SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 12)
Magma Copper Company
(Name of Issuer)
Common Stock
(Title of Class of Securities)
559177 20 9
(CUSIP Number)
Andrew R. Brownstein
c/o Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, NY 10019
(212) 403-1000
(Name, address and telephone number of person authorized
to receive notices and communications)
November 30, 1995
(Date of Event which requires Filing of this Statement)
If the filing person has previously filed a statement on
Schedule 13G to report the acquisition which is the subject
of this Schedule 13D, and is filing this schedule because of
Rule 13d-1(b) (3) or (4), check the following box:
Check the following box if a fee is being paid with this
statement: <PAGE>
CUSIP NO. 559177 20 9
1. Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Warburg, Pincus Capital Company, L.P. 06-1183391
2. Check the Appropriate Box if a Member of a Group
(a)
(b) X
3. SEC Use Only
4. Source of Funds
00
5. Check Box if Disclosure of Legal Proceedings is Required
Pursuant to Items 2(d) or 2(e)
6. Citizenship or Place of Organization
Delaware
Number of 7. Sole Voting Power
Shares
Beneficially 8. Shared Voting Power
Owned by 16,899,616* Common
Each Reporting 9. Sole Dispositive Power
Person With
10. Shared Dispositive Power
16,899,616* Common
* Subject to the restrictions previously described in Item 4
of Schedule 13D. See also Item 5.
11. Aggregate Amount Beneficially Owned by Each Reporting
Person: 16,899,616
Common
See Item 5
12. Check if the Aggregate Amount in Row (11) Excludes Cer-
tain Shares
13. Percent of Class Represented by Amount in Row (11)
35.8% See Item 5
14. Type of Reporting Person
PN
<PAGE>
CUSIP NO. 559177 20 9
1. Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
E.M. Warburg, Pincus & Co., Inc. 13-2649089
2. Check the Appropriate Box if a Member of a Group
(a)
(b) X
3. SEC Use Only
4. Source of Funds
Not applicable
5. Check Box if Disclosure of Legal Proceedings is Required
Pursuant to Items 2(d) or 2(e)
6. Citizenship or Place of Organization
Delaware
Number of 7. Sole Voting Power
Shares
Beneficially 8. Shared Voting Power
Owned by 16,899,616* Common
Each Reporting 9. Sole Dispositive Power
Person With
10. Shared Dispositive Power
16,899,616* Common
11. Aggregate Amount Beneficially Owned by Each Reporting
Person: 16,899,616
Common
See Item 5
12. Check if the Aggregate Amount in Row (11) Excludes Cer-
tain Shares
13. Percent of Class Represented by Amount in Row (11)
35.8% See Item 5
14. Type of Reporting Person
CO
<PAGE>
CUSIP NO. 559177 20 9
1. Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Warburg, Pincus Ventures, Inc. 13-3040492
2. Check the Appropriate Box if a Member of a Group
(a)
(b) X
3. SEC Use Only
4. Source of Funds
Not applicable
5. Check Box if Disclosure of Legal Proceedings is Required
Pursuant to Items 2(d) or 2(e)
6. Citizenship or Place of Organization
Delaware
Number of 7. Sole Voting Power
Shares
Beneficially 8. Shared Voting Power
Owned by 16,899,616* Common
Each Reporting 9. Sole Dispositive Power
Person With
10. Shared Dispositive Power
16,899,616* Common
* Subject to the restrictions previously described in item 4
of Schedule 13D. See also Item 5.
11. Aggregate Amount Beneficially Owned by Each Reporting
Person: 16,899,616
Common
See Item 5
12. Check if the Aggregate Amount in Row (11) Excludes Cer-
tain Shares
13. Percent of Class Represented by Amount in Row (11)
35.8% See Item 5
14. Type of Reporting Person
CO
<PAGE>
CUSIP NO. 559177 20 9
1. Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Warburg, Pincus & Co. 13-6358475
2. Check the Appropriate Box if a Member of a Group
(a)
(b) X
3. SEC Use Only
4. Source of Funds
Not applicable
5. Check Box if Disclosure of Legal Proceedings is Required
Pursuant to Items 2(d) or 2(e)
6. Citizenship or Place of Organization
Delaware
Number of 7. Sole Voting Power
Shares
Beneficially 8. Shared Voting Power
Owned by 16,899,616* Common
Each Reporting 9. Sole Dispositive Power
Person With
10. Shared Dispositive Power
16,899,616* Common
* Subject to the restrictions previously described in item 4
of Schedule 13D. See also Item 5.
11. Aggregate Amount Beneficially Owned by Each Reporting
Person: 16,899,616
Common
See Item 5
12. Check if the Aggregate Amount in Row (11) Excludes Cer-
tain Shares
13. Percent of Class Represented by Amount in Row (11)
35.8% See Item 5
14. Type of Reporting Person
CO
<PAGE>
AMENDMENT NO. 12 TO
SCHEDULE 13D
RELATING TO THE COMMON STOCK OF
MAGMA COPPER COMPANY
This statement constitutes Amendment No. 12 to the
Schedule 13D filed December 1, 1988, as amended December 30,
1988, December 10, 1990, December 18, 1991, December 20, 1992,
December 29, 1992, March 3, 1994, March 10, 1994, May 11, 1994,
May 18, 1994, May 31, 1994 and June 10, 1994 by Warburg, Pincus
Capital Company, L.P. ("WPCC"), a Delaware limited partnership,
E.M. Warburg, Pincus & Co., Inc., a Delaware corporation, War-
burg, Pincus Ventures, Inc., a Delaware corporation, and War-
burg, Pincus & Co., a New York partnership, in connection with
the ownership of common stock, par value $.01 (the "Common
Stock"), of Magma Copper Company, a Delaware corporation (here-
inafter referred to as the "Company").
Item 4. Purpose of the Transaction, is hereby amended by add-
ing the following thereto:
After the close of business on November 30, 1995, the
Company entered into an Agreement and Plan of Merger (the
"Merger Agreement") with The Broken Hill Proprietary Company
Limited, a Victoria, Australia corporation ("Parent"), BHP
Holdings (USA) Inc., a subsidiary of Parent ("BHP") and BHP Sub
Inc., a subsidiary of BHP ("Purchaser"). Pursuant to the
Merger Agreement, and subject to the terms and conditions
thereof, Purchaser has agreed to make a offer (the "Offer") to
purchase all of the Company's outstanding Common Stock at a
price of not less than U.S. $28.00 per share, to be followed by
the merger (the "Merger") of Purchaser with and into the
Company. The Merger Agreement will be filed by the Company
with the Securities and Exchange Commission on or about
December 5, 1995 as an exhibit to the Company's Solicitation/
Recommendation Statement on a Schedule 14D-9.
Concurrently with the execution by the Company of the
Merger Agreement, WPCC entered into a Tender Agreement (the
"Tender Agreement") with Parent, pursuant to which WPCC agreed
to tender pursuant to the Offer all of the shares of Common
Stock owned (or subsequently acquired) by WPCC, and to vote
such shares (i) in favor of the Merger, (ii) against any action
or agreement that would result in a material breach under the
Merger Agreement and (iii) against any action or agreement<PAGE>
(other than the Merger Agreement and the transactions contem-
plated thereby) that is intended or could reasonably be ex-
pected to impede, interfere with, delay, postpone or attempt to
discourage the Merger or the Offer.
The Tender Agreement and WPCC's obligation to tender
and vote the shares covered thereby expires on the earliest of
(i) the effective time of the Merger, (ii) termination of the
Merger Agreement in accordance with its terms, (iii) the with-
drawal by the Company's Board of Directors of its approval or
recommendation of the Offer or the Merger, (iv) the modifica-
tion by the Company's Board of Directors of its approval of the
Offer or the Merger in a manner adverse to Parent and (v) writ-
ten notice of termination of the Tender Agreement by Parent to
WPCC.
Pursuant to the Tender Agreement, WPCC has also
agreed, among other things, not to transfer, pledge, grant
proxies or effect similar transactions involving the shares of
Common Stock owned by it, and not to solicit, encourage or take
an other action to facilitate inquiries or proposals which
could lead to a takeover proposal by a third party involving
the Company.
The foregoing description of the Tender Agreement is
qualified in its entirety by reference to the Tender Agreement,
which is attached hereto as Exhibit 14 and is incorporated
herein by reference.
Item 5. Interest in Securities of the Issuer, is hereby
amended by deleting the paragraph beginning "Accord-
ingly, WPCC now holds 16,007,143 shares..." and add-
ing the following thereto:
On November 28, 1995, Warburg exercised all of the
892,473 warrants it held at an exercise price of $8.50 per war-
rant, or an aggregate exercise price of $7,586,020, and upon
such exercise received 892,473 shares of Common Stock. Accord-
ingly, as of November 30, 1995, WPCC held 16,889,616 shares of
Common Stock, and no warrants to purchase Common Stock, which
shares represent approximately 35.8% of the total outstanding
shares of Common Stock, based upon the 46,376,384 shares of
Common Stock reported outstanding as of the date of the
Company's Form 10-Q for the quarterly period ended September
30, 1995, and calculated in accordance with Rule 13d-3.
-2-<PAGE>
Item 6. Contracts, Arrangements, Understandings or
Relationships With Respect to Securities of the
Issuer, is hereby amended by adding the following
thereto:
On November 30, 1995, WPCC entered into the Tender
Agreement with Parent, pursuant to which, among other things,
WPCC agreed to tender the shares of Common Stock owned by it in
the Offer. See Item 4, and Exhibits 14 and 15.
Item 7. Material to be Filed as Exhibits, is hereby amended
by adding the following thereto:
14 Tender Agreement, dated November 30, 1995, by
and between WPCC and Parent.
-3-<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowl-
edge and belief, I certify that the information set forth in
this statement is true, complete and correct.
WARBURG, PINCUS CAPITAL COMPANY, L.P.
By: WARBURG, PINCUS & CO.,
General Partner
By: /s/ Stephen Distler
Name: Stephen Distler
Title: Partner
E.M. WARBURG, PINCUS & CO., INC.
By: /s/ Stephen Distler
Name: Stephen Distler
Title: Managing Director
WARBURG, PINCUS VENTURES, INC.
By: /s/ Stephen Distler
Name: Stephen Distler
Title: Managing Director
WARBURG, PINCUS & CO.
By: /s/ Stephen Distler
Name: Stephen Distler
Title: Partner
Dated: December 4, 1995<PAGE>
SCHEDULE I
Set forth below is the name, position and present
principal occupation of each of the directors and executive
officers of E.M. Warburg, Pincus & Co., Inc. ("EMW") and War-
burg, Pincus Ventures, Inc. ("WPV") and of each of the gen-
eral partners of Warburg, Pincus Capital Company, L.P.
("WPCC"), and Warburg, Pincus & Co. ("WP"). EMW, WPV, WPCC
and WP are hereinafter collectively referred to as the "Re-
porting Entities". Except as otherwise indicated, the busi-
ness address of each of such persons is 466 Lexington Avenue,
New York, New York 10017, and each of such persons is a citi-
zen of the United States.
Directors and Executive Officers of
E.M. Warburg, Pincus & Co., Inc.
Present Principal Occupation in
Addition to the Position with
EMW, if any, and Positions with
Name and Position the Reporting Entities
Lionel I. Pincus, Chairman Chairman of the Board and Chief
of the Board and Chief Executive Officer, WPV;
Executive Officer Managing Partner, WP; Managing
Partner, Pincus & Co. (See
Partners of WP.)
John L. Vogelstein, Vice President and Director, WPV;
Chairman of the Board Partner, WP.
and President
John L. Furth, Vice Director and Managing Director,
Chairman of the Board WPV; Partner, WP.
Harold Brown, Managing Director, WPV;
Senior Managing Director Partner, WP.
Rodman W. Moorhead III, Managing Director, WPV;
Senior Managing Director Partner, WP.
Susan Black, Partner, WP.
Managing Director
Christopher W. Brody, Managing Director, WPV;
Managing Director Partner, WP.<PAGE>
Dale C. Christensen1
Managing Director
Errol M. Cook Managing Director, WPV;
Managing Director Partner, WP.
Elizabeth B. Dater Managing Director, WPV;
Managing Director Partner, WP.
Stephen Distler, Managing Managing Director and Controller
Director and Treasurer WPV; Partner, WP.
Louis G. Elson Managing Director, WPV;
Managing Director Partner, WP.
Stuart M. Goode, Managing Director, WPV;
Managing Director Partner, WP.
Stewart K.P. Gross, Managing Director, WPV;
Managing Director Partner, WP.
Patrick T. Hackett, Managing Director, WPV;
Managing Director Partner, WP.
Jeffrey A. Harris, Managing Director, WPV;
Managing Director Partner, WP.
Robert S. Hillas, Managing Director, WPV;
Managing Director Partner, WP.
A. Michael Hoffman, Managing Director, WPV;
Managing Director Partner, WP.
William H. Janeway, Managing Director, WPV;
Managing Director Partner, WP.
Douglas M. Karp, Managing Director, WPV;
Managing Director Partner, WP.
Charles R. Kaye, Managing Director, WPV;
Managing Director Partner, WP.
____________________
1 Citizen of Canada.<PAGE>
Richard H. King,2
Managing Director
Henry Kressel, Managing Director, WPV;
Managing Director Partner, WP.
Joseph P. Landy, Managing Director, WPV;
Managing Director Partner, WP.
Sidney Lapidus, Managing Director, WPV;
Managing Director Partner, WP.
Edwin F. LeGard, Jr., Partner, WP.
Managing Director
Reuben S. Leibowitz, Managing Director, WPV;
Managing Director Partner, WP.
Stephen J. Lurito, Partner, WP.
Managing Director
Spencer S. Marsh III, Partner, WP.
Managing Director
Edward J. McKinley, Managing Director, WPV;
Managing Director Partner, WP.
Howard H. Newman, Managing Director, WPV;
Managing Director Partner, WP.
Anthony G. Orphanos, Partner, WP.
Managing Director
Judhvir Parmar,3 Managing Director, WPV.
Managing Director
Eugene L. Podsiadlo Partner, WP.
Managing Director
Ernest H. Pomerantz, Managing Director, WPV;
Managing Director Partner, WP.
____________________
2 Citizen of United Kingdom.
3 Citizen of India.<PAGE>
Arnold M. Reichman, Managing Director, WPV;
Managing Director Partner, WP.
Roger Reinlieb, Partner, WP.
Managing Director
Sheila N. Scott, Partner, WP.
Managing Director
Dominic H. Shorthouse,4 Managing Director, WPV.
Managing Director
Peter Stalker III, Managing Director, WPV;
Managing Director Partner, WP.
David A. Tanner, Managing Director, WPV;
Managing Director Partner, WP.
James E. Thomas, Managing Director, WPV;
Managing Director Partner, WP.
Joanne R. Wenig, Managing Director, WPV;
Managing Director Partner, WP.
George U. Wyper Partner, WP.
Managing Director
____________________
4 Citizen of United Kingdom.<PAGE>
Directors and Executive Officers
of Warburg, Pincus Ventures, Inc.
Present Principal Occupation in
Addition to the Position with
WPV, if any, and Positions with
Name and Position the Reporting Entities
Lionel I. Pincus, Chairman (See Directors and Executive
of the Board and Chief Officers of EMW.)
Executive Officer
John L. Vogelstein, (See Directors and Executive
President and Director Officers of EMW.)
John L. Furth, Managing (See Directors and Executive
Director and Director Officers of EMW.)
Christopher W. Brody, (See Directors and Executive
Managing Director Officers of EMW.)
Harold Brown, (See Directors and Executive
Managing Director Officers of EMW.)
Errol M. Cook, (See Directors and Executive
Managing Director Officers of EMW.)
Elizabeth B. Dater, (See Directors and Executive
Managing Director Officers of EMW.)
Stephen Distler, Managing (See Directors and Executive
Director and Treasurer Officers of EMW.)
Louis G. Elson (See Directors and Executive
Managing Director Officers of EMW.)
Stuart M. Goode, (See Directors and Executive
Managing Director Officers of EMW.)
Stewart K.P. Gross, (See Directors and Executive
Managing Director Officers of EMW.)
Patrick T. Hackett, (See Directors and Executive
Managing Director Officers of EMW.)
Jeffrey A. Harris, (See Directors and Executive
Managing Director Officers of EMW.)<PAGE>
Robert S. Hillas, (See Directors and Executive
Managing Director Officers of EMW.)
A. Michael Hoffman, (See Directors and Executive
Managing Director Officers of EMW.)
William H. Janeway, (See Directors and Executive
Managing Director Officers of EMW.)
Douglas M. Karp, (See Directors and Executive
Managing Director Officers of EMW.)
Charles R. Kaye, (See Directors and Executive
Managing Director Officers of EMW.)
Henry Kressel, (See Directors and Executive
Managing Director Officers of EMW.)
Joseph P. Landy, (See Directors and Executive
Managing Director Officers of EMW.)
Sidney Lapidus, (See Directors and Executive
Managing Director Officers of EMW.)
Reuben S. Leibowitz, (See Directors and Executive
Managing Director Officers of EMW.)
Edward J. McKinley, (See Directors and Executive
Managing Director Officers of EMW.)
Rodman W. Moorhead III, (See Directors and Executive
Managing Director Officers of EMW.)
Howard H. Newman, (See Directors and Executive
Managing Director Officers of EMW.)
Judhvir Parmar, (See Directors and Executive
Managing Director Officers of EMW.)
Ernest H. Pomerantz, (See Directors and Executive
Managing Director Officers of EMW.)
Arnold M. Reichman, (See Directors and Executive
Managing Director Officers of EMW.)
Dominic H. Shorthouse, (See Directors and Executive
Managing Director Officers of EMW.)
Peter Stalker III, (See Directors and Executive
Managing Director Officers of EMW.)<PAGE>
David A. Tanner, (See Directors and Executive
Managing Director Officers of EMW.)
James E. Thomas, (See Directors and Executive
Managing Director Officers of EMW.)
Joanne R. Wenig, (See Directors and Executive
Managing Director Officers of EMW.)<PAGE>
General Partners of Warburg, Pincus & Co.
Present Principal Occupation in
Addition to the Position with
Warburg, Pincus & Co. and Posi-
Name tions with the Reporting Entities
Susan Black (See Directors and Executive
Officers of EMW.)
Christopher W. Brody (See Directors and Executive
Officers of EMW.)
Harold Brown (See Directors and Executive
Officers of EMW.)
Errol M. Cook (See Directors and Executive
Officers of EMW.)
Elizabeth B. Dater (See Directors and Executive
Officers of EMW.)
Stephen Distler (See Directors and Executive
Officers of EMW.)
Louis G. Elson (See Directors and Executive
Officers of EMW.)
John L. Furth (See Directors and Executive
Officers of EMW.)
Stuart M. Goode (See Directors and Executive
Officers of EMW.)
Stewart K.P. Gross (See Directors and Executive
Officers of EMW.)
Patrick T. Hackett (See Directors and Executive
Officers of EMW.)
Jeffrey A. Harris (See Directors and Executive
Officers of EMW.)
Robert S. Hillas (See Directors and Executive
Officers of EMW.)
A. Michael Hoffman (See Directors and Executive
Officers of EMW.)<PAGE>
William H. Janeway (See Directors and Executive
Officers of EMW.)
Douglas M. Karp (See Directors and Executive
Officers of EMW.)
Charles R. Kaye (See Directors and Executive
Officers of EMW.)
Henry Kressel (See Directors and Executive
Officers of EMW.)
Joseph P. Landy (See Directors and Executive
Officers of EMW.)
Sidney Lapidus (See Directors and Executive Of-
ficers of EMW.)
Edwin F. LeGard, Jr. (See Directors and Executive
Officers of EMW.)
Reuben S. Leibowitz (See Directors and Executive
Officers of EMW.)
Stephen J. Lurito (See Directors and Executive
Officers of EMW.)
Spencer S. Marsh III (See Directors and Executive
Officers of EMW.)
Edward J. McKinley (See Directors and Executive
Officers of EMW.)
Rodman W. Moorhead III (See Directors and Executive
Officers of EMW.)
Howard H. Newman (See Directors and Executive
Officers of EMW.)
Anthony G. Orphanos (See Directors and Executive
Officers of EMW.)
Lionel I. Pincus (See Directors and Executive
Officers of EMW.)
Eugene L. Podsiadlo (See Directors and Executive
Officers of EMW.)
Ernest H. Pomerantz (See Directors and Executive
Officers of EMW.)<PAGE>
Arnold M. Reichman (See Directors and Executive
Officers of EMW.)
Roger Reinlieb (See Directors and Executive
Officers of EMW.)
Sheila N. Scott (See Directors and Executive
Officers of EMW.)
Peter Stalker III (See Directors and Executive
Officers of EMW.)
David A. Tanner (See Directors and Executive
Officers of EMW.)
James E. Thomas (See Directors and Executive
Officers of EMW.)
John L. Vogelstein (See Directors and Executive
Officers of EMW.)
Joanne R. Wenig (See Directors and Executive
Officers of EMW.)
George U. Wyper (See Directors and Executive
Officers of EMW.)
Pincus & Co.*
NL & Co.*
General Partner of
Warburg, Pincus Capital Company, L.P.
Warburg, Pincus & Co. (See General Partners of WP.)
____________________
* New York limited partnership; primary activity is owner-
ship of partnership interest in WP.<PAGE>
Index to Exhibits
Exhibit Description
14 Tender Agreement, dated November 30, 1995, by
and between Warburg Pincus Capital Company, L.P.
and The Broken Hill Proprietary Company Limited.
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.<PAGE>
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-<PAGE>
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 Hart-Scott-Rodino Act, the rules of
the New York Stock Exchange, or securities or blue sky
laws), with any person or domestic public authority and
-3-<PAGE>
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-<PAGE>
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-
nees 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-<PAGE>
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.
466 Lexington Avenue
New York, New York 10017
Attention: John L. Vogelstein
copy to:
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
Attention: Andrew R. Brownstein, Esq.
If to Parent:
The Broken Hill Proprietary
Company Limited
BHP Tower
600 Bourke Street
Melbourne, Victoria
3000, Australia
Attention: Corporate Secretary
copy to:
Arnold & Porter
399 Park Avenue
New York, New York 10022
Attention: Joseph Handros, 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-<PAGE>
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-<PAGE>
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/ Graeme W. McGregor
Name: Graeme W. McGregor
Title: Executive General
Manager
WARBURG PINCUS CAPITAL
COMPANY, L.P.
By: WARBURG, PINCUS & CO.,
General Partner
By: /s/ John L. Vogelstein
Name: John L. Vogelstein
Title: General Partner
-8-
