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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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Schedule 14D-9
(Amendment No. 5)
SOLICITATION/RECOMMENDATION STATEMENT
PURSUANT TO SECTION 14(D)(4) OF THE
SECURITIES EXCHANGE ACT OF 1934
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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)
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232809 10 3 (Common Stock)
(CUSIP Number of Class of Securities)
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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)
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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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This statement amends and supplements the Solicitation/Recommendation
Statement on Schedule 14D-9 of Cyprus Amax Minerals Company, a Delaware
corporation ("Cyprus Amax"), filed with the Securities and Exchange Commission
(the "Commission") on September 9, 1999, as subsequently amended (the "Schedule
14D-9"), with respect to the exchange offer made by Phelps Dodge Corporation, a
New York corporation ("Phelps Dodge"), to exchange Phelps Dodge common stock,
par value $6.25 per share, for all of the outstanding shares of Cyprus Amax
common stock, no par value ("Cyprus Amax Common Stock"), on the terms and
conditions set forth in the Phelps Dodge Offer.
Capitalized terms used and not defined herein shall have the meanings
assigned to such terms in the Schedule 14D-9.
Item 3. Identity and Background.
Item 3(b) of the Schedule 14D-9 is hereby amended to include the
following:
At meetings of the Cyprus Amax Board of Directors held on September 24
and 27, 1999, the Board of Directors approved the following: (i) the
contribution of approximately $20.0 million into a rabbi trust to fund the
payment of benefits to 16 management employees of Cyprus Amax, including 8
executive officers, under existing change of control severance agreements; (ii)
the contribution of approximately $20.5 million into rabbi trusts to fund the
payment of benefits to employees of Cyprus Amax, including the executive
officers, and the non-employee directors under certain existing retirement and
deferred compensation plans; (iii) the amendment of existing change of control
severance agreements for John Taraba and one other executive officer to increase
the cash severance payment from two times to three times the sum of the
executives' base salary and annual bonus; (iv) the amendment of existing change
of control severance agreements for Mr. Taraba and two other executive officers
to provide that if the executive is not offered a job or does not accept a job
following a transaction with Phelps Dodge, the executive will be entitled to the
benefits payable under such agreements; (v) the payment of bonuses to bonus-
eligible Cyprus Amax employees, including the executive officers, for the
nine-month period beginning on January 1, 1999 and ending on September 30, 1999,
rather than for the twelve-month period ending December 31, 1999, in accordance
with the terms of the bonus plans currently in effect, upon the first to occur
of (a) shareholder approval of the merger with ASARCO by both the Cyprus Amax
and the ASARCO shareholders or (b) the execution by Cyprus Amax of a definitive
agreement to effectuate a transaction with a third party.
As a result of the actions of the Board of Directors described above,
assuming that the merger with ASARCO occurs on September 30, 1999, or a change
of control within the meaning of the change of control severance agreements
occurs on September 30, 1999, if the employment of Mr. Taraba and one other
executive officer were to be terminated immediately following such time, the
estimated amount of the additional cash severance payment payable to each of Mr.
Taraba and such other executive officer is approximately $400,000 and $300,000,
respectively.
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Item 7. Certain Negotiations and Transactions by the Subject Company.
Item 7 of the Schedule 14D-9 is hereby amended and restated as follows:
(a) and (b).
As discussed below in this Item 7, Cyprus Amax may undertake
discussions or negotiations that relate to or could 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.
The Board of Directors has authorized Cyprus Amax's management to
explore alternatives, in addition to the Phelps Dodge Offer, to the merger
agreement with ASARCO that would involve both Cyprus Amax and ASARCO. Management
has begun the process of making contacts in pursuit of this objective. However,
Cyprus Amax can give no assurance that any transaction would result from these
efforts.
The Board of Directors of Cyprus Amax has determined that disclosure at
this time with respect to the parties to, and the possible terms of, any
transactions or proposals of the type referred to above in this Item 7 might
jeopardize the continuation of any discussions or negotiations that Cyprus Amax
may conduct. Accordingly, the Board has adopted a resolution instructing
management not to disclose the possible terms of any such transaction or
proposals, or the parties thereto, unless authorized officers of Cyprus Amax
determine that it would be in the best interests of Cyprus Amax to do so.
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Item 9. Material to be Filed as Exhibits
Item 9 of the Schedule 14D-9 is hereby amended and restated as follows:
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.**
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.**
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Exhibit 16: Letter from Cyprus Amax and Asarco to shareholders, dated
September 10, 1999.**
Exhibit 17: Newspaper Advertisement by Cyprus Amax and Asarco dated September
10, 1999.**
Exhibit 18: Investor Presentation by Cyprus Amax and Asarco.**
Exhibit 19: Newspaper Advertisement by Cyprus Amax and Asarco dated September
17, 1999.**
Exhibit 20: Letter from Cyprus Amax and Asarco to shareholders, dated December
20, 1999.**
Exhibit 21: Investor Presentation by Cyprus Amax and Asarco. **
Exhibit 22: Press release issued by Cyprus Amax, dated September 27, 1999.
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* Included with Schedule 14D-9 mailed to stockholders.
** Previously Filed
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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
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Philip C. Wolf
Senior Vice President,
General Counsel and Secretary
Dated: September 27, 1999
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