-----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, NgA0hnWgDqHFN3+DSUsRvLnTnOEN0xlsaYRDGynYq2f7MgYXMEL/FjN/f3b6IeML kiumLIvY8ALKtORaDFYakA== 0000947871-99-000434.txt : 19990928 0000947871-99-000434.hdr.sgml : 19990928 ACCESSION NUMBER: 0000947871-99-000434 CONFORMED SUBMISSION TYPE: SC 14D1/A PUBLIC DOCUMENT COUNT: 1 FILED AS OF DATE: 19990927 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 14D1/A SEC ACT: SEC FILE NUMBER: 005-31638 FILM NUMBER: 99717931 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: PHELPS DODGE CORP CENTRAL INDEX KEY: 0000078066 STANDARD INDUSTRIAL CLASSIFICATION: PRIMARY SMELTING & REFINING OF NONFERROUS METALS [3330] IRS NUMBER: 131808503 STATE OF INCORPORATION: NY FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 14D1/A BUSINESS ADDRESS: STREET 1: 2600 NORTH CENTRAL AVE CITY: PHOENIX STATE: AZ ZIP: 85004 BUSINESS PHONE: 6022348100 MAIL ADDRESS: STREET 1: 2600 NORTH CENTRAL AVENUE CITY: PHOENIX STATE: AZ ZIP: 85004-3089 SC 14D1/A 1 AMENDMENT NO. 2 TO SCHEDULE 14D-1 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ----------------------- SCHEDULE 14D-1 Tender Offer Statement Pursuant to Section 14(d)(1) of the Securities Exchange Act of 1934 ----------------------- (AMENDMENT NO. 2) Asarco Incorporated (Name of Subject Company) AAV Corporation and Phelps Dodge Corporation (Bidders) ----------------------------- Common Stock, no par value (Including the associated preferred share purchase rights) (Title of Classes of Securities) ----------------------- 04341310 (Common Stock) (CUSIP Number of Class of Securities) ----------------------- S. David Colton, Esq. Vice President and General Counsel Phelps Dodge Corporation 2600 North Central Avenue Phoenix, Arizona 85004-3014 (602) 234-8100 ----------------------- Copies to: Michael W. Blair, Esq. Stephen R. Volk, Esq. Debevoise & Plimpton David W. Heleniak, Esq. 875 Third Avenue Shearman & Sterling New York, NY 10022 599 Lexington Avenue (212) 909-6000 New York, New York 10022 Telephone: (212) 848-4000 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- Phelps Dodge Corporation, a New York corporation ("Phelps Dodge"), and its wholly owned subsidiary, AAV Corporation, a Delaware corporation ("Purchaser"), hereby amend and supplement their Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") filed with the Securities and Exchange Commission on September 3, 1999, as amended on September 23, 1999, with respect to the Purchaser's exchange offer to acquire all outstanding shares of common stock, no par value per share, (including the associated preferred share purchase rights) of Asarco Incorporated, a New Jersey corporation, ("Asarco"). Item 3 is hereby amended and supplemented by adding the following: Item 3. Past Contacts, Transactions or Negotiations with the Subject Company. (b) On Friday, September 24, 1999, at the request of Asarco and Cyprus Amax, Douglas C. Yearley, Chairman and Chief Executive Officer of Phelps Dodge, J. Steven Whistler, President and Chief Operating Officer of Phelps Dodge, Francis R. McAllister, Chairman and Chief Executive Officer of Asarco, Kevin R. Morano, President and Chief Operating Officer of Asarco, Milton H. Ward, Chairman, Chief Executive Officer and President of Cyprus Amax, and Gerald J. Malys, Senior Vice President and Chief Financial Officer of Cyprus Amax, met in New York City. At the meeting, Asarco and Cyprus Amax indicated that they were unwilling to negotiate a three way business combination unless Phelps Dodge offered a price reflecting a premium of 55% above their unaffected share prices prior to the August 20 public announcement of Phelps Dodge's initial proposal. Phelps Dodge rejected this proposal and reiterated its willingness to proceed at prices representing premiums of 40% to the unaffected share prices of Asarco and Cyprus Amax. Later on Friday, September 24, 1999, Mr. Yearley and Mr. Whistler sent a proposed form of merger agreement to Mr. McAllister and Mr. Ward. A copy of the letter sent to Messrs. McAllister and Ward is attached hereto as Exhibit (f)(4) and is incorporated herein by reference. Item 11 is hereby amended and supplemented by adding the following Exhibit: Item 11. Material to be filed as Exhibits. (f)(4) Letter from Phelps Dodge to Francis R. McAllister, Chairman and Chief Executive Officer of Asarco, and Milton H. Ward, Chairman, Chief Executive Officer and President of Cyprus Amax, dated September 24, 1999 After due 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. September 27, 1999 Phelps Dodge Corporation By /s/ Ramiro G. Peru ------------------------------------ Name: Ramiro G. Peru Title: Chief Financial Officer and Senior Vice President After due 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. September 27, 1999 AAV Corporation By /s/ Ramiro G. Peru --------------------------------------------- Name: Ramiro G. Peru Title: Director, Vice President and Treasurer Exhibit (f)(4) [Letterhead of Phelps Dodge Corporation] September 24, 1999 Francis R. McAllister Chairman and Chief Executive Officer ASARCO Incorporated 180 Maiden Lane New York, New York 10038 Milton H. Ward Chairman, Chief Executive Officer and President Cyprus Amax Minerals Company 9100 East Mineral Circle Englewood, Colorado 80112 Dear Frank and Milt: In order to avoid any further misunderstandings concerning the terms of our proposal, we are enclosing a form of merger agreement we would be prepared to sign immediately. You will note that the agreement is a mark-up of your existing merger agreement and maintains the same representations, warranties and closing conditions as your existing merger agreement. The draft agreement contains the economic terms that we previously discussed and that are contained in our exchange offers to your respective shareholders. It also contains a "hell or high water" covenant with respect to regulatory matters, honors the provisions of Sections 5.5 and 5.6 of your existing merger agreement, contains a "no shop" covenant with a fiduciary out and 2 provides for break-up fees of 2% of each of ASARCO and Cyprus Amax's respective market capitalization. Sincerely, /s/ Douglas C. Yearley /s/ J. Steven Whisler - ------------------------------------ --------------------------- Douglas C. Yearley J. Steven Whisler Chairman and Chief Executive Officer President and Chief Operating Officer -----END PRIVACY-ENHANCED MESSAGE-----