TENDER AGREEMENT
TENDER AGREEMENT (this "Agreement"), dated November
30, 1995, by and between The Broken Hill Proprietary Company
Limited, a Victoria, Australia corporation ("Parent"), and
Warburg Pincus Capital Company, L.P., a Delaware limited
partnership ("Seller").
RECITALS
Concurrently herewith, Parent, certain subsidiaries
of Parent and Magma Copper Company (the "Company"), a
Delaware corporation, are entering into an Agreement and Plan
of Merger of even date herewith (the "Merger Agreement";
capitalized terms used but not defined herein shall have the
meanings set forth in the Merger Agreement), pursuant to
which Sub will make a tender offer (the "Offer") for all
outstanding shares of common stock, par value $.01 per share
(the "Common Stock"), of the Company, at a price of $28 per
share (the "Offer Price"), net to the seller in cash, to be
followed by a merger (the "Merger") of Sub with and into the
Company.
As of the date hereof, Seller beneficially owns
shares of Common Stock (such shares, together with any shares
of Common Stock acquired after the date hereof and prior to
the termination hereof, whether upon the exercise of options,
conversion of convertible securities or otherwise, collec-
tively, referred to herein as the "Shares").
As a condition to its willingness to enter into the
Merger Agreement and Sub's willingness to make the Offer,
Parent has required that Seller agree, and Seller has agreed,
to tender in the Offer all of the Shares owned by Seller on
the terms and conditions provided for herein.
AGREEMENT
To implement the foregoing and in consideration of
the mutual agreements contained herein, the parties agree as
follows:
1. Agreement to Tender and Vote.
1.1 Tender. Seller hereby agrees to validly ten-
der pursuant to the Offer, and not withdraw, all of the
Shares.
1.2 Voting. Seller hereby agrees that, during the
time this Agreement is in effect, at any meeting of the
stockholders of the Company, however called, Seller shall (a)
vote the Shares in favor of the Merger; (b) vote the Shares
against any action or agreement that would result in a breach
in any material respect of any covenant, representation or
warranty or any other obligation or agreement of the Company
under the Merger Agreement; and (c) vote the Shares against
any action or agreement (other than the Merger Agreement or
the transactions contemplated thereby) that would impede,
interfere with, delay, postpone or attempt to discourage the
Merger or the Offer, including, but not limited to: (i) any
extraordinary corporate transaction, such as a merger, con-
solidation or other business combination involving the Com-
pany and its subsidiaries; (ii) a sale or transfer of a mate-
rial amount of assets of the Company and its subsidiaries or
a reorganization, recapitalization or liquidation of the Com-
pany and its subsidiaries; or (iii) any change in the Com-
pany's management or in the board of directors of the Company
(the "Board"), except as otherwise agreed to in writing by
Parent.
2. Expiration. This Agreement and Seller's obli-
gation to tender and vote the Shares as provided hereto shall
terminate on the Expiration Date. As used herein, the term
"Expiration Date" means the first to occur of (a) the Effec-
tive Time, (b) termination of the Merger Agreement in accor-
dance with its terms, (c) the Board of Directors of the
Company having withdrawn its approval or recommendation of
the Offer or the Merger, (d) the Board of Directors of the
Company having modified its approval of the Offer or the
Merger in a manner adverse to Parent, and (e) written notice
of termination of this Agreement by Parent to Seller.
3. Representations and Warranties.
3.1 Representations and Warranties of Parent.
Parent hereby represents and warrants to Seller as follows:
(a) Due Authorization. This Agreement has been
duly authorized by all necessary corporate action on the
part of Parent, has been duly executed and delivered on
behalf of Parent by a duly authorized officer of Parent,
and is valid, binding and enforceable against Parent in
accordance with its terms except to the extent that
enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or
-2-
other similar laws relating to or affecting the enforce-
ment of creditors' rights generally or by equitable
principles. The execution, delivery and performance of
this Agreement by Parent and the consummation by it of
the transactions contemplated hereunder do not require
the consent, waiver, approval, license or authorization
of or any filing with any person or domestic public
authority and will not violate, result in a breach of or
the acceleration of any obligation under, or constitute
a default under, any provision of Parent's charter or
by-laws, or any indenture, mortgage, lease, agreement,
contract, instrument, order, judgment, ordinance, regu-
lation or decree specifically applicable to Parent, the
effect of which could impair the ability of Parent to
perform its obligations under this Agreement. Parent is
a corporation duly organized, validly existing and in
good standing under the laws of Victoria, Australia and
has the full corporate power and authority to execute,
deliver and perform this Agreement.
(b) Distribution. Parent is acquiring the Shares
for its own account for investment only and not with a
view to the distribution or resale of the Shares so ac-
quired. Any sale, transfer or other disposition of the
Shares by Parent will be made in compliance with all
applicable provisions of the 1933 Act, and the rules and
regulations thereunder.
3.2 Representations and Warranties of Seller.
Seller hereby represents and warrants to Parent as follows:
(a) Due Authorization. This Agreement has been
duly authorized by all necessary partnership action on
the part of Seller, has been duly executed and delivered
by a duly authorized officer of Seller, and is valid,
binding and enforceable against Seller in accordance
with its terms, except to the extent that enforceability
thereof may be limited by applicable bankruptcy, insol-
vency, reorganization, moratorium or other similar laws
relating to or affecting the enforcement of creditors'
rights generally or by equitable principles. The execu-
tion, delivery and performance of this Agreement by
Seller and the consummation by it of the transactions
contemplated hereunder do not require the consent,
waiver, approval, license or authorization of or any
filing (other than in compliance with the 1933 Act, the
Exchange Act, the Xxxx-Xxxxx-Xxxxxx Act, the rules of
the New York Stock Exchange, or securities or blue sky
laws), with any person or domestic public authority and
-3-
will not violate, result in a breach of or the accelera-
tion of any obligation under, or constitute a default
under, any provision of Seller's restriction set forth
in the Certificate of Limited Partnership or Agreement
of Limited Partnership, or any indenture, mortgage,
lease, agreement, contract, instrument, order, judgment,
ordinance, regulation or decree specifically applicable
to Seller, the effect of which would be material and
adverse to the ability of Seller to consummate the
transactions contemplated in this Agreement. Seller is
a limited partnership duly organized, validly existing
and in good standing under the laws of the State of Del-
aware and has the full partnership power and authority
to execute, deliver and perform this Agreement.
(b) Consent of Independent Directors. Prior to
the execution and delivery of this Agreement, Seller has
obtained written approval of the Company, in accordance
with the terms of the Standstill Agreement dated
November 30, 1988 between Seller and the Company (the
"Standstill Agreement"), of the transactions contem-
plated in this Agreement, including the approval of a
majority (but not less than two) of the Independent
Directors of the Company (as such term as defined in the
Standstill Agreement) to tender and vote all of the
Shares as contemplated by this Agreement.
(c) Shares. Seller beneficially owns all of the
Shares, and has good and marketable title thereto, free
and clear of all claims, liens, encumbrances, security
interests and charges of any nature whatsoever
(together, "Liens") other than the restrictions on
transfer set forth in the Standstill Agreement. Upon
the tender of the Shares pursuant to the Offer, Seller
shall transfer to the Parent good and valid title to the
Shares free and clear of all Liens.
4. Certain Covenants of Seller. Except in ac-
cordance with the terms of this Agreement, Seller hereby cov-
enants and agrees as follows:
4.1 No Solicitation. Seller shall not, directly
or indirectly, solicit any proposal by any person or entity
(other than Parent or any affiliate of Parent) which consti-
tutes, or may reasonably be expected to lead to, an Acquisi-
tion Proposal. Seller will immediately cease and cause to be
terminated any existing activities, discussions or negotia-
tions with any parties conducted heretofore with respect to
any of the foregoing.
-4-
4.2 Restriction on Transfer, Proxies and Non- In-
terference. Seller hereby agrees, while this Agreement is in
effect, and except as contemplated hereby, not to (i) sell,
transfer, pledge, encumber, assign or otherwise dispose of,
or enter into any contract, option or other arrangement or
understanding with respect to the sale, transfer, pledge,
encumbrance, assignment or other disposition of, any of the
Shares or (ii) grant any proxies, deposit any Shares into a
voting trust or enter into a voting agreement with respect to
any Shares or (iii) take any action that would make any rep-
resentation or warranty of Seller contained herein untrue or
incorrect or have the effect of preventing or disabling
Seller from performing his obligations under this Agreement.
4.3 Fiduciary Duties. Notwithstanding anything in
this Agreement to the contrary, the covenants and agreements
set forth herein shall not prevent any of the Seller's desig-
xxxx serving on the Company's Board of Directors from taking
any action, subject to the applicable provisions of the
Merger Agreement, while acting in such designee's capacity as
a director of the Company.
5. Further Assurances. From time to time, at the
other party's request and without further consideration, each
party hereto shall execute and deliver such additional docu-
ments and take all such further action as may be necessary or
desirable to consummate and make effective, in the most expe-
ditious manner practicable, the transactions contemplated by
this Agreement.
6. Miscellaneous.
6.1 Entire Agreement; Assignment. This Agreement
(i) constitutes the entire agreement among the parties with
respect to the subject matter hereof and supersedes all other
prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof
and (ii) shall not be assigned by operation of law or other-
wise, provided that Parent may assign its rights and obliga-
tions hereunder to any direct or indirect wholly owned sub-
sidiary of Parent, but no such assignment shall relieve Par-
ent of its obligations hereunder if such assignee does not
perform such obligations.
6.2 Amendments. This Agreement may not be modi-
fied, amended, altered or supplemented, except upon the ex-
ecution and delivery of a written agreement executed by the
parties hereto.
-5-
6.3 Notices. All notices, requests, claims, de-
mands and other communications hereunder shall be in writing
and shall be given (and shall be deemed to have been duly
received if so given) by hand delivery, telegram, telex or
telecopy, or by mail (registered or certified mail, postage
prepaid, return receipt requested) or by any courier service,
such as Federal Express, providing proof of delivery. All
communications hereunder shall be delivered to the respective
parties at the following addresses:
If to the Seller:
Warburg Pincus Capital Company, L.P.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxxxx
copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxx, Esq.
If to Parent:
The Broken Hill Proprietary
Company Limited
BHP Tower
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx
0000, Xxxxxxxxx
Attention: Corporate Secretary
copy to:
Xxxxxx & Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx, Esq.
or to such other address as the person to whom notice is
given may have previously furnished to the others in writing
in the manner set forth above.
-6-
6.4 Governing Law. This Agreement shall be gov-
erned by and construed in accordance with the laws of the
State of Delaware, regardless of the laws that might other-
wise govern under applicable principles of conflicts of laws
thereof.
6.5 Specific Performance. Each of the parties
hereto recognizes and acknowledges that a breach by it of any
covenants or agreements contained in this Agreement will
cause the other party to sustain damages for which it would
not have an adequate remedy at law for money damages, and
therefore each of the parties hereto agrees that in the event
of any such breach the aggrieved party shall be entitled to
the remedy of specific performance of such covenants and
agreements and injunctive and other equitable relief in addi-
tion to any other remedy to which it may be entitled, at law
or in equity.
6.6 Counterparts. This Agreement may be executed
in two counterparts, each of which shall be deemed to be an
original, but both of which shall constitute one and the same
Agreement.
6.7 Descriptive Headings. The descriptive head-
ings used herein are inserted for convenience of reference
only and are not intended to be part of or to affect the
meaning or interpretation of this Agreement.
6.8 Severability. Whenever possible, each provi-
sion or portion of any provision of this Agreement will be
interpreted in such manner as to be effective and valid under
applicable law but if any provision or portion of any provi-
sion of this Agreement is held to be invalid, illegal or un-
enforceable in any respect under any applicable law or rule
in any jurisdiction, such invalidity, illegality or unen-
forceability will not affect any other provision or portion
of any provision in such jurisdiction, and this Agreement
will be reformed, construed and enforced in such jurisdiction
as if such invalid, illegal or unenforceable provision or
portion of any provision had never been contained herein.
-7-
IN WITNESS WHEREOF, Parent and Seller have caused
this Agreement to be duly executed as of the day and year
first above written.
THE BROKEN HILL PROPRIETARY
COMPANY LIMITED
By: /s/ Xxxxxx X. XxXxxxxx
Name: Xxxxxx X. XxXxxxxx
Title: Executive General
Manager
WARBURG PINCUS CAPITAL
COMPANY, L.P.
By: WARBURG, XXXXXX & CO.,
General Partner
By: /s/ Xxxx X. Xxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxx
Title: General Partner
-8-