EXHIBIT (c)(3)
TENDER AGREEMENT
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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
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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, collectively,
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
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To implement the foregoing and in consideration of the mutual
agreements contained herein, the parties agree as follows:
1. Agreement to Tender and Vote.
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1.1 Tender. Seller hereby agrees to validly tender pursuant to the
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Offer, and not withdraw, all of the Shares.
1.2 Voting. Seller hereby agrees that, during the time this
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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,
consolidation or other business combination involving the Company and its
subsidiaries; (ii) a sale or transfer of a material amount of assets of the
Company and its subsidiaries or a reorganization, recapitalization or
liquidation of the Company and its subsidiaries; or (iii) any change in the
Company'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 obligation to tender and
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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
Effective Time, (b) termination of the Merger Agreement in accordance 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.
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3.1 Representations and Warranties of Parent. Parent hereby
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represents and warrants to Seller as follows:
(a) Due Authorization. This Agreement has been duly authorized by
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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
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other similar laws relating to or affecting the enforcement 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,
regulation 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
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for investment only and not with a view to the distribution or resale of
the Shares so acquired. 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
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represents and warrants to Parent as follows:
(a) Due Authorization. This Agreement has been duly authorized by
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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, insolvency, reorganization, moratorium or other
similar laws relating to or affecting the enforcement of creditors' rights
generally or by equitable principles. The execution, 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
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will not violate, result in a breach of or the acceleration 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 Delaware 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
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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 contemplated 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
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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 accordance with the terms
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of this Agreement, Seller hereby covenants and agrees as follows:
4.1 No Solicitation. Seller shall not, directly or indirectly,
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solicit any proposal by any person or entity (other than Parent or any affiliate
of Parent) which constitutes, or may reasonably be expected to lead to, an
Acquisition Proposal. Seller will immediately cease and cause to be terminated
any existing activities, discussions or negotiations with any parties conducted
heretofore with respect to any of the foregoing.
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4.2 Restriction on Transfer, Proxies and Non-Interference. Seller
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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 representation 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
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the contrary, the covenants and agreements set forth herein shall not prevent
any of the Seller's designees 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
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request and without further consideration, each party hereto shall execute and
deliver such additional documents and take all such further action as may be
necessary or desirable to consummate and make effective, in the most expeditious
manner practicable, the transactions contemplated by this Agreement.
6. Miscellaneous.
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6.1 Entire Agreement; Assignment. This Agreement (i) constitutes the
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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 otherwise, provided that Parent may assign
its rights and obligations hereunder to any direct or indirect wholly owned
subsidiary of Parent, but no such assignment shall relieve Parent of its
obligations hereunder if such assignee does not perform such obligations.
6.2 Amendments. This Agreement may not be modified, amended, altered
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or supplemented, except upon the execution and delivery of a written agreement
executed by the parties hereto.
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6.3 Notices. All notices, requests, claims, demands and other
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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.
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6.4 Governing Law. This Agreement shall be governed by and
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construed in accordance with the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
laws thereof.
6.5 Specific Performance. Each of the parties hereto recognizes and
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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 addition 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
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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 headings used herein are
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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 provision or portion of
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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
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability 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.
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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
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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
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Name: Xxxx X. Xxxxxxxxxx
Title: General Partner
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