<PAGE>
As filed with the Securities and Exchange Commission on September 14, 1999
Registration No. 333-85603
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 1
To
FORM S-4
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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ASARCO CYPRUS INCORPORATED
(Exact Name of Registrant as Specified in its Charter)
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Delaware 3330 13-4070384
(State or Other (Primary Standard (I.R.S. Employer
Jurisdiction Industrial Identification Number)
of Incorporation or Classification Code
Organization) Number)
180 Maiden Lane
New York, New York 10038
(212) 510-2000
(Address, Including Zip Code, and Telephone Number, Including
Area Code, of Registrant's Principal Executive Offices)
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Francis R. McAllister
Milton H. Ward
Co-Chief Executive Officers
Asarco Cyprus Incorporated
180 Maiden Lane
New York, New York 10038
(212) 510-2000
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent For Service)
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Copies to:
J. Michael
Schell, Esq. Augustus B. Philip C. Wolf, Esq. Elliott V. Stein,
Margaret L. Kinsolving, Esq. Cyprus Amax Minerals Esq.
Wolff, Esq. ASARCO Company Wachtell, Lipton,
Skadden, Arps, Incorporated 9100 East Mineral Rosen & Katz
Slate, 180 Maiden Lane Circle 51 West 52nd Street
Meagher & Flom New York, New York Englewood, Colorado New York, New York
LLP 10038 80112 10019
919 Third Avenue (212) 510-2000 (303) 643-5000 (212) 403-1000
New York, New
York 10022
(212) 735-3000
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Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effectiveness of this Registration Statement and the
satisfaction or waiver of all other conditions to the business combination
described in the Agreement and Plan of Merger, dated as of July 15, 1999.
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If the securities being registered on this form are to be offered in
connection with the formation of a holding company and there is compliance
with General Instruction G, check the following box. [_]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_] .
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
Registration statement number of the earlier effective registration statement
for the same offering. [X] Reg. No. 333-85603
The Registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this
registration statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933, or until the registration
statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
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<PAGE>
EXPLANATORY NOTE
Asarco Cyprus Incorporated (the "Registrant") hereby amends its Registration
Statement on Form S-4 (No. 333-85603), declared effective on August 20, 1999
(the "Registration Statement"), by filing this post-effective amendment No. 1
(this "Amendment"). This Amendment is being filed solely to amend Exhibit 12.1
of the Registration Statement.
<PAGE>
PART II--Information Not Required in Prospectus
Item 20. Indemnification of Directors and Officers.
The Amended and Restated Certificate of Incorporation and the Amended and
Restated Bylaws of Asarco Cyprus Incorporated require the indemnification of
directors and officers to the fullest extent permitted by law.
Section 145 of the Delaware General Corporation Law authorizes and empowers
Asarco Cyprus Incorporated to indemnify the directors, officers, employees and
agents of Asarco Cyprus Incorporated against liabilities incurred in connection
with and related expenses resulting from any claim, action or suit brought
against any such person as a result of his relationship with Asarco Cyprus
Incorporated, provided that such persons acted in good faith and in a manner
such persons reasonably believed to be in, and not opposed to, the best
interests of Asarco Cyprus Incorporated in connection with the acts or events
on which such claim, action or suit is based. The finding of either civil or
criminal liability on the part of such persons in connection with such acts or
events is not necessarily determinative of the question of whether such persons
have met the required standard of conduct and are, accordingly, entitled to be
indemnified. The foregoing statements are subject to the detailed provisions of
Section 145 of the General Corporation law of the State of Delaware.
Article 6 of the Amended and Restated Bylaws of the Registrant provides that
the Registrant shall indemnify to the fullest extent permitted by law any
person who is made, or threatened to be made a party to, or who is otherwise
involved in, any action or proceeding by reason of the fact that he or she is
or was a director or officer of the Registrant, or by reason of the fact that
such director or officer, at the request of the Registrant, is or was serving
any other corporation, partnership, joint venture, trust, employee benefit plan
or other enterprise, in any capacity.
Item 21. Exhibits and Financial Statement Schedules.
(a) Exhibits.
<TABLE>
<C> <S>
* 2.1 Agreement and Plan of Merger, dated as of July 15, 1999, among Asarco
Cyprus Incorporated, ACO Acquisition Corp., CAM Acquisition Corp.,
ASARCO Incorporated and Cyprus Amax Minerals, is included as Appendix
A to the Joint Proxy Statement and Prospectus which is part of this
Registration Statement.
* 3.1 Form of Amended and Restated Certificate of Incorporation of the
Registrant, is included as Exhibit C to Appendix A to the Joint Proxy
Statement and Prospectus which is part of this Registration Statement.
* 3.2 Form of Amended and Restated Bylaws of the Registrant, is included as
Exhibit D to Appendix A to the Joint Proxy Statement and Prospectus
which is part of this Registration Statement.
* 4.1 Form of Rights Agreement between Asarco Cyprus Incorporated and The
Bank of New York, as Rights Agent.
* 5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP as to the legality
of the shares being issued.
12.1 Statement Re: Computation of Consolidated Ratio of Earnings to
Combined Fixed Charges and Preferred Stock Dividends.
*15.1 Letter from PricewaterhouseCoopers LLP, New York, New York, re:
unaudited interim financial information.
*15.2 Letter from PricewaterhouseCoopers LLP, Denver, Colorado, re:
unaudited interim financial information.
*21.1 List of Subsidiaries.
*23.1 Consent of PricewaterhouseCoopers LLP, New York, New York.
</TABLE>
II-1
<PAGE>
<TABLE>
<C> <S>
*23.2 Consent of PricewaterhouseCoopers LLP, Denver, Colorado.
*23.3 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in
Exhibit 5.1).
*24.1 Powers of Attorney (included as part of the signature page of this
Registration Statement).
*99.1 Consent of Credit Suisse First Boston Corporation, New York, New York.
*99.2 Consent of Merrill Lynch, Pierce, Fenner & Smith Incorporated, New
York.
</TABLE>
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*Previously filed.
(b)Financial Statement Schedules.
None.
(c)Item 4(b) Information.
None.
Item 22. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this registration statement (or the most recent
post-effective amendment hereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this registration statement or
any material change to such information in this registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes as follows: that prior to
any public reoffering of the securities registered hereunder, through use of a
prospectus which is a part of this registration statement, by any person or
party who is deemed to be an underwriter within the meaning of Rule 145(c) of
the Securities Act of 1933, the issuer undertakes that such reoffering
prospectus will contain the information called for by the applicable
registration form with respect to reofferings by persons who may be deemed
underwriters, in addition to the information called for by the other items of
the applicable form.
(c) The undersigned registrant hereby undertakes that every prospectus: (i)
that is filed pursuant to the paragraph immediately preceding, or (ii) that
purports to meet the requirements of Section 10(a)(3) of the Securities Act of
1933 and is used in connection with an offering of securities subject to Rule
415, will be filed
II-2
<PAGE>
as a part of an amendment to the registration statement and will not be used
until such amendment is effective, and that, for purposes of determining any
liability under the Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(d) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
(e) The undersigned registrant hereby undertakes to respond to requests for
information that is incorporated by reference into the prospectus pursuant to
Item 4, 10(b), 11, or 13 of this form, within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means. This includes information contained in documents
filed subsequent to the effective date of the registration statement through
the date of responding to the request.
(f) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(g) The undersigned registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of New York, State of New
York, on September 13, 1999.
Asarco Cyprus Incorporated
/s/ Milton H. Ward
By: _________________________________
Name: Milton H. Ward
Title:Chairman and Co-Chief
Executive Officer
/s/ Francis R. McAllister
By: _________________________________
Name: Francis R. McAllister
Title:President and Co-Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following in the capacities
indicated and on September 13, 1999.
<TABLE>
<S> <C>
/s/ Milton H. Ward Chairman of the Board and Co-Chief
---------------------------------- Executive Officer and Director
(Principal Executive Officer)
Milton H. Ward
/s/ Francis R. McAllister President and Co-Chief Executive
---------------------------------- Officer and Director (Principal
Executive Officer)
Francis R. McAllister
/s/ Jeffrey G. Clevenger Executive Vice President and Chief
---------------------------------- Operating Officer and Director
Jeffrey G. Clevenger
/s/ Kevin R. Morano Executive Vice President and Chief
---------------------------------- Financial Officer and Director
(Principal Financial Officer and
Kevin R. Morano Principal Accounting Officer)
</TABLE>
II-4
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
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<C> <S>
* 2.1 Agreement and Plan of Merger, dated as of July 15, 1999, among
Asarco Cyprus Incorporated, ACO Acquisition Corp., CAM Acquisition
Corp., ASARCO Incorporated and Cyprus Amax Minerals, is included
as Appendix A to the Joint Proxy Statement and Prospectus which is
part of this Registration Statement.
* 3.1 Form of Amended and Restated Certificate of Incorporation of the
Registrant, is included as Exhibit C to Appendix A to the Joint
Proxy Statement and Prospectus which is part of this Registration
Statement.
* 3.2 Form of Amended and Restated Bylaws of the Registrant, is included
as Exhibit D to Appendix A to the Joint Proxy Statement and
Prospectus which is part of this Registration Statement.
* 4.1 Form of Rights Agreement between Asarco Cyprus Incorporated and
The Bank of New York, as Rights Agent.
* 5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP as to the
legality of the shares being issued.
12.1 Statement Re: Computation of Consolidated Ratio of Earnings to
Combined Fixed Charges and Preferred Stock Dividends.
*15.1 Letter from PricewaterhouseCoopers LLP, New York, New York, re:
unaudited interim financial information.
*15.2 Letter from PricewaterhouseCoopers LLP, Denver, Colorado, re:
unaudited interim financial information.
*21.1 List of Subsidiaries.
*23.1 Consent of PricewaterhouseCoopers LLP, New York, New York.
*23.2 Consent of PricewaterhouseCoopers LLP, Denver, Colorado.
*23.3 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in
Exhibit 5.1).
*24.1 Powers of Attorney (included as part of the signature page of this
Registration Statement).
*99.1 Consent of Credit Suisse First Boston Corporation, New York, New
York.
*99.2 Consent of Merrill Lynch, Pierce, Fenner & Smith Incorporated, New
York.
</TABLE>
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* Previously filed.
(b) Financial Statement Schedules.
None.
(c) Item 4(b) Information.
None.
<PAGE>
Exhibit 12
Cyprus Amax Minerals Company
Computation of Historical Ratio of Earnings to Combined Fixed Charges
and Preferred Stock Dividend Requirements
(dollars amounts in thousands)
Exhibit 12
<TABLE>
<CAPTION>
Six Months
Ended June 30, Year ended December 31,
----------------------- ------------------------------------------------------------
1999 1998 1998 1997 1996 1995 1994
--------- --------- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
Income (loss) from continuing operations ...$ (76,473) $ (53,167) $(134,014) $ 89,257 $ 14,739 $ 367,161 $ 103,770
Income tax (benefit) provision ............. (14,175) (9,310) (5,037) (15,823) (8,842) 79,993 35,307
--------- --------- --------- --------- --------- --------- ---------
$ (90,648) $ (62,477) $(139,051) $ 73,434 $ 5,897 $ 447,154 $ 139,077
========= ========= ========= ========= ========= ========= =========
Fixed Charges:
Interest and debt cost amortization . $ 70,397 $ 89,241 $ 160,193 $ 196,348 $ 181,665 $ 122,309 $ 84,171
Interest portion of rent expense (a) 1,611 2,746 5,599 6,447 8,022 7,187 7,923
--------- --------- --------- --------- --------- --------- ---------
Total Fixed Charges ............. 72,008 91,987 165,792 202,795 189,687 129,496 92,094
Preferred Stock Dividends .................. 9,329 9,329 18,657 28,046 18,657 22,812 25,035
--------- --------- --------- --------- --------- --------- ---------
Combined Fixed Charges and Preferred
Stock Dividends ..................... $ 81,337 $ 101,316 $ 184,449 $ 230,841 $ 208,344 $ 152,308 $ 117,129
========= ========= ========= ========= ========= ========= =========
Adjusted Earnings (Loss) Before Income Taxes
and Fixed Charges ................... $ (1,812) $ 31,217 $ 79,236 $ 296,101 $ 100,081 $ 517,944 $ 227,181
========= ========= ========= ========= ========= ========= =========
Ratio of Earnings to Combined Fixed Charges
and Preferred Stock Dividends ........... (b) (b) (b) 1.3 (b) 3.4 1.9
========= ========= ========= ========= ========= ========= =========
</TABLE>
(a) Represents one-third of rent expense which management believes represents
interest.
(b) Earnings for the six months ended June 30,1999 and 1998 and the years
ended December 31,1998 and 1996 were inadequate to cover combined fixed
charges and preferred stock dividends requirements by $83,149, $70,099,
$105,213, $108,263, respectively.
<PAGE>
ASARCO Incorporated
Computation of Historical Ratio of Earnings to Fixed Charges
(dollar amounts in thousands)
<TABLE>
<CAPTION>
Six Months
Ended June 30, Year ended December 31,
---------------------- ---------------------------------------------------------
1999 1998 1998 1997 1996 1995 1994
--------- --------- -------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
Income (loss) from continuing operations .... $ (56,381) $ (46,348) $(130,640) $ 143,392 $ 138,336 $ 169,153 $ 64,034
Income tax (benefit) provision .............. (25,083) (15,975) (53,016) 73,571 100,572 122,916 14,238
--------- --------- --------- --------- --------- --------- ---------
$ (81,464) $ (62,323) $(183,656) $ 216,963 $ 238,908 $ 292,069 $ 78,272
========= ========= ========= ========= ========= ========= =========
Fixed Charges:
Interest and debt cost amortization .. $ 42,024 $ 39,134 $ 80,317 $ 79,762 $ 79,281 $ 95,210 $ 63,398
Interest portion of rent expense (b) . 4,295 2,754 8,068 5,210 4,272 4,306 2,979
--------- --------- --------- --------- --------- --------- ---------
Total Fixed Charges .............. 46,319 41,888 88,385 84,972 83,553 99,516 66,377
Preferred Stock Dividends.................... -- -- -- -- -- -- --
--------- --------- --------- --------- --------- --------- ---------
Combined Fixed Charges and Preferred
Stock Dividends ...................... $ 46,319 $ 41,888 $ 88,385 $ 84,972 $ 83,553 $ 99,516 $ 66,377
========= ========= ========= ========= ========= ========= =========
Adjusted Earnings (Loss) Before Income Taxes
and Fixed Charges .................... $ (35,904) $ (8,570) $ (78,247) $ 385,426 $ 409,789 $ 520,361 $ 108,101
========= ========= ========= ========= ========= ========= =========
Ratio of Earnings to Fixed Charges (a) (a) (a) 4.5 4.9 5.2 1.6
========= ========= ========= ========= ========= ========= =========
</TABLE>
(a) Earnings for the six months ended June 30,1999 and 1998 and the year
ended December 31,1998 were inadequate to cover fixed charges by $82,223
$50,458 and $166,632, respectively.
(b) Represents one-third of rent expense which management believes
represents interest.
<PAGE>
Asarco Cyprus Incorporated
Computation of Proforma Ratio of Earnings to Combined Fixed Charges
and Preferred Stock Dividend Requirements
(dollar amounts in thousands)
<TABLE>
<CAPTION>
Six Months
Ended Full Year
June 30, 1999 1998
------------- ---------
<S> <C> <C>
Income (loss) from continuing operations .............................$(113,854) $(230,854)
Income tax (benefit) provision ....................................... (24,258) (24,253)
---------- ---------
$(138,112) $(255,107)
========= =========
Fixed Charges:
Interest and debt cost amortization ..........................$ 114,921 $ 245,510
Interest portion of rent expense (a) ......................... 5,906 13,667
--------- ---------
Total Fixed Charges ...................................... 120,827 259,177
Preferred Stock Dividends ............................................ 9,329 18,657
--------- ---------
Combined Fixed Charges and Preferred
Stock Dividends ..............................................$ 130,156 $ 277,834
========= =========
Adjusted Earnings (Loss) Before Income Taxes
and Fixed Charges ............................................$ (1,216) $ 73,589
========= =========
Ratio of Earnings to Combined Fixed Charges and
Preferred Stock Dividends .................................... (b) (b)
========= =========
</TABLE>
(a) Represents one-third of rent expense which management believes represents
interest.
(b) Earnings for the six months ended June 30,1999 and the year ended December
31,1998 were inadequate to cover combined fixed charges and preferred
stock dividends requirements by $131,372 and $204,245, respectively.
