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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 14D-9/A*
(AMENDMENT NO. 11)
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
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
ASARCO INCORPORATED
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
*Relates to offer by Phelps Dodge Corporation
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This Amendment No. 11 to the Solicitation/Recommendation Statement on
Schedule 14D-9 of ASARCO, originally filed with the Securities and Exchange
Commission (the "Commission") on September 9, 1999, as amended (the
"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 Commission on September 3,
1999, as amended, 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 Nos. 1 and 2 thereto filed with the Commission on September 22,
1999 and October 7, 1999, respectively. Defined terms used but otherwise
not defined herein shall have the meanings ascribed to such terms in the
Schedule 14D-9.
ITEM 2. TENDER OFFER OF THE BIDDER.
Item 2 is hereby amended by adding the following:
On Monday morning, October 25, 1999, ASARCO paid Phelps Dodge the $30
million termination fee required by the Phelps Dodge Merger Agreement and
terminated the Phelps Dodge Merger Agreement in accordance with its terms.
A copy of the Notice of Termination delivered by ASARCO to Phelps Dodge on
Monday, October 25, 1999 is attached hereto as Exhibit 37 and is
incorporated herein by reference. Simultaneously with such termination
ASARCO entered into an Agreement and Plan of Merger, dated as of October
25, 1999 (the "Grupo Mexico Merger Agreement"), among ASARCO, Grupo Mexico,
S.A. de C.V., a Mexican corporation ("Grupo Mexico"), and ASMEX
Corporation, a Delaware corporation and wholly owned subsidiary of Grupo
Mexico ("ASMEX"), providing for, among other things, the acquisition of all
of the outstanding shares of ASARCO Common Stock at $29.75 per share in
cash pursuant to a tender offer (the "Grupo Mexico $29.75 Per Share Offer")
to be followed by a merger (the "Grupo Mexico Merger") in which all shares
not purchased in the tender offer will be acquired by Grupo Mexico at the
same price per share paid in the tender offer.
ITEM 4. THE SOLICITATION OR RECOMMENDATION.
Subsection (a) of Item 4 is hereby amended by substituting the
following:
AS MORE FULLY DESCRIBED BELOW, THE ASARCO BOARD OF DIRECTORS
UNANIMOUSLY RECOMMENDS THAT THE SHAREHOLDERS OF ASARCO REJECT THE PHELPS
DODGE OFFER AND NOT TENDER THEIR SHARES IN THAT OFFER.
Subsection (b) of Item 4 is hereby amended by adding the following:
Late in the afternoon on Friday, October 22, 1999, Mr. Douglas C.
Yearley, Chairman of the Board and Chief Executive Officer of Phelps Dodge,
telephoned Mr. Francis R. McAllister, Chairman of the Board and Chief
Executive Officer of ASARCO, to notify him that Phelps Dodge would not be
increasing the price terms set forth in the Phelps Dodge Merger Agreement.
Mr. Yearley and Mr. McAllister agreed that ASARCO would wire transfer the
$30 million termination fee required to be paid under the Phelps Dodge
Merger Agreement early Monday morning, October 25, 1999, at which time the
Phelps Dodge Merger Agreement would be terminated in accordance with its
terms.
In the morning on Saturday, October 23, 1999, the ASARCO Board of
Directors met to consider the terms and conditions of the proposed
transaction between ASARCO and Grupo Mexico set forth in the form of Grupo
Mexico Merger Agreement presented to the Board. Following discussion with
the ASARCO management and its financial and legal advisors, the Board of
Directors (i) determined that the Grupo Mexico Merger Agreement and the
transactions contemplated thereby, including the Grupo Mexico $29.75 Per
Share Offer and the Grupo Mexico Merger, are fair to and in the best
interests of the holders of ASARCO Common Stock, (ii) approved and adopted
the Grupo Mexico Merger Agreement and the transactions contemplated
thereby, including for purposes of Article 10 of ASARCO's Restated
Certificate of Incorporation and the New Jersey Business Corporation Act,
and (iii) recommends that the shareholders of ASARCO accept the Grupo
Mexico $29.75 Per Share Offer and tender their shares in that offer,
subject in each case to the termination of the Phelps Dodge Merger
Agreement in accordance with its terms. As a result of these
determinations, the ASARCO Board authorized management to pay Phelps Dodge
on Monday morning, October 25, 1999, the $30 million termination fee
required pursuant to the Phelps Dodge Merger Agreement and to terminate the
Phelps Dodge Merger Agreement. Simultaneously with such termination, the
Board authorized ASARCO to execute and deliver the Grupo Mexico Merger
Agreement.
On Monday morning, October 25, 1999, ASARCO and Grupo Mexico signed
the Grupo Mexico Merger Agreement and ASARCO issued a press release
announcing their transaction.
ITEM 9. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit 37. Notice of Termination delivered by ASARCO to Phelps Dodge on
Monday, October 25, 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: October 25, 1999
EXHIBIT INDEX
Exhibit 37. Notice of Termination delivered by ASARCO to Phelps Dodge on
Monday, October 25, 1999
[LETTERHEAD OF ASARCO INCORPORATED]
October 25, 1999
Douglas C. Yearley
Phelps Dodge Corporation
2600 North Central Avenue
Phoenix, Arizona 85004-3014
Re: Phelps Dodge/ASARCO Merger Agreement
Dear Doug:
Reference is made to the Agreement and Plan of Merger, dated as of
October 5, 1999 (the "Merger Agreement"), among Phelps Dodge Corporation
("Phelps Dodge"), AAV Corporation and ASARCO Incorporated ("ASARCO") and to
the notice delivered to you by ASARCO pursuant to Section 5.9 of the Merger
Agreement on October 15, 1999.
Please be advised that, pursuant to Sections 5.9(b) and 7.3(b) of the
Merger Agreement, ASARCO is hereby terminating the Merger Agreement
effective immediately.
In accordance with the provisions of Section 7.5 of the Merger
Agreement, ASARCO has transferred to Phelps Dodge, by wire transfer of same
day funds, $30 million in payment of the ASARCO Termination Fee (as defined
in the Merger Agreement).
Sincerely,
Francis R. McAllister
cc: David W. Heleniak
Shearman & Sterling
Michael W. Blair
Debevoise & Plimpton
