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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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Schedule 14D-9
(Amendment No. 6)
SOLICITATION/RECOMMENDATION STATEMENT
PURSUANT TO SECTION 14(D)(4) OF THE
SECURITIES EXCHANGE ACT OF 1934
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Cyprus Amax Minerals Company
(Name of Subject Company)
Cyprus Amax Minerals Company
(Name of Person Filing Statement)
Common Stock, No Par Value
(Including the Associated Preferred Share Purchase Rights)
(Title of Class of Securities)
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232809 10 3 (Common Stock)
(CUSIP Number of Class of Securities)
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Philip C. Wolf, Esq.
Senior Vice President, General Counsel and Secretary
Cyprus Amax Minerals Company
9100 East Mineral Circle
Englewood, Colorado 80112
(303) 643-5000
(Name, address and telephone number of person authorized to receive
notice and communications on behalf of the person filing statement)
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Copy to:
Elliott V. Stein, Esq.
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
(212) 403-1000
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This statement amends and supplements the Solicitation/Recommendation
Statement on Schedule 14D-9 of Cyprus Amax Minerals Company, a Delaware
corporation ("Cyprus Amax"), filed with the Securities and Exchange Commission
(the "Commission") on September 9, 1999, as subsequently amended (the "Schedule
14D-9"), with respect to the exchange offer made by Phelps Dodge Corporation, a
New York corporation ("Phelps Dodge"), to exchange Phelps Dodge common stock,
par value $6.25 per share, for all of the outstanding shares of Cyprus Amax
common stock, no par value ("Cyprus Amax Common Stock"), on the terms and
conditions set forth in the Phelps Dodge Offer.
Capitalized terms used and not defined herein shall have the meanings
assigned to such terms in the Schedule 14D-9.
ITEM 7. CERTAIN NEGOTIATIONS AND TRANSACTIONS BY THE SUBJECT COMPANY
Item 7 is hereby amended by adding the following:
On September 27, 1999, ASARCO and Cyprus Amax entered into Amendment
No. 1 ("Amendment No. 1") to the Merger Agreement, a copy of which is attached
hereto as Exhibit 23 and incorporated herein by reference, pursuant to which,
among other things:
1. ASARCO and Cyprus Amax permit one another to explore 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 Amax Shareholders
Meeting, currently scheduled to be held on September 30, 1999, will be postponed
until October 7, 1999.
In addition, on September 28, 1999, Cyprus Amax issued a press release,
summarizing the terms of Amendment No. 1, a copy of which is attached hereto as
Exhibit 24.
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Item 9. Material to be Filed as Exhibits
Item 9 of the Schedule 14D-9 is hereby amended and restated as follows:
Exhibit 1: Pages 62, 64-66, 72-73 and 79 in the Joint Proxy
Statement/Prospectus and page 13 in the Asarco Cyprus 8-K.**
Exhibit 2: Pages 11-22 in the Annual Proxy Statement.**
Exhibit 3: Press release issued by Cyprus Amax and Asarco, dated September 9,
1999.**
Exhibit 4: Letter to Stockholders of Cyprus Amax, dated September 9,
1999.* **
Exhibit 5: Complaint filed in Phelps Dodge v. ASARCO et al., Superior Court
of New Jersey Chancery Division: Mercer County, August 27,
1999.**
Exhibit 6: Complaint filed in Sterns v. McAllister et al., Superior Court of
New Jersey Chancery Division: Mercer County, August 24, 1999.**
Exhibit 7: Complaint filed in Greenfield v. Osborne, et al., Superior Court
of New Jersey Chancery Division: Mercer County, August 25,
1999.**
Exhibit 8: Complaint filed in Steiner v. Cyprus Amax et al., Court of
Chancery of the State of Delaware in and for New Castle County,
August 23, 1999.**
Exhibit 9: Complaint filed in Miller v. Cyprus Amax et al., Court of Chancery
of the State of Delaware in and for New Castle County, August 23,
1999.**
Exhibit 10: Complaint filed in Bruno v. Stookey et al., Court of Chancery of
the State of Delaware in and for New Castle County, August 24,
1999.**
Exhibit 11: Complaint filed in Green v. Stookey et al., Court of Chancery of
the State of Delaware in and for New Castle County, August 24,
1999.**
Exhibit 12: Complaint filed in Lifshitz v. Stookey et al., Court of Chancery
of the State of Delaware in and for New Castle County, August 24,
1999.**
Exhibit 13: Complaint filed in Klotz v. Ward et al., Court of Chancery of the
State of Delaware in and for New Castle County, August 24, 1999.**
Exhibit 14: Complaint filed in Grill v. Stookey, et al., Court of Chancery of
the State of Delaware in and for New Castle County, August 26,
1999.**
Exhibit 15: Complaint filed in Phelps Dodge v. Cyprus Amax, et al. Court of
Chancery for the State of Delaware in and for New Castle County,
August 27, 1999.**
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Exhibit 16: Letter from Cyprus Amax and Asarco to shareholders, dated
September 10, 1999.**
Exhibit 17: Newspaper Advertisement by Cyprus Amax and Asarco dated September
10, 1999.**
Exhibit 18: Investor Presentation by Cyprus Amax and Asarco.**
Exhibit 19: Newspaper Advertisement by Cyprus Amax and Asarco dated September
17, 1999.**
Exhibit 20: Letter from Cyprus Amax and Asarco to shareholders, dated December
20, 1999.**
Exhibit 21: Investor Presentation by Cyprus Amax and Asarco.**
Exhibit 22: Press release issued by Cyprus Amax, dated September 27, 1999.**
Exhibit 23: Amendment No. 1, dated as of September 27, 1999, to Agreement and
Plan of Merger, dated July 15, 1999, among Asarco Cyprus
Incorporated, ACO Acquisition Corp., CAM Acquisition Corp.,
Asarco and Cyprus Amax.
Exhibit 24: Press release issued by Cyprus Amax, dated September 28, 1999.
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* Included with Schedule 14D-9 mailed to stockholders.
** Previously Filed
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SIGNATURE
After reasonable 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.
CYPRUS AMAX MINERALS COMPANY
By: /s/ Philip C. Wolf
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Philip C. Wolf
Senior Vice President,
General Counsel and Secretary
Dated: September 28, 1999
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EXHIBIT 99.23
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
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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
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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.
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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
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EXHIBIT 99.24
CYPRUS AMAX NEWS
FOR IMMEDIATE RELEASE
CYPRUS AMAX AND ASARCO AMEND MERGER AGREEMENT
DENVER, CO., SEPTEMBER 28, 1999 - CYPRUS AMAX MINERALS COMPANY (NYSE:CYM) TODAY
ANNOUNCED THAT IT AND ASARCO INCORPORATED HAD AMENDED THEIR MERGER AGREEMENT TO
PERMIT EACH OTHER TO EXPLORE ALTERNATIVES, IN ADDITION TO THE TRANSACTION
PROPOSED BY PHELPS DODGE, TO THE ASARCO/CYPRUS AMAX MERGER. CYPRUS AMAX STATED,
HOWEVER, THAT IT COULD GIVE NO ASSURANCE THAT ANY TRANSACTION WOULD RESULT FROM
THESE EFFORTS.
CYPRUS AMAX ALSO SAID THAT IT AND ASARCO HAVE AGREED THAT EACH IS FREE TO ACT
INDEPENDENTLY OF THE OTHER UNTIL 9:00 AM (NEW YORK CITY TIME) ON TUESDAY,
OCTOBER 5, 1999. DURING THAT PERIOD EITHER COMPANY CAN UNILATERALLY TERMINATE
THE MERGER AGREEMENT UPON PAYMENT OF A TERMINATION FEE WHICH IS BASED ON THE
MARKET CAPITALIZATION OF THE COMPANY TERMINATING THE MERGER AGREEMENT. THE
TERMINATION FEE, IF PAID BY CYPRUS AMAX UPON THE TERMINATION OF THE MERGER
AGREEMENT BY CYPRUS AMAX, WOULD BE $45 MILLION. THE TERMINATION FEE, IF PAID BY
ASARCO UPON THE TERMINATION OF THE MERGER AGREEMENT BY ASARCO, WOULD BE $40
MILLION. CYPRUS AMAX AND ASARCO AGREED THAT IF THE MERGER AGREEMENT IS NOT
TERMINATED PRIOR TO TUESDAY MORNING THE ORIGINAL TERMS OF THE MERGER AGREEMENT
WILL BE REINSTATED IN THEIR ENTIRETY.
CYPRUS AMAX ALSO SAID THAT IT AND ASARCO HAD AGREED TO POSTPONE THEIR
SHAREHOLDER MEETINGS CURRENTLY SCHEDULED FOR SEPTEMBER 30, 1999 UNTIL OCTOBER 7,
1999.
CYPRUS AMAX MINERALS COMPANY, HEADQUARTERED IN ENGLEWOOD, COLORADO, IS A LEADING
PRODUCER OF COPPER, THE WORLD'S LARGEST PRODUCER OF MOLYBDENUM, AND HOLDS A 30%
INTEREST IN KINROSS GOLD CORPORATION. CYPRUS AMAX IS EXPLORING FOR MINERALS
WORLDWIDE.
ACTUAL RESULTS MAY VARY MATERIALLY FROM ANY FORWARD-LOOKING STATEMENTS THE
COMPANY MAKES. REFER TO THE CAUTIONARY STATEMENT AND RISK FACTORS CONTAINED IN
THE COMPANY'S 1998 FORM 10-K.
TO OBTAIN A FAXED COPY OF THIS OR ANY CYPRUS AMAX NEWS RELEASE, CALL
1-800-758-5804, EXT. 224250. NEWS RELEASES CAN ALSO BE ACCESSED VIA THE INTERNET
AT HTTP://WWW.PRNEWSWIRE.COM OR AT THE CYPRUS AMAX WEB SITE,
HTTP://WWW.CYPRUSAMAX.COM.
CONTACT: GERALD J. MALYS, SENIOR VICE PRESIDENT & CHIEF FINANCIAL OFFICER,
303-643-5060, OR JOHN TARABA, VICE PRESIDENT & CONTROLLER, 303-643-5244, BOTH OF
CYPRUS AMAX MINERALS COMPANY.
