Exhibit 2
SCHEME IMPLEMENTATION
AGREEMENT
▇▇▇▇▇▇ & BANKS LIMITED
ACN 002 888 762
TMP WORLDWIDE INC
CONTENTS
1. THE SCHEMES OF ARRANGEMENT 1
2. SCHEME OF ARRANGEMENT DOCUMENTATION 2
3. M&B'S OBLIGATIONS 4
4. TMP'S OBLIGATIONS 5
5. MEETINGS AND COURT APPROVALS GENERALLY 6
6. CONDITIONS PRECEDENT 7
7. RECOMMENDED SCHEME 9
8. TMP'S RIGHT TO SEPARATE REPRESENTATION 9
9. CONDUCT OF BUSINESS 9
10. REPRESENTATIONS AND WARRANTIES 10
11. TERMINATION RIGHTS 10
12. M&B INFORMATION 13
13. TMP ▇▇▇▇▇▇▇▇▇ ▇▇
▇▇. PUBLIC ANNOUNCEMENTS 14
15. STAMP DUTY 14
16. NOTICES 14
17. GENERAL 16
18. COUNTERPARTS 17
19. GOVERNING LAW AND JURISDICTION 17
20. ASSIGNMENT 20
ATTACHMENT A - DICTIONARY
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DATE
PARTIES
1. ▇▇▇▇▇▇ & BANKS LIMITED (M&B) ACN 002 888 762 of ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇
2. TMP WORLDWIDE INC (TMP) of ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇▇▇
BACKGROUND
A. At the request of TMP, M&B intends to propose the Schemes of Arrangement.
B. The Schemes of Arrangement can only be implemented if TMP is bound to
implement such steps as are required to be implemented by TMP in accordance
with the Schemes of Arrangement.
C. M&B and TMP have agreed by executing and delivering this agreement to
implement the terms of the Schemes of Arrangement and all steps
contemplated to follow the implementation thereof insofar as the same are
required to be implemented by them, subject to the terms and conditions set
out in this agreement.
THE PARTIES AGREE
1. THE SCHEMES OF ARRANGEMENT
1.1 GENERAL OBLIGATIONS OF M&B
Subject to satisfaction of the Conditions Precedent, M&B agrees to do all those
things and execute all those deeds, agreements and other documents as may be
necessary or expedient on its part to implement the Schemes of Arrangement.
1.2 GENERAL OBLIGATIONS OF TMP
Subject to satisfaction of the Conditions Precedent, TMP agrees to do all those
things and execute all those deeds, agreements and other documents as may be
necessary or expedient on its part to implement the Schemes of Arrangement.
1.3 DEED POLL - SCHEMES OF ARRANGEMENT
(a) TMP agrees to execute a deed poll in favour of the holders of Scheme
Shareholders and Scheme Optionholders undertaking to perform the acts
required by it under this agreement and the Schemes of Arrangement,
including without limitation, the provision of the Scheme Consideration in
accordance with the Schemes of Arrangement.
(b) TMP agrees to execute a deed poll in favour of the directors of M&B
undertaking to perform the acts required by it under this agreement.
1.4 MUTUAL FURTHER ASSURANCES
Each party must do all things necessary or expedient to be done by it in
connection with the matters referred to in clauses 1.1 and 1.2 subject to the
terms and conditions of this agreement.
2. SCHEME OF ARRANGEMENT DOCUMENTATION
2.1 SCHEME AND ASSOCIATED DOCUMENTS
(a) Subject to paragraph (b), M&B must prepare a draft of the Share Scheme
Booklet and the Options Scheme Booklet, which must include a copy of the
scheme of arrangement, the explanatory statement (as required by and in
compliance with section 412 of the Corporations Law) and such other
documents as may by law or practice be required in connection with the
Schemes of Arrangement, and drafts of all documents which are required to
be filed with the Court in connection with the orders proposed to be sought
pursuant to sections 411(1) and (4) of the Corporations Law and must
consult with TMP in relation to all such drafts and make such amendments to
such drafts as TMP reasonably requires. The schemes of arrangement which
are to be included in the Scheme Booklets must incorporate the basis for
determining the Scheme Consideration which has been agreed between the
parties and is set out in the definition of Scheme Consideration and must
include the features of the Schemes of Arrangement referred to in exhibits
"A" and "B" to this agreement.
(b) (1) TMP agrees with M&B, such agreement to be for the benefit of M&B
and separately for the benefit of each director of M&B and each
Scheme Shareholder and each Scheme Optionholder that it must
supply to M&B
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all information about TMP and TMP Shares required to be included
in the Scheme Booklets and must provide such assistance in
relation to the drafting of sections of the Scheme Booklets which
relate to TMP and TMP Shares, as M&B reasonably requires.
(2) Without limiting the generality of paragraph (1) TMP must provide
the following information about TMP and TMP Shares which must be
accurate and complete and not misleading (whether by omission or
otherwise) as at the date the explanatory statement for the Share
Scheme is registered by the ASIC pursuant to section 412(6) of
the Corporations Law:
- all such information as members of M&B and their
professional advisers would reasonably require and
reasonably expect to find in the explanatory statement for
the purpose of making an informed assessment of:
- the assets and liabilities, financial position, profits
and losses and prospects of TMP; and
- the rights attaching to TMP Shares;
- all such information which is required to be included in the
explanatory statement relating to the Share Scheme by virtue
of Part 3 of Schedule 8 to the Corporations Regulations;
- all such information which is required to be included in the
explanatory statement relating to the Options Scheme by
virtue of Part 2 of Schedule 8 to the Corporations
Regulations; and
- all such information which would be required to be included
in a Part A statement for a takeover scheme constituted in
accordance with chapter 6 of the Corporations Law where TMP
Shares were offered as consideration for the acquisition of
shares under the takeover scheme and, in particular, such
information as required by Section 750, Part A of the
Corporations Law.
(3) TMP must provide any specific information about TMP and TMP
Shares which M&B reasonably requests.
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(4) TMP is solely responsible for ensuring that the information it
provides to M&B about TMP and TMP Shares for inclusion in the
Scheme Booklet is in compliance with legal requirements and is
not misleading or deceptive and there are no material omissions
from that information.
2.2 UPDATE INFORMATION
If prior to the Court Approval Date there is a material change in relation to
TMP and TMP Shares which a reasonable person would reasonably expect to affect
the price or value of TMP Shares or the prospects of TMP then, as soon as
practicable after that change has occurred, TMP must provide all material
details of the change to M&B.
2.3 ASSISTANCE OF OFFICERS AND ADVISORS
Each party must procure that its officers and advisors work (including by
attending meetings and by providing information) in good faith and in a timely
and co-operative fashion with the other parties to implement the Schemes of
Arrangement and to prepare all documents required relating to the Schemes of
Arrangement.
2.4 ACKNOWLEDGEMENT
TMP and M&B acknowledge that M&B will hold the benefit of the agreements set out
in clauses 2.1 and 2.2 on trust for M&B and for each director of M&B, each
Scheme Shareholder and each Scheme Optionholder.
3. M&B'S OBLIGATIONS
3.1 M&B'S OBLIGATIONS IN RELATION TO SCHEMES OF ARRANGEMENT
Without in any way limiting the generality of clause 1.1, M&B must:
(a) apply to the Court for Orders under section 411(1) of the Corporations Law
convening meetings of holders of M&B Shares to consider the Share Scheme
and holders of M&B Options to consider the Options Scheme;
(b) convene the scheme meetings in accordance with any orders which are made by
the Court pursuant to section 411(1) of the Corporations Law;
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(c) use its best endeavours to obtain the approval of the holders of M&B Shares
to the Share Scheme by the requisite majority at the meeting, referred to
in paragraph (b);
(d) use its best endeavours to obtain the approval of the holders of M&B
Options to the Options Scheme by the requisite majority at the meeting
referred to in paragraph (b);
(e) if the holders of the M&B Shares approve the Share Scheme and the holders
of the M&B Options approve the Options Scheme, apply to the Court for its
approval of the Schemes of Arrangement under section 411(4) of the
Corporations Law;
(f) if the Court makes orders under section 411(4) of the Corporations Law
approving the Schemes of Arrangement lodge, as soon as practicable
thereafter, with the ASIC an office copy of the orders of the Court
approving the Schemes of Arrangement;
(g) subject to the Schemes of Arrangement, provide all necessary information
about the Scheme Shareholders and Scheme Optionholders to TMP which TMP
requires in order to facilitate the distribution by TMP of the Scheme
Consideration;
(h) use its best endeavours to satisfy the Conditions Precedent,
in each case, so far as reasonably practicable, in accordance with the
Timetable.
3.2 SHARE REGISTRY DETAILS
M&B must direct the M&B Share Registry to promptly provide any information that
TMP reasonably requests in relation to M&B's share register including any CHESS
sub-register and any issuer sponsored sub-register and, where requested by TMP,
M&B must procure for such information to be provided on a floppy disk (or in
such other electronic form as is reasonably requested by TMP).
4. TMP'S OBLIGATIONS
4.1 TMP'S OBLIGATIONS IN RELATION TO SCHEMES OF ARRANGEMENT
Without in any way limiting the generality of clause 1.2, TMP must:
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(a) make application to ASX to be admitted to the Official list of ASX as an
exempt foreign entity;
(b) register or cause to be registered the Scheme Shareholders (or the Nominee,
as the case may be) as the holders of the TMP Shares to which Scheme
Shareholders become entitled under the Share Scheme, as soon as practicable
following the Close of Registers;
(c) provide the Scheme Consideration in accordance with the Share Scheme;
(d) subject to the Share Scheme, issue share certificates or statements of
holdings of TMP Shares to the Scheme Shareholders (or to the Nominee, as
the case may be) who become entitled to TMP Shares under the Share Scheme
in the time required by the Share Scheme;
(e) pay any stamp duty which is payable in relation to the Schemes of
Arrangement or any transaction or step contemplated thereunder and on the
issue and allotment of the TMP Shares in accordance with the Schemes of
Arrangement;
(f) provide the consideration in accordance with the Options Scheme;
(g) use its best endeavours to satisfy the Conditions Precedent including
without limitation convening the meeting of holders of TMP Shares to obtain
their approval to the issue of TMP Shares pursuant to the Schemes of
Arrangement; and
(h) apply to the SEC for a declaration that the Registration Statement is
effective,
in each case, as far as reasonably practicable, in accordance with the
Timetable.
5. MEETINGS AND COURT APPROVALS GENERALLY
5.1 COURT REFUSES TO MAKE ORDERS
(a) If the Court refuses to make an order pursuant to section 411(1) of the
Corporations Law convening the meetings of holders of M&B Shares to
consider the Share Scheme and holders of M&B Options to consider the
Options Scheme, M&B must appeal the Court's decision to the fullest extent
possible except where the parties agree otherwise or M&B and TMP are each
advised by their legal counsel that an appeal would have no reasonable
prospect of success or there is a
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bona fide alternative offer which in the view of the directors of M&B must
be recommended in preference to the Schemes of Arrangement.
(b) The costs of any appeal shall be borne by M&B unless M&B's directors bona
fide determine that in their view it is not in M&B's best interests to
bring the appeal, in which case if TMP still requires that the appeal
should be brought, TMP must bear the costs thereof.
6. CONDITIONS PRECEDENT
6.1 CONDITIONAL OBLIGATION
TMP's obligations under the Schemes of Arrangement are subject to the
satisfaction of the following conditions, on or prior to the Court Approval
Date:
(a) the TMP Shares being approved for quotation and trading on a deferred
settlement basis from the Business Day next following the Effective Date by
the ASX, subject only to the Schemes of Arrangement being approved by the
Court pursuant to section 411(4) of the Corporations Law and taking effect
and to such other conditions as are acceptable to M&B and to TMP;
(b) the Treasurer of the Commonwealth of Australia (Treasurer) unconditionally
consenting to, or stating that he has no objection to the acquisition of
M&B Shares under the Share Scheme under the Commonwealth Government's
foreign investment policy or to similar effect or the Treasurer ceases to
be entitled to make orders under part II of the Foreign Acquisition and
▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ in respect of the acquisition of M&B Shares by TMP
under the Share Scheme;
(c) the Shareholders of TMP, by the requisite vote, approve the issue by TMP of
TMP Shares in accordance with the Schemes of Arrangement;
(d) the Affiliates of M&B executing an undertaking in the form of Exhibit "C";
and
(e) the SEC not objecting to TMP's treatment of the transaction as a pooling of
interests and declaring the Registration Statement effective.
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6.2 FAIRNESS OPINION
(a) TMP's obligations under the Schemes of Arrangement are also subject to TMP
receiving, on or prior to 24 September 1998 (or such later date agreed to
in writing by the parties), a fairness opinion from an expert in relation
to the transaction.
(b) In addition to the rights to termination set out in clause 11, but subject
to this clause, TMP may terminate this agreement and any further
obligations it has under this agreement if TMP has not received the
fairness opinion, referred to in paragraph (a), by 24 September 1998.
(c) TMP will be deemed for all purposes either to have received the fairness
opinion referred to in paragraph (a) or to have waived its right to
terminate this agreement in accordance with paragraph (b) if it does not
deliver written notice of termination of this agreement to M&B by 10.00 pm
Sydney Time on 24 September 1998.
6.3 BEST ENDEAVOURS
(a) The parties must use their respective best endeavours to satisfy the
Conditions Precedent prior to the Court Approval Date.
(b) TMP must use its best endeavours to ensure that the condition in clause
6.2(a) is satisfied on or before 24 September 1998.
6.4 ACTION OF PARTIES - GOVERNMENT AGENCIES
Without limiting the generality of clause 6.2, the parties must consult with
each other in relation to all communications (whether written or oral) proposed
to be made by or on their behalf to any Governmental Agency relating to the
Schemes of Arrangement and, without limiting the generality of the foregoing,
each party must:
(a) provide to the other party drafts of any written document proposed to be
sent to a Governmental Agency in Australia; and
(b) provide to the other party copies of any documents received from a
Governmental Agency in Australia, as soon as practicable after it is
received.
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6.5 ASSISTANCE OF OFFICERS AND ADVISORS
Each party must procure that its officers and advisors work (including by
attending meetings and by providing information) in good faith and in a timely
and co-operative fashion with the other parties to satisfy the Conditions
Precedent.
6.6 SUNSET DATE
If the Conditions Precedent are not satisfied before 14 December 1998 this
agreement will automatically terminate unless the parties otherwise agree and,
if relevant, the Court consents to the extended date.
7. RECOMMENDED SCHEME
The directors of M&B have resolved, in the absence either of a bona fide
alternative offer which in the view of the M&B directors must be recommended in
preference to the Schemes of Arrangement or for other reason which in law
requires the directors to alter their recommendation, that they will:
(i) recommend to the holders of M&B Shares that they approve the Share
Scheme;
(ii) recommend to the holders of the M&B Options that they approve the
Options Scheme; and
(iii) not make any public statement or take any other action which would
suggest that the merger proposal is not recommended by the directors.
8. TMP'S RIGHT TO SEPARATE REPRESENTATION
TMP is entitled to separate representation at all Court proceedings affecting
the Schemes of Arrangement. Nothing in this agreement shall be taken to give
M&B any right or power to make or give undertakings to the Court for or on
behalf of TMP.
9. CONDUCT OF BUSINESS
(a) From the date of this agreement to the Effective Date (inclusive), each
party and its subsidiaries must conduct their businesses in the ordinary
course.
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(b) From the date of this agreement until the Court Approval Date each party
must, as soon as practicable but in any event within 2 Business Days after
the occurrence of such an event, advise the other party of the occurrence
in relation to that party of an event to which clause 11.1(e) applies, the
acquisition or disposal of an asset for an amount in excess of $5,000,000
or the declaration or payment of a dividend.
10. REPRESENTATIONS AND WARRANTIES
10.1 MUTUAL WARRANTIES
M&B and TMP each represent and warrant to the other that:
(a) it is a corporation validly existing under the laws of its place of
incorporation;
(b) it has the corporate power to enter into and perform its obligations under
this agreement and to carry out the transactions contemplated by this
agreement;
(c) it has taken all necessary corporate action to authorise the entry into of
this agreement and has taken or will take all necessary corporate action to
authorise the performance of this agreement and to carry out the
transactions contemplated by this agreement; and
(d) this agreement is valid and binding upon it.
11. TERMINATION RIGHTS
11.1 TERMINATION EVENTS
A party (the terminating party) may terminate this agreement in accordance with
clause 11.2 if any of the following events occur:
(a) the Effective Date has not occurred by the Sunset Date (referred to in
clause 6.6);
(b) the representations and warranties given or made by the other party in this
agreement are not all materially true and correct at every time throughout
the period from the date of this agreement to the Court Approval Date as if
made at and by reference to the facts and circumstances subsisting at each
such time;
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(c) the other party is in breach of a material term of this agreement at any
time from the date of this agreement to the Court Approval Date;
(d) the Scheme Booklets disclose any information regarding M&B or TMP, which is
materially different from or materially contradicts (or contains material
information additional to) information regarding M&B or TMP or their
businesses which is in the public domain as at the date of this agreement;
(e) any material event occurs before the Court Approval Date which would
constitute either a "prescribed occurrence" as defined in section 603 of
the Corporations Law if the other party were a "target company" for the
purpose of that section (except as required or contemplated by this
agreement or the Schemes of Arrangement) or the other party acquires or
disposes of an asset for an amount in excess of $5,000,000 or the declares
or pays a dividend;
(f) the required majority of holders of M&B Shares fail to approve the Share
Scheme at the meeting convened by order of the Court pursuant to Section
411(1) of the Corporation Law;
(g) the required majority of holders of M&B Options fail to approve the Options
Scheme at the meeting convened by order of the Court pursuant to Section
411(1) of the Corporation Law;
(h) the Court fails to approve either the Share Scheme or the Options Scheme in
accordance with section 411(4) of the Corporations Law;
(i) the Court fails to make orders in accordance with section 411(1) of the
Corporations Law to convene the meeting of either holders of M&B Shares or
M&B Options and either an appeal from such failure is unsuccessful or the
parties, in accordance with this agreement, determine not to initiate an
appeal;
(j) the average of the last quoted sell price of TMP Shares at the close of
trading on NASDAQ on the 20 Business Days, during which TMP Shares were
traded on NASDAQ immediately before the Court Approval Date, is less than
US$25.00 per TMP Shares;
(k) the SEC fails by the date the Scheme Meetings are held to declare effective
the Registration Statement or objects to TMP's treatment of the transaction
as a pooling of interests; or
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(l) the other party becomes subject of an Insolvency Event prior to the Court
Approval Date.
11.2 RIGHT OF TERMINATION
(a) The terminating party may, in its absolute discretion, terminate this
agreement, by notice in writing to the other party, at any time prior to
the Court Approval Date but only within 5 Business Days of the right to
give a termination notice arising in accordance with this clause, in the
circumstances referred to in clauses 11.1(a), (f), (g), (h), (i), (k) and
(l);
(b) At any time prior to the Court Approval Date in the circumstances referred
to in clauses 11.1(b), (c), (d) and (e) the terminating party may give
notice to the other party setting out the relevant circumstances and
stating an intention to terminate and, if the relevant circumstances
continue to exist after five Business Days from the time such notice is
given, the terminating party may, in its absolute discretion but only
within the next following 5 Business Days, terminate this agreement by a
further notice in writing to the other party;
(c) TMP may terminate this agreement at any time prior to 10.00 a.m Sydney Time
on the Court Approval Date in the circumstances referred to in clause
11.1(j) by giving written notice to the other party stating that it
terminates this agreement and giving full and complete details of the
circumstances giving rise to the right to terminate;
(d) Any right to terminate this agreement pursuant to this clause 11.2 shall
cease at the time the Court makes orders pursuant to section 411(4) of the
Corporations Law approving the Schemes of Arrangement on the Court Approval
Date.
(e) In the event that a party terminates this agreement all further obligations
of the parties under this agreement shall immediately be terminated and
cease to be of further force and effect without further liability of any
party to the other, provided that nothing in this clause shall release any
party from liability for any pre-termination breach of this agreement.
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11.3 SURVIVAL OF AGREEMENTS
Unless this agreement is lawfully terminated in accordance with its terms it
shall survive the performance by the parties of their respective obligations
hereunder, but always subject to its terms.
12. M&B INFORMATION
12.1 TMP - REGISTRATION STATEMENT
(a) M&B must supply to TMP such information about M&B as TMP reasonably
requests so as to enable TMP to prepare the Registration Statement or any
other filing required to be made with the SEC.
(b) When providing information to TMP in accordance with paragraph (a), M&B
must ensure that the information is materially complete and accurate and is
not misleading whether by omission or otherwise.
(c) If requested to do so by TMP, M&B must procure that a director of M&B
certify at the time the information is supplied to TMP in accordance with
paragraph (a) that, to the best of the director's knowledge and belief, the
information which is being supplied by M&B to TMP conforms with paragraph
(b).
12.2 AUDITOR INFORMATION
M&B will (on or prior to the Court Approval Date) provide TMP a certificate
signed by a director of M&B stating that, to the best of the knowledge and
belief of that director, the information which has been provided to the auditor
of M&B (or which is known to the auditor of M&B through the conduct of audits of
M&B from time to time) to enable the auditor to provide an opinion to TMP on the
transactions contemplated by the Schemes of Arrangement qualifying for treatment
as a pooling of interests is materially complete and accurate and is not
misleading whether by omission or otherwise.
13. TMP GUARANTEE
(a) TMP is aware that, pursuant to a resolution of the shareholders of M&B
passed at the annual general meeting of M&B held on 7 August 1998, M&B was
authorised to enter into Deeds of Access and Indemnity with the directors
of M&B and
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further that M&B has, or within 7 days of the date of this agreement,
proposes to enter into such deeds with each director of M&B.
(b) TMP agrees with M&B, such agreement to be for the benefit of M&B and
separately for the benefit of each director of M&B and each Scheme
Shareholder and each Scheme Optionholder that, subject to the Schemes of
Arrangement taking effect, it unconditionally and irrevocably guarantees
(such guarantee to be a continuing guarantee) the due and punctual
performance of all the obligations and undertakings and provisions of M&B
under each such Deed of Access and Indemnity.
14. PUBLIC ANNOUNCEMENTS
(a) All press releases and other public announcements and presentations by M&B
or TMP relating to the transactions dealt with by this agreement must be in
terms agreed between the parties, provided, however, that the foregoing
shall not preclude communications or disclosures necessary to implement the
provisions of this agreement or to comply with or satisfy legal
requirements or legal obligations imposed on the parties or the obligations
of NASDAQ.
(b) Subject to paragraph (a) as soon as practicable after this agreement is
executed M&B will lodge with the ASX a stock exchange announcement in
substantially the form of Exhibit "A" to this agreement and TMP will lodge
with NASDAQ a stock exchange announcement in substantially the form of
Exhibit "B".
15. STAMP DUTY
TMP will bear all stamp duty payable in respect of this agreement and the
Schemes of Arrangement.
NOTICES
16.1 A notice, consent, request or any other communication under this agreement
must be in writing and must be left at the address of the addressee, or
sent by prepaid post (airmail if posted to or from a place outside
Australia) to the address of the addressee or sent by facsimile to the
facsimile number of the addressee specified below or any other address or
facsimile number the addressee requests.
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M&B:
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Address: C/- ▇▇▇▇▇▇ & Banks Limited
▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Facsimile: (▇▇) ▇▇▇▇ ▇▇▇▇
TMP:
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Address: C/- TMP Worldwide Inc
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: 0019 1 212 940 3908
16.2 A notice, consent, request or any other communication is taken to be
received:
(a) if by delivery, when it is delivered unless it is delivered on a day other
than a Business Day in which case it is taken to be received at 9.00am on
the next Business Day;
(b) if a letter, three days after posting (seven, if posted to or from a place
outside Australia); and
(c) if a facsimile, at the time of dispatch if the sender receives a
transmission report which confirms that the facsimile was sent in its
entirety to the facsimile number of the recipient.
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17. GENERAL
17.1 CUMULATIVE RIGHTS
The rights, powers and remedies of a party under this agreement are cumulative
with the rights, powers or remedies provided by law independently of this
agreement.
17.2 WAIVER AND VARIATION
A provision or a right under this agreement may not be waived except in writing
signed by the party granting the waiver, or varied except in writing signed by
the parties.
17.3 APPROVALS AND CONSENTS
A party may give or withhold its approval or consent conditionally or
unconditionally in its discretion unless this agreement states otherwise. Any
approved consent or agreement required pursuant to this agreement must be in
writing.
17.4 SPECIFIC PERFORMANCE
The parties acknowledge that monetary damages alone would not be adequate
compensation for a breach by any party of an obligation under this agreement and
that specific performance of that obligation is an appropriate remedy.
17.5 EFFECT OF AGREEMENT
This agreement supersedes any previous understandings or agreements between the
parties concerning the subject matter of this agreement.
17.6 COSTS
(a) If the condition set out in clause 6.1(c) is not satisfied by the date
referred to in clause 6.6 and this agreement terminates or if TMP
terminates this agreement in accordance with clause 11.1(j), TMP will
forthwith pay M&B the Cost Amount;
(b) If this agreement is terminated by reason that there occurs a termination
event under clauses 11.1(f) or (g) then M&B will forthwith pay TMP the Cost
Amount.
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18. COUNTERPARTS
This agreement may be executed in any number of counterparts and all those
counterparts taken together will constitute one instrument.
19. GOVERNING LAW AND JURISDICTION
19.1 NEW SOUTH WALES LAW
This agreement is governed by the laws of New South Wales.
19.2 SUBMISSION
For the exclusive benefit of M&B, the directors of M&B, Scheme Optionholders and
Scheme Shareholders, TMP irrevocably agrees that the courts of New South Wales
are to have non-exclusive jurisdiction to settle any disputes which may arise
out of or in connection with this agreement or the Schemes of Arrangement and
that accordingly any suit, action or proceeding (together in this clause
referred to as Proceedings) arising out of or in connection with this agreement
may, subject to this agreement, be brought in such Courts.
19.3 WAIVER
TMP irrevocably waives any objection which it may have now or in the future to:
(a) the laying of the venue of any Proceedings in any such Courts; and
(b) any claim that any such Proceedings have been brought in an inconvenient
forum, and further irrevocably agrees that a judgment in any Proceedings
brought in the Courts of New South Wales will be conclusive and binding
upon TMP and may be enforced in the courts of any other jurisdiction.
19.4 NO LIMITATION
Nothing contained in this clause 19 limits the right of M&B, the directors of
M&B, the Scheme Optionholders and the Scheme Shareholders to take Proceedings
against TMP in any other court of competent jurisdiction, nor will the taking of
Proceedings in one or more jurisdictions preclude the taking of Proceedings in
any other jurisdiction, whether concurrently or not.
17
19.5 NOTICES
TMP irrevocably agrees that any notice, writ, judgment, notice of process or
other notice in connection with any Proceedings shall be sufficiently and
effectively served on it:
(a) if delivered to Dunhill Madden ▇▇▇▇▇▇ solicitors of ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ in the case of any writ, judgment notice of process or
other notice in connection with Proceedings in New South Wales; or
(b) whether in the case of Proceedings other than New South Wales, if a copy
thereof is mailed by registered or certified air mail, postage prepaid, to
the address for the time being for the services of notices on it at its
last known business address in the United States of America.
19.6 CONSENT
TMP consents generally in respect of any Proceedings arising out of or in
connection with this agreement to the giving of any relief and the issue of any
process in connection with such Proceedings including, without limitation, the
making, enforcement or execution against any property whatsoever of any order or
judgment which may be made or given in such Proceedings.
19.7 IMMUNITY
To the extent that TMP may be entitled in any jurisdiction to claim for itself
or its assets immunity from suit, execution, attachment (whether in aid or
execution, before judgment or otherwise) or legal process or to the extent that
in any such jurisdiction there may be attributed to them or their assets such
immunity (whether or not claimed) TMP among other things irrevocably agrees not
to claim and irrevocably waives such immunity to the fullest extent permitted by
the laws of such jurisdiction with the intent that the above waivers of immunity
have irrevocable effect.
19.8 LIMITATION ON WARRANTIES
(a) All of the representations and warranties set forth in clause 10.1 of this
agreement (which are the only representations and warranties set out in
this agreement) or in any of the Transaction Documents shall survive the
execution, delivery and performance of this agreement and the consummation
of the transactions contemplated hereby, regardless of any investigation,
inquiry or examination made
18
for on behalf of or any knowledge of TMP, M&B or any of their respective
Affiliates, officers, directors, employees, agents, or representatives for
the applicable period of time set forth in the next sentences. Any such
representations, warranties or portions thereof the breach of or
misrepresentation with respect to which would be expected to be encountered
or discerned in TMP's audit of the financial statements containing combined
operations of TMP and M&B for the fiscal year in which closing occurs,
shall survive until the date TMP's independent certified public accountants
issue their final report and opinion on such audit. Any other such
representations, warranties or portions thereof shall survive for a period
of one year after the Effective Date.
It is understood and agreed that no claim for recovery of damages may be
asserted based on such a representation, warranty or applicable portion
thereof set forth in clause 10.1 of this agreement or in any of the
Transaction Documents after it has been extinguished in accordance with
this clause 19.8(a) hereof, except as to any matters with respect to which
a bona fide written claim shall have been made or an action at law or in
equity shall have commenced before such date, in which event survival shall
continue (but only with respect to and to the extent of, such claim or
action) until the earlier of resolution of such claim or action or the
resolution of such claim or action by the arbitrators as contemplated by
clause 19.8(b).
(b) In order to ensure that the transactions contemplated by the Schemes of
Arrangement qualify for treatment as a pooling of interests, the parties
agree that any dispute, disagreement or controversy between any party
relating to a warranty or representation hereunder that is not resolved by
the applicable Expiration Date shall promptly be submitted to the
Australian Commercial Disputes Centre Limited to be resolved by binding
arbitration in accordance with their rules. The place of arbitration shall
be Sydney, Australia. The arbitration tribunal shall be composed of three
arbitrators, one of whom shall be appointed by TMP within 10 business days
of the applicable Expiration Date and one of whom shall be appointed by the
other party or parties to the dispute, disagreement or controversy within
10 business days of the applicable Expiration Date and one of whom shall be
appointed by such two arbitrators within 15 business days of the applicable
Expiration Date. The arbitrators will be directed to resolve such dispute,
disagreement or controversy on the basis of the information provided to
them or soon as practicable and, in any event, within 60 days of the
applicable Expiration Date.
19
20. ASSIGNMENT
The rights and obligations of each party under this agreement are personal.
They cannot be assigned, charged or otherwise dealt with, and no party shall
attempt or purport to do so, without the prior written consent of the other
party.
20
SIGNED as an agreement.
THE COMMON SEAL of ▇▇▇▇▇▇ & BANKS
LIMITED is affixed in accordance with its
articles of association in the presence of:
/s/ P. Lardlaw /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------- -------------------------------
Secretary Director
SIGNED for and on behalf of TMP
WORLDWIDE INC by its authorised
representative
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------
Authorised Representative
21
ATTACHMENT A
DICTIONARY
PART 1 - DOCUMENTS
The documents to which this Dictionary has application are:
SCHEME IMPLEMENTATION AGREEMENT being the Agreement dated 17 August 1998 between
M&B and TMP which relates to the Schemes of Arrangement.
TRANSACTION DOCUMENTS being:
(a) the Scheme Implementation Agreement;
(b) the Deed Polls to be entered into by TMP in accordance with the Scheme
Implementation Agreement; and
(c) any document which is included in the Scheme Booklets.
PART 2 - DEFINED TERMS
AFFILIATES means directors of M&B and shareholders of M&B who have a beneficial
interest in not less than 10% of the entire issued share capital of M&B.
ASIC means the Australian Securities and Investments Commission.
ASX means Australian Stock Exchange Limited.
BUSINESS DAY means Monday to Friday inclusive except New Year's Day, Good
Friday, Easter Monday, Christmas Day, Boxing Day and any other day that ASX
declares is not a business day.
CLOSE OF REGISTERS means 5.00pm Sydney time on the Record Date.
CONDITIONS PRECEDENT means the conditions set out in clause 6.1 of the Scheme
Implementation Agreement.
COST AMOUNT means US$250,000.00.
COURT means the Supreme Court of New South Wales.
COURT APPROVAL DATE means the date when the Court grants its approval to the
Scheme under Section 411(4) of the Corporations Law.
EFFECTIVE DATE means the date when the Schemes of Arrangement take effect.
EXPIRATION DATE means the applicable survival period described in clause 19.8(b)
of the Scheme Implementation Agreement.
EXPLANATORY STATEMENT means the statement pursuant to section 412 of the
Corporations Law which has been, or will be, registered by the ASIC, a copy of
which will be included in the Share Scheme Booklet.
GOVERNMENTAL AGENCY means a government or governmental, semi-governmental,
administrative, fiscal or judicial body, department, commission, authority,
tribunal, agency or entity whether foreign, federal, state, territorial or
local.
INSOLVENCY EVENT means in relation to a party:
- the party becomes unable to pay its debts as and when they fall due;
- the making of any order, or the passing of any resolution, for the winding
up, liquidation or bankruptcy of the party;
- the appointment of a provisional liquidator, liquidator, receiver or a
receiver and manager to the party;
- the appointment of an administrator to the party;
- the entry by a party into any compromise or arrangement with creditors.
LISTING RULES means the official listing rules of ASX.
M&B means ▇▇▇▇▇▇ & Banks Limited ACN 002 888 762.
M&B OPTIONS means options to acquire shares in the capital of M&B which have
been granted by M&B and remain unexercised as at the date of the Scheme
Meetings.
M&B SHARES means ordinary shares issued in the capital of M&B at the date of the
Scheme Meetings, which have been fully paid and such other M&B Shares (if any)
agreed to by the parties as approved (if required) by the Court.
M&B SHARE REGISTRY means Registries Limited of ▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇.
NASDAQ means National Association of Securities Dealers Inc. National Market
System.
NOMINEE means the person so described in the Share Scheme.
OPTIONS REGISTER means any register of M&B Options which is maintained by M&B in
accordance with the Corporations Law.
OPTIONS SCHEME means the scheme of arrangement pursuant to Part 5.1 of the
Corporations Law proposed between M&B and the holders of M&B Options, a copy of
which will be included in the Options Scheme Booklet together with any
alteration or condition made or required pursuant to sub-section 411(6) of the
Corporations Law.
OPTIONS SCHEME BOOKLET means the booklet containing information about the
Options Scheme proposed to be sent to the holders of M&B Options, of which the
Options Scheme forms part.
PERSON includes bodies corporate or unincorporate.
RECORD DATE means seven Business Days after the Effective Date (or such other
period as may from time to time be provided for under the Listing Rules).
REGISTRATION STATEMENT means a form S-4 Registration Statement to be filed by
TMP with the SEC in relation to the TMP Shares.
SCHEME BOOKLETS means the Share Scheme Booklet and the Options Scheme Booklet.
SCHEME CONSIDERATION means:
(a) in relation to the Share Scheme:
(i) The effective consideration for each M&B Share being A$4.65, to be
satisfied by the issue of TMP Shares.
(ii) To calculate the number of TMP Shares to be issued to every Scheme
Shareholder apply the following formula (rounded up or down to the
nearest whole number):
M&BS X 4.65 X ER
----------------
HSP
Where:
- M&BS is the number of M&B Shares held by the Scheme Shareholder.
- ER is the rate at which Westpac Banking Corporation Sydney,
Australia will buy US$ for A$, ruling at 10.00am Sydney Time on
the Effective Date; and
- HSP means the lesser of:
- 40.00; and
- the average of the last quoted sell price of TMP Shares at
the close of trading on NASDAQ on the 20 Business Days
during which TMP Shares were traded on NASDAQ immediately
preceding the Court Approval Date.
(b) in relation to the Option Scheme means the same consideration as applies
under the Share Scheme (referred to in paragraph (a)) for each M&B Share
which, but for the operation of the Options Scheme, the holder of M&B
Options would be entitled to be issued on the exercise of the M&B Options
making appropriate adjustments for any capital reconstructions in M&B or
TMP between the Effective Date and the date the relevant M&B Option is
exercised.
SCHEME IMPLEMENTATION AGREEMENT means the agreement referred to in part 1 of
this Dictionary.
SCHEME MEETING means the meetings convened by the Court pursuant to Section
411(1) of the Corporations Law to consider the Share Scheme.
SCHEMES OF ARRANGEMENT means the Share Scheme and the Options Scheme.
SCHEME OPTIONHOLDER means a person registered in the Options Register at the
Effective Date as the holder of M&B Options.
SCHEME SHAREHOLDER means a person registered in the Share Register at the Close
of Registers as the holder of M&B Shares, after the registration by M&B of
transfers and transmissions in accordance with the Share Scheme.
SCHEME SHARES means M&B Shares held by Scheme Shareholders.
SEC means the Securities Exchange Commission of the United States of America.
SHARE REGISTER means any register of members of M&B kept pursuant to the
Corporations Law.
SHARE SCHEME means the scheme of arrangement pursuant to Part 5.1 of the
Corporations Law proposed between M&B and the holders of M&B Shares, a copy of
which will be included in the Share Scheme Booklet together with any alterations
or conditions made or required pursuant to sub-section 411(6) of the
Corporations Law.
SHARE SCHEME BOOKLET means the booklet containing information about the Share
Scheme proposed to be sent to the holders of M&B Shares, of which the Share
Scheme forms part.
TAKES EFFECT OR TAKING EFFECT means on and from the time when an office copy of
the Court Order approving the Share Scheme, pursuant to sub-sections 411(6) of
the Corporations Law are lodged with the ASIC.
TIMETABLE means the indicative timetable which will be included in the Scheme
Booklets a draft copy of which is Exhibit "D" to this agreement.
TMP means TMP Worldwide Inc.
TMP SHARES means shares in the capital of TMP to be allotted and issued to
Scheme Shareholders in accordance with the Share Scheme.
PART 3 - INTERPRETATION
(a) In this agreement unless the context otherwise requires:
(i) words importing the singular include the plural and vice versa;
(ii) words which are gender neutral or gender specific include each
gender;
(iii) other parts of speech and grammatical forms of a word or phrase
defined in this agreement have a corresponding meaning;
(iv) an expression importing a natural person includes a company,
partnership, joint venture, association, corporation or other
body corporate and a Government Agency;
(v) a reference to a thing (including, but not limited to, a
chose-in-action or other right) includes a part of that thing;
(vi) a reference to a clause, party, schedule or attachment is a
reference to a clause of this agreement, and a party, schedule or
attachment to, this agreement;
(vii) a reference to this agreement includes this Dictionary;
(viii) a reference to a law includes a constitutional provision, treaty,
decree, convention, statute, regulation, ordinance, by-law
judgment, rule of common law or equity or a rule of an applicable
stock exchange and is a reference to that law as amended,
consolidated or replaced;
(ix) a reference to a document includes all amendments or supplements
to that document, or replacements or novations of it;
(x) a reference to a party to a document includes that party's
successors and permitted assigns;
(xi) an agreement on the part of two or more persons binds them
severally; and
(b) Where the day on or by which something must be done is not a Business
Day, that thing must be done on or by the following Business Day.
(c) Headings are for convenience only and do not affect the interpretation
of a this agreement.
(d) This agreement may not be construed adversely to a party just because
that party prepared it.
(e) A term or expression starting with a capital letter:
(i) which is defined in this Dictionary, has the meaning given to it
in this Dictionary;
(ii) which is defined in the CORPORATIONS LAW but is not defined in
this Dictionary, has the same meaning as in the CORPORATIONS LAW;
and
(iii) which is defined in the Listing Rules of ASX or the SCH Business
Rules but is not defined in this Dictionary or the CORPORATIONS
LAW, has the same meaning as the same meaning as in the Listing
Rules of ASX or the SCH Business Rules.
Initialled by the parties.
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Date: