-----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, AfmyJ3nkWv7HBgCgqhADJxe3j1X/wYnR/L+qnj8ll7p0OyiMvJoXP+fzMwPcVPzM OB9Yl4zyxifT/fz3wOxYUw== 0000950172-99-001306.txt : 19991227 0000950172-99-001306.hdr.sgml : 19991227 ACCESSION NUMBER: 0000950172-99-001306 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 19990927 ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 19990928 FILER: 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: 8-K SEC ACT: SEC FILE NUMBER: 001-00164 FILM NUMBER: 99718241 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 8-K 1 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------ FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 ---------------- SEPTEMBER 27, 1999 Date of Report (Date of Earliest Event Reported) ASARCO INCORPORATED (Exact name of Registrant as specified in its charter) DELAWARE 1-164 13-492440 (State or Other Jurisdiction of (Commission File (IRS Employer Incorporation or Organization) Number) Identification No.) 180 MAIDEN LANE, NEW YORK, NEW YORK 10038 (Address of Principal Executive Office) (Zip Code) (212) 510-2000 (Registrant's telephone number, including area code) NOT APPLICABLE (Former Name or Former Address, if Changed Since Last Report) ITEM 5. OTHER EVENTS. On September 27, 1999, Asarco Cyprus Incorporated, ACO Acquisition Corp., CAM Acquisistion Corp., ASARCO Incorporated ("ASARCO") and Cyprus Amax Minerals Company ("Cyprus Amax") entered into Amendment No. 1 ("Amendment No. 1") to the Agreement and Plan of Merger governing the previously announced business combination of ASARCO and Cyprus Amax. Amendment No. 1, among other things, enables the parties to explore alternatives to the Merger Agreement until October 5, 1999. A copy of Amendment No. 1 is attached as Exhibit 99.1 and incorporated herein by reference. On September 28, 1999, ASARCO issued a press release relating to Amendment No. 1, a copy of which is attached as Exhibit 99.2 and incorporated herein by reference. ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS. (c) Exhibits 99.1 Amendment No. 1, dated as of September 27, 1999, amending the Agreement and Plan of Merger, dated as of July 15, 1999, among Asarco Cyprus Incorporated, ACO Acquisition Corp., CAM Acquisition Corp., ASARCO Incorporated and Cyprus Amax Minerals Company. 99.2 Press release of ASARCO Incorporated, dated September 28, 1999. SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. ASARCO INCORPORATED By: /s/ Francis R. McAllister -------------------------------------------- Name: Francis R. McAllister Title: Chairman and Chief Executive Officer Date: September 28, 1999 EXHIBIT INDEX EXHIBIT NO. DESCRIPTION PAGE NO. 99.1 Amendment No. 1, dated as of September 27, 1999, amending the Agreement and Plan of Merger, dated as of July 15, 1999, among Asarco Cyprus Incorporated, ACO Acquisition Corp., CAM Acquisition Corp., ASARCO Incorporated and Cyprus Amax Minerals Company. 99.2 Press Release of ASARCO Incorporated, dated September 28, 1999. EX-99 2 EXHIBIT 99.1 - AMENDMENT NO. 1 AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER AMENDMENT NO. 1 (this "Amendment No. 1"), dated as of September 27, 1999, amending the Agreement and Plan of Merger (the "Merger Agreement"), dated as of July 15, 1999, among ASARCO CYPRUS INCORPORATED, a Delaware corporation ("Parent"), ACO ACQUISITION CORP., a New Jersey corporation, CAM ACQUISITION CORP., a Delaware corporation, ASARCO INCORPORATED, a New Jersey corporation ("ASARCO"), and CYPRUS AMAX MINERALS COMPANY, a Delaware corporation ("Cyprus"). WHEREAS, each of ASARCO and Cyprus has determined to postpone until October 7, 1999 the meeting of its respective shareholders to consider and vote upon a proposal to approve and adopt the Merger Agreement; WHEREAS, the parties have agreed to permit one another for a limited period of time to explore alternatives to the Merger Agreement; WHEREAS, Section 7.4 of the Merger Agreement provides for the amendment of the Merger Agreement in accordance with the terms set forth therein; and WHEREAS, the parties hereto desire to amend the Merger Agreement in certain respects; NOW, THEREFORE, in consideration of the representations, warranties, covenants and agreements contained in this Amendment No. 1, and fully intending to be legally bound hereby, the parties agree as follows: 1. Definitions. Capitalized terms used herein and not otherwise defined herein shall have the meanings provided therefor in the Merger Agreement. 2. Suspension of Certain Covenants. The parties hereto hereby agree that the covenants of the parties contained in Sections 5.10(a), (b)(iii) and (c) and 5.11(a), (b)(iii) and (c) of the Merger Agreement shall be suspended and shall be of no force or effect during the period (the "Suspension Period") beginning upon the execution and delivery of this Amendment No. 1 and ending at 9:00 A.M., New York City time, on Tuesday, October 5, 1999; provided, that Section 5.10(b)(iii) is suspended during such period only to the extent necessary for Cyprus to enter into any confidentiality agreement related to any Cyprus Takeover Proposal and provided that Section 5.11(b)(iii) is suspended during such period only to the extent necessary for ASARCO to enter into any confidentiality agreement related to any ASARCO Takeover Proposal. 3. Right to Terminate. Either ASARCO or Cyprus may, at any time prior to the expiration of the Suspension Period, unilaterally terminate the Merger Agreement for any reason by delivery of a written notice to the other party to such effect exercising such right; provided that contemporaneously or prior to delivery of such notice the party terminating the Merger Agreement shall pay to the non-terminating party $45 million in the case that Cyprus is the terminating party and $40 million in the case that ASARCO is the terminating party, payable by wire transfer of immediately available funds; provided, further, that no termination pursuant to Section 3 of this Amendment No. 1 shall be effective prior to receipt by the non-terminating party of such payment. The right to terminate the Merger Agreement provided in this Section 3 shall expire simultaneously with the expiration of the Suspension Period. In the event that the Merger Agreement is terminated pursuant to this paragraph 3, neither party shall be entitled to any payment pursuant to Section 7.3 of the Merger Agreement. 4. Postponement of Shareholders Meetings. The ASARCO Shareholders Meeting and the Cyprus Shareholders Meeting, currently scheduled to be held on September 30, 1999, shall be postponed until October 7, 1999. 5. Reinstatement of Merger Agreement. In the event that the Merger Agreement is not terminated pursuant to Section 3 above, the Merger Agreement shall be reinstated in its entirety and the provisions of this Amendment No. 1 shall be null and void and shall cease to be of any further force or effect; provided, that any action taken or failure to act by either party during the Suspension Period in reliance on this Amendment No. 1 shall be deemed to be in conformity with the Merger Agreement. 6. Miscellaneous. To the extent that any provision of this Amendment No. 1 contravenes or is inconsistent with any provision of the Merger Agreement, to the extent such latter provision would be effective or operative during the Suspension Period, the provisions of this Amendment No. 1 shall supercede any contrary or inconsistent provision contained in the Merger Agreement. Except as otherwise provided hereby, the terms and conditions of the Merger Agreement shall continue in full force and effect. Wherever the Merger Agreement is referred to in the Merger Agreement or in any other agreements, documents and instruments, such reference shall be to the Merger Agreement as amended hereby. 7. Counterparts. This Amendment No. 1 may be executed in two or more consecutive counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties. 8. Governing Law. This Amendment No. 1 shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to the principles of conflicts of laws thereof, except to the extent the provisions of this Amendment No. 1 are expressly governed by or derive their authority from the NJBCA. IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to be duly executed and delivered as of the date first above written. ACA HOLDING INCORPORATED By: /s/ Milton H. Ward ----------------------------------------------- Name: Milton H. Ward Title: Chairman and Co-Chief Executive Officer By: /s/ Francis R. McAllister ----------------------------------------------- Name: Francis R. McAllister Title: President and Co-Chief Executive Officer ACO ACQUISITION CORP. By: /s/ Francis R. McAllister ----------------------------------------------- Name: Francis R. McAllister Title: Vice President CAM ACQUISITION CORP. By: /s/ Gerald J. Malys ----------------------------------------------- Name: Gerald J. Malys Title: President and Treasurer ASARCO INCORPORATED By: /s/ Francis R. McAllister ----------------------------------------------- Name: Francis R. McAllister Title: Chairman and Chief Executive Officer CYPRUS AMAX MINERALS COMPANY By: /s/ Milton H. Ward ----------------------------------------------- Name: Milton H. Ward Title: Chairman and Chief Executive Officer EX-99 3 EXHIBIT 99.2 - PRESS RELEASE FOR IMMEDIATE RELEASE CYPRUS AMAX AND ASARCO AMEND MERGER AGREEMENT NEW YORK, NY, SEPTEMBER 28, 1999 -- ASARCO Incorporated (NYSE:AR) today announced that it and Cyprus Amax (NYSE:CYM) have amended their merger agreement to permit each other to explore all strategic alternatives to maximize value for their shareholders. The companies have agreed that each is free to act independently of the other until 9:00 a.m. (New York time) on Tuesday, October 5, 1999. During that period either company can unilaterally terminate the agreement upon payment of the applicable termination fee. The Company said that if the merger agreement is not terminated prior to that Tuesday morning the original terms of the agreement will be reinstated in their entirety. ASARCO also said that it and Cyprus Amax had agreed to postpone their shareholder meetings currently scheduled for September 30, 1999. -----END PRIVACY-ENHANCED MESSAGE-----