FORM OF
OPTION AGREEMENT
This Agreement (this "Agreement") is made as of this 1st day of
January, 1995 among TMP Worldwide Inc., a Delaware corporation ("TMP"), Rogers
Acquisition Corp., a Delaware corporation ("Xxxxxx") and _________ ("Optionee").
W I T N E S S E T H:
WHEREAS, Xxxxxx, Optionee and certain other parties are parties to a
Stock Purchase Agreement, dated as of January 1, 1995 (the "Stock Purchase
Agreement"), pursuant to which, among other things, Xxxxxx is acquiring all of
the issued and outstanding capital stock of Xxxx, Xxxxxxxxx & Xxxxx, Inc., a
California corporation; and
WHEREAS, it is a condition to the consummation of the transactions
contemplated by the Stock Purchase Agreement that Xxxxxx and TMP, an affiliate
of Xxxxxx, enter into this agreement; and
WHEREAS, Xxxxxx and TMP are desirous that the transactions
contemplated by the Stock Purchase Agreement be consummated.
NOW, THEREFORE, it is agreed among the parties as follows:
1. Definitions
"Common Stock" means the Common Stock, par value $.01 per
share, of TMP.
"Exercise Period" means the period beginning on the day of
closing of the Qualifying Public Offering and ending on the earlier of (i) the
date which is four (4) years after the closing of a Qualifying Public Offering
and (ii) December 31, 1999.
"Initial Public Offering Price Per Share" means the per share
price to public of the shares of Common Stock in the Qualifying Public Offering.
"Payment Option Exercise Period" means the period beginning on
January 1, 1998 and ending on January 3, 2000.
"Qualifying Public Offering" means the first firm commitment
underwritten public offering of Common Stock for the account of TMP which is
effected pursuant to a registration statement filed with, and declared effective
by, the Securities and Exchange Commission under the Securities Act, with
proceeds to TMP, exclusive of any overallotment option, of not less than
$15,000,000.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations thereunder, and shall include any successor
statute, rules and regulations.
2. Option
(a) TMP hereby grants to Optionee an option (the "Option"),
exercisable only during the Exercise Period, to acquire all, but not less than
all, of the number of whole shares of Common Stock which is determined by
dividing $_______ by the Initial Public Offering Price Per Share, rounded down
to the nearest whole number (the "Option Shares").
(b) The Option must be exercised, if at all, during the
Exercise Period only by the delivery during the Exercise Period by Optionee to
TMP and Xxxxxx of a written notice (the "Option Notice") specifying the exercise
of the Option. In the event the Option is not exercised during the Exercise
Period in accordance with the terms hereof, the Option shall expire and be of no
force or effect. It is expressly understood and agreed that the Option is not
divisible and must be exercised, if at all, with respect to all of the Option
Shares.
(c) Optionee shall have no rights as a stockholder of TMP with
respect to the Option Shares until the Option Shares have been purchased and
paid for in accordance with the terms of this Option and until certificates
representing the Option Shares shall have been issued in the name of Optionee in
accordance with the terms hereof.
(d) The obligation of TMP to issue and sell the Option Shares
to Optionee is expressly conditioned on Optionee representing and warranting to
TMP in the Option Notice that each of the representations and warranties set
forth in Section 3 hereof is true as of the date of the exercise of the Option
as if made on and as of such date.
(e) No fractional shares of Common Stock shall be issued upon
exercise of the Option, it being understood that the formula for determining the
number of shares of Common Stock to which the Optionee is entitled requires the
rounding down to the nearest whole number.
(f) Upon delivery of the Option Notice to TMP and Xxxxxx in
accordance with this Section 2, the Payment Option (as defined in Section 4
below) shall be automatically, without the necessity of any further action by
any party, terminated and of no force or effect.
(g) It is understood and agreed that the decision as to
whether TMP shall commence an initial public offering or Qualifying Public
Offering shall remain solely in the discretion of TMP, and nothing herein shall
be deemed to obligate TMP to commence any such offering.
3. Representations and Warranties of Optionee. In order to induce
TMP and Xxxxxx to execute and deliver this Agreement, and acknowledging that TMP
and Xxxxxx are relying thereon, Optionee hereby represents and warrants, and, as
a condition to TMP's obligation to deliver the Option Shares to Optionee,
Optionee shall represent and warrant to TMP as of the date of Optionee's
exercise of the Option, as follows:
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(a) Optionee has adequate means of providing for Optionee's
current needs and contingencies and Optionee has no need now and anticipates no
need in the foreseeable future to sell the Option or the shares of Common Stock
issuable upon exercise thereof. Optionee will be able to bear the economic risks
of the transactions contemplated hereby and consequently, without limiting the
generality of the foregoing, Optionee will be able to hold the Option or the
shares of Common Stock issuable upon exercise thereof for an indefinite period
of time and has a sufficient net worth to sustain a loss of Optionee's entire
investment in TMP in the event such loss should occur.
(b) Optionee, its advisors, if any, and its representatives,
if any, have such knowledge and experience in financial and business matters as
to be capable of evaluating the merits and risks of the transactions
contemplated hereby and of protecting Optionee's interests in connection
herewith. Optionee recognizes that the transactions contemplated hereby involve
a high degree of risk. Optionee further understands that the Option and the
shares of Common Stock underlying the Option are highly speculative and are not
suitable for investors who cannot afford to lose all of their investment.
Optionee is familiar with the nature of, and risks attendant to, investments in
securities such as the Option and the shares of Common Stock underlying the
Option and has determined that the acquisition of such securities is consistent
with Optionee's investment objectives.
(c) The Optionee has acquired the Option, and in the event of
exercise of the Option, will acquire the shares of the Common Stock underlying
the Option, for Optionee's own account for investment and not with a view to or
for resale in connection with any distribution thereof.
(d) Optionee has not offered or sold any portion of the Option
or the shares of Common Stock underlying the Option and has no present intention
of dividing the Option or the shares of Common Stock underlying the Option with
others or of selling, distributing or otherwise disposing of any portion of the
Option or the shares of Common Stock underlying the Option either currently or
after the passage of a fixed or determinable period of time or upon the
occurrence or non-occurrence of any predetermined event or circumstance. No one
other than Optionee has any interest in the Option or the shares of Common Stock
underlying the Option.
(e) Optionee is aware that Optionee must bear the economic
risk of Optionee's investment in TMP for an indefinite period of time because
the Option and the shares of Common Stock underlying the Option will not be
registered under the Securities Act, or under the securities laws of various
states and, therefore, such securities cannot be sold unless they are
subsequently registered under the Securities Act and any applicable state
securities laws or an exemption from registration is available. Further,
Optionee understands that only TMP can take action so as to register the Option
and the shares of Common Stock underlying the Option on behalf of TMP and TMP is
under no obligation to do so, and does not otherwise propose to do so. The
undersigned understands that the Option and the shares of Common Stock
underlying the Option have not been approved or disapproved by the Securities
and Exchange Commission or by any other federal or state agency, and no such
agency has passed on the
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accuracy or adequacy of this Agreement, the Stock Purchase Agreement or any of
the other Transaction Documents (as defined in the Stock Purchase Agreement).
(f) Optionee understands and acknowledges that the Option and,
upon exercise of the Option in accordance with the terms hereof, the shares of
Common Stock underlying the Option, are or will be offered and sold in reliance
upon the exemption from registration provided by Section 4(2) of the Securities
Act; that the reliance of TMP and Xxxxxx upon that exemption is predicated, in
part, on the representations and warranties made and to be made by Optionee in
and pursuant to this Agreement; and that the aforementioned exemption may not be
available if any of those representations and warranties are not true and
accurate. Optionee understands and agrees that Optionee cannot sell, transfer or
otherwise dispose of all or any portion of the Option or the shares of Common
Stock underlying the Option without an opinion of counsel satisfactory to TMP
that the transaction contemplated by Optionee would not be in violation of the
Securities Act or any applicable securities laws. Optionee has been advised and
is aware of the provisions of Rule 144 promulgated under the Securities Act
which permits limited resale of securities subject to the satisfaction of
certain conditions and understands that such rule is not now, and may not
become, available for resale of the Option or the shares of Common Stock
issuable upon exercise of the Option. Optionee further understands that sales,
transfers and other dispositions of all or any portion of the Option or the
shares of Common Stock underlying the Option are further restricted by this
Agreement, the Stock Purchase Agreement and/or the Transaction Documents.
(g) Optionee, its advisors, if any, and designated
representatives, if any, have been involved in the negotiation and preparation
of this Agreement, the Stock Purchase Agreement and each of the other
Transaction Documents. Optionee, its advisors, if any, and its designated
representatives, if any, have received a fully executed copy of this Agreement,
the Stock Purchase Agreement and each of the other Transaction Documents, have
read each carefully and are fully familiar with each of their contents and
Optionee, its advisors, if any, and designated representatives, if any, have had
the opportunity to obtain any additional information necessary to verify the
accuracy of the information contained in such agreements. In addition, Optionee,
its advisors, if any, and designated representatives, if any, have been afforded
the opportunity to obtain any and all information requested in writing relating
to TMP and to meet with representatives of TMP and to have them answer any
questions regarding the terms and conditions of this transaction and all such
questions have been answered, and all such information has been received, to
Optionee's full satisfaction.
(h) As of the date of this Agreement, Optionee acknowledges
that Optionee has received TMP's financial statements containing audited as well
unaudited information and understands that the unaudited information has not
been compiled, reviewed, certified or audited by any independent person or
accounting firm and represents only TMP management's best knowledge and belief
as of the date thereof concerning the information presented. As of the date of
exercise of the Option, Optionee acknowledges that Optionee has received and
reviewed the prospectus included in the registration statement relating to the
Qualifying Public Offering and copies of all subsequent prospectuses, Form
10-Ks, Form 10-Qs
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and Form 8-Ks filed by TMP with the Securities and Exchange Commission under the
Securities Act and the Securities and Exchange Act of 1934, as amended.
(i) Optionee confirms that the Option and the shares of Common
Stock underlying the Option were not offered to Optionee by any means of general
solicitation or advertising (including without limitation by means of
publication of any advertisement as such terms are used in the California
securities and corporations laws) and the undersigned has received no
representations or other offering literature related to the Option and the
shares of Common Stock underlying the Option from TMP, Xxxxxx or any of their
respective employees, partners, attorneys or agents, other than those contained
in this Agreement, the Stock Purchase Agreement and the other Transaction
Documents and the documents described in paragraph (g) above furnished or made
available to Optionee, its advisors, if any, and its designated representatives,
if any, at their written request. In making Optionee's decision to enter into
this Agreement, the Stock Purchase Agreement and each of the other Transaction
Documents, Optionee reviewed this Agreement, the Stock Purchase Agreement, the
Transaction Documents and the documents mentioned in paragraph (g) above
furnished or made available to Optionee, its advisors, if any, and its
designated representatives, if any, at their written request and has relied
solely upon independent investigations made by Optionee, its advisors, if any,
and its representatives, if any, without assistance of TMP. Without limiting the
generality of the foregoing, Optionee represents it is not relying on TMP with
respect to economic considerations involved in this transaction.
(j) Optionee acknowledges that Optionee has been advised to
consult with an attorney regarding legal matters concerning this Agreement, the
Stock Purchase Agreement, the Transaction Documents, the Option and the shares
of Common Stock underlying the Option. Optionee further acknowledge that
Optionee has been advised to consult with Optionee's tax, legal and other
advisors regarding the tax consequences of acquiring the Option and the shares
of Common Stock underlying the Option, legal matters concerning TMP and Xxxxxx
and any other action to be taken in connection with this Agreement, the Stock
Purchase Agreement, the Transaction Documents and the transactions contemplated
herein and therein. Optionee acknowledges that Optionee will be responsible for
any legal, accounting or other fees incurred on Optionee's behalf in connection
with this Agreement, the Stock Purchase Agreement, the Transaction Documents,
the Option and the shares of Common Stock underlying the Option.
(k) In the event Optionee is a corporation, partnership, trust
or legal entity, the decision to enter into this Agreement and the execution and
delivery of this Agreement has been duly authorized by such corporation,
partnership, trust or legal entity and the person executing this Agreement on
behalf of such corporation, partnership, trust or legal entity has all right,
power and authority, in his or her capacity as an officer, general partner,
trustee, executor or other representative of such corporation, partnership,
trust or legal entity, as the case may be, to execute and deliver this Agreement
on behalf of such corporation, partnership, trust or legal entity and this
Agreement is a valid and binding agreement of such corporation, partnership,
trust or legal entity, as the case may be, enforceable in accordance with its
terms. Such entity has its principal place of business in the State of
California and has not
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been formed for the specific purpose of acquiring the Option or the shares of
Common Stock underlying the Option.
(l) Optionee, if an individual, has reached the age of
majority in the state in which he or she resides and represents that Optionee
resides in the State of California.
(m) Optionee, by reason of the Optionee's business or
financial experience or the experience of Optionee's professional advisors who
are unaffiliated with and who are not compensated (directly or indirectly) by
TMP or Xxxxxx or any affiliate or selling agent of TMP or Xxxxxx, has the
capacity to protect Optionee's own interests in connection with the transactions
contemplated by this Agreement, the Transaction Documents, the Option and the
shares of Common Stock underlying the Option.
4. Payment Option.
(a) Xxxxxx hereby grants to Optionee an option (the "Payment
Option"), exercisable only during the Payment Option Exercise Period and
provided that Optionee has not theretofore exercised the Option, to surrender
all rights of Optionee in and to the Option and the shares of Common Stock
underlying the Option in exchange for the delivery by Xxxxxx to Optionee of a
non-negotiable promissory note in the form of Exhibit A hereto (the "Promissory
Note").
(b) The Payment Option must be exercised, if at all, during
the Payment Option Exercise Period only by delivery during the Payment Option
Exercise Period by Optionee to Xxxxxx and TMP of a written notice (the "Payment
Option Notice") specifying the exercise of the Payment Option. Subject to the
provisions of Section 4(c) below, in the event the Payment Option is not
exercised during the Payment Option Exercise Period in accordance with the terms
hereof, the Payment Option shall expire and be of no force or effect. It is
expressly understood and agreed that the Payment Option is not divisible.
(c) In the event that prior to January 3, 2000, Optionee has
not exercised either the Option or the Payment Option in accordance with this
Agreement, then Optionee shall be deemed to have delivered the Payment Option
Notice to Xxxxxx and TMP and exercised the Payment Option as of January 3, 2000.
(d) Without limiting the other terms of this Agreement, it is
expressly understood and agreed that upon delivery or deemed delivery of the
Payment Option Notice to Xxxxxx in accordance with this Section 4, the Option
shall be automatically, without the necessity of any further action by any
party, terminated and of no force or effect.
5. Certain Understandings. Notwithstanding anything herein to the
contrary, if there has been no Qualifying Public Offering prior to December 31,
1999, the Option (but not the Payment Option) shall automatically, without the
necessity of any further action by any party, expire and be of no force or
effect and TMP shall not be obligated to issue and sell the Option Shares to
Optionee.
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6. Restrictive Legend. Each certificate representing shares of
Common Stock issued upon exercise of the Option and any other securities issued
in respect of such shares of Common Stock upon any stock split, stock dividend,
recapitalization, merger, consolidation or similar event, shall (unless
otherwise permitted or unless the securities evidenced by such certificate shall
have been registered under the Securities Act) be stamped or otherwise imprinted
with a legend in substantially the following form (in addition to any legend
required under applicable state securities laws):
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR QUALIFIED UNDER ANY STATE SECURITIES LAWS. THE
SECURITIES MAY NOT BE OFFERED, SOLD, TRANSFERRED, OR OTHERWISE DISPOSED OF
WITHOUT SUCH REGISTRATION OR THE DELIVERY TO TMP WORLDWIDE INC. OF AN
OPINION OF COUNSEL, SATISFACTORY TO TMP WORLDWIDE INC., THAT SUCH
DISPOSITION WILL NOT REQUIRE REGISTRATION OF SUCH SECURITIES UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS."
Upon request of Optionee, TMP shall remove the foregoing legend from
the certificate or issue to Optionee a new certificate therefor free of any
transfer legend, if (x) with such request, TMP shall have received an opinion of
counsel satisfactory to TMP to the effect that any transfer by Optionee of the
securities evidenced by such certificate will not violate the Securities Act and
applicable state securities laws or (y) with such request, TMP shall have
received appropriate evidence satisfactory to TMP that in accordance with
paragraph (k) of Rule 144 promulgated under the Securities Act, Optionee is not,
and has not during the immediately preceding three months been, an affiliate of
TMP and Optionee has held the securities represented by such certificate for a
period of at least three years and Optionee is eligible to use paragraph (k) of
such Rule 144. This Section 6 shall survive the termination or expiration of
this Agreement.
7. Indemnification. Optionee acknowledges that Optionee understands
the meaning and legal consequences of the representations, warranties and
covenants set forth in this Agreement and that TMP and Xxxxxx have relied and
will rely upon such representations, warranties and covenants set forth herein
and Optionee hereby agrees to indemnify and hold harmless TMP and Xxxxxx and
their respective officers, directors, partners, controlling persons and agents
from and against any and all losses, claims, damages, liabilities or expenses
and any action in respect thereof, joint or several, to which any such person
may become subject due to or arising out of a breach by Optionee of any such
representation, warranty or covenant, together with all reasonable costs and
expenses (including attorneys' fees) incurred by any such person in connection
with any action, suit, proceeding, demand, assessment or judgment incident to
any of the matters so indemnified against. This Section 7 shall survive the
termination or expiration of this Agreement.
8. Term. This Agreement, other than the provisions of Sections 6 and
7 hereof, shall automatically, without the necessity of any further action by
any party, terminate
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on the earlier of (i) the exercise of the Option and issuance of shares of
Common Stock underlying the Option in accordance with the provisions of Section
3 hereof, or (ii) the exercise of the Payment Option and the delivery of the
Promissory Note in accordance with Section 4 hereof.
9. Assignment. Neither this Agreement nor any part hereof, nor any
rights hereunder, including without limitation the Option or the Payment Option
or the rights thereunder, may be assigned, pledged, hypothecated, transferred or
otherwise conveyed by Optionee, directly or indirectly, whether by operation of
law or otherwise, without the express written consent of TMP and Xxxxxx. Neither
this Agreement nor any part hereof, nor any of the rights, interests or
obligations hereunder may be assigned by TMP or Xxxxxx without the prior written
consent of Optionee, except that this Agreement and/or the rights, interests and
obligations of Xxxxxx hereunder may be assigned by Xxxxxx to TMP or Worldwide
Classified Inc. or any direct or indirect subsidiaries of either of the
foregoing without the consent of any party, provided that such assignee would
subsequently be bound by the provisions of this Section 9.
10. Governing Law. This Agreement shall be governed in all respects
by the laws of the State of New York, without application of the conflicts of
laws principles thereof.
11. Entire Agreement; Amendments. This Agreement constitutes the
full and entire understanding and agreement between the parties with regard to
the subject matter hereof. Neither this Agreement nor any term hereof may be
amended, waived, discharged or terminated, except by a written instrument signed
by the parties hereto.
12. Notices, Consents, etc. Any notices, consents or other
communication required to be sent or given hereunder by any of the parties shall
in every case be in writing and shall be deemed properly served if (a) delivered
personally, (b) delivered by registered or certified mail, in all such cases
with first class postage prepaid, return receipt requested, (c) delivered by
courier, at the addresses as set forth below or at such other addresses as may
be furnished in writing. All such notices and communications shall be deemed
received upon the actual delivery thereof in accordance with the foregoing.
(a) If to Optionee:
_______________________
_______________________
_______________________
with a copy to:
Xxxxxx, Xxxxx and Xxxx
000 Xxxx X Xxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attention: Van X. Xxxxxx
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(b) If to TMP or Xxxxxx:
c/o TMP Worldwide
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. XxXxxxxx
Xxxxxx Xxxxxxxx
with a copy to:
TMP Worldwide Inc.
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxx
13. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner so as to be effective and valid
under applicable law, but if 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 shall
not affect any other provision of this Agreement. If any provision contained in
this Agreement is determined to be invalid, illegal or unenforceable as written,
a court of competent jurisdiction shall, at any party's request, reform the
terms of this Agreement to the extent necessary to cause such otherwise invalid
provisions to be enforceable under applicable law.
14. Titles and Subtitles. The titles of the sections, paragraphs and
subparagraphs of this Agreement are for convenience of reference only and are
not to be considered in construing this Agreement.
15. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
TMP WORLDWIDE INC.
By:__________________________________
Name:
Title:
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XXXXXX ACQUISITION CORP.
By:__________________________________
Name:
Title:
__________________________________
[Optionee]
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EXHIBIT A
[Dollar amount equal to one-half of dollar
amount of shares of Common Stock to
which Beneficiary would be entitled under
Section 2(a) of Option Agreement]
[Date of Receipt of Payment Option Notice]
New York, NY
NON-NEGOTIABLE PROMISSORY NOTE
FOR VALUE RECEIVED, the undersigned, Xxxxxx Acquisition Corp., a Delaware
corporation with an address c/o TMP Worldwide Inc., 0000 Xxxxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, hereby promises to pay to
_________________________________, an [individual] [entity] whose address is
___________________________________________ (the "Beneficiary") the principal
sum of $______________, without interest, in twelve equal monthly installments
commencing on the date which is one month from the date of this Note, subject to
the other provisions of this Note. Payments of principal are to be made in
lawful money of the United States.
This Note is delivered pursuant to the terms of an Option Agreement, dated
as of January 1, 1995, among the Beneficiary, the undersigned and TMP Worldwide
Inc., a Delaware corporation (the "Company"), and is subject in all respects to
the terms and conditions thereof. It is further understood and agreed that the
amounts payable under this Note are subject to the undersigned's right of
set-off set forth in Section 8.2 of the Stock Purchase Agreement dated as of
January 1, 1995, among the Beneficiary, the undersigned, Xxxx, Xxxxxxxxx &
Xxxxx, Inc., a California corporation, and certain other parties.
16. Optional Prepayment. The undersigned shall have the right to prepay in
whole or in part, without penalty or premium, this Note or any portion thereof,
at any time and from time to time.
17. Default. In the event that the undersigned is in default in the
payment of principal or interest, if any, due under this Note for a period of 14
days after the Beneficiary has delivered written notice of such default to the
undersigned in accordance with Section 5 hereof, then at any time during the
continuation of such default the Beneficiary may, at the Beneficiary's option,
by written notice to the undersigned, declare the entire unpaid principal amount
of this Note to be immediately due and payable.
18. Transferability; Third Parties. The Beneficiary may not, directly or
indirectly, in any way whatsoever, including without limitation by operation of
law or otherwise, sell, assign, pledge, encumber, hypothecate or otherwise
transfer all or a portion of this Note or any
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of the Beneficiary's rights hereunder. Nothing in this Note express or implied
is intended or shall be construed to confer upon or give to any person or
entity, other than the undersigned and the Beneficiary, any rights or remedies
under or by reason of this Note.
19. Waiver of Presentment. Without limiting the express provisions of this
Note, the undersigned hereby waives presentment, demand for payment, notice of
dishonor, and notice of protest in connection with the delivery, acceptance and
performance of the instrument.
20. Notices. All notices, requests and other communication required to be
sent or given under this Note by the undersigned or the Beneficiary shall in
every case be in writing and shall be deemed properly served if (i) delivered
personally, (ii) delivered by registered or certified mail with first class
postage prepaid, return receipt requested, or (iii) delivered by courier, if to
the undersigned, to it at its address set forth above, to the attention of
Xxxxxx XxXxxxxx and Xxxxxx Xxxxxxxx, and if to the Beneficiary, to the
Beneficiary's address set forth above, or to such other addresses as the
recipient party has specified by prior written notice to the sending party.
21. Cancellation. Upon the payment in full of the unpaid principal amount
of this Note and all accrued interest thereon, this Note shall be void and of no
further force. Upon the happening of either such event, the Beneficiary
covenants to surrender this Note to the undersigned marked "Paid."
22. Certain Significant Transactions. In the event that (i) the
undersigned ceases to directly or indirectly be the controlling shareholder of
the Company, other than (a) as a result of one or a series of transactions
pursuant to which TMP Worldwide Inc. ("TMP") or Worldwide Classified Inc.
("Worldwide") becomes the direct or indirect controlling shareholder of the
Company (by merger, consolidation or otherwise), (b) as a result of one or a
series of transactions pursuant to which the separate corporate existence of the
Company terminates, but all or substantially all of the assets (determined on
the basis of the value of such assets) which were owned by the Company
immediately prior to such transaction or transactions become directly or
indirectly owned by one or more of the undersigned, TMP and/or Worldwide (by
merger, consolidation or otherwise), or (ii) through one or a series of
transactions, the undersigned, TMP, Worldwide and/or the Company sell, assign or
transfer to one or more entities which are not directly or indirectly controlled
by one or more of the undersigned, TMP, Worldwide or the Company, an aggregate
of fifty percent (50%) or more of the assets (determined on the basis of the
value of such assets) of the Company which immediately prior to such transaction
or transactions were directly or indirectly owned by one or more of the
undersigned, TMP, Worldwide or the Company, or (iii) following a transaction
described in clause (i)(a) of this Section 7, TMP or Worldwide ceases to
directly or indirectly be the controlling shareholder of the Company, other than
as a result of one or a series of transactions pursuant to which the
undersigned, TMP or Worldwide becomes the direct or indirect controlling
shareholder of the Company, then the Beneficiary may, at the Beneficiary's
option, by written notice to the undersigned, declare the entire unpaid
principal amount of this Note to be immediately due and payable. For purposes of
clarification, it is expressly understood and agreed that without limiting the
generality of clauses (i), (ii) and (iii) of the immediately
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preceding sentence, (i) one or more of the merger or consolidation of the
undersigned or one of its subsidiaries into TMP or Worldwide or one of their
respective subsidiaries, the merger or consolidation of TMP or Worldwide or one
of their respective subsidiaries into the undersigned or one of its
subsidiaries, the merger or consolidation of the Company into the undersigned or
one of its subsidiaries or TMP or Worldwide or one of their respective
subsidiaries and/or transfer of control of the Company to TMP or Worldwide or
one of their respective subsidiaries shall not give the Beneficiary any right to
accelerate this Note pursuant to this Section 7 and (ii) the pledge, transfer,
sale or assignment of all or substantially all of the assets of the Company,
TMP, Worldwide and the undersigned in connection with obtaining and maintaining
financing and/or factoring services from banks, financial institutions, factors,
lenders and unaffiliated third parties shall not give the Beneficiary any right
to accelerate this Note pursuant to this Section 7.
23. Collection. In the event of acceleration of this Note in accordance
with Section 2, the undersigned agrees to pay all reasonable costs of
collection, including but not limited to reasonable attorney's fees incurred by
the Beneficiary in the collection of this Note.
24. Governing Law. This Note shall be construed and enforced in accordance
with, and shall be governed by, the laws of the State of New York without giving
effect to provisions thereof regarding conflict of laws.
25. Waiver. The failure of the Beneficiary to insist, in any one or more
instances, on performance of any of the terms and conditions of this Note shall
not be construed as a waiver or relinquishment of any rights granted hereunder
or of the future performance of any such terms, covenants or conditions but the
obligation of the undersigned with respect thereto shall continue to be in full
force and effect.
XXXXXX ACQUISITION CORP.
By:_____________________________
Its:____________________________
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