-----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, UEJxIiQqszQdjZkY8cJqkiXpKl+oNYhaim+lKKOsMtfp7Fe+kyiTkLgWb9YR/OQd s12rfhY+Chf658WZ+w6Gnw== 0000950172-99-001379.txt : 19991018 0000950172-99-001379.hdr.sgml : 19991018 ACCESSION NUMBER: 0000950172-99-001379 CONFORMED SUBMISSION TYPE: SC 14D9/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19991008 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: 99725802 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. 1 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 _________________ SCHEDULE 14D-9/A* AMENDMENT NO. 1 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 CHAIRMAN AND CHIEF EXECUTIVE OFFICER ASARCO INCORPORATED 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 *Relates to offer by Grupo MExico, S.A. de C.V. This Amendment No. 1 to the Solicitation/Recommendation Statement on Schedule 14D-9 of ASARCO Incorporated, originally filed with the Securities and Exchange Commission (the "Commission) on October 5, 1999 (the "Schedule 14D-9"), relates to the tender offer for all of the outstanding shares of ASARCO Common Stock which is described in a Tender Offer Statement on Schedule 14D-1 of of Grupo MExico, S.A. de C.V., a Mexican corporation ("Grupo MExico"), and its wholly owned subsidiary, ASMEX Corporation, a Delaware corporation ("ASMEX"), filed with the Commission on September 27, 1999, as amended. Defined terms used but otherwise not defined herein shall have the meanings ascribed to such terms in the Schedule 14D-9. ITEM 4. THE SOLICITATION OR RECOMMENDATION. Subsection (b) of Item 4 is hereby amended by adding the following: On October 7,1999, ASARCO received the following unsolicited letter from Grupo MExico: "October 7, 1999 "Board of Directors ASARCO Incorporated 180 Maiden Lane New York, NY 10038 "Attention: Francis R. McAllister Chairman and Chief Executive Officer "Dear Members of the Board: "Based on our assessment of the pending offer by Phelps Dodge Corporation as reflected in your announced agreement with them, and our view of the intrinsic value in ASARCO Incorporated that Grupo Mexico, S.A. de C.V. could realize if Grupo Mexico owned ASARCO, we are today increasing the price in our September 27 tender offer to ASARCO shareholders for all outstanding shares of ASARCO to $29.50 per share in cash. The other terms of our September 27 tender offer remain substantially unchanged. "Our revised offer provides value to your shareholders that is demonstrably superior to your agreement with Phelps Dodge. This offer represents a premium of 5% over the value of your recently announced agreement with Phelps Dodge based upon the October 6, 1999 closing price of $53.00 per share for Phelps Dodge common stock, and a premium of 59% over ASARCO's unaffected stock price on August 20, 1999, immediately prior to the announcement of Phelps Dodge's proposal. "As a result, we believe that you can, and indeed are obligated to, meet with us and discuss our revised offer. Accordingly, we request that, pursuant to Section 5.9 of your agreement with Phelps Dodge, you elicit such advice and make such determinations in view of your fiduciary duties so that ASARCO would be in a position to immediately engage in negotiations and discussions with us concerning our superior proposal. We also believe that you cannot, consistent with your fiduciary duties, continue to recommend to your shareholders the transaction with Phelps Dodge in light of our revised offer. "As before, our execution of a merger agreement would not be contingent upon a due diligence review. Furthermore, in view of the fact that we have been granted "early termination" of the waiting period under the Hart-Scott-Rodino Antitrust Improvements Act, we are confident that consummation of our proposed transaction is not subject to any material regulatory approvals. "Our revised offer presents a compelling opportunity for ASARCO and its shareholders to improve upon your existing transaction with Phelps Dodge. "Our offer, of course, continues to be conditioned upon entering into a negotiated agreement with you. As in the past, we are prepared to meet with you at any time to negotiate the terms of a merger agreement having substantially the same terms and conditions that were contained in the form of merger agreement that was submitted to you on October 5, 1999, modified to (i) remove our request for the "match" right in connection with competing proposals set forth in the "no-shop" provision and replacing it with the relevant provision in your Phelps Dodge Agreement, (ii) reflect the termination of your agreement with Phelps Dodge and (iii) incorporate certain provisions from your agreement with Phelps Dodge, provided that you enter into an agreement with us on or before October 15, 1999. "Please contact us to schedule a meeting of our respective advisors to bring this situation to a prompt and satisfactory conclusion for the shareholders of both of our companies. "Very truly yours, GRUPO MEXICO, S.A. de C.V. By /s/ Daniel Tellechea Salido ______________________________ Daniel Tellechea Salido Managing Director for Administration and Finance and Alternate Director By /s/ Genaro Guerrero Diaz Mercado _________________________________ Genaro Guerrero Diaz Mercado Treasurer" The Board of Directors of ASARCO met on October 8, 1999 to consider the revised proposal contained in Grupo MExico's letter. At the meeting, the ASARCO Board of Directors considered, together with advicefrom its financial and legal advisors, (i) the terms of Grupo MExico's revised offer, (ii) ASARCO's rights and obligations under the Agreement and Plan of Merger, dated as of October 5, 1999, among Phelps Dodge Corporation, AAV Corporation and ASARCO (the "Merger Agreement"), and (iii) its fiduciary duties to stockholders of ASARCO under applicable law. At the October 8, 1999 meeting, in accordance with the terms of the Merger Agreement, the Board of Directors determined in good faith, after consultation with its legal and financial advisors, that it was necessary in order to comply with its fiduciary duties under applicable law (x) to modify its recommendation of the Phelps Dodge Offer and Merger, and (y) if necessary, to furnish information to Grupo MExico pursuant to a customary confidentiality agreement and to participate in discussions or negotiations regarding the Grupo MExico revised proposal. The Board has notified Phelps Dodge in accordance with the terms of the Merger Agreement that it intends to take these actions. A copy of this notice is filed as Exhibit 33 hereto and is incorporated herein by reference. In the afternoon on October 8, 1999, Douglas C. Yearley, Chairman, President and Chief Executive Officer of Phelps Dodge, telephoned Mr. McAllister to inform him that Phelps Dodge would not raise its offer. ITEM 7. CERTAIN NEGOTIATIONS AND TRANSACTIONS BY SUBJECT COMPANY. Subsections (a) and (b) of Item 7 are hereby amended by adding the following: Except as set forth herein and in Item 4, no negotiation is being undertaken or is underway by ASARCO in response to the Phelps Dodge Offer that relates to or would result in (i) an extraordinary transaction, such as a merger or reorganization involving ASARCO or any subsidiary thereof; (ii) a purchase, sale or transfer of a material amount of assets by ASARCO or any subsidiary thereof; (iii) a tender offer for or other acquisition of securities by or of ASARCO; or (iv) any material change in the present capitalization or dividend policy of ASARCO. Except as set forth herein, there is no transaction, board resolution, agreement in principle or signed contract in response to the Grupo MExico Offer that relate to or would result in one or more of the events referred to above. ITEM 9. MATERIAL TO BE FILED AS EXHIBITS. Exhibit 5. Letter from ASARCO to Phelps Dodge, dated October 8, 1999. Exhibit 6. Press release of ASARCO, dated October 8, 1999. 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 Dated: October 8, 1999 EXHIBIT INDEX Exhibit 5. Letter from ASARCO to Phelps Dodge, dated October 8, 1999. Exhibit 6. Press release of ASARCO, dated October 8, 1999. EX-99 2 EXHIBIT 5 - LETTER [LETTERHEAD OF ASARCO INCORPORATED] October 8, 1999 Douglas C. Yearley Phelps Dodge Corporation 2600 North Central Avenue Phoenix, Arizona 85004-3014 Re: Phelps Dodge/Asarco Merger Agreement Dear Doug: Reference is made to the Agreement and Plan of Merger, dated as of October 5, 1999 (the "Merger Agreement"), among Phelps Dodge Corporation ("Phelps Dodge"), AAV Corporation and ASARCO Incorporated ("ASARCO"). Pursuant to Section 5.9(b) of the Merger Agreement, you are hereby advised that the Board of Directors of ASARCO met on October 8, 1999 to consider the revised proposal from Grupo MExico, a copy of which we sent to you yesterday. At the meeting, the ASARCO Board of Directors considered, together with advice from its financial and legal advisors, (i) the terms of Grupo MExico's revised offer, (ii) ASARCO's rights and obligations under the Merger Agreement and (iii) its fiduciary duties to stockholders of ASARCO under applicable law. At the October 8, 1999 meeting, in accordance with the terms of the Merger Agreement, the Board of Directors determined in good faith, after consultation with its legal and financial advisors, that it was necessary in order to comply with its fiduciary duties under applicable law (x) to modify its recommendation of the Phelps Dodge Offer and Merger, and (y) if necessary, to furnish information to Grupo MExico pursuant to a customary confidentiality agreement and to participate in discussions or negotiations regarding the Grupo MExico revised proposal. Sincerely, Francis R. McAllister cc: David W. Heleniak Shearman & Sterling Michael W. Blair Debevoise & Plimpton EX-99 3 EXHIBIT 6 - PRESS RELEASE FOR IMMEDIATE RELEASE ASARCO TO CONSIDER GRUPO MEXICO OFFER NEW YORK, N.Y., OCTOBER 8, 1999 - ASARCO Incorporated (NYSE:AR) announced that the Board of Directors of Asarco met to consider the revised proposal contained in a letter from Grupo Mexico of October 7, 1999. In its revised proposal, Grupo Mexico offered to acquire all of the outstanding shares of Asarco common stock at a price of $29.50 per share in cash. At the meeting, the Asarco Board of Directors considered, together with advice from its financial and legal advisors, the terms of Grupo Mexico's revised offer, Asarco's rights and obligations under the Phelps Dodge merger agreement and its fiduciary duties to stockholders of Asarco under applicable law. In accordance with the terms of its merger agreement with Phelps Dodge, the Board of Directors determined in good faith, after consultation with its legal and financial advisors, that it was necessary in order to comply with its fiduciary duties under the applicable law to modify its recommendation of the pending transaction with Phelps Dodge and, if necessary, to furnish information to Grupo Mexico pursuant to a customary confidentiality agreement and to participate in discussions or negotiations regarding the Grupo Mexico revised proposal. The Board has notified Phelps Dodge that it intends to participate in discussions with Grupo Mexico concerning the proposal. Accordingly, the Asarco Board recommends that stockholders not tender their shares in the Phelps Dodge Exchange Offer at this time. ### -----END PRIVACY-ENHANCED MESSAGE-----