SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A/A
Amendment No. 3
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
ASARCO Incorporated
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(Exact name of registrant as specified in its charter)
New Jersey 13-492440
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(State or other jurisdiction (IRS Employer
of incorporation) Identification No.)
180 Maiden Lane, New York, New York 10038
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(Address of principal executive offices) (Zip Code)
If this Form relates to the registration of a class of debt securities and is
effective upon filing pursuant to General Instruction A.(c)(1), please check the
following box. [ ]
If this Form relates to the registration of a class of debt securities and is to
become effective simultaneously with the effectiveness of a concurrent
registration statement under the Securities Act of 1933 pursuant to General
Instruction A.(c)(2), please check the following box. [ ]
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
Rights to purchase Junior
Participating Preferred Stock New York Stock Exchange
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Securities to be registered pursuant to Section 12(g) of the Act:
None
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(Title of class)
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Item 1. Description of Securities to be Registered.
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On January 28, 1998, the Board of Directors of ASARCO
Incorporated (the "Company") approved the extension of the Company's existing
shareholder rights plan by adopting a rights plan substantially similar to the
Company's current rights plan. Pursuant to a new Rights Agreement between the
Company and The Bank of New York, as Rights Agent (the "1998 Rights Agreement"),
one Right will be issued for each outstanding share of the Company's common
stock, without par value, on the earlier to occur of the expiration of the
existing rights (August 7, 1999) or the redemption of such Rights in accordance
with the terms of the current rights plan. Each of the new Rights will entitle
the registered holder to purchase from the Company one one-hundredth of a share
of its Junior Participating Preferred Stock, without par value, at a price of
$90.00 per one one-hundredth of a share. The new Rights are redeemable under
certain circumstances at $.01 per Right and will expire, unless earlier
redeemed, on January 31, 2008.
On July 15, 1999, the Board of Directors of the Company approved
amendments to the current rights plan and the new rights plan to permit the
Company to consummate the transactions contemplated by an agreement and plan of
merger between the Company and Cyprus Amax Minerals Company without causing the
rights to become exercisable.
The description and terms of the current Rights are set forth in
the Rights Agreement dated as of July 26, 1989, as amended as of September 24,
1992, February 23, 1995, and July 15, 1999, which is incorporated herein by
reference, and the description and terms of the new Rights are set forth in the
1998 Rights Agreement, as amended as of July 15, 1999, which is also
incorporated herein by reference.
Item 2. Exhibits.
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Item 2 is hereby amended to include the following exhibits:
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Exhibit No. Exhibit
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4.1 Form of Rights Agreement dated as of
July 26, 1989, between the Company and
First Chicago Trust Company of New York,
as Rights Agent, defining the rights of
shareholders under a July 1989 Shareholders'
Rights plan and dividend declaration
4.2 Rights Agreement Amendment dated as of
September 24, 1992, between the Company
and The Bank of New York, as Successor
Rights Agent under the Rights Agreement
listed above
4.3 Second Rights Agreement Amendment
dated as of February 23, 1995, between
the Company and The Bank of New York
4.4 Amendment Number Three dated as of July 15,
1999, to Rights Agreement, dated as of
July 26, 1989, between the Company
and The Bank of New York, as Rights Agent
4.5 Rights Agreement, dated as of January 28, 1998,
between the Company and The Bank of New York,
as Rights Agent, which includes as Exhibit A
thereto, the form of Right Certificate
4.6 Amendment Number One dated as of July 15
1999, to Rights Agreement, dated as of
January 28, 1998, between the Company
and The Bank of New York, as Rights Agent
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<PAGE>
SIGNATURES
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
ASARCO Incorporated
(Registrant)
By: /s/ Francis R. McAllister
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Francis R. McAllister
Chairman and Chief
Executive Officer
Dated: July 22, 1999
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<PAGE>
INDEX TO EXHIBITS
Indexed
Exhibit No. Exhibit on page
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4.1 Form of Rights Agreement dated as of
July 26, 1989, between the Company and
First Chicago Trust Company of New York,
as Rights Agent, defining the rights of
shareholders under a July 1989 Shareholders'
Rights plan and dividend declaration
(Filed as an Exhibit to the Company's report
on Form 8-K filed on July 28, 1989 and
incorporated herein by reference)
4.2 Rights Agreement Amendment dated as of
September 24, 1992, between the Company
and The Bank of New York, as Successor
Rights Agent under the Rights Agreement
listed above
(Filed as an Exhibit to the Company's
1992 Annual Report on Form 10-K and
incorporated herein by reference)
4.3 Second Rights Agreement Amendment
dated as of February 23, 1995, between
the Company and The Bank of New York
(Filed as an Exhibit to the Company's
report on Form 8-K filed on February 24,
1995, and incorporated herein by reference)
4.4 Amendment Number Three dated as of July 15, 6
1999, to Rights Agreement, dated as of
July 26, 1989, between the Company
and The Bank of New York, as Rights Agent
4.5 Rights Agreement, dated as of
January 28, 1998, between the Company
and The Bank of New York, as Rights Agent,
which includes as Exhibit A thereto,
the form of Right Certificate (filed
as Exhibit No. 4 to the Company's
Current Report on Form 8-K, filed on
March 2, 1998, and incorporated herein
by reference)
4.6 Amendment Number One dated as of July 15, 10
1999, to Rights Agreement, dated as of
January 28, 1998, between the Company
and The Bank of New York, as Rights Agent
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<PAGE>
Exhibit 4.4 Amendment Number Three dated as of July 15,1999
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to Rights Agreement, dated as of July 26, 1989,
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between the Company and The Bank of New York, as Rights Agent
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AMENDMENT TO 1989 RIGHTS AGREEMENT
Amendment Number Three, dated as of July 15, 1999, to the
Rights Agreement, dated as of July 26, 1989, as amended as of September 24, 1992
and February 23, 1995 (the "1989 Rights Agreement"), between ASARCO
Incorporated, a New Jersey corporation (the "Company"), and The Bank of New
York, as successor Rights Agent (the "Rights Agent").
WHEREAS, the Company and the Rights Agent entered into the
1989 Rights Agreement specifying the terms of the Rights (as defined therein);
WHEREAS, the Company desires to amend the 1989 Rights
Agreement in accordance with Section 26 of the 1989 Rights Agreement;
WHEREAS, the Company proposes to enter into the Agreement and
Plan of Merger, dated as of July 15, 1999 (the "Merger Agreement"), among ACA
Holding Incorporated, ACO Acquisition Corp., CAM Acquisition Corp., the Company
and Cyprus Amax Minerals Company;
WHEREAS, the Board of Directors of the Company deems it
advisable and in the best interest of its shareholders to amend the 1989 Rights
Agreement to enable the Company to enter into the Merger Agreement and
consummate the transactions contemplated thereby without causing the Rights to
become exercisable.
NOW, THEREFORE, in consideration of the premises and
mutual agreements set forth herein and in the 1989 Rights Agreement, the
parties hereby agree as follows:
Section 1. Definitions. Capitalized terms used and not
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otherwise defined herein shall have the meaning assigned to such terms in the
1989 Rights Agreement.
Section 2. Amendments to the 1989 Rights Agreement. The
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1989 Rights Agreement is hereby amended as set forth in this Section 2.
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<PAGE>
(a) The definition of "Acquiring Person" in Section
1(a) of the 1989 Rights Agreement is hereby amended by adding the
following sentence at the end thereof:
"Notwithstanding anything in this Agreement to the contrary,
none of ACA Holding Incorporated, Cyprus Amax Minerals Company
or any Subsidiary of either shall be deemed an Acquiring
Person solely by reason or as a result of the execution or
delivery of the Merger Agreement or the consummation of either
the ASARCO Merger or the Cyprus Amax Merger or any other
transaction contemplated by the Merger Agreement."
(b) The definition of "Stock Acquisition Date" in
Section 1 of the 1989 Rights Agreement is hereby amended by adding the
following sentence to the end of paragraph (kk) of Section 1:
"A Stock Acquisition Date shall not occur as a result of the
execution or delivery of the Merger Agreement or the
consummation of either the ASARCO Merger or the Cyprus Amax
Merger or any other transaction contemplated by the Merger
Agreement"
(c) Section 3 of the 1989 Rights Agreement is hereby
amended by adding the following sentence to the end of paragraph (a)
in Section 3:
"Notwithstanding anything in this Agreement to the contrary, a
Distribution Date shall not be deemed to have occurred as a
result of the execution or delivery of the Merger Agreement or
the consummation of either the ASARCO Merger or the Cyprus
Amax Merger or any other transaction contemplated by the
Merger Agreement."
(d) Section 11 of the 1989 Rights Agreement is hereby
amended by adding the following sentence to the end of the second
paragraph of (a)(ii) in Section 11:
"Notwithstanding anything in this Agreement to the contrary, a
Section 11(a)(ii) Event shall not be deemed to have occurred
as a result of the execution or delivery of the Merger
Agreement or the consummation of either the ASARCO Merger or
the Cyprus Amax Merger or any other transaction contemplated
by the Merger Agreement."
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<PAGE>
(e) The following definitions are hereby added
to Section 1 of the 1989 Rights Agreement in the appropriate
alphabetical order:
""ASARCO Merger" means the merger of ACO Acquisition Corp.
with and into the Company upon the terms and conditions set
forth in the Merger Agreement." ""Cyprus Amax Merger" means
the merger of CAM Acquisition Corp. with and into Cyprus Amax
Minerals Company upon the terms and conditions set forth in
the Merger Agreement."
""Merger Agreement" means the Agreement and Plan of Merger,
dated as of July 15, 1999, among ACA Holding Incorporated, ACO
Acquisition Corp., CAM Acquisition Corp., the Company and
Cyprus Amax Minerals Company."
Section 3. Miscellaneous.
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(a) The term "Agreement" as used in the 1989 Rights
Agreement shall be deemed to refer to the 1989 Rights Agreement as
amended hereby.
(b) The foregoing amendment shall be effective as of
the date first above written, and, except as set forth herein, the 1989
Rights Agreement shall remain in full force and effect and shall be
otherwise unaffected hereby.
(c) This Amendment may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all
for which together shall constitute one and the same instrument.
(d) This Amendment shall be deemed to be a contract
made under the laws of the State of New Jersey and for all purposes
shall be governed by and construed in accordance with the laws of such
State applicable to contracts to be made and performed entirely within
such State.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment Number Three to be duly executed and attested, all as of the day and
year first above written.
Attest: ASARCO INCORPORATED
By:/s/A. Kinsolving By:/s/F. R. McAllister
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Name: A. Kinsolving Name: F. R. McAllister
Title: Vice President Title: Chairman
Attest: THE BANK OF NEW YORK
By:/s/Alexander Pabon By:/s/Joe Varca
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Name: Alexander Pabon Name: Joe Varca
Title: Assistant Treasurer Title: Vice President
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<PAGE>
Exhibit 4.6 Amendment Number One dated as of July 15,1999 to
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Rights Agreement, dated as of January 28, 1998,
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between the Company and The Bank of New York, as Rights Agent
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AMENDMENT TO 1998 RIGHTS AGREEMENT
Amendment Number One, dated as of July 15, 1999, to the Rights
Agreement, dated as of January 28, 1998 (the "Rights Agreement"), between ASARCO
Incorporated, a New Jersey corporation (the "Company"), and The Bank of New
York, as Rights Agent (the "Rights Agent").
WHEREAS, the Company and the Rights Agent entered into the
Rights Agreement specifying the terms of the Rights (as defined therein);
WHEREAS, the Company desires to amend the Rights Agreement in
accordance with Section 26 of the Rights Agreement;
WHEREAS, the Company proposes to enter into the Agreement and
Plan of Merger, dated as of July 15, 1999 (the "Merger Agreement"), among ACA
Holding Incorporated, ACO Acquisition Corp., CAM Acquisition Corp., the Company
and Cyprus Amax Minerals Company;
WHEREAS, the Board of Directors of the Company deems it
advisable and in the best interest of its shareholders to amend the Rights
Agreement to enable the Company to enter into the Merger Agreement and
consummate the transactions contemplated thereby without causing the Rights to
become exercisable.
NOW, THEREFORE, in consideration of the premises and mutual
agreements set forth herein and in the Rights Agreement, the parties hereby
agree as follows:
Section 1. Definitions. Capitalized terms used and not
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otherwise defined herein shall have the meaning assigned to such terms in the
Rights Agreement.
Section 2. Amendments to Rights Agreement. The Rights
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Agreement is hereby amended as set forth in this Section 2.
(a) The definition of "Acquiring Person" in Section
1(a) of the Rights Agreement is hereby amended by adding the following
sentence at the end thereof:
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"Notwithstanding anything in this Agreement to the contrary,
none of ACA Holding Incorporated, Cyprus Amax Minerals Company
or any Subsidiary of either shall be deemed an Acquiring
Person solely by reason or as a result of the execution or
delivery of the Merger Agreement or the consummation of either
the ASARCO Merger or the Cyprus Amax Merger or any other
transaction contemplated by the Merger Agreement."
(b) The definition of "Stock Acquisition Date" in
Section 1 of the Rights Agreement is hereby amended by adding the
following sentence to the end of paragraph (l) of Section 1:
"A Stock Acquisition Date shall not occur as a result of the
execution or delivery of the Merger Agreement or the
consummation of either the ASARCO Merger or the Cyprus Amax
Merger or any other transaction contemplated by the Merger
Agreement"
(c) Section 3 of the Rights Agreement is hereby
amended by adding the following sentence to the end of the paragraph
(a) in Section 3:
"Notwithstanding anything in this Agreement to the contrary, a
Distribution Date shall not be deemed to have occurred as a
result of the execution or delivery of the Merger Agreement or
the consummation of either the ASARCO Merger or the Cyprus
Amax Merger or any other transaction contemplated by the
Merger Agreement."
(d) Section 7 of the Rights Agreement is hereby
amended by adding a new clause (ii) to paragraph (a) in Section 7 and
amending the parenthetical following clause (iii) to paragraph (a) in
Section 7 as follows:
", (ii) the Effective Time (as such term is defined in the
Merger Agreement) or (iii) the time at which the Rights are
redeemed as provided in Section 23 hereof (the earlier of (i),
(ii) and (iii) being herein referred to as the "Expiration
Date").
(e) The following definitions are hereby added to
Section 1 of the Rights Agreement in the appropriate alphabetical
order:
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<PAGE>
""ASARCO Merger" means the merger of ACO Acquisition Corp.
with and into the Company upon the terms and conditions set
forth in the Merger Agreement."
""Cyprus Amax Merger" means the merger of CAM Acquisition
Corp. with an into Cyprus Amax Minerals Company upon the
terms and conditions set forth in the Merger Agreement."
""Merger Agreement" means the Agreement and Plan of Merger,
dated as of July 15, 1999, among ACA Holding Incorporated, ACO
Acquisition Corp., CAM Acquisition Corp., the Company and
Cyprus Amax Minerals Company."
Section 3. Miscellaneous.
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(a) The term "Agreement" as used in the Rights
Agreement shall be deemed to refer to the Rights Agreement as amended
hereby.
(b) The foregoing amendment shall be effective as of
the date first above written, and, except as set forth herein, the
Rights Agreement shall remain in full force and effect and shall be
otherwise unaffected hereby.
(c) This Amendment may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all
for which together shall constitute one and the same instrument.
(d) This Amendment shall be deemed to be a contract
made under the laws of the State of New Jersey and for all purposes
shall be governed by and construed in accordance with the laws of such
State applicable to contracts to be made and performed entirely within
such State.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment Number One to be duly executed and attested, all as of the day and
year first above written.
Attest: ASARCO INCORPORATED
By:/s/A. Kinsolving By:/s/F. R. McAllister
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Name: A. Kinsolving Name: F. R. McAllister
Title: Vice President Title: Chairman and Cheif
Executive Officer
Attest: THE BANK OF NEW YORK
By:/s/Alexander Pabon By:/s/Joe Varca
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Name: Alexander Pabon Name: Joe Varca
Title: Assistant Treasurer Title: Vice President
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