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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________________
Schedule 14D-9
SOLICITATION/RECOMMENDATION STATEMENT
PURSUANT TO SECTION 14(d)(4) OF THE
SECURITIES EXCHANGE ACT OF 1934
_________________
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)
_________________
496902 10 7 (Common Stock)
(CUSIP Number of Class of Securities)
__________________
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)
__________________
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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Item 1. Security and Subject Company
The name of the subject company is Cyprus Amax Minerals Company, a Delaware
corporation ("Cyprus Amax"), and the principal executive offices of Cyprus Amax
are located at 9100 East Mineral Circle, Englewood, Colorado 80112. The title
of the class of equity securities to which this statement relates is the common
stock, no par value, of Cyprus Amax (including the associated Preferred Share
Purchase Rights) ("Cyprus Amax Common Stock").
Item 2. Tender Offer of the Bidder
This Statement relates to an exchange offer disclosed in a Registration
Statement on Form S-4 initially filed with the Securities and Exchange
Commission on August 27, 1999 and amended on September 1, 1999 and September 2,
1999 (as amended, the "Phelps Dodge Form S-4") by Phelps Dodge Corporation, a
New York corporation ("Phelps Dodge"), to exchange Phelps Dodge common stock,
par value $6.25 per share ("Phelps Dodge Common Stock"), for any and all of the
outstanding shares of Cyprus Amax Common Stock. According to the prospectus
included in the Phelps Dodge Form S-4 (the "Phelps Dodge Prospectus"), Phelps
Dodge is offering, through its wholly-owned subsidiary, CAV Corporation, a
Delaware corporation, and upon the terms and subject to the conditions set forth
in the Phelps Dodge Prospectus and in a related Letter of Transmittal (together,
the "Phelps Dodge Offer"), to exchange shares of Phelps Dodge Common Stock for
each outstanding share of Cyprus Amax Common Stock validly tendered on or prior
to the Expiration Date (as defined in the Phelps Dodge Prospectus) of the Phelps
Dodge Offer and not properly withdrawn. Each such share of Cyprus Amax Common
Stock would be entitled to receive 0.3135 shares of Phelps Dodge Common Stock
(the "Exchange Ratio").
According to the Phelps Dodge Prospectus, Phelps Dodge is making the Phelps
Dodge Offer in order to acquire control of, and ultimately the entire equity
interest in, Cyprus Amax. According to the Phelps Dodge Prospectus, Phelps Dodge
intends, as soon as practicable after consummation of the Phelps Dodge Offer, to
seek to have Cyprus Amax consummate a merger with a wholly owned subsidiary of
Phelps Dodge so that Cyprus Amax would become a wholly owned subsidiary of
Phelps Dodge. According to the Phelps Dodge Prospectus, Phelps Dodge is also
making a separate offer to exchange 0.4098 shares of Phelps Dodge Common Stock
for each outstanding share of common stock of ASARCO Incorporated ("ASARCO").
According to the Phelps Dodge Prospectus, the principal executive offices
of Phelps Dodge are located at 2600 North Central Avenue, Phoenix, Arizona
85004-3014.
Item 3. Identity and Background
(a) The name and business address of Cyprus Amax, which is the person
filing this Statement, are set forth in Item 1 above.
(b) Certain contracts, agreements, arrangements and understandings between
Cyprus Amax or its affiliates and certain of Cyprus Amax's directors and
executive officers ("Compensation Arrangements") are described under the
headings "INTERESTS OF CERTAIN
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PERSONS IN THE MERGER -- Cyprus Amax Employment Arrangements," "--Other Cyprus
Amax Plans," "--Indemnification and Insurance," "THE MERGER AGREEMENT -- Stock
Options and Other Stock-Based Awards," "--Benefits Matters," "--
Indemnification; Directors' and Officers' Insurance" and "DIRECTORS AND
MANAGEMENT FOLLOWING THE BUSINESS COMBINATION" at pages 62, 64-66, 72-73 and 79
in the Joint Proxy Statement and Prospectus of Cyprus Amax, ASARCO and Asarco
Cyprus Incorporated ("Asarco Cyprus"), dated August 20, 1999, sent by Cyprus
Amax to its stockholders in connection with Cyprus Amax's special meeting of
stockholders scheduled to be held on September 30, 1999 (the "Joint Proxy
Statement/Prospectus"). Certain other Compensation Arrangements are described
under the heading "INTERESTS OF CERTAIN PERSONS IN THE MERGER" at page 13 in the
Form 8-K of Asarco Cyprus, dated August 20, 1999, sent by Cyprus Amax to its
stockholders in connection with Cyprus Amax's special meeting of stockholders to
be held on September 30, 1999 (the "Asarco Cyprus 8-K"). A copy of such portions
of the Joint Proxy Statement/Prospectus and of the Asarco Cyprus 8-K is filed as
Exhibit 1 hereto and is incorporated herein by reference. Certain other
Compensation Arrangements are described under the headings "CORPORATE GOVERNANCE
AND BOARD OF DIRECTORS -- Director Compensation," "EXECUTIVE COMPENSATION --
Compensation and Benefits Committee Report," "--Compensation Tables," " --
Employment Contracts," and " -- Retirement Plans" at pages 11-22 in the proxy
statement of Cyprus Amax, dated March 12, 1999, sent by Cyprus Amax to its
stockholders in connection with the annual meeting of Cyprus Amax stockholders
held on May 6, 1999 (the "Annual Proxy Statement"). A copy of such portions of
the Annual Proxy Statement is filed as Exhibit 2 hereto and is incorporated
herein by reference.
Except as set forth herein, neither Cyprus Amax nor, to the best of Cyprus
Amax's knowledge, Cyprus Amax's affiliates have any material contract,
agreement, arrangement or understanding or any actual or potential conflict of
interest with (1) its executive officers, directors or other affiliates or (2)
Phelps Dodge, its executive officers, directors or other affiliates.
Item 4. The Solicitation or Recommendation
(a) and (b)
As more fully described below, the Cyprus Amax Board of Directors has
unanimously recommended that Cyprus Amax stockholders reject the Phelps Dodge
Offer and not tender their shares of Cyprus Amax Common Stock pursuant to the
Phelps Dodge Offer. The Cyprus Amax Board of Directors has also unanimously
reaffirmed its determination that the terms of the Merger Agreement between
Cyprus Amax and ASARCO are fair to, and in the best interests of, Cyprus Amax
and its stockholders.
Background. Cyprus Amax, Asarco Cyprus, ACO Acquisition Corp., CAM
Acquisition Corp. and ASARCO entered into an Agreement and Plan of Merger (the
"Merger Agreement") dated as of July 15, 1999. In accordance with the terms and
conditions of the Merger Agreement, the business combination of Cyprus Amax and
ASARCO will occur through two separate mergers with wholly owned subsidiaries of
a new holding company named Asarco Cyprus. After the business combination,
Cyprus Amax and ASARCO will be wholly owned subsidiaries of
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Asarco Cyprus. As a result of the mergers, each share of Cyprus Amax Common
Stock will be converted into 0.765 shares of Asarco Cyprus common stock; each
share of Cyprus Amax preferred stock will be converted into a share of Asarco
Cyprus preferred stock with substantially identical terms, preferences,
limitations, privileges and rights; and each share of ASARCO common stock will
be converted into one share of Asarco Cyprus common stock.
On August 10, 1999, Frank R. McAllister, Chairman of the Board and Chief
Executive Officer of ASARCO, and Milton H. Ward, the Chairman, President and
Chief Executive Officer of Cyprus Amax, each received a telephone call from
Douglas C. Yearley, Chairman and Chief Executive Officer of Phelps Dodge. In
each call Mr. Yearley said Phelps Dodge wished to proposed a three-way
combination of ASARCO, Cyprus Amax and Phelps Dodge and requested a prompt
meeting to discuss the proposal. Later that day, Messrs. McAllister and Ward
replied to the proposal with a letter saying that their merger agreement
prohibited both ASARCO and Cyprus Amax from discussing a business combination
with any third parties and declining Mr. Yearley's request for a meeting.
On August 11, 1999, Messrs. McAllister and Ward received the following
letter from Phelps Dodge:
"August 11, 1999
"Mr. Francis R. McAllister
Chairman and Chief Executive Officer
ASARCO Incorporated
180 Maiden Lane
New York, NY 10038
"Mr. Milton H. Ward
Chairman, Chief Executive Officer and President
Cyprus Amax Minerals Company
9100 East Mineral Circle
Englewood, CO 80112
"Dear Frank and Milt:
"We are disappointed that you have declined to meet with us. As you know
from our telephone conversations, we have considered your pending business
combination and would like to discuss with you our proposal, described in more
detail below, to combine all three of our companies in a negotiated transaction.
"We believe that a three-way combination of Phelps Dodge, Asarco and Cyprus
Amax would create superior shareholder value for the shareholders of Asarco and
Cyprus Amax. A three-way combination, by creating a lower-cost global
competitor, would also benefit the employees and customers of all three
companies. For these reasons, we are approaching you to discuss the concept of
a three-way combination.
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"We propose that all of the outstanding common stock of both Asarco and
Cyprus Amax be exchanged for Phelps Dodge common stock. The transaction would
be tax-free to your shareholders.
"A combination of these businesses would result in cost savings well in
excess of the amounts you have indicated to be achievable through your pending
merger. Preliminarily we estimate that the annual cash cost savings should
reach at least $150 million.
"We propose to reward your shareholders for these substantial incremental
benefits by offering your shareholders an exchange ratio of 0.3756 Phelps Dodge
common shares for each Asarco common share and 0.2874 Phelps Dodge common shares
for each Cyprus Amax common share. These exchange ratios preserve the relative
economics of your proposed combination and imply premiums of approximately 25%
based on current market prices for Asarco and Cyprus Amax.
"We believe this proposal creates superior value for your shareholders
based on:
. the sizable premium we are offering which, in effect, represents an up-
front payment to your shareholders for the substantial cost savings we
expect to achieve;
. their opportunity to participate in the ongoing value creation of the
combined company; and
. our planned continuation of the current $2.00 per share Phelps Dodge
common stock dividend resulting in substantial dividend increases for
both Asarco and Cyprus Amax shareholders to 3.76 times the level
contemplated in your pending merger.
"Our preference is for a combination of all three companies, which would of
course, involve the consent of both Asarco and Cyprus Amax to a modification of
your existing agreement.
"Since your merger agreement has not been publicly filed, we have not had
the opportunity to review its terms. Based on your August 10, 1999 letter, it
is unclear to us whether discussions may proceed once you receive a written
proposal such as this letter. In any event, if necessary under your merger
agreement, we request that you grant one another waivers to allow meetings with
us on our proposal which, as discussed below, would be far more favorable to
your shareholders than your proposed merger.
"We are confident that the market reaction to a three-way combination would
be positive. In particular we believe the market would recognize:
. the significantly stronger ability of the combined company, relative to
the Asarco-Cyprus Amax combination, to integrate southwest U.S. mining
operations, administrative functions in Chile and Peru and world-wide
exploration and development activities;
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. the financial strength of the combined company and ability to create a
world class portfolio of cost competitive mining assets;
. a strong and deep management team, at both the operating and corporate
levels, with strong credibility in the marketplace;
. the ability to eliminate substantial overhead, exploration, purchasing
and other expenses through the consolidation;
. the tremendous operating leverage of the combined company, together
with enough diversity in other businesses to mitigate cyclical
downtime;
. the ability of the combined company to reduce capital expenditures;
. a strong liquid balance sheet, with excellent access to capital; and
. how all of these factors would build greater shareholder value, on an
ongoing basis, for the shareholders of all three companies.
"This is intended to be a confidential proposal which is subject to the
execution of a definitive merger agreement and receipt of customary approvals,
including approval by our respective Boards of Directors and shareholders. We
have conducted in-depth analyses of the proposed three-way combination from a
regulatory perspective and have concluded that it will be possible to obtain the
necessary approvals on a timely basis.
"We believe that our proposal is substantially more attractive to your
shareholders than your pending merger. In addition to the sizeable premium we
are offering, your shareholders would participate, through their ongoing Phelps
Dodge common stock ownership, in a larger enterprise with greater realizable
cost savings and synergies, a stronger portfolio of cost competitive assets and
a deep management team with a strong operating record. We have no doubt that
your shareholders will enthusiastically embrace our proposal once they learn of
it.
"We have discussed this proposal with our Board, which fully supports it.
We are confident of our ability, with your cooperation, to complete this
transaction as quickly as your proposed two-party Asarco-Cyprus Amax merger.
"We are firmly committed to moving forward quickly to consummate this
transaction. As we mentioned, we would be happy to meet with you in New York or
another mutually convenient location to amplify our proposal. In any event, we
would appreciate a response by 5:00 p.m., New York time, on Wednesday, August
18, 1999.
Sincerely,
/s/ /s/
Douglas C. Yearley J. Steven Whisler
Chairman and President and
Chief Executive Officer Chief Operating Officer"
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On August 12, 1999, Messrs. McAllister and Ward telephoned Mr. Yearley in
response to his August 11 letter and reiterated that both ASARCO and Cyprus Amax
were prohibited from discussing a business combination with any third parties
pursuant to the terms of the existing merger agreement.
On August 12, 1999, Messrs. Yearley and J. Steven Whisler, President and
Chief Operating Officer of Phelps Dodge, sent substantially identical letters to
the ASARCO Board of Directors and the Cyprus Amax Board of Directors describing
the proposal outlined in the previous letter to the chief executive officers,
respectively, and asking once again that the Boards of ASARCO and Cyprus Amax
carefully consider the merger proposal and that they authorize the commencement
of negotiations.
On August 19, 1999, the ASARCO Board of Directors and the Cyprus Amax Board
of Directors, together with their respective legal and financial advisors, met
separately to consider the unsolicited proposal from Phelps Dodge. Both the
ASARCO Board of Directors and the Cyprus Amax Board of Directors unanimously
determined that pursuing the Asarco Cyprus transaction was in the best interests
of ASARCO and Cyprus Amax stockholders, respectively, and reconfirmed their
respective recommendations of that transaction.
In the morning of August 20, 1999, Messrs. Ward and McAllister telephoned
Mr. Yearley to tell him that their respective Boards of Directors had declined
to pursue the three-way combination proposal by Phelps Dodge. After Messrs.
Ward and McAllister were unsuccessful in reaching Mr. Yearley, they sent the
following letter:
"August 20, 1999
"Mr. Douglas C. Yearley
Chairman, President and
Chief Executive Officer
Phelps Dodge Corporation
2600 North Central Avenue
Phoenix, AZ 85004-3050
"Dear Doug:
"We have tried to reach you this morning to convey the response of our
respective Boards and to share with you the attached press release.
"Each of our companies has convened its Board and received thorough
presentations from financial and legal advisors. After full consideration of
your proposal, each Board unanimously decided that it was in the best interests
of its shareholders to pursue the Asarco Cyprus merger. That is what we intend
to do.
Sincerely,
/s/ /s/
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Francis R. McAllister Milton H. Ward
Chairman and Chief Chairman, Chief Executive
Executive Officer Officer and President
Asarco Incorporated Cyprus Amax Minerals
Company"
Subsequently, Cyprus Amax and ASARCO issued the following joint press
release:
"DENVER and NEW YORK August 20, 1999 Cyprus Amax Minerals (NYSE:CYM) and
ASARCO Incorporated (NYSE:AR) announced that they have set shareholder meetings
for September 30, 1999 to approve their previously announced merger of equals.
Asarco Cyprus Incorporated will be the largest publicly traded copper company
with an estimated cash cost of under 50 cents. Definitive proxy materials will
be mailed to shareholders of record on August 25, 1999.
"Cyprus and Asarco also announced that joint Asarco and Cyprus merger teams
are reviewing all operating and administrative aspects of the new organization
to identify organizational and other profit driven changes in the way they do
business. The companies have engaged outside consultants to assist in
identification of cost savings to facilitate the process. As a result of these
reviews, the estimate of annual expense reductions is now approaching $200
million including $50 million in reduced administrative and overhead costs, $50
million from lower costs of purchased materials and services, $25 million in
other costs and $75 million in lower depreciation. As part of the cost
reductions, Cyprus' Denver office will be closed and Asarco's New York office
will be downsized and relocated to New Jersey. In addition, the companies
believe the merger will provide the flexibility to rationalize higher cost
production during periods of low copper prices, which could be expected to
result in operational cash improvements approaching $75 million annually.
"Cyprus and Asarco also jointly reported that the Boards of both companies
had received an unsolicited proposal from Phelps Dodge Corporation to negotiate
an agreement for Phelps Dodge to acquire both companies for stock. Phelps Dodge
proposed an exchange of .3756 of a Phelps Dodge share for each Asarco share and
.2874 of a Phelps Dodge share for each Cyprus share. Phelps Dodge's proposal is
subject to a number of contingencies.
"On August 19, 1999, the Asarco Board of Directors and the Cyprus Amax
Board of Directors, together with their respective legal and financial advisors,
met separately to consider the unsolicited proposal from Phelps Dodge. Both the
Asarco Board of Directors and the Cyprus Amax Board of Directors determined that
pursuing the Asarco Cyprus merger was in best interests of Asarco and Cyprus
Amax stockholders, respectively, and reconfirmed their respective
recommendations of the merger.
"Since the merger announcement, both Boards noted that the share prices of
Cyprus and Asarco have outperformed the other U.S. listed copper companies.
Asarco Cyprus expects that at its estimated cash costs of under 50 cents per
pound, it will require a copper price of less than 65 cents per pound to
breakeven on a net earnings basis. Asarco Cyprus will have a strong,
experienced management team and the financial capacity to further enhance
operating efficiencies,
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expand or develop low cost copper properties and otherwise rationalize
operations to achieve optimum operating levels."
In the afternoon of August 20, 1999, Mr. Yearley and Mr. Whisler conducted
an analysts' conference telephone call during which they announced that Phelps
Dodge planned to offer 0.4098 of a Phelps Dodge share per ASARCO share to ASARCO
stockholders and 0.3135 of a Phelps Dodge share per Cyprus Amax share to Cyprus
Amax stockholders. Late in the evening of August 20, Messrs. Yearley and
Whisler sent the following letter to the Cyprus Amax Board of Directors and a
substantially identical letter to the ASARCO Board of Directors.
"August 20, 1999
"Board of Directors of Cyprus Amax Minerals Company
c/o Milton H. Ward
Chairman, Chief Executive Officer and President
Cyprus Amax Minerals Company
9100 East Mineral Circle
Englewood, CO 80112
"Ladies and Gentlemen:
"We are disappointed in your response to our proposed three-way combination
of Cyprus Amax, Asarco and Phelps Dodge. As you know, we have on three recent
occasions requested the opportunity to discuss our proposal, which we believe
would be far superior to your shareholders than your proposed combination with
Asarco.
"We are particularly disappointed that instead of accepting our previous
requests to meet to discuss our proposal to acquire Cyprus Amax for a
substantial premium, you chose today to announce unilaterally our interest in
acquiring Cyprus Amax and Asarco and to reject our proposal in favor of your no-
premium merger proposal with Asarco. This appears consistent with the manner in
which you have chosen to treat your own shareholders by announcing just today,
at the same time you first disclosed the terms of your July 15 merger agreement,
that the record date for your shareholder vote on the no-premium merger with
Asarco would be August 25. Since trades after today will settle after August
25, this effectively precluded any significant trading in the market on an
informed basis before the determination of shareholders eligible to vote at your
meeting.
"In light of your unilateral announcement, we have no other choice than to
publicly announce our proposal to enter into a business combination with Cyprus
Amax and Asarco, so that share owners of all three companies are fully informed.
"Terms of our Proposal
"We propose a business combination of Phelps Dodge and Cyprus Amax pursuant
to which all of the outstanding common stock of Cyprus Amax would be exchanged
for Phelps Dodge common stock at an exchange ratio of 0.3135 Phelps Dodge common
shares for each
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Cyprus Amax common share. We are also independently proposing to Asarco a
business combination of Phelps Dodge and Asarco pursuant to which all of the
outstanding common stock of Asarco would be exchanged for Phelps Dodge common
stock at an exchange ratio of 0.4098 Phelps Dodge common shares for each Asarco
common share. Based on share prices for the three companies' common shares
before trading was halted this morning, these ratios imply a premium of
approximately 29% for Cyprus Amax and a premium of approximately 30% for Asarco,
while preserving the relative economics of the exchange ratio under your
proposed combination with Asarco.
"Following the combination, we plan to continue the current $2.00 per share
Phelps Dodge common dividend. This would result in a substantial dividend
increase for Cyprus Amax shareholders to 4.1 times the dividend contemplated in
your proposed merger with Asarco.
"Our proposed transaction would be tax-free for your shareholders. In
addition, through their ownership of Phelps Dodge common stock, your
shareholders would continue to participate in the ongoing value creation of the
combined company. Although we prefer a transaction involving all three
companies, we are prepared to enter into a negotiated business combination with
either Cyprus Amax or Asarco, regardless of whether the other company is willing
to proceed on a negotiated basis.
"We believe that consideration in the form of Phelps Dodge common stock
should be particularly attractive to your shareholders. Over the past several
years Phelps Dodge's stock price has significantly outperformed the stock prices
of Cyprus Amax and Asarco. As a result of Phelps Dodge's higher dividend, the
level of outperformance is even greater when viewed on the basis of the total
return to shareholders assuming reinvestment of dividends. Over the past 10
years Phelps Dodge's total return has been 161% as compared to negative 26% and
negative 20% for Cyprus Amax and Asarco, respectively. Similarly, over the past
15 years, Phelps Dodge's total return has been 1,024% as compared to 102% for
Cyprus Amax and 25% for Asarco. We are very proud of this strong management and
operational track record over a difficult copper environment.
"The Combined Company
"We believe that our proposal presents a unique opportunity to create a
large, resource-rich portfolio of lower-cost global copper assets with enhanced
flexibility to deliver superior results in all business cycles. Our proposal
would create a much stronger company than would your proposed merger with Asarco
through:
. the significantly stronger ability of the combined company, relative to
the Cyprus Amax-Asarco combination, to integrate southwestern U.S.
mining operations, administrative functions in the U.S., Chile and
Peru, and worldwide exploration and development activities;
. the financial strength of the combined company and ability to create a
world class portfolio of cost-competitive mining assets;
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. a strong and deep management team, at both the operating and corporate
levels, with strong credibility in the marketplace;
. the ability to eliminate substantial overhead, exploration, purchasing
and other expenses through the consolidation;
. the tremendous operating leverage of the combined company, together
with enough diversity in other businesses to mitigate cyclical
downturns;
. the immediate and substantial accretion to the cash flow of the
combined company resulting from the transaction;
. the significant accretion to earnings per share of the combined company
beginning in the second year after closing, based on the current
portfolio of the combined companies and analysts' estimates of copper
prices of $0.80 to $0.85 per pound in 2001;
. the total current annual copper production of the combined company of
3.8 billion pounds and attributable copper reserves of 80 billion
pounds;
. the increased ability of the combined company to compete for world-
class projects;
. the ability of the combined company to reduce capital expenditures;
. the strong, liquid balance sheet of the combined company, with
excellent access to capital; and
. the way all of these factors would build greater shareholder value, on
an ongoing basis, for the shareholders of all three companies.
"Through the measures described above we estimate that in a three-way
combination we could achieve approximately $200 million in annual cash cost
savings, fully phased in by the end of the second year after closing of the
transaction. In addition, we expect lower depreciation of approximately $65
million annually, bringing total estimated annual savings to approximately $265
million. These cost savings are based on public information and our expectation
that we can deliver at least $75 million in incremental savings above the new
cash synergy figure of $125 million that you have projected in the proposed
Cyprus Amax-Asarco combination. This does not include any cost savings from the
rationalization of high-cost production during periods of low copper prices.
"Following the combination, we would expect to operate all properties in
accordance with Phelps Dodge's disciplined management approach. This means that
each property would be run on a basis intended to earn in excess of the cost of
capital over a full copper price cycle. We believe that Phelps Dodge's
management team has the credibility to make the tough decisions necessary to
rapidly integrate all three businesses and to create value for shareholders.
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"A three-way combination, by creating a more efficient global competitor,
would also benefit the employees and customers of all three companies. We have
conducted an in-depth analysis of the three-way combination from a regulatory
perspective and have concluded that it will be possible to obtain the necessary
approvals on a timely basis.
"Our Board of Directors has authorized this proposal and we are resolutely
committed to its consummation. We are confident that your shareholders will
find our proposal to be a unique and compelling opportunity. We continue to
prefer to proceed on a mutually satisfactory, negotiated basis but are prepared
to pursue all other avenues should that be necessary. We are ready to meet with
you or your management at any time.
Sincerely,
/s/ /s/
D.C. Yearley J. Steven Whistler
Chairman and President and
Chief Executive Officer Chief Operating Officer"
On August 23, 1999, the ASARCO Board of Directors and the Cyprus Amax Board
of Directors each met with their respective legal and financial advisors to
consider the August 20 revised unsolicited proposal from Phelps Dodge.
Following discussion between Cyprus Amax and ASARCO, on August 25, 1999,
the Cyprus Amax Board of Directors met with its legal and financial advisors and
approved several items previously discussed with ASARCO as set forth in the
following joint press release issued by ASARCO and Cyprus Amax on August 25,
1999 (the "Revised ASARCO/Cyprus Amax Proposal"):
"Denver, CO and New York, NY, August 25, 1999 - Cyprus Amax Minerals
Company (NYSE:CYM) and ASARCO Incorporated (NYSE:AR) today jointly announced
that they have improved the terms of their own combination transaction. In
addition they have written to Phelps Dodge outlining their willingness to
negotiate with Phelps Dodge on terms included in the letter. According to the
letter, Asarco and Cyprus Amax would be willing to proceed with a three-way
combination with Phelps Dodge if its proposed exchange ratios are increased, if
Phelps Dodge fully underwrites the risk of antitrust problems with its proposal
and if the contract terms mirror those of the Asarco/Cyprus contract. Asarco
and Cyprus Amax said the exchange ratios they would require were .5300 of a
Phelps Dodge share for Asarco holders and .4055 of a Phelps Dodge share for
Cyprus Amax holders. The letter to Phelps Dodge is attached.
"The two companies also said they have decided to improve the financial
terms of their own combination by including a special payment of $5.00 per share
to the stockholders of the combined Asarco Cyprus Incorporated. The special
payment would be paid to stockholders as soon as possible after consummation of
the merger. Asarco and Cyprus Amax emphasized that they were proceeding with
their two-way combination which, subject to stockholder approval, will close on
September 30, 1999.
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"Speaking together, Milton H. Ward, Chairman and Chief Executive Officer of
Cyprus Amax and Francis R. McAllister, Chairman and Chief Executive Officer of
Asarco said `Our response to Phelps Dodge evidences our intent to secure the
best value for our shareholders whether through a three way combination
including Phelps Dodge or through consummation of the merger previously
announced. We have presented very simple terms to Phelps Dodge which we believe
recognize the contributions our two companies make to a three way combination.
The proposal previously communicated by Phelps Dodge fails to reward our
stockholders for the values derived from the Asarco Cyprus transaction. Our
proposed exchange ratio gives recognition to the fact that our shareholders will
be contributing approximately 50% of the value of a three way combination.'
"`We intend to move forward to complete our own merger transaction as soon
as possible and as a sign of confidence of our ability to achieve cost
reductions of at least $200 million annually, Asarco Cyprus will make a special
payment to shareholders when the merger closes. This special $5.00 per share
payment reflects the Boards' and managements' confidence in their ability to
deliver benefits from the merger. Asarco Cyprus is expected to have in excess
of $1 billion in cash at the time of closing and the Boards of both companies
have agreed that Asarco Cyprus will pursue the sale of Cyprus Amax's investments
in Kinross Gold and its Australian coal holdings and Asarco's specialty
chemicals business. We would expect the sales to be completed within six months
after closing. Proceeds are expected to approach $1 billion and cash taxes
would be minimized due to tax benefits from the sale of the Kinross shares.
Proceeds would be used to pay down debt and improve the liquidity of the
company.'
"Messrs. Ward and McAllister stated that they and their respective Boards
are committed to maximizing shareholder value and will continue to do so after
the merger is completed. In order to ensure that Phelps Dodge or any interested
buyer is able to present a bona fide proposal to acquire 100% of the stock of
the Company, during the first 90 days following completion of the merger,
stockholders will have the right to call a meeting to redeem the rights plan.
In addition, change in control provisions in any employment contracts entered
into by the Company will be waived for that same 90 day period."
On August 25, 1999, Messrs. Ward and McAllister also sent the following
letter to Mr. Yearley which was attached to the August 25 press release:
"August 25, 1999
"Mr. Douglas C. Yearley
Chairman, President and
Chief Executive Officer
Phelps Dodge Corporation
2600 North Central Avenue
Phoenix, AZ 85004-3050
"Dear Doug:
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"We and our respective boards have considered your revised proposal to
acquire our companies. We have the following issues with your proposal:
"1. The exchange ratios proposed in your August 20 press release do not
allocate to Cyprus Amax and Asarco holders a fair share of the value
created by uniting their two companies. We are prepared to negotiate a
transaction with Phelps Dodge that would provide our holders with .4055
shares of Phelps Dodge common stock for each Cyprus Amax share, and .5300
Phelps Dodge shares for each Asarco share.
"2. In order for us to proceed with Phelps Dodge, you must make clear that
Phelps Dodge will undertake all actions necessary to secure regulatory
approval for your proposed transaction including any divestiture or similar
action required, and will provide credible assurances that such regulatory
approval will be forthcoming. The statements in your letters concerning
antitrust issues are not sufficient on this point.
"3. You have not proposed a form of contract for your transaction. We would be
prepared to proceed on the basis of representations, warranties and
covenants made by Cyprus Amax and Asarco to each other in their merger
agreement, with similar representations, warranties and covenants made by
Phelps Dodge.
"4. Your letter did not indicate whether your proposal was subject to due
diligence. A due diligence requirement introduces substantial uncertainty
as to your proposal. We would expect, as part of our effort to close our
pending merger or any potential transaction with you as quickly as
possible, that you would not require any further due diligence with respect
to either Cyprus Amax or Asarco.
"We strongly believe that the combination of Cyprus Amax and Asarco,
without the effect of combining further with Phelps Dodge, provides greater
value to Cyprus Amax and Asarco holders than your August 20 proposal, poses
fewer regulatory issues and can be completed more quickly. Accordingly, we will
be proceeding to present that transaction to our stockholders and to closing on
September 30, 1999. We are prepared, however, to negotiate a transaction that
involves all three companies that satisfies all the foregoing requirements. For
your information, we are attaching to this letter a copy of the press release
Asarco and Cyprus Amax issued today concerning our response to Phelps Dodge. We
also want to advise you that apart from this communication, neither party has
waived any of its legal or other rights, or rights or obligations under our
merger agreement.
Sincerely,
/s/ /s/
Francis R. McAllister Milton H. Ward
Chairman and Chief Chairman, Chief Executive
Executive Officer Officer and President
ASARCO Incorporated Cyprus Amax Minerals
Company"
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<PAGE>
At its August 25, 1999 meeting, the Cyprus Amax Board of Directors
reconfirmed its recommendation that stockholders vote FOR adoption of the Merger
Agreement.
In approving the Revised ASARCO/Cyprus Amax Proposal and reconfirming its
recommendation to the stockholders, the Cyprus Amax Board of Directors consulted
with its financial and legal advisors and considered a variety of factors,
including the following:
1. The Board of Directors considered the advantages that the business
combination between Cyprus Amax and ASARCO provides to Cyprus Amax and
its stockholders, including that the combined Asarco Cyprus would be a
stronger, more efficient competitor in the copper industry, would have
an improved ability to meet the challenges of low copper prices, would
be better able to benefit and would generate substantial cash flow
during periods of strong copper prices, would be able to lower costs
through increased purchasing power, and would have increased
capitalization.
2. The Board of Directors considered that Merrill Lynch, Pierce, Fenner &
Smith ("Merrill Lynch"), Cyprus Amax's financial advisor, rendered its
oral opinion at the August 25th Board Meeting that, as of such date, the
exchange ratio in the Merger Agreement with ASARCO was fair from a
financial point of view to the stockholders of Cyprus Amax.
3. The Board of Directors considered that the special payment of $5.00 per
share to the stockholders of the combined Asarco Cyprus would enable
stockholders to receive an immediate and significant cash benefit from
the merger, while leaving the combined company with a strong balance
sheet and sufficient liquidity.
4. The Board of Directors considered that the Revised ASARCO/Cyprus Amax
Proposal allows Cyprus Amax to continue to pursue the business
combination with ASARCO on a basis that does not preclude Phelps Dodge
(or any other potential merger partner) from subsequently completing a
business combination with the combined company, while preserving the
opportunity for stockholders to realize the benefits of the merger with
ASARCO, even if Phelps Dodge determines not to pursue its proposal.
5. The Board of Directors considered the fact that the business combination
with ASARCO is the subject of a definitive agreement, as well as the
terms and conditions of the merger agreement, whereas the Phelps Dodge
proposal is highly contingent and no form of contract has been
proposed.
6. The Board considered that the Phelps Dodge proposal does not pay Cyprus
Amax stockholders a sufficient price to reflect the contribution of
Cyprus Amax to a three-way combination of Cyprus Amax, ASARCO and Phelps
Dodge.
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<PAGE>
7. The Board of Directors considered that the joint Cyprus Amax/ASARCO
letter to Phelps Dodge dated August 25, 1999, provided stockholders the
opportunity to accept a transaction involving Cyprus Amax, ASARCO and
Phelps Dodge if Phelps Dodge was willing to provide certain assurances
as to the terms of its proposal and to pay Cyprus Amax stockholders a
sufficient price to reflect the contribution of Cyprus Amax to a three-
way combination of Cyprus Amax, ASARCO and Phelps Dodge.
On August 25, 1999, Phelps Dodge issued the following press release:
"PHOENIX, Aug. 25 -- Phelps Dodge Corporation (NYSE: PD) confirmed that it
has received a letter from Asarco Incorporated (NYSE: AR) and Cyprus Amax
Minerals Company (NYSE: CYM) and issued the following response:
" `The proposal put forth by Asarco and Cyprus Amax does not change Phelps
Dodge's commitment to complete a three-way combination that is beneficial to
shareholders of all three companies. While Phelps Dodge will review the most
recent proposal from Asarco and Cyprus Amax, we believe that the Phelps Dodge
proposal, which already provides Asarco and Cyprus Amax shareholders a 30%
premium, a $2.00 annual dividend and very substantial participation in the
greater upside potential of the three-way combination, is fully priced based on
public information and Phelps Dodge's best estimates of the real, achievable
cost synergies in a three-way combination. Phelps Dodge indicated that the
economic aspects of Asarco and Cyprus Amax's proposed three-way merger terms are
totally unreasonable and would deliver nearly all of the economic value of the
three-way combination to Asarco and Cyprus shareholders.'
"Douglas C. Yearley, Chairman and Chief Executive Officer of Phelps Dodge,
added, `If Asarco and Cyprus Amax are truly interested in a negotiated
transaction and not just posturing, we would be more than willing to begin real
discussions. Neither company has attempted to sit down with us.'
"Phelps Dodge indicated that it intends to complete its review in the near
term and to make a more definitive and comprehensive response thereafter."
On August 27, 1999, Phelps Dodge issued the following press release:
"August 27, 1999 -- Phelps Dodge Corporation (NYSE: PD) announced today
that it has filed registration materials with the Securities and Exchange
Commission for exchange offers for all outstanding Asarco Incorporated (NYSE:
AR) and Cyprus Amax Minerals Company (NYSE: CYM) common shares. Phelps Dodge
will commence the exchange offers as soon as the registration statements are
declared effective.
"In addition, the Company filed preliminary proxy materials with the
Securities and Exchange Commission to solicit proxies from Asarco and Cyprus
Amax stockholders to vote against the proposed merger of Asarco and Cyprus Amax.
Asarco and Cyprus Amax have set shareholder meetings for September 30, 1999 to
vote on their proposed merger.
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"Separately, Phelps Dodge announced that it has commenced litigation in New
Jersey and Delaware against Asarco and Cyprus Amax, respectively, and their
directors, for breaching their fiduciary duties by impermissibly prohibiting
directors from informing themselves of any third-party merger or acquisition
proposal and providing excessive break-up fees.
" `While we continue to prefer negotiated transactions, we are committed to
this compelling three-way combination, and are taking all necessary steps to
complete it,' said Douglas C. Yearley, Chairman and Chief Executive Officer of
Phelps Dodge. `If Asarco and Cyprus Amax are truly interested in a negotiated
transaction we are ready to begin discussions immediately. We continue to
believe our offer is fully priced and compelling. We are confident that
shareholders of Asarco and Cyprus Amax will recognize that our proposals are
clearly superior to the Asarco/Cyprus Amax no-premium two-way merger. We view
the September 30 vote as a referendum. If Asarco and Cyprus Amax shareholders
do approve their two-way combination, we will withdraw our substantial premium
proposal and will not bid further.'"
On August 27, 1999, Phelps Dodge sent the following letter to Cyprus Amax
and ASARCO:
"August 27, 1999
"Mr. Francis R. McAllister
Chairman and Chief Executive Officer
ASARCO Incorporated
180 Maiden Lane
New York, NY 10038
"Mr. Milton H. Ward
Chairman, Chief Executive Officer and President
Cyprus Amax Minerals Company
9100 East Mineral Circle
Englewood, CO 80112
"Dear Frank and Milt:
"We continue to believe that our proposed three-way combination is clearly
superior for your shareholders than your proposed no-premium, two-party
transaction. Our fully priced proposal provides a substantial premium, our
$2.00 annual dividend and opportunity for participation in greater upside
potential.
"In your August 25 letter to us you identified four issues with our
proposal. We are prepared to accept three of your points. On the fourth point,
your demand on exchange ratios, we hope that you will reconsider your
unreasonable position and sit down at the table with us to complete our proposed
three-way combination.
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<PAGE>
"Should you proceed to complete your two-way merger, you will proceed alone
because we will withdraw our substantial premium proposal and will not bid
further. Your September 30 vote will be a referendum on our proposal.
"Your proposal on exchange ratios is so unreasonable that its sincerity is
questionable. It seems to be premised on the flawed assumption that since your
combined production would be comparable to Phelps Dodge's, you should be valued
at the same level as Phelps Dodge. Of course, this is clearly not what
investors believe since it is not reflected in the relative market valuations of
the three companies. The simplistic assumption you seem to be making fails to
reflect Phelps Dodge's long track record of making tough management decisions
and delivering significantly greater value to shareholders than either ASARCO or
Cyprus Amax. Over a fifteen-year period we have delivered total returns to
shareholders of 1,024% in contrast to 25% for ASARCO and 102% for Cyprus Amax.
"Moreover, based on the information in your August 20 Form S-4 registration
statement, it appears that the conclusions arrived at by your own investment
bankers do not support your exchange ratio demand. The exchange ratios you have
demanded would deliver nearly all of the incremental value to be derived from a
three-way combination to your shareholders and very little to our shareholders.
This is, as you no doubt anticipated, completely unacceptable to us.
"In addition, we don't believe that your shareholders will be fooled by the
flawed measures you announced which purport to accommodate the possibility of a
third party transaction during the 90 days following completion of your merger.
None of your public statements address in any meaningful way all of the many
steps that would be necessary to give your shareholders a realistic opportunity
to benefit from an attractive third party proposal. Among the additional
matters that would have to be addressed if you were serious about accommodating
third party transactions would be to eliminate your staggered Board and the
highly unusual management entrenchment arrangements built into your two-party
merger agreement.
"Those unusual management-entrenchment provisions guarantee no change in
the roles of the proposed four senior executives of the ASARCO-Cyprus combined
company prior to the 2002 annual meeting except upon a vote of 75% of the Board.
Since management will hold 25% of the Board seats, this effectively requires a
unanimous vote of the non-management directors. Because your Board is divided
into three classes, this means that a buyer of 100% of the outstanding stock of
the ASARCO-Cyprus combined company would not be able to obtain management
control for nearly three years.
"Indeed, even in the two aspects of your 90 day proposal for which you try
to take credit, there is confusion, contradiction and unnecessary complexity.
You propose an unspecified shareholder mechanism to redeem your poison pill
which is inevitably more cumbersome than simple Board action. Secondly, we
noted with interest the statement in your August 25 press release that `In
addition, change in control provisions in any employment contracts entered into
by the Company will be waived for that same 90 day period.' We were therefore
surprised to read the contradictory statement in the Form 8-K you filed
yesterday that:
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<PAGE>
`The rights and benefits under the existing [change of control]
arrangements with the employees. . .of each of Cyprus Amax and ASARCO,
however, will remain in full force and effect and will be unaffected
during the 90 days following completion of the business combination,
as will any rights under arrangements entered into with such employees
in substitution for any existing arrangements.'
"Frankly, we believe that all of your statements concerning the 90 day
period are no more than a public relations gambit. There is no evidence in your
conduct to date that you have any willingness to pursue transactions that are in
the best interests of your shareholders.
"With regard to the three points in your August 25 letter other than the
exchange ratio, we are pleased to confirm that:
. We are prepared to enter into a merger agreement with substantially
the same representations, warranties and covenants as those contained
in your July 15 merger agreement.
. This proposal is not subject to due diligence.
. We have studied the regulatory issues carefully and are confident that
all necessary regulatory approvals for our three way combination will
be obtained on a timely basis. We would be pleased to give you strong
contractual assurances on this point.
"If you take seriously your fiduciary duty and want to inform yourselves
about a compelling transaction that would be in the best interests of your
shareholders, let's sit down and negotiate. If not, your shareholders will
decide which alternative they prefer on September 30.
Sincerely,
/s/ /s/
Douglas C. Yearley J. Steven Whisler
Chairman and President and
Chief Executive Officer Chief Operating Officer"
On August 27, 1999, Phelps Dodge announced that it intended to commence an
unsolicited exchange offer for all outstanding shares of Cyprus Amax Common
Stock and all outstanding shares of common stock of ASARCO.
At a meeting held on September 1, 1999, the Cyprus Amax Board reviewed the
terms of the Phelps Dodge Offer with its legal and financial advisors. At that
same meeting, the Cyprus Amax Board adopted a resolution that postponed the
distribution of rights certificates under the Cyprus Amax Shareholder Rights
Plan as a result of Phelps Dodge's announcement of its
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<PAGE>
intention to commence an exchange offer until such later date as determined by
the Cyprus Amax Board.
On September 3, 1999, Phelps Dodge filed a tender offer statement on
Schedule 14D-1 with the Securities and Exchange Commission. On September 7,
1999, Phelps Dodge filed a definitive proxy statement with the Securities and
Exchange Commission to solicit proxies from Cyprus Amax stockholders in
opposition to the approval and adoption of the Merger Agreement.
At a meeting held on September 8, 1999, the Cyprus Amax Board determined by
a unanimous vote that the Phelps Dodge Offer is not in the best interests of
Cyprus Amax and its stockholders. Accordingly, the Cyprus Amax Board
recommended that Cyprus Amax stockholders reject the Phelps Dodge Offer and not
tender their shares. The Cyprus Amax Board of Directors also unanimously
reaffirmed its determination that the terms of the Merger Agreement between
Cyprus Amax and ASARCO are fair to, and in the best interests of, Cyprus Amax
and its stockholders. Cyprus Amax's press release and letter to stockholders
with respect to the Cyprus Amax Board's recommendation are attached hereto as
Exhibits 3 and 4 respectively, and are incorporated herein by reference.
The Recommendation. The Cyprus Amax Board resolved to recommend against
the Phelps Dodge Offer because the Cyprus Amax Board did not find the Phelps
Dodge Offer to be in the best interests of Cyprus Amax and its stockholders. In
making this determination, the Cyprus Amax Board considered the following
factors, among others:
1. The Board considered the value stockholders would receive in the Asarco
Cyprus Merger and the fact that the stockholders of Cyprus Amax would
receive 63.5% of the equity of the combined company, including their
proportionate share of the value created by $275 million of annual
synergies made possible by combining the two companies.
2. The Board considered the terms of the Phelps Dodge Offer and the implied
value the Phelps Dodge Offer would deliver to Cyprus Amax stockholders
in the event that Phelps Dodge acquired both Asarco and Cyprus Amax
pursuant to the terms of the Phelps Dodge Offer. In addition, because
the Phelps Dodge Offer is not conditioned on the completion of Phelps
Dodge's offer for ASARCO, the Board also considered the implied value
the Phelps Dodge Offer would deliver to Cyprus Amax stockholders in the
event that Phelps Dodge acquired Cyprus Amax, but not ASARCO. In both
cases, the Board concluded that the Phelps Dodge Offer is inadequate.
The Board concluded that the ownership proposed by Phelps Dodge for the
Cyprus Amax stockholders in a combined Phelps Dodge/ASARCO/Cyprus Amax
did not fairly compensate Cyprus Amax stockholders for their relative
contribution to the new company.
3. The Board considered the oral opinion of its financial advisor, Merrill
Lynch, that the consideration offered to Cyprus Amax stockholders
pursuant
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<PAGE>
to the Phelps Dodge Offer is inadequate to such stockholders
from a financial point of view.
4. The Board considered that the terms of the Phelps Dodge Offer were such
that Phelps Dodge could, if it wished, increase the exchange ratio
substantially without incurring any dilution of its earnings, and thus
concluded that Phelps Dodge could afford to offer a substantially
improved exchange ratio if it was sincere in wishing to make an offer
that would be attractive to Cyprus Amax stockholders.
5. The Board considered that the Phelps Dodge Offer raises substantial
issues under the antitrust laws. In this respect, the Board noted that
although Phelps Dodge has had the ability to make the required
regulatory filings with respect to its proposed transaction since it
publicly stated its intention to commence the exchange offer for Cyprus
Amax Common Stock on August 27, 1999, Phelps Dodge has not done so and
the applicable 30-day waiting period under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended (the "HSR Act"), will not
commence until it does.
6. The Board considered that although Phelps Dodge stated that it was
prepared to enter into a merger agreement with substantially the same
representations, warranties and covenants as those contained in the
Merger Agreement, Phelps Dodge has not provided to Cyprus Amax and
Asarco its proposed form of agreement. In addition, although Phelps
Dodge stated that it was willing to give "strong contractual assurances"
on antitrust issues, Phelps Dodge has not made any specific commitments
on this point. In light of these concerns, the Board concluded that
there remained substantial uncertainty as to the timing of the
completion of any Phelps Dodge acquisition of Cyprus Amax or its
securities.
7. The Board of Directors considered the advantages that the business
combination between Cyprus Amax and ASARCO provides to Cyprus Amax and
its stockholders, including that the combined Asarco Cyprus would be a
stronger, more efficient competitor in the copper industry, would have
an improved ability to meet the challenges of low copper prices, would
be better able to benefit and would generate substantial cash flow
during periods of strong copper prices, would be able to lower costs
through increased purchasing power, and would have increased
capitalization.
8. The Board of Directors considered that Merrill Lynch, Cyprus Amax's
financial advisor, orally reconfirmed its opinion at the September 8th
Board Meeting that, as of such date, the exchange ratio in the Merger
Agreement with ASARCO was fair from a financial point of view to the
stockholders of Cyprus Amax.
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9. The Board of Directors considered that the special payment of $5.00 per
share to the stockholders of the combined Asarco Cyprus would enable
stockholders to receive an immediate and significant cash benefit from
the merger, while leaving the combined company with a strong balance
sheet and sufficient liquidity.
10. The Board of Directors considered that the Revised ASARCO/Cyprus Amax
Proposal allows Cyprus Amax to continue to pursue the business
combination with ASARCO on a basis that does not preclude Phelps Dodge
(or any other potential merger partner) from subsequently completing a
business combination with the combined company, while preserving the
opportunity for stockholders to realize the benefits of the merger with
ASARCO.
11. The Board of Directors considered the fact that the business combination
with ASARCO is the subject of a definitive agreement, as well as the
terms and conditions of the merger agreement, whereas the Phelps Dodge
Offer is subject to many conditions and no form of contract has been
proposed. The Board accordingly considered the risk that Phelps Dodge
would not prove willing or able to consummate its offer on mutually
acceptable non-financial terms.
12. The Board of Directors considered that the joint Cyprus Amax/ASARCO
letter to Phelps Dodge dated August 25, 1999, provided stockholders the
opportunity to accept a transaction involving Cyprus Amax, ASARCO and
Phelps Dodge if Phelps Dodge was willing to provide certain assurances
as to the terms of its proposal and to pay Cyprus Amax stockholders a
price that adequately reflected the contribution of Cyprus Amax to a
three-way combination of Cyprus Amax, ASARCO and Phelps Dodge.
The foregoing discussion of the information and factors considered by the
Cyprus Amax Board of Directors is not intended to be exhaustive but includes all
material factors considered by the Board. The Cyprus Amax Board of Directors
did not assign relative weights to the foregoing factors or determine that any
factor was of particular importance, and individual directors may have given
differing weights to different factors. Rather, the Board viewed its position
and recommendation as being based on the totality of the information presented
to and considered by it.
Item 5. Persons Retained, Employed or to be Compensated
Cyprus Amax has retained Merrill Lynch to render financial advisory
services to Cyprus Amax in connection with the Mergers and the Phelps Dodge
Offer. Pursuant to the terms of a letter agreement between Cyprus Amax and
Merrill Lynch dated July 17, 1999, Cyprus Amax has agreed to pay Merrill Lynch
$4.7 million for its financial advisory services upon the consummation of the
business combination with ASARCO. For additional services in connection with
the Phelps Dodge Offer, Merrill Lynch will be paid additional fees in amounts to
be mutually agreed upon. Cyprus Amax has also agreed to reimburse Merrill Lynch
for its reasonable
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out-of-pocket expenses, including the reasonable fees and disbursements of legal
counsel, and to indemnify Merrill Lynch and certain related parties from and
against certain liabilities, including liabilities under the federal securities
laws, arising out of its engagement.
Cyprus Amax has retained Georgeson Shareholder Communications Inc. and
MacKenzie Partners, Inc. to assist Cyprus Amax in its solicitation of proxies in
connection with the Mergers and to assist Cyprus Amax in connection with its
communications with its stockholders with respect to, and to provide other
services to Cyprus Amax in connection with, the Mergers and the Phelps Dodge
Offer. Such firms will receive reasonable and customary compensation for their
services and will be reimbursed for their out-of-pocket expenses in connection
therewith. Cyprus Amax has agreed to indemnify such firms against certain
liabilities arising out of or in connection with their engagement.
Except as set forth above, neither Cyprus Amax nor any person acting on its
behalf has employed, retained or compensated any person to make solicitations or
recommendations to stockholders with respect to the Mergers or the Phelps Dodge
Offer.
Item 6. Recent Transactions and Intent with Respect to Securities
(a) Except as described below, to the best knowledge of Cyprus Amax, there
have been no transactions in shares of Cyprus Amax Common Stock which were
effected during the past 60 days by Cyprus Amax or any executive officer,
director, affiliate or subsidiary of Cyprus Amax.
The following executive officers of Cyprus Amax purchased shares of Cyprus
Amax Common Stock in the last 60 days pursuant to the Cyprus Amax Minerals
Company Savings Plan and Trust: Jeffrey G. Clevenger (123 shares); Farokh S.
Hakimi (102 shares); Robin J. Hickson (131 shares); Gerald J. Malys (136
shares); John Taraba (139 shares); Milton H. Ward (11 shares); David H. Watkins
(127 shares) and Philip C. Wolf (166 shares).
(b) To the best knowledge of Cyprus Amax, none of its executive officers,
directors, affiliates or subsidiaries presently intends to tender shares of
Cyprus Amax Common Stock to Phelps Dodge pursuant to the Phelps Dodge Offer or
to sell any shares of Cyprus Amax Common Stock that are owned beneficially or
held of record by such persons.
Item 7. Certain Negotiations and Transactions by the Subject Company
(a) and (b).
Except as described herein, Cyprus Amax is not engaged in any negotiation in
response to the Phelps Dodge Offer which relates to or would result in (i) an
extraordinary transaction, such as a merger or reorganization, involving Cyprus
Amax or any of its subsidiaries, (ii) a purchase, sale or transfer of a material
amount of assets of Cyprus Amax or any of its subsidiaries, (iii) a tender offer
for or other acquisition of securities by or of Cyprus Amax or (iv) a material
change in the present capitalization or dividend policy of Cyprus Amax.
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Item 8. Additional Information to be Furnished
Cyprus Amax and its directors have been named as defendants in five
purported class actions commenced in the Court of Chancery, County of New
Castle, State of Delaware. ASARCO has been named as a defendant in one of the
actions as aiding and abetting the other defendants in the alleged breach of
their fiduciary duty. The plaintiffs in these lawsuits, who are purported
stockholders of Cyprus Amax, allege that: defendants have a legal duty to
negotiate with Phelps Dodge; that the Phelps Dodge proposal is more attractive
than the ASARCO-Cyprus Amax business combination; and the defendants should
conduct a negotiating or sale process in which Cyprus Amax would accept the
highest consideration available. The complaints allege that the individual
defendants have breached their fiduciary duties to the stockholders of Cyprus
Amax in negotiating the ASARCO-Cyprus Amax business combination, and
specifically by agreeing to a provision in the Merger Agreement that prohibits
Cyprus Amax at certain times from negotiating with or supplying information to
third parties such as Phelps Dodge. The plaintiffs further allege that
defendants breached their duties in connection with setting the record date for
the Cyprus Amax special meeting. As relief, the complaints seek, among other
things, damages in an unspecified amount, injunctive relief prohibiting
consummation of the ASARCO-Cyprus Amax business combination, and an order
requiring Cyprus Amax to negotiate with bidders and/or sell itself to the
highest bidder. The time for defendants to answer or respond to the complaints
has not yet elapsed. Cyprus Amax believes that the claims alleged in the
complaints are without merit.
Cyprus Amax and its directors, along with ASARCO, are named as defendants
in an action commenced by Phelps Dodge in the Court of Chancery in and for New
Castle County, State of Delaware (the "Phelps Action"). Phelps Dodge Corp. v.
------------------
Cyprus Amax Mineral Company, No. 17398. The complaint in the Phelps Action
- -----------------------------
alleges, among other things, that the directors breached their duties to the
stockholders of Cyprus Amax by entering into the Merger Agreement with ASARCO,
and in particular by agreeing to certain restrictions, commonly referred to as a
"no-shop" clause, on Cyprus Amax's ability to solicit or negotiate proposals by
third parties for the acquisition of Cyprus Amax or a merger with Cyprus Amax,
during certain periods of time as set forth in the Merger Agreement. In
addition, the complaint in the Phelps Action alleges that the director
defendants breached their duties to the stockholders of Cyprus Amax by agreeing
to certain termination fee provisions in the Merger Agreement; by failing to
submit the Phelps Dodge Offer to the stockholders of Cyprus Amax for approval;
by failing to determine that the Phelps Dodge Offer is in the best interests of
the stockholders of Cyprus Amax; and by failing to exempt Phelps Dodge from the
operation of Section 203 of the Delaware General Corporation Law (the "DGCL")
and Cyprus Amax's Shareholder Rights Plan. The complaint names ASARCO as an
aider and abettor of the alleged breaches complained of. As relief, the
complaint in the Phelps Action seeks, among other things, an injunction
preventing the Asarco Cyprus Merger from being consummated regardless of the
vote of stockholders; a declaration that the defendants are required to "obtain
information about" alternatives to the Asarco Cyprus Merger and that the
defendants are required to determine that "the Phelps Dodge proposal is in the
best interest of Cyprus Amax's shareholders." The complaint further seeks an
order compelling the defendants to submit the Phelps proposal to the
stockholders of Cyprus Amax, and to make Section 203 of the DGCL and Cyprus
Amax's Shareholder Rights Plan inapplicable to the Phelps
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Dodge Offer. Cyprus Amax and the director defendants believe that the
allegations of the complaint are without merit and intend to vigorously oppose
the relief sought in the complaint.
The Court of Chancery has scheduled a hearing on September 27, 1999 to
consider a motion by Phelps Dodge for a preliminary injunction to enjoin
consummation of the Asarco Cyprus Merger and to enjoin the application of the
"no shop" and termination fee clauses in the Asarco Cyprus Merger Agreement.
Cyprus Amax has been named as a defendant in an action commenced in the
Court of Chancery, County of Mercer, State of New Jersey in which Phelps Dodge
has alleged that ASARCO and its directors breached their duties to the
stockholders of ASARCO in connection with the Asarco Cyprus Merger. The
allegations of the complaint, and the relief sought, are substantially similar
to the allegations in the Delaware action described above, except that the New
Jersey complaint is directed against ASARCO and its directors and names Cyprus
Amax only as an alleged aider and abettor. Cyprus Amax has been informed that
the New Jersey court has granted a motion by ASARCO to stay the proceedings in
the New Jersey action, and expects that some or all of the claims asserted in
that action may be asserted by Phelps Dodge in the Delaware court.
Item 9. Material to be Filed as Exhibits
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.
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<PAGE>
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.
_________________
* Included with Schedule 14D-9 mailed to stockholders.
-25-
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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
----------------------------------
Philip C. Wolf
Senior Vice President,
General Counsel and Secretary
Dated: September 9, 1999
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<PAGE>
EXHIBIT 99.1
INTERESTS OF CERTAIN PERSONS IN THE MERGER
The executive officers of ASARCO and Cyprus Amax and the members of the
ASARCO and Cyprus Amax boards of directors have interests in the business
combination that are different from, or in addition to, the interests, of
stockholders generally. Several executive officers of ASARCO and Cyprus Amax,
including some officers who are also directors, have employment or severance
agreements and are or may become entitled to specific benefits under employee
benefit plans as a result of the business combination. Each of the employee-
directors of ASARCO and Cyprus Amax may be entitled to receive compensation if
the business combination is completed. The ASARCO and Cyprus Amax boards of
directors were aware of and discussed these potentially conflicting interests
when they approved the business combination.
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Cyprus Amax Employment Arrangements
Change of control severance agreements are in effect between Cyprus Amax
and its eight executive officers, including Messrs. Ward, Malys, Clevenger,
Philip C. Wolf and John Taraba.
Under the change of control severance agreements, if, during the three-year
period following a change of control, the employment of a covered executive is
terminated by Cyprus Amax other than for cause or due to death or disability, or
employment is terminated by the covered executive for good reason (including a
termination for any reason during the 30-day period following the first
anniversary of a change of control, other than in the case of Mr. Taraba and two
of the three other executive officers), the covered executive will be entitled
to receive a cash severance payment consisting of the following amounts:
. a pro rata annual bonus through the date of termination, based on the
higher of (1) the target annual bonus for the year prior to the change
of control and (2) the annual bonus earned in the most recent fiscal
year following the change of control (the "highest annual bonus") and,
in the case of Mr. Taraba and two of the three other executive officers,
based on the highest target annual bonus for the year prior to the
change of control (the "target annual bonus"), plus
. three times (two times in the case of Mr. Taraba and two of the three
other executive officers) the sum of the covered executive's base salary
and the highest annual bonus (target annual bonus in the case of Mr.
Taraba and two of the three other executive officers).
The change of control severance agreements also provide for the payment of
any unpaid amounts due the executive under other benefit plans of Cyprus Amax
and any employment agreements between Cyprus Amax and the executive, but not for
duplicate benefits. If any amounts payable to the executives under the change
of
64
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control severance agreements or otherwise would be subject to the excise tax
under section 4999 of the U.S. tax code, an additional payment will be made so
that after the payment of all income and excise taxes, the covered executive
will be in the same after-tax position as if no excise tax under section 4999
had been imposed. However, if the executive would not receive a net after-tax
benefit of at least $50,000 after making these additional payments, no
additional payments will be made on account of the excise tax, and, instead, the
payments otherwise due to the covered executive will be reduced as necessary to
prevent the application of the excise tax.
The transactions contemplated by the merger agreement will not constitute a
change of control within the meaning of the change of control severance
agreements. However, in connection with the business combination, the Cyprus
Amax Board took action to ensure that in the event a covered executive is not
employed by Asarco Cyprus, he will be entitled to receive the benefits as if his
employment was terminated other than for "cause" or was terminated by the
executive for "good reason" under the change of control severance agreements.
Assuming the Cyprus Amax merger occurs on September 30, 1999, if the employment
of Messrs. Ward, Malys, Clevenger, Wolf and Taraba were to be terminated
immediately following the effective time of the Cyprus Amax merger, the
estimated amounts of the cash severance payments (as described above) payable to
each of these executive officers would be $8.93 million; $2.06 million; $2.09
million; $1.55 million, and $820,000, respectively. Assuming the Cyprus Amax
merger occurs on September 30, 1999, if the employment of the three other
executive officers were to be terminated immediately following the effective
time of the Cyprus Amax merger, the estimated aggregate amount of the cash
severance payments (as described above) payable to these executive officers as a
group would be $2.60 million. As provided for in the merger agreement, Mr. Ward
will serve as the Chairman of the Board and Co-Chief Executive Officer of Asarco
Cyprus and Mr. Clevenger will serve as Executive Vice President and Chief
Operating Officer of Asarco Cyprus following the mergers. See "The Merger
Agreement--Asarco Cyprus Following the Mergers."
Employment agreements are also in effect between Cyprus Amax and each of
Messrs. Ward, Malys, Clevenger, Wolf and Taraba. Pursuant to Mr. Ward's
employment agreement, if his employment is terminated by Cyprus Amax other than
due to breach of covenant, or by Mr. Ward for good reason, he will be entitled
to receive a payment equal to his salary and bonus through December 31, 2000,
plus the actuarial equivalent of the retirement benefits under the Cyprus Amax
retirement plans calculated as if he had remained employed through December 31,
2000. Pursuant to the employment agreements with each of Messrs. Malys,
Clevenger, Wolf and Taraba, if the employment of the executive is terminated by
Cyprus Amax other than for cause, or by the executive for good reason, the
executive will be entitled to receive a payment equal to the accrued benefit
under the Cyprus Amax retirement plans calculated as if the executive had
remained employed until the date he would have first been eligible to receive an
immediately payable retirement benefit (but for no less than an 18-month
period). The factors and assumptions used to calculate these amounts vary over
time; however, based on reasonable factors and assumptions and assuming the
Cyprus Amax merger occurs on September 30, 1999, if the employment of Messrs.
Ward, Malys, Clevenger, Wolf and Taraba were to be terminated immediately
following the effective time of the Cyprus Amax merger, the estimated amounts of
the additional retirement benefits payable pursuant to the terms of the
employment agreements to each
<PAGE>
of the executive officers is $3.92 million, $424,000, $1.14 million, $633,000,
and $585,000, respectively. In addition, the employment agreements provide that
the executives will be entitled to receive retiree welfare benefit coverage and
outplacement services. The payments under the employment agreements may not
duplicate any amounts payable under the change of control severance agreements.
As provided for in the merger agreement, Mr. Ward will serve as the Chairman of
the Board and Co-Chief Executive Officer of Asarco Cyprus and Mr. Clevenger will
serve as Executive Vice President and Chief Operating Officer of Asarco Cyprus
following the mergers. See "The Merger Agreement--Asarco Cyprus Following the
Mergers."
Other Cyprus Amax Plans
Cyprus Amax Supplemental Retirement Plans
Under the Cyprus Amax supplemental retirement plan, on a change of control
of Cyprus Amax, participants will be entitled to receive immediately, unless
otherwise elected by the participant, the actuarial
65
<PAGE>
equivalent of a participant's vested accrued benefit under the plan. Under the
Cyprus Amax full retirement benefit plan, on a change of control of Cyprus Amax,
benefits under the plan will fully vest and participants will be entitled to
receive, unless otherwise elected by the participant, the actuarial equivalent
of the participant's benefit under the plan computed as of the date of the
change of control. The transactions provided for by the merger agreement will
constitute a change of control for purposes of the supplemental retirement plan
arid the full retirement plan.
Cyprus Amax Stock-Based Rights
Any option or stock appreciation right to acquire shares of Cyprus Amax
stock that is not exercised before the completion of the Cyprus Amax merger will
be converted into an option to purchase or right with respect to the number of
shares of Asarco Cyprus common stock equal to the number of shares of Cyprus
Amax common stock which Would have been obtained upon the exercise of the option
immediately prior to the time the Cyprus Amax merger becomes effective.
Under Cyprus Amax's stock-based plans, unvested stock options will become
fully vested and exercisable and all restrictions (including all performance
goals) on restricted stock awards will lapse or be considered to be earned in
full upon a change of control of Cyprus Amax. In addition, pursuant to one of
the Cyprus Amax stock-based plans, upon a change of control of Cyprus Amax, each
participant will be entitled to the immediate payment of the deferred cash
incentive award, to be used as a tax reimbursement, that was granted in
connection with restricted stock awarded under the plan. The transactions
provided for by the merger agreement will constitute a change of control under
the Cyprus Amax stock-based plans. Assuming that stockholder approval of the
Cyprus Amax merger occurs on September 30, 1999, in connection with such change
of control:
. the estimated number of shares of Cyprus Amax common stock underlying
awards of stock options held by Messrs. Ward, Malys, Clevenger, Wolf and
Taraba and the three other executive officers as a group that will vest
as a result of the Cyprus Amax merger is 1,241,667; 185,000; 187,500;
124,000; 73,000; and 191,000, respectively;
. the estimated number of shares of Cyprus Amax restricted stock held by
Messrs. Ward, Malys, Clevenger, Wolf and Taraba and the three other
executive officers as a group that will become free of restrictions as a
result of the Cyprus Amax merger is 350,000; 114,850; 104,460; 70,798;
49,900, and 109,223, respectively; and
. the estimated aggregate number of shares of Cyprus Amax common stock
underlying stock options held by nonemployee directors that will vest as
a result of the Cyprus Amax merger is 27,000.
Indemnification and Insurance
The merger agreement requires Asarco Cyprus to provide officers and
directors of ASARCO and Cyprus Amax with liability insurance arrangements that
are at least comparable to
<PAGE>
those in effect at the time the merger agreement was signed for a period of
three years following the business combination. Asarco Cyprus will not be
required to expend in my one year more than 150% of the annual premiums
currently paid by ASARCO or Cyprus Amax, as the case may be. If the annual
premiums of such insurance coverage exceed the 150%, limit, Asarco Cyprus only
will be obligated to obtain a policy with the greatest coverage available for a
cost not exceeding the limit. Asarco Cyprus is entitled to meet these
obligations by covering the relevant persons under its own insurance policies.
The merger agreement also requires Asarco Cyprus to indemnify officers and
directors of ASARCO and Cyprus Amax to the fullest extent permitted by
applicable law, and to the same extent that they were indemnified while working
on behalf of Cyprus Amax or ASARCO, for a period of six years following the
business combination. See "The Merger Agreement--Indemnification, Directors'
and Officers' Insurance."
66
<PAGE>
Stock Options and Other Stock-Based Awards
At the time the mergers become effective, each outstanding option and
related stock appreciation right (SAR), if any, will be converted into an option
(together with an SAR, if applicable) to acquire:
. in the case of an option to purchase ASARCO common stock, the number of
shares of Asarco Cyprus common stock equal to the number of shares of
ASARCO common stock which could have been obtained upon the exercise of
the option immediately prior to the time the mergers become effective,
and
. in the case of an option to purchase Cyprus Amax common stock, the
number of shares of Asarco Cyprus common stock equal to the number of
shares of Cyprus Amax common stock which could have been obtained upon
the exercise of the option immediately prior to the time the mergers
become effective multiplied by 0.765.
In the case of an option to purchase ASARCO common stock, the exercise
price per share of Asarco Cyprus common stock will not be adjusted at the time
the mergers become effective. In the case of an option to purchase Cyprus Amax
common stock, the exercise price per share of Asarco Cyprus common stock will be
adjusted to equal the exercise price for such option as in effect immediately
prior to the time the mergers
72
<PAGE>
become effective divided by 0.765. Asarco Cyprus will assume the obligations of
Cyprus Amax and ASARCO with respect to such options. Asarco Cyprus will assume
the obligations of ASARCO and Cyprus Amax under their respective option plans
and, except as described above, the terms of such options (and SARs) shall
continue to apply in accordance with the terms of the plans and agreements under
which they were issued, including any provisions for acceleration.
Following the completion of the business combination, Asarco Cyprus will
reserve for issuance and delivery a sufficient number of shares of Asarco Cyprus
common stock upon the exercise of any ASARCO stock options or Cyprus Amax stock
options.
Simultaneously with each of the mergers, each outstanding award (including
restricted stock, performance units, share units and performance shares) under
any employee incentive or benefit plan or arrangement and non-employee director
plan presently maintained by either of us will be converted into a similar
instrument of Asarco Cyprus, with appropriate adjustments to preserve the
inherent value of the awards with no detrimental effects on the holders. The
other terms of each award will continue to apply, including any provisions
providing for acceleration. With respect to any restricted stock awards as to
which the restrictions will have lapsed on or prior to the time the mergers
become effective, shares of such previously restricted stock will be converted
in accordance with the conversion provisions applicable to other shares of
common stock.
Benefits Matters
It is the intention of the parties that for a period of one year following
the completion of the business combination, Asarco Cyprus will maintain the
employee benefit plans of ASARCO and Cyprus Amax generally in accordance with
their terms in effect at the completion of the business combination. In
addition, following the completion of the business combination, Asarco Cyprus
will guarantee the performance of certain existing employment agreements and
benefit plans of each of ASARCO and Cyprus Amax.
Asarco Cyprus has also agreed that it will
. waive any limitations regarding pre-existing conditions and eligibility
waiting periods under any welfare or employee benefit plan maintained by
ASARCO or Cyprus Amax following the completion of the business
combination;
. provide employees of ASARCO and Cyprus Amax with credit for any co-
payments and deductibles paid in the calendar year prior to the
completion of the business combination; and
. generally, treat all service by employees of ASARCO and Cyprus Amax
prior to the completion of the business combination its service with
Asarco Cyprus under all compensation and benefit plans and policies of
ASARCO and Cyprus Amax.
<PAGE>
Indemnification; Directors' and Officers' Insurance
Asarco Cyprus has agreed that all exculpation and indemnification
provisions now existing in favor of the current or former directors or officers
of each of Cyprus Amax or ASARCO as provided in their respective charter or by-
laws or in ,my agreement will survive the business combination. Asarco Cyprus
has agreed that, for six years from the time the business combination becomes
effective, it will indemnify such indemnified parties to the same extent as they
were entitled while working on behalf of either Cyprus Amax or ASARCO.
Asarco Cyprus has also agreed that, for three years from the time the
business combination becomes effective, it will maintain in effect ASARCO's and
Cyprus Amax's current directors' and officers' liability insurance policies for
those persons who are currently covered by the policies. However, Asarco Cyprus
will not be required to expend in any one year more than 150% of the annual
premiums currently paid by ASARCO or Cyprus Amax, as the case may be. If the
annual premiums of such insurance coverage exceed the 150% limit, Asarco Cyprus
only will be obligated to obtain a policy with the greatest coverage available
for a cost not exceeding the limit. Asarco Cyprus is entitled to meet its
obligations under this paragraph by covering the relevant persons under its own
insurance policies.
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<PAGE>
DIRECTORS AND MANAGEMENT FOLLOWING THE BUSINESS COMBINATION
Directors
The merger agreement provides that, immediately following the completion of
the business combination, the Asarco Cyprus Board of Directors will have 16
members divided into three classes with each class serving a staggered three
year term (other than two of the initial three classes which will serve one and
two years, respectively). Two classes of directors will consist of five
directors each and one class of directors will consist of six directors. Eight
members will be designated by ASARCO and eight members will be designated by
Cyprus Amax. ASARCO and Cyprus Amax will select their designees from the
current members of the board of directors of ASARCO and Cyprus Amax,
respectively. If an individual selected consents to serve as a director of
Asarco Cyprus, he or she will be elected as a director of Asarco Cyprus.
Messrs. Ward, McAllister, Clevenger and Morano will serve as directors of
Asarco Cyprus, and Mr. Ward will serve as Chairman of the Board. ASARCO and
Cyprus Amax have not yet selected the other directors who will serve on the
Asarco Cyprus Board.
Committees of the Board of Directors
Under the Asarco Cyprus by-laws, membership on each of the committees of
the Asarco Cyprus board initially will consist of an equal number of the
directors designated by ASARCO and Cyprus Amax. Committee structure and
membership will be determined by the Asarco Cyprus Board of Directors at or
shortly after the completion of the business combination.
Compensation of Directors
Directors who are employees of Asarco Cyprus will not receive any
compensation for service on the Asarco Cyprus board. The specific terms of the
compensation to be paid to non-employee directors of Asarco Cyprus have not yet
been determined.
Management
The merger agreement provides that from the time the mergers become
effective, Mr. Ward, Chairman, President and Chief Executive Officer of Cyprus
Amax, and Mr. McAllister, President and Chief Executive Officer of ASARCO, will
share responsibility for the management of Asarco Cyprus, as Chairman of the
Board and Co-Chief Executive Officer, and President and Co-Chief Executive
Officer, respectively. At the next annual meeting of Asarco Cyprus expected to
be held in April 2000, Mr. McAllister will become the sole Chief Executive
Officer and President of Asarco Cyprus. Following the first annual meeting of
Asarco Cyprus expected to be held in April 2000, and until December 31, 2000,
Mr. Ward will continue to participate actively in managing the consolidation of
the operations of ASARCO and Cyprus, realizing the synergies expected to be
derived from the mergers and exploring growth opportunities for Asarco Cyprus.
Mr. McAllister will become Chairman, President and Chief Executive Officer of
Asarco Cyprus following Mr. Ward's retirement on December 31, 2000. In
addition, Mr. Clevenger will be Executive Vice President and Chief Operating
Officer of Asarco Cyprus, and Mr. Morano will be
<PAGE>
Executive Vice President and Chief Financial Officer of Asarco Cyprus, following
the completion of the mergers. Both Messrs. Clevenger and Morano will also be
directors of Asarco Cyprus. The remaining key executive officers of Asarco
Cyprus will be jointly designated by Messrs. McAllister and Ward, with the
advice and consent of the Asarco Cyprus Board of Directors. Any changes to the
above arrangements between the effective time of the mergers and the annual
meeting of Asarco Cyprus stockholders in 2002 will require the affirmative vote
of 75% of the Asarco Cyprus Board of Directors.
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Interests of Certain Persons in the Merger
As stated in the joint August 25, 1999 press release, Asarco Cyprus will
not enter into change of control agreements that may become operative during the
90 days following completion of the business combination. The rights and
benefits under the existing arrangements with the employees (including the
executive officers, as described in the joint proxy statement and prospectus in
"Interests of Certain Persons in the Merger") of each of Cyprus Amax and ASARCO,
however, will remain in full force and effect and will be unaffected during the
90 days following completion of the business combination, as will any rights
under arrangements entered into with such employees in substitution for any
existing arrangements.
13
<PAGE>
EXHIBIT 99.2
Director Compensation
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Annual Retainer Fees
Each January, non-employee directors receive an annual retainer of 2,000
shares of Common Stock.
- --------------------------------------------------------------------------------
Meeting Fees
Non-employee directors also receive a fee of $1,000 for attending each
Board meeting, each committee meeting, and each other meeting they are requested
by the Company to attend. In addition,
11
<PAGE>
for each committee meeting at which such person chairs, the chair of the
Nominating Committee receives an additional $250, the chair of the Employee
Funds Investment Committee receives an additional $500, and the chairs of the
Audit Committee and the Compensation and Benefits Committee each receive an
additional $5,000 per year or $500 per meeting, whichever is greater. All
directors are reimbursed for expenses incurred in attending Board and committee
meetings.
- --------------------------------------------------------------------------------
Deferred Compensation Plan for Non-Employee Directors
The deferred compensation plan permits non-employee directors to defer all
or a portion of their annual retainers and meeting fees, whether paid in cash or
shares of Common Stock. Participants elect to have their deferred compensation
credited with hypothetical dividends based on a right to receive shares of
Common Stock at the closing market price on the New York Stock Exchange on the
date such participant would have received such compensation had a deferral
election not then been in effect ("phantom stock"), or with hypothetical
earnings based on a right to receive the cash value of an investment of a
participant's deferred compensation into a specific investment fund.
Compensation paid in shares of Common Stock is credited solely with hypothetical
dividends based on phantom stock. Distributions will be made to participants
upon termination of their directorship or thereafter.
The deferred compensation plan also contains the present value of the
benefits previously accrued under the Retirement Plan for Non-Employee Directors
before its merger with the deferred compensation plan on June 30, 1998.
- --------------------------------------------------------------------------------
Stock Plan for Non-Employee Directors
On the first business day of each January, each non-employee director is
granted an option to purchase 2,000 shares of Common Stock at not less than 100%
of the fair market value on the date of the grant. Each stock option granted
expires no later than ten years after the date of grant. Before the stock
option becomes vested and exercisable, a director may be required to complete a
period of service as a member of the Board following the date of the grant.
Each non-employee director also is awarded an annual retainer of 2,000
shares of Common Stock (see page 11). In addition, an individual who is elected
or appointed to be a director for the first time on or after April 1, 1998, will
receive a one-time award of 12,500 shares of restricted stock. The restrictions
will lapse in 20% increments over a 5-year period from the award date. The
restrictions also lapse if the director terminates from the Board because of
death, disability, or retirement, or if there is a change of control, as defined
in the stock plan. The director will be entitled to receive dividends
attributed to the shares of restricted stock and to vote such shares.
- --------------------------------------------------------------------------------
Stock Ownership Policy
In 1998, the Board of Directors revised its stock ownership policy. Under
the revised policy, directors are required to own, and to continue to own while
a member of the Board, at least 6,000 shares of Common Stock by the later of
January 1, 2004, or the 5th anniversary of the
<PAGE>
date such director became a member of the Board. Phantom stock credited to
directors' accounts under the Deferred Compensation Plan for Non-Employee
Directors will be considered for purposes of determining whether the ownership
goals have been attained.
- --------------------------------------------------------------------------------
Retirement Policy
The Board of Directors has a retirement policy establishing a retirement
age of 70 for non-employee directors and 65 for employee directors. Case-by-
case exceptions may be made for
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<PAGE>
employee directors pursuant to the terms of the Retirement Plan for Salaried
Employees. Such an exception was made for Mr. Ward in 1996 by approving an
employment contract that expires after he attains age 65. The policy further
provides that non-employee directors shall not be nominated, appointed, or
elected to serve for a term commencing after attaining retirement age, unless
the retirement of any such director would cause the total number of non-employee
directors to be eight or less. In that case, any such director who reaches
retirement age at the date of any annual meeting may continue to serve beyond
retirement age or may be nominated and elected to another three-year term.
Directors who reach retirement age while serving terms as directors may continue
to serve until the first annual meeting following their attaining retirement
age.
- --------------------------------------------------------------------------------
Retirement Plan for Non-Employee Directors
Effective June 30, 1998, the retirement plan was eliminated by merging it
with, and the present value of the liability of benefits accrued were
transferred to, the Deferred Compensation Plan for Non-Employee Directors.
- --------------------------------------------------------------------------------
EXECUTIVE COMPENSATION
- --------------------------------------------------------------------------------
Compensation and Benefits Committee Report
The following report reflects the compensation philosophy and pay
determinations for the Chief Executive Officer and other executive officers made
by the Compensation and Benefits Committee for 1998.
- --------------------------------------------------------------------------------
Compensation Philosophy and Methodology
The Company's executive compensation program was adopted by the
Compensation and Benefits Committee in 1996. The program's overall objectives
are to attract and retain the best executive talent, to focus executive behavior
on achieving the Company's annual and long-term business objectives, to link
executive and shareholder interest through equity-based plans, and to provide a
compensation package that rewards financial and individual performance.
The Company retains a compensation consultant to review annually and advise
the Compensation and Benefits Committee on the Company's executive compensation
program. The consultant's review provides an ongoing evaluation of the link
between the Company's performance and its executive compensation program as
compared with the performance and executive compensation programs of other
companies that compete with the Company for executive talent. These competitors
include some of the same companies represented in the Cumulative Shareholder
Return graph on page 21, as well as other companies similar in size to the
Company.
13
<PAGE>
For 1998, the Company's compensation strategy for the key executive group,
other than the Chief Executive Officer, provided total compensation (including
salary, bonus, stock options, and performance-based restricted stock with
deferred cash incentive awards) that was targeted between the 50th percentile
and the 75th percentile of the compensation packages of comparable companies.
These targets were designed to provide meaningful rewards for superior
performance.
In assessing the performance of the Chief Executive Officer and determining
his 1998 compensation, as well as reviewing and approving the Chief Executive
Officer's recommendations for the 1998 performance of other senior management,
the Compensation and Benefits Committee considered:
1. the individual performance of the Chief Executive Officer and other
senior management;
2. the level of responsibility and contribution of those individuals to the
Company's performance;
3. the Company's performance based on both annual and long-term business
goals and strategies; and
4. the need to attract and retain key personnel by providing total
compensation opportunities that are competitive.
The Compensation and Benefits Committee determines the appropriate
compensation package for each senior executive in light of the foregoing
considerations, not based on a rigid formula or specific weightings.
- --------------------------------------------------------------------------------
Compensation Components
As discussed in greater detail below, the executive compensation program
consists of three components:
1. base salary;
2. annual bonus; and
3. long-term incentive compensation.
The total annual cash compensation paid to senior management, excluding the
Chief Executive Officer, is targeted in the upper quartile of the Company's
competitors and thus combines current above average bonus opportunities with
fully competitive base salaries.
<PAGE>
- --------------------------------------------------------------------------------
Base Salary
The base salaries for senior management, excluding the Chief Executive
Officer, are generally targeted to range between the median and 75th percentile
of the Company's competitors.
- --------------------------------------------------------------------------------
Annual Bonuses
Under the Annual Incentive Plan, the bonus awards made to the Named
Executives and other senior management as a group are granted from an annually-
determined incentive pool. The incentive bonus pool equals 1.5% of Income
Before Income Taxes and Minority Interest (reflected in the Company's
Consolidated Statement of Operations in its Annual Report), as adjusted for
special items. The Compensation and Benefits Committee reviews the Company's
objectives and the executives' objectives, which are presented by the Chief
Executive Officer, at the beginning of the year. At the end of the year, the
Compensation and Benefits Committee grants awards to the executives based on
Company, business unit, and individual performance compared to established
objectives, as well as recommendations of the Chief Executive Officer. For the
Named Executives, the awards are limited to a fixed share of the pool and may be
reduced but not increased at the discretion of the Compensation and Benefits
Committee. For 1998 performance payout consideration, the Compensation and
Benefits Committee utilized a portion of the earned bonus pool funds from
previous years that had not been paid out.
- --------------------------------------------------------------------------------
14
<PAGE>
Long-Term Incentive Compensation
The Company's long-term incentive program provides incentives to the
Company's executive officers and key employees through a combination of stock
options, restricted stock, and performance-based restricted stock. The program
has the following components:
1. Management Incentive Program: Grants of stock options and restricted
stock under the management incentive program are designed to link the
interests of key employees (217 in 1998) with those of the shareholders.
Stock options are granted with an exercise price equal to the fair
market value of the Common Stock on the date of grant and vest at such
time as determined by the Compensation and Benefits Committee when the
grant is made. Grants of stock options promote the creation of
shareholder value since no benefit is realized unless stock price
appreciation occurs.
No shares of restricted stock may be sold, assigned, transferred,
pledged or otherwise encumbered until the restrictions lapse.
Restrictions lapse for 25% of the shares on each anniversary of the date
of award, subject to continued employment with the Company. Restrictions
automatically lapse in whole upon retirement, death or total disability,
or upon a change of control of the Company (as such terms are defined in
the management incentive program).
2. Key Executive Long-Term Incentive Plan: The long-term incentive plan
provides for awards of restricted stock to enhance the long-term
performance of the Company by rewarding executives for the sustained
creation of incremental value for shareholders and to attract and retain
high quality management talent. As with the Management Incentive
Program, shares of restricted stock may not be sold, assigned,
transferred, pledged or otherwise encumbered until the restrictions
lapse. The restrictions lapse in whole on the tenth anniversary of the
award date, subject to continued employment with the Company, or sooner,
in whole or in part, upon the achievement of certain Company
performance-based criteria which are specified in the long-term
incentive plan. Restrictions automatically lapse in whole upon
retirement, death, disability or involuntary termination of service
without cause, or upon a change of control of the Company (as such terms
are defined in the long-term incentive plan).
In 1998, the Compensation and Benefits Committee awarded stock options and
restricted stock to individuals based on an assessment of competitive market
data and the pay strategy adopted in 1996, and based upon recommendations of the
Chief Executive Officer, as well as the Compensation and Benefits Committee's
assessment of individual and, if applicable, business unit performance.
- --------------------------------------------------------------------------------
Stock Ownership Requirements
Cymax policy, adopted in 1995, requires that the Company's Chief Executive
Officer own Common Stock with a value equal to five times his annual base salary
and that the Named
<PAGE>
Executives own Common Stock with a value equal to three times their respective
base salaries. The required stock ownership levels must be achieved within five
years.
- --------------------------------------------------------------------------------
Compensation of Chairman, President, and Chief Executive Officer
During 1998, under the direction of Milton H. Ward, the Company achieved
record low operating costs and continued to reduce debt. Efforts such as Quest
21, the continuous improvement process program implemented in 1997, and its Coal
Management Planning Process have been key
15
<PAGE>
factors in helping the Company achieve cost savings and productivity
improvements of approximately $150 million. Also, the Company reduced debt and
obligations by nearly $1 billion. Highlighted below are several significant
accomplishments achieved by the Company under Mr. Ward's leadership during 1998.
Metals. Despite significant business challenges presented by the commodity
------
markets, record low copper cash costs of 56c per pound were achieved during the
year. Over the last 2 years, the Company has been able to achieve reductions in
its copper cash costs of over 20%. Numerous records for productivity and low
costs were achieved at most operations in 1998.
Coal. The Company's coal division achieved its primary objective by
----
generating $195 million of cash flow during 1998. Improvements were made in
efficiencies, cost control, supplier alliances, and inventory management. These
efforts allowed the Company to increase productivity by approximately 14% during
1998 and lower costs at most of its operations.
Other. Corporate expenses were reduced $21 million, or 35%; and gross
-----
interest expenses were reduced $40 million, or 19%.
Transactions. The Company engaged in three significant strategic
------------
transactions during 1998 thereby allowing it to reduce debt, continue to
strengthen its financial position, and support growth opportunities in the
Company's core businesses.
1. In June, Amax Gold Inc. combined with Kinross Gold Corporation. The
Company held 59% of the stock of Amax Gold Inc. Following the
combination, the Company held 31% of Kinross Gold Corporation stock and
reduced its interest expense by approximately $28 million per year and
eliminated approximately $500 million in long-term obligations.
2. In late June, the Company successfully completed the sale of 11
Appalachian and Midwestern coal properties, for approximately $300
million in value.
3. In October, the Company successfully sold its lithium operations for
$305 million.
A substantial portion of Mr. Ward's compensation is determined pursuant to
the terms of his 1996 employment contract with the Company. The contract
primarily serves to reward Mr. Ward for his accomplishments and encourage him to
implement strategies that enable the ongoing success of the Company. It has
been designed to connect Mr. Ward's future financial rewards with the creation
of shareholder value. For a description of this contract and Mr. Ward's other
employment contracts, see page 20.
The Compensation and Benefits Committee has reviewed the Company's
performance for 1998 and Mr. Ward's leadership role in attaining the
achievements highlighted above, as well as the other criteria described in the
compensation philosophy and methodology section on page 13, and has determined
that the compensation awarded to Mr. Ward in 1998 was appropriate.
<PAGE>
- --------------------------------------------------------------------------------
Employee Remuneration in Excess of $1 Million
Under Section 162(m) of the Internal Revenue Code, federal income tax
deductions taken by publicly-traded companies may be limited to the extent total
compensation (including base salary, annual bonus, restricted stock awards,
stock option exercises, and non-qualified benefits) for certain executive
officers exceeds $1 million in any year. The deduction limit does not apply to
payments which qualify as "performance based." To qualify as "performance
based," compensation payments must be made from a plan that is administered by a
committee of outside directors and must be based on achieving objective
performance goals. In addition, the material terms of the plan must be
disclosed to and approved by shareholders, and the committee must certify that
the performance goals were achieved before payments can be awarded. In order to
qualify future payments under the Annual
16
<PAGE>
Incentive Plan as "performance based," the Company obtained shareholder approval
of the Annual Incentive Plan in May 1996.
The Compensation and Benefits Committee generally intends to administer the
Company's compensation programs so that the total compensation paid to any
employee will not exceed $1 million in any year, except for compensation
payments in excess of $1 million which qualify as "performance-based
compensation" or which are exempt for other reasons. In 1998, the Company paid
Mr. Ward total compensation in excess of $1 million in recognition of the
Company's outstanding performance under his leadership. If the objectives of its
executive compensation program so require, the Company may pay compensation in
excess of $1 million to its other executives. Any compensation in excess of $1
million would not be deductible.
Billie B. Turner, Chairman
George S. Ansell
Thomas V. Falkie
Ann Maynard Gray
Theodore M. Solso
- --------------------------------------------------------------------------------
17
<PAGE>
Compensation Tables
The following tables set forth information for the years indicated
concerning the compensation of the Chairman, President, and Chief Executive
Officer and each of the Named Executives.
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
SUMMARY COMPENSATION TABLE
Long-Term
Annual Compensation Compensation Awards
------------------------------------------- ---------------------------
Restricted Securities
Name and Other Annual Stock Underlying All Other
Principal Position Year Salary ($) Bonus ($) Compensation ($) Award ($)(1) Options (#) Compensation ($)(2)
- ----------------------------- ------ ------------ ---------- ----------------- ------------- ----------- -------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Milton H. Ward 1998 1,133,524(3) 975,000 10,001(4) 1,456,275 425,000 3,305
Chairman, President, and 1997 840,410(3) 1,300,000 21,232(4) 1,168,750 100,000 3,828
Chief Executive Officer 1996 708,000(3) 1,200,000 2,312(4) 1,321,875 1,150,000 3,879
Gerald J. Malys 1998 395,000 162,938 2,873(4) 482,543 126,250 3,316
Senior Vice President and 1997 370,000 230,000 1,355(4) 331,925 42,600 3,796
Chief Financial Officer 1996 340,000 200,000 29,957(4) 375,413 42,700 3,851
Jeffrey G. Clevenger 1998 390,000 160,875 -- 436,886 127,500 3,316
Executive 1997 330,000 215,000 16,006(4) 268,813 34,600 3,791
Vice President 1996 310,000 185,000 257(4) 317,250 40,000 3,848
Garold R. Spindler 1998 390,000 160,875 -- 405,761 122,500 3,368
Executive 1997 312,000 170,000 719(4) 259,463 33,500 3,952
Vice President 1996 300,000 120,000 1,055(4) 222,075 27,900 3,842
Philip C. Wolf 1998 300,000 123,750 -- 294,710 81,750 3,487
Senior Vice President, 1997 275,000 165,000 0 198,688 25,400 3,809
General Counsel, and Secretary 1996 260,000 150,000 1,854(4) 245,869 25,100 3,871
</TABLE>
______________
(1) Restricted stock awards were made to Mr. Ward in January 1998 and October
1998 and to the Named Executive in January 1998 and August 1998. Amounts
shown in the table reflect the fair market value of the stock on the date
of the award. The actual value an executive may realize will depend upon
the amount of the stock on which restrictions lapse and the value realized,
which may be greater or less than this amount. The aggregate restricted
holdings of the Chief Executive Officer and the Named Executives was
589,820 shares with a fair market value of $5,898,200 based on the closing
price of Common Stock of $10.00 per share on December 31, 1998. Such
holdings include $3,000,000 (300,000 shares) for Mr. Ward; $934,750 (93,475
shares) for Mr. Malys; $827,100 (82,710 shares) for Mr. Clevenger; $556,500
(55,650 shares) for Mr. Spindler; and $579,850 (57,985 shares) for Mr.
Wolf. The awards made in 1996, 1997, and January 1998 were made under the
Key Executive Long-Term Incentive Plan (see page 15). The awards made in
August and October 1998 were made under the Management Incentive Program
(see page 15). Regular dividends are paid on all restricted stock awards.
(2) The amounts shown are the employer contributions to the employee savings
plan. For 1998, the maximum recognizable compensation for purposes of
calculating employer contributions was $160,000 per employee based on
Internal Revenue Service regulations.
(3) Does not include $166,476 reimbursed to Cymax by Amax Gold Inc. for Mr.
Ward's salary and benefits for services he provided to Amax Gold Inc.
during 1998, $309,590 reimbursed during 1997, or $292,000 reimbursed during
1996.
(4) Gross up tax payment for certain benefits received by officers.
- --------------------------------------------------------------------------------
18
<PAGE>
Option Grants in 1998
<TABLE>
<CAPTION>
Individual Grants
--------------------------------------------------------------------------
Number of
Securities % of Total
Underlying Options Exercise or Grant Date
Options Granted to Base Price Expiration Present
Name Granted (#)(1) Employees ($/Share) Date Value ($)(2)
- ------------------ --------------- ---------- ------------ -------------- ------------
<S> <C> <C> <C> <C> <C>
Milton H. Ward 225,000 11.61 13.563 October 21, 2008 489,375
200,000 10.32 15.5625 January 2, 2008 580,560
Gerald J. Malys 71,250 3.68 11.469 August 20, 2008 125,557
55,000 2.84 15.5625 January 2, 2008 159,654
Jeffrey G. Clevenger 82,500 4.26 11.469 August 20, 2008 145,382
45,000 2.32 15.5625 January 2, 2008 130,626
Garold R. Spindler 82,500 4.26 11.469 August 20, 2008 145,382
40,000 2.06 15.5625 January 2, 2008 116,112
Philip C. Wolf 48,750 2.52 11.469 August 20, 2008 85,907
33,000 1.70 15.5625 January 2, 2008 95,792
</TABLE>
______________
(1) The exercise price for each grant is equal to 100% of the fair market value
of Common Stock on the grant date. The stock options expire ten years
after the grant date.
(2) The Black-Scholes option pricing model was used to estimate the grant date
present value of the stock options set forth in this table. The Company's
use of this model should not be construed as an endorsement of its accuracy
at valuing stock options. All stock option models, including the Black-
Scholes model, require a prediction about the future movement of the market
price of Common Stock. The following assumptions were made for purposes of
calculating the Grant Date Present Value: For the stock options granted
January 2, 1998, a stock option term of 10 years, volatility at 30%,
dividend yield (for January 2, 1998, at 5.14%, for August 20, 1998, at
6.98%, and for October 21, 1998, at 5.9%), and interest rate for January 2,
1998, at 5.629%, for August 20, 1998, at 5.368%, and for October 21, 1998,
at 4.349%. The real value of the stock options in this table depends upon
the actual performance of Common Stock during the applicable period.
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------
Aggregated Option Exercises in 1998
and Year-End Values
Number of Securities Value of Unexercised
Underlying Unexercised In-the-Money
Options at Options at
Year-End (#) Year-End ($)
Shares Acquired on Value Exercisable/ Exercisable/
Name Exercise (#) Realized ($) Unexercisable Unexercisable(1)
- ---------------------- -------------------- -------------- ------------------------- -------------------
<S> <C> <C> <C> <C>
Milton H. Ward 0 0 1,147,921 / 1,141,667 0 / 0
Gerald J. Malys 0 0 180,176 / 147,550 0 / 0
Jeffrey G. Clevenger 0 0 110,900 / 144,800 0 / 0
Garold R. Spindler 0 0 74,650 / 139,250 0 / 0
Philip C. Wolf 0 0 129,256 / 94,450 0 / 0
</TABLE>
______________
(1) Amounts shown in this column represent the fair market value (average of
the high and low) of the underlying Common Stock at year end minus the
exercise price. The actual value, if any, realized upon exercise may vary
depending upon the amount by which the market price of Common Stock exceeds
the exercise price when the stock options are exercised.
- --------------------------------------------------------------------------------
19
<PAGE>
Employment Contracts
Cymax entered into an employment contract with Milton H. Ward effective
January 1, 1996. The contract, which will expire on December 31, 2000,
establishes a base salary and provides for a target cash bonus with actual
payment determined by the Board. The bonus payment is subject to the limitation
of the Annual Incentive Plan. The contract also provides that Mr. Ward is
eligible to participate in employee benefit programs as well as supplemental
retirement benefits and stock plans. Mr. Ward agreed to fulfill his assigned
duties and to avoid activities adverse to Cymax's interests both during and
after the contract term. Cymax has the right to terminate the employment
contract upon 30 days' notice. If employment were terminated other than due to
breach of covenant (or retirement or resignation in certain circumstances), Mr.
Ward would be entitled to a lump sum payment equal to his salary and bonus for
the remainder of the contract period plus the actuarial equivalent of
supplemental retirement benefits and welfare benefits for retirees. If
permitted by applicable laws and plan provisions, Mr. Ward could be entitled to
receive the value of any previously awarded restricted shares and a five-year
period to exercise previously granted stock options.
In November 1993, Cymax entered into agreements with Gerald J. Malys,
Jeffrey G. Clevenger, and Philip C. Wolf. Stock options were granted pursuant
to the agreements, along with restricted stock which was fully vested in 1998.
In October 1998, Cymax entered into a similar agreement with Garold R. Spindler.
Pursuant to these agreements, in certain circumstances each Named Executive
would be entitled to a lump sum termination payment equal to the accrued benefit
under the retirement plans sponsored by the Company. Such benefits would be
calculated as if the executive had continued employment with Cymax until the
date he would first have been eligible to receive an immediately payable
retirement benefit (but for no less than an 18 month period). The executive
also could be eligible for retirement welfare benefits.
Cymax also has change of control employment agreements with Milton H. Ward,
Gerald J. Malys, Jeffrey G. Clevenger, Garold R. Spindler, and Philip C. Wolf.
These employment agreements become effective upon a Change of Control (as
defined therein). If the executive is terminated other than for Cause or if the
executive terminates employment under circumstances which constitute Good Reason
(as such terms are defined in the employment agreements) or for any reason
during the 30-day period following the first anniversary of the Change of
Control, the executive will become entitled to a specific severance payment
equal to 3 times his yearly salary and bonus. The executives also will receive
an additional payment to make them whole for any excise tax imposed by Section
4999 of the Internal Revenue Code.
Gerald J. Malys, Jeffrey G. Clevenger, Garold R. Spindler and Philip C.
Wolf are covered under the Company's Executive Officer Separation Policy. If
any Named Executive's employment is terminated under circumstances described in
the policy, he is entitled to separation benefits equal to one year of his base
salary plus target annual bonus. He also would be eligible for a pro rata bonus
for the year of termination at the discretion of the Compensation and Benefits
Committee, for outplacement services, and for medical and life insurance
benefits.
<PAGE>
The policy also provides for non-duplication of benefits. Because of this, the
Named Executives are not expected to receive medical and life insurance benefits
under this policy.
- --------------------------------------------------------------------------------
20
<PAGE>
Cumulative Shareholder Return
The graph below shows a five-year comparison of cumulative total
shareholder returns for Common Stock, the S&P 500 Index, and the Company's peer
index. The returns of the companies in the peer index are weighted based on
their stock market capitalization as of the beginning of the period. Cumulative
total shareholder return (on an assumed initial investment of $100 as of
December 31, 1993), as determined at the end of each year, reflects the change
in stock price, assuming the reinvestment of dividends.
[GRAPH APPEARS HERE]
COMPARISON OF FIVE YEAR CUMULATIVE TOTAL RETURN
AMONG CYMAX, PEER INDEX AND S&P 500 INDEX
- -----------------------------
Peer Index
----------
Asarco Incorporated
Arch Coal, Inc.
Cleveland-Cliffs Inc.
Cominco Ltd.
Echo Bay Mines Ltd.
Freeport-McMoRan Copper &
Gold Inc.
Inco Limited
Noranda Inc.
Phelps Dodge Corporation
- -----------------------------
Measurement Period
(Fiscal Year Covered) CYMAX PEER INDEX S&P 500 INDEX
- ---------------------- --------- ------------ ---------------
Measurement Pt-
1993 100 100 100
FYE 1994 112.1 110 101.3
FYE 1995 111.9 123.1 139.3
FYE 1996 96.3 126.6 171.5
FYE 1997 91.6 116.5 228.6
FYE 1998 51.3 83.1 261.5
- --------------------------------------------------------------------------------
Retirement Plans
The Retirement Plan for Salaried Employees covers executives and most other
salaried employees. The amount of annuity an employee will receive upon
retirement on a single-life basis is determined under the formula set forth
below. Upon retirement, a married employee receives a reduced annuity payment
that continues after death to cover the surviving spouse, unless the employee
and the spouse elect one of the alternate options of equivalent actuarial value.
<PAGE>
If an employee retires on the normal retirement date (generally, the later
of age 65 or the 5th anniversary of the date participation commenced), the
annual benefit payable from the retirement plan will be the sum of: (1) 1.7% of
average annual earnings (base salary plus bonus) received by the employee for
service during each year after 1998, plus (2) 1.7% of the employee's average
annual earnings from 1994 through 1998 multiplied by the employee's number of
pre-1999 years of service recognized by Cymax for retirement plan benefit
accrual purposes, less (3) 1.1% of the Social Security offset multiplied by the
total years of service as of December 31, 1998, and certain other offsets, not
to exceed 35 years recognized for Cymax plan purposes.
21
<PAGE>
The estimated annual benefits payable upon retirement at normal retirement
age are $232,568 for Milton H. Ward; $223,913 for Gerald J. Malys; $200,615 for
Jeffrey G. Clevenger; $159,679 for Garold R. Spindler; and $218,262 for Philip
C. Wolf. These estimates are based on actual covered pay for 1994 through 1998
and 1998 base salary and bonus for years after 1998. The estimates do not
reflect the impact of future salary increases.
The 5-year period 1994 through 1998 currently used in the benefit formula
described above may be rolled forward by the Board of Directors. The table
below provides information on retirement benefits (subject to reduction by a
percentage of Social Security benefits), assuming that the formula is applied to
average annual remuneration during the five years prior to retirement:
- --------------------------------------------------------------------------------
PENSION PLAN TABLE
<TABLE>
<CAPTION>
Assumed
5-Year
Average Years of Benefit Service
Annual -----------------------------------------------------------------------------
Earnings 5 Years 10 Years 15 Years 20 Years 25 Years 30 Years 35 Years
- ----------- ---------- -------- -------- --------- ---------- ---------- -----------
<S> <C> <C> <C> <C> <C> <C> <C>
$ 375,000 $ 31,875 $ 63,750 $ 95,625 $127,500 $ 159,375 $ 191,250 $ 223,125
475,000 40,375 80,750 121,125 161,500 201,875 242,250 282,625
575,000 48,875 97,750 146,625 195,500 244,375 293,250 342,125
775,000 65,875 131,750 197,625 263,500 329,375 395,250 461,125
975,000 82,875 165,750 248,625 331,500 414,375 497,250 580,125
1,175,000 99,875 199,750 299,625 399,500 499,375 599,250 699,125
1,675,000 142,375 284,750 427,125 569,500 711,875 854,250 996,625
2,175,000 184,875 369,750 554,625 739,500 924,375 1,109,250 1,294,125
2,675,000 227,375 454,750 682,125 909,500 1,136,875 1,364,250 1,591,625
</TABLE>
The amounts above are payable upon retirement between ages 62 and 65. For
retirement prior to age 62, the annual annuity amounts are reduced as provided
in the retirement plan. At year-end 1998, the Chief Executive Officer and the
Named Executives had accumulated the years of benefit service stated (excluding
additional years under the plan described in the following paragraph): Milton
H. Ward, 6 years; Gerald J. Malys, 13 years; Jeffrey G. Clevenger, 6 years;
Garold R. Spindler, 4 years; and Philip C. Wolf, 18 years. The Internal Revenue
Code limits the benefits payable from any funded retirement plan that qualifies
for federal income tax exemption. The estimated annual benefits payable upon
retirement, including amounts set forth in the table above, which exceed such
limits are payable from an unfunded non-qualified retirement plan.
For certain executives designated by the Compensation and Benefits
Committee who continue to work until at least age 55, an additional retirement
benefit will be paid under another unfunded non-qualified retirement plan. This
benefit utilizes the benefit formula under the Retirement Plan for Salaried
Employees, but calculates benefit service as being equal to the lesser of (1)
the difference between 30 years and the years of benefit service projected to
age 62, or if older, the years of actual benefit service and (2) the years of
benefit service actually earned under the Retirement Plan for Salaried
Employees. Benefits under this non-qualified plan are determined without regard
to any Internal Revenue Code restrictions on benefits that can be paid from a
tax-qualified plan. Applying the benefit service calculation above to Milton H.
Ward as
<PAGE>
of the end of his employment contract at age 68, he would be credited with an
additional 8 years of service at retirement. At normal retirement (age 65), 3 of
the Named Executives would be credited with the following additional years:
Gerald J. Malys, 5 years; Jeffrey G. Clevenger, 8 years; and Garold R. Spindler,
13 years. Philip C. Wolf would be credited with no additional years at normal
retirement. This plan provides for immediate vesting and distribution of accrued
benefits in the event of a change of control, as defined in the plan.
22
<PAGE>
EXHIBIT 99.3
[LOGO] CYPRUS AMAX ASARCO NEWS
MINERALS COMPANY
FOR IMMEDIATE RELEASE
CYPRUS AMAX AND ASARCO BOARDS REJECT
PHELPS DODGE EXCHANGE OFFERS
URGE SHAREHOLDERS TO VOTE FOR
ASARCO CYPRUS MERGER ON SEPTEMBER 30
DENVER, CO., and NEW YORK, NY, September 8, 1999 Cyprus Amax Minerals Company
(NYSE:CYM) and ASARCO Incorporated (NYSE:AR) today announced that their
respective Boards of Directors unanimously rejected Phelps Dodge's exchange
offers to their shareholders as inadequate and not in the best interests of
their shareholders. The Boards also unanimously recommended that their
shareholders reject the exchange offers and not tender their shares, and
unanimously reaffirmed that the terms of the Asarco Cyprus business combination
are fair to, and in the best interests of, their shareholders.
In their recommendations to their shareholders, the Cyprus Amax and Asarco
Boards cited, among other things:
* The advantages to the shareholders of becoming shareholders in Asarco
Cyprus, including, that they retain 100% of the $275 million of annual
savings created by the combination.
* The Phelps Dodge exchange offers are inadequate and fail to compensate
Cyprus Amax and Asarco shareholders for their relative contribution to
a three-way combination with Phelps Dodge.
* The opinion, rendered on September 8, 1999, of their respective
financial advisors that the consideration offered to the shareholders
is inadequate to such holders from a financial point of view.
<PAGE>
* The special $5.00 per share cash payment to the stockholders of Asarco
Cyprus immediately following the combination provides them with
immediate and significant value.
* A three-way combination raises substantial issues under the antitrust
laws. The Boards noted that the Phelps Dodge exchange offers are
conditioned on the expiration of the Hart-Scott antitrust waiting
period but Phelps Dodge has not even filed the required notification
yet. In contrast, the applicable waiting period for the Asarco Cyprus
combination has already expired.
* The highly conditional nature of the Phelps Dodge exchange offers,
including with respect to antitrust regulatory approval and Phelps
Dodge's own stockholder approval which is not being sought until after
the Cyprus Amax and Asarco September 30 shareholder meeting date.
Accordingly, each Board recommends to its shareholders that they do not tender
their shares to Phelps Dodge and strongly urges them to vote in favor of the
Asarco Cyprus combination on September 30.
Milton H. Ward, Chairman and Chief Executive Officer of Cyprus Amax and Francis
R. McAllister, Chairman and Chief Executive Officer of Asarco, speaking together
said, "It is absolutely clear from Phelps Dodge's actions over the course of the
last few weeks that it is trying to coerce Cyprus Amax and Asarco shareholders
into a situation that is not in their best interests. First, Phelps Dodge's
opportunistic and inadequate exchange offers do not give our shareholders their
fair ownership interest in the combined entity. Second, a three-way combination
with Phelps Dodge raises substantial antitrust issues that Phelps Dodge has not
yet
<PAGE>
begun to address. Third, Phelps Dodge has never offered any persuasive reason
why it would walk away if our shareholders approve our two-way combination, if
in fact Phelps Dodge is sincere in wanting to merge with both companies."
Messrs. Ward and McAllister went on to say that "The Boards of Cyprus Amax and
Asarco are committed to achieving the best value for their shareholders and will
not sacrifice their shareholders' interest for Phelps Dodge's own agenda, which
is to maximize value for Phelps Dodge and its shareholders. It is for this
reason that we strongly recommend shareholders vote for the Asarco Cyprus
transaction on September 30."
Cyprus Amax and Asarco also announced today that they were each filing with the
Securities and Exchange Commission, and will mail to their shareholders, a
Solicitation/Recommendation Statement on Schedule 14D-9 setting forth the
Board's formal recommendation with respect to the Phelps Dodge exchange offer
and the reasons for the recommendation. Additional information with respect to
each Board's decision to recommend that shareholders reject the Phelps Dodge
offer is contained in the Schedule 14D-9.
Actual results may vary materially from any forward-looking statement the
companies make. Refer to the cautionary statement risk factors contained in
Cyprus Amax's and Asarco's 1998 Form 10K's.
<PAGE>
EXHIBIT 99.4
[Cyprus Amax Letterhead]
September 9, 1999
Dear Fellow Shareholders:
On September 3, 1999, Phelps Dodge Corporation commenced an unsolicited
exchange offer for the Company's common stock. The exchange offer is one of a
number of actions taken by Phelps Dodge to oppose the merger that Cyprus Amax
has negotiated with ASARCO Incorporated.
After careful consideration, your Board of Directors has unanimously
rejected Phelps Dodge's offer as inadequate and not in the best interests of the
Company and its shareholders. The Board unanimously recommends that you reject
the offer and not tender your shares to Phelps Dodge. Your Board of Directors
has unanimously reaffirmed its determination that the terms of the merger with
ASARCO are fair to, and in the best interests of, Cyprus Amax and its
shareholders.
In arriving at its determination and recommendation, the Board gave careful
consideration to the factors which are described in the enclosed Schedule 14D-9.
I urge you to read this document carefully so that you will be fully informed as
to the Board's recommendation.
Milton H. Ward
Chairman, President and
Chief Executive Officer
<PAGE>
EXHIBIT 99.5
LOWENSTEIN SANDLER, PC
65 Livingston Avenue
Roseland, New Jersey 07068
(973) 597-2500 (tel)
(973) 597-2400 (fax)
Attorneys for Plaintiffs
Phelps Dodge Corporation
and AAV Corporation
<TABLE>
<S> <C>
|
PHELPS DODGE CORPORATION | SUPERIOR COURT OF NEW
a New York Corporation and | JERSEY
AAV Corporation, a Delaware | CHANCERY DIVISION: MERCER
corporation | COUNTY
|
Plaintiffs, | DOCKET NO.
|
v. |
|
ASARCO INCORPORATED, a New | VERIFIED COMPLAINT FOR
Jersey corporation, Francis R. McAllister, | DECLARATORY AND INJUNCTIVE
Richard de J. Osborne, Vincent A. Calarco, | RELIEF
John D. Ong, Kevin R. Morano, Michael T. |
Nelligan, Manuel T. Pacheco, James Wood, |
James C. Cotting, David C. Garfield, E. |
Gordon Gee, James Kinnear and |
CYPRUS AMAX MINERALS |
COMPANY, a Delaware corporation, |
|
Defendants. |
___________________________________________|
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Plaintiffs Phelps Dodge Corporation and AAV Corporation (collectively,
"Phelps Dodge"), by and through their undersigned attorneys, upon knowledge as
to themselves and their own acts and upon information and belief as to all other
matters, allege as follows:
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NATURE OF THE ACTION
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1. On July 15, 1999, ASARCO Incorporated ("ASARCO") and Cyprus Amax
Minerals Company ("Cyprus Amax") announced a non-premium proposed merger (the
"ASARCO Cyprus Merger"). Their merger agreement (the "Merger Agreement") --
which was not publicly disclosed until August 20, more than a month after the
announcement -- is illegal. It purports to prohibit directors of a New Jersey
corporation from receiving, gathering, providing or exchanging information
concerning any merger or acquisition proposal by Phelps Dodge (or any other
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interested party) until the stockholders of both companies vote on the ASARCO
Cyprus Merger. It cannot be terminated to pursue a clearly superior
transaction, such as the three-way combination proposed by Phelps Dodge. It
imposes draconian financial penalties -- in excess of 6% of the market
capitalization of ASARCO -- if the deal is not consummated according to
management's plan. In short, this Merger Agreement is dead on arrival, a fact
that likely explains why the companies secreted it so long.
2. The Merger Agreement's "No Solicitation" provisions -- in reality,
"no-see, no-hear, no-talk" provisions -- are particularly outrageous. The
directors of ASARCO and Cyprus Amax have contracted away their duty of care;
they are not permitted ever to learn about, let alone evaluate meaningfully, any
alternative proposal -- no matter how compelling, financially rewarding and
industrially sound. And, while the Merger Agreement makes the gracious
concession of supposedly permitting the directors to change or withdraw their
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recommendation of the ASARCO Cypress Merger, it renders that right meaningless.
A director cannot make an informed decision about the merits of a proposed
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transaction -- or, equally important, the relative merits of two strategic
alternatives -- without the ability to communicate freely with interested
parties. This Court has never sanctioned what this Merger Agreement purports to
do: require directors to keep their eyes wide shut.
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3. Apparently not content to hide behind the Merger Agreement's lock-up
provisions, ASARCO and Cyprus Amax have engaged in a persistent pattern of
conduct that reeks of entrenchment and undue defensiveness. Among other things
they have:
. attempted to rig the proxy process -- Blasius Indus., Inc. v.
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Atlas Corp., 564 A.2d 651 (Del. Ch. 1988), be damned -- by
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setting meeting and record dates designed to favor unfairly man
agement's preferred transaction;
. opposed Phelps Dodge's lawful requests for stockholder list
information to allow Phelps Dodge to communicate directly -- and
on a level playing field -- with the companies' owners;
. granted senior management compensation and benefits packages
that not only lavishly "reward" entrenchment, but unfairly
shift value from stockholders to management;
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. included in the Merger Agreement Provisions that virtually
guarantee the jobs of senior management through 2002; and
. stood -- and hid -- behind the Merger Agreement's unlawful
restrictions, refusing to meet, discuss or exchange information
with Phelps Dodge concerning its proposal.
This is not the conduct of responsible boards of directors.
4. ASARCO's directors have abdicated their responsibilities. Their
actions to date should be enjoined, and they should be required to act in
accordance with law going forward.
THE PARTIES
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5. Plaintiff Phelps Dodge is a New York corporation with its principal
executive offices in Phoenix, Arizona. Phelps Dodge is one of the world's
leading producers of copper and has achieved its premier status through safe,
efficient and environmentally sound production of low-cost, high-quality metals
and minerals. Phelps Dodge beneficially owns common stock of both ASARCO and
Cyprus Amax.
6. Plaintiff AAV Corporation is a Delaware corporation directly owned by
Phelps Dodge. AAV Corporation owns 100 shares of common stock of ASARCO.
7. Defendant ASARCO is a New Jersey corporation with its principal place
of business in New York, New York. ASARCO is a leading producer of copper,
specialty
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chemicals and aggregates. ASARCO's copper business includes integrated mining,
smelting and refining operations in North America and Peru.
8. Defendant Francis R. McAllister ("McAllister") has been Chairman and
Chief Executive Officer of Defendant ASARCO since 1992. He is a director of
ASARCO and owes fiduciary duties to ASARCO and its shareholders.
9. Defendants Richard de J. Osborne, Vincent A. Calarco, John D. Ong,
Kevin R. Morano, Michael T. Nelligan, Manuel T. Pacheco, James Wood, James C.
Cotting, David C. Garfield, E. Gordon Gee and James Kinnear (the "Director Defen
dants") are current directors of ASARCO and all owe fiduciary duties to ASARCO
and its shareholders.
10. Defendant Cyprus Amax is a Delaware corporation with its principal
place of business in Englewood, Colorado. Cyprus Amax is a diversified mining
company engaged in the exploration for and extraction, processing and marketing
of mineral resources including, copper, molybdenum, coal and gold.
11. Phelps Dodge has commenced a parallel action alleging, inter alia,
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breaches of fiduciary duty against Cyprus Amax, its President, Chairman and
Chief Executive Officer, Milton H. Ward ("Ward") and its directors in the Court
of Chancery of the State of Delaware.
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FACTUAL BACKGROUND
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I. The Proposed Merger of ASARCO and Cyprus Amax
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12. On July 15, 1999, ASARCO and Cyprus Amax announced a so-called
"merger of equals" under which ASARCO shareholders are to receive one share of
stock in the merged company and Cyprus Amax shareholders are to receive 0.765
shares per share of Cyprus Amax stock they currently hold. The proposed new
company, ASARCO Cyprus Incorporated ("ASARCO Cyprus"), would have its corporate
headquarters in New York City and its operations headquarters in Tempe, Arizona.
ASARCO shareholders would receive no premium by way of the transaction.
13. ASARCO Cyprus would have a sixteen person board of directors with
eight members nominated by ASARCO and eight by Cyprus Amax. Ward, Cyprus Amax's
Chairman, President and Chief Executive Officer, and McAllister, ASARCO's
Chairman and Chief Executive Officer, would serve as Co-Chief Executive Officers
and directors of ASARCO Cyprus.
14. The market reaction to the proposed no-premium merger was hardly
inspired, pushing both companies' stock prices down. On July 14, 1999, the
common stock of Cyprus Amax and ASARCO was trading at highs of 14-1/2 and 19-
1/2, respectively. On July 19, 1999, the common stock of Cyprus Amax and
ASARCO was trading at highs of 14 and 19-1/6, respectively. Although the ASARCO
Cyprus Merger initially included projected cash
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synergies of $100 million per year, plus reduced depreciation of $50 million
annually due to the write-down of certain assets (this estimate was later
increased to $200 million), the market has not recognized any incremental value
in the current share prices of either company. The proposed merger has also been
criticized for its lack of a plan to integrate operations, and its lack of asset
rationalization.
15. The details of the Merger Agreement were not finally disclosed to the
public until August 20, 1999, over a month after the merger was announced and
only after ASARCO and Cyprus Amax publicized that they were rejecting a three-
way merger proposed by Phelps Dodge. By hiding the self-serving restrictive
provisions of their Merger Agreement from public view, the directors of ASARCO
and Cyprus Amax have attempted to shield their true objective of entrenching
their positions even at the expense of a better proposal for their shareholders.
II. The CEOs of ASARCO and Cyprus Amax Refuse to Talk with Phelps Dodge
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16. The three-way merger proposal offered by Phelps Dodge was made on
August 10, 1999, when Douglas Yearley, CEO of Phelps Dodge ("Yearley"),
telephoned Cyprus Amax's Ward and ASARCO's McAllister, who were meeting together
in New York.
17. This proposal was immediately -- and summarily -- rejected. At
approximately 6:45 that evening, a few hours after the proposal was made,
McAllister and Ward forwarded a short letter to Yearley which stated simply that
pursuant to the terms of the Merger
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Agreement, Ward and McAllister felt they "were not at liberty to have a
discussion of the nature you were suggesting today." A copy of the Merger
Agreement was not provided to Phelps Dodge, and thus it was unclear at that
stage why the CEOs of ASARCO and Cyprus Amax would not even entertain
discussions with Phelps Dodge.
18. On August 11, 1999, Yearley and Phelps Dodge President, J. Steven
Whisler, again requested a meeting with Cyprus Amax and ASARCO, in a letter to
Ward and McAllister laying out the basic terms of the proposed merger. The
letter explained "that a three-way combination . . . would create superior
shareholder value for the shareholders of ASARCO and Cyprus Amax." Under the
proposed merger, "all the outstanding common stock of both ASARCO and Cyprus
Amax [would] be exchanged for Phelps Dodge common stock" and "[t]he transaction
would be tax free" to ASARCO and Cyprus Amax shareholders.
19. Specifically, the August 11 letter stated that Phelps Dodge was
prepared to offer shareholders of ASARCO and Cyprus Amax an exchange ratio of
0.3756 Phelps Dodge common shares for each ASARCO common share, and 0.2874
Phelps Dodge common shares for each Cyprus Amax common share. These exchange
ratios represented a premium of approximately 25%, based on the then-market
prices for ASARCO and Cyprus Amax shares. Because the benefits to the
shareholders of ASARCO and Cyprus Amax of a three-way merger with Phelps Dodge
are significantly greater than the currently proposed ASARCO Cyprus Merger,
Phelps Dodge once again urged McAllister and Ward to consider the
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proposal. The CEOs of ASARCO and Cyprus Amax did not wait long, however, before
refusing to consider the proposed three-way merger.
20. On the morning of August 12, 1999, Yearley received a telephone call
from McAllister and Ward again refusing to discuss Phelps Dodge's proposal.
Once again, the CEOs of ASARCO and Cyprus Amax did not explain what prevented
them from even talking to Phelps Dodge.
21. Ward and McAllister's stubborn refusals to communicate with Phelps
Dodge demonstrated that there would be no serious consideration of a three-way
merger of Phelps Dodge, Cyprus Amax and ASARCO. Their conduct strongly suggests
their true motive is to entrench and perpetuate their current positions and
lucrative compensation packages through the creation of ASARCO Cyprus, while
abandoning their duties to act in the best interests of their companies and
shareholders by exploring a merger with Phelps Dodge. In short, the CEOs of
ASARCO and Cyprus Amax are depriving the stockholders of their companies of
the opportunity to consider a premium proposal from which the shareholders stand
to benefit significantly.
III. The Superiority of the Phelps Dodge Proposal
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22. An analysis of the three-way merger proposed by Phelps Dodge demon
strates compelling benefits to all three companies. These include:
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. a significant premium, of approximately 30% as of the
August 20, 1999 proposal date, and a quadrupling of divi
dends to shareholders;
. the increased ability of the combined company to
integrate southwest U.S. mining operations,
administrative functions in Chile and Peru and worldwide
exploration and development activities;
. the increased financial strength of the combined company
and its ability to create a world-class portfolio of
cost-competitive mining assets;
. a formidable management team, at both the operating and
corporate levels, with solid credibility in the
marketplace;
. the capacity to eliminate substantial overhead,
exploration, purchasing and other expenses through
consolidation;
. tremendous operating leverage, together with sufficient
diversity in other businesses to mitigate cyclical
downturns;
. the ability of the combined company to reduce capital
expenditures;
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. a strong liquid balance sheet, with excellent access to
capital; and
. the combination of all of these factors, creating greater
shareholder value on an ongoing basis for the
shareholders of all three companies.
23. In addition the three-way transaction proposed by Phelps Dodge would
bring significant benefits to shareholders of all three corporations.
Specifically, a three-way merger would lead to cost savings well in excess of
the amounts that could be achieved through the pending ASARCO Cyprus Merger.
Phelps Dodge estimates that the annual cash cost savings would be at least $200
million, with additional non-cash savings of approximately $65 million per year
from lower depreciation charges.
24. Over the past few years, Phelps Dodge stock has significantly outper
formed the stock of both ASARCO and Cyprus Amax. Furthermore, Phelps Dodge
stock has yielded a total return of 161% over the past ten years, compared to
total returns of negative 20% for ASARCO stock and negative 26% for Cyprus Amax
stock.
25. Moreover, the benefits of the Phelps Dodge proposal remain superior to
the terms of the ASARCO Cyprus Merger regardless of whether both or only one of
ASARCO or Cyprus Amax accept the proposal. For shareholders of ASARCO, a
significant premium is still
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better than the no-premium ASARCO Cyprus Amax alternative. The consummation of
the ASARCO Cyprus Merger, however, would prelude this possibility.
26. The metals and mining industry is undergoing a phase of rapid
consolidation. In view of this dynamic environment and the numerous compelling
benefits to ASARCO, Cyprus Amax and Phelps Dodge, a summary rejection of the
Phelps Dodge proposal is as incomprehensible as it is unjustifiable.
IV. The Board of Directors' Public Rejection of the Phelps Dodge
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Proposal
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27. In the face of the adamant refusal by the CEOs of both ASARCO and
Cyprus Amax to give any consideration to Phelps Dodge's proposal, Phelps Dodge
sent letters on August 12, 1999 to the boards of directors of both companies,
outlining the proposed three-way transaction and the ensuing benefits to all
three companies and their shareholders. In these letters, Phelps Dodge also
indicated that its proposal with respect to ASARCO was not contingent on Cyprus
Amax's acceptance of the proposal and vice versa.
28. On August 20, 1999, Cyprus Amax and ASARCO publicly rejected Phelps
Dodge's "unsolicited proposal." In a joint news release (the "August 20 News
Release"), Cyprus Amax and ASARCO stated that each of their respective boards
had met separately to consider the proposal, and determined that "pursuing the
ASARCO Cyprus Merger was in [the] best interests of ASARCO and Cyprus Amax
stockholders, respectively . . . ." Cyprus
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Amax and ASARCO's joint news release stated only that "Phelps Dodge's proposal
is subject to a number of contingencies."
29. The boards of Cyprus Amax and ASARCO refrained from stating the basis
for their decision to reject the Phelps Dodge proposal and did not identify the
"contingencies" they were referring in the August 20 News Release. Most
certainly, they made no effort to discuss and negotiate any such
"contingencies." Consequently, Defendants unjustifiably continue to deprive
ASARCO stockholders of the opportunity to decide for themselves which
transaction is in fact in their best interests.
30. That same day, following ASARCO and Cyprus Amax's public rejection of
the Phelps Dodge proposal, Phelps Dodge outlined a revised proposal even more
beneficial to the shareholders of ASARCO and Cyprus Amax. Each share of ASARCO
common stock would be converted into 0.4098 Phelps Dodge common shares,
representing a significant premium of approximately 30% to ASARCO
shareholders, based upon share prices of ASARCO and Phelps Dodge before trading
was halted that morning. Each share of Cyprus Amax common stock would be
converted into 0.3135 Phelps Dodge common shares, representing an approximate
29% premium for Cyprus Amax shareholders, based upon share prices of Cyprus Amax
and Phelps Dodge before trading was halted that morning.
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31. The market and financial community responded overwhelmingly favorably
to the Phelps Dodge proposal, and the shares of all three companies rose during
trading on August 20.
32. On August 24, 1999, The Wall Street Journal reported that Cyprus Amax
shareholders were eager to embrace a deal with Phelps Dodge. One money manager
with a big stake in Cyprus Amax commented: "[l]ong term, ASARCO Cyprus is a good
combination, but a combination of Phelps, ASARCO and Cyprus is a great
combination."
33. Even Cyprus Amax commented to Bloomberg News that it was prepared to
convene a board meeting to study the increased offer. Gerald Malys, Chief
Financial Officer of Cyprus Amax, informed Bloomberg that Cyprus Amax and ASARCO
had rejected the initial offer because it did not offer enough of a premium. He
added that Cyprus Amax and ASARCO need to begin conversations about the Phelps
Dodge proposal, stating: "I don't think there is any choice in this game but to
listen to what goes on. We need to look at it, they (ASARCO) need to look at
it, we need to talk to each other." Yet the Merger Agreement and the continued
resistance of McAllister, Ward and the boards of directors of ASARCO and Cyprus
Amax remain roadblocks to any such discussions -- and thus the proper discharge
of the boards' fiduciary duties.
V. The Unreasonable Terms of the ASARCO Cyprus Merger Agreement
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34. Until August 20, 1999, the provisions of the Merger Agreement
between ASARCO and Cyprus Amax were hidden from their respective shareholders
and the public. On that day, ASARCO and Cyprus Amax filed an S-4 Registration
Statement, attaching the Merger Agreement. The Merger Agreement contains a
number of noteworthy "no-see, no-hear, no-talk" provisions that reflect patent
violations of the fiduciary duties owed by the boards of ASARCO and Cyprus Amax.
These provisions are transparent efforts to protect a non-premium deal and to
entrench management at the expense of shareholders.
35. Sections 5.10(a)(i) and 5.11(a)(i) of the Merger Agreement restrain
both parties, their directors, officers, employees and representatives from
directly or indirectly soliciting, initiating or encouraging (whether by
furnishing information or otherwise), or taking any other action designed to
facilitate any inquiries or the making of any proposal which constitutes or
reasonably could be expected to lead to any "Takeover Proposal." A Takeover
Proposal is defined as an inquiry, proposal or offer, or any improvement,
restatement, amendment, renewal or reiteration of any such inquiry, proposal or
offer, from any person relating to any direct or indirect acquisition of a
business or equity securities of a party or any of its subsidiaries.
36. More egregiously, Sections 5.10(a)(ii) and 5.11(a)(ii) restrain both
parties, their directors, officers, employees, and representatives from
"participat[ing] in any discussions or negotiations regarding any [alternative]
Takeover Proposal." Thus, the Merger
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Agreement purports to restrain the ASARCO board from discussing an unsolicited
bid that is demonstrably superior to the ASARCO Cyprus Merger.
37. Sections 5.10(b) and 5.11(b) further prohibit the boards of directors
of either company from withdrawing or modifying their approval or recommendation
of the ASARCO Cyprus Merger or the Merger Agreement. The boards may withdraw
their recommendation to approve the merger only if they determine in good
faith, based on the advice of outside counsel, that a failure to do so would
constitute a breach of fiduciary duties owed by the respective boards to their
shareholders.
38. The sole power that the boards of ASARCO and Cyprus Amax have if they
determine that the ASARCO Cyprus Merger is not in fact in the best interests of
their shareholders is to recommend that the shareholders vote against approving
the merger. The boards of directors of ASARCO and Cyprus Amax do not have the
power to terminate the Merger Agreement, nor may they stop the vote from
occurring.
39. Section 7.1(e) of the Merger Agreement permits ASARCO to terminate the
Merger Agreement if Cyprus Amax breaches Section 5.10 of the Merger Agreement,
and Section 7.1(f) entitles Cyprus Amax to terminate the Merger Agreement if
ASARCO is in breach of Section 5.11. Under Sections 7.3(a)(ii) and (b)(ii), if
one party is entitled to terminate the Merger Agreement due to the other party's
breach of its obligation not to consider or negotiate other proposals, the party
who may terminate the Merger Agreement is entitled to
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$45 million (the "Termination Fee"). This is a grossly excessive termination fee
and, in the case of ASARCO, would amount to 6% of its equity value.
40. Under Sections 7.3(a)(i) and (b)(i) of the Merger Agreement, Cyprus
Amax or ASARCO could be subjected to this severe Termination Fee simply because,
in light of another Takeover Proposal, its shareholders voted against the
merger. The only way in which the Termination Fee would not apply is if the
other party's shareholders also voted against the transaction, or if a
transaction pursuant to another Takeover Proposal was not consummated within 18
months.
41. As a consequence of these provisions, the boards of ASARCO and Cyprus
Amax are not allowed to consider superior offers or proposals and are thereby
restrained from acting in the best interests of their shareholders. In
addition, the substantial Termination Fee acts as a great disincentive for
ASARCO and Cyprus Amax to negotiate with anyone but each other -- and for
shareholders to vote down the ASARCO Cyprus Amax Merger Agreement. Although the
Merger Agreement contains a provision which would allow the boards of directors
to withdraw their recommendations in order to fulfill their fiduciary duties, it
is impossible to see how this would occur if the directors have been effectively
precluded from obtaining information about and considering in an informed way
any other offers or proposals.
42. In other words, the boards of ASARCO and Cyprus Amax have tied their
hands by agreeing not to solicit, encourage, or facilitate inquiries by
furnishing information, and
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not to participate in discussion with respect to any other proposals. It would
be difficult, if not impossible, for them to make any meaningful analysis of
another pro posal, such as Phelps Dodge's, let alone to make any recommendation
to the shareholders of ASARCO other than to vote in favor of the ASARCO Cyprus
Merger. The restrictions contained in the Merger Agreement render it impossible
for the boards of ASARCO and Cyprus Amax to make an informed decision as to
whether the ASARCO Cyprus Merger is, or is not, in the best interests of their
shareholders. McAllister and the Director Defendants of ASARCO should not be
allowed to hide behind unreasonable provisions in the Merger Agreement as
justification for their refusal to allow their shareholders to consider a far
superior proposal.
43. Moreover, there is a great financial incentive for the boards to push
ahead with their merger even at the expense of foregoing a better offer for
their shareholders. The ASARCO Cyprus Form S-4 Registration Statement discloses
that "[e]ach of the employee-directors of ASARCO and Cyprus Amax may be entitled
to receive compensation if the business combination is completed." Even if
certain directors or senior officers are no longer employed by the merged
company, the Merger Agreement ensures that they are entitled to large severance
payments. In other words, directors and certain senior officers of ASARCO and
Cyprus Amax are rewarded whether they continue to be employed by ASARCO Cyprus
or not. The key, however, is that the Merger Agreement be protected. If the
Merger
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Agreement were to be terminated, the Director Defendants would be entitled
neither to continued employment by ASARCO Cyprus, nor to the large severance
payments.
44. Finally, Section 3.2 of the Merger Agreement further demonstrates the
degree to which the directors of ASARCO and Cyprus Amax have sought to entrench
their positions. It states that any change to the "key executive officers" of
ASARCO Cyprus prior to the stockholder meeting in the year 2002 requires the
affirmative vote of at least three-quarters of the directors constituting the
entire board of directors of ASARCO Cyprus. What this means is that any change
in management effectively requires a unanimous vote of the twelve non-management
directors.
VI. ASARCO and Cyprus Amax Seek To Manipulate the Merger Vote
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45. The August 20 News Release stated that proxy materials relating to
the ASARCO Cyprus Merger would be mailed to shareholders of record on August 25,
1999, and that shareholder meetings have been set for September 30, 1999. This
timetable in fact contravenes New York Stock Exchange Rules and was designed to
further the interests of the directors over the shareholders.
46. Section 4 of the New York Stock Exchange Rules regulates shareholder
meetings and proxies. Section 401.02 explicitly provides that "[a] minimum of
ten days' notice is required prior to the record date . . . established . . .
for determination of shareholders entitled to vote at the meeting." ASARCO and
Cyprus Amax gave only seven
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days' notice to the NYSE of the August 25, 1999 record date, and did not make
the record date public until August 20, 1999.
47. Although the NYSE has opted not to take action against the companies
for their failure to observe this rule, expediting the record date nonetheless
demonstrates the haste with which ASARCO and Cyprus Amax are proceeding in order
to have their merger approved by shareholders of both companies.
48. This abbreviated schedule is no accident. Ward, McAllister and the
boards of their companies seek to prevent more recent shareholders, who would be
aware of and therefore more likely to be in favor of the Phelps Dodge proposal,
from being able to vote on the ASARCO Cyprus Merger. Defendants seek to preempt
the normal flow of trading and movement in the market of each company's shares
in order to ensure that the shareholders of record entitled to vote upon the
ASARCO Cyprus Merger are those who would be more likely to vote in favor of it.
49. In addition, Phelps Dodge has sought shareholder lists and related
materials from Cyprus Amax and ASARCO. As of the date of the filing of this com
plaint, Cyprus Amax has not responded to a letter requesting the materials dated
August 23, 1999. ASARCO outright opposed an application Phelps Dodge made to a
New Jersey court seeking the information. On August 26, 1999, the court ruled
that documents and records must be turned over to Phelps Dodge within
forty-eight hours of the filing of its preliminary proxy materials. In light of
the schedule ASARCO and Cyprus Amax have set for their
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shareholder meetings, the delay and refusal to turn over shareholder lists is
further evidence of entrenchment.
VII ASARCO and Cyprus Amax Issue an Ultimatum to Phelps Dodge
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50. Instead of agreeing to engage in real discussions with Phelps Dodge,
late in the afternoon of August 25, 1999, ASARCO and Cyprus Amax issued a joint
ultimatum to Phelps Dodge in the form of a news release (the "August 25 News
Release") and a letter from McAllister and Ward to Yearley. Although the August
25 News Release characterized the letter as a "willingness to negotiate," the
terms demanded by the CEOs of ASARCO and Cyprus Amax are so unreasonable that
their negotiating posture is illusory and their entrenchment motive all the more
apparent.
51. The conditions, which no company would accept under similar circum
stances, include a requirement that the exchange ratio be increased to 0.4055
shares of Phelps Dodge common stock for each Cyprus Amax share, and 0.5300
Phelps Dodge shares for each ASARCO common share. This demand amounts to a
premium of 70% to 80% of the companies' stock prices after the announcement of
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their no-premium merger but before the first public disclosure of Phelps Dodge's
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initial proposal. ASARCO and Cyprus Amax may be feeling pressure from their
shareholders to negotiate with Phelps Dodge, but making unreasonable and
unacceptable demands is nothing more than a ploy to deflect shareholder
attention while pursuing the ASARCO Cyprus Merger.
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52. These outrageous demands amount to an unreasonable ultimatum to Phelps
Dodge and make other supposed examples of their willingness to negotiate all the
more illusory. The August 25 News Release reports that during the first ninety
days after completion of the ASARCO Cyprus Merger, Ward and McAllister will
offer their shareholders the right to call a meeting to consider a "bona fide"
proposal. During this time period, ASARCO and Cyprus Amax will allow for a
redemption of their shareholder rights plan and a waiver of any change of
control provisions in employment contracts. In light of ASARCO's and Cyprus
Amax's conduct to date - and the delay and burden associated with such a special
meeting - such "promises" ring hollow. And the companies' statements regarding
employments are so cryptic - and even contradictory - as to be indecipherable.
53. Indeed, the August 25 News Release also announced an equally illusory
attempt at resuscitating shareholder interest in the ASARCO Cyprus Merger
itself. ASARCO and Cyprus Amax now say that they will improve the terms of their
deal by including a "special payment" of $5.00 per share to the shareholders of
the merged entity, to be paid as soon as possible after the consummation of the
merger. This "special payment" does not alter the fundamental economics of the
ASARCO Cyprus Merger, nor does it offer the stockholders of ASARCO and Cyprus
Amax greater value than Phelps Dodge's premium proposal.
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54. Nothing in the August 25 News Release or the letter detracts from one
fundamental fact: ASARCO and Cyprus Amax have not changed the unreasonable
terms of their Merger Agreement preventing serious consideration of the Phelps
Dodge proposal. If there were any doubt, ASARCO and Cyprus Amax "emphasized" in
the August 25 News Release that they were sticking to their schedule of
shareholder meet ings for September 30, 1999 to vote on their merger. In their
letter to Yearley, Ward and McAllister made clear that "apart from this
communication, neither party has waived any of its legal or other rights, or
rights or obligations under our merger agreement." In other words, the "no-see,
no-hear, no-talk" and other illegal provisions of the Merger Agreement remain
intact.
55. The August 25 letter shows that Ward and McAllister have put their
interests before the interests of the ASARCO and Cyprus Amax shareholders. The
letter states: "[w]e strongly believe that the combination of Cyprus Amax and
ASARCO, without the effect of combining further with Phelps Dodge, provides
greater value to Cyprus Amax and ASARCO holders than your August 20 proposal."
In other words, Ward and McAllister believe that no premium is better than the
significant premium offered by Phelps Dodge. Although that may be true for Ward
and McAllister, it cannot be true for the shareholders of their companies.
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56. On August 25, 1999 Phelps Dodge issued a news release confirming that
it had received ASARCO and Cyprus Amax's letter, but that the letter was not
accompanied by any offer to negotiate, talk or exchange information.
57. On August 27, 1999, Phelps Dodge filed a Form S-4 Registration State
ment with respect to its proposal, and announced its intention to offer to
exchange shares of Phelps Dodge common stock for ASARCO and Cyprus Amax shares
(the "Exchange Offer"). However, the Exchange Offer cannot be consummated
unless, among other things, the Director Defendants amend the onerous terms of
the shareholder rights agreement (the "Rights Agreement" or the "Poison Pill")
or redeem the rights provided therein.
VII. ASARCO'S Failure to Redeem or Amend its Shareholder Rights Agreement
--------------------------------------------------------------------
58. In July 1989, ASARCO adopted a shareholder rights agreement (the
"Rights Plan" or "Poison Pill"), which was amended on September 24, 1992. Under
the Rights Plan, ASARCO's board has authorized and delivered a dividend of one
preferred share purchase right (a "Right") for each share of common stock of the
company outstanding on August 7, 1989. Each Right represents the right to
purchase a unit consisting of 1/100 of a share (a "Unit") of Junior Preferred
Stock at a price of $90 per Unit.
59. Distribution of the Rights is triggered by the earliest of the
following events: (i) the tenth day after the first public announcement by
ASARCO or an Acquiring Person (defined as any person who is the beneficial
owner of 15% or more of the common stock
24
<PAGE>
then outstanding) that an Acquiring Person has become such; or (ii) the close
business on the tenth business day (or such later date as the Board shall
determine) after the date that a tender or exchange offer by any Person, other
than an associated person, is commenced within the meaning of Rule 14d-2(a) of
the General Rules and Regulations under the Exchange Act, if upon consummation
thereof, such person would be the beneficial owner of 15% or more of the shares
of common stock then outstanding.
60. The Rights Plan contains a "flip-in" prevision. Under this provision,
if any person becomes an Acquiring Person other than pursuant to an offer for
all outstanding shares of common stock which the independent directors
determine to be fair to and otherwise in the best interests of the company and
its stockholders, or as a result of the repurchase of common stock by the
company, each holder of a Right will be able to purchase shares under
preferential terms. Specifically, he or she will have the right to receive
common stock having a value equal to two times the exercise price of the Right.
This flip-in provision dilutes the Acquiring Person's holdings and increases the
number of shares that the Acquiring Person would have to purchase in order to
consummate a merger.
61. The Rights Plan also contains a "flip-over" provision, which arises
if, following the time a person becomes an Acquiring Person, ASARCO is acquired
in a merger or other business transaction in which it is not the surviving
company or 50% or more of ASARCO's assets or earning power is sold or
transferred to any other person. The "flip-over" provision entitles each Right
holder to receive, upon exercise, common
25
<PAGE>
stock of the acquiring company having a value equal to two times the exercise
price of the Right.
62. In January 1998 the board of ASARCO approved the extension of the 1989
Rights Plan by adopting the 1998 Rights Plan, which is substantially similar to
the 1989 Rights Plan. Each of the new Rights entitle the registered holder to
purchase from the Company a share of its Junior Preferred Stock, at a price of
$90.00 per 1/110th of a share. The new rights are redeemable under certain
circumstances at $0.01 per Right and will expire, unless redeemed earlier, on
January 31, 2008.
63. Due to the prohibitive costs this Poison Pill imposes on an Acquiring
Person, no tender offer or exchange offer that would trigger the Rights can
practically be consummated unless ASARCO's board redeems the Rights or amends
the Poison Pill. ASARCO's board can redeem the Rights at a redemption price of
$0.01 per Right. In addition, ASARCO's board can amend the Rights Plan, as it
did on July 15, 1999 to accommodate the ASARCO Cyprus Merger. Accordingly,
simply by refusing to redeem the Rights or to amend the Rights Plan, ASARCO's
board can block offers regardless of the interests of ASARCO's shareholders.
The triggering of the Poison Pill would be particularly unjustified given the
premium price and fair structure proposed by Phelps Dodge.
64. Although confronted by the premium offered by the Phelps Dodge
proposal, ASARCO's board has not redeemed the Rights. Thus, it is clear that
the Poison
26
<PAGE>
Pill serves only one purpose: entrenchment of the Director Defendants for their
own personal gain and at the expense of their duty to act in the best interests
of ASARCO's shareholders. A failure by ASARCO and the Director Defendants to
redeem the Rights or to amend the Rights Plan would be a breach of the Director
Defendants' fiduciary duties, because such failure will effectively hinder the
shareholders of ASARCO from exercising their fundamental rights to determine the
future of the company they own and will preclude them from the benefit of a
superior transaction.
DECLARATORY RELIEF
------------------
65. ASARCO and Cyprus Amax's immediate public rejection of Phelps Dodge's
attempts to negotiate a business combination and their failure to take necessary
steps to place the matter before the shareholders of both companies indicate
that there is a substantial controversy between the parties. The adverse legal
interests of the parties are real and immediate.
66. The granting of the requested declaratory relief will serve the public
interest by affording relief from uncertainty and by avoiding delay as well as
conserving judicial resources by avoiding piecemeal litigation.
IRREPARABLE INJURY
------------------
27
<PAGE>
67. Defendants' unwillingness to consider Phelps Dodge's proposed three-
way transaction will prevent Phelps Dodge's proposal from being placed before
the shareholders of both companies for their consideration. Should this
occur, the shareholders of ASARCO and Cyprus Amax, including Phelps Dodge, will
be deprived of the unique opportunity to decide which merger proposal is more
beneficial to them.
68. The terms of the Merger Agreement, by prohibiting the boards of ASARCO
and Cyprus Amax from considering and negotiating alternative proposals,
effectively prevent the boards from complying with their fiduciary duties to act
in the best interests of their companies.
69. In addition Phelps Dodge, as a potential party to a three-way
transaction, will be deprived of the unique opportunity to enter into a business
combination that would provide it with substantial benefits, including increased
efficiency and international competitiveness.
70. The resulting injury to Phelps Dodge will not be compensable in money
damages and Plaintiffs, as well as other ASARCO and Cyprus Amax shareholders,
have no adequate remedy at law.
COUNT ONE
---------
Breach of Duty of Care by Defendants
------------------------------------
71. Plaintiffs repeat and reallege each and every allegation set forth in
paragraphs 1 through 70 as if fully set forth herein.
28
<PAGE>
72. The Director Defendants owe a duty of care to plaintiffs. This duty
requires that they make good faith efforts to be informed and to exercise
appropriate judgment. Failure of a board of directors to inform itself fully of
all reasonably available material information, including alternatives, before
arriving at a decision constitutes a breach of this duty.
73. The Director Defendants, in agreeing to and continuing to abide by
terms in the Merger Agreement that prevent them from fulfilling their fiduciary
duties, have breached their duty of care. By prohibiting themselves from
obtaining information or considering other potentially superior offers
Defendants have precluded the possibility of making an informed recommendation
to shareholders of ASARCO and Cyprus Amax. Even though they claim that they are
willing to negotiate with Phelps Dodge, the unreasonable conditions in their
August 25 letter render any such willingness completely illusory. In addition,
ASARCO and Cyprus Amax have reaffirmed the onerous provisions of their Merger
Agreement.
74. Plaintiffs seek: (i) a declaration that McAllister and the Director
Defendants breached their duty to exercise due care in failing to make
reasonable efforts to obtain information about the Phelps Dodge proposal; (ii) a
declaration that McAllister and the Director Defendants breached their duty of
care in determining that the ASARCO Cyprus Merger was in the best interests of
their shareholders, without a reconfirmation of the fairness opinion of their
financial advisors; (iii) an injunction compelling McAllister and the
29
<PAGE>
Director Defendants to inform themselves adequately and to consider the Phelps
Dodge proposal; (iv) an injunction compelling McAllister and the Director
Defendants to submit the Phelps Dodge Proposal to the shareholders of ASARCO and
(v) an injunction preventing Defendants from taking any further steps to proceed
with the proposed ASARCO Cyprus Merger.
COUNT TWO
---------
Breach of Fiduciary Duties by McAllister and the Director Defendants
--------------------------------------------------------------------
75. Plaintiffs repeat and reallege each and every allegation set forth in
paragraphs 1 through 74 as if fully set forth herein.
76. McAllister and the Director Defendants stand in a fiduciary
relationship with ASARCO shareholders, including Phelps Dodge. As fiduciaries,
they owe the highest duties of care, loyalty and good faith.
77. The proposal for a three-way merger is non-coercive,
nondiscriminatory, and poses no threat to ASARCO's corporate policies and
effectiveness. Phelps Dodge's proposal represents a substantial premium over
the current market price of ASARCO's stock and the value of the Cyprus Amax non-
premium alternative.
78. The failure of McAllister and the Director Defendants to determine
that the proposed three-way merger is in the best interests of ASARCO and its
shareholders - or even to consider the question seriously - constitutes a
violation of the fiduciary duties owed by them.
30
<PAGE>
79. The failure of McAllister and the Director Defendants even to assess
whether the proposed three-way merger is in the best interests of ASARCO and its
shareholders is a violation of the fiduciary duties owed by them.
80. Plaintiffs seek: (i) a declaration that the failure of McAllister and
the Director Defendants to consider the Phelps Dodge proposal and to determine
that the proposed three-way merger is in the best interests of ASARCO's
shareholders is a breach of fiduciary duty; (ii) an injunction compelling
McAllister and the Director Defendants to consider the Phelps Dodge proposal;
(iii) an injunction compelling McAllister and the Director Defendants to submit
the Phelps Dodge proposal to the shareholders of ASARCO; and (iv) an injunction
preventing Defendants from taking any further steps to proceed with the proposed
ASARCO Cyprus Merger.
81. Plaintiffs have no adequate remedy at law.
COUNT THREE
-----------
The $45 Million Termination Fee is Unenforceable
------------------------------------------------
82. Plaintiffs repeat and reallege each and every allegation set forth in
paragraphs 1 through 81 as if fully set forth herein.
83. McAllister and the Director Defendants stand in a fiduciary
relationship with ASARCO shareholders, including Phelps Dodge. As fiduciaries,
they owe the highest duties of care, loyalty and good faith.
31
<PAGE>
84. Director Defendants breached their fiduciary duties in agreeing to a
Termination Fee in the grossly excessive sum of $45 million, and in agreeing
that such Termination Fee would apply even if the shareholders of ASARCO voted
against the ASARCO Cyprus Merger.
85. Plaintiffs seek a declaration that agreeing to a Termination Fee of
$45 million is a breach of fiduciary duty.
86. Plaintiffs have no adequate remedy at law.
COUNT FOUR
----------
The Coercive Vote Should be Enjoined
------------------------------------
87. Plaintiffs repeat and reallege each and every allegation set forth in
paragraphs 1 through 86 as if fully set forth herein.
88. The scheduled September 30, 1999 vote by the ASARCO stockholders on
the ASARCO Cyprus Merger will be improperly and illegally coercive.
Stockholders will be wrongfully coerced into voting in favor of the merger
because, as Defendants have structured the Merger Agreement, ASARCO will have to
pay to Cyprus Amax a grossly excessive Termination Fee if the ASARCO
stockholders fail to approve the merger. The vote of the ASARCO stockholders
will also be wrongfully coerced because they know that the ASARCO Cyprus Amax
transaction is the only business combination the Director Defendants will
approve and thus, due to the Director Defendants' breaches of fiduciary duties,
is the only transaction whereby ASARCO can be consolidated with another entity.
32
<PAGE>
89. Plaintiffs seek an injunction enjoining the September 30, 1999 vote,
or, alternatively, enjoining Defendants from taking any actions to consummate
the ASARCO Cyprus Merger.
90. Plaintiffs have no adequate remedy at law.
COUNT FIVE
----------
Phelps Dodges' Proposal Must be Submitted to Shareholders of ASARCO
-------------------------------------------------------------------
91. Plaintiffs repeat and reallege each and every allegation set forth in
paragraphs 1 through 90 as if fully set forth herein.
92. The proposal for a three-way merger is non-coercive,
nondiscriminatory, and poses no threat to ASARCO's corporate policies and
effectiveness, and represents a substantial premium over the current market
price of ASARCO's stock.
93. McAllister and the Director Defendants may not improperly prevent the
shareholders of ASARCO from considering the Phelps Dodge proposal. Nor may they
improperly manipulate the voting process, as they already have attempted to do.
Any meeting of ASARCO's shareholders to vote upon the ASARCO Cyprus Merger must
include a consideration of the Phelps Dodge proposal, which is superior and more
beneficial to ASARCO's shareholders than the ASARCO-Cyprus Amax Merger
Agreement. The failure of McAllister and the Director Defendants to put the
Phelps Dodge proposal before the shareholders of ASARCO is a breach of their
fiduciary duties.
33
<PAGE>
94. Plaintiffs seek: (i) a declaration that the failure of McAllister and
the Director Defendants to submit the Phelps Dodge proposal for consideration by
ASARCO's shareholders is a breach of fiduciary duty; (ii) an injunction
compelling McAllister and the Director Defendants to submit the Phelps Dodge
proposal to ASARCO's shareholders at any meeting of ASARCO's shareholders to
consider the ASARCO Cyprus Merger; and (iii) an injunction preventing McAllister
and the Director Defendants from taking any further steps to proceed with the
proposed ASARCO Cyprus Merger until ASARCO's shareholders have been given the
opportunity to consider the three-way transaction proposed by Phelps Dodge.
95. Plaintiffs have no adequate remedy at law.
COUNT SIX
---------
Failure to Amend or Redeem the Poison Pill
------------------------------------------
96. Phelps Dodge repeats and realleges each and every allegation set forth
in paragraphs 1 through 95 as if fully set forth herein.
97. The proposal for a three-way merger is non-coercive,
nondiscriminatory, and represents a substantial premium of the market price of
ASARCO and Cyprus Amax stock. The Phelps Dodge proposal poses no threat to
ASARCO's corporate policies and effectiveness, and represents a substantial
premium over the current market price of ASARCO's stock.
34
<PAGE>
98. The failure of McAllister and the Director Defendants to redeem the
Rights or to amend the Rights Agreement, or to otherwise make it inapplicable to
the Phelps Dodge proposal, is a severe and inappropriate response to the
proposed three-way merger. In addition, McAllister and the Director Defendants'
failure to redeem the Rights or to amend the Rights Agreement is a breach of the
fiduciary duties owed by them to ASARCO's shareholders.
99. The application of the Rights Agreement, or the adoption of any other
defensive measures, to impede or preclude the consideration and/or consummation
of the three-way merger proposed by Phelps Dodge is a violation of the fiduciary
duties owed by McAllister and the Director Defendants. The Phelps Dodge
Exchange Offer is incapable of completion unless the Poison Pill is redeemed or
amended.
100. Plaintiffs seek: (i) a declaration that the failure of McAllister and
the Director Defendants to redeem the Rights or to amend the Rights Agreement to
make it inapplicable to the Phelps Dodge proposal is a breach of fiduciary duty;
(ii) an injunction compelling McAllister and the Director Defendants to redeem
the Rights or to otherwise amend the Rights Agreement to make it inapplicable
to the Phelps Dodge proposal; and (iii) an injunction enjoining McAllister and
the Director Defendants from applying the Rights Agreement or adopting any other
defensive measures aimed at impeding the three-way merger proposed by Phelps
Dodge.
101. Plaintiffs have no adequate remedy at law.
35
<PAGE>
COUNT SEVEN
-----------
Cyprus Amax's Aiding and Abetting of Defendants' Breaches
---------------------------------------------------------
102. Phelps Dodge repeats and realleges each and every allegation set forth
in paragraphs 1 through 101 as if fully set forth herein.
103. Defendants have breached their fiduciary duties to ASARCO and to its
shareholders.
104. Cyprus Amax has aided and abetted Defendants in the breach of their
fiduciary duties. As a direct participant in the purported "merger of equals,"
Cyprus Amax knew of, and in fact actively encouraged and participated in, the
breach of fiduciary duties set forth herein. ASARCO and Cyprus Amax have
entered into a Merger Agreement which prohibits the consideration of other, even
superior, alternatives and provides Cyprus Amax with an unjustifiably large
Termination Fee. Cyprus Amax induced Defendants to breach their fiduciary
duties in order to obtain the substantial financial benefits that the ASARCO
Cyprus Merger would provide, at the expense of ASARCO's stockholders.
105. Plaintiffs seek an injunction preventing Cyprus Amax, its employees,
agents and all persons acting on its behalf, from aiding and abetting McAllister
and
36
<PAGE>
the Director Defendants' breach of fiduciary duties to ASARCO and its
shareholders, with respect to the ASARCO Cyprus Merger and the Phelps Dodge
proposal.
106. Plaintiffs have no adequate remedy at law.
WHEREFORE, Phelps Dodge respectfully requests that the Court enter an
order:
. declaring that (i) the failure to make good faith efforts
to obtain information about reasonable alternatives such as
the Phelps Dodge proposal in order to make an informed
decision about the ASARCO Cyprus Merger; and (ii) the
failure to obtain a reconfirmation of the fairness opinion
of their financial advisors is a breach of the Director
Defendants' duty of care which they owe to ASARCO and its
shareholders;
. declaring that the failure to (i) adequately consider
Phelps Dodge's offer; (ii) determine that the Phelps Dodge
proposal is in the best interest of ASARCO's shareholders;
(iii) submit Phelps Dodge's proposed three-way merger to the
shareholders of ASARCO; and (iv) render inapplicable the
Poison Pill by redeeming the Rights or amending the Rights
Agreement, constitute a
37
<PAGE>
breach of McAllister and the Director Defendants' fiduciary
duties;
. compelling McAllister and the Director Defendants to render
inapplicable to the Phelps Dodge proposal the Poison Pill by
redeeming the Rights or amending the Rights Agreement;
. compelling Defendants to consider the Phelps Dodge proposal
and to take all steps necessary to provide Plaintiffs with a
fair and equal opportunity to enter into a transaction with
ASARCO and Cyprus Amax, including submitting the proposal
to ASARCO's shareholders;
. preliminarily and permanently enjoining Defendants from
taking any further steps to proceed with the proposed
ASARCO Cyprus Merger until the shareholders of ASARCO have
been given the opportunity to consider the three-way
transaction proposed by Phelps Dodge;
. preliminarily and permanently enjoining the adoption or
exercise of any measures by ASARCO or McAllister and the
Director Defendants which have the effect of
38
<PAGE>
impeding, frustrating or interfering with the Phelps Dodge
proposal, including without limitation payment of the
Termination Fee;
. preliminarily and permanently enjoining ASARCO, its
employees, agents and all persons acting on its behalf, from
aiding and abetting McAllister and the Director Defendants'
breach of their fiduciary duties to ASARCO's stockholders;
. granting damages for all incidental injuries suffered as a
result of Defendants' unlawful conduct;
. awarding Phelps Dodge its costs and expenses in this
action, including reasonable attorneys' fees; and
. granting such other and further relief as the Court deems
just and proper.
Dated: August 27, 1999
___________________________
Douglas S. Eakeley
LOWENSTEIN SANDLER PC
65 Livingston Avenue
Roseland, New Jersey 07068
Tel: (973) 597-2500
Fax: (973) 597-2400
Attorneys for Plaintiffs
39
<PAGE>
Of Counsel:
Stuart J. Baskin
Alan S. Goudiss
SHEARMAN & STERLING
599 Lexington Avenue
New York, New York 10022
Tel: (212) 848-4000
Fax: (212) 848-7179
John Hall
DEBEVOISE & PLIMPTON
875 Third Avenue
New York, New York 10022
Tel: (212) 909-6000
Fax: (212) 909-6836
40
<PAGE>
EXHIBIT 99.6
LITE DePALMA GREENBERG & RIVAS, LLC
Bruce D. Greenberg, Esq.
Allya Z. Lite, Esq.
Two Gateway Center, 12th Floor
Newark, New Jersey 07102-5003
(973) 623-3000
WOLF POPPER LLP
Marian P. Rosner, Esq.
Paul O. Paradis, Esq.
845 Third Avenue
New York, New York 10022
(212) 759-4600
Attorneys for Plaintiff
- ------------------------------------- x
MAURICE A. STERNS, : SUPERIOR COURT OF NEW JERSEY
: CHANCERY DIVISION:
Plaintiff, : MERCER COUNTY
:
-against- : Docket No.
:
FRANCIS R. MCALLISTER, KEVIN R. : Civil Action
MORANO, RICHARD DE J. OSBORNE, :
DOUGLAS E. MCALLISTER, MICHAEL T. :
NELLIGAN, MANUEL T. PACHECO, JAMES : CLASS ACTION COMPLAINT
WOOD, VINCENT A. CALARCO, JOHN D. :
ONG, JAMES C. COTTING, DAVID C. GAR :
FIELD, E. GORDON GEE, JAMES W. :
KINNEAR, and ASARCO INCORPORATED, :
:
Defendants. :
:
- ------------------------------------- x
<PAGE>
Plaintiff, Maurice A. Sterns, by his attorneys, alleges for his Complaint,
upon informa tion and belief, except for paragraph 2 hereof, which is alleged
upon personal knowledge, as follows:
SUMMARY OF ACTION
-----------------
1. Plaintiff brings this action on behalf of himself and all other public
shareholders of defendant Asarco Incorporated ("Asarco" or the "Company")
against Asarco and the directors of Asarco, for breaching their fiduciary duties
to Asarco's shareholders. These defendants are causing the Company to summarily
reject an offer to Asarco shareholders (the "Offer") by Phelps Dodge Corporation
("Phelps Dodge") to purchase both Asarco and its previously announced planned
merger partner Cyprus Amax Minerals Co. ("Cyprus Amax") in a three way merger
for approximately $2.66 billion in Phelps Dodge common stock, despite the fact
that the Offer presents a substantial, approximately 30% premium over the
trading price of Asarco's (as well as Cyprus Amax's) public shares as of August
19, 1999, the date the Boards of Asarco and Cyprus Amax both rejected Phelps
Dodge's initial offer; and the Offer represents a potential economic
opportunity to Asarco's shareholders to realize the full value of their
investment in Asarco. Defendants' summary rejection of the Offer has no
reasonable corporate purpose whatsoever and forecloses an opportunity for
shareholders to realize the full value of their Asarco shares that would
otherwise not be available to them. Plaintiff seeks, inter alia, an order
----- ----
enjoining defendants from summarily rejecting the Offer without giving it fair
consideration, becoming fully informed as to the fairness of the Offer, and
taking all steps
2
<PAGE>
necessary to maximize shareholder value. Plaintiff further seeks an Order
compelling defendants to fully and fairly inform Asarco shareholders concerning
the Offer.
THE PARTIES
-----------
2. Plaintiff resides at 3601 Underwood Drive, Chevy Chase, Maryland.
Plaintiff owns shares of common stock of defendant Asarco and has been the owner
continuously of such shares since prior to the wrongs complained of herein.
3. Defendant Asarco is a corporation organized and existing under the
laws of the State of New Jersey, with its principal place of business located at
180 Maiden Lane, New York, New York 10038. Asarco produces nonferrous metals,
principally copper, as well as lead, zinc and silver. The Company also produces
specialty chemicals and aggregates. Asarco's copper business includes integrated
mining, smelting, and refining operations in North America and Peru. Asarco's
competitors in the copper business include Cyprus Amax, and Phoenix, Arizona-
based Phelps Dodge, the nation's largest copper producer.
4. Cyprus Amax, a Delaware corporation, with principal executive offices
located in Englewood, Colorado, is a producer of copper, coal and molybdenum,
and explores for minerals worldwide. Cyprus Amax also holders a 31% interest in
Kinross Gold Corporation, a Canadian company that acquires, develops and
operates precious and base metal properties, emphasizing gold and copper mining.
5. Defendant Francis R. McAllister ("F. McAllister") is the Chairman of
the Board of Directors, Chief Executive Officer, and a director of Asarco.
3
<PAGE>
6. Defendant Kevin R. Morano ("Morano") is President, Chief Operating
Officer, and a director of Asarco.
7. Defendant Richard de J. Osborne ("Osborne") retired recently - on
April 28, 1999 - as Chairman and Chief Executive Officer of Asarco, and is
currently a director of the Company.
8. Defendant Douglas E. McAllister ("D. McAllister") is Vice President,
Government Affairs, and a director of Asarco.
9. Defendants Michael T. Nelligan ("Nelligan"), Manuel T. Pacheco
("Pacheco"), James Wood ("Wood"), Vincent A. Calarco ("Calarco"), John D. Ong
("Ong"), James C. Cotting ("Cotting"), David C. Garfield ("Garfield"), E. Gordon
Gee ("Gee"), and James W. Kinnear ("Kinnear"), are all directors of Asarco.
10. The above-named individual defendants (collectively, the "Individual
Defen dants"), as officers and/or directors of Asarco and/or as significant
shareholders of Asarco, owe fiduciary duties of good faith, loyalty, fair
dealing, due care, and candor to plaintiff and the other members of the Class
(as defined below).
11. Each of the Individual Defendants receives annual compensation from
Asarco and has a personal and financial interest in thwarting any threat to the
continued incumbency and control of Asarco's current management, in derogation
of their fiduciary duties.
12. Defendants' conduct, as more fully described herein, has been
orchestrated to protect the positions and corresponding perquisites and other
benefits received by the
4
<PAGE>
Individual Defendants as officers and/or directors of Asarco, and the agreements
pertaining to same reached between Asarco and Cyprus Amax. Defendant are
breaching their fiduciary duties to plaintiff and the members of the Class (as
defined below) by summarily rejecting the Offer without adequate investigation,
market check, or any other procedures to determine whether the Offer presents an
opportunity to maximize the value of Asarco shares, thus wrongfully depriving
plaintiff and the members of the Class of the full value of their shares.
Moreover, because Asarco has already been "put in play" by virtue of its
previously an nounced intended merger with Cyprus Amax, defendants are obligated
to obtain maximum possible value for Asarco's public shareholders, which duty
they are breaching by virtue of the conduct described herein.
CLASS ACTION ALLEGATIONS
------------------------
13. Plaintiff brings this action pursuant to Rule 4:32 of the New Jersey
Court Rules, on behalf of himself and all other stockholders of Asarco as of
August 24, 1999 (the "Class"). Excluded from the Class are defendants herein,
members of their immediate families, and any subsidiary, firm, trust,
corporation, or other entity related to or affiliated with any of the defendants
and their successors in interest, who are or will be threatened with injury
arising from defendants' actions.
14. This action is properly maintainable as a class action for the
following reasons:
(a) The Class is so numerous that joinder of all members is
impracticable. While the exact number of class members is unknown to plaintiff
at this time and can be
5
<PAGE>
ascertained only through appropriate discovery, there are more than 39 million
shares of Asarco common stock outstanding held by thousands of shareholders of
record. The holders of these are believed to be geographically dispersed
throughout the United States. Asarco's stock is listed and actively traded on
the New York Stock Exchange.
(b) There are questions of law and fact that are common to members of
the Class and thus predominate over questions affecting only individual members.
The common questions include, inter alia, the following:
----- ----
(i) whether defendants have engaged in conduct constituting
unfair dealing to the detriment of the Class;
(ii) whether defendants' summary rejection of the Offer is
grossly unfair to the Class;
(iii) whether defendants are engaging in a plan or scheme to
thwart and/or summarily reject offers that may maximize the
value of shareholders' investment in Asarco, to the
detriment of the Class;
(iv) whether defendants are engaging in a plan or scheme to
entrench and/or enrich themselves (whether such plan or
scheme is de vised solely among themselves or pursuant to
agreement with Cyprus Amax) at the expense of the public
stockholders of
6
<PAGE>
Asarco and/or unfairly to obtain for themselves the
benefits and business of the Company;
(v) whether plaintiff and the other members of the Class would
be irreparably damaged if defendants' summary rejection of
the Offer is not enjoined;
(vi) whether defendants have breached fiduciary and other common
law duties owed by them to the Class; and
(vii) whether defendants have failed to take appropriate measures
to ensure the realization of the maximum value of the
Asarco stock held by the Class.
(c) The claims of plaintiff are typical of the other members of the
Class and plaintiff has no interest that is adverse or antagonistic to the
interest of the Class.
(d) Plaintiff is committed to prosecuting this action and has retained
counsel competent and experienced in litigation of this nature. Plaintiff is an
adequate representative of the Class and will fairly and adequately protect the
interest of the Class.
(e) Plaintiff anticipates that there will be no difficulty in the
management of this litigation.
(f) A class action is superior to other available methods for
adjudication of this controversy.
SUBSTANTIVE ALLEGATIONS
-----------------------
7
<PAGE>
A. Announcement of the Asarco-Cyprus Amax Merger
---------------------------------------------
15. On July 15, 1999, Asarco and Cyprus Amax announced that they had
agreed to merge in a stock-for-stock transaction in which Cyprus Amax holders
will receive 0.765 of a share in the combined entity for each of their shares,
and will own 63.5% of the new company. Asarco shareholders will receive one
share of the new entity for each Asarco share they currently own. The
transaction provided for essentially no premium for either company under then-
current market prices of their respective stocks.
B. The Offer by Phelps Dodge
-------------------------
16. On August 20, 1999, Asarco and Cyprus Amax issued a joint press
release in which they disclosed that "the Boards of both companies had received
an unsolicited proposal from Phelps Dodge Corporation to negotiate an agreement
for Phelps Dodge to acquire both companies for stock. Phelps Dodge proposed an
exchange of .3756 of a Phelps Dodge share of each Asarco share and .2874 of a
Phelps Dodge share for each Cyprus share. . . ." This offer valued Asarco and
Cyprus Amax at a total of approximately $2.39 billion, at the current stock
prices of each of the three companies. The press release further stated that on
August 19, 1999, the Boards of both Asarco and Cyprus Amax had met separately to
consider this proposal and has determined to reject it, and instead to proceed
with the two-party merger between Asarco and Cyprus Amax, citing simply "the
best interests of Asarco and Cyprus Amax stockholders," without any further
elaboration.
8
<PAGE>
17. On August 20, 1999, following the announcement of the rejection of its
initial offer, Phelps Dodge raised its bid for both companies. In a letter to
the Boards of both Asarco and Cyprus Amax, made public by its inclusion in a
Schedule 14A proxy filing with the United States Securities and Exchange
Commission ("SEC"), Phelps Dodge outlined its latest proposal as follows:
We propose a business combination of Phelps Dodge and Asarco
pursuant to which all of the outstanding common stock of Asarco would be
exchanged for Phelps Dodge common stock at an exchange ratio of 0.4098
Phelps Dodge common shares for each Asarco common share. We are also
independently propos ing to Cyprus Amax a business combination of Phelps
Dodge and Cyprus Amax pursuant to which all of the outstanding common stock
at an exchange ratio of 0.3135 Phelps Dodge common shares for each Cyprus
Amax common share.
18. As the August 20 Phelps Dodge letter pointed out, based on the current
trading prices of all three companies' stocks (which would have presumably
already factored any anticipated beneficial effects of a purely two-way merger
between Asarco and Cyprus Amax), this revised Offer represented a premium of
approximately $24.05 per share, or $960 million), and a premium of approximately
29% for Cyprus Amax (valuing Cyprus Amax at $18.40 per share, or $1.7 billion).
19. As the August 20 Phelps Dodge letter also pointed out, "Following the
combination, we plan to continue the current $2.00 per share Phelps Dodge common
dividend. This would result in a substantial dividend increase for Asarco
shareholders to 4.1 times the dividend contemplated in your proposed merger with
Cyprus Amax."
9
<PAGE>
20. In spite of this lucrative revised Offer to Asarco's shareholders by
Phelps Dodge, Asarco and Cyprus Amax again rejected said Offer outright. Thus,
in response to this rejection, Phelps Dodge stated in the above-cited letter to
Asarco:
We are disappointed in your response to our proposed three-way
combination of Asarco, Cyprus Amax and Phelps Dodge. As you know, we have
on three recent occasions re quested the opportunity to discuss our
proposal, which we be lieve would be far superior to your shareholders
than your pro posed combination with Cyprus Amax. We are particularly
disappointed that instead of accept ing our previous requests to meet to
discuss our proposal to acquire Asarco for a substantial premium, you chose
today to announce unilaterally our interest in acquiring Asarco and Cy
prus Amax and to reject our proposal in favor of your no-pre mium merger
proposal with Cyprus Amax. This appears consis tent with the manner in
which you have chosen to treat you own shareholders by announcing just
today, at the same time you first disclosed the terms of your July 15
merger agreement, that the record date for your shareholders vote on the
no-premium merger with Cyprus Amax would be August 25. Since trades after
today will settle after August 25, this effectively precluded any
significant trading in the market on an informed basis before the
determination of shareholders eligible to vote at your meeting. In light
of your unilateral announcement, we have no other choice than to publicly
announce our proposal to enter into a business combination with Asarco and
Cyprus Amax, so that shareholders of all three companies are fully
informed.
21. It has since been disclosed in The Wall Street Journal and over the
-----------------------
Dow Jones News Service on August 24, 1999, that the Asarco-Cyprus Amax merger
- ----------------------
agreement prohibits either company from negotiating with third parties.
According to the agreement, neither
10
<PAGE>
company can "withdraw or modify, or propose publicly to withdraw or modify ...
the approval or recommendation by the board" of the merger agreement.
22. The Offer presents plaintiff and the Class an outstanding opportunity
to maximize the value of their Asarco shares for the following reasons:
(a) The Offer, even as it now stands without any meaningful
consideration and due diligence by Asarco or negotiations between Phelps Dodge
and Asarco, would permit plaintiff and the Class to materially increase the
value of their investment in the Company.
(b) The Offer represents a 30% premium over Asarco's trading price at
the close of business on August 19, 1999, before Phelps Dodge's interest in
acquiring Asarco and Cyprus Amax became public, and a price that presumably
already reflected any anticipated benefits of an Asarco-Cyprus Amax merger.
(c) Over the past several years Phelps Dodge's stock price has
significantly outperformed the stock prices of Asarco and Cyprus Amax. As a
result of Phelps Dodge's higher dividend, the level of outperformance is even
greater when viewed on the basis of the total return to shareholders assuming
reinvestment of dividends. Over the past 10 years Phelps Dodge's total return
has been 161%, as compared to negative 20% for Asarco, and negative 26% for
Cyprus Amax. Similarly, over the past 15 years, Phelps Dodge's total return has
been 1.024%, as compared to 255% for Asarco, and 102% for Cyprus Amax.
11
<PAGE>
(d) As stated in Phelps Dodge's August 20, 1999 letter, the proposed
three-way merger would generate estimated annual cost savings of an additional
$75 million over and beyond the $125 million in estimated cost savings from an
Asarco-Cyprus Amax merger.
(e) A merger with Phelps Dodge, the nation's largest copper producer,
would have several significant benefits over the Asarco-Cyprus Amax merger, due
in part to Phelps Dodge's size, management team, and resource-rich portfolio of
global copper assets, including:
(i) the significantly stronger ability of the combined
company, relative to the Asarco-Cyprus Amax combination,
to integrate southwestern U.S. mining operations,
administrative functions in the U.S., Chile and Peru, and
worldwide exploration and devel opment activities;
(ii) the financial strength of the combined company and ability
to create a world-class portfolio of non-competitive
mining assets;
(iii) a strong and deep management team, at both the operating
and corporate levels, with strong credibility in the
marketplace;
(iv) the ability to eliminate substantial overhead,
exploration, pur chasing and other expense through the
three-way consolidation;
12
<PAGE>
(v) the tremendous operating leverage of the combined company,
together with enough diversity in other business to
mitigate cyclical downturns;
(vi) the immediate and substantial accretion to the cash flow
of the combined company resulting from the transaction;
(vii) the significant accretion to earnings per share of the
combined entity beginning in the second year after
closing, based on the current portfolio of the combined
companies and analyst's esti mates of copper prices of
$0.80 to $0.85 per pound in 2001;
(viii) the total current annual copper production of the combined
company of 3.8 billion pounds and attributable copper
reserves of 80 billion pounds;
(ix) the increased ability of the combined company to compete
for world-class projects.
(f) The market showed great enthusiasm for the disclosure on August
20, 1999 of Phelps Dodge's proposal. The market price of common shares of
Asarco immediately rose $4.00 per share, from $18-7/16 at the close of trading
on August 19, 1999 to $22-7/16 at the close of trading on August 20, 1999, and a
high of $22 1/2 on the following Monday, August 23, 1999.
13
<PAGE>
(g) The Offer represents a possible opportunity to maximize
shareholder value even in excess of the $2.66 billion offered for both Asarco
and Cyprus Amax through negotiation of the Offer and putting either Asarco alone
or Asarco together with Cyprus Amax up for auction.
CAUSE OF ACTION AGAINST ALL DEFENDANTS
--------------------------------------
23. The Individual Defendants have breached their fiduciary duties to
plaintiff and the Class by rejecting out-of-hand without fully evaluating or
becoming fully informed with regard to the Offer and without taking any steps to
maximize shareholder value for plaintiff and the members of the Class, and by
entering into an agreement with Cyprus Amax to prohibit either party from
negotiating with third parties.
24. Because Asarco has already been "put in play" by virtue of its
previously announced intended merger with Cyprus Amax, the Individual Defendants
are obligated to obtain the maximum possible value of Asarco public
shareholders, which duty they are breaching by virtue of their refusal to
consider the substantial superior Offer - providing a 30% premium to Asarco's
shareholders - proposed by Phelps Dodge.
25. By virtue of the acts and conduct herein, the Individual Defendants
are not acting in good faith and have breached their fiduciary and other common
law duties that they owe to plaintiff and the other members of the Class, have
engaged in unfair dealing for their own benefit and the detriment of the Class,
and have pursued a course of conduct designed to entrench themselves in their
positions of control within the Company.
14
<PAGE>
26. The Individual Defendants have violated their fiduciary duties owed to
plaintiff and the other members of the Class in that they have not and are not
exercising independent business judgment and have acted and are acting to the
detriment of the Class in order to benefit themselves and solidify their
positions of control and enjoyment of the perquisites of office, and/or to
preserve the agreements regarding same already reached between them and Cyprus
Amax.
27. As a result of the foregoing, defendant's summary rejection of the
Offer is a breach of defendants' fiduciary duties and should be enjoined.
28. Plaintiff lacks an adequate remedy at law.
WHEREFORE, plaintiff demands judgment as follows:
(a) declaring this action to be a proper class action and certifying
plaintiff as the representative of the Class;
(b) declaring defendants' rejection of the Offer to be a breach of
defendant's fiduciary duties of loyalty, due care, good faith, fair dealing, and
candor to plaintiff and the Class;
(c) ordering the Individual Defendants to carry out their fiduciary
duties to plaintiff and the other members of the Class by:
(i) Requiring defendants to consider the Offer in good faith, to
take all possible measures to maximize the value of Asarco
stock by, for example, engaging in a course of due diligence
and negotiat
15
<PAGE>
ing with Phelps Dodge, or otherwise maximizing the value of
the Company to plaintiff and the Class; and
(ii) requiring defendants to make full and fair disclosure of the
Offer, the negotiations between Asareo and Phelps Dodge, and
all other matters concerning a possible acquisition or
merger of Asarco that a reasonable investor would consider
important;
(d) ordering defendants, jointly and severally, to pay to plaintiff
and other members of the Class all damages suffered and to be suffered by them
as a result of the acts and transactions alleged herein;
(e) awarding plaintiff the costs and disbursements of this action,
including a reasonable allotment for plaintiff's attorneys' and expert's fees;
and
(f) granting such other and further relief as the Court may deem just
and equitable.
LITE DePALMA GREENBERG & RIVAS, LLC
By: _________________________________
Bruce D. Greenberg
Allyn Z. Lite
Two Gateway Center, 12/th/ Floor
Newark, New Jersey 07102-5003
(73) 623-3000
Attorneys for Plaintiff
16
<PAGE>
EXHIBIT 99.7
TRUJILLO RODRIGUEZ & RICHARDS, LLC
3 Kings Highway East
Haddonfield, NJ 08033
(609) 795-9002
Attorneys for Plaintiff and the Class
- - - - - - - - - - - - - - - - - - - - - - - x
RICHARD D. GREENFIELD, on behalf of : SUPERIOR COURT OF NEW JERSEY
himself and all others similarly situated, : CHANCERY DIVISION
: MERCER COUNTY
Plaintiff, :
: Docket No.:
vs. :
:
RICHARD DeJONGH OSBORNE, KEVIN R. :
MORANO, VINCENT A. CALARCO, : CIVIL ACTION
MANUEL T. PACHECO, MARTHA T. : ------------
MUSE, JOHN D. ONG, JAMES W. :
KINNEAR, JAMES WOOD, DR. E. GORDON :
GEE, FRANCIS R. McALLISTER, JAMES C. : CLASS ACTION COMPLAINT
COTTING, DAVID C. GARFIELD, MICHAEL :
T. NELLIGAN, WILLARD CARLISLE :
BUTCHER, ASARCO, INC. and CYPRUS :
AMAX MINERALS CO. :
:
Defendants. :
- - - - - - - - - - - - - - - - - -- - - - - - x
Plaintiff Richard D. Greenfield, by his attorneys, for his Complaint,
alleges upon personal knowledge and belief as to his own acts and upon
information and belief as to all other matters, based upon investigation of
counsel, as follows:
<PAGE>
NATURE OF THE ACTION
--------------------
1. This action arises from breaches of fiduciary duties in
connection with a merger agreement entered into between Cyprus Amax Minerals Co.
("Cyprus Amax") and Asarco Inc. ("Asarco") for totally insufficient
consideration and in breach of defendants' fiduciary duties. Plaintiff alleges
that he and a proposed class of public shareholders of Asarco common stock are
entitled to enjoin the proposed transaction or, alternatively, to recover
damages in the event that the transaction is consummated. Plaintiff brings this
action on behalf of the public holders of the outstanding common shares of
Asarco for injunctive and other relief in connection with an improperly
negotiated and structured merger conceived by defendants as detailed below.
THE PARTIES
-----------
2. Plaintiff has been, at all times relevant to this action an owner
of Asarco common stock.
3. Defendant Asarco is a New Jersey corporation with its executive
offices located at 180 Maiden Lane, New York, New York 10038. Asarco is a
producer of nonferrous metals, principally copper, lead, zinc, and silver.
4. Defendant Francis R. McAllister is Chairman of the Board, Chief
Executive Officer and a director of Asarco.
5. Defendant Kevin Morano is President, Chief Operating Officer and
a director of Asarco.
2
<PAGE>
6. The other individual defendants Richard DeJongh Osborne, Vincent
A. Calarco, Manuel T. Pacheco, Martha T. Muse, John D. Ong, James W. Kinnear,
James Wood, Dr. E. Gordon Gee, James C. Cotting, David C. Garfield, Michael T.
Nelligan and Willard Carlisle Butcher constitute the entire board of directors
of Asarco.
7. The individual defendants, as directors of Asarco owe fiduciary
duties of good faith, loyalty, fair dealing, due care, and full disclosure to
plaintiff and the other members of the Class (as defined below).
8. Defendant, Cyprus Amax is a Delaware corporation with its
principal place of business at 9100 East Mineral Circle, Englewood, CO 80112.
Cyprus Amax is a holding company that mines, processes and markets coal, iron
ore and gold. Cyprus Amax has knowledge of the facts and circumstances
described below. Therefore, Cyprus Amax has knowingly participated in the
breaches of fiduciary duty described herein and is liable as an aider and
abettor and for inducement of the individual defendants to breach their
fiduciary duties owed to plaintiff and the Class.
CLASS ACTION ALLEGATIONS
------------------------
9. Plaintiff brings this action pursuant to the provisions of R.4:32
-
of the New Jersey Court Rules on behalf of himself and all other shareholders of
Asarco as of July 15, 1999 (except the defendants herein and any persons, firm,
trust, corporation, or other entity related to or affiliated with them and their
successors in interest), who are or will be threatened with injury arising from
defendants' actions, as is more fully described herein (the "Class").
3
<PAGE>
10. This action is properly maintainable as a class action for the
following reasons:
a. The Class is so numerous that joinder of all members is
impracticable. There are thousands of shareholders of record of Asarco stock
and many more beneficial owners who are members of the Class.
b. Members of the Class are scattered throughout the United States
and are so numerous that it is impracticable to bring them all before this
Court.
c. There are questions of law and fact that are common to the Class
and that predominate over questions affecting any individual class member. The
common question include, inter alia, the following:
----- ----
(1) Whether the transaction as negotiated and structured denies
shareholder information (particularly with respect to the value of their shares)
necessary to make an informed decision whether to sell their shares;
(2) Whether defendants have violated their fiduciary duties by
contracting away their obligations to fully inform themselves regarding the
value of Asarco;
(3) Whether the individual defendants, as directors of Asarco
have fulfilled, and are capable of fulfilling, their fiduciary duties to
plaintiff and the other members of the Class, including their duties of entire
fairness, loyalty, due care, and full disclosure;
(4) Whether Cyprus Amax has aided and abetted the individual
defendants' breaches of fiduciary duties and otherwise induced them to do so;
and
4
<PAGE>
(5) Whether plaintiff and the other members of the Class would
be irreparably damaged were defendants not enjoined from the conduct described
herein.
d. The claims of plaintiff are typical of the claims of the other
members of the Class in that all members of the Class will be damaged by
defendants' actions.
e. Plaintiff is committed to prosecuting this action and has
retained competent counsel experienced in litigation of this nature. Plaintiff
is an adequate representative of the Class.
f. A class action is superior to any other method available for the
fair and efficient adjudication of this controversy since it would be
impractical and undesirable for each of the members of the Class, who has
suffered or will suffer damages, to bring separate actions in various parts of
the country.
g. The prosecution of separate actions by individual members of the
Class would create a risk of inconsistent or varying adjudications with respect
to individual members of the Class which would establish incompatible standards
of conduct for the party opposing the Class.
11. At all relevant times the shares of Asarco were publicly traded
on the New York Stock Exchange.
SUBSTANTIVE ALLEGATIONS
-----------------------
12. On a date prior to July 15, 1999, the individual defendants
determined to put Asarco "in play" by causing it to enter into a business
combination with Cyprus Amax. Once "in play," the individual defendants were
legally obligated pursuant to their duty of loyalty to obtain for plaintiff and
the Class the best possible price or terms for their Asarco shares.
5
<PAGE>
13. On July 15, 1999 Cyprus Amax and Asarco announced that they had
entered into a merger agreement and that it had been unanimously approved by the
Boards of Directors of both companies. The deal was described by both Cyprus
Amax and Asarco as a merger of equals.
14. The terms of the transaction provided that Cyprus Amax
shareholders will receive 0.765 shares of Asarco Cyprus common stock for each
share of Cyprus Amax common stock they own and Asarco shareholders will receive
one (1) share of Asarco Cyprus common stock for each share of Asarco common
stock they own (the "Transaction"). Defendants McAllister and Morano would be
principal beneficiaries of such a transaction since Cyprus Amax chairman is due
to retire next year.
15. The Wall Street Journal ("WSJ") reported on August 23rd, 1999
---------------------------
that although the merger agreement was entered into by Cyprus Amax and Asarco on
July 15, 1999, they waited until August 20th to file the month-old agreement and
only then disclosed that the record date for the shareholders to vote at the
September 30th shareholder meeting would be Wednesday, August 25, 1999. The WSJ
---
reported in the same article that although the Company had disclosed the record
date to the New York Stock Exchange earlier, it did not make its announcement
public regarding the record date until Friday, August 20th. Not surprisingly,
Cyprus Amax and Asarco also announced on August 20th that Phelps Dodge
Corporation ("Phelps Dodge") had made previously concealed bids for both
companies or a combined Cyprus Asarco company.
16. Defendants' maneuvers were clearly designed to make sure that
only those shareholders who own shares of record by August 25th can vote at the
shareholder meeting. Douglas
6
<PAGE>
Yearley, Chairman and CEO of Phelps Dodge was reported in the WSJ as observing
---
that, since trades on August 20th will settle after August 25, such record date
effectively precludes any significant trading in the market on an informed basis
before the determination of shareholders eligible to vote. Yearley was quoted in
the WSJ as stating that defendants' tactics amounted to a "shareholder squeeze
---
play".
17. Phelps Dodge responded to defendants' August 20th announcement by
offering to enter into a three-way merger that would result in $265 million in
annual cost savings to the combination of all three companies. Phelps Dodge
proposed a business combination pursuant to which all of the outstanding common
stock of Asarco would be exchanged for Phelps Dodge common stock at an exchange
ratio of 0.4098 Phelps Dodge common shares for each Asarco common share. Phelps
Dodge also proposed to Cyprus Amax a business combination of Phelps Dodge and
Cyprus Amax pursuant to which all outstanding common stock of Cyprus Amax would
be exchanged for Phelps Dodge common stock in an exchange ratio of 0.3135 Phelps
Dodge common shares for each Cyprus Amax common share. Based on share prices
for the three companies' common shares before trading was halted on Friday,
August 20th, the ratios provided for a premium of approximately 30% for Asarco
and a premium of approximately 29% for Cyprus Amax. Phelps Dodge also made it
clear to both Cyprus Amax and Asarco that although its preference was for a
transaction involving all three companies, it was willing to consider a
negotiated business combination with either Asarco or Cyprus Amax regardless of
whether the other company was willing to proceed on a negotiated basis.
7
<PAGE>
18. Phelps Dodge's offer of August 20th was driven in part by the
apparent unwillingness of the Board of Directors of both companies to even
discuss the proposal notwith standing serious overtures by Phelps Dodge and, in
particular, the fiduciary obligations of Asarco's Board. Defendants' actions
are all the more egregious in that they rejected the Phelps Dodge proposal in
favor of the no-premium merger proposal improperly negotiated in July between
Cyprus Amax and Asarco.
19. The individual defendants, in violation of their fiduciary duties
owed to plaintiff and the Class, negotiated a merger agreement which strictly
prohibits any solicitation or indeed discussion of bids or potential bids, and
does not therefore provide for a bona fide fiduciary "out" of the Cyprus Amax
---- ----
merger deal, including responding to a proposal that would be more advantageous
to Asarco shareholders. Therefore, while the Board of Asarco could withdraw its
recommendation to the shareholders that they vote in favor of the Transaction,
the Board has by contract prohibited and denied itself access to the very
information it would need to challenge that recommendation and cause the Board
to withdraw that recommendation. In other words Asarco directors have attempted
to contract away their fiduciary responsibility and obligations to explore in
good faith all information which would shed light upon the value of the shares
of Asarco, to seek the best price for Asarco shares and have further breached
their fiduciary duties by failing to provide the shareholders with this needed
and material information in a timely and reasonable manner.
20. The individual defendants were and are under a continuing duty to
fully inform themselves before taking action or agreeing to refrain from taking
action, to elicit, promote,
8
<PAGE>
consider and evaluate reasonable and bona fide offers for Asarco to assure that
---- ----
a "level playing field" exists when more than one bidder for the Company
emerges, and not to favor one bidder over another, unless it is designed to
assure and is reasonably related to achieving the best transaction for the
Asarco shareholders. The individual defendants breached their fiduciary duty by,
among other matters, failing to fully inform themselves about available
alternatives to the Transaction, including a transaction with Phelps Dodge, and
without fully informing themselves about the value of Asarco. They have further
breached their duty to plaintiff and the other Asarco shareholders by not
obtaining for them the best price for Asarco shares.
21. If the breaches of fiduciary duty described herein are permitted
to continue, the Asarco shareholders will forever lose the opportunity to have
the value of their Company arrived at through competitive bidding on a level
playing field and the opportunity to consider any other bidders which may come
forward.
22. By reason of the foregoing acts, practices and course of conduct
of defendants, plaintiff and the other members of the Class have been and will
be damaged because they will not receive their fair proportion of the value of
Asarco's assets and business, which far exceeds the Transaction consideration,
in the unfair Transaction at issue, have been and will be prevented from making
an informed decision whether to approve the Transaction, and will wrongfully
impede consideration of any other third party offer for greater consideration,
including the Phelps Dodge offer.
9
<PAGE>
23. Defendant Cyprus Amax has acted and is acting with knowledge that
the other defendants are in breach of their fiduciary duties to Asarco
shareholders (owed to them by virtue of the merger agreement) and have
intentionally, recklessly or negligently induced, aided and abetted such
breaches of fiduciary duties by the directors of Asarco.
24. Unless enjoined by this Court, defendants will continue to breach
their fiduciary duties owed to plaintiff and the Class and will consummate the
Transaction to the irreparable harm of plaintiff and the Class.
25. Plaintiff and the other members of the Class have no adequate
remedy at law.
PRAYER FOR RELIEF
-----------------
WHEREFORE, plaintiff, on behalf of himself and all others similarly
situated, prays for relief and judgment as follows:
a. For an order certifying the Class under the appropriate
provisions of R. 4:32 of the New Jersey Court Rules and appointing plaintiff
-
and his counsel to represent the Class;
b. Ordering defendants to carry out their fiduciary duties to
plaintiff and the other members of the Class, including those of duty of care,
loyalty, full disclosure, and entire fairness;
c. Granting preliminary and permanent injunctive relief against the
consummation of the Transaction as described herein;
d. Ordering the individual defendants to explore alternatives and to
negotiate in good faith with all interested persons, including but not limited
to Phelps Dodge.
10
<PAGE>
e. In the event the Transaction is consummated, rescinding the
Transaction and awarding rescissory damages;
f. Ordering defendants, jointly and severally, to pay to plaintiff
and to other members of the Class all damages suffered and to be suffered by
them as the result of the acts alleged herein;
g. Awarding plaintiff the costs and disbursements of this action
including allowances for plaintiff's reasonable attorneys and experts fees; and
h. Granting such other and further relief as the Court deems just,
proper and equitable.
Dated: August 25, 1999 TRUJILLO RODRIGUEZ & RICHARDS, LLC
By:___________________________________
Lisa J. Rodriguez
3 Kings Highway East
Haddonfield, NJ 08033
(609) 795-9002
LIEBENBERG & WHITE
Ann D. White
The Pavillion
261 Old York Road, Suite 810
Jenkintown, PA 19046
(215) 481-0272
Attorneys for Plaintiff and the Class
11
<PAGE>
EXHIBIT 99.8
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
- - - - - - - - - - - - - - - - - - - x
KENNETH STEINER, :
: Civil Action No. 17384
Plaintiff, :
:
-against- :
:
CYPRUS AMAX MINERALS CO., MILTON H. :
WARD, LINDA G. ALVARADO, GEORGE S. :
ANSELL, ALLEN BORN, WILLIAM C. :
BOUSQUETTE, THOMAS V. FALKIE, ANNE :
MAYNARD GRAY, ROCKWELL A. :
SCHNABEL, THEODORE M. SOLSO, JOHN :
HOYT STOOKEY, JAMES A. TODD, JR., :
BILLIE B. TURNER and ASARCO INC., :
:
Defendants. :
- - - - - - - - - - - - - - - - - - - x
COMPLAINT
---------
Plaintiff, by and through his attorneys, alleges upon information and
belief except as to himself and his own actions, which he alleges upon
knowledge, as follows:
SUMMARY OF ACTION
-----------------
1. This action arises from breaches of fiduciary duties in
connection with a merger agreement entered into by Cyprus Amax Minerals Co.
("Cyprus Amax") and Asarco Inc. ("Asarco") for grossly inadequate consideration
and in breach of defendants' fiduciary duties. Plaintiff alleges that he and
other public shareholders of Cyprus Amax common stock are entitled
<PAGE>
to enjoin the proposed transaction or, alternatively, to recover damages in the
event that the transaction is consummated. Plaintiff brings this action on
behalf of the public holders of the outstanding common shares of Cyprus Amax for
injunctive and other relief in connection with an improperly negotiated and
structured merger conceived by defendants hereinafter described. One effect of
the negotiation and structure of the transaction is to deny shareholders
important information regarding the value of their shares of Cyprus Amax.
2. The result of defendants' actions is that the ASARCO and Cyprus
Amax merger provides no premium for the public shareholders in a transaction
which was unfairly negotiated and structured to avoid purposely any superior bid
for Cyprus Amax or the Cyprus Amax - Asarco combined entity.
THE PARTIES
-----------
3. Plaintiff has been, at all times relevant to this action an owner
of CYPRUS AMAX common stock.
4. Defendant Cyprus Amax is a Delaware corporation with its
principal executive offices located at 9100 East Mineral Circle, Englewood, CO
80112. Cyprus Amax is a holding company with subsidiaries which explore for,
extract, process and market coal, copper, iron ore and gold. Cyprus Amax
currently has over 90 million shares of common stock outstanding held by
approximately 37,000 shareholders of record.
2
<PAGE>
5. Defendant Milton H. Ward is Chairman of the Board, President,
Chief Executive Officer and a director of Cyprus Amax. His recent compensation
according to the March 99 proxy exceeds $3 million.
6. The other individual defendants Linda G. Alvarado, George S.
Ansell, Allen Born, William C. Bousquette, Thomas V. Falkie, Anne Maynard Gray,
Rockwell A. Schnabel, Theodore M. Solso, John Hoyt Stookey, James A. Todd, Jr.,
and Billie B. Turner with defendant Ward constitute the entire board of
directors of Cyprus Amax.
7. The individual defendants, as directors of Cyprus Amax owe
fiduciary duties of good faith, loyalty, fair dealing, due care, and full
disclosure to plaintiff and the other members of the Class (as defined below).
8. Defendant Asarco is a New Jersey corporation with its principal
place of business at 180 Maiden Lane, New York, New York 10038-4925. Asarco
inter alia mines, smelts, refines and sells copper, silver, lead, zinc and gold
- ----- ----
ore molybdenum. Asarco has knowledge of the facts and circumstances described
below. Therefore, Asarco has knowingly participated in the breaches of
fiduciary duty described herein and is liable as an aider and abettor.
CLASS ACTION ALLEGATIONS
------------------------
9. Plaintiff brings this action pursuant to Rule 23 of the Rules of
this Court, on behalf of themselves and all other shareholders of Cyprus Amax as
of July 15, 1999 (except the defendants herein and any persons, firm, trust,
corporation, or other entity related to or
3
<PAGE>
affiliated with them and their successors in interest), who are or will be
threatened with injury arising from defendants' actions, as is more fully
described herein (the "Class").
10. This action is properly maintainable as a class action for the
following reasons:
a. The Class is so numerous that joinder of all members is
impracticable. There are approximately 37,000 record shareholders of CYPRUS AMAX
stock and many more beneficial owners who are members of the Class.
b. Members of the Class are scattered throughout the United
States and are so numerous that it is impracticable to bring them all before
this Court.
c. There are questions of law and fact that are common to the
Class and that predominate over questions affecting any individual class member.
The common questions include, inter alia, the following:
----- ----
(1) Whether the transaction as negotiated and structured
denies shareholders information (particularly with respect to the value of their
shares) necessary to make an informed decision whether to sell their shares;
(2) Whether defendants have violated their fiduciary duties
by contracting away their obligations to fully inform themselves regarding the
value of Cyprus Amax;
(3) Whether the individual defendants, as directors of
Cyprus Amax have fulfilled, and are capable of fulfilling, their fiduciary
duties to plaintiff and the other
4
<PAGE>
members of the Class, including their duties of entire fairness, loyalty, due
care, and full disclosure;
(4) Whether Asarco has aided and abetted the individual
defendants' breaches of fiduciary duties; and
(5) Whether plaintiff and the other members of the Class
would be irreparably damaged were defendants not enjoined from the conduct
described herein.
d. The claims of plaintiff is typical of the claims of the
other members of the class in that all members of the Class will be damaged by
defendants' actions.
e. Plaintiff is committed to prosecuting this action and has
retained competent counsel experienced in litigation of this nature. Plaintiff
is adequate representatives of the Class.
f. A class action is superior to any other method available for
the fair and efficient adjudication of this controversy since it would be
impractical and undesirable for each of the members of the Class, who has
suffered or will suffer damages, to bring separate actions in various parts of
the country.
g. The prosecution of separate actions by individual members of
the Class would create a risk of inconsistent or varying adjudications with
respect to individual members of the Class which would establish incompatible
standards of conduct for the party opposing the Class.
5
<PAGE>
11. At all relevant times the shares of CYPRUS AMAX were publicly
traded on the New York Stock Exchange.
THE CHALLENGED COURSE OF CONDUCT
--------------------------------
12. On July 15, 1999 Cyprus Amax and Asarco announced an agreement
unanimously approved by the Boards of both companies, for the combination of the
two companies in a merger of equals transaction.
13. Under the terms of the transaction, Cyprus Amax shareholders will
receive 0.765 shares of Asarco Cyprus common stock for each share of Cyprus Amax
common stock they own and Asarco shareholders will receive one (1) share of
Asarco Cyprus common stock for each share of Asarco common stock they own (the
"Transaction").
14. Although Cyprus Amax and Asarco entered into a merger agreement
on or about July 15, 1999, they waited until August 20th to file their merger
agreement and only then disclosed that the record date for the shareholders to
vote at the September 30th shareholder meeting would be Wednesday, August 25,
1999. While the Company apparently obtained a waiver from the New York Stock
Exchange and disclosed the record date to the New York Stock Exchange earlier,
it did not make its announcement public regarding the record date until Friday,
August 20th. Not coincidentally, Cyprus Amax and Asarco also announced on
August 20th that Phelps Dodge Corporation ("Phelps Dodge") had made bids for
both companies or a combined Cyprus Asarco company. The defendants' tactics are
clear: Only those shareholders who own shares of record by August 25th can vote
at the shareholder meeting. As Phelps Dodge observed,
6
<PAGE>
since trades on August 20 will settle after August 25, such record date
effectively precludes any significant trading in the market on an informed basis
before the determination of shareholders eligible to vote. As the Chairman of
Phelps Dodge aptly noted, the various tactics by defendants amount to
"shareholder squeeze play".
15. Given defendants' unilateral announcement on August 20th
regarding Phelps Dodge's previous bid, on August 20, 1999 Phelps Dodge went
public with a sweetened offer for both companies. On August 20, Phelps Dodge
offered a three-way merger that would result in $265 million in annual cost
savings, including streamlining copper operations in the Southwest and combining
the administrative functions in the U.S., Chile and Peru, plus lower
depreciation. Phelps Dodge proposing to Cyprus Amax a business combination of
Phelps Dodge and Cyprus Amax pursuant to which all outstanding common stock of
Cyprus Amax would be exchange for Phelps Dodge common stock in an exchange ratio
of 0.3135 Phelps Dodge common shares for each Cyprus Amax common share. Phelps
Dodge has also proposed a business combination pursuant to which all of the
outstanding common stock of Asarco would be exchange for Phelps Dodge common
stock at an exchange ratio of 0.4098 Phelps Dodge common shares for each Asarco
common share. Based on share prices for the three companies' common shares
before trading was halted on Friday, August 20th, the ratios implied a premium
of approximately 30% for Asarco and a premium of approxi mately 29% for Cyprus
Amax, while preserving the relative economics of the exchange ratio under the
proposed combination of Cyprus Amax and Asarco. Moreover, the proposed
transaction would be tax free to the
7
<PAGE>
shareholders. Phelps Dodge also made it clear to both Cyprus Amax and Asarco
that although it preferred a transaction involving all three companies, they
were prepared to enter into a negotiated business combination with either Asarco
or Cyprus Amax regardless of whether the other company was willing to proceed on
a negotiated basis.
16. The public announcement of the August 20th bid by Phelps Dodge
was precipitated in part by Asarco's and Cyprus' refusal to even meet and
discuss the proposal notwithstanding several overtures by Phelps Dodge and to
reject out of hand any proposal in favor of the no-premium merger proposal
improperly negotiated in July between Cyprus Amax and Asarco.
17. In violation of their fiduciary duties the individual defendants
negotiated a merger agreement which strictly prohibits any solicitation or
indeed discussion of bids or potential bids, and does not therefore provide for
a bona fide fiduciary out. Therefore, while the Board of Cyprus Amax could
---- ----
withdraw its recommendation to the shareholders that they vote in favor of the
Transaction, the Board has by contract prohibited and denied itself access to
the very information it would need to challenge that recommendation and cause
the Board to withdraw that recommenda tion. In other words, Cyprus Amax
directors have contracted away their fiduciary responsibility and obligations to
explore in good faith all information which would shed light upon the value of
the shares of Cyprus Amax and have further breached their duties by failing to
provide the shareholders with this needed and material information.
8
<PAGE>
18. The individual defendants were and are under a continuing duty to
fully inform themselves before taking action, or agreeing to refrain from taking
action, to elicit, promote, consider and evaluate reasonable and bona fide
---- ----
offers for Cyprus Amax, to assure that a "level playing field" exists when more
than one bidder for the Company emerges, and not to favor one bidder over
another, unless it is designed to assure and is reasonably related to achieving
the best transaction for the Cyprus Amax shareholders. The individual
defendants breached their fiduciary duty by, among other matters, failing to
fully inform themselves about available alternatives to the Transaction,
including a transaction with Phelps Dodge, and without fully informing
themselves about the value of Cyprus Amax.
19. If the breaches of fiduciary duty described herein are permitted
to continue, the Cyprus Amax shareholders will forever lose the opportunity to
have the value of their Company arrived at through competitive bidding on a
level playing field and the opportunity to consider any other bidders which may
come forward.
20. By reason of the foregoing acts, practices and course of conduct
of defendants, plaintiff and the other members of the Class have been and will
be damaged because they will not receive their fair proportion of the value of
Cyprus Amax's assets and business, which far exceeds (and could very well be
negotiated to an even higher level) the Transaction consideration, in the unfair
Transaction at issue, have been and will be prevented from making an informed
decision whether to approve the Transaction, and will wrongfully impede
consideration of any other third party offer for greater consideration,
including the Phelps Dodge offer.
9
<PAGE>
21. Unless enjoined by this Court, defendants will continue to breach
their fiduciary duties owed to plaintiff and the Class and will consummate the
Transaction to the irreparable harm of plaintiff and the Class.
22. Plaintiff and the other members of the Class have no adequate
remedy at law.
23. WHEREFORE, plaintiff demands judgment as follows:
a. Declaring this to be a proper class action and naming
plaintiff as Class representative and his attorneys as Class counsel;
b. Ordering defendants to carry out their fiduciary duties to
plaintiff and the other members of the Class, including those of duty of care,
loyalty, full disclosure, and entire fairness;
c. Granting preliminary and permanent injunctive relief against
the consummation of the Transaction as described herein;
d. Ordering the individual defendants to explore alternatives
and to negotiate in good faith with all interested persons, including but not
limited to Phelps Dodge.
e. In the event the Transaction is consummated, rescinding the
Transaction and awarding rescissory damages;
f. Ordering defendants, jointly and severally, to pay to
plaintiff and to other members of the Class all damages suffered and to be
suffered by them as the result of the acts alleged herein;
10
<PAGE>
g. Ordering defendants, jointly and severally, to account to
plaintiff and the Class for all profits realized and to be realized by them as a
result of the actions complained of and, pending such accounting, to hold such
profits in a constructive trust for the benefit of plaintiff and other members
of the Class;
h. Awarding plaintiff the costs and disbursements of the action
including allowances for plaintiff's reasonable attorneys and experts fees; and
i. Granting such other and further relief as may be just and
proper in the premises.
Dated: August 23, 1999 CHIMICLES & TIKELLIS LLP
------------------------------
Pamela S. Tikellis
James C. Strum
One Rodney Square
P.O. Box 1035
Wilmington, Delaware 19899
11
<PAGE>
OF COUNSEL:
WOLF, HALDENSTEIN, ADLER, FREEMAN
& HERZ, LLP
270 Madison Avenue
New York, NY 10016
(212) 545-4600
12
<PAGE>
EXHIBIT 99.9
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
- ------------------------------------------ x
CHARLES MILLER, :
:
Plaintiff, :
:
v. : Civil Action No.:
:
CYPRUS AMAX MINERALS CO., MILTON H. :
WARD, LINDA G. ALVARADO, GEORGE S. :
ANSELL, ALLEN BORN, WILLIAM C. :
BOUSQUETTE, THOMAS V. FALKIE, ANNE :
MAYNARD GRAY, ROCKWELL A. SCHNABEL, :
THEODORE M. SOLSO, JOHN HOYT STOOKEY, :
JAMES A. TODD, JR., BILLIE B. TURNER and :
ASARCO INC., :
:
Defendants. :
:
- ------------------------------------------ x
COMPLAINT
---------
Plaintiff, by and through his attorneys, alleges upon information and
belief except as to himself and his own actions, which he alleges upon
knowledge, as follows:
SUMMARY OF ACTION
-----------------
1. This action arises from breaches of fiduciary duties in
connection with a merger agreement entered into by Cyprus Amax Minerals Co.
("Cyprus Amax") and Asarco Inc. ("Asarco") for grossly inadequate consideration
and in breach of defendants' fiduciary duties.
<PAGE>
Plaintiff alleges that he and other public shareholders of Cyprus Amax common
stock are entitled to enjoin the proposed transaction or, alternatively, to
recover damages in the event that the transaction is consummated. Plaintiff
brings this action on behalf of the public holders of the outstanding common
shares of Cyprus Amax for injunctive and other relief in connection with an
improperly negotiated and structured merger conceived by defendants hereinafter
described. One effect of the negotiation and structure of the transaction is to
deny shareholders important information regarding the value of their shares of
Cyprus Amax.
2. The result of defendants' actions is that the ASARCO and Cyprus
Amax merger provides no premium for the public shareholders in a transaction
which was unfairly negotiated and structured to avoid purposely any superior bid
for Cyprus Amax or the Cyprus Amax - Asarco combined entity.
THE PARTIES
-----------
3. Plaintiff has been, at all times relevant to this action an owner
of CYPRUS AMAX common stock.
4. Defendant Cyprus Amax is a Delaware corporation with its
principal executive offices located at 9100 East Mineral Circle, Englewood, CO
80112. Cyprus Amax is a holding company with subsidiaries which explore for,
extract, process and market coal, copper, iron ore and gold. Cyprus Amax
currently has over 90 million shares of common stock outstanding held by
approximately 37,000 shareholders of record.
2
<PAGE>
5. Defendant Milton H. Ward is Chairman of the Board, President,
Chief Executive Officer and a director of Cyprus Amax. His recent compensation
according to the March 99 proxy exceeds $3 million.
6. The other individual defendants Linda G. Alvarado, George S.
Ansell, Allen Born, William C. Bousquette, Thomas V. Falkie, Anne Maynard Gray,
Rockwell A. Schnabel, Theodore M. Solso, John Hoyt Stookey, James A. Todd, Jr.,
and Billie B. Turner with defendant Ward constitute the entire board of
directors of Cyprus Amax.
7. The individual defendants, as directors of Cyprus Amax owe
fiduciary duties of good faith, loyalty, fair dealing, due care, and full
disclosure to plaintiff and the other members of the class (as defined below).
8. Defendant Asarco is a New Jersey corporation with its principal
place of business at 180 Maiden Lane, New York, New York 10038-4925. Asarco
inter alia mines, smelts, refines and sells copper, silver, lead, zinc and gold
- ----- ----
ore molybdenum. Asarco has knowledge of the facts and circumstances described
below. Therefore, Asarco has knowingly participated in the breaches of
fiduciary duty described herein and is liable as an aider and abettor.
CLASS ACTION ALLEGATIONS
------------------------
9. Plaintiff brings this action pursuant to Rule 23 of the Rules of
this Court, on behalf of themselves and all other shareholders of Cyprus Amax as
of July 15, 1999 (except the defendants herein and any persons, firm, trust,
corporation, or other entity related to or affiliated
3
<PAGE>
with them and their successors in interest), who are or will be threatened with
injury arising from defendants' actions, as is more fully described herein (the
"Class").
10. This action is properly maintainable as a class action for the
following reasons:
a. The Class is so numerous that joinder of all members is
impractica ble. There are approximately 37,000 record shareholders of CYPRUS
AMAX stock and many more beneficial owners who are members of the Class.
b. Members of the Class are scattered throughout the United
States and are so numerous that it is impracticable to bring them all before
this Court.
c. There are questions of law and fact that are common to the
Class and that predominate over questions affecting any individual class member.
The common questions include, inter alia, the following;
----- ----
(1) Whether the transaction as negotiated and structured
denies shareholders information (particularly with respect to the value of their
shares) necessary to make an informed decision whether to sell their shares;
(2) Whether defendants have violated their fiduciary duties
by contracting away their obligations to fully inform themselves regarding the
value of Cyprus Amax;
(3) Whether the individual defendants, as directors of
Cyprus Amax have fulfilled, and are capable of fulfilling, their fiduciary
duties to plaintiff and the other members of the Class, including their duties
of entire fairness, loyalty, due care, and full disclosure;
4
<PAGE>
(4) Whether Asarco has aided and abetted the individual
defendants' breaches of fiduciary duties; and
(5) Whether plaintiff and the other members of the Class
would be irreparably damaged were defendants not enjoined from the conduct
described herein.
d. The claims of plaintiff is typical of the claims of the
other members of the class in that all members of the Class will be damaged by
defendants' actions.
e. Plaintiff is committed to prosecuting this action and has
retained competent counsel experienced in litigation of this nature. Plaintiff
is adequate representatives of the Class.
f. A class system is superior to any other method available for
the fair and efficient adjudication of this controversy since it would be
impractical and undesirable for each of the members of the Class, who has
suffered or will suffer damages, to bring separate actions in various parts of
the country.
g. The prosecution of separate actions by individual members of
the Class would create a risk of inconsistent or varying adjudications with
respect to individual members of the Class which would establish incompatible
standards of conduct for the party opposing the Class.
11. At all relevant times the shares of CYPRUS AMAX were publicly
traded on the New York Stock Exchange.
5
<PAGE>
THE CHALLENGED COURSE OF CONDUCT
--------------------------------
12. On July 15, 1999 Cyprus Amax and Asarco announced an agreement
unanimously approved by the Boards of both companies, for the combination of the
two companies in a merger of equals transaction.
13. Under the terms of the transaction, Cyprus Amax shareholders will
receive 0.765 shares of Asarco Cyprus common stock for each share of Cyprus Amax
common stock they own and Asarco shareholders will receive one (1) share of
Asarco Cyprus common stock for each share of Asarco common stock they own. (the
"Transaction").
14. Although Cyprus Amax and Asarco entered into a merger agreement
on or about July 15, 1999, they waited until August 20/th/ to file their merger
agreement and only then disclosed that the record date for the shareholders to
vote at the September 30/th/ shareholder meeting would be Wednesday, August 25,
1999. While the Company apparently obtained a waiver from the New York Stock
Exchange and disclosed the record date to the New York Stock Exchange earlier,
it did not make its announcement public regarding the record date until Friday,
August 20/th/. Not coincidentally, Cyprus Amax and Asarco also announced on
August 20/th/ that Phelps Dodge Corporation ("Phelps Dodge") had made bids for
both companies or a combined Cyprus Asarco company. The defendants' tactics are
clear: Only those shareholders who own shares of record by August 25/th/ can
vote at the shareholder meeting. As Phelps Dodge observed, since trades on
August 20 will settle after August 25, such record date effectively precludes
any significant trading in the market on an informed basis before the
determination of shareholders eligible to vote. As
6
<PAGE>
the Chairman of Phelps Dodge aptly noted, the various tactics by defendants
amount to "shareholder squeeze play."
15. Given defendants' unilateral announcement on August 20/th/
regarding Phelps Dodge's previous bid, on August 20, 1999, Phelps Dodge went
public with a sweetened offer for both companies. On August 20, Phelps Dodge
offered a three-way merger that would result in $265 million in annual cost
savings, including streamlining copper operations in the Southwest and combining
the administrative functions in the U.S., Chile and Peru, plus lower
depreciation. Phelps Dodge proposing to Cyprus Amax a business combination of
Phelps Dodge and Cyprus Amax, pursuant to which all outstanding common stock of
Cyprus Amax would be exchange for Phelps Dodge common stock in an exchange ratio
of 0.3135 Phelps Dodge common shares for each Cyprus Amax common share. Phelps
Dodge has also proposed a business combination pursuant to which all of the
outstanding common stock of Asarco would be exchange for Phelps Dodge common
stock at an exchange ratio of 0.4098 Phelps Dodge common shares for each Asarco
common share. Based on share prices for the three companies' common shares
before trading was halted on Friday, August 20/th/, the ratios implied a premium
of approximately 30% for Asarco and a premium of approximately 29% for Cyprus
Amax, while preserving the relative economics of the exchange ratio under the
proposed combination of Cyprus Amax and Asarco. Moreover, the proposed
transaction would be tax free to the shareholders. Phelps Dodge also made it
clear to both Cyprus Amax and Asarco that although it preferred a transaction
involving all three companies, they were prepared to enter into a negotiated
business combination with either Asarco
7
<PAGE>
or Cyprus Amax regardless of whether the other company was willing to proceed on
a negotiated basis.
16. The public announcement of the August 20/th/ bid by Phelps Dodge
was precipitated in part by Asarco's and Cyprus' refusal to even meet and
discuss the proposal notwithstanding several overtures by Phelps Dodge and to
reject out of hand any proposal in favor of the no-premium merger proposal
improperly negotiated in July between Cyprus Amax and Asarco.
17. In violation of their fiduciary duties the individual defendants
negotiated a merger agreement which strictly prohibits any solicitation or
indeed discussion of bids or potential bids, and does not therefore provide for
a bona fide fiduciary out. Therefore, while the Board of Cyprus Amax could
---- ----
withdraw its recommendation to the shareholders that they vote in favor of the
Transaction, the Board has by contract prohibited and denied itself access to
the very information it would need to challenge that recommendation and cause
the Board to withdraw that recommendation. In other words, Cyprus Amax
directors have contracted away their fiduciary responsibility and obligations to
explore in good faith all information which would shed light upon the value of
the shares of Cyprus Amax and have further breached their duties by failing to
provide the shareholders with this needed and material information.
18. The individual defendants were and are under a continuing duty to
fully inform themselves before taking action, or agreeing to refrain from taking
action, to elicit, promote, consider and evaluate reasonable and bona fide
---- ----
offers for Cyprus Amax, to assure that a "level
8
<PAGE>
playing field" exists when more than one bidder for the Company emerges, and not
to favor one bidder over another, unless it is designed to assure and is
reasonably related to achieving the best transaction for the Cyprus Amax
shareholders. The individual defendants breached their fiduciary duty by, among
other matters, failing to fully inform themselves about available alternatives
to the Transaction, including a transaction with Phelps Dodge, and without fully
informing themselves about the value of Cyprus Amax.
19. If the breaches of fiduciary duty described herein are permitted
to continue, the Cyprus Amax shareholders will forever lose the opportunity to
have the value of their Company arrived at through competitive bidding on a
level playing field and the opportunity to consider any other bidders which may
come forward.
20. By reason of the foregoing acts, practices and course of conduct
of defendants, plaintiffs and the other members of the Class have been and will
be damaged because they will not receive their fair proportion of the value of
Cyprus Amax's assets and business, which far exceeds (and could very well be
negotiated to an even higher level) the Transaction consideration, in the unfair
Transaction at issue, have been and will be prevented from making an informed
decision whether to approve the Transaction, and will wrongfully impede
consideration of any other third party offer for greater consideration,
including the Phelps Dodge offer.
21. Unless enjoined by this Court, defendants will continue to breach
their fiduciary duties owed to plaintiff and the Class and will consummate the
Transaction to the irreparable harm of plaintiff and the Class.
9
<PAGE>
22. Plaintiff and the other members of the Class have no adequate
remedy at law.
23. WHEREFORE, plaintiff demands judgment as follows:
a. Declaring this to be a proper class action and naming
plaintiff as Class representative and his attorneys as Class counsel;
b. Ordering defendants to carry out their fiduciary duties to
plaintiff and the other members of the Class, including those of duty of care,
loyalty, full disclosure, and entire fairness;
c. Granting preliminary and permanent injunctive relief against
the consummation of the Transaction as described herein;
d. Ordering the individual defendants to explore alternatives
and to negotiate in good faith with all interested persons, including but not
limited to Phelps Dodge.
e. In the event the Transaction is consummated, rescinding the
Transaction and awarding rescissory damages;
f. Ordering defendants, jointly and severally, to pay to
plaintiff and to other members of the Class all damages suffered and to be
suffered by them as the result of the acts alleged herein;
g. Ordering defendants, jointly and severally, to account to
plaintiff and the Class for all profits realized and to be realized by them as a
result of the actions complained of
10
<PAGE>
and, pending such accounting, to hold such profits in a constructive trust for
the benefit of plaintiff and other members of the Class;
h. Awarding plaintiff the costs and disbursements of the action
including allowances for plaintiff's reasonable attorneys and experts fees; and
i. Granting such other and further relief as may be just and
proper in the premises.
Dated: August 23, 1999 CHIMICLES & TIKELLIS LLP
---------------------------
Pamela S. Tikellis
James C. Strum
One Rodney Square
P. 0. Box 1035
Wilmington, Delaware 19899
OF COUNSEL:
Goodkind, Labaton, Rudoff
& Sucharow, LLP
100 Park Avenue, 12th Floor
New York, NY 10017
(212) 907-0700
11
<PAGE>
EXHIBIT 99.10
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
- ------------------------------------------------ x
DANIEL BRUNO, On Behalf Of Himself And All Others :
Similarly Situated, :
:
Plaintiff, :
:
-against- : Civil Action No.:
:
JOHN HOYT STOOKEY, THEODORE M. SOLSO, :
ANNE MAYNARD GRAY, ROCKWELL A. :
SHCHNABEL, BILLIE B. TURNER, MILTON H. :
WARD, WILLIAM C. BOUSQUETTE, LINDA G. :
ALVARADO, THOMAS V. FALKIE, GEORGE S. :
ANSELL and CYPRUS AMAX MINERALS COM :
PANY, :
:
Defendants. :
:
- ------------------------------------------------ x
CLASS ACTION COMPLAINT
----------------------
Plaintiff, by his attorneys, alleges upon information and belief,
except as to paragraph 1 which plaintiff alleges upon knowledge, as follows:
1. Plaintiff Daniel Bruno is a stockholder of defendant Cyprus Amax
Minerals Company ("Cyprus Amax" or the "Company"), and has been a Cyprus Amax
shareholder at all times relevant hereto.
2. Defendant Cyprus Amax is a Delaware corporation with its
principal executive offices located at 9100 East Mineral Circle, Englewood,
Colorado 80112. Cyprus Amax
<PAGE>
produces copper, coal, and molybdenum, and explores for minerals worldwide. As
of August 3, 1999, there were over 90 million shares of Cyprus Amax common stock
outstanding.
3. The individual defendants have constituted the Board of Directors
of Cyprus Amax at all times relevant hereto.
4. In addition to serving as a Cyprus Amax director, individual
defendant Milton H. Ward ("Ward") has been Chairman of the Board, President and
Chief Executive Officer of Cyprus Amax since 1992. Those positions constitute
his principal occupation. In calendar 1998, Ward received a salary of
$1,133,524, a bonus of $975,000 and long-term compensation awards valued in
excess of $1.5 million.
5. The Individual Defendants, as officers and/or directors of Cyprus
Amax, have a fiduciary relationship and responsibility to plaintiff and the
other common public stockholders of Cyprus Amax, and owe to plaintiff and the
other Cyprus Amax stockholders the highest obligations of good faith, loyalty,
fair dealing, due care and candor.
CLASS ACTION ALLEGATIONS
------------------------
6. Plaintiff brings this action on his own behalf and as a class
action, pursuant to Rule 23 of the Rules of the Court of Chancery, on behalf of
all common stockholders of Cyprus Amax or their successors in interest, who are
being and will be harmed by defendants' actions described below (the "Class").
Excluded from the Class are defendants herein and any person, firm, trust,
corporation or other entity related to or affiliated with any of defendants.
7. This action is properly maintainable as a class action because:
2
<PAGE>
a. The Class is so numerous that joinder of all members is
impractica ble. As of August 3, 1999, there were more than 90 million Cyprus
Amax shares outstanding, held by hundreds, if not thousands, of stockholders
located throughout the United States.
b. There are questions of law and fact which are common to the
Class including: whether the Individual Defendants have breached fiduciary
duties to Cyprus Amax's public stockholders and whether plaintiff and the other
Class members would be irreparably damaged if the defendants are not enjoined in
the manner described below:
c. Plaintiff is committed to prosecuting this action and has
retained competent counsel experienced in litigation of this nature. The claims
of plaintiff are typical of the claims of the other members of the Class and
plaintiff has the same interests as the other members of the Class.
Accordingly, plaintiff is an adequate representative of the Class and will
fairly and adequately protect the interests of the Class.
d. The prosecution of separate actions by individual members of
the Class would create the risk of inconsistent or varying adjudications with
respect to individual members of the Class which would establish incompatible
standards of conduct for defendants, or adjudications with respect to individual
members of the Class which would as a practical matter be dispositive of the
interests of the other members not parties to the adjudications or substantially
impair or impede their ability to protect their interests.
3
<PAGE>
e. The defendants have acted, or refused to act, on grounds
generally applicable to, and causing injury to, the Class and, therefore,
preliminary and final injunctive relief on behalf of the Class as a whole is
appropriate.
CLAIM FOR RELIEF
----------------
8. On July 15, 1999, Cyprus Amax and ASARCO Incorporated ("Asarco")
announced an agreement for the combination of the two companies in a merger-of-
equals transaction (the "Merger"). The new company, to be named Asarco Cyprus
Incorporated, would be the largest publicly traded copper company in the world.
Under the terms of the transaction, Cyprus Amax common shareholders would
receive 0.765 shares of Asarco Cyprus common stock for each share of Cyprus Amax
common stock they own and ASARCO shareholders would receive one share of Asarco
Cyprus common stock for each share of ASARCO common stock they own. It was
anticipated that approximately 169 million shares of Asarco Cyprus common stock
will be issued, of which Cyprus Amax shareholders will own 69.2 million shares
or 63.5 percent following the Merger.
9. The Merger agreement provides that Asarco Cyprus would have a 16-
person board with eight members nominated by Cyprus Amax and eight by ASARCO.
Ward would be the co-Chief Executive Officer and Chairman of the combined
entity.
10. The foregoing exchange ratio offers no premium to the pre-
existing market value of the Cyprus Amax stock. Although the Merger agreement
permits the Cyprus Amax Board to terminate the Merger if in the exercise of
their fiduciary duties they determined that another
4
<PAGE>
proposal offered a superior transaction, the Merger agreement expressly
precludes both ASARCO and Cyprus Amax from entering into discussions with any
third party (the "No-Talk Provision").
11. Some time between July 15, 1999 and August 19, 1999, Phelps Dodge
Corporation ("Phelps Dodge") made an unsolicited proposal to acquire both Cyprus
Amax and ASARCO. Phelps Dodge offered .2874 Phelps Dodge share for each Cyprus
Amax share, and .3756 Phelps Dodge share for each ASARCO share.
12. The exchange ratios contemplated by Phelps Dodge's initial offer
represented a premium to the trading price of Cyprus Amax common stock. Based
on Phelps Dodge's closing price of $58-9/16 on August 19, 1999, its bid valued
Cyprus Amax at $16.83 a share -- over $2 per share or approximately 16% more
than the $14.50 closing price of Cyprus Amax common stock on August 19, 1999.
In addition, the proposal would result in a dividend increase for Cyprus Amax
shareholders to 4.1 times the dividend contemplated to be paid by Asarco Cyprus.
Moreover, over the past ten years, Phelps Dodge's total return has been 161% as
compared to negative 26% for Cyprus Amax and negative 20% for ASARCO. A
combination of the three companies would create a larger, more efficient,
financially stronger company with a stronger balance sheet and enhanced earnings
and cash flow.
13. Notwithstanding that the Phelps Dodge offer represented a far
better value for Cyprus Amax shareholders, the Individual Defendants spurned at
least three efforts by Phelps Dodge to discuss its offer and on August 19, 1999
voted to reject the Phelps Dodge offer. Citing
5
<PAGE>
the No-Talk Provision, they refused to discuss the offer with Phelps Dodge. Both
the ASARCO and Cyprus Amax boards reaffirmed their determination to proceed with
the Merger.
14. Phelps Dodge is known in the copper industry as an aggressive
cost cutter willing to terminate personnel in order to enhance revenues.
Accordingly, Ward's job could be in jeopardy if Phelps Dodge were to acquire
Cyprus Amax. Moreover, Phelps Dodge would have no motivation to maintain the
Board structure contemplated by the Merger agreement.
15. ASARCO and Cyprus Amax did not publicly disclose the Phelps Dodge
offer or the text of the Merger agreement until August 20, 1999. On that date,
Cyprus Amax and ASARCO also disclosed that the record date for shareholders to
vote at the September 30 shareholders' meeting to consider the Merger would be
Wednesday, August 25, 1999. Cyprus Amax had apparently sought and obtained a
waiver of the New York Stock Exchange minimum requirement for the time between
the announcement that a record date has been set and the record date itself.
Since it takes three days to clear transactions and only shareholders who own
shares on the record date can vote at a meeting, this late announcement of the
record date limits informed market trading and the ability of shareholders who
prefer the Phelps Dodge offer to purchase additional shares to vote against the
Merger.
16. On August 20, 1999, Phelps Dodge improved its offer to 0.4098
Phelps Dodge share for each ASARCO share and 0.3135 Phelps Dodge share for each
Cyprus Amax share, valuing Cyprus Amax at $1.68 billion or $18.54 per share, a
premium of approximately 29% to the pre-existing market price.
6
<PAGE>
17. Phelps Dodge also indicated that it would be willing to improve
upon its offer for Cyprus Amax dependent on discussions with the Company.
18. Phelps Dodge also announced that it is willing to acquire either
Cyprus Amax or ASARCO individually.
19. On August 22, 1999, Phelps Dodge announced its intention to
pursue a proxy contest against the Merger.
20. In light of the foregoing, the Individual Defendants' fiduciary
obligations require them to:
a. undertake an appropriate evaluation of Cyprus Amax's worth
as a merger/acquisition candidate;
b. take all appropriate steps to enhance Cyprus Amax's value
and attractiveness as a merger/acquisition candidate;
c. take all appropriate steps to obtain the best available
transaction for Cyprus Amax, including but not limited to, engaging in serious
negotiations with Phelps Dodge or its representatives;
d. act independently so that the interests of Cyprus Amax's
public stockholders will be protected;
e. adequately ensure that no conflicts of interest exist
between defendants' own interests and their fiduciary obligation to maximize
stockholder value or, if such
7
<PAGE>
conflicts exist, to ensure that all conflicts be resolved in the best interests
of Cyprus Amax's public stockholders; and
f. insure that they and Cyprus Amax's shareholders have
available all information material to decisions on a major corporate
transaction, including the highest consideration each potential acquiror is
prepared to offer and the terms and conditions of each offeror's proposal.
21. By agreeing to the No-Talk Provision, the Individual Defendants
breached their fiduciary duties. They contracted away their ability to inform
themselves adequately to make judgments in the best interests of all Cyprus Amax
shareholders, and to obtain information to convey to Cyprus Amax shareholders to
enable them to exercise an informed franchise on the Merger.
22. The Individual Defendants have also manipulated the setting of a
record date for the shareholders' meeting on the Merger in order to improve the
prospects for shareholder approval of the Merger.
23. As a result of defendants' breaches of fiduciary duties,
plaintiff and the other members of the Class have been and will be damaged in
that they will not be able to exercise fully informed voting judgment on the
Merger and will be prevented from obtaining the best available transaction.
8
<PAGE>
24. Unless enjoined by this Court, defendants will continue to breach
their fiduciary duties owed to plaintiff and the other members of the Class, all
to the irreparable harm of the Class.
25. Plaintiff and the other members of the Class have no adequate
remedy at law.
WHEREFORE, plaintiff prays for judgment and relief as follows:
A. Ordering that this action may be maintained as a class action and
certifying plaintiff as Class representatives;
B. Declaring that defendants breached their fiduciary and other
duties to plaintiff and the other members of the Class;
C. Entering an order or orders requiring defendants to take the
steps set forth hereinabove and declaring the No-Talk Provision void and non-
enforceable;
D. Awarding compensatory damages against defendants individually and
severally in an amount to be determined;
E. Awarding plaintiff the costs and disbursements of this action,
including fees and experts' fees; and
F. Granting such other and further relief as the Court may deem just
and proper.
9
<PAGE>
ROSENTHAL, MONHAIT, GROSS &
GODDESS, P.A.
By:
Suite 1401, Mellon Bank Center
919 North Market Street
P.O. Box 1070
Wilmington, Delaware 19899
(302) 656-4433
Attorneys for Plaintiff
OF COUNSEL:
BERNSTEIN LITOWITZ BERGER
& GROSSMANN LLP
1285 Avenue of the Americas
New York, New York 10019
(122) 554-1400
Dated: August 24, 1999
10
<PAGE>
EXHIBIT 99.11
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
- ----------------------------------- x
PAUL GREEN, :
:
Plaintiff, :
:
-against- :
: Civil Action No. 17383 NC
JOHN HOYT STOOKY, THEODORE M. :
SOLSO, ANN MAYNARD GRAY, :
ROCKWELL A. SCHNABEL, BILLIE B. :
TURNER, MILTON H. WARD, WILLIAM :
C. BOUSQUETTE, LINDA G. ALVARADO, :
THOMAS V. FALKIE, GEORGE S. :
ANSELL and CYPRUS AMAX MINERALS :
COMPANY, :
:
Defendants. :
- ----------------------------------- x
CLASS ACTION COMPLAINT
----------------------
Plaintiff, by his attorneys, alleges upon information and belief,
except as to paragraph 1 which plaintiff alleges upon knowledge, as follows:
1. Plaintiff Paul Green is a stockholder of defendant Cyprus Amax
Minerals Company ("Cyprus Amax" or the "Company"), and has been a Cyprus Amax
shareholder at all times relevant hereto.
2. Defendant Cyprus Amax is a Delaware corporation with its
principal executive offices located at 9100 East Mineral Circle, Englewood,
Colorado
<PAGE>
80112. Cyprus Amax produces copper, coal, and molybdenum, and explores for
minerals worldwide. As of August 3, 1999, there were over 90 million shares of
Cyprus Amax common stock outstanding.
3. The individual defendants have constituted the Board of Directors
of Cyprus Amax at all times relevant hereto.
4. In addition to serving as a Cyprus Amax director, individual
defendant Milton H. Ward ("Ward") has been Chairman of the Board, President and
Chief Executive officer of Cyprus Amax since 1992. Those positions constitute
his principal occupation. In calendar 1998, Ward received a salary of
$1,133,524, a bonus of $975,000 and long-term compensation awards valued in
excess of $1.5 million.
5. The Individual Defendants, as officers and/or directors of Cyprus
Amax, have a fiduciary relationship and responsibility to plaintiff and the
other common public stockholders of Cyprus Amax, and owe to plaintiff and the
other Cyprus Amax stockholders the highest obligations of good faith, loyalty,
fair dealing, due care and candor.
CLASS ACTION ALLEGATIONS
------------------------
6. Plaintiff brings this action on his own behalf and as a class
action, pursuant to Rule 23 of the Rules of the Court of Chancery, on behalf of
all common stockholders of Cyprus Amax or their successors in interest, who are
being and will be harmed by defendants' actions described below (the "Class").
Excluded from the Class
2
<PAGE>
are defendants herein and any person, firm, trust, corporation, or other entity
related to or affiliated with any of defendants.
7. This action is properly maintainable as a class action because:
a. The Class is so numerous that joinder of all members is
impracticable. As of August 3, 1999, there were more than 90 million Cyprus
Amax shares outstanding, held by hundreds, if not thousands, of stockholders
located throughout the United States.
b. There are questions of law and fact which are common to the
Class including: whether the Individual Defendants have breached fiduciary
duties to Cyprus Amax's public stockholders and whether plaintiff and the other
Class members would be irreparably damaged if the defendants are not enjoined in
the manner described below.
c. Plaintiff is committed to prosecuting this action and has
retained competent counsel experienced in litigation of this nature. The claims
of plaintiff are typical of the claims of the other members of the Class and
plaintiff has the same interests as the other members of the Class. Accordingly,
plaintiff is an adequate representative of the Class and will fairly and
adequately protect the interests of the Class.
d. The prosecution of separate actions by individual members of
the Class would create the risk of inconsistent or varying adjudications with
3
<PAGE>
respect to individual members of the Class which would establish incompatible
standards of conduct for defendants, or adjudications with respect to individual
members of the Class which would as a practical matter be dispositive of the
interests of the other members not parties to the adjudications or substantially
impair or impede their ability to protect their interests.
e. The defendants have acted, or refused to act, on grounds
generally applicable to, and causing injury to, the Class and, therefore,
preliminary and final injunctive relief on behalf of the Class as a whole is
appropriate.
CLAIM FOR RELIEF
----------------
8. On July 15, 1999, Cyprus Amax and ASARCO Incorporated ("Asarco")
announced an agreement for the combination of the two companies in a merger-of-
equals transaction (the "Merger"). The new company, to be named Asarco Cyprus
Incorporated, would be the largest publicly traded copper company in the world.
Under the terms of the transaction, Cyprus Amax common shareholders would
receive 0.765 shares of Asarco Cyprus common stock for each share of Cyprus Amax
common stock they own and ASARCO shareholders would receive one share of Asarco
Cyprus common stock for each share of ASARCO common stock they own. It was
anticipated that approximately 109 million shares of Asarco Cyprus common stock
will be issued, of which Cyprus Amax shareholders will own 69.2 million shares
or 63.5 percent following the Merger.
4
<PAGE>
9. The Merger agreement provides that Asarco Cyprus would have a 16-
person board with eight members nominated by Cyprus Amax and eight by ASARCO.
Ward would be the co-Chief Executive officer and Chairman of the combined
entity.
10. The foregoing exchange ratio offers no premium to the pre-
existing market value of the Cyprus Amax stock. Although the Merger agreement
permits the Cyprus Amax Board to terminate the Merger if in the exercise of
their fiduciary duties they determined that another proposal offered a superior
transaction, the Merger agreement expressly precludes both ASARCO and Cyprus
Amax from entering into discussions with any third party (the "No-Talk
Provision").
11. Some time between July 15, 1999 and August 19, 1999, Phelps Dodge
Corporation ("Phelps Dodge") made an unsolicited proposal to acquire both Cyprus
Amax and ASARCO. Phelps Dodge offered .2874 Phelps Dodge share for each Cyprus
Amax share, and .3756 Phelps Dodge share for each ASARCO share.
12. The exchange ratios contemplated by Phelps Dodge's initial offer
represented a premium to the trading price of Cyprus Amax common stock. Based on
Phelps Dodge's closing price of $58-9/16 on August 19, 1999, its bid valued
Cyprus Amax at $16.83 a share -- over $2 per share or approximately 16% more
than the $14.50 closing price of Cyprus Amax common stock on August 19, 1999. In
addition, the proposal would result in a dividend increase for Cyprus Amax
shareholders to 4.1 times
5
<PAGE>
the dividend contemplated to be paid by Asarco Cyprus. Moreover, over the past
ten years, Phelps Dodge's total return has been 161% as compared to negative 26%
for Cyprus Amax and negative 20% for ASARCO. A combination of the three
companies would create a larger, more efficient, financially stronger company
with a stronger balance sheet and enhanced earnings and cash flow.
13. Notwithstanding that the Phelps Dodge offer represented a far
better value for Cyprus Amax shareholders, the Individual Defendants spurned at
least three efforts by Phelps Dodge to discuss its offer and on August 19, 1999
voted to reject the Phelps Dodge offer. Citing the No-Talk Provision, they
refused to discuss the offer with Phelps Dodge. Both the ASARCO and Cyprus Amax
Boards reaffirmed their determination to proceed with the Merger.
14. Phelps Dodge is known in the copper industry as an aggressive
cost cutter willing to terminate personnel in order to enhance revenues.
Accordingly, Ward's job could be in jeopardy if Phelps Dodge were to acquire
Cyprus Amax. Moreover, Phelps Dodge would have no motivation to maintain the
Board structure contemplated by the Merger agreement.
15. ASARCO and Cyprus Amax did not publicly disclose the Phelps Dodge
offer or the text of the Merger Agreement until August 20, 1999. On that date,
Cyprus Amax and ASARCO also disclosed that the record date for shareholders to
vote at the September 30 shareholders' meeting to consider the Merger would be
Wednesday,
6
<PAGE>
August 25, 1999. Cyprus Amax had apparently sought and obtained a waiver of the
New York Stock Exchange minimum requirement for the time between the announce
ment that a record date has been set and the record date itself. Since it takes
three days to clear transactions and only shareholders who own shares on the
record date can vote at a meeting, this late announcement of the record date
limits informed market trading and the ability of shareholders who prefer the
Phelps Dodge offer to purchase additional shares to vote against the Merger.
16. On August 20, 1999, Phelps Dodge improved its offer to 0.4098
Phelps Dodge share for each ASARCO share and 0.3135 Phelps Dodge share for each
Cyprus Amax share, valuing Cyprus Amax at $1.68 billion or $18.54 per share, a
premium of approximately 29% to the pre-existing market price.
17. Phelps Dodge also indicated that it would be willing to improve
upon its offer for Cyprus Amax dependent on discussions with the Company.
18. Phelps Dodge also announced that it is willing to acquire either
Cyprus Amax or ASARCO individually.
19. On August 22, 1999, Phelps Dodge announced its intention to
pursue a proxy contest against the Merger.
20. In light of the foregoing, the Individual Defendants fiduciary
obligations require them to:
7
<PAGE>
a. undertake an appropriate evaluation of Cyprus Amax's worth
as a merger/acquisition candidate;
b. take all appropriate steps to enhance Cyprus Amax's value
and attractiveness as a merger/acquisition candidate;
c. take all appropriate steps to obtain the best available
transaction for Cyprus Amax, including but not limited to, engaging in serious
negotiations with Phelps Dodge or its representatives;
d. act independently so that the interests of Cyprus Amax's
public stockholders will be protected;
e. adequately ensure that no conflicts of interest exist
between defendants' own interests and their fiduciary obligation to maximize
stockholder value or, if such conflicts exist, to ensure that all conflicts be
resolved in the best interests of Cyprus Amax's public stockholders; and
f. insure that they and Cyprus Amax 's shareholders have
available all information material to decisions on a major corporate
transaction, including the highest consideration each potential acquiror is
prepared to offer and the terms and conditions of each offeror's proposal.
21. By agreeing to the No-Talk Provision, the Individual Defendants
breached their fiduciary duties. They contracted away their ability to inform
themselves adequately to make judgments in the beat interests of all Cyprus Amax
shareholders,
8
<PAGE>
and to obtain information to convey to Cyprus Amax shareholders to enable them
to exercise an informed franchise on the Merger.
22. The Individual Defendants have also manipulated the setting of a
record date for the shareholders' meeting on the Merger in order to improve the
prospects for shareholder approval of the Merger.
23. As a result of defendants' breaches of fiduciary duties,
plaintiff and the other members of the Class have been and will be damaged in
that they will not be able to exercise fully informed voting judgment on the
merger and will be prevented from obtaining the best available transaction.
24. Unless enjoined by this Court, defendants will continue to breach
their fiduciary duties owed to plaintiff and the other members of the Class, all
to the irreparable harm of the Class.
25. Plaintiff and the other members of the Class have no adequate
remedy at law.
WHEREFORE, plaintiff prays for judgment and relief as follows:
A. Ordering that this action may be maintained as a class action and
certifying plaintiff as Class representatives;
B. Declaring that defendants breached their fiduciary and other
duties to plaintiff and the other members of the Class;
9
<PAGE>
C. Entering an order or orders requiring defendants to take the
steps set forth hereinabove and declaring the No-Talk Provision void and non-
enforceable;
D. Awarding compensatory damages against defendants individually and
severally in an amount to be determined;
E. Awarding plaintiff the costs and disbursements of this action,
including fees and experts' fees; and
F. Granting such other and further relief as the Court may deem just
and proper.
10
<PAGE>
ROSENTHAL, MONHAIT, GROSS &
GODDESS, P.A.
By:
---------------------------
Suite 1401, Mellon Bank Center
919 North Market Street
P.O. Box 1070
Wilmington, Delaware 19899
(302) 656-4433
Attorneys for Plaintiff
OF COUNSEL:
ABBEY, GARDY SQUITIERI, LLP
212 East 39th Street
New York, New York 10016
(212) 889-3700
LAW OFFICES OF JEFFREY S. ABRAHAM
60 East 42nd Street, Suite 4700
New York, New York 10165
(212) 692-0555
Dated: August 24, 1999
11
<PAGE>
EXHIBIT 99.12
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
- - - - - - - - - - - - - - - - - - - x
DANIEL LIFSHITZ, :
:
Plaintiff, :
:
-against- : Civil Action No. 17386
:
JOHN HOYT STOOKEY, THEODORE M. :
SOLSO, ANN MAYNARD GRAY, :
ROCKWELL A. SCHNABEL, BILLIE B. :
TURNER, MILTON H. WARD, WILLIAM C. :
BOUSQUETTE, LINDA G. ALVARDO, :
THOMAS V. FALKIE, GEORGE S. ANSELL :
and CYPRUS AMAX MINERALS COMPANY, :
:
Defendants. :
- - - - - - - - - - - - - - - - - - - x
CLASS ACTION COMPLAINT
----------------------
Plaintiff, by his attorneys, alleges upon information and belief,
except as to paragraph 1 which plaintiff alleges upon knowledge, as follows:
1. Plaintiff Daniel Lifshitz is a stockholder of defendant Cyprus
Amax Minerals Company ("Cyprus Amax" or the "Company"), and has been a Cyprus
Amax shareholder at all times relevant hereto.
2. Defendant Cyprus Amax is a Delaware corporation with its
principal executive offices located at 9100 East Mineral Circle, Englewood,
Colorado 80112. Cyprus Amax produces copper, coal, and molybdenum, and explores
for minerals worldwide. As
<PAGE>
of August 3, 1999, there were over 90 million shares of Cyprus Amax common stock
outstanding.
3. The individual defendants have constituted the Board of Directors
of Cyprus Amax at all times relevant hereto.
4. In addition to serving as a Cyprus Amax director, individual
defendant Milton H. Ward ("Ward") has been Chairman of the Board, President and
Chief Executive Officer of Cyprus Amax since 1992. Those positions constitute
his principal occupation. In calendar 1998, Ward received a salary of
$1,133,524, a bonus of $975,000 and long-term compensation awards valued in
excess of $1.5 million.
5. The Individual Defendants, as officers and/or directors of Cyprus
Amax, have a fiduciary relationship and responsibility to plaintiff and the
other common public stockholders of Cyprus Amax, and owe to plaintiff and the
other Cyprus Amax stockholders the highest obligations of good faith, loyalty,
fair dealing, due care and candor.
CLASS ACTION ALLEGATIONS
------------------------
6. Plaintiff brings this action on his own behalf and as a class
action, pursuant to Rule 23 of the Rules of the Court of Chancery, on behalf of
all common stockholders of Cyprus Amax or their successors in interest, who are
being and will be harmed by defendants' actions described below (the "Class").
Excluded from the Class are defendants herein and any person, firm, trust,
corporation, or other entity related to or affiliated with any of defendants.
2
<PAGE>
7. This action is properly maintainable as a class action because:
a. The Class is so numerous that joinder of all members
impracticable. As of August 3, 1999, there were more than 90 million Cyprus
Amax shares outstanding, held by hundreds, if not thousands, of stockholders
located throughout the United States.
b. There are questions of law and fact which are common to the
Class including: whether the Individual Defendants have breached fiduciary
duties to Cyprus Amax's public stockholders and whether plaintiff and the other
Class members would be irreparably damaged if the defendants are not enjoined in
the manner described below.
c. Plaintiff is committed to prosecuting this action and has
retained competent counsel experienced in litigation of this nature. The claims
of plaintiff are typical of the claims of the other members of the Class and the
plaintiff has the same interests as the other members of the Class.
Accordingly, plaintiff is an adequate representative of the Class and will
fairly and adequately protect the interests of the Class.
d. The prosecution of separate actions by individual members of
the Class would create the risk of inconsistent or varying adjudications with
respect to individual members of the Class which would establish incompatible
standards of conduct for defendants, or adjudications with respect to individual
members of the Class which would as a practical matter be dispositive of the
interests of the other members not parties to the adjudications or substantially
impair or impede their ability to protect their interests.
3
<PAGE>
e. The defendants have acted, or refused to act, on grounds
generally applicable to, and causing injury to, the Class and, therefore,
preliminary and final injunctive relief on behalf of the Class as a whole is
appropriate.
CLAIM FOR RELIEF
----------------
8. On July 15, 1999, Cyprus Amax and ASARCO Incorporated ("Asarco")
announced an agreement for the combination of the two companies in a merger-of-
equals transaction (the "Merger"). The new company, to be named Asarco Cyprus
Incorporated, would be the largest publicly traded copper company in the world.
Under the terms of the transaction, Cyprus Amax common shareholders would
receive 0.765 shares of Asarco Cyprus common stock for each share of Cyprus Amax
common stock they own and ASARCO shareholders would receive one share of Asarco
Cyprus common stock for each share of ASARCO common stock they own. It was
anticipated that approximately 109 million shares of Asarco Cyprus common stock
will be issued, of which Cyprus Amax shareholders will own 69.2 million shares
of 63.5 percent following the Merger.
9. The Merger agreement provides that Asarco Cyprus would have a 16-
person board with eight members nominated by Cyprus Amax and eight by ASARCO.
Ward would be the co-Chief Executive Officer and Chairman of the combined
entity.
10. The foregoing exchange ratio offers no premium to the pre-
existing market value of the Cyprus Amax stock. Although the Merger agreement
permits the Cyprus Amax Board to terminate the Merger if in the exercise of
their fiduciary duties they
4
<PAGE>
determined that another proposal offered a superior transaction, the Merger
agreement expressly precludes both ASARCO and Cyprus Amax from entering into
discussions with any third party (the "No-Talk Provision").
11. Some time between July 15, 1999 and August 19, 1999, Phelps Dodge
Corporation ("Phelps Dodge") made an unsolicited proposal to acquire both Cyprus
Amax and ASARCO. Phelps Dodge offered .2874 Phelps Dodge share for each Cyprus
Amax share, and .3756 Phelps Dodge share for each ASARCO share.
12. The exchange ratios contemplated by Phelps Dodge's initial offer
represented a premium to the trading price of Cyprus Amax common stock. Based
on Phelps Dodge's closing price of $58-9/16 on August 19, 1999, its bid valued
Cyprus Amax at $16.83 a share - over $2 per share or approximately 16% more than
the $14.50 closing price of Cyprus Amax common stock on August 19, 1999. In
addition, the proposal would result in a dividend increase for Cyprus Amax
shareholders to 4.1 times the dividend contemplated to be paid by Asarco Cyprus.
Moreover, over the past ten years, Phelps Dodge's total return has been 161% as
compared to negative 26% for Cyprus Amax and negative 20% ASARCO. A combination
of the three companies would create a larger, more efficient, financially
stronger company with a stronger balance sheet and enhanced earnings and cash
flow.
13. Notwithstanding that the Phelps Dodge offer represented a far
better value for Cyprus Amax shareholders, the Individual Defendants spurned at
least three efforts by Phelps Dodge to discuss its offer and on August 19, 1999
voted to reject the Phelps
5
<PAGE>
Dodge offer. Citing the No-Talk Provision, they refused to discuss the offer
with Phelps Dodge. Both the ASARCO and Cyprus Amax Boards reaffirmed their
determination to proceed with the Merger.
14. Phelps Dodge is known in the copper industry as an aggressive
cost cutter willing to terminate personnel in order to enhance revenues.
Accordingly, Ward's job could be in jeopardy if Phelps Dodge were to acquire
Cyprus Amax. Moreover, Phelps Dodge would have no motivation to maintain the
Board structure contemplated by the Merger agreement.
15. ASARCO and Cyprus Amax did not publicly disclose the Phelps Dodge
offer or the text of the Merger agreement until August 20, 1999. On that date,
Cyprus Amax and ASARCO also disclosed that the record date for shareholders to
vote at the September 30 shareholders' meeting to consider the Merger would be
Wednesday, August 25, 1999. Cyprus Amax had apparently sought and obtained a
waiver of the New York Stock Exchange minimum requirement for the time between
the announcement that a record date has been set and the record date itself.
Since it takes three days to clear transactions and only shareholders who own
shares on the record date can vote at a meeting, this late announcement of the
record date limits informed market trading and the ability of shareholders who
prefer the Phelps Dodge offer to purchase additional shares to vote against the
Merger.
6
<PAGE>
16. On August 20, 1999, Phelps Dodge improved its offer to 0.4098
Phelps Dodge share for each ASARCO share and 0.3135 Phelps Dodge share for each
Cyprus Amax share, valuing Cyprus Amax at $1.68 billion or $18.54 per share, a
premium of approximately 29% to the pre-existing market price.
17. Phelps Dodge also indicated that it would be willing to improve
upon its offer for Cyprus Amax dependent on discussions with the Company.
18. Phelps Dodge also announced that it is willing to acquire either
Cyprus Amax or ASARCO individually.
19. On August 22, 1999, Phelps Dodge announced its intention to
pursue a proxy contest against the Merger.
20. In light of the foregoing, the Individual Defendants fiduciary
obligations require them to:
a. undertake an appropriate evaluation of Cyprus Amax's worth
as a merger/acquisition candidate;
b. take all appropriate steps to enhance Cyprus Amax's value
and attractiveness as a merger/acquisition candidate;
c. take all appropriate steps to obtain the best available
transaction for Cyprus Amax, including but not limited to, engaging in serious
negotiations with Phelps Dodge or its representatives;
7
<PAGE>
d. act independently so that the interests of Cyprus Amax's
public stockholders will be protected;
e. adequately ensure that no conflicts of interest exist
between defendants' own interests and their fiduciary obligation to maximize
stockholder value or, if such conflicts exist, to ensure that all conflicts be
resolved in the best interests of Cyprus Amax's public stockholders; and
f. insure that they and Cyprus Amax's shareholders have
available all information material to decisions on a major corporate
transaction, including the highest consideration each potential acquiror is
prepared to offer and the terms and conditions of each offeror's proposal.
21. By agreeing to the No-Talk Provision, the Individual Defendants
breached their fiduciary duties. They contracted away their ability to inform
themselves adequately to make judgments in the best interests of all Cyprus Amax
shareholders, and to obtain information to convey to Cyprus Amax shareholders to
enable them to exercise an informed franchise on the Merger.
22. The Individual Defendants have also manipulated the setting of a
record date for the shareholders' meeting on the Merger in order to improve the
prospects for shareholder approval of the Merger.
23. As a result of defendants' breaches of fiduciary duties,
plaintiff and the other members of the Class have been and will be damaged in
that they will not be able
8
<PAGE>
to exercise fully informed voting judgment on the Merger and will be prevented
from obtaining the best available transaction.
24. Unless enjoined by this Court, defendants will continue to breach
their fiduciary duties owed to plaintiff and the other members of the Class, all
to the irreparable harm of the Class.
25. Plaintiff and the other members of the Class have no adequate
remedy at law.
WHEREFORE, plaintiff prays for judgment and relief as follows:
A. Ordering that this action may be maintained as a class action and
certifying plaintiff as Class representatives;
B. Declaring that defendants breached their fiduciary and other
duties to plaintiff and the other members of the Class;
C. Entering an order or orders requiring defendants to take the
steps set forth hereinabove and declaring the No-Talk Provision void and non-
enforceable;
D. Awarding compensatory damages against defendants individually and
severally in an amount to be determined;
E. Awarding plaintiff the costs and disbursements of this action,
including fees and experts' fees; and
F. Granting such other and further relief as the Court may deem just
and proper.
9
<PAGE>
ROSENTHAL, MONHAIT, GROSS &
GODDESS, P.A.
By:
--------------------------------
Suite 1401, Mellon Bank Center
919 North Market Street
P.O. Box 1070
Wilmington, Delaware 19899
(302) 656-4433
Attorneys for Plaintiff
OF COUNSEL:
BERNSTEIN LIEBHARD & LIFSHITZ, LLP
10 East 40/th/ Street
New York, New York 10016
(212) 779-1414
Dated: August 24, 1999
10
<PAGE>
EXHIBIT 99.13
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
- - - - - - - - - - - - - - - - - - - x
:
ANDREW KLOTZ, :
:
Plaintiff, :
:
v. : Civil Action No. 17385NC
:
MILTON H. WARD; LINDA G. :
ALVARDO; GEORGE S. ANSELL; :
ROCKWELL A. SCHNABEL; WILLIAM :
C. BOUSQUETTE; THOMAS V. FALKIE; :
ANN MAYNARD GRAY; THEODORE M. :
SOLSO; JOHN H. STOOKEY; BILLIE :
B. TURNER; ALLEN BORN; JAMES :
A. TODD, JR.; and CYPRUS AMAX :
MINERALS COMPANY, :
:
Defendants. :
:
- - - - - - - - - - - - - - - - - - - x
COMPLAINT
---------
Plaintiff, Andrew Klotz, by his attorneys, alleges upon information and
belief, except as to paragraph 1 which is alleged upon personal knowledge, as
follows:
THE PARTIES
-----------
1. Plaintiff Andrew Klotz is the owner of shares of the common stock of
Cyprus Amax Minerals Company ("Cyprus" or the "Company") and has been the owner
of such shares continuously since prior to the wrongs complained of herein.
2. Cyprus is a corporation duly existing and organized under the laws of
the State of Delaware, with its principal executive offices located at 9100 East
Mineral Circle, Englewood, Colorado. Cyprus is a diversified mining company
engaged in the exploration for and extraction, processing, and marketing of
<PAGE>
mineral resources.
3. Defendant Milton H. Ward is and at all times relevant hereto has been
President, Chairman of the Board, and Chief Executive Officer of Cyprus.
4. Defendants Linda G. Alvardo, George S. Ansell, Rockwell A. Schnabel,
William C. Bousquette, Thomas V. Falkie, Ann Maynard Gray, Theodore M. Solso,
John H. Stookey, Billie B. Turner, Allen Born, and James A. Todd, Jr. are and at
all times relevant hereto have been directors of Cyprus.
5. The defendants referred to in paragraphs 3 and 4 are collectively
referred to herein as the "Individual Defendants."
6. By reason of the defendants' positions with the Company as officers
and/or directors, they are in a fiduciary relationship with plaintiff and the
other public stockholders of Cyprus, and owe plaintiff and the other members of
the class the highest obligations of good faith, fair dealing, due care,
loyalty, and full and candid disclosure.
CLASS ACTION ALLEGATIONS
------------------------
7. Plaintiff brings this action on his own behalf and as a class action,
pursuant to Rule 23 of the Rules of the Court of Chancery, on behalf of the
public holders of Cyprus common stock (the "Class"). Excluded from the Class are
defendants herein and any person, firm, trust, corporation or other entity
related to or affiliated with any of the defendants.
8. This action is properly maintainable as a class action.
9. The Class is so numerous that joinder of all members is impracticable.
As of August 24, 1999, there were approximately 90.5 million shares of Cyprus
common stock outstanding owned by hundreds, if not thousands of members of the
Class.
10. There are questions of law and fact which are common to the Class and
which predominate over questions affecting any individual Class members,
including the following:
(a) whether defendants have breached their fiduciary and other common
law duties owed
<PAGE>
by them to plaintiff and the other members of the Class; and
(b) whether the Class is entitled to injunctive relief or damages as a
result of the wrongful conduct committed by defendants.
11. Plaintiff is committed to prosecuting this action and has retained
competent counsel experienced in litigation of this nature. Plaintiff's claims
are typical of the claims of the other members of the Class and plaintiff has
the same interests as the other members of the Class. Accordingly, plaintiff is
an adequate representative of the Class and will fairly and adequately protect
the interests of the Class.
12. The prosecution of separate actions by individual members of the Class
would create the risk of inconsistent or varying adjudications with respect to
individual members of the Class which would establish incompatible standards of
conduct for defendants, or adjudications with respect to individual members of
the Class which would as a practical matter be dispositive of the interests of
the other members not parties to the adjudications or substantially impair or
impede their ability to protect their interests.
13. Defendants have acted on grounds generally applicable to the Class
with respect to the matters complained of herein, thereby making appropriate the
relief sought herein with respect to the Class as a whole.
SUBSTANTIVE ALLEGATIONS
-----------------------
14. On July 15, 1999, Cyprus and ASARCO Incorporated ("Asarco") announced
that they had signed a definitive merger agreement (the "Merger Agreement")
under which the companies would combine in a merger-of-equals transaction.
15. The new entity would be named Asarco Cyprus Incorporated ("ACI").
Under the terms of the Merger Agreement, Cyprus shareholders would receive 0.765
shares of ACI common stock for each share of Cyprus stock held. Asarco
shareholders would receive one share of ACI common stock for each share of
Asarco common stock held.
16. ACI's Board of directors would have 16 members, eight from Asarco and
eight members
<PAGE>
from Cyprus. Defendant Ward would serve as co-CEO and Chairman of ACI through
April 2000 and remain Chairman of ACI until his retirement.
17. The exchange ratio for which the Merger Agreement provides offers no
premium to the pre-existing market value of the Cyprus Amax stock. Although the
Merger agreement permits the Cyprus Amax Board to terminate the Merger if in the
exercise of their fiduciary duties they determine that another proposal offers a
superior transaction, the Merger agreement expressly precludes both ASARCO and
Cyprus Amax from entering into discussions with any third party (the "No-Talk
Provision").
18. Shortly after the Merger Agreement was signed, Phelps Dodge
Corporation ("Phelps") contacted Cyprus to discuss an alternative proposal which
would involve the combination of Phelps, Cyprus, and Asarco.
19. Despite three separate requests for discussion, defendants completely
refused to negotiate with Phelps. On August 20, 1999, Cyprus unilaterally
announced Phelps' interest in a three-way combination and its rejection of the
Phelps' offer in favor of its previous agreement with Asarco.
20. Also on August 20, 1999, Cyprus finally announced the terms of its
Merger Agreement with Asarco. The record date to vote on the Merger was set for
August 25, 1999. By setting this record date so close to the rejection of
Phelps' bid and the announced details of the Asarco merger, Cyprus has
effectively precluded any significant trading in the market on an informed basis
before the determination of shareholders eligible to vote at the Company's
meeting.
21. Frustrated with Cyprus' actions, Phelps decided to publicly announce a
"sweetened" proposal for an alternative combination. Phelps announced that it
was willing to acquire Cyprus for 0.3135 shares of Phelps' common stock,
representing a premium of 29% for Cyprus shareholders. The Merger Agreement with
Asarco does not give Cyprus shareholders any premium. In addition, Phelps
disclosed that it would continue to distribute its $2.00 per share dividend, a
dividend 4.1 times greater than the dividend proposed to Cyprus shareholders
under the terms of the Asarco Merger Agreement. Phelps stated that it would
prefer a three-way
<PAGE>
combination, but would be willing to purchase Cyprus independently.
22. The defendants were and are under a duty:
(a) to act in the interests of Class members;
(b) to maximize shareholder value;
(c) to undertake an appropriate evaluation of the Company's net worth
as a merger/acquisition candidate;
(d) to act in accordance with their fundamental duties of due care and
loyalty; and
(e) to insure that they and Cyprus Amax's shareholders have available
all information material to decisions on a major corporate transaction,
including the highest consideration each potential acquiror is prepared to offer
and the terms and conditions of each offeror's proposal.
23. By the acts, transactions and courses of conduct alleged herein,
defendants breached their fiduciary duties to plaintiff and the other members of
the Class, and are attempting unfairly to deprive plaintiff and other members of
the Class of the fair value of their investment in Cyprus.
24. The Individual Defendants have refused to enter into any negotiations
with Phelps in an attempt to entrench themselves in their positions with the
Company and to protect their substantial salaries and prestigious positions.
Defendants' placement of their own interests ahead of the interests of Cyprus
shareholders is in direct violation of their fiduciary duties.
25. By agreeing to the No-Talk Provision, the Individual Defendants
breached their fiduciary duties. They contracted away their ability to inform
themselves adequately to make judgments in the best interests of all Cyprus Amax
shareholders, and to obtain information to convey to Cyprus Amax shareholders to
enable them to exercise an informed franchise on the Merger.
26. The Individual Defendants have also manipulated the setting of a
record date for the shareholders' meeting on the Merger in order to improve the
<PAGE>
prospects for shareholder approval of the Merger.
27. As a result of the actions of defendants, plaintiff and the other
members of the Class will be prevented from obtaining appropriate consideration
for their shares of Cyprus common stock.
28. Unless enjoined by this Court, the defendants will continue to breach
their fiduciary duties and prevent the Class from receiving its fair share of
Cyprus' valuable assets and businesses.
29. Plaintiff and the Class have no adequate remedy at law.
WHEREFORE, plaintiff demands judgment and preliminary and permanent relief,
including injunctive relief, in its favor and in favor of the Class and against
defendants as follows:
1. Declaring that this action is properly maintainable as a class action;
2. Directing the Individual Defendants to adequately ensure that no
conflicts of interest exist between the Individual Defendants and their
fiduciary obligation to maximize shareholder value or, if such conflicts exist,
to ensure that all conflicts are resolved in the best interests of Cyprus'
public stockholders;
3. Entering an order or orders requiring defendants to take the steps set
forth hereinabove and declaring the No-Talk Provision void and non-enforceable;
4. Enjoining defendants from consummating the merger with Asarco, or a
business combination with any other third party, unless and until the Company
adopts and implements a procedure or process, such as an auction, to obtain the
highest possible price for the Company;
5. Awarding plaintiff the costs and disbursements of this action,
including reasonable attorneys' and experts' fees; and
6. Granting such other and further relief as this Court may deem just and
proper.
ROSENTHAL, MONHAIT, GROSS
& GODDESS, P.A.
By:
-------------------------------------
Suite 1401, Mellon Bank Center
P.O. Box 1070
Wilmington, DE 19899
(302) 656-4433
Attorneys for Plaintiff
OF COUNSEL:
SCHIFFRIN & BARROWAY, LLP
Marc A. Topaz
Gregory M. Castaldo
Three Bala Plaza East
Suite 400
Bala Cynwyd, PA 19004
(610) 667-7706
August 24, 1999
<PAGE>
EXHIBIT 99.14
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
- ------------------------------------- x
MAX GRILL, :
: Civil Action No.
Plaintiff, : 17396NC
:
-against- :
:
JOHN HOYT STOOKEY, THEODORE M. :
SOLSO, ANN MAYNARD GRAY, :
ROCKWELL A. SCHNABEL, BILLIE B. :
TURNER, MILTON H. WARD, WILLIAM C. :
BOUSQUETTE, LINDA G. ALVARDO, :
THOMAS V. FALKIE, GEORGE S. ANSELL :
and CYPRUS AMAX MINERALS COMPANY, :
:
Defendants. :
- ------------------------------------- x
CLASS ACTION COMPLAINT
----------------------
Plaintiff, by his attorneys, alleges upon information and belief,
except as to paragraph 1 which plaintiff alleges upon knowledge, as follows:
1. Plaintiff Max Grill is a stockholder of defendant Cyprus Amax
Minerals Company ("Cyprus Amax" or the "Company"), and has been a Cyprus Amax
shareholder at all times relevant hereto.
2. Defendant Cyprus Amax is a Delaware corporation with its
principal executive offices located at 9100 East Mineral Circle, Englewood,
Colorado 80112. Cyprus
<PAGE>
Amax produces copper, coal, and molybdenum, and explores
for minerals worldwide. As of August 3, 1999, there were over 90 million shares
of Cyprus Amax common stock outstanding.
3. The individual defendants have constituted the Board of Directors
of Cyprus Amax at all times relevant hereto.
4. In addition to serving as a Cyprus Amax director, individual
defendant Milton H. Ward ("Ward") has been Chairman of the Board, President and
Chief Executive Officer of Cyprus Amax since 1992. Those positions constitute
his principal occupation. In calendar 1998, Ward received a salary of
$1,133,524, a bonus of $975,000 and long-term compensation awards valued in
excess of $1.5 million.
5. The Individual Defendants, as officers and/or directors of Cyprus
Amax, have a fiduciary relationship and responsibility to plaintiff and the
other common public stockholders of Cyprus Amax, and owe to plaintiff and the
other Cyprus Amax stockholders the highest obligations of good faith, loyalty,
fair dealing, due care and candor.
CLASS ACTION ALLEGATIONS
------------------------
6. Plaintiff brings this action on his own behalf and as a class
action, pursuant to Rule 23 of the Rules of the Court of Chancery, on behalf of
all common stockholders of Cyprus Amax or their successors in interest, who are
being and will be harmed by defendants' actions described below (the "Class").
Excluded from the Class are defendants herein and any person, firm, trust,
corporation, or other entity related to or affiliated with any of defendants.
7. This action is properly maintainable as a class action because:
2
<PAGE>
a. The Class is so numerous that joinder of all members is
impractica ble. As of August 3, 1999, there were more than 90 million Cyprus
Amax shares outstanding, held by hundreds, if not thousands, of stockholders
located throughout the United States.
b. There are questions of law and fact which are common to the
Class including: whether the Individual Defendants have breached fiduciary
duties to Cyprus Amax's public stockholders and whether plaintiff and the other
Class members would be irreparably damaged if the defendants are not enjoined
in the manner described below.
c. Plaintiff is committed to prosecuting this action and has
retained competent counsel experienced in litigation of this nature. The claims
of plaintiff are typical of the claims of the other members of the Class and
plaintiff has the same interests as the other members of the Class.
Accordingly, plaintiff is an adequate representative of the Class and will
fairly and adequately protect the interests of the Class.
d. The prosecution of separate actions by individual members of
the Class would create the risk of inconsistent or varying adjudications with
respect to individual members of the Class which would establish incompatible
standards of conduct for defendants, or adjudications with respect to
individual members of the Class which would as a practical matter be dispositive
of the interests of the other members not parties to the adjudications or
substantially impair or impede their ability to protect their interests.
3
<PAGE>
e. The defendants have acted, or refused to act, on grounds
generally applicable to, and causing injury to the Class and, therefore,
preliminary and final injunctive relief on behalf of the Class as a whole is
appropriate.
CLAIM FOR RELIEF
----------------
8. On July 15, 1999, Cyprus Amax and ASARCO Incorporated ("Asarco")
announced an agreement for the combination of the two companies in a merger-of-
equals transaction (the "Merger"). The new company, to be named Asarco Cyprus
Incorporated, would be the largest publicly traded copper company in the world.
Under the terms of the transaction, Cyprus Amax common shareholders would
receive 0.765 shares of Asarco Cyprus common stock for each share of Cyprus Amax
common stock they own and ASARCO shareholders would receive one share of Asarco
Cyprus common stock for each share of ASARCO common stock they own. It was
anticipated that approximately 109 million shares of Asarco Cyprus common stock
will be issued, of which Cyprus Amax shareholders will own 69.2 million shares
or 63.5 percent following the Merger.
9. The Merger agreement provides that Asarco Cyprus would have a 16-
person board with eight members nominated by Cyprus Amax and eight by ASARCO.
Ward would be the co-Chief Executive Officer and Chairman of the combined
entity.
10. The foregoing exchange ratio offers no premium to the pre-
existing market value of the Cyprus Amax stock. Although the Merger agreement
permits the Cyprus Amax Board to terminate the Merger if in the exercise of
their fiduciary duties they determined that
4
<PAGE>
another proposal offered a superior transaction, the Merger agreement expressly
precludes both ASARCO and Cyprus Amax from entering into discussions with any
third party (the "No-Talk Provision").
11. Some time between July 15, 1999 and August 19, 1999, Phelps Dodge
Corporation ("Phelps Dodge") made an unsolicited proposal to acquire both Cyprus
Amax and ASARCO. Phelps Dodge offered .2874 Phelps Dodge share for each Cyprus
Amax share, and .3756 Phelps Dodge share for each ASARCO share.
12. The exchange ratios contemplated by Phelps Dodge's initial offer
represented a premium to the trading price of Cyprus Amax common stock. Based
on Phelps Dodge's closing price of $58-9/16 on August 19, 1999, its bid valued
Cyprus Amax at $16.83 a share -- over $2 per share or approximately 16% more
than the $14.50 closing price of Cyprus Amax common stock on August 19, 1999.
In addition, the proposal would result in a dividend increase for Cyprus Amax
shareholders to 4.1 times the dividend contemplated to be paid by Asarco Cyprus.
Moreover, over the past ten years, Phelps Dodge's total return has been 161% as
compared to negative 26% for Cyprus Amax and negative 20% for ASARCO. A
combination of the three companies would create a larger, more efficient,
financially stronger company with a stronger balance sheet and enhanced earnings
and cash flow.
13. Notwithstanding that the Phelps Dodges offer represented a far
better value for Cyprus Amax shareholders, the Individual Defendants spurned at
least three efforts by Phelps Dodge to discuss its offer and on August 19, 1999
voted to reject the the Phelps Dodge
5
<PAGE>
offer. Citing the No-Talk Provision, they refused to discuss the offer with
Phelps Dodge. Both the ASARCO and Cyprus Amax Boards reaffirmed their
determination to proceed with the Merger.
14. Phelps Dodge is known in the copper industry as an aggressive
cost cutter willing to terminate personnel in order to enhance revenues.
Accordingly, Ward's job could be in jeopardy if Phelps Dodge were to acquire
Cyprus Amax. Moreover, Phelps Dodge would have no motivation to maintain the
Board structure contemplated by the Merger agreement.
15. ASARCO and Cyprus Amax did not publicly disclose the Phelps Dodge
offer or the text of the Merger agreement until August 20, 1999. On that date,
Cyprus Amax and ASARCO also disclose that the record date for shareholders to
vote at the September 30 shareholders' meeting to consider the Merger would be
Wednesday, August 25, 1999. Cyprus Amax had apparently sought and obtained a
waiver of the New York Stock Exchange minimum requirement for the time between
the announcement that a record date has been set and the record date itself.
Since it takes three days to clear transactions and only shareholders who own
shares on the record date can vote at a meeting, this late announcement of the
record date limits informed market trading and the ability of shareholders who
prefer the Phelps Dodge offer to purchase additional shares to vote against the
Merger.
16. On August 20, 1999, Phelps Dodge improved its offer to 0.4098
Phelps Dodge share for each ASARCO share and 0.3135 Phelps Dodge share for each
Cyprus Amax
6
<PAGE>
share, valuing Cyprus Amax at $1.68 billion or $18.54 per share, a premium of
approximately 29% to the pre-existing market price.
17. Phelps Dodge also indicated that it would be willing to improve
upon its offer for Cyprus Amax dependent on discussions with the Company.
18. Phelps Dodge also announced that it is willing to acquire either
Cyprus Amax or ASARCO individually.
19. On August 22, 1999, Phelps Dodge announced its intention to
pursue a proxy contest against the Merger.
20. In light of the foregoing, the Individual Defendants fiduciary
obligations require them to:
a. undertake an appropriate evaluation of Cyprus Amax's worth
as a merger/acquisition candidate;
b. take all appropriate steps to enhance Cyprus Amax's value
and attractiveness as a merger/acquisition candidate;
c. take all appropriate steps to obtain the best available
transaction for Cyprus Amax, including but not limited to, engaging in serious
negotiations with Phelps Dodge or its representatives;
d. act independently so that the interests of Cyprus Amax's
public stockholders will be protected;
7
<PAGE>
e. adequately ensure that no conflicts of interest exist
between defendants, own interests and their fiduciary obligation to maximize
stockholder value or, if such conflicts exist, to ensure that all conflicts be
resolved in the best interests of Cyprus Amax's public stockholders; and
f. insure that they and Cyprus Amax's shareholders have
available all information material to decisions on a major corporate
transaction, including the highest consideration each potential acquiror is
prepared to offer and the terms and conditions of each offeror's proposal.
21. By agreeing to the No-Talk Provision, the Individual Defendants
breached their fiduciary duties. They contracted away their ability to inform
themselves adequately to make judgments in the best interests of all Cyprus Amax
shareholders, and to obtain information to convey to Cyprus Amax shareholders to
enable them to exercise an informed franchise on the Merger.
22. The Individual Defendants have also manipulated the setting of a
record date for the shareholders' meeting on the Merger in order to improve the
prospects for share holder approval of the Merger.
23. As a result of defendants' breaches of fiduciary duties,
plaintiff and the other members of the Class have been and will be damaged in
that they will not be able to exercise fully informed voting judgment on the
Merger and will be prevented from obtaining the best available transaction.
8
<PAGE>
24. Unless enjoined by this Court, defendants will continue to breach
their fiduciary duties owed to plaintiff and the other members of the Class, all
to the irreparable harm to the Class.
25. Plaintiff and the other members of the Class have no adequate
remedy at law.
WHEREFORE, plaintiff prays for judgment and relief as follows:
A. Ordering that this action may be maintained as a class action and
certify ing plaintiff as Class representatives;
B. Declaring that defendants breached their fiduciary and other
duties to plaintiff and the other members of the Class;
C. Entering an order or orders requiring defendants to take the
steps set forth hereinabove and declaring the No-Talk Provision void and non-
enforceable;
D. Awarding compensatory damages against defendants individually and
severally in an amount to be determined;
E. Awarding plaintiff the costs and disbursements of this action,
including fees and experts' fees; and
F. Granting such other and further relief as the Court may deem just
and proper.
9
<PAGE>
ROSENTHAL, MONHAIT, GROSS &
GODDESS, P.A.
By:_____________________________________________
Suite 1401, Mellon Bank Center
919 North Market Street
P.O. Box 1070
Wilmington, Delaware 19899
(302) 656-4433
Attorneys for Plaintiff
OF COUNSEL:
STULL STULL & BRODY
6 East 45th Street
New York, NY 10017
(212) 687-7230
Dated: August 26, 1999
10
<PAGE>
EXHIBIT 99.15
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
PHELPS DODGE CORPORATION, )
a New York corporation and )
CAV CORPORATION, a Delaware corporation, )
)
Plaintiff,
)
v. ) C.A. No. 17398-NC
)
CYPRUS AMAX MINERALS )
COMPANY, a Delaware corporation, ) COMPLAINT FOR DECLARATORY
Milton H. Ward, Linda G. Alvarado, ) AND INJUNCTIVE RELIEF
George S. Ansell, Rockwell A. Schnabel, )
Thomas V. Falkie, Ann Maynard Gray, )
Theodore M. Solso, John H. Stookey, )
Billie B. Turner and )
ASARCO INCORPORATED, a )
New Jersey corporation, )
Defendants. )
Plaintiffs Phelps Dodge Corporation and CAV Corporation (collectively,
"Phelps Dodge"), by and through their undersigned attorneys, upon knowledge as
to themselves and their own acts and upon information and belief as to all other
matters, allege as follows:
NATURE OF THE ACTION
--------------------
1. On July 15, 1999, ASARCO Incorporated ("ASARCO") and Cyprus Amax
Minerals Company ("Cyprus Amax") announced a non-premium proposed merger (the
"ASARCO Cyprus Merger"). Their merger agreement (the "Merger Agreement") --
which was not publicly disclosed until August 20, more than a month after the
announcement -- is illegal. It purports to prohibit directors of a Delaware
corporation from receiving, gathering, providing or
<PAGE>
exchanging information concerning any merger or acquisition proposal by Phelps
---
Dodge (or any other interested party) until the stockholders of both companies
vote on the ASARCO Cyprus Merger. It cannot be terminated to pursue a clearly
superior transaction, such as the three-way combination proposed by Phelps
Dodge. It imposes draconian financial penalties -- in excess of 6% of the market
capitalization of ASARCO -- if the deal is not consummated according to
management's plan. In short, this Merger Agreement is dead on arrival, a fact
that likely explains why the companies secreted it so long.
2. The Merger Agreement's "No Solicitation" provisions -- in
reality, "no-see, no-hear, no-talk" provisions -- are particularly outrageous.
The directors of Cyprus Amax and ASARCO have contracted away their duty of care;
they are not permitted even to learn about, let alone evaluate meaningfully, any
alternative proposal -- no matter how compelling, financially rewarding and
industrially sound. And, while the Merger Agreement makes the gracious
concession of supposedly permitting the directors to change or withdraw their
recom mendation of the ASARCO Cyprus Merger, it renders that right meaningless.
A director cannot make an informed decision about the merits of a proposed
------
transaction -- or, equally important, the relative merits of two strategic
alternatives -- without the ability to communicate freely with interested
parties. This Court has never sanctioned what this Merger Agreement purports to
do: require directors to keep their eyes wide shut.
-------
3. Apparently not content to hide behind the Merger Agreement's
lock-up provisions, ASARCO and Cyprus Amax have engaged in a persistent pattern
of conduct that reeks of entrenchment and undue defensiveness. Among other
things, they have:
2
<PAGE>
. attempted to rig the proxy process -- Blasius Indus., Inc. v. Atlas
------------------------------
Corp., 564 A.2d 651 (Del. Ch. 1989), be damned -- by setting meeting and
-----
record dates designed to favor unfairly management's preferred transaction;
. opposed Phelps Dodge's lawful requests for stockholder list
information to allow Phelps Dodge to communicate directly -- and on a level
playing field -- with the companies' owners;
. granted senior management compensation and benefits packages that not
only lavishly "reward" entrenchment, but unfairly shift value from
stockholders to management;
. included in the Merger Agreement provisions that virtually guarantee
the jobs of senior management through 2002; and
. stood -- and hid -- behind the Merger Agreement's unlawful
restrictions, refus ing to meet, discuss or exchange information with
Phelps Dodge concerning its proposal.
This is not the conduct of responsible boards of directors.
4. Cyprus Amax's directors have abdicated their responsibilities.
Their actions to date should be enjoined, and they should be required to act in
accordance with law going forward.
THE PARTIES
-----------
5. Plaintiff Phelps Dodge is a New York corporation with its
principal executive offices in Phoenix, Arizona. Phelps Dodge is one of the
world's leading producers of copper and has achieved its premier status through
safe, efficient and environmentally sound
3
<PAGE>
production of low-cost, high-quality metals and minerals. Phelps Dodge
beneficially owns common stock of both ASARCO and Cyprus Amax.
6. Plaintiff CAV Corporation is a Delaware corporation directly
owned by Phelps Dodge. CAV Corporation owns 100 shares of common stock of
Cyprus Amax.
7. Defendant Cyprus Amax is a Delaware corporation with its
principal place of business in Englewood, Colorado. Cyprus Amax is a
diversified mining company engaged in the exploration for and extraction,
processing and marketing of mineral resources, including copper, molybdenum,
coal and gold.
8. Defendant Milton H. Ward ("Ward") has been Chairman, Chief
Executive Officer and President of Defendant Cyprus Amax since 1992. He is a
director of Cyprus Amax and owes fiduciary duties to Cyprus Amax and its
shareholders.
9. Defendants Linda G. Alvarado, George S. Ansell, Rockwell A.
Schnabel, Thomas V. Falkie, Ann Maynard Gray, Theodore M. Solso, John H. Stookey
and Billie B. Turner (the "Director Defendants") are current directors of Cyprus
Amax and all owe fiduciary duties to Cyprus Amex and its shareholders.
10. Defendant ASARCO is a New Jersey corporation with its principal
place of business in New York, New York. ASARCO is a leading producer of
copper, specialty chemicals and aggregates, and is registered to do business in
Delaware. The Company's copper business includes integrated mining, smelting
and refining operations in North America and Peru.
4
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11. Phelps Dodge has commenced a parallel action alleging, inter
-----
alia, breaches of fiduciary duty against ASARCO, its Chairman and Chief
- ----
Executive Officer, Francis R. McAllister ("McAllister"), and its directors in
the Superior Court of the State of New Jersey.
FACTUAL BACKGROUND
------------------
I. The Proposed Merger of ASARCO and Cyprus Amax
---------------------------------------------
12. On July 15, 1999, ASARCO and Cyprus Amax announced a so-called
"merger of equals" under which ASARCO shareholders are to receive one share of
stock in the merged company and Cyprus Amax shareholders are to receive 0.765
shares per share of Cyprus Amax stock they currently hold. The proposed new
company, ASARCO Cyprus Incorporated ("ASARCO Cyprus"), would have its corporate
headquarters in New York City and its opera tions headquarters in Tempe,
Arizona. Cyprus Amax shareholders would receive no premium by way of the
transaction,
13. ASARCO Cyprus would have a sixteen person board of directors with
eight members nominated by ASARCO and eight by Cyprus Amax. Ward, Cyprus Amax's
Chairman, President and Chief Executive Officer, and McAllister, ASARCO's
Chairman and Chief Executive Officer, would serve as Co-Chief Executive Officers
and directors of ASARCO Cyprus.
14. The market reaction to the proposed no-premium merger was hardly
inspired, pushing both companies' stock prices down. On July 14, 1999, the
common stock of Cyprus Amax and ASARCO was trading at highs of 14-1/2 and 19-
1/2, respectively. On July 19, 1999, the common stock of Cyprus Amex and ASARCO
was trading at highs of 14 and 19-1/16, respectively. Although the ASARCO
Cyprus Merger initially included projected cash
5
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synergies of $100 million per year, plus reduced depreciation of $50 million
annually due to the write-down of certain assets (this estimate was later
increased to $200 million), the market has not recognized any incremental value
in the current share prices of either company. The proposed merger has also been
criticized for its lack of a plan to integrate operations, and its lack of asset
rationalization.
15. The details of the Merger Agreement were not finally disclosed to
the public until August 20, 1999, over a month after the merger was announced
and only after ASARCO and Cyprus Amax publicized that they were rejecting a
three-way merger proposed by Phelps Dodge. By hiding the self-serving
restrictive provisions of their Merger Agreement from public view, the directors
of ASARCO and Cyprus Amax have attempted to shield their true objective of
entrenching their positions even at the expense of a better proposal for their
shareholders.
II. The CEOS of ASARCO and Cyprus Amex Refuse to Talk with Phelps Dodge
-------------------------------------------------------------------
16. The time-way merger proposal offered by Phelps Dodge was made on
August 10, 1999, when Douglas Yearley, CEO of Phelps Dodge ("Yearley"),
telephoned Cyprus Amax's Ward and ASARCO's McAllister, who were meeting together
in New York.
17. This proposal was immediately -- and summarily -- rejected. At
approximately 6:45 that evening, a few hours after the proposal was made,
McAllister and Ward forwarded a short letter to Yearley which stated simply that
pursuant to the terms of the Merger Agreement, Ward and McAllister felt they
"were not at liberty to have a discussion of the nature you were suggesting
today." Exhibit 1. A copy of the Merger Agreement was not provided to
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<PAGE>
Phelps Dodge, and thus it was unclear at that stage why the CEOs of ASARCO and
Cyprus Amax would not even entertain discussions with Phelps Dodge.
18. On August 11, 1999, Yearley and Phelps Dodge President, J. Steven
Whisler, again requested a meeting with Cyprus Amax and ASARCO, in a letter to
Ward and McAllister laying out the basic terms of the proposed merger. Exhibit
2. The letter explained "that a three-way combination . . . would create
superior shareholder value for the shareholders of ASARCO and Cyprus Amax."
Under the proposed merger, "all of the outstanding common stock of both ASARCO
and Cyprus Amax [would] be exchanged for Phelps Dodge common stock" and "[t]he
transaction would be tax free" to ASARCO and Cyprus Amax shareholders.
19. Specifically, the August 11 letter stated that Phelps Dodge was
prepared to offer shareholders of ASARCO and Cyprus Amax an exchange ratio of
0.3756 Phelps Dodge common shares for each ASARCO common share, and 0.2874
Phelps Dodge common shams for each Cyprus Amax common share. These exchange
ratios represented a premium of approxi mately 25%, based on the then-market
prices for ASARCO and Cyprus Amax shares. Because the benefits to the
shareholders of ASARCO and Cyprus Amax of a three-way merger with Phelps Dodge
are significantly greater than the currently proposed ASARCO Cyprus Merger,
Phelps Dodge once again urged McAllister and Ward to consider the proposal. The
CEOs of ASARCO and Cyprus Amax did not wait long, however, before refusing to
consider the proposed three-way merger.
20. On the morning of August 12,1999, Yearley received a telephone
call frorn McAllister and Ward again refusing to discuss Phelps Dodge's
proposal. Once again, the
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CEOs of ASARCO and Cyprus Amax did not explain what prevented them from even
talking to Phelps Dodge.
21. Ward and McAllister's stubborn refusals to communicate with
Phelps Dodge demonstrated that there would be no serious consideration of a
three-way merger of Phelps Dodge, Cyprus Amax and ASARCO. Their conduct
strongly suggests their true motive is to entrench and perpetuate their current
positions and lucrative compensation packages through the creation of ASARCO
Cyprus, while abandoning their duties to act in the best interests of their
companies and shareholders by exploring a merger with Phelps Dodge. In short,
the CEOs of ASARCO and Cyprus Amax are depriving the stockholders of their
companies of the opportunity to consider a premium proposal from which the
shareholders stand to benefit significantly.
III. The Superiority of the Phelps Dodge Proposal
--------------------------------------------
22. An analysis of the three-way merger proposed by Phelps Dodge
demon strates compelling benefits to all three companies. These
include:
(a) a significant premium, of approximately 30% as of the August
20, 1999 proposal date, and a quadrupling of dividends to
sharehold ers;
(b) the increased ability of the combined company to integrate
south west U.S. mining operations, administrative functions
in Chile and Peru and worldwide exploration and development
activities;
8
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(c) the increased financial strength of the combined company and
its ability to create a world-class portfolio of cost-
competitive mining assets;
(d) a formidable management team, at both the operating and corpo
rate levels, with solid credibility in the marketplace;
(e) the capacity to eliminate substantial overhead, exploration,
pur chasing and other expenses through consolidation;
(f) tremendous operating leverage, together with sufficient
diversity in other businesses to mitigate cyclical downturns;
(g) the ability of the combined company to reduce capital expendi
tures;
(h) a strong liquid balance sheet, with excellent access to
capital; and
(i) the combination of all of these factors, creating greater
shareholder value on an ongoing basis for the shareholders of
all three companies.
23. In addition, the three-way transaction proposed by Phelps Dodge
would bring significant benefits to shareholders of all three corporations.
Specifically, a three-way merger would lead to cost savings well in excess of
the amounts that could be achieved through the pending ASARCO Cyprus Merger.
Phelps Dodge estimates that the annual cash cost savings would be at least $200
million, with additional non-cash savings of approximately $65 million per year
from lower depreciation charges.
9
<PAGE>
24. Over the past few years, Phelps Dodge stock has significantly
outper formed the stock of both ASARCO and Cyprus Amax. Furthermore, Phelps
Dodge stock has yielded a total return of 161% over the past ten years, compared
to total returns of negative 20% for ASARCO stock and negative 26% for Cyprus
Amax stock.
25. Moreover, the benefits of the Phelps Dodge proposal remain
superior to the terms of the ASARCO Cyprus Merger regardless of whether both or
only one of ASARCO or Cyprus Amax accept the proposal. For shareholders of
Cyprus Amax, a significant premium is still better than the no-premium ASARCO
Cyprus Amax alternative. The consummation of the ASARCO Cyprus Merger, however,
would prelude this possibility.
26. The metals and mining industry is undergoing a phase of rapid
consolida tion. In view of this dynamic environment and the numerous compelling
benefits to ASARCO, Cyprus Amax and Phelps Dodge, a summary rejection of the
Phelps Dodge proposal is as incomprehensible as it is unjustifiable.
IV. The Boards of Directors' Public Rejection of the Phelps Dodge Proposal
----------------------------------------------------------------------
27. In the face of the adamant refusal by the CEOs of both ASARCO and
Cyprus Amax to give any consideration to Phelps Dodge's proposal, Phelps Dodge
sent letters on August 12, 1999 to the boards of directors of both companies,
outlining the proposed three-way transaction and the ensuing benefits to all
three companies and their shareholders. Exhibit 3. In these letters, Phelps
Dodge also indicated that its proposal with respect to Cyprus Amax was not
contingent on ASARCO's acceptance of the proposal and vice versa.
28. On August 20,1999, Cyprus Amax and ASARCO publicly rejected
Phelps Dodge's "unsolicited proposal." In a joint news release (the "August 20
News Release"), Cyprus
10
<PAGE>
Amax and ASARCO stated that each of their respective boards had met separately
to consider the proposal, and determined that "pursuing the ASARCO Cyprus Merger
was in [the] best interests of ASARCO and Cyprus Amax stockholders,
respectively. . . ." Cyprus Amax and ASARCO's joint news release stated only
that "Phelps Dodge's proposal is subject to a number of contingencies."
Exhibit 4.
29. The boards of Cyprus Amax and ASARCO refrained from stating the
basis for their decision to reject the Phelps Dodge proposal and did not
identify the "contingen cies" they were referring in the August 20 News
Release. Most certainly, they made no effort to discuss and negotiate any such
"contingencies." Consequently, Defendants unjustifiably continue to deprive
Cyprus Amax stockholders of the opportunity to decide for themselves which
transaction is in fact in their best interests.
30. That same day, following ASARCO and Cyprus Amax's public
rejection of the Phelps Dodge proposal, Phelps Dodge outlined a revised proposal
even more beneficial to the shareholders of ASARCO and Cyprus Amax. Each share
of ASARCO common stock would be converted into 0.4098 Phelps Dodge common
shares, representing a significant premium of approximately 30% to ASARCO
shareholders, based upon share prices of ASARCO and Phelps Dodge before trading
was halted that morning. Each share of Cyprus Amax common stock would be
converted into 0.3135 Phelps Dodge common shares, representing an approximate
29% premium for Cyprus Amax shareholders, based upon share prices of Cyprus Amax
and Phelps Dodge before trading was halted that morning. Exhibit 5.
11
<PAGE>
31. The market and financial community responded overwhelmingly
favorably to the Phelps Dodge proposal, and the shares of all three companies
rose during trading on August 20.
32. On August 24, 1999, The Wall Street Journal reported that Cyprus
Amax shareholders were eager to embrace a deal with Phelps Dodge. One money
manager with a big stake in Cyprus Amax commented: "[l]ong term, ASARCO Cyprus
is a good combination, but a combination of Phelps, ASARCO and Cyprus is a great
combination."
33. Even Cyprus Amax commented to Bloomberg News that it was prepared
to convene a board meeting to study the increased offer. Gerald Malys, Chief
Financial Officer of Cyprus Amax, informed Bloomberg that Cyprus Amax and ASARCO
had rejected the initial offer because it did not offer enough of a premium. He
added that Cyprus Amax and ASARCO need to begin conversations about the Phelps
Dodge proposal, stating: "I don't think there is any choice in this game but to
listen to what goes on. We need to look at it, they (ASARCO) need to look at
it, we need to talk to each other." Yet the Merger Agreement and the continued
resistance of McAllister, Ward and the boards of directors of ASARCO and Cyprus
Amax remain road blocks to any such discussions -- and thus the proper
discharge of the boards' fiduciary duties.
V. The Unreasonable Terms of the ASARCO Cyprus Merger Agreement
------------------------------------------------------------
34. Until August 20, 1999, the provisions of the Merger Agreement
between ASARCO and Cyprus Amax were hidden from their respective shareholders
and the public. On that day, ASARCO and Cyprus Amax filed an S-4 Registration
Statement, attaching the Merger Agreement. The Merger Agreement contains a
number of noteworthy "no-see, no-hear, no-talk" provisions that reflect patent
violations of the fiduciary duties owed by the boards of ASARCO
12
<PAGE>
and Cyprus Amax. These provisions are transparent efforts to protect a non-
premiurn deal and to entrench management at the expense of shareholders.
35. Sections 5.10(a)(i) and 5.11(a)(i) of the Merger Agreement
restrain both parties, their directors, officers, employees and representatives
from directly or indirectly soliciting, initiating or encouraging (whether by
furnishing information or otherwise), or taking any other action designed to
facilitate any inquiries or the making of any proposal which constitutes or
reasonably could be expected to lead to any "Takeover Proposal." A Takeover
Proposal is defined as any inquiry, proposal or offer, or any improvement,
restatement, amend ment, renewal or reiteration of any such inquiry, proposal
or offer, from any person relating to any direct or indirect acquisition of a
business or equity securities of a party or any of its subsidiaries.
36. More egregiously, Sections 5.10(a)(ii) and 5.11(a)(ii) restrain
both parties, their directors, officers, employees, and representatives from
"participat[ing] in any discussions or negotiations regarding any [alternative]
Takeover Proposal." Thus the Merger Agreement, purports to restrain the Cyprus
Amax board from discussing an unsolicited bid that is demonstra bly superior to
the ASARCO Cyprus Merger.
37. Sections 5.10(b) and 5.11(b) further prohibit the boards of
directors of either company from withdrawing or modifying their approval or
recommendation of the ASARCO Cyprus Merger or the Merger Agreement. The boards
may withdraw their recommendation to approve the merger only if they determine
in good faith, based on the advice of outside counsel, that a failure to do so
would constitute a breach of fiduciary duties owed by the respective boards to
their shareholders.
13
<PAGE>
38. The sole power that the boards of ASARCO and Cyprus Amax have if
they determine that the ASARCO Cyprus Merger is not in fact in the best
interests of their shareholders is to recommend that the shareholders vote
against approving the merger. The boards of directors of ASARCO and Cyprus Amax
do not have the power to terminate the Merger Agreement, nor may they stop the
vote from occurring.
39. Section 7.1(e) of the Merger Agreement permits ASARCO to
terminate the Merger Agreement if Cyprus Amax breaches Section 5.10 of the
Merger Agreement and Section 7.1(f) entities Cyprus Amax to terminate the Merger
Agreement if ASARCO is in breach of Section 5.11. Under Sections 7.3(a)(ii) and
(b)(ii), if one party is entitled to terminate the Merger Agreement due to the
other party's breach of its obligation not to consider or negotiate other
proposals, the party who may terminate the Merger Agreement is entitled to $45
million (the "Termination Fee"). This is a grossly excessive termination fee
and, in the case of ASARCO, would amount to 6% of its equity value.
40. Under Sections 7.3(a)(i) and (b)(i) of the Merger Agreement,
Cyprus Amax or ASARCO could be subjected to this severe Termination Fee simply
because, in light of another Takeover Proposal, its shareholders voted against
the merger. The only way in which the Termination Fee would not apply is if the
other party's shareholders also voted against the transaction, or if a
transaction pursuant to another Takeover Proposal was not consummated within 18
months.
41. As a consequence of these provisions, the boards of ASARCO and
Cyprus Amax are not allowed to consider superior offers or proposals and are
thereby restrained from acting in the best interests of their shareholders. In
addition, the substantial Termination Fee acts
14
<PAGE>
as a great disincentive for ASARCO and Cyprus Amax to negotiate with anyone but
each other -- and for shareholders to vote down the ASARCO Cyprus Amax Merger
Agreement. Although the Merger Agreement contains a provision which would allow
the boards of directors to withdraw their recommendations in order to fulfill
their fiduciary duties, it is impossible to see how this would occur if the
directors have been effectively precluded from obtaining information about and
considering in an infomed way any other offers or proposals.
42. In other words, the boards of ASARCO and Cyprus Amax have tied
their hands by agreeing not to solicit, encourage, or facilitate inquiries by
furnishing information, and not to participate in discussions with respect to
any other proposals. It would be difficult, if not impossible, for them to make
any meaningful analysis of another proposal, such as Phelps Dodge's, let alone
to make any recommendation to the shareholders of Cyprus Amax other than to vote
in favor of the ASARCO Cyprus Merger. The restrictions contained in the Merger
Agreement render it impossible for the boards of ASARCO and Cyprus Amax to make
an informed decision as to whether the ASARCO Cyprus Merger is, or is not, in
the best interests of their shareholders. Ward and the Director Defendants of
Cyprus Amax should not be allowed to hide behind unreasonable provisions in the
Merger Agreement as justification for their refusal to allow their shareholders
to consider a for superior proposal.
43. Moreover, there is great financial incentive for the boards to
push ahead with their merger even at the expense of foregoing a better offer for
their shareholders. The ASARCO Cyprus Form S-4 Registration Statement discloses
that "[e]ach of the employee directors of ASARCO and Cyprus Amax may be
entitled to receive compensation if the business combination is completed."
Even if certain directors or senior officers are no longer employed
15
<PAGE>
by the merged company, the Merger Agreement ensures that they are entitled to
large severance payments. In other words, directors and certain senior officers
of ASARCO and Cyprus Amax are rewarded whether they continue to be employed by
ASARCO Cyprus or not. The key, however, is that the Merger Agreement be
protected. If the Merger Agreement were to be terminated, the Director
Defendants would be entitled neither to continued employment by ASARCO Cyprus,
nor to the large severance payments.
44. Finally, Section 3.2 of the Merger Agreement futher demonstrates
the degree to which the directors of ASARCO and Cyprus Amax have sought to
entrench their positions. It states that any change to the "key executive
officers" of ASARCO Cyprus prior to the stockholder meeting in the year 2002
requires the affirmative vote of at least three-quarters of the directors
constituting the entire board of directors of ASARCO Cyprus. What this means is
that any change in management effectively requires the unanimous vote of the
twelve non management directors.
VI. ASARCO and Cyprus Amax Seek To Manipulate the Merger Vote
---------------------------------------------------------
45. The August 20 News Release stated that proxy materials relating
to the ASARCO Cyprus Merger would be mailed to shareholders of record on August
25, 1999, and that shareholder meetings have been set for September 30, 1999.
This timetable in fact contra venes New York Stock Exchange Rules and was
designed to further the interests of the directors over the shareholders.
46. Section 4 of the New York Stock Exchange Rules regulates
shareholder meetings and proxies. Section 401.02 explicitly provides that "[a]
minimum of ten days' notice is required prior to the record date ... established
... for determination of shareholders entitled to
16
<PAGE>
vote at the meeting." ASARCO and Cyprus Amax gave only seven days' notice to the
NYSE of the August 25, 1999 record date, and did not make the record date public
until August 20, 1999.
47. Although the NYSE has opted not to take action against the
companies for their failure to observe this rule, expediting the record date
nonetheless demonstrates the haste with which ASARCO and Cyprus Amax are
proceeding in order to have their Merger approved by shareholders of both
companies.
48. This abbreviated schedule is no accident. Ward, McAllister and
the boards of their companies seek to prevent more recent shareholders, who
would be aware of and therefore more likely to be in favor of the Phelps Dodge
proposal, from being able to vote on the ASARCO Cyprus Merger. Defendants seek
to preempt the normal flow of trading and move ment in the market of each
company's shares in order to ensure that the shareholders of record entitled to
vote upon the ASARCO Cyprus Mager are those who would be more likely to vote in
favor of it.
49. In addition, Phelps Dodge has sought shareholder lists and
related materials from Cyprus Amax and ASARCO. As of the date of the filing of
this complaint, Cyprus Amax has not responded to a letter requesting the
materials dated August 23, 1999. ASARCO outright opposed an application Phelps
Dodge made to a New Jersey court seeking the information. On August 26,1999,
the court ruled that documents and records must be turned over to Phelps Dodge
within forty-eight hours of the filing of its preliminary proxy materials. In
light of the schedule ASARCO and Cyprus Amax have set for their shareholder
meetings, the delay and refusal to turn over shareholder lists is further
evidence of entrenchment.
VII. ASARCO and Cyprus Amax Issue an Ultimatum to Phelps Dodge
---------------------------------------------------------
17
<PAGE>
50. Instead of agreeing to engage in real discussions with Phelps
Dodge, late in the afternoon of August 25,1999, ASARCO and Cyprus Amax issued a
joint ultimatum to Phelps Dodge in the form of a news release (the "August 25
News Release") and a letter from McAllister and Ward to Yearley. Although the
August 25 News Release characterized the letter as a "willingness to negotiate,"
the terms demanded by the CEOs of ASARCO and Cyprus Amax are so unreasonable
that their negotiating posture is illusory and their entrenchment motive all the
more apparent.
51. The conditions, which no company would accept under similar
circum stances, include a requirement that the exchange ratio be increased to
0.4055 shares of Phelps Dodge common stock for each Cyprus Amax share, and
0.5300 Phelps Dodge shares for each ASARCO common share. This demand amounts to
a premium of 70% to 80% of the companies' stock prices after the announcement of
-----
their no-premium merger but before the first public disclosure of Phelps Dodge's
------
initial proposal. Exhibit 6. ASARCO and Cyprus Amax may now be feeling
pressure from their shareholders lo negotiate with Phelps Dodge, but making
unrea sonable and unacceptable demands is nothing more than a ploy to deflect
shareholder attention while pursuing the ASARCO Cyprus Merger.
52. These outrageous demands amount to an unreasonable ultimatum to
Phelps Dodge and make other supposed examples of their willingness to negotiate
all the more illusory. The August 25 News Release reports that during the first
ninety days after completion of the ASARCO Cyprus Merger, Ward and McAllister
will offer their shareholders the right to call a meeting to consider a "bona
fide" proposal. During this time period, ASARCO and Cyprus Amax will allow for
a redemption of their shareholder rights plan and a waiver of any change of
18
<PAGE>
control provisions in employment contracts. In light of ASARCO's and Cyprus
Amax's conduct to date and the delay -- and burden associated with such a
special meeting -- such "promises" ring hollow. And the companies' statements
regarding employment contracts are so cryptic -- and even contradictory -- as to
be indecipherable.
53. Indeed, the August 25 News Release also announced an equally
illusory attempt at resuscitating shareholder interest in the ASARCO Cyprus
Merger itself. ASARCO and Cyprus Amax now say they will improve the terms of
their deal by including a "special payment" of $5.00 per share to the
shareholders of the merged entity, to be paid as soon as possible after the
consummation of the merger. This "special payment" does not alter the
fundamental economics of the ASARCO Cyprus Merger, nor does it offer the
stockholders of ASARCO and Cyprus Amax greater value than Phelps Dodge's premium
proposal.
54. Nothing in the August 25 News Release or the letter detracts from
one fundamental fact: ASARCO and Cyprus Amax have not changed the unreasonable
terms of their Merger Agreement preventing any serious consideration of the
Phelps Dodge proposal. If there were any doubt, ASARCO and Cyprus Amax
"emphasized" in the August 25 News Release that they were sticking to their
schedule of shareholder meetings for September 30, 1999 to vote on their merger.
In their letter to Yearley, Ward and McAllister made clear that "apart from this
communication, neither party has waived any of its legal or other rights, or
rights or obligations under our merger agreement."Exhibit 6. In other words,
the "no-see, no-hear, no-talk" and other illegal provisions of the Merger
Agreement remain intact.
55. The August 25 letter shows that Ward and McAllister have put
their interests before the interests of the ASARCO and Cyprus Amax shareholders.
The letter states:
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<PAGE>
"[w]e strongly believe that the combination of Cyprus Amax and ASARCO, without
the effect of combining further with Phelps Dodge, provides greater value to
Cyprus Amax and ASARCO holders than your August 20 proposal. "In other words,
Ward and McAllister believe that no premium is better than the significant
premium offered by Phelps Dodge. Although that may be true for Ward and
McAllister, it cannot be true for the shareholders of their companies.
56. On August 25, 1999 Phelps Dodge issued a news release confirming
that it had received ASARCO and Cyprus Amax's letter, but that the letter was
not accompanied by any offer to negotiate, talk or exchange information.
Exhibit 7.
57. On August 27,1999, Phelps Dodge filed a Form S-4 Registration
State ment with respect to its Proposal, and announced its intention to offer to
exchange shares of Phelps Dodge common stock for ASARCO and Cyprus Amax shares
(the "Exchange Offer"). However, the Exchange Offer cannot be consummated
unless, among other things, the Director Defendants amend the onerous terms of
the shareholder rights agreement (the "Rights Agree ment" or the "Poison Pill")
or redeem the rights provided therein.
VII. Cyprus Amax's Failure to Redeem or Amend its Shareholder Rights Agreement
-------------------------------------------------------------------------
58. In February 1999, Cyprus Amax adopted the Poison Pill, which was
amended on July 15, 1999. Under the Rights Agreement, Cyprus Amax's board has
authorized and delivered a dividend of one preferred share purchase right (a
"Right") for each share of common stock of the company outstanding on February
28, 1999. Each Right represents the right to purchase 1/100 of a share of
Series A Preferred Stock at a price of $50 per 1/100 of Series A Preferred
Stock. Each share of Series A Preferred Stock has 100 times the voting power of
each share of common stock.
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59. Distribution of the Rights is triggered by the earliest of the
following events: (i) the tenth day after the first public announcement by
Cyprus Amax or an Acquiring Person (defined as any person who is the beneficial
owner of 15% or more of the common stock then outstanding) that an Acquiring
Person has become such; or (ii) the tenth business day after the commencement of
or the first public announcement of the intention of any person other than the
company, or other associated persons, to commence a tender or exchange offer,
the consum mation of which would result in any Person becoming the beneficial
owner of common stock aggregating 15% or more of the then outstanding common
stock.
60. The Rights Agreement contains a "flip-in" provision. Under this
provi sion, if any person becomes an Acquiring Person, each holder of a Right
will be able to purchase shares under preferential terms. Specifically, he or
she will have the right to purchase that number of shares of common stock, which
at the time the person became an Acquiring Person had it market value of twice
the exercise price, at the current exercise price multiplied by the number of
1/100 of a share of Series A Preferred Stock. This flip-in provision dilutes
the Acquiring Person's holdings and increases the number of shares that the
Acquiring Person would have to purchase in order to consummate a merger.
61. The Rights Agreement also contains a "flip-over" provision, which
arises if, following the time a person becomes an Acquiring Person, (i) Cyprus
Amax shall consolidate with, or merge into, any other person, (ii) any person
shall consolidate or merge with Cyprus Amax and Cyprus Amax is the continuing
corporation of such merger, and in connection with such merger, all or part of
the common shares shall be changed into or exchanged for stock or other
securities of any other person or cash or any other property, or (iii) 50% or
more of Cyprus
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Amax's assets or earning power are transferred to any other person other than
Cyprus Amax or a wholly owned subsidiary. This "flip-over" provision entitles
each Right holder to buy, at the current exercise price multiplied by the number
of 1/100 Series A Preferred Stock, common stock of the acquiring company with a
then market value equal to two times the exercise price.
62. Due to the prohibitive costs this Poison Pill imposes on an
Acquiring Person, no tender offer or exchange offer that would trigger the
Rights can practically be consummated unless Cyprus Amax's board redeems the
Rights or amends the Poison Pill. Cyprus Amax's board can redeem the Rights at a
redemption price of $0.01 per Right. In addition, Cyprus Amax's board can amend
the Rights Agreement, as it did on July 15, 1999 to accommodate the ASARCO
Cyprus Merger. Accordingly, simply by refusing to redeem the Rights or to amend
the Rights Agreement, Cyprus Amax's board can block offers regardless of the
interests of Cyprus Amax's shareholders. The triggering of the Poison Pill
would be particularly unjustified given the premium price and fair structure
proposed by Phelps Dodge.
63. The continued maintenance of the Poison Pill in relation to
Phelps Dodge serves only one purpose: entrenchment of the Director Defendants
for their own personal gain and at the expense of their duty to act in the best
interests of Cyprus Amax's shareholders. A failure by Cyprus Amax and the
Director Defendants to redeem the Rights or to amend the Rights Agreement would
be a breach of the Director Defendants' fiduciary duties, because such failure
will effectively hinder the shareholders of Cyprus Amax from exercising their
fundamen tal rights to determine the future of the company they own.
DECLARATORY RELIEF
------------------
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64. ASARCO and Cyprus Amax's indicate public rejection of Phelps
Dodge's attempts to negotiate a business combination and their failure to take
necessary steps to place the matter before the shareholders of both companies
indicate that there is a substantial controversy between the parties. The
adverse legal interests of the parties are real and immediate.
65. The granting of the requested declaratory relief will serve the
public interest by affording relief from uncertainty and by avoiding delay as
well as conserving judicial resources by avoiding piecemeal litigation.
IRREPARABLE INJURY
------------------
66. Defendants' unwillingness to consider Phelps Dodge's proposed
three-way transaction will prevent Phelps Dodge's proposal from being placed
before the shareholders of both companies for their consideration. Should this
occur, the shareholders of ASARCO and Cyprus Amax, including Phelps Dodge, will
be deprived of the unique opportunity to decide which merger proposal is more
beneficial to them.
67. The terms of the Merger Agreement, by prohibiting the boards of
ASARCO and Cyprus Amax from considering and negotiating alternative proposals,
effectively prevent the boards from complying with their fiduciary duties to act
in the best interests of their companies.
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68. In addition, Phelps Dodge, as a potential party to a three-way
transaction, will be deprived of the unique opportunity to enter into a business
combination that would provide it with substantial benefits, including increased
efficiency and international competitive ness.
69. The resulting injury to Phelps Dodge will not be compensable in
money damages and Plaintiffs, as well as other ASARCO and Cyprus Amax
shareholders, have no adequate remedy at law.
COUNT ONE
---------
Breach of Duty of Care by Defendants
------------------------------------
70. Plaintiffs repeat and reallege each and every allegation set
forth in paragraphs 1 through 69 as if fully set forth herein.
71. The Director Defendants owe a duty of care to plaintiffs. This
duty requires that they make good faith efforts to be informed and to exercise
appropriate judgment. Failure of a board of directors to inform itself fully of
all reasonably available material informa tion, including alternatives, before
arriving at a decision constitutes a breach of this duty.
72. The Director Defendants, in agreeing to and continuing to abide
by terms in the Merger Agreement that prevent them from fulfilling their
fiduciary duties, have breached their duty of care. By prohibiting themselves
from obtaining information or considering other potentially superior offers,
Defendants have precluded the possibility of making an informed recommendation
to shareholders of ASARCO and Cyprus Amax. Even though they claim that they are
willing to negotiate with Phelps Dodge, the unreasonable conditions in their
August 25
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letter render any such willingness completely illusory. In addition, ASARCO and
Cyprus Amax have reaffirmed the onerous provisions of their Merger Agreement.
73. Plaintiffs seek: (i) a declaration that Ward and the Director
Defendants breached their duty to exercise due care in failing to make
reasonable efforts to obtain informa tion about the Phelps Dodge proposal; (ii)
a declaration that Ward and the Director Defendants breached their duty of care
in determining that the ASARCO Cyprus Merger was in the best interests of their
shareholders, without a reconfirmation of the fairness opinion of their
financial advisors; (iii) an injunction compelling Ward and the Director
Defendants to inform themselves adequately and to consider the Phelps Dodge
proposal; (iv) an injunction compelling Ward and the Director Defendants to
submit the Phelps Dodge Proposal to the shareholders of Cyprus Amax; and (v) an
injunction preventing Defendants from taking any further steps to proceed with
the proposed ASARCO Cyprus Merger.
COUNT TWO
---------
Breach of Fiduciary Duties by Ward and the Director Defendants
--------------------------------------------------------------
74. Plaintiffs repeat and reallege each and every allegation set
forth in paragraphs I through 73 as if fully set forth herein.
75. Ward and the Director Defendants stand in a fiduciary
relationship with Cyprus Amax shareholders, including Phelps Dodge. As
fiduciaries, they owe the highest duties of care, loyalty and good faith.
76. Three proposal for a three-way merger is non-coercive,
nondiscriminatory, and poses no threat to Cyprus Amax's corporate policies and
effectiveness. Phelps Dodge's
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proposal represents a substantial premium over the current market price of
Cyprus Amax's stock and the value of the ASARCO non-premium alternative.
77. The failure of Ward and the Director Defendants to determine that
the proposed three-way merger is in the best interests of Cyprus Amax and its
shareholders -- or even to consider the question seriously -- constitutes a
violation of the fiduciary duties owed by them.
78. The failure of Ward and the Director Defendants even to assess
whether the proposed three-way merger is in the best interests of Cyprus Amax
and its shareholders is a violation of the fiduciary duties owed by them.
79. Plaintiffs seek: (i) a declaration that the failure of Ward and
the Director Defendants to consider the Phelps Dodge proposal and to determine
that the proposed three-way merger is in the best interests of Cyprus Amax's
shareholders is a breach of fiduciary duty; (ii) an injunction compelling Ward
and the Director Defendants to consider the Phelps Dodge proposal; (iii) an
injunction compelling Ward and the Director Defendants to submit the Phelps
Dodge proposal to the shareholders of Cyprus Amax; and (iv) an injunction
preventing Defendants from taking any further steps to proceed with the proposed
ASARCO Cyprus Merger.
80. Plaintiffs have no adequate remedy at law.
COUNT THREE
-----------
The $45 Million Termination Fee is Unenforceable
------------------------------------------------
81. Plaintiffs repeat and reallege each and every allegation set
forth in paragraphs 1 through 80 as if fully set forth herein.
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82. Ward and the Director Defendants stand in a fiduciary
relationship with Cyprus Amax shareholders, including Phelps Dodge. As
fiduciaries, they owe the highest duties of care, loyalty and good faith.
83. The Director Defendants breached their fiduciary duties in
agreeing to a Termination Fee in the grossly excessive sum of $45 million, and
in agreeing that such Termination Fee would apply even if the shareholders of
Cyprus Amax voted against the ASARCO Cyprus Merger.
84. Plaintiffs seek a declaration that agreeing to a Termination Fee
of $45 million is a breach of fiduciary duty.
85. Plaintiffs have no adequate remedy at law.
COUNT FOUR
The Coercive Vote Should Be Enjoined
------------------------------------
86. Plaintiffs repeat and reallege each and every allegation set
forth in paragraphs 1 through 85 as if fully set forth herein.
87. The scheduled September 30, 1999 vote by the Cyprus Amax
stockholders on the ASARCO Cyprus Merger will be improperly and illegally
coercive. Stockholders will be wrongfully coerced into voting in favor of the
merger because, as Defendants have structured the Merger Agreement, Cyprus Amax
will have to pay to ASARCO a grossly excessive Termination Fee if the Cyprus
Amax stockholders fail to approve the merger. The vote of the Cyprus Amax
stockholders will also be wrongfully coerced because they know that the ASARCO
Cyprus transaction is the only business combination the Director Defendants will
approve and thus, due
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to the Director Defendants' breaches of fiduciary duties, is the only
transaction whereby Cyprus Amax can be consolidated with another entity.
88. Plaintiffs seek an injunction enjoining the September 30, 1999
vote, or, alternatively, enjoining Defendants from taking any actions to
consummate the ASARCO Cyprus Merger.
89. Plaintiffs have no adequate remedy at law.
COUNT FIVE
----------
Phelps Dodges' Proposal Must be Submitted to Shareholders of Cyprus Amax
------------------------------------------------------------------------
90. Plaintiffs repeat and reallege each and every allegation set
forth in paragraphs 1 through 99 as if fully set forth herein.
91. The proposal for a three-way merger is non-coercive,
nondiscriminatory, and poses no threat to Cyprus Amax's corporate policies and
effectiveness, and represents a substantial premium over the current market
price of Cyprus Amax's stock.
92. Ward and the Director Defendants may not improperly prevent the
shareholders of Cyprus Amax from considering the Phelps Dodge Proposal. Nor may
they improperly manipulate the voting process, as they already have attempted to
do. Any meeting of Cyprus Amax's shareholders to vote upon the ASARCO Cyprus
Merger must include a consider ation of the Phelps Dodge proposal, which is
superior and more beneficial to Cyprus Amax's shareholders than the ASARCO-
Cyprus Amax Merger Agreement. The failure of Ward and the Director Defendants
to put the Phelps Dodge proposal before the shareholders of Cyprus Amax is a
breach of their fiduciary duties.
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93. Plaintiffs seek: (i) a declaration that the failure of Ward and
the Director Defendants to submit the Phelps Dodge proposal for consideration by
Cyprus Amax's sharehold ers is a breach of fiduciary duty; (ii) an injunction
compelling Ward and the Director Defendants to submit the Phelps Dodge proposal
to Cyprus Amax's shareholders at any meeting of Cyprus Amax's shareholders to
consider the ASARCO Cyprus Merger; and (iii) an injunction preventing Ward and
the Director Defendants from taking any further steps to proceed with the
proposed ASARCO Cyprus Merger until Cyprus Amax's shareholders have been given
the opportunity to consider the three-way transaction proposed by Phelps Dodge.
94. Plaintiffs have no adequate remedy at law.
COUNT SIX
---------
Failure to Amend or Redeem the Poison Pill
------------------------------------------
95. Plaintiffs repeat and reallege each and every allegation set
forth in paragraphs 1 through 94 as if fully set forth herein.
96. The proposal for a three-way merger is non-coercive,
nondiscriminatory, and represents a substantial premium over the market price of
ASARCO and Cyprus Amax stock. The Phelps Dodge proposal posts no threat to
Cyprus Amax's corporate policies and effectiveness.
97. The failure of Ward and the Director Defendants to redeem the
Rights or to amend the Rights Agreement, or to otherwise make it inapplicable to
the Phelps Dodge proposal, is a severe and inappropriate response to the
proposed three-way merger. In addition, Ward and the Director Defendants'
failure to redeem the Rights or to amend the Rights Agree ment is a breach of
the fiduciary duties owed by them to Cyprus Amax's shareholders.
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98. The application of the Rights Agreement, or the adoption of any
other defensive measures, to impede or preclude the consideration and/or
consummation of the three way merger proposed by Phelps Dodge is a violation of
the fiduciary duties owed by Ward and the Director Defendants. The Phelps Dodge
Exchange Offer is incapable of completion unless the Poison Pill is redeemed or
amended.
99. Plaintiffs seek: (i) a declaration that the failure of Ward and
the Director Defendants to redeem the Rights or to amend the Rights Agreement to
make it inapplicable to the Phelps Dodge proposal is a breach of fiduciary duty;
(ii) an injunction compelling Ward and the Director Defendants to redeem the
Rights or to otherwise amend the Rights Agreement to make it inapplicable to the
Phelps Dodge proposal; and (iii) an injunction enjoining Ward and the Director
Defendants from applying the Rights Agreement or adopting any other defensive
measures aimed at impeding the three-way merger proposed by Phelps Dodge.
100 Plaintiffs have no adequate remedy at law.
COUNT SEVEN
-----------
Breach of Fiduciary Duty: Section 203 of the Delaware General Corporation Law
------------------------------------------------------------------------------
101 Plaintiffs repeat and reallege each and every allegation set
forth in paragraphs 1 through 100 as if fully set forth herein.
102 Section 203 of the Delaware General Corporation Law, 8 DEL. C.
-------
(S) 203, entitled "Business Combinations with Interested Stockholers," applies
to any Delaware corpora tion that has not opted out of such statute's coverage.
103 Section 203 provides that, if a person acquires 15% or more of a
com pany's stock, such "interested stockholder" may not engage in a "business
combination" with the
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company (which includes mergers or consolidations) for three years after the
person becomes an interested stockholder, unless: (i) prior to the 15%
acquisition, the board of directors has approved either the acquisition or the
business combination; (ii) the interested stockholder acquires 85% of the
corporation's voting stock in the transaction in which it crosses the 15%
threshold; or (iii) on or subsequent to the date of the 15% acquisition, the
business combination is approved by the board of directors and authorized at an
annual or special meeting of stock holders by the affirmative vote of at least
66-2/3% of the outstanding voting stock which is not owned by the interested
stockholder. Section 203 is intended to prevent coercive and inadequate tender
or exchange offers.
104 Cyprus Amax's board may not properly use Section 203 to prevent
Cyprus Amax's stockholders from considering Phelps Dodge's three-way merger
proposal, nor to prevent substantive negotiations between ASARCO, Cyprus Amax
and Phelps Dodge that could lead to a deal among the three companies. The true
purpose of Section 203, to allow a board of directors to ensure that its
shareholders receive the highest possible value for their shares, would be
thwarted. Defendants should not be permitted to use Section 203 to preclude
consideration of all possible alternatives to their preferred transaction or to
deny stockholders the right to vote on other offers.
105 According to Section 203, Defendants have the power to render the
section inapplicable to Phelps Dodge's proposal by approving the three-way
merger. The Defendants' failure to approve Phelps Dodge's proposal and to take
other steps necessary to render Section 203 inapplicable prevents Cyprus Amax's
shareholders from considering a combination that will
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be more beneficial to them than the purported "merger of equals" between ASARCO
and Cyprus Amax. The Defendants are therefore in breach of their fiduciary
duties.
106 Plaintiffs seek: (i) a declaration that the application of
Section 203 to impede or frustrate the Phelps Dodge proposal is a breach of
fiduciary duty; and (ii) an injunction compelling Ward and the Director
Defendants to approve the Phelps Dodge proposal, thereby rendering Section 203
inapplicable.
107 Plaintiffs have no adequate remedy at law.
COUNT EIGHT
-----------
ASARCO's Aiding and Abetting of Defendants' Breaches
----------------------------------------------------
108 Plaintiffs repeat and reallege each and every allegation set
forth in paragraphs 1 through 107 as if fully set forth herein.
109 Defendants have breached their fiduciary duties to Cyprus Amax
and to its shareholders.
110 ASARCO has aided and abetted Defendants in the breach of their
fiduciary duties. As a direct participant in the purported "merger of equals,"
ASARCO knew of, and in fact actively encouraged and participated in, the breach
of fiduciary duties set forth herein. ASARCO and Cyprus Amax have entered into a
Merger Agreement which prohibits the consideration of other, even superior,
alternatives and provides ASARCO with an unjustifiably large Termination Fee.
ASARCO induced Defendants to breach their fiduciary duties in order to obtain
the substantial financial benefits that the ASARCO Cyprus Merger would provide,
at the expense of Cyprus Amax's stockholders.
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111 Plaintiffs seek an injunction preventing ASARCO, its employees,
agents and all persons acting on its behalf, from aiding and abetting Ward and
the Director Defendants' breach of fiduciary duties to Cyprus Amax and its
shareholders, with respect to the ASARCO Cyprus Merger and the Phelps Dodge
proposal.
112 Plaintiffs have no adequate remedy at law.
WHEREFORE, Phelps Dodge respectfully requests that the Court enter an
order:
1. declaring that (i) the failure to make good faith efforts to
obtain information about reasonable alternatives such as the Phelps Dodge
proposal in order to make an informed decision about the ASARCO Cyprus Merger;
and (ii) the failure to obtain a reconfirma tion of the fairness opinion of
their financial advisors, is a breach of the Director Defendants' duty of care
which they owe to Cyprus Amax and its shareholders;
2. declaring that the failure to (i) adequately consider Phelps
Dodge's offer; (ii) determine that the Phelps Dodge proposal is in the best
interest of Cyprus Amax's shareholders; (iii) submit Phelps Dodge's proposed
three-way merger to the shareholders of Cyprus Amax; (iv) render inapplicable
the Poison Pill by redeeming the Rights or amending the Rights Agreement; and
(iv) render inapplicable Section 203 by approving the Phelps Dodge proposal,
constitute a breach of Ward and the Director Defendants' fiduciary duties;
3. compelling Ward and the Director Defendants to render
inapplica ble to the Phelps Dodge proposal the Poison Pill by redeeming the
Rights or amending the Rights Agreement;
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4. compelling Ward and the Director Defendants to render
Section 203 inapplicable to the three-way merger proposed by Phelps Dodge by
approving the Phelps Dodge proposal;
5. compelling Defendants to consider the Phelps Dodge proposal
and to take all steps necessary to provide Plaintiffs with a fair and equal
opportunity to enter into a transaction with ASARCO and Cyprus Amax, including
submitting the proposal to Cyprus Amax's shareholders;
6. temporarily, preliminarily and permanently enjoining
Defendants from taking any further steps to proceed with the proposed ASARCO
Cyprus Merger until the shareholders of Cyprus Amax have been given the
opportunity to consider the three-way transaction proposed by Phelps Dodge;
7. temporarily, preliminarily and permanently enjoining the
adoption or exercise of any measures by Cyprus Amax or Ward and the Director
Defendants which have the effect of impeding, frustrating or interfering with
the Phelps Dodge proposal;
8. temporarily, preliminarily and permanently enjoining ASARCO,
its employees, agents and all persons acting on its behalf, from aiding and
abetting Ward and the Director Defendants' breach of their fiduciary duties to
Cyprus Amax's stockholders;
9. granting damages for all incidental injuries suffered as a
result of Defendants' unlawful conduct;
10. awarding Phelps Dodge its costs and expenses in this action,
including reasonable attorneys' fees; and
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11. granting such other and further relief as the Court deems
just and proper.
Dated: Wilmington, Delaware
August 27, 1999
--------------------------------------
R. Franklin Balotti
Gregory P. Williams
RICHARDS, LAYTON & FINGER, P.A.
One Rodney Square
P.O. Box 551
Wilmington, Delaware 19899
(302) 658-6541
Attorneys for Plaintiffs
Of Counsel:
Stuart J. Baskin
Alan S. Goudiss
SHEARMAN & STERLING
599 Lexington Avenue
New York, New York 10022
(212) 848-4000
John Hall
DEBEVOISE & PLIMPTON
875 Third Avenue
New York, New York 10022
(212) 909-6000
35
