-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, L0Y1b8UlFb/gME7/eZSFqsLh2j4Fq0PPTodL7O93n7sjsTbXn7FkJ8/ExMbMtmRK x8T+U4RN7w0FG/K6DpKBgQ== 0000950172-99-001262.txt : 19990922 0000950172-99-001262.hdr.sgml : 19990922 ACCESSION NUMBER: 0000950172-99-001262 CONFORMED SUBMISSION TYPE: SC 14D9/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 19990921 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: ASARCO INC CENTRAL INDEX KEY: 0000007649 STANDARD INDUSTRIAL CLASSIFICATION: PRIMARY SMELTING & REFINING OF NONFERROUS METALS [3330] IRS NUMBER: 134924440 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 14D9/A SEC ACT: SEC FILE NUMBER: 005-31638 FILM NUMBER: 99714752 BUSINESS ADDRESS: STREET 1: 180 MAIDEN LN CITY: NEW YORK STATE: NY ZIP: 10038 BUSINESS PHONE: 2125102000 FORMER COMPANY: FORMER CONFORMED NAME: AMERICAN SMELTING & REFINING CO DATE OF NAME CHANGE: 19760607 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: ASARCO INC CENTRAL INDEX KEY: 0000007649 STANDARD INDUSTRIAL CLASSIFICATION: PRIMARY SMELTING & REFINING OF NONFERROUS METALS [3330] IRS NUMBER: 134924440 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 14D9/A BUSINESS ADDRESS: STREET 1: 180 MAIDEN LN CITY: NEW YORK STATE: NY ZIP: 10038 BUSINESS PHONE: 2125102000 FORMER COMPANY: FORMER CONFORMED NAME: AMERICAN SMELTING & REFINING CO DATE OF NAME CHANGE: 19760607 SC 14D9/A 1 SCHEDULE 14D9 - AMENDMENT NO. 5 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ----------------- SCHEDULE 14D-9/A (AMENDMENT NO. 5) SOLICITATION/RECOMMENDATION STATEMENT PURSUANT TO SECTION 14(D)(4) OF THE SECURITIES EXCHANGE ACT OF 1934 ----------------- ASARCO INCORPORATED (Name of Subject Company) ASARCO INCORPORATED (Name of Person(s) Filing Statement) COMMON STOCK, NO PAR VALUE PER SHARE (Title of Class of Securities) 043413103 (CUSIP NUMBER OF CLASS OF SECURITIES) FRANCIS R. MCALLISTER ASARCO INCORPORATED CHAIRMAN AND CHIEF EXECUTIVE OFFICER 180 MAIDEN LANE NEW YORK, NEW YORK 10038 (212) 510-2000 (Name, address and telephone number of person authorized to receive notice and communications on behalf of the person(s) filing statement). With Copies to: J. MICHAEL SCHELL MARGARET L. WOLFF SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP 919 THIRD AVENUE NEW YORK, NEW YORK 10022 (212) 735-3000 This Amendment No. 5 to the Solicitation/Recommendation Statement on Schedule 14D-9 relates to the exchange offer for all of the outstanding shares of ASARCO Common Stock which is described in a Tender Offer Statement on Schedule 14D-1 of Phelps Dodge Corporation, a New York corporation ("Phelps Dodge"), filed with the Securities and Exchange Commission on September 3, 1999, which incorporates the prospectus of Phelps Dodge contained in the Registration Statement on Form S-4 of Phelps Dodge filed with the Commission on August 27, 1999, as amended by Amendment No. 1 thereto filed with the Commission on September 1, 1999 and Amendment No. 2 thereto filed with the Commission on September 2, 1999. ITEM 9 MATERIAL TO BE FILED AS EXHIBITS. Item 9 is hereby amended and supplemented by adding the following Exhibit: Exhibit 26. Investor Presentation. SIGNATURE After reasonable inquiry and to the best of its knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct. ASARCO INCORPORATED By /s/ Francis R. McAllister ---------------------------------- Name: Francis R. McAllister Title: Chairman and Chief Executive Officer Dated: September 21, 1999 EX-26 2 EXHIBIT 26 - INVESTOR PRESENTATION EXHIBIT 26 INVESTOR PRESENTATION CORPORATE GOVERNANCE SEPTEMBER 1999 Asarco Cyprus Merger o Merger Structured Specifically to Create and Enhance Shareholder Value - $5.00 Cash Payment to Shareholders on Completion of Merger - Drop Takeover Defenses - 90 Days Post Merger - Provide Opportunity for Fair Value Offer to Shareholders 2 Asarco Cyprus Merger o Qualified Offer: - Offer to Purchase All Outstanding Shares - Subject to an Unwaivable Minimum Tender Condition of 50% of the Outstanding Shares - Offer is Subject to Fairness Opinion From Recognized Investment Bank - Offer Includes Appropriate Financing Assurances o For 90 Days Post Merger: - Any Person Making a Qualified Offer Can Disarm the Rights Plan - Company Must Call and Hold Stockholder Meeting to Vote to Redeem Rights Plan, if Requested by Person Making Qualified Offer - Company Must Redeem the Rights Plan if a Majority of the Outstanding Shares Vote in Favor of Doing So o Employee Benefit Programs/New Employment Contracts - Status Quo Will Prevail For 90 Days Post Merger - No New Change of Control Benefits Will Trigger in the 90 Days Post Merger 3 Asarco Cyprus Merger o Transition Arrangements - Boards of Directors' Objective is to Ensure: o Synergies Implemented Properly o Management Succession Planned o Balanced Representation for Both Shareholder Groups - Transition Arrangements Do Not Prevent Third Party Offer to Buy Company 4 Asarco Cyprus Merger o Typical Three Year Transition Arrangements - 50/50 Representation on Board - Sharing of Executive Power for First Three Years o Ward - Chairman and Co-CEO Until 2000 Annual Meeting Chairman Until End of 2000 o McAllister - President and Co-CEO Until 2000 Annual Meeting Chairman, President and CEO January 1, 2001 o To Ensure Successful Transition - Until 2002 Annual Meeting: - Asarco Board Vacancies Filled By Asarco Directors - Cyprus Board Vacancies Filled By Cyprus Directors - Changes in Executive Arrangements Require 75% Vote 5 Asarco Cyprus Merger o Asarco Cyprus Corporate Governance - Virtually Identical to Provisions for Phelps Dodge, as Well as Many Other Companies o Relevant Charter and By-Law Provisions ASARCO CYPRUS PHELPS DODGE Classified Board 3 Equal Classes 3 Equal Classes Call Special Meetings Chairman, CEO or Chairman or Majority of Directors Majority of Directors Written Consent Not Permitted Not Permitted Rights Plan 15% Trigger, 20% Trigger Can Be Redeemed Can Be Redeemed By Board By Board 6 Asarco Cyprus Merger o Asarco and Cyprus Boards Unanimously Rejected Phelps Dodge's Exchange Offers as Inadequate and Not in Shareholders' Best Interests - Based Upon Independent Evaluations By Asarco and Cyprus Investment Banks o Counter Proposal to Phelps Dodge to Ensure Asarco and Cyprus Shareholders 50 Percent Ownership in New Entity 7 -----END PRIVACY-ENHANCED MESSAGE-----