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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 14D-1
Tender Offer Statement Pursuant to Section 14(d)(1)
of the Securities Exchange Act of 1934
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(AMENDMENT NO. 2)
Asarco Incorporated
(Name of Subject Company)
AAV Corporation
and
Phelps Dodge Corporation
(Bidders)
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Common Stock, no par value
(Including the associated preferred share purchase rights)
(Title of Classes of Securities)
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04341310 (Common Stock)
(CUSIP Number of Class of Securities)
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S. David Colton, Esq.
Vice President and General Counsel
Phelps Dodge Corporation
2600 North Central Avenue
Phoenix, Arizona 85004-3014
(602) 234-8100
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Copies to:
Michael W. Blair, Esq. Stephen R. Volk, Esq.
Debevoise & Plimpton David W. Heleniak, Esq.
875 Third Avenue Shearman & Sterling
New York, NY 10022 599 Lexington Avenue
(212) 909-6000 New York, New York 10022
Telephone: (212) 848-4000
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<PAGE>
Phelps Dodge Corporation, a New York corporation ("Phelps Dodge"),
and its wholly owned subsidiary, AAV Corporation, a Delaware corporation
("Purchaser"), hereby amend and supplement their Tender Offer Statement on
Schedule 14D-1 (the "Schedule 14D-1") filed with the Securities and Exchange
Commission on September 3, 1999, as amended on September 23,
1999, with respect to the Purchaser's exchange offer to acquire all outstanding
shares of common stock, no par value per share, (including the associated
preferred share purchase rights) of Asarco Incorporated, a New Jersey
corporation, ("Asarco").
Item 3 is hereby amended and supplemented by adding the following:
Item 3. Past Contacts, Transactions or Negotiations with the Subject Company.
(b) On Friday, September 24, 1999, at the request of Asarco and Cyprus Amax,
Douglas C. Yearley, Chairman and Chief Executive Officer of Phelps Dodge, J.
Steven Whistler, President and Chief Operating Officer of Phelps Dodge, Francis
R. McAllister, Chairman and Chief Executive Officer of Asarco, Kevin R. Morano,
President and Chief Operating Officer of Asarco, Milton H. Ward, Chairman, Chief
Executive Officer and President of Cyprus Amax, and Gerald J. Malys, Senior Vice
President and Chief Financial Officer of Cyprus Amax, met in New York City. At
the meeting, Asarco and Cyprus Amax indicated that they were unwilling to
negotiate a three way business combination unless Phelps Dodge offered a price
reflecting a premium of 55% above their unaffected share prices prior to the
August 20 public announcement of Phelps Dodge's initial proposal. Phelps Dodge
rejected this proposal and reiterated its willingness to proceed at prices
representing premiums of 40% to the unaffected share prices of Asarco and Cyprus
Amax.
Later on Friday, September 24, 1999, Mr. Yearley and Mr. Whistler sent a
proposed form of merger agreement to Mr. McAllister and Mr. Ward. A copy of the
letter sent to Messrs. McAllister and Ward is attached hereto as Exhibit (f)(4)
and is incorporated herein by reference.
Item 11 is hereby amended and supplemented by adding the following Exhibit:
Item 11. Material to be filed as Exhibits.
(f)(4) Letter from Phelps Dodge to Francis R. McAllister, Chairman and Chief
Executive Officer of Asarco, and Milton H. Ward, Chairman, Chief
Executive Officer and President of Cyprus Amax, dated September 24,
1999
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After due 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.
September 27, 1999
Phelps Dodge Corporation
By /s/ Ramiro G. Peru
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Name: Ramiro G. Peru
Title: Chief Financial Officer and
Senior Vice President
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After due 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.
September 27, 1999
AAV Corporation
By /s/ Ramiro G. Peru
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Name: Ramiro G. Peru
Title: Director, Vice President and Treasurer
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Exhibit (f)(4)
[Letterhead of Phelps Dodge Corporation]
September 24, 1999
Francis R. McAllister
Chairman and Chief Executive Officer
ASARCO Incorporated
180 Maiden Lane
New York, New York 10038
Milton H. Ward
Chairman, Chief Executive Officer and President
Cyprus Amax Minerals Company
9100 East Mineral Circle
Englewood, Colorado 80112
Dear Frank and Milt:
In order to avoid any further misunderstandings concerning the
terms of our proposal, we are enclosing a form of merger agreement we would be
prepared to sign immediately.
You will note that the agreement is a mark-up of your existing
merger agreement and maintains the same representations, warranties and closing
conditions as your existing merger agreement. The draft agreement contains the
economic terms that we previously discussed and that are contained in our
exchange offers to your respective shareholders. It also contains a "hell or
high water" covenant with respect to regulatory matters, honors the provisions
of Sections 5.5 and 5.6 of your existing merger agreement, contains a "no shop"
covenant with a fiduciary out and
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2
provides for break-up fees of 2% of each of ASARCO and Cyprus Amax's respective
market capitalization.
Sincerely,
/s/ Douglas C. Yearley /s/ J. Steven Whisler
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Douglas C. Yearley J. Steven Whisler
Chairman and Chief Executive Officer President and Chief
Operating Officer
