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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 14D-9/A
(AMENDMENT NO. 7)
SOLICITATION/RECOMMENDATION STATEMENT
PURSUANT TO SECTION 14(D)(4) OF THE
SECURITIES EXCHANGE ACT OF 1934
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ASARCO INCORPORATED
(Name of Subject Company)
ASARCO INCORPORATED
(Name of Person(s) Filing Statement)
COMMON STOCK, NO PAR VALUE PER SHARE
(Title of Class of Securities)
043413103
(CUSIP NUMBER OF CLASS OF SECURITIES)
FRANCIS R. MCALLISTER
ASARCO INCORPORATED
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
180 MAIDEN LANE
NEW YORK, NEW YORK 10038
(212) 510-2000
(Name, address and telephone number of person
authorized to receive notice and communications on
behalf of the person(s) filing statement).
With Copies to:
J. MICHAEL SCHELL
MARGARET L. WOLFF
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
919 THIRD AVENUE
NEW YORK, NEW YORK 10022
(212) 735-3000
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This Amendment No. 7 to the Solicitation/Recommendation Statement on
Schedule 14D-9 relates to the exchange offer for all of the outstanding
shares of ASARCO Common Stock which is described in a Tender Offer
Statement on Schedule 14D-1 of Phelps Dodge Corporation, a New York
corporation ("Phelps Dodge"), filed with the Securities and Exchange
Commission on September 3, 1999, as amended by Amendment No. 1 thereto,
filed with the Commission on September 22, 1999, which incorporates the
prospectus of Phelps Dodge contained in the Registration Statement on Form
S-4 of Phelps Dodge filed with the Commission on August 27, 1999, as
amended by Amendment No. 1 thereto filed with the Commission on September
1, 1999, Amendment No. 2 thereto filed with the Commission on September 2,
1999 and Post-Effective Amendment No. 1 thereto filed with the Commission
on September 22, 1999. Capitalized terms not defined herein shall have the
meanings ascribed to them in the Agreement and Plan of Merger (the "Merger
Agreement"), dated as of July 15, 1999, among Asarco Cyprus Incorporated, a
Delaware corporation, ACO Acquisition Corp., a New Jersey corporation, CAM
Acquisition Corp., a Delaware corporation, ASARCO Incorporated, a New
Jersey corporation ("ASARCO"), and Cyprus Amax Minerals Company, a Delaware
corporation ("Cyprus").
ITEM 7. CERTAIN NEGOTIATIONS AND TRANSACTIONS BY THE SUBJECT COMPANY
Subsection (b) of Item 7 is hereby amended by adding the following:
On September 27, 1999, ASARCO and Cyprus entered into Amendment No. 1
("Amendment No. 1") to the Merger Agreement, a copy of which is attached
hereto as Exhibit 27 and incorporated herein by reference, pursuant to
which, among other things:
1. ASARCO and Cyprus permit one another to explore all alternatives
to the Merger Agreement.
2. Each party is free to act independently of the other until 9:00
A.M., New York City time, on Tuesday, October 5, 1999.
3. During this period either party may unilaterally terminate the
Merger Agreement upon payment of the applicable termination fee.
4. If the Merger Agreement is not terminated prior to Tuesday,
October 5, 1999 at 9:00 A.M., the original terms of the Merger Agreement
will be reinstated in their entirety.
5. The ASARCO Shareholders Meeting and the Cyprus Shareholders
Meeting, currently scheduled to be held on September 30, 1999, will be
postponed until October 7, 1999.
In addition, on September 28, 1999, ASARCO issued a press release,
summarizing the terms of Amendment No. 1, a copy of which is attached
hereto as Exhibit 28.
ITEM 9. MATERIAL TO BE FILED AS EXHIBITS
Exhibit 27. Amendment No.1, dated September 27, 1999, to the Merger
Agreement.
Exhibit 28. Press Release of ASARCO and Cyprus, dated September 28, 1999.
Exhibit 29. Press Release of ASARCO, dated September 26, 1999.
SIGNATURE
After reasonable inquiry and to the best of its knowledge and belief,
the undersigned certifies that the information set forth in this statement
is true, complete and correct.
ASARCO INCORPORATED
By /s/ Francis R. McAllister
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Name: Francis R. McAllister
Title: Chairman and
Chief Executive Officer
Dated: September 28, 1999
EXHIBIT INDEX
Exhibit 27. Amendment No.1, dated September 27, 1999, to the Merger
Agreement.
Exhibit 28. Press Release of ASARCO and Cyprus, dated September 28, 1999.
Exhibit 29. Press Release of ASARCO, dated September 26, 1999.
AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
AMENDMENT NO. 1 (this "Amendment No. 1"), dated as of September
27, 1999, amending the Agreement and Plan of Merger (the "Merger
Agreement"), dated as of July 15, 1999, among ASARCO CYPRUS INCORPORATED, a
Delaware corporation ("Parent"), ACO ACQUISITION CORP., a New Jersey
corporation, CAM ACQUISITION CORP., a Delaware corporation, ASARCO
INCORPORATED, a New Jersey corporation ("ASARCO"), and CYPRUS AMAX MINERALS
COMPANY, a Delaware corporation ("Cyprus").
WHEREAS, each of ASARCO and Cyprus has determined to postpone
until October 7, 1999 the meeting of its respective shareholders to
consider and vote upon a proposal to approve and adopt the Merger
Agreement;
WHEREAS, the parties have agreed to permit one another for a
limited period of time to explore alternatives to the Merger Agreement;
WHEREAS, Section 7.4 of the Merger Agreement provides for the
amendment of the Merger Agreement in accordance with the terms set forth
therein; and
WHEREAS, the parties hereto desire to amend the Merger
Agreement in certain respects;
NOW, THEREFORE, in consideration of the representations,
warranties, covenants and agreements contained in this Amendment No. 1, and
fully intending to be legally bound hereby, the parties agree as follows:
1. Definitions. Capitalized terms used herein and not otherwise
defined herein shall have the meanings provided therefor in the Merger
Agreement.
2. Suspension of Certain Covenants. The parties hereto hereby
agree that the covenants of the parties contained in Sections 5.10(a),
(b)(iii) and (c) and 5.11(a), (b)(iii) and (c) of the Merger Agreement
shall be suspended and shall be of no force or effect during the period
(the "Suspension Period") beginning upon the execution and delivery of this
Amendment No. 1 and ending at 9:00 A.M., New York City time, on Tuesday,
October 5, 1999; provided, that Section 5.10(b)(iii) is suspended during
such period only to the extent necessary for Cyprus to enter into any
confidentiality agreement related to any Cyprus Takeover Proposal and
provided that Section 5.11(b)(iii) is suspended during such period only to
the extent necessary for ASARCO to enter into any confidentiality agreement
related to any ASARCO Takeover Proposal.
3. Right to Terminate. Either ASARCO or Cyprus may, at any time
prior to the expiration of the Suspension Period, unilaterally terminate
the Merger Agreement for any reason by delivery of a written notice to the
other party to such effect exercising such right; provided that
contemporaneously or prior to delivery of such notice the party terminating
the Merger Agreement shall pay to the non-terminating party $45 million in
the case that Cyprus is the terminating party and $40 million in the case
that ASARCO is the terminating party, payable by wire transfer of
immediately available funds; provided, further, that no termination
pursuant to Section 3 of this Amendment No. 1 shall be effective prior to
receipt by the non-terminating party of such payment. The right to
terminate the Merger Agreement provided in this Section 3 shall expire
simultaneously with the expiration of the Suspension Period. In the event
that the Merger Agreement is terminated pursuant to this paragraph 3,
neither party shall be entitled to any payment pursuant to Section 7.3 of
the Merger Agreement.
4. Postponement of Shareholders Meetings. The ASARCO
Shareholders Meeting and the Cyprus Shareholders Meeting, currently
scheduled to be held on September 30, 1999, shall be postponed until
October 7, 1999.
5. Reinstatement of Merger Agreement. In the event that the
Merger Agreement is not terminated pursuant to Section 3 above, the Merger
Agreement shall be reinstated in its entirety and the provisions of this
Amendment No. 1 shall be null and void and shall cease to be of any further
force or effect; provided, that any action taken or failure to act by
either party during the Suspension Period in reliance on this Amendment No.
1 shall be deemed to be in conformity with the Merger Agreement.
6. Miscellaneous. To the extent that any provision of this
Amendment No. 1 contravenes or is inconsistent with any provision of the
Merger Agreement, to the extent such latter provision would be effective or
operative during the Suspension Period, the provisions of this Amendment
No. 1 shall supercede any contrary or inconsistent provision contained in
the Merger Agreement. Except as otherwise provided hereby, the terms and
conditions of the Merger Agreement shall continue in full force and effect.
Wherever the Merger Agreement is referred to in the Merger Agreement or in
any other agreements, documents and instruments, such reference shall be to
the Merger Agreement as amended hereby.
7. Counterparts. This Amendment No. 1 may be executed in two or
more consecutive counterparts, each of which shall be an original, with the
same effect as if the signatures thereto and hereto were upon the same
instrument, and shall become effective when one or more counterparts have
been signed by each of the parties and delivered (by telecopy or otherwise)
to the other parties.
8. Governing Law. This Amendment No. 1 shall be governed by and
construed in accordance with the laws of the State of Delaware, without
regard to the principles of conflicts of laws thereof, except to the extent
the provisions of this Amendment No. 1 are expressly governed by or derive
their authority from the NJBCA.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 1 to be duly executed and delivered as of the date first
above written.
ACA HOLDING INCORPORATED
By: /s/ Milton H. Ward
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Name: Milton H. Ward
Title: Chairman and Co-Chief Executive Officer
By: /s/ Francis R. McAllister
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Name: Francis R. McAllister
Title: President and Co-Chief Executive Officer
ACO ACQUISITION CORP.
By: /s/ Francis R. McAllister
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Name: Francis R. McAllister
Title: Vice President
CAM ACQUISITION CORP.
By: /s/ Gerald J. Malys
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Name: Gerald J. Malys
Title: President and Treasurer
ASARCO INCORPORATED
By: /s/ Francis R. McAllister
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Name: Francis R. McAllister
Title: Chairman and Chief Executive Officer
CYPRUS AMAX MINERALS COMPANY
By: /s/ Milton H. Ward
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Name: Milton H. Ward
Title: Chairman and Chief Executive Officer
FOR IMMEDIATE RELEASE
CYPRUS AMAX AND ASARCO AMEND MERGER AGREEMENT
NEW YORK, NY, SEPTEMBER 28, 1999 -- ASARCO Incorporated (NYSE:AR) today
announced that it and Cyprus Amax (NYSE:CYM) have amended their merger
agreement to permit each other to explore all strategic alternatives to
maximize value for their shareholders. The companies have agreed that
each is free to act independently of the other until 9:00 a.m. (New York
time) on Tuesday, October 5, 1999. During that period either company
can unilaterally terminate the agreement upon payment of the applicable
termination fee. The Company said that if the merger agreement is not
terminated prior to that Tuesday morning the original terms of the
agreement will be reinstated in their entirety.
ASARCO also said that it and Cyprus Amax had agreed to postpone their
shareholder meetings currently scheduled for September 30, 1999.
ASARCO NEWS
ASARCO TO EXPLORE STRATEGIC
ALTERNATIVES SEEKING TO MAXIMIZE
SHAREHOLDER VALUE
New York, NY, September 26, 1999 -- ASARCO Incorporated (NYSE:AR) announced
today that its Board of Directors has authorized management to explore all
available strategic alternatives that could maximize shareholder value.
Consistent with the Cyprus Amax and Asarco merger agreement, negotiations
are underway in pursuit of this strategic objective. The alternatives being
explored could lead to and involve further negotiations that may result in:
o completion of its currently pending merger with Cyprus Amax
Minerals Company or a merger or reorganization involving the Company
and another company;
o a purchase, sale or transfer of a material amount of assets by
the Company;
o a tender or exchange offer for or other acquisition of
securities of the Company; or
o a material change in the present capitalization or dividend
policy of the Company.
Asarco stated, however, that it could give no assurance that any
transaction would result from these efforts.
The Company noted further that the Board has determined that, prior
to having an agreement in principle, premature disclosure of the possible
terms of any transactions or proposals could jeopardize the initiation or
continuation of negotiations of those transactions and has, accordingly,
determined not to disclose the possible terms or parties involved, until
such an agreement is reached.
