UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(AMENDMENT NO. 3)
Southern Peru Copper Corporation
(Name of Issuer)
COMMON STOCK, PAR VALUE $0.01 PER SHARE
(Title of Class of Securities)
843611104
(CUSIP Number)
S. DAVID COLTON, ESQ.
PHELPS DODGE CORPORATION
ONE NORTH CENTRAL AVENUE
PHOENIX, AZ 85004
(602) 234-8143
(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications)
Copy to:
MICHAEL W. BLAIR, ESQ.
DEBEVOISE & PLIMPTON LLP
919 THIRD AVENUE
NEW YORK, NY 10022
(212) 909-6000
MAY 19, 2005
(Date of Event which Requires Filing Statement on Schedule 13D)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of Sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g),
check the following box [ ].
NOTE: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Rule 13d-7 for other parties
to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class
of securities, and for any subsequent amendment containing information
which would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
(Continued on following pages)
2
SCHEDULE 13D
(AMENDMENT NO. 2)
CUSIP NO. 843611104
--------------------------------------------------------------------------------
(1) NAME OF REPORTING PERSON
Phelps Dodge Overseas Capital Corporation
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
--------------------------------------------------------------------------------
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(A) [X]
(B) [ ]
--------------------------------------------------------------------------------
(3) SEC USE ONLY
--------------------------------------------------------------------------------
(4) SOURCE OF FUNDS
N/A
--------------------------------------------------------------------------------
(5) CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ]
PURSUANT TO ITEMS 2(D) OR 2(E)
--------------------------------------------------------------------------------
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
--------------------------------------------------------------------------------
NUMBER OF (7) SOLE VOTING POWER
SHARES None
BENEFICIALLY --------------------------------------------------------
OWNED BY (8) SHARED VOTING POWER
EACH REPORTING 8,963,796 Shares
PERSON --------------------------------------------------------
WITH (9) SOLE DISPOSITIVE POWER
None
--------------------------------------------------------
(10) SHARED DISPOSITIVE POWER
8,963,796 Shares
--------------------------------------------------------------------------------
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11,173,796
--------------------------------------------------------------------------------
(12) CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[ ]
--------------------------------------------------------------------------------
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.6% of total Common Shares
--------------------------------------------------------------------------------
(14) TYPE OF REPORTING PERSON
CO
--------------------------------------------------------------------------------
3
CUSIP NO. 843611104
--------------------------------------------------------------------------------
(1) NAME OF REPORTING PERSON
Climax Molybdenum B.V.
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
--------------------------------------------------------------------------------
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(A) [X]
(B) [ ]
--------------------------------------------------------------------------------
(3) SEC USE ONLY
--------------------------------------------------------------------------------
(4) SOURCE OF FUNDS
N/A
--------------------------------------------------------------------------------
(5) CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ]
PURSUANT TO ITEMS 2(D) OR 2(E)
--------------------------------------------------------------------------------
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
Netherlands
--------------------------------------------------------------------------------
NUMBER OF (7) SOLE VOTING POWER
SHARES None
BENEFICIALLY --------------------------------------------------------
OWNED BY (8) SHARED VOTING POWER
EACH REPORTING 2,210,000 Shares
PERSON --------------------------------------------------------
WITH (9) SOLE DISPOSITIVE POWER
None
--------------------------------------------------------
(10) SHARED DISPOSITIVE POWER
2,210,000 Shares
--------------------------------------------------------------------------------
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11,173,796
--------------------------------------------------------------------------------
(12) CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[ ]
--------------------------------------------------------------------------------
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.6% of total Common Shares
--------------------------------------------------------------------------------
(14) TYPE OF REPORTING PERSON
CO
--------------------------------------------------------------------------------
4
CUSIP NO. 843611104
--------------------------------------------------------------------------------
(1) NAME OF REPORTING PERSON
Phelps Dodge Corporation
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
--------------------------------------------------------------------------------
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(A) [X]
(B) [ ]
--------------------------------------------------------------------------------
(3) SEC USE ONLY
--------------------------------------------------------------------------------
(4) SOURCE OF FUNDS
N/A
--------------------------------------------------------------------------------
(5) CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ]
PURSUANT TO ITEMS 2(D) OR 2(E)
--------------------------------------------------------------------------------
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
New York
--------------------------------------------------------------------------------
NUMBER OF (7) SOLE VOTING POWER
SHARES None
BENEFICIALLY --------------------------------------------------------
OWNED BY (8) SHARED VOTING POWER
EACH REPORTING 11,173,796 Shares
PERSON --------------------------------------------------------
WITH (9) SOLE DISPOSITIVE POWER
None
--------------------------------------------------------
(10) SHARED DISPOSITIVE POWER
11,173,796 Shares
--------------------------------------------------------------------------------
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11,173,796
--------------------------------------------------------------------------------
(12) CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[ ]
--------------------------------------------------------------------------------
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.6% of total Common Shares
--------------------------------------------------------------------------------
(14) TYPE OF REPORTING PERSON
CO
--------------------------------------------------------------------------------
5
This Amendment No. 3 ("Amendment No. 3") amends and supplements the
statement on Schedule 13D initially filed on January 12, 1996, as amended by
filings on December 29, 2004 and April 8, 2005 (the "Original Filing").
Information reported in the Original Filing remains in effect except to the
extent that it is amended, restated or superseded by information contained in
this Amendment No. 3. Capitalized terms used and not defined in this Amendment
No. 3 have the meanings set forth in the Original Filing.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
Item 3 of the Original Filing is hereby amended and restated in its entirety as
follows:
Phelps Dodge Overseas acquired an interest in the Common Stock in
connection with an exchange offer (the "Exchange Offer") conducted by the
Company, pursuant to which the Company offered to exchange its Common Stock for
any and all outstanding labor shares (the "Labor Shares") of the Peruvian
Branch(the "Branch") of Southern Peru Limited, a Delaware corporation having
substantially all of its operating assets in Peru ("SP Limited"). The Company
was formed to conduct the Exchange Offer and to act as a holding company for SP
Limited, which conducts copper mining operations in Peru through the Branch. The
Branch consists of substantially all of the assets and liabilities of SP Limited
associated with its copper operations in Peru. Pursuant to the Branch's
registration with the Peruvian government as a branch of a foreign mining
company, the Branch is deemed to have equity capital, of which SP Limited, prior
to the Exchange Offer, owned 82.69%. The remaining equity interest was
represented by the Labor Shares. The Branch was required to issue the Labor
Shares to its employees as part of a profit-sharing system under Peruvian law.
In connection with the Exchange Offer, Phelps Dodge Overseas and the
other stockholders of SP Limited (together, the "Founding Stockholders")
exchanged their common shares of SP Limited for Class A Common Stock, par value
$0.01 per share (the "Class A Common Stock"), of the Company (the "Founding
Stockholder Exchange"). The Founding Stockholder Exchange was effected
separately from the Exchange Offer in a private transaction exempt from
registration under Section 4(2) of the Securities Exchange Act of 1933, as
amended.
On December 17, 2004, Phelps Dodge Overseas transferred 2,210,000
shares of Class A Common Stock of the Company to PDC as a dividend. Through a
series of capital contributions and an inter-company purchase in exchange for a
note, the 2,210,000 shares of Class A Common Stock of the Company were
subsequently transferred to Climax on December 22, 2004. As a result of these
transactions, Phelps Dodge Overseas held 8,963,796 Shares of the Class A Common
Stock of the Company, and Climax held 2,210,000 Shares of the Class A Common
Stock of the Company.
On May 19, 2005, Phelps Dodge Overseas and Climax each converted
all of their Class A Common Stock of the Company into Common Stock of the
Company (see below).
ITEM 4. PURPOSE OF TRANSACTION
Item 4 of the Original Filing is hereby amended and restated in its
entirety as follows:
6
The Exchange Offer was conducted to (i) provide holders of Labor Shares
with an opportunity to receive securities of the Company which are listed on
both the New York Stock Exchange and the Lima Stock Exchange, (ii) establish
public trading markets in the United States and Peru for the Company's Common
Stock, (iii) simplify the Company's consolidated capital structure, and (iv)
provide the Company with improved access to capital markets.
The Founding Stockholder Exchange was conducted to achieve the goal of
providing holders of Labor Shares with representation on the Board of Directors
of the Company while maintaining ultimate stockholder direction in the hands of
the Founding Stockholders.
The transfer of 2,210,000 shares of Class A Common Stock of the Company
to Climax Molybdenum Company was conducted to implement an inter-company
restructuring.
On December 22, 2004, PDC entered into a Letter Agreement (the "Letter
Agreement") with Americas Mining Corporation ("AMC") under which AMC agreed to
use its reasonable best efforts to cause the Company to enter into a
registration rights agreement (the "Registration Rights Agreement") with PDC as
soon as possible.
On April 4, 2005, PDC, Phelps Dodge Overseas and Climax entered into a
Registration Rights Agreement (the "Registration Rights Agreement") dated as of
March 31, 2005 with the Company, AMC, Cerro Trading Company, Inc. ("Cerro") and
SPC Investors, L.L.C. ("SPC Investors").
The Registration Rights Agreement contemplates that the Company will
file as promptly as practicable, and in any event will use its reasonable best
efforts to file by April 29, 2005 (i.e. within 20 business days from the
Company's April 1, 2005 acquisition of Minera Mexico, S.A. de C.V.), a shelf
registration statement on Form S-3 (the "Registration Statement") covering the
resale of all the Company's Common Stock held by Cerro, SPC Investors, Phelps
Dodge Overseas, Climax and their respective permitted transferees (collectively,
the "Selling Stockholders") with the Securities and Exchange Commission (the
"Commission"). In general, during the first six months following the
effectiveness date of the Registration Statement (the "Initial Six-Month
Period"), the Selling Stockholders will only be permitted to sell their Common
Stock in the Company through underwritten offerings sponsored by the Company and
the Company will not be permitted to conduct primary offerings of its common
stock. The price, underwriting discount and other financial terms related to the
resale of the Company's Common Stock in connection with any underwritten
offering conducted during the Initial Six-Month Period will be subject to the
reasonable approval of each Selling Stockholder electing to participate in such
underwritten offering. Subject to monthly volume-based selling restrictions, the
Selling Stockholders may effect further sales of their Common Stock in the
Company during the six-month period following the end of the Initial Six-Month
Period, but the Company will not be obligated to sponsor any underwritten
offerings in connection with such further sales.
Pursuant to the Registration Rights Agreement, AMC, Cerro, SPC
Investors, Phelps Dodge Overseas and Climax also agreed to convert on the
effectiveness date of the Registration Statement all of their Class A Common
Stock, in accordance with the Company's Restated Certificate of Incorporation,
into an equal number of fully paid and non-assessable shares of the Company's
Common Stock.
7
The foregoing is qualified in its entirety by reference to the
Registration Rights Agreement which is filed as Exhibit 1 to Amendment No. 2 to
this statement on Schedule 13D filed on April 8, 2005 and incorporated herein by
reference.
On May 19, 2005, each of AMC, Cerro, SPC Investors, Phelps Dodge
Overseas, and Climax converted all of their Class A Common Stock into an equal
number of fully paid and non-assessable shares of the Company's Common Stock. As
a result of the conversion, Phelps Dodge Overseas currently holds 8,963,796
Shares of the Common Stock of the Company, and Climax holds 2,210,000 Shares of
the Common Stock of the Company.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
Item 5 of the Original Filing is hereby amended and restated in its entirety as
follows:
(a) Phelps Dodge Overseas is the beneficial owner of 8,963,796 shares
of Common Stock, representing 6.1% of the equity capital of the Company. Climax
is the beneficial owner of 2,210,000 shares of Common Stock, representing 1.5%
of the equity capital of the Company. As the parent company of Phelps Dodge
Overseas and Climax, PDC may be deemed to be the beneficial owner of 11,173,796
shares of Common Stock, representing 7.6% of the equity capital of the Company.
To the best knowledge of Phelps Dodge Overseas, Climax and PDC, none of
the persons listed on Schedules A, B or C attached hereto is the beneficial
owner of any shares of Common Stock, other than J. Steven Whisler, who owns 800
shares of Common Stock, and Ramiro G. Peru, who owns 600 shares of Common Stock.
(b) Phelps Dodge Overseas, Climax and PDC have the shared power to vote
or to direct the vote, and shared power to dispose or direct the disposition, of
such Common Stock.
Both J. Steven Whisler and Ramiro G. Peru have the sole power to vote
or to direct the vote, and the sole power to dispose or direct the disposition,
of the Common Stock that each owns.
(c) On January 2, 1996, the Exchange Offer and the Founding Stockholder
Exchange were completed, resulting in the acquisition by Phelps Dodge Overseas
of 11,173,796 shares of Class A Common Stock of the Company.
On December 17, 2004, Phelps Dodge Overseas transferred 2,210,000
shares of Class A Common Stock of the Company to PDC as a dividend. Through a
series of capital contributions and an inter-company purchase, the 2,210,000
shares of Class A Common Stock of the Company were subsequently transferred to
Climax on December 22, 2004.
On May 19, 2005, at the New York City office of the Company's counsel,
each of Phelps Dodge Overseas and Climax converted all of their Class A Common
Stock into an equal number of fully paid and non-assessable shares of the
Company's Common Stock.
8
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO
SECURITIES OF THE ISSUER.
Item 6 of the Original Filing is hereby amended and restated in its
entirety as follows:
Each of the Founding Stockholders, in connection with the Exchange
Offer, entered into the Stockholders' Agreement.
The Stockholders' Agreement contemplated, among other things, that the
Board of Directors of the Company will be composed of 15 members, one of whom is
the President of the Company.
Under the terms of the Stockholders' Agreement, each Founding
Stockholder had the right to nominate that number of 12 directors which was in
proportion to the percentage of Class A Common Stock owned by it (or its
affiliates) out of the aggregate Class A Common Stock then owned by all holders
of Class A Common Stock (without any minimum required number of shares), rounded
to the nearest whole Board member with 0.5 being rounded up. In the event that
the foregoing rounding procedure would permit the Founding Stockholders as a
group to nominate (i) more than 12 directors, then the Founding Stockholder
whose fractional interest in a director represented the smallest fraction of a
whole number that was rounded up would not be entitled to nominate a director
with respect to that fractional interest or (ii) less than 12 directors, then
the Founding Stockholder whose fractional interest in a director represented the
largest fraction of a whole number that was rounded down would be entitled to
nominate a director with respect to that fractional interest. In the event the
procedure described in the immediately preceding sentence would not result in 12
directors being nominated by the Founding Stockholders as a group, the procedure
described in the foregoing sentence would be repeated among the Founding
Stockholders not affected by the previous application of such procedure, as
would be necessary to achieve the required result. Each of the Foregoing
Stockholders would vote its shares of Class A Common Stock in favor of the
directors nominated in accordance with the above provisions. The Founding
Stockholders had also agreed to nominate and vote for the President as a
director.
The Stockholders' Agreement would terminate, and each share of Class A
Common Stock would automatically convert into one share of Common Stock (voting
share for share as a single class on all matters including election of
directors), if at any time the number of shares of Class A Common Stock owned by
the Founding Stockholders (or affiliates of the Founding Stockholders) were less
than 35% of the outstanding shares of Class A Common Stock and Common Stock of
the Company. In addition, the rights and obligations of each Founding
Stockholder under the Stockholders' Agreement would terminate in the event such
Founding Stockholder (or its affiliates) ceased to own shares of Class A Common
Stock.
The Stockholders' Agreement replaced a prior agreement (the "Prior
Agreement") among the Founding Stockholders which governed the election of
directors and other matters. The Founding Stockholders had agreed to terminate a
provision in the Prior Agreement relating to the acquisition of mining
concessions by the Founding Stockholders within a specified area in Southern
Peru, in which certain mines are located. The Company and the Founding
Stockholders agreed that each of the Founding Stockholders may acquire mining
concessions within this area for its own account.
9
The Stockholders' Agreement is attached as Exhibit 1 to Amendment No. 1
to this statement on Schedule 13D and is incorporated herein by reference. The
foregoing description of the Stockholders' Agreement is qualified in its
entirety by reference to the text of the Stockholders' Agreement.
On December 22, 2004, PDC entered into a Letter Agreement with AMC
under which AMC agreed to use its reasonable best efforts to cause the Company
to enter into the Registration Rights Agreement with PDC as soon as possible.
The description of the Letter Agreement under Item 4 is incorporated herein by
reference in its entirety.
On April 4, 2005, PDC, Phelps Dodge Overseas and Climax entered into a
Registration Rights Agreement dated as of March 31, 2005 with the Company, AMC,
Cerro and SPC Investors. The description of the Registration Rights Agreement
under Item 4 is incorporated herein by reference in its entirety.
On May 19, 2005, each of AMC, Cerro, SPC Investors, Phelps Dodge
Overseas,
and Climax converted all of their Class A Common Stock into an equal number of
fully paid and non-assessable shares of the Company's Common Stock. As a result
of the conversion, the Stockholders' Agreement terminated in accordance with its
terms.
ITEM 7. MATERIALS TO BE FILED AS EXHIBITS.
Exhibit No. Title
----------- -----
1 Joint Filing Agreement, dated June 3, 2005, between Phelps
Dodge Overseas Capital Corporation, Climax Molybdenum B.V. and
Phelps Dodge Corporation
10
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: June 3, 2005
PHELPS DODGE OVERSEAS CAPITAL
CORPORATION
By: /s/ S. David Colton
----------------------------
Name: S. David Colton
Title: Senior Vice President &
Gen. Counsel
CLIMAX MOLYBDENUM B.V.
By: /s/ David H. Thornton
---------------------------
Name: David H. Thornton
Title: Director
PHELPS DODGE CORPORATION
By: /s/ S. David Colton
---------------------------
Name: S. David Colton
Title: Senior Vice President &
Gen. Counsel
11