the Company has been duly incorporated as a private limited
liability company (besloten vennootschap met beperkte aansprakelijkheid)
under the laws of the Netherlands;
(vi) that the Company has not been dissolved (ontbonden), merged (gefuseerd),
split up (gesplitst), granted a suspension of payments (surseance van
betaling verleend), or declared bankrupt (failliet verklaard) or
subjected to any other insolvency proceedings listed in Annex A or
winding up proceedings listed in Annex B of the 29 May 2000 Council
Regulation (EC) No. 1346/2000 on Insolvency Proceedings (the "INSOLVENCY
REGULATION") (although not constituting conclusive evidence thereof, our
assumption is supported by information obtained by telephone today from
the bankruptcy clerk's office (faillissementsgriffie) of the court in
Rotterdam, the Netherlands);
(vii) that the Articles are the articles of association (statuten) of the
Company in force on the date hereof [and on the date of the Board
Resolution] (although not constituting conclusive evidence thereof, this
assumption is supported by the contents of the Excerpt);
(viii) that the Board Resolution (a) correctly reflects the resolutions made by
the management board of the Company in respect of the transaction(s)
contemplated by the Agreement, (b) has been made with due observance of
the Articles, and (c) has not been and will not be amended, revoked, or
declared null and void;
(ix) that none of the members of the management board of the Company has a
(potential) conflict of interest with the Company in connection with the
Agreement or the transactions contemplated thereby, that would preclude
any of them from validly representing the Company;
3
(x) that the general meeting of shareholders of the Company has not subjected
any resolutions of the management of the Company to its approval;
(xi) that the Agreement has been signed on behalf of the Company by [-];
(xii) that each party to the Agreement, other than the Company, is validly
existing under the laws under which it is purported to have been
incorporated;
(xiii) that (a) each party to the Agreement, other than the Company, has all
requisite power (corporate and otherwise) to execute and deliver, and to
perform its obligations under the Agreement, and (b) the Agreement has
been duly authorised, executed, and delivered by or on behalf of the
parties thereto other than the Company;
(xiv) that all documents, other than the Agreement, relating to the present
transaction, constitute, and will continue to constitute, the legal,
valid, and binding obligations of the parties thereto, enforceable
against those parties in accordance with their terms and that such
documents will not affect the validity of the opinions given herein;
(xv) that the entering into the Agreement by the Company is in furtherance of
its corporate objects as meant in section 2:7 of the Dutch Civil Code;
(xvi) that, under the laws by which it is expressed to be governed and under
the laws of any other jurisdiction (other than the laws of the
Netherlands), the Agreement constitutes the legal, valid and binding
obligations of the parties thereto, and is enforceable against those
parties in accordance with its terms; and
(xvii) that the shares in the capital of Southern Peru Copper Corporation will
not be offered or sold, directly or indirectly, in the Netherlands to
persons other than to individuals or legal entities, that trade or invest
in securities in the conduct of or profession or trade and that a selling
restriction to that effect has been included in the offering
document/pricing supplement and advertisements and documents in which the
offer is announced.
Based upon the foregoing and subject to any factual matters or documents not
disclosed to us in the course of our investigation, and subject to the
qualifications and limitations stated hereafter, we are of the opinion that on
the date hereof:
CORPORATE POWER
A. The Company has the corporate power to execute and deliver the Agreement
and to perform its obligations thereunder.
DULY AUTHORISED, EXECUTED AND DELIVERED
B. The Agreement has been duly authorised by all requisite corporate action
on the part of, and has been duly executed and delivered by, the Company.
4
CHOICE OF LAW
C. The choice of the laws of the State of New York as the law governing the
Agreement is valid and binding under the laws of the Netherlands, except
(i) to the extent that any term of the Agreement or any provision of the
laws of the State of New York law applicable to the Agreement is
manifestly incompatible with the public policy (ordre public) of the
Netherlands and (ii) that a Dutch court may give effect to mandatory rules
of the laws of the Netherlands or of another jurisdiction, with which the
situation has a close connection, if and insofar as, under the laws of the
Netherlands or that other jurisdiction, those rules must be applied
irrespective of the chosen law.
NON-CONFLICTS WITH LAW
D. The execution and delivery by the Agreement and the performance by the
Company of its obligations thereunder do not conflict with or result in a
violation of the Articles or the provisions of any published law, rule or
regulation of general application of the Netherlands.
CONSENTS
E. Save for the approvals which have been obtained, no approval,
authorisation or other action by, or filing with, any Dutch governmental,
regulatory or supervisory authority or body, is required in connection
with the execution by the Company of the Agreement and the performance by
the Company of its obligations thereunder, except that there may be
reporting requirements to the Dutch Central Bank ("De Nederlandsche Bank")
on (inter alia) cross border payments pursuant to the Regulation of 4
February 2003 under the Act on Financial Foreign Relations 1994 (Wet
financiele betrekkingen buitenland 1994). Failure to observe these filing,
disclosure or notification requirements does not render the Agreement
void, nor does it affect the legality, validity or enforceability of the
obligations of the Company under the Agreement.
This opinion is subject to the following qualifications:
a. The opinions expressed herein may be affected or limited by the provisions
of any applicable bankruptcy (faillissement), insolvency, fraudulent
conveyance (actio pauliana), reorganisation, suspension of payments
(surseance van betaling) and other laws of general application now or
hereafter in effect, relating to or affecting the enforcement or
protection of creditor's rights (including but not limited to the laws
that apply pursuant to the Insolvency Regulation).
b. The enforcement in the Netherlands of the Agreement will be subject to the
rules of civil procedure as applied by Dutch courts. Specific performance
may not always be available under Dutch law.
c. If proceedings are instituted against the Company in the courts of the
Netherlands in respect of any sum payable under the Agreement, the
claimant has the option to request those courts to render judgment either
in United States Dollars or in the lawful currency of the Netherlands. A
final judgment in United States Dollars may be enforced in the Netherlands
either in United States Dollars or, if enforcement purposes would so
require, in the lawful currency of the Netherlands. In either case,
5
the applicable rate of exchange would be such rate that procures that the
amount in the lawful currency of the Netherlands is sufficient for the
claimant to purchase, on the date of payment by the Company, forthwith the
sum payable in United States Dollars.
d. The Company may be appointed by the Dutch Central Bank (De Nederlandsche
Bank) pursuant to the Regulation of 4 February 2003, issued by the Dutch
Central Bank, implementing the reporting instructions under the Act on
Financial Foreign Relations 1994 (Wet financiele betrekkingen buitenland
1994), and if so appointed, such company has to file reports with the
Dutch Central Bank for the benefit of the composition of the balance of
payments for the Netherlands by the Dutch Central Bank.
e. Any dealer, arranger, selling agent and/or other person providing services
as security intermediary in or from the Netherlands must either be
licensed or exempt under section 7 up to and including 10 of the Act on
the Supervision of Securities Transactions 1995 (Wet toezicht
effectenverkeer 1995)
f. We express no opinion on any law other than the law of the Netherlands
(unpublished case law not included) as it currently stands. We express no
opinion on any laws of the European Communities (insofar as not
implemented in the Netherlands in statutes or regulations of general
application or unless it concerns EU Regulations (Verordeningen) in effect
in the Netherlands on the date of the opinion). In this opinion letter we
express no opinion on tax law, on the business merits of the transaction
contemplated by the Agreement or on anti-trust law.
In this opinion letter Dutch legal concepts are sometimes expressed in English
terms and not in their original Dutch terms. The concepts concerned may not be
identical to the concepts described by the same English term as they exist under
the laws of other jurisdictions. This opinion letter may only be relied upon
under the express condition that any issue of interpretation or liability
arising thereunder will be governed by Dutch law and be brought exclusively
before the competent court in Rotterdam, the Netherlands.
This opinion letter is strictly limited to the matters stated herein and may not
be read as extending by implication to any matters not specifically referred to.
Nothing in this opinion should be taken as expressing an opinion in respect of
any representations or warranties, or other information, contained in any of the
above documents or any other document examined in connection with this opinion
except as expressly confirmed herein.
6
This opinion letter is addressed to you and may only be relied upon by you in
connection with the transactions to which the Agreement relate, and may not be
relied upon by any other person, firm, company, or institution without our prior
written consent.
Yours faithfully,
Loyens & Loeff N.V.
_______________________ _____________________
7
SCHEDULE I
OPINION ADDRESSEES
[Underwriters]
ANNEX E-3
FORM OF ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ESQ. OPINION
[Letterhead of ▇▇▇▇▇▇ Dodge Corporation]
June , 2005
Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
UBS Securities LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Ladies and Gentlemen:
I am the Assistant General Counsel and Secretary of ▇▇▇▇▇▇ Dodge Corporation, a
New York corporation ("▇▇▇▇▇▇ Dodge"). In such capacity, I am familiar with the
legal affairs of ▇▇▇▇▇▇ Dodge Overseas Capital Corporation, a Delaware
corporation ("PDOCC"), and Climax Molybdenum BV, a Dutch corporation ("Climax"
and, together with PDOCC, the "PD Entities"), both of which are subsidiaries of
▇▇▇▇▇▇ Dodge, including the sale by PDOCC on this day of - shares, and the sale
by Climax on this day of - shares (collectively, the "Shares") of the Common
Stock, $.01 par value (the "Common Stock"), of Southern Peru Copper Corporation,
a Delaware corporation (the "Company"), to the several Underwriters (the
"Underwriters") named in Schedule I to the Underwriting Agreement, dated - (the
"Underwriting Agreement"), between the Company, the stockholders of the Company
named in Schedule II to the Underwriting Agreement (the "Selling Stockholders")
and you, as Representatives of the several Underwriters. I have examined copies,
certified or otherwise identified to my satisfaction, of such documents,
certificates of public officials and other instruments as I have deemed
necessary or appropriate for purposes of this opinion. Capitalized terms used
herein without definition have the meanings specified in the Underwriting
Agreement.
Based upon the foregoing, but subject to the qualifications stated below, I am
of the opinion that, to the best of my knowledge, neither the execution and
delivery of the Underwriting Agreement nor the sale of the Shares being sold by
the PD Entities nor the consummation of any other of the transactions therein
contemplated by the PD Entities nor the fulfillment of the terms thereof by the
PD Entities will conflict with, result in a breach or violation of, or
constitute a default under any agreement or instrument known to me and to which
any of the PD Entities is a party or bound, or any judgment, order or decree
known by me to be applicable to the PD Entities of any
2
court, regulatory body, administrative agency, governmental body or arbitrator
having jurisdiction over the PD Entities.
I am delivering this opinion to you pursuant to Section 6(f) of the Underwriting
Agreement, and no persons other than the Underwriter are entitled to rely on
this opinion.
The opinions expressed herein are limited to the Federal laws of the United
States and the laws of the State of Arizona.
Very truly yours,