Scheme implementation agreement

Transcription

1 Scheme implementation agreement SMEC Holdings Limited (SMEC) Surbana Jurong Holdings (Australia) Pty Ltd (Bidder) Surbana Jurong Private Limited (Guarantor) Level 23 Rialto Towers 525 Collins Street Melbourne Vic 3000 Australia DX 204 Melbourne T F minterellison.com

2 Details 5 Agreed terms 6 1. Defined terms & interpretation Defined terms Interpretation Headings Business Day Consents or approvals Reasonable endeavours Agreement to propose Scheme Scheme Bidder to assist Bidder nominee References to Bidder Nominee Conditions precedent and pre implementation steps Conditions to Scheme Benefit and waiver of conditions precedent Reasonable endeavours Notifications Certificate Scheme voted down Conditions not capable of being fulfilled Interpretation Consistent methodology to be used Transaction Steps Scheme Scheme Consideration Deed Poll Treatment of SMEC Options SMEC Options Guarantee Guarantee and indemnity Extent of guarantee and indemnity No deductions or withholdings Continuing guarantee Avoidance Principal and independent obligation Enforcement against the Guarantor Recommendation, intentions and announcements SMEC Board Recommendation and Voting Intention Announcements Scheme parties' respective implementation obligations SMEC's obligations Bidder's obligations Explanatory Booklet - preparation principles 25 MinterEllison Ref: THW STS KXT Page 2

3 9. Conduct of business before the Implementation Date Conduct of SMEC business Permitted activities Access Access to the Bidder information Change of control rights Actions on and following Implementation Date Reconstitution of the board of each member of the SMEC Group Sequence of actions on the Implementation Date Representations and warranties Bidder representations Bidder's indemnity SMEC representations SMEC's indemnity Notifications Survival of representations Survival of indemnities Releases SMEC Parties Bidder Parties Deeds of indemnity Directors' and officers' insurance Obligations in relation to directors' and officers' insurance Confidentiality and Public Announcement Confidentiality Public Announcements on execution Further public announcements Required announcement Statements on termination Termination Termination by notice Automatic termination Effect of termination Disclosure on termination SMEC Break Fee Background Costs incurred by the Bidder Payment by SMEC to the Bidder Bidder Break Fee Bidder Break Fee Exclusivity No existing discussions No shop restriction No talk restriction No due diligence Exceptions Notice of Competing Proposal SMEC's response to Competing Proposal and the Bidder's right to respond Disclosure of Competing Proposal Fiduciary carve out to notification right 42 MinterEllison Ref: THW STS KXT Page 3

4 18. Modification of SMEC Break Fee or exclusivity arrangements Modifications following regulatory intervention No requirement to act unless decision final Appeals and review of regulatory decisions Determination by Governmental Agency Notices General Further acts Timetable Payments Interest GST Stamp duty Expenses Amendments Assignment Business Day Waiver Counterparts Entire agreement No representation or reliance No merger Governing law 46 Schedule 1 - Timetable 47 Schedule 2 - Deed Poll 48 Schedule 3 - Scheme 49 Schedule 4 - Announcement 50 Signing page 51 MinterEllison Ref: THW STS KXT Page 4

5 Details Date May 2016 Parties Name SMEC Holdings Limited ABN Short form name SMEC Notice details Level 10, 71 Queens Road, Melbourne VIC Attention: Andy Goodwin, Managing Director & CEO Name Surbana Jurong Holdings (Australia) Pty Ltd ACN Short form name Bidder Notice details c/o Whittens & McKeough, Level 5, Bathurst Street, Sydney NSW Attention: Daniel Teo, Director Name Surbana Jurong Private Limited Short form name Guarantor Notice details 168 Jalan Bukit Merah, #01-01 Connection One, Singapore Attention: Daniel Teo, Group Chief Financial Officer Background A B C SMEC and the Bidder have agreed to implement the Proposed Transaction on and subject to the terms and conditions of this agreement. SMEC and the Bidder have agreed certain other matters in connection with the Proposed Transaction as set out in this agreement. The Guarantor has agreed to guarantee certain of the obligations of the Bidder in connection with the Proposed Transaction. MinterEllison Ref: THW STS KXT Page 5

6 Agreed terms 1. Defined terms & interpretation 1.1 Defined terms In this agreement unless the context otherwise requires the following words and expressions have meanings as follows: Accounting Standards means the accounting standards made or in force under the Corporations Act, and if any matter is not covered by those accounting standards, generally accepted Australian accounting principles. Adviser means in relation to an entity: (a) a financier to the entity in connection with the Proposed Transaction; or (b) a financial, corporate, legal, technical or other expert adviser or consultant, who provides advisory or consultancy services in a professional capacity in the ordinary course of its business and has been engaged in that capacity in connection with the Proposed Transaction by the entity. Announcement means the public announcement by SMEC in the form set out in Schedule 4. ASIC means the Australian Securities and Investments Commission. Associate has the meaning given in Division 2 of Part 1.2 of the Corporations Act as if section 12(1) of that Act included a reference to this agreement and SMEC was the designated body. Authorised Person means, in respect of a person: (a) a director, officer, member or employee of the person; (b) an Adviser of the person; and (c) a director, officer or employee of an Adviser of the person. Bidder Break Fee has the meaning given to that term in clause Bidder Group means the Bidder and each of its Subsidiaries and the Guarantor and each of its Subsidiaries (excluding, at any time, SMEC and its Subsidiaries to the extent that SMEC and its Subsidiaries are Subsidiaries of the Bidder or the Guarantor at that time). A reference to a member of the Bidder Group or a Bidder Group Member is a reference to the Bidder, the Guarantor or any of their Subsidiaries. Bidder Information means information regarding the Bidder Group that is provided by or on behalf of the Bidder, the Guarantor, or any of their Advisers, to SMEC or the Independent Expert: (a) to enable the Explanatory Booklet to be prepared and completed in compliance with all applicable laws; (b) to enable applications for Regulatory Approvals to be made; and (c) otherwise in compliance with the Bidder's obligations under clause 8.2(a). Bidder Nominee has the meaning given to that term in clause 2.3. Bidder Parties means the members of the Bidder Group and their respective Authorised Persons. Bidder Prescribed Occurrence means the occurrence of an Insolvency Event in relation to the Bidder or the Guarantor. Bidder Warranties means the representations and warranties of the Bidder and the Guarantor set out in clause Business Day means a day that is not a Saturday, Sunday or a public holiday or bank holiday in Melbourne, Australia or Singapore. MinterEllison Ref: THW STS KXT Page 6

7 Claim means, in relation to a person, a demand, claim, action or proceeding made or brought by or against the person, however arising and whether present, unascertained, immediate, future or contingent. Competing Proposal means any offer, proposal or expression of interest, transaction or arrangement (including, by way of takeover bid or scheme of arrangement other than the Proposed Transaction) under which, if ultimately completed substantially in accordance with its terms, a person or two or more persons who are Associates would directly or indirectly: (a) acquire a relevant interest or voting power in or become the holder of more than 20% of the Shares; or (b) acquire, obtain a right to acquire, or otherwise obtain an economic interest in the whole or a material part of the business or property of SMEC or any member of the SMEC Group; (c) acquire control of SMEC, within the meaning of section 50AA of the Corporations Act; or (d) otherwise acquire or merge with SMEC or amalgamate with SMEC, whether by way of takeover bid, scheme of arrangement, shareholder approved acquisition, capital reduction, share buy back or repurchase, sale or purchase of assets, joint venture, reverse takeover, dual listed company structure, recapitalisation, establishment of a new holding entity for SMEC or the SMEC Group or other synthetic merger or any other transaction or arrangement. For the purposes of clause 15.3 only paragraph (a) of this definition is taken to read more than 50%. Conditions means the conditions set out in clause 3.1 and Condition means any one of them. Confidentiality Agreement means the confidentiality agreement between SMEC and the Guarantor dated 25 February Constitutional Amendment means the proposed deletion of clauses 6 and 9 of the constitution of SMEC to permit the acquisition of the Scheme Shares by the Bidder under the Scheme. Corporations Act means the Corporations Act 2001 (Cth). Court means the Supreme Court of Victoria or any other court of competent jurisdiction under the Corporations Act as the parties may agree in writing. Deed Poll means the deed poll to be executed by the Bidder and the Guarantor prior to the First Court Date, in the form set out in Schedule 2 or in any other form as is acceptable to SMEC acting reasonably. Delivery Time means in relation to the Second Court Date two hours before the commencement of the hearing or if the commencement of the hearing is adjourned, the commencement of the adjourned hearing, of the Court to approve the Scheme in accordance with section 411(4)(b) of the Corporations Act is due to commence. Disclosure Letter means the letter so entitled from SMEC provided to the Bidder on or before the date of this agreement. Due Diligence Material means all documents and written information disclosed by or on behalf of SMEC and its Subsidiaries (including management presentations and all written responses provided in response to written questions or requests for information) to the Bidder Parties prior to the date of this agreement as evidenced conclusively by: (a) the Project Star online data room hosted at which includes any folders access to which has been limited to designated Bidder Parties as at the time of the Disclosure Letter and extracted to a USB and attached to the Disclosure Letter; and (b) the Disclosure Letter. EBITDA means earnings before interest, tax, depreciation and amortisation, determined in accordance with the Accounting Standards on a basis consistent with past practice. MinterEllison Ref: THW STS KXT Page 7

8 Effective means, when used in relation to the Scheme, the coming into effect, under section 411(10) of the Corporations Act, of the order of the Court made under section 411(4)(b) of the Corporations Act in relation to that Scheme. Effective Date, with respect to the Scheme, means the date on which the Scheme becomes Effective or, if the context requires, the time on that date at which the Scheme becomes Effective. End Date means: (a) (b) (c) 31 August 2016; or if prior to 31 August 2016, the condition precedent in clause 3.1(a) remains unsatisfied but not because the Treasurer has provided notice in writing that it objects to the Bidder acquiring Scheme Shares under the Scheme, 30 September any other date and time agreed in writing between the Bidder and SMEC. Exclusivity Period means the period commencing on the date of this agreement and ending on the earliest of: (a) the End Date; (b) the Effective Date of the Scheme; and (c) the date this agreement is terminated in accordance with its terms. Explanatory Booklet means the explanatory booklet to be prepared by SMEC in respect of the Proposed Transaction in accordance with the terms of this agreement and to be dispatched to SMEC Shareholders. FATA means the Foreign Acquisitions and Takeovers Act 1975 (Cth). First Court Date means the date the Court first hears the application to order the convening of the Scheme Meeting under section 411(1) of the Corporations Act that the Scheme Meeting be convened is heard or, if the application is adjourned or subject to appeal for any reason, the day on which the adjourned application is heard. General Meeting means a general meeting of SMEC Shareholders to consider and, if thought fit, pass the Constitutional Amendment Resolution and any other resolutions required to give effect to the Proposed Transactions. Governmental Agency means any government or representative of a government or any governmental, semi-governmental, administrative, fiscal, regulatory or judicial body, department, commission, authority, tribunal, agency, competition authority or entity and includes any minister, ASIC and any regulatory organisation established under statute or any stock exchange. Headcount Test means the requirement under section 411(4)(a)(ii)(A) of the Corporations Act that the resolution to approve the Scheme at the Scheme Meeting is passed by a majority in number of SMEC Shareholders present and voting, either in person or by proxy. Implementation Date means, with respect to the Scheme, the third Business Day after the Record Date, or any other Business Day after the Record Date as the parties agree to in writing. Inactive Subsidiary means a Subsidiary of SMEC that has ceased or intends to cease to carry on business, or is being wound up. Independent Expert means an expert, independent of the parties, engaged by SMEC in good faith to opine on whether the Scheme is in the best interest of SMEC Shareholders. Independent Expert's Report means the report from the Independent Expert commissioned by SMEC for inclusion in the Explanatory Booklet, which includes a statement by the Independent Expert on whether, in its opinion, the Scheme is in the best interest of SMEC Shareholders, and includes any update of that report by the Independent Expert. Insolvency Event means in relation to a person: (a) insolvency official: the appointment of a liquidator, provisional liquidator, administrator, statutory manager, controller, receiver, receiver and manager or other insolvency official (whether under an Australian law or a foreign law) to the person or to the whole or a MinterEllison Ref: THW STS KXT Page 8

9 (b) (c) (d) (e) (f) (g) (h) (i) substantial part of the property or assets of the person and the action is not stayed, withdrawn or dismissed within 14 days; arrangements: the entry by the person into a compromise or arrangement with its creditors generally; winding up: the calling of a meeting to consider a resolution to wind up the person (other than where the resolution is frivolous or cannot reasonably be considered to be likely to lead to the actual winding up of the person) or the making of an application or order for the winding up or deregistration of the person other than where the application or order (as the case may be) is set aside or withdrawn within 14 days; suspends payments: the person suspends or threatens to suspend payment of its debts as and when they become due; ceasing business: the person ceases or threatens to cease to carry on business; insolvency: the person is or becomes unable to pay its debts when they fall due within the meaning of the Corporations Act or is otherwise presumed to be insolvent under the Corporations Act; deregistration: the person being deregistered as a company or otherwise dissolved; deed of company arrangement: the person executing a deed of company arrangement; person as trustee or partner: the person incurs a liability while acting or purporting to act as trustee (or co trustee) or general partner of a trust or partnership (including a limited partnership) and the person is not entitled to be fully indemnified against the liability out of trust or partnership assets because of one or more of the following: (i) a breach of trust or obligation as partner by the person; (ii) the person acting outside the scope of its powers as trustee or partner; (iii) a term of the trust or partnership denying, or limiting, the person's right to be indemnified against the liability; (iv) the assets of the trust or partnership being insufficient to discharge the liability; or (j) analogous events: anything analogous to those set out in any of paragraphs (a) to (i) inclusive occurs in relation to the person under the laws of a foreign jurisdiction, and a person shall be Insolvent if any event specified in paragraphs (a) to (j)inclusive occurs in respect of that person. Interest Rate means the 30 day Bank Bill Swap Reference Rate as published by the Australian Financial Markets Association. Material Adverse Change means an event, fact, matter or circumstance that occurs, is announced or becomes known (in each case whether or not it becomes public) after the date of this agreement which: (a) has or would reasonably be expected to have, the effect of reducing the EBITDA of the SMEC Group for two years or more by in excess of $5 million. The reduction in EBITDA may be caused by a single event of at least $5 million or a combination of events of at least $2 million each. Project deferrals and the impact of foreign exchange movements are excluded for the purposes of this paragraph; (b) has or would reasonably be expected to have, individually or when aggregated with all such events, facts, matters or circumstances, the effect of diminishing the net assets of the SMEC Group by $25 million or more; (c) has the effect of reducing contracted Work in Hand by $50 million or more; (d) has or would reasonably be expected to have the effect that the whole or a material part of the business of the SMEC Group is unable to be carried on in substantially the same manner as carried on at the date of this agreement, MinterEllison Ref: THW STS KXT Page 9

10 but does not include any event, fact, matter or circumstance: (e) required to be done or procured by SMEC or a member of the SMEC Group under this agreement or the Scheme; (f) done with the express prior written consent of a member of the Bidder Group; (g) that was Fairly Disclosed in the Due Diligence Materials; (h) relating to costs and expenses incurred by SMEC associated with the Scheme process, including all fees payable to external advisers of SMEC Fairly Disclosed in the Due Diligence Material; (i) that was known to the Bidder Group prior to the date of this agreement; (j) resulting from a change in law; (k) resulting from changes in the existing financial markets, the general economic or political conditions of Australia, Japan, the United Kingdom, the United States of America, Singapore, Hong Kong or China; or (l) resulting from changes in generally accepted accounting principles or the interpretation of them. Optionholder means the person who is recorded in the SMEC Register as the holder of SMEC Options. Permitted Dividend means a cash dividend of up to $0.005 per Share for the 3 months ended 31 March 2016 to be paid by SMEC in its absolute discretion. Proposed Transaction means: (a) the proposed acquisition by the Bidder in accordance with the terms and conditions of this agreement, of all of the Shares through the implementation of the Scheme; (b) the proposed Constitution Amendment; (c) the proposed cancellation of all of the SMEC Options under clause 5.1; and (d) all associated transactions and steps contemplated by this agreement. Record Date means, in respect of the Scheme, 7.00pm on the second Business Day after the Effective Date (or any other Business Day after the Effective Date as the parties agree in writing). Regulatory Approvals means the approvals set out in clause 3.1(a). Related Body Corporate of a person, means a related body corporate of that person under section 50 of the Corporations Act and includes any body corporate that would be a related body corporate if section 48(2) of the Corporations Act was omitted. Relevant Interest has the meaning given in the Corporations Act. RG 60 means Regulatory Guide 60 issued by ASIC. Scheme means the proposed scheme of arrangement under Part 5.1 of the Corporations Act between SMEC and Scheme Shareholders in respect of all Scheme Shares, substantially in the form set out in Schedule 3 or in any other form as the parties agree in writing, subject to any alterations or conditions that are: (a) agreed to in writing by SMEC and the Bidder, and approved by the Court; or (b) made or required by the Court under section 411(6) of the Corporations Act and agreed to by SMEC and the Bidder. Scheme Consideration means the consideration to be provided by Bidder in consideration for the transfer of the Scheme Shares, being in respect of each Scheme Share held by a Scheme Shareholder, $1.90 cash. Scheme Meeting means the meeting of SMEC Shareholders ordered by the Court to be convened under section 411(1) of the Corporations Act to consider and vote on the Scheme and includes any meeting convened following any adjournment or postponement of that meeting. MinterEllison Ref: THW STS KXT Page 10

11 Scheme Share means a Share on issue as at the Record Date (but including any Share held on behalf of one or more third parties or otherwise in a fiduciary capacity). Scheme Shareholder means a person who holds one or more Scheme Shares. Second Court Date means the first day on which an application made to the Court for an order under section 411(4)(b) of the Corporations Act approving the Scheme is heard or scheduled to be heard or, if the application is adjourned for any reason, means the date on which the adjourned application is heard or scheduled to be heard. Security Interest has the meaning given in section 12 of the Personal Property Securities Act 2009 (Cth). Senior Manager means a senior executive of any member of the SMEC Group reporting directly to the chief executive officer of SMEC. Share means an issued fully paid ordinary share in the capital of SMEC. Share Splitting means the splitting by a holder of Shares into two or more parcels of Shares whether or not it results in any change in beneficial ownership of the Shares. SMEC Board means the board of directors of SMEC (or any committee of the board of directors of SMEC constituted to consider the Proposed Transaction on behalf of SMEC). SMEC Break Fee has the meaning given to that term in clause 15.3(a). SMEC Director means a director of SMEC. SMEC Group means SMEC and its Subsidiaries. SMEC Information means information to be included by SMEC in the Explanatory Booklet that explains the effect of the Scheme and sets out the information prescribed by the Corporations Act and the Corporations Regulations 2001 (Cth), and any other information that is material to the making of a decision by SMEC Shareholders whether or not to vote in favour of the Scheme, being information that is within the knowledge of SMEC's directors and has not previously been disclosed to SMEC Shareholders, other than the Bidder Information and the Independent Expert's Report. SMEC Option means an option granted by SMEC to acquire by way of issue one or more Shares. SMEC Parties means each member of the SMEC Group and its Related Bodies Corporate and Authorised Persons. SMEC Prescribed Occurrence means the occurrence of any of the following on or after the date of this agreement: (a) SMEC converts all or any of its shares into a larger or smaller number of shares (see section 254H of the Corporations Act); (b) any member of the SMEC Group resolves to reduce its share capital in any way; (c) any member of the SMEC Group: (i) enters into a buy back agreement; or (ii) resolves to approve the terms of a buy back agreement under subsections 257C(1) or 257D(1) of the Corporations Act; (d) any member of the SMEC Group issues securities, or grants a performance right, a phantom performance right or an option over its securities, or agrees to make an issue or grant a right or an option other than under the exercise of an option or performance right on issue immediately before the date of this agreement; (e) any member of the SMEC Group issues, or agrees to issue, convertible notes or any other security or instrument convertible into shares to any party outside of the SMEC Group; (f) any member of the SMEC Group disposes, or agrees to dispose, of the whole, or a substantial part, of its business or property to any party outside of the SMEC Group; MinterEllison Ref: THW STS KXT Page 11

12 (g) the SMEC Group creates or agrees to create, any Security Interest over the whole, or a substantial part, of its business or property; (h) an Insolvency Event occurs in relation to any member of the SMEC Group except events relating to the ordinary course of business and involving Subsidiaries no longer active and or with no material assets; or (i) SMEC pays, declares, distributes or incurs a liability to make or pay a dividend, bonus or other share of its profits, income, capital or assets by way of dividend or other form of distribution; provided that a SMEC Prescribed Occurrence will not include any matter: (j) required to be done or procured by the SMEC Group under this agreement or the Scheme; (k) required by law or by an order of a court or Governmental Agency; (l) involving a Subsidiary becoming an additional guarantor or security provider under SMEC's Security Trust Deed dated 29 May 2009 with ANZ Fiduciary Services Pty Ltd; (m) involving the payment of a Permitted Dividend; (n) Fairly Disclosed in the public domain by SMEC prior to the date of this agreement; (o) Fairly Disclosed in the Due Diligence Material or the Disclosure Letter; or (p) the undertaking of which the Bidder has approved in writing. SMEC Register means the registers of members and optionholders of SMEC maintained by or on behalf of SMEC in accordance with section 168(1) of the Corporations Act. SMEC Shareholder means each person who is registered in SMEC Register as a holder of Shares. SMEC Warranties means the representations and warranties of SMEC set out in clause Subsidiary has the meaning given to that term in section 46 of the Corporations Act. Superior Proposal means a bona fide Competing Proposal which in the determination of the SMEC Board acting in good faith and in order to satisfy what the SMEC Board reasonably considers to be its fiduciary or statutory duties (after having taken advice from their legal and, if appropriate, financial advisers) would, if completed substantially in accordance with its terms, be likely to result in a transaction more favourable to SMEC Shareholders as a whole than the Proposed Transaction, having regard to matters including consideration, conditionality, funding, certainty (including taking into account the financial, regulatory and other aspects of the Competing Proposal) and timing and otherwise taking into account the terms and conditions of the Competing Proposal. Timetable means the indicative timetable in relation to the Proposed Transaction set out in Schedule 1 with any modifications as may be agreed in writing by the parties. Transaction Documents means this agreement, the Deed Poll and the Scheme. Treasurer means the Treasurer of the Commonwealth of Australia. 1.2 Interpretation In this agreement, except where the context otherwise requires: (a) the singular includes the plural, and the converse also applies; (b) gender includes other genders; (c) if a word or phrase is defined, its other grammatical forms have a corresponding meaning; (d) a reference to a clause, paragraph, schedule or annexure is to a clause or paragraph of, or schedule or annexure to, this agreement, and a reference to this agreement includes any schedule or annexure; (e) a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced; MinterEllison Ref: THW STS KXT Page 12

13 (f) (g) (h) (i) (j) (k) (l) (m) (n) (o) (p) a reference to A$, $A, dollar or $ is to Australian currency; a reference to time is to Melbourne, Australia time; a reference to a party is to a party to this agreement, and a reference to a party to a document includes the party's executors, administrators, successors and permitted assigns and substitutes; a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity; a reference to legislation or to a provision of legislation (including a listing rule or operating rule of a financial market or of a clearing and settlement facility) includes a modification or re-enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it; a word or expression defined in the Corporations Act has the meaning given to it in the Corporations Act; a reference to conduct includes an omission, statement or undertaking, whether or not in writing; the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions; a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this agreement or any part of it; if a day on or by which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day; and a reference to Fairly Disclosed means disclosed to any of the Bidder, the Guarantor, or any of their respective Authorised Persons in sufficient detail so as to enable a reasonable and sophisticated recipient of the relevant information who is experienced in transactions similar to the Proposed Transaction to identify the nature and scope of the relevant event, fact, matter or circumstance. 1.3 Headings Headings are for ease of reference only and do not affect interpretation. 1.4 Business Day Where the day on or by which any thing is to be done is not a Business Day, that thing must be done on or by the next Business Day. 1.5 Consents or approvals If the doing of any act, matter or thing under this agreement is dependent on the consent or approval of a party or is within the discretion of a party, the consent or approval may be given or the discretion may be exercised conditionally or unconditionally or withheld by the party in its absolute discretion unless provided otherwise. 1.6 Reasonable endeavours Any provision of this agreement which requires a party to use reasonable endeavours or best endeavours to procure that something is performed or occurs or does not occur does not include any obligation: (a) to provide any financial compensation, valuable consideration or any other incentive to or for the benefit of any person except for: (i) payment of any applicable fee for the lodgement or filing of any relevant application with any Governmental Agency; or (ii) the reimbursement of reasonable out of pocket costs incurred by the third party in connection with the grant of an approval or consent required in connection to the Proposed Transaction; or MinterEllison Ref: THW STS KXT Page 13

14 (b) to commence any legal action or proceeding against any person, except where that provision specifies otherwise. 2. Agreement to propose Scheme 2.1 Scheme SMEC agrees to propose and implement the Scheme on and subject to the terms and conditions of this agreement and to use all reasonable endeavours to do so as soon as is reasonably practicable and otherwise substantially in accordance with the Timetable. 2.2 Bidder to assist Subject to clauses 2.3 and 2.4, the Bidder agrees to assist SMEC in proposing and implementing the Scheme on and subject to the terms and conditions of this agreement and to use all reasonable endeavours to do so as soon as is reasonably practicable and otherwise substantially in accordance with the Timetable. 2.3 Bidder nominee The Guarantor expects that the entity that acquires the Scheme Shares under the Scheme will be the Bidder, but may nominate any wholly owned Subsidiary of the Guarantor (Bidder Nominee) to acquire the Scheme Shares under the Scheme by giving written notice to SMEC on or before the date that is five Business Days before the First Court Date. 2.4 References to Bidder Nominee If the Guarantor nominates the Bidder Nominee to acquire the Scheme Shares under the Scheme, then: (a) all references in this agreement to the Bidder are to be read as references to the Bidder Nominee; (b) the Guarantor must procure that the Bidder Nominee complies with the obligations of the Bidder under this agreement and under the Scheme and enters into a deed of accession on terms acceptable to SMEC (acting reasonably); and any nomination by the Guarantor under clause 2.3 will not relieve the Guarantor of its obligations under this agreement, including the obligation to pay (or procure the payment by the Bidder Nominee of) the Scheme Consideration in accordance with the terms of the Scheme. 3. Conditions precedent and pre implementation steps 3.1 Conditions to Scheme Subject to this clause 3 the Scheme will not become Effective, and the respective obligations of the parties in relation to the implementation of the Scheme will not be binding, until each of the following conditions precedent is satisfied or waived to the extent and in the manner set out in this clause 3: (a) (Regulatory Approvals): (i) (ASIC) before the Delivery Time on the Second Court Date, ASIC issues or provides any consents or approvals as are necessary or which SMEC and the Bidder agree are necessary or desirable to implement the Scheme and that consent, approval or other act has not been withdrawn or revoked before the Delivery Time on the Second Court Date; and (ii) (FIRB) before the Delivery Time on the Second Court Date, either: (A) the Treasurer (or his delegate) has provided a notice in writing (without any term or condition which the Bidder reasonably considers MinterEllison Ref: THW STS KXT Page 14

15 unacceptable) stating or to the effect that, in terms of Australia's foreign investment policy, the Australian Government does not object to the Bidder acquiring the Scheme Shares under the Scheme; or (b) (c) (d) (e) (f) (g) (h) (i) (j) (k) (B) by reason of lapse of time, the Treasurer is no longer empowered under the FATA to make an order prohibiting the acquisition of the Scheme Shares by the Bidder under the Scheme; (No SMEC Prescribed Occurrence) no SMEC Prescribed Occurrence occurs between the date of this agreement and the Delivery Time on the Second Court Date; (No Bidder Prescribed Occurrence) no Bidder Prescribed Occurrence occurs between the date of this agreement and the Delivery Time on the Second Court Date; (SMEC Warranties) the SMEC Warranties being true and correct in all material respects on the date of this agreement and at the Delivery Time on the Second Court Date; (Bidder Warranties) the Bidder Warranties being true and correct in all material respects on the date of this agreement and at the Delivery Time on the Second Court Date; (Shareholder approvals) the SMEC Shareholders have: (i) approved the Scheme at the Scheme Meeting by the majorities required under section 411(4)(a)(ii) of the Corporations Act; and (ii) approved the Constitutional Amendment at the General Meeting by the majorities required under section 136(2) of the Corporations Act; (SMEC Options) SMEC has at the Delivery Time complied with its obligations under clause 5; (Court approval) the Scheme is approved by the Court in accordance with section 411(4)(b) of the Corporations Act either unconditionally or on conditions that do not impose unduly onerous obligations on either party (acting reasonably); (Independent Expert) the Independent Expert concluding in the Independent Expert's Report that in its opinion the Scheme is in the best interest of SMEC Shareholders and the Independent Expert maintaining that opinion (including by not withdrawing, qualifying or changing that opinion) at all times up to the Delivery Time on the Second Court Date; (No Material Adverse Change) no Material Adverse Change occurs between the date of this agreement and the Delivery Time on the Second Court Date; and (Restraining orders) no judgment, order, decree, statute, law, ordinance, rule or regulation, or other temporary restraining order, preliminary or permanent injunction, restraint or prohibition, entered, enacted, promulgated, enforced or issued by any court or other Governmental Agency of competent jurisdiction in Australia remains in effect as at the Delivery Time on the Second Court Date that prohibits, materially restricts, makes illegal or restrains the completion of the Scheme or any Transaction Document. 3.2 Benefit and waiver of conditions precedent (a) The Conditions in clauses 3.1(b) (No SMEC Prescribed Occurrences), 3.1(d) (SMEC Warranties), 3.1(g) (SMEC Options) and 3.1(j) (No Material Adverse Change) are for the sole benefit of the Bidder and any breach or non fulfilment of them may only be waived by the Bidder giving its written consent. (b) The Conditions in clauses 3.1(c) (No Bidder Prescribed Occurrences) and 3.1(e) (Bidder Warranties) are for the sole benefit of SMEC and any breach or non fulfilment of them may only be waived by SMEC giving its written consent. (c) A party entitled to waive a Condition under this clause 3.2 may do so in its absolute discretion. Any waiver of a Condition by a party for whose benefit the condition applies must take place on or prior to the Delivery Time on the Second Court Date. The Conditions in clause 3.1(a) (Regulatory Approval), clauses 3.1(f) (Shareholder approvals) 3.1(h) (Court approval)), 3.1(i) (Independent Expert), and 3.1(k) (Restraining orders) cannot be waived. MinterEllison Ref: THW STS KXT Page 15

16 (d) (e) Waiver of a breach or non fulfilment in respect of one Condition does not constitute: (i) a waiver of breach or non fulfilment of any other Condition resulting from the same event; or (ii) a waiver of breach or non fulfilment of that Condition resulting from any other event. If a party waives the breach or non fulfilment of any of the Conditions in clause 3.1, that waiver will not preclude it from suing the other party for any breach of this agreement including a breach that resulted in the non fulfilment of the Condition that was waived. 3.3 Reasonable endeavours (a) SMEC and the Bidder will use their respective reasonable endeavours within each party's respective capacity to procure that each of the Conditions (as applicable) is satisfied as soon as reasonably practicable after the date of this agreement or continues to be satisfied at all times until the last time they are to be satisfied (as the case may require) and must not do anything which would prevent any applicable Condition from being satisfied. (b) Without limiting clauses 3.4 and 3.5 below, each of SMEC and the Bidder must: (i) consult and cooperate fully with the other party in relation to the satisfaction of the Conditions, including in relation to all material communications with any Governmental Agency in relation to Regulatory Approvals; (ii) promptly apply for all relevant Regulatory Approvals and provide the other party with a copy of all applications for Regulatory Approvals and all material communications with any Governmental Agency in relation to Regulatory Approvals; (iii) take all the steps for which it is responsible as part of the Regulatory Approvals process; (iv) respond to all requests for information in respect of the applications for Regulatory Approvals at the earliest practicable time; (v) provide the other with all information and assistance reasonably requested in connection with the applications for Regulatory Approvals; and (vi) so far as it is able, allow the other and its Authorised Persons the opportunity to be present and make submissions at any meetings with any regulatory body relating to the Regulatory Approvals in respect of the Scheme. 3.4 Notifications Each of the Bidder and SMEC must: (a) keep the other promptly and reasonably informed of the steps it has taken and of its progress towards satisfaction of the Conditions; (b) promptly notify the other in writing if it becomes aware that any Condition has been satisfied, in which case that party must comply with any reasonable request for evidence of the satisfaction of that Condition made by the other party; and (c) promptly notify the other in writing if it becomes aware that any Condition is or has become incapable of being satisfied (having regard to the respective obligations of each party under clause 3.3). 3.5 Certificate On the Second Court Date: (a) the Bidder and SMEC will provide a joint certificate to the Court confirming whether or not the Condition set out in clause 3.1(a) (Regulatory Approval) has been satisfied or waived in accordance with the terms of this agreement; MinterEllison Ref: THW STS KXT Page 16

17 (b) SMEC will provide a certificate to the Court confirming whether or not the Conditions set out in clauses 3.1(b) (No SMEC Prescribed Occurrences), 3.1(d) (SMEC Warranties), 3.1(f) (Shareholder approvals), 3.1(g) (SMEC Options), 3.1(i) (Independent Expert), 3.1(j) (No Material Adverse Change), and 3.1(k) (Restraining orders), have been satisfied or waived in accordance with the terms of this agreement; (c) the Bidder will provide a certificate to the Court confirming whether or not the Conditions set out in clauses 3.1(c) (No Bidder Prescribed Occurrences) and 3.1(e) (Bidder Warranties) have been satisfied or waived in accordance with the terms of this agreement; (d) SMEC will provide a certificate to the Bidder confirming whether or not it has breached any of its obligations under this agreement (including a breach of a representation or warranty), and if it has, giving details of any breach; and (e) the Bidder will provide a certificate to SMEC confirming whether or not it has breached any of its obligations under this agreement (including a breach of a representation or warranty), and if it has, giving details of any breach. Each party must provide the other party with drafts of their respective certificates referred to in clauses 3.5(a) to 3.5(e) by 5.00pm on the Business Day prior to the Second Court Date. 3.6 Scheme voted down If the Scheme is not approved by SMEC Shareholders at the Scheme Meeting by reason only of the non satisfaction of the Headcount Test and each of SMEC and the Bidder considers acting reasonably that Share Splitting or some abusive or improper conduct may have caused or contributed to the Headcount Test not having been satisfied then SMEC must: (a) apply for an order of the Court contemplated by section 411(4)(a)(ii)(A) of the Corporations Act to disregard the Headcount Test and seek Court approval of the Scheme under section 411(4)(b) of the Corporations Act, despite that the Headcount Test has not been satisfied; and (b) make submissions to the Court and file evidence as counsel engaged by SMEC to represent it in Court proceedings related to the Scheme, in consultation with the Bidder, considers is reasonably required to seek to persuade the Court to exercise its discretion under section 411(4)(a)(ii)(A) of the Corporations Act by making an order to disregard the Headcount Test. 3.7 Conditions not capable of being fulfilled (a) If: (i) any Condition is not satisfied or (where capable of waiver) waived by the date specified in this agreement for its satisfaction (or an event occurs which would or is likely to prevent a condition precedent being satisfied by the date specified in this agreement); (ii) a circumstance occurs with the result that a Condition is not capable of being fulfilled and, if the Condition is able to be waived by a party under clause 3.2 the party does not waive the Condition within three Business Days after the occurrence of the circumstance; or (iii) the Scheme does not become Effective by the End Date, and neither of the following has occurred: (iv) the Independent Expert opines to the effect that the Scheme is not in the best interest of SMEC Shareholders; or (v) a Superior Proposal has been publicly announced, then SMEC and the Bidder must consult in good faith with a view to determining whether: (vi) the Scheme may proceed by way of alternative means or methods; (vii) to extend the relevant time or date for satisfaction of the Condition; MinterEllison Ref: THW STS KXT Page 17

18 (b) (c) (viii) to change the date of the application to be made to the Court for orders under section 411(4)(b) of the Corporations Act approving the Scheme or adjourning that application (as applicable) to another date agreed by the parties; or (ix) to extend the End Date. Subject to clause 3.7(c), if a Condition becomes incapable of being satisfied before the End Date and SMEC and the Bidder are unable to reach agreement under clause 3.7(a) within five Business Days of the date on which they both become aware that the Condition has become incapable of being satisfied (or, if earlier, by the Delivery Time on the Second Court Date), then unless the relevant Condition (where capable of waiver) is waived: (i) in relation to the Conditions in clauses 3.1(a) (Regulatory Approval), 3.1(f) (Shareholder approvals), 3.1(h) (Court approval), 3.1(i) (Independent Expert) or 3.1(k) (Restraining orders), either the Bidder or SMEC may terminate this agreement by giving the other notice without any liability to any party by reason of that termination alone; (ii) in relation to the Conditions in clauses 3.1(b) (No SMEC Prescribed Occurrences), 3.1(d) (SMEC Warranties), 3.1(g) (SMEC Options) or 3.1(j) (No Material Adverse Change), the Bidder may terminate this agreement by giving SMEC notice without any liability to any party by reason of that termination alone; and (iii) in relation to the Conditions in clauses 3.1(c) (No Bidder Prescribed Occurrences) or 3.1(e) (Bidder Warranties), SMEC may terminate this agreement by giving the Bidder notice without any liability to any other party by reason of that termination alone. A party will not be entitled to terminate this agreement under clause 3.7(b) if the relevant Condition has not been satisfied as a result of: (i) a breach of this agreement by that party; or (ii) a deliberate act or omission of that party which either alone or together with other circumstances prevents that Condition being satisfied. 3.8 Interpretation For the purposes of this clause 3 a Condition will be incapable of satisfaction, or incapable of being fulfilled if: (a) in the case of a Condition relating a Regulatory Approval the relevant Governmental Agency makes or has made a final adverse determination in writing to the effect that it will not provide the Regulatory Approval or that the Regulatory Approval will be subject to conditions that are unacceptable to SMEC or the Bidder (acting reasonably); and (b) in all other cases there is an act, failure to act or occurrence that will prevent the Condition being satisfied by the End Date (and the breach or non fulfilment that would otherwise have occurred has not already been waived in accordance with this agreement). 3.9 Consistent methodology to be used In determining whether a Material Adverse Change has occurred, the same accounting standards, practices and methodology is to be used and consistently applied in measuring EBITDA, net assets, work in hand, trade receivables and provision for impairment of receivables as was used in the preparation of SMEC's financial statements, accounts and management reports (as applicable) as at 31 December Transaction Steps 4.1 Scheme (a) SMEC must, as soon as reasonably practicable after the date of this agreement and substantially in compliance with the Timetable, propose the Scheme under which, subject to the Scheme becoming Effective, all of the Scheme Shares will be transferred to the MinterEllison Ref: THW STS KXT Page 18

19 Bidder and the Scheme Shareholders will be entitled to receive, for each Scheme Share held at the Record Date, the Scheme Consideration. (b) SMEC must not consent to any modification of, or amendment to, or the making or imposition by the Court of any condition in respect of, the Scheme without the prior written consent of the Bidder or the Bidder's counsel. 4.2 Scheme Consideration The Bidder covenants in favour of SMEC (in SMEC's own right and separately as trustee for each Scheme Shareholder) that, in consideration of the transfer to the Bidder of the Scheme Shares under the terms of the Scheme), on the Implementation Date, the Bidder will: (a) accept that transfer; and (b) provide each Scheme Shareholder the Scheme Consideration, (c) in accordance with the Scheme. 4.3 Deed Poll The Bidder and the Guarantor covenant in favour of SMEC (in SMEC's own right and separately as trustee for each of the Scheme Shareholders) to execute and deliver the Deed Poll prior to the dispatch of the Explanatory Booklet and to perform the Deed Poll in accordance with its terms. 5. Treatment of SMEC Options 5.1 SMEC Options (a) As soon as reasonably practicable after the date of this agreement but in any event within 30 Business Days of that date, SMEC must use all reasonable endeavours to obtain the written agreement of each person who is an Optionholder (including by accelerated vesting under paragraph 5.1(b)(i)) to have their SMEC Options cancelled, subject to either all other Optionholders or Optionholders holding in aggregate of not less than 90% of all SMEC Options on issue (to be determined at the discretion of the Bidder) agreeing to have their SMEC Options cancelled and to the Scheme becoming Effective and with effect from the Effective Date, under private treaty agreement between SMEC and Optionholder. The form of agreement to be used for this purpose must be agreed to by the Bidder and must reflect the consideration set out in clause 5.1(b). (b) SMEC agrees that: (i) subject to either all other Optionholders or Optionholders holding in aggregate of not less than 90% of all SMEC Options on issue (to be determined at the discretion of the Bidder) agreeing to have their SMEC Options cancelled and to the Scheme becoming Effective and with effect from the Effective Date, SMEC will accelerate a proportion of the unvested SMEC Options in accordance with document [ ] in the Project Star online data room and procure the cancellation or termination of all other unvested SMEC Options; (ii) the consideration to be paid to an Optionholder holding vested SMEC Options, is the difference between the Scheme Consideration and the exercise price; and (iii) the maximum amount payable under this clause 5 is $7,911,780. (c) If, within 30 Business Days of the date of this agreement, SMEC has not obtained the agreement of each person who is an Optionholder to have his or her options cancelled in accordance with clause 5.1(a): (i) the Bidder agrees to give due and reasonable consideration to the alternative of the Bidder initiating after the Implementation Date the compulsory acquisition of any SMEC Options that remain on issue as at that date, under Part 6A.2 (Div 2) of the Corporations Act; (ii) subject to the Bidder complying with clause 5.1(c)(i),SMEC agrees, if directed to do so by the Bidder to propose a creditors' scheme of arrangement under Part 5.1 MinterEllison Ref: THW STS KXT Page 19

20 of the Corporations Act between SMEC and all Optionholder (including any Optionholder who provides a written agreement within the terms contemplated by clause 5.1(a)), the purpose of which is to cancel all of the SMEC Options on issue for the consideration to be determined in accordance with clause 5.1(b): (iii) (iv) the creditors' scheme of arrangement contemplated by clause 5.1(c)(ii) if required, will be in a form to be agreed between the parties acting reasonably; and the approval and implementation of the Scheme will not be conditional on the approval and implementation of the creditors' scheme of arrangement contemplated by clause 5.1(c)(ii), if that scheme is required. 6. Guarantee 6.1 Guarantee and indemnity In consideration of SMEC executing this agreement at the request of the Guarantor, the Guarantor unconditionally and irrevocably: (a) guarantees to SMEC the due and punctual performance and observance by the Bidder of all of the obligations contained in or implied under this agreement that must be performed and observed by the Bidder (Guaranteed Obligations); and (b) indemnifies SMEC against all losses, damages, costs and expenses which SMEC may now or in the future suffer or incur consequent on or arising directly or indirectly out of any breach or non observance by the Bidder of a Guaranteed Obligation. 6.2 Extent of guarantee and indemnity This clause 6 applies and the obligations of the Guarantor remain unaffected despite: (a) an amendment of this agreement; or (b) a rule of law or equity to the contrary; or (c) an insolvency event affecting a person or the death of a person; or (d) a change in the constitution, membership, or partnership of a person; or (e) the partial performance of the Guaranteed Obligations; or (f) the Guaranteed Obligations not being enforceable at any time (whether by reason of a legal limitation, disability or incapacity on the part of the Bidder and whether this agreement is void ab initio or is subsequently avoided) against the Bidder; or (g) (h) SMEC granting any time or other indulgence or concession to, compounding or compromising with, or wholly or partially releasing the Bidder or the Guarantor of an obligation; or another thing happening that might otherwise release, discharge or affect the obligations of the Guarantor under this agreement. 6.3 No deductions or withholdings The Guarantor must make all payments required of it under this clause 6 in full, without set off and free and clear of any withholding or deduction. If the Guarantor is required to withhold or deduct any tax, duty, impost, charge, withholding, rate, levies or other governmental imposition of any nature together with associated costs, charges, interest, penalties, fines or expenses (Taxes) so that SMEC would not actually receive on the due date the full amount then the Guarantor must ensure that the amount payable is increased so that, after making that deduction and deductions applicable to additional amounts payable under this clause, SMEC is entitled to receive, and does receive, the amount it would have received if no deductions had been required. The Guarantor must ensure any deductions required are made and pay the full amount deducted to the relevant governmental body in accordance with applicable law. MinterEllison Ref: THW STS KXT Page 20

21 6.4 Continuing guarantee The Guarantor's obligations under this clause 6 are absolute, unconditional and irrevocable. The liability of the Guarantor under this clause 6 extends to and is not affected by any circumstance, act or omission which, but for this clause, might otherwise affect it at law or in equity. The guarantee in this clause 6 is a continuing security, and remains in full force until all of the Guaranteed Obligations have been fully paid and satisfied. This clause 6 survives any termination or full or partial discharge of this agreement. 6.5 Avoidance The Guarantor agrees that if a payment or other transaction relating to the Guaranteed Obligations is void, voidable, unenforceable or defective for any reason or a related claim is upheld, conceded or settled (each an Avoidance), then even though SMEC knew or should have known of the Avoidance: (a) each right, power, discretion or remedy of SMEC and the Guarantor's liability under this clause 6 will be what it would have been, and will continue, as if the payment or transaction the subject of the Avoidance had not occurred; and (b) the Guarantor will immediately execute and do anything necessary or required by SMEC to restore SMEC to its position immediately before the Avoidance. 6.6 Principal and independent obligation This clause 6 is: (a) a principal obligation and is not to be treated as ancillary or collateral to another right or obligation; and (b) independent of and not in substitution for or affected by another security interest or guarantee or other document or agreement which SMEC or another person may hold concerning the Guaranteed Obligations. 6.7 Enforcement against the Guarantor SMEC may enforce this clause 6 against the Guarantor without first having to resort to another guarantee or security interest or other agreement relating to the Guaranteed Obligations. 7. Recommendation, intentions and announcements 7.1 SMEC Board Recommendation and Voting Intention (a) SMEC must ensure that the Announcement and the Explanatory Booklet state that the SMEC Board unanimously recommends that SMEC Shareholders vote in favour of the Scheme (Recommendation) which Recommendation must not be qualified in any way other than by words to the effect of in the absence of a Superior Proposal and subject to the Independent Expert concluding that the Scheme is in the best interest of SMEC Shareholders. (b) (c) The Bidder acknowledges that each SMEC Director may, subject to the terms of this agreement, publicly (or otherwise) withdraw, change or in any way qualify their Recommendation if: (i) a Superior Proposal is made; or (ii) the Independent Expert concludes that the Scheme is not in the best interest of SMEC Shareholders in the Independent Expert's Report (either in its initial report or any subsequent update of its report). SMEC and the Bidder acknowledge that each SMEC Director has indicated to SMEC that he or she intends to cause any Shares in which he or she has a Relevant Interest to be voted in favour of the Scheme (Voting Intention), and SMEC must ensure that the Announcement and the Explanatory Booklet state these Voting Intentions, subject to: (i) there being no Superior Proposal; and MinterEllison Ref: THW STS KXT Page 21

22 (d) (ii) the Independent Expert concluding that the Scheme is in the best interest of SMEC Shareholders in the Independent Expert's Report (either in its initial report or any subsequent update of its report). The Bidder acknowledges that each SMEC Director may, subject to the terms of this agreement, publicly (or otherwise) withdraw, change or in any way qualify their Voting Intention. 7.2 Announcements (a) Immediately after the execution of this agreement SMEC must publicly issue the Announcement. (b) Any further public announcements by SMEC or the Bidder in relation to, or in connection with, the Proposed Transaction may only be made in a form approved by each party in writing (acting reasonably). Where a party is required by law to make any announcement or to make any disclosure in relation to, or in connection with the Proposed Transaction or any other transaction related to this agreement or the Scheme, it may do so to the extent legally required but it must use reasonable endeavours to provide notice to and consult with the other party in relation to that disclosure to the extent possible in the circumstances. 8. Scheme parties' respective implementation obligations 8.1 SMEC's obligations SMEC must take all steps reasonably necessary to propose and (subject to all of the Conditions being satisfied or waived in accordance with their terms) implement the Scheme as soon as reasonably practicable after the date of this agreement and substantially in accordance with the Timetable, including taking each of the following steps: (a) (Explanatory Booklet) prepare the Explanatory Booklet in accordance with clause 8.3; (b) (Independent Expert) promptly appoint the Independent Expert and provide all assistance and information reasonably requested by the Independent Expert in connection with the preparation of the Independent Expert's Report; (c) (approval of draft for ASIC) as soon as reasonably practicable after the preparation of an advanced draft of the Explanatory Booklet suitable for review by ASIC, procure that a meeting of the SMEC Board, or of a committee of the SMEC Board appointed for the purpose, is held to consider approving that draft as being in a form appropriate for provision to ASIC for its review and approval for the purposes of section 411(2) of the Corporations Act; (d) (liaison with ASIC) as soon as reasonably practicable after the date of this agreement: (e) (i) (ii) provide an advanced draft of the Explanatory Booklet, in a form approved in accordance with clauses 8.1(c) and 8.2(e), to ASIC for its review and approval for the purposes of section 411(2) of the Corporations Act; and liaise with ASIC during the period of its consideration of that draft of the Explanatory Booklet and keep the Bidder reasonably informed of any matters raised by ASIC in relation to the Explanatory Booklet and use reasonable endeavours, in consultation with the Bidder, to resolve any matters raised by ASIC; (approval of Explanatory Booklet) as soon as reasonably practicable after the conclusion of the review by ASIC of the Explanatory Booklet, procure that a meeting of the SMEC Board, or of a committee of the SMEC Board appointed for the purpose, is held to consider approving the Explanatory Booklet for dispatch to the SMEC Shareholders, subject to orders of the Court under section 411(1) of the Corporations Act and provide a copy of the Explanatory Booklet to the Bidder as soon as practicable after the Explanatory Booklet is dispatched the SMEC Shareholders; MinterEllison Ref: THW STS KXT Page 22

23 (f) (g) (h) (i) (j) (k) (l) (m) (n) (o) (p) (section 411(17)(b) statements) apply to ASIC for the production of statements in writing under section 411(17)(b) of the Corporations Act stating that ASIC has no objection to the Scheme; (first Court hearing) lodge all documents with the Court and take all other reasonable steps to ensure that promptly after, and provided that, the approvals in clauses 8.1(e) and 8.2(f) have been received, an application is heard by the Court for an order under section 411(1) of the Corporations Act directing SMEC to convene the Scheme Meeting; (registration of explanatory statement) request ASIC to register the explanatory statement included in the Explanatory Booklet in relation to the Scheme in accordance with section 412(6) of the Corporations Act; (updating Explanatory Booklet) until the date of the Scheme Meeting, promptly update the Explanatory Booklet should it become aware that any information included in the Explanatory Booklet has become misleading or deceptive in any material respect (whether by omission or otherwise); (convening Scheme Meeting ) take all reasonable steps necessary to comply with the orders of the Court including, as required, dispatching the Explanatory Booklet to the SMEC Shareholders and convening and holding the Scheme Meeting and the General Meeting; (convening General Meeting ) take all reasonable steps necessary to convene the General Meeting to take place immediately after the Scheme Meeting and subject to the Scheme being approved at the Scheme Meeting, put the resolution to approve the Constitutional Amendment to SMEC Shareholders at the General Meeting; (Court approval application if parties agree that conditions are capable of being satisfied) if the resolution submitted to the Scheme Meeting is passed by the majorities required under section 411(4)(a)(ii) of the Corporations Act and, if necessary, the parties agree on the Business Day immediately following the Scheme Meeting that it can be reasonably expected that all of the Conditions will be satisfied or waived prior to the proposed Second Court Date, apply to the Court for orders approving the Scheme; (appeal process) if the Court refuses to make any orders directing SMEC to convene the Scheme Meeting or approving the Scheme, SMEC and the Bidder must: (i) consult with each other in good faith as to whether to appeal the Court's decision; and (ii) appeal the Court decision unless the parties agree otherwise or an independent senior counsel opines that, in his or her view, an appeal would have no reasonable prospect of success; (implementation of Scheme) if the Scheme is approved by the Court: (i) promptly lodge with ASIC an office copy of the orders approving the Scheme in accordance with section 411(10) of the Corporations Act; (ii) determine entitlements to the Scheme Consideration as at the Record Date in accordance with the Scheme; (iii) execute proper instruments of transfer of and effect and register the transfer of the Scheme Shares to the Bidder on the Implementation Date; and (iv) do all other things contemplated by or necessary to give effect to the Scheme and the orders of the Court approving the Scheme; (Regulatory notifications) in relation to the Regulatory Approvals, lodge with any Governmental Agency within the relevant periods all documentation and filings required by law to be so lodged by SMEC in relation to the Proposed Transaction; (Bidder Information) without the prior written consent of the Bidder, not use the Bidder Information for any purposes other than those contemplated by this agreement or the Scheme; MinterEllison Ref: THW STS KXT Page 23

24 (q) (r) (s) (Documents) consult with the Bidder in relation to the content of the documents required for the purpose of the Scheme including originating process, affidavits, submissions and draft minutes of Court orders; (Shareholder support) promote to its shareholders the merits of the Scheme, including soliciting proxy votes in favour of the Scheme; and (Compliance with laws) do everything reasonably within its power to ensure that all transactions contemplated by this agreement are effected in accordance with all applicable laws and regulations. 8.2 Bidder's obligations The Bidder must take all steps reasonably necessary to assist SMEC to implement the Scheme as soon as reasonably practicable and substantially in accordance with the Timetable including taking each of the following steps: (a) (Bidder Information) provide to SMEC, in a form appropriate for inclusion in the Explanatory Booklet, all Bidder Information that is required by all applicable law and ASIC Regulatory Guides for inclusion in the Explanatory Booklet, which information must without limiting the above: (i) contain all information necessary to enable SMEC to ensure that the Explanatory Booklet complies with the requirements of RG 60; (ii) not be misleading or deceptive in any material respect (whether by omission or otherwise) including in the form and context in which it appears in the Explanatory Booklet; and (iii) be updated by all further or new material information which may arise after the Explanatory Booklet has been dispatched until the date of the Scheme Meeting which is necessary to ensure that it is not misleading or deceptive in any material respect (whether by omission or otherwise); (b) (regulatory notifications) in relation to the Regulatory Approvals, lodge with any regulatory authority within the relevant periods all documentation and filings required by law to be so lodged by the Bidder in relation to the Proposed Transaction; (c) (Independent Expert) subject to the Independent Expert agreeing to reasonable confidentiality restrictions, promptly provide all assistance and information reasonably requested by the Independent Expert to enable it to prepare the Independent Expert's Report; (d) (review of Explanatory Booklet) as soon as reasonably practicable after delivery, review the drafts of the Explanatory Booklet prepared by SMEC and provide comments on those drafts in good faith; (e) (approval of draft for ASIC) as soon as reasonably practicable after the preparation of an advanced draft of the Explanatory Booklet suitable for review by ASIC, procure that a meeting of the appropriate representatives of the Bidder is held to consider approving those sections of that draft that relate to the Bidder or the Guarantor as being in a form appropriate for provision to ASIC for review; (f) (approval of Explanatory Booklet) as soon as reasonably practicable after the conclusion of the review by ASIC of the Explanatory Booklet, procure that a meeting of the appropriate representatives of the Bidder is held to consider approving those sections of the Explanatory Booklet that relate to the Bidder or the Guarantor as being in a form appropriate for dispatch to SMEC Shareholders, subject to approval of the Court; (g) (representation) procure that, if requested by the Bidder or SMEC, the Bidder is represented by counsel at the Court hearings convened for the purposes of section 411(4)(b) of the Corporations Act; (h) (SMEC Information) without the prior written consent of SMEC, not use SMEC Information for any purposes other than those contemplated by this agreement or the Scheme; and MinterEllison Ref: THW STS KXT Page 24

25 (i) (compliance with laws) do everything reasonably within its power to ensure that all transactions contemplated by this agreement are effected in accordance with all applicable laws and regulations. 8.3 Explanatory Booklet - preparation principles (a) As soon as reasonably practicable after the date of this agreement and substantially in accordance with the Timetable, SMEC must prepare the Explanatory Booklet in compliance with: (i) all applicable laws, in particular with the Corporations Act and RG 60; and (ii) this clause 8.3. (b) The Explanatory Booklet will include: (i) the terms of the Scheme; (ii) the notice of Scheme Meeting and the General Meeting and any other notice of meeting in respect of any resolution that is necessary, expedient or incidental to give effect to the Scheme, together with a proxy form for the Scheme Meeting, the General Meeting and for any ancillary meeting; (iii) the SMEC Information; (iv) the Bidder Information; (v) a copy of this agreement (without the schedules or annexures); (vi) a copy of the executed Deed Poll; and (vii) a copy of the Independent's Expert Report. (c) The Explanatory Booklet must include a statement that: (i) other than the Bidder Information and the Independent Expert's Report, the Explanatory Booklet has been prepared by SMEC and is the responsibility of SMEC, and that the Bidder assumes no responsibility for the accuracy or completeness of the Explanatory Booklet (other than the Bidder Information); and (ii) the Bidder Information has been provided by the Bidder or the Guarantor and is the responsibility of the Bidder, and SMEC assumes no responsibility for the accuracy or completeness of the Bidder Information. (d) SMEC must make available to the Bidder drafts of the Explanatory Booklet (excluding any draft of the Independent Expert's Report), consult with the Bidder in relation to the content of those drafts (other than the Bidder Information), and consider in good faith, for the purpose of amending those drafts, comments from the Bidder on those drafts. The Bidder acknowledges and agrees that SMEC has ultimate discretion with respect to the preparation, form and content of the Explanatory Booklet, other than as provided in this agreement with respect to the Bidder Information. (e) SMEC must seek approval from the Bidder for the form and context in which the Bidder Information appears in the Explanatory Booklet, which approval the Bidder must not unreasonably withhold or delay and SMEC must not lodge the Explanatory Booklet with ASIC until that approval is obtained from the Bidder. (f) If SMEC and the Bidder disagree on the form or content of the Explanatory Booklet, they must consult in good faith to try to settle an agreed form of the Explanatory Booklet. If complete agreement is not reached after reasonable consultation, then: (i) if the disagreement relates to the form or content of any information appearing in the Explanatory Booklet other than the Bidder Information, the SMEC Board will, acting in good faith, decide the final form or content of the disputed part of the Explanatory Booklet; and (ii) if the disagreement relates to the form or content of the Bidder Information, SMEC will make that amendments to the form or content of the disputed part of the Bidder Information as the Bidder reasonably requires. MinterEllison Ref: THW STS KXT Page 25

26 (g) (h) (i) (j) (k) (l) (m) SMEC must take all reasonable steps to ensure that the Explanatory Booklet (other than the Bidder Information and the Independent Expert's Report) is not misleading or deceptive in any material respect (whether by omission or otherwise) as at the date it is dispatched to SMEC Shareholders. The Bidder must take all reasonable steps to ensure that the Bidder Information is not misleading or deceptive in any material respect (whether by omission or otherwise) as at the date on which the Explanatory Booklet is dispatched to SMEC Shareholders. SMEC must provide to the Bidder all further or new information of which SMEC becomes aware that arises after the Explanatory Booklet has been dispatched until the date of the Scheme Meeting where this is or may be necessary to ensure that the Explanatory Booklet continues to comply with the Corporations Act and RG 60. The Bidder must provide to SMEC all further or new information of which the Bidder becomes aware that arises after the Explanatory Booklet has been dispatched until the date of the Scheme Meeting where this is or may be necessary to ensure that the Bidder Information continues to comply with the Corporations Act and RG 60. SMEC and the Bidder each agree that the efficient preparation of the Explanatory Booklet and the implementation of the Scheme are in the interests of SMEC Shareholders and the Bidder and that they will use all reasonable endeavours and utilise all reasonable resources (including management resources and the resources of external advisers) to comply with their respective obligations under this clause 8.3 and to implement the Scheme as soon as reasonably practicable and substantially in accordance with the Timetable. SMEC must undertake appropriate verification processes in relation to the SMEC Information contained in the Explanatory Booklet, and the Bidder must undertake appropriate verification processes in relation to the Bidder Information contained in the Explanatory Booklet. The Bidder and SMEC are entitled to separate representation at all Court proceedings affecting the Proposed Transaction. Nothing in this document provides one party with any right or power to give undertakings to the Court on behalf of the other party without that party's consent. 9. Conduct of business before the Implementation Date 9.1 Conduct of SMEC business (a) (b) Subject to clause 9.2, from the date of this agreement up to and including the Implementation Date, SMEC must conduct and must cause each of its Subsidiaries to conduct their business in the ordinary and usual course of business and: (i) operate those businesses consistent with past practice, in substantially the same manner as previously conducted; (ii) use reasonable endeavours to preserve their relationships with customers, suppliers, landlords, licensors, licensees and others having material business dealings with them, and to retain the services of all key employees; (iii) use reasonable endeavours to ensure that all assets are maintained in the normal course consistent with past practice; (iv) use reasonable endeavours to comply in all material respects with all material contracts to which a member of the SMEC Group is a party, and with laws, authorisations and licences applicable to each member of the SMEC Group; and (v) not take or fail to take any action that constitutes a SMEC Prescribed Occurrence or that could reasonably be expected to result in a SMEC Prescribed Occurrence. Without limiting clause 9.1(a) but subject to clause 9.2, SMEC must not, and must procure that its Subsidiaries do not, from the date of this agreement up to and including the Implementation Date, do any of the following or agree or offer to do any of the following: MinterEllison Ref: THW STS KXT Page 26

27 (i) (ii) (iii) (iv) (v) (vi) (vii) (viii) (ix) (x) (xi) (xii) (xiii) (xiv) incur any additional financial indebtedness (except for draw downs on existing banking facilities or utilisation of existing securitisation programs), amend the terms of any existing financing arrangement, agreement or instrument or guarantee or indemnify the obligations of any person other than a member of the SMEC Group, other than in the usual and ordinary course of business and consistent with past practice; except as required by law or as provided in an existing contract in place as at the date of the Disclosure Letter make any material change to the terms of employment of (including increasing the remuneration), or grant or pay any bonus, retention, severance or termination payment to, any director, executive or Senior Manager with an annual remuneration package of greater than $600,000; except as under contractual arrangements in effect on the date of the Disclosure Letter enter into any enterprise bargaining agreement or similar collective employment agreement; in respect of any single transaction or series of related or similar transactions, acquire or dispose of any interest in a business, real property, entity or undertaking, the value of which exceeds $3,000,000, individually or when aggregated with all businesses, real property, entities or undertakings the subject of the transaction or series of related or similar transactions; enter into any agreement, arrangement or transaction with respect to derivative instruments (including, but not limited to, swaps, futures contracts, forward commitments, commodity derivatives or options) or similar instruments, except foreign currency hedges or interest rate hedges (including basis swaps on interest rates, such that the net period for the floating interest on the swaps is the same period as the net floating interest period on the relevant loan) made in the ordinary course of business consistent with past practice and in accordance with existing policy as at the date of this agreement; give or agree to give any financial benefit to one of its related parties (other than a member of the SMEC Group); agreeing, exerting into or effecting a merger, acquisition and disposal in excess of $10 million; agreeing, entering into or undertaking capital expenditure of: (A) in aggregate, greater than $5 million; or (B) for one project, greater than $3 million; pay any fee to any adviser where that fee is contingent on the Proposed Transaction (other than as Fairly Disclosed in writing to the other party before the date of this agreement); alter in any material respect any accounting policy of any member of the SMEC Group other than any change required by the Accounting Standards; amend in a material respect or terminate any existing material shareholders' agreement, or other similar material investor agreements or arrangements, or enter into any material shareholders' agreement, or other similar material investor agreement or arrangement; granting any licence, assignment or other right of interest in respect of intellectual property rights used by the SMEC Group; make any change to its constitution, other than the proposed Constitution Amendment, or make any change to the constitution of SMEC International Pty Ltd; take steps to be deregistered as a company other than in respect of a dormant or non-operating member of the SMEC Group; MinterEllison Ref: THW STS KXT Page 27

28 (c) (xv) dispose of any shares or securities in any Subsidiary other than to another member of the SMEC Group or where required in order to comply with relevant local ownership requirements; or (xvi) close or initiate the closure of any branch, or windup or initiate the winding up of any subsidiary except in relation to any Inactive Subsidiary. Without limiting clauses 9.1(a) and 9.1(b), but subject to clause 9.2, SMEC will provide the Bidder with written notice as soon as reasonably practicable of: (i) any potential legal claim in excess of $2 million of which it becomes aware; (ii) any new project that it is reasonably likely to enter into which has fees greater than $50 million; and (iii) any doubtful debt greater than $2 million of which it becomes aware. 9.2 Permitted activities The obligations of SMEC under clause 9.1 do not apply in respect of any matter: (a) undertaken by a member of the SMEC Group in conducting its businesses in the usual and ordinary course and consistent with past practice; (b) required to be done or procured by SMEC under, or which is otherwise contemplated by, this agreement or the Scheme; (c) required by law or by an order of a court or Governmental Agency; (d) Fairly Disclosed in the Disclosure Letter as being actions that the SMEC Group may carry out between the date of this agreement and the Implementation Date; or (e) the undertaking of which the Bidder has approved in writing (which approval must not be unreasonably withheld or delayed). 9.3 Access (a) In the period from the date of this agreement to the Implementation Date and for so long as the SMEC Board considers the Proposed Transaction to be in the best interest of SMEC Shareholders and continues to publicly recommend that SMEC Shareholders vote in favour of the resolution to be proposed at the Scheme Meeting to approve the Scheme, SMEC must: (i) keep the Bidder fully informed of all material developments relating to the SMEC Group and provide to the Bidder monthly management, financial and operational reports provided to the SMEC Board; and (ii) promptly following a reasonable request by the Bidder, provide the Bidder (and its Authorised Persons) with access to: (A) documents and information relating to the SMEC Group; and (B) Chief Executive Officer of SMEC and Senior Managers, for the purpose of: (C) planning the transition of the SMEC Group and other matters relating to the conduct of the SMEC Group following the Implementation Date; and (D) otherwise facilitating the Proposed Transaction, including facilitating the Bidder's financing of the Proposed Transaction by providing access to any documents and information as the Bidder's financiers or prospective financiers reasonably require subject to the relevant financiers agreeing to confidentiality restrictions which are no less onerous than the restrictions under the Confidentiality Agreement; (b) Nothing in this clause 9.3 obliges SMEC to provide to the Bidder or its Authorised Persons any information: (i) concerning the SMEC Directors' consideration of the Scheme; or MinterEllison Ref: THW STS KXT Page 28

29 (c) (ii) which would breach an obligation of confidentiality to any person or any applicable privacy laws. SMEC will provide reasonable assistance to the Bidder for the purpose of satisfying SMEC's obligations under this clause 9.3 but nothing in this clause 9.3 requires SMEC to provide access to its people or documentation or to take any other action which would unreasonably disrupt the usual and ordinary course of SMEC's businesses and operations. The parties agree and acknowledge that nothing in this clause 9.3 requires SMEC to provide any information that is different or in addition to the information SMEC provides to its Board and Senior Managers in the usual and ordinary course consistent with past practice. 9.4 Access to the Bidder information (a) From the date of this agreement up until and including the Implementation Date, the Bidder must: (i) respond to any reasonable request from SMEC and its Authorised Persons (including in response to requests for information from any Governmental Agency) for information concerning the Bidder Group and its business and operations or the Guarantor; and (ii) keep SMEC fully informed in reasonable detail of all material developments relating to the operations and financial position of the Bidder Group and the Guarantor. (b) Nothing in this clause 9.4 requires the Bidder to provide SMEC with any information: (i) in breach of an obligation of confidentiality to any person or any applicable privacy laws; or (ii) concerning the consideration of the Proposed Transaction by the Bidder board or the Bidder management. 9.5 Change of control rights (a) As soon as practicable after the date of this agreement, SMEC and the Bidder must seek to identify any change of control or similar provisions in leases and material contracts to which SMEC or a SMEC Group company is a party which may be triggered by the implementation of the Proposed Transaction. (b) In respect of those leases and contracts, the parties agree as follows: (i) SMEC and the Bidder will agree a proposed course of action and then jointly initiate contact with the relevant landlords and other counterparties and request that they provide any consents required. None of the Bidder, the Guarantor or any of their Authorised Persons may contact any landlords or other counterparties without SMEC's approval; (ii) SMEC must use its reasonable endeavours to obtain any consents required as expeditiously as possible (and the Bidder must cooperate with, and provide reasonable assistance to, SMEC to obtain any consents as expeditiously as possible), including by: (A) promptly providing any information reasonably required by landlords or counterparties; and (B) making representatives available, where necessary, to meet with landlords or counterparties to deal with issues arising in relation to the change of control of SMEC. (c) Subject to SMEC's compliance with clause 9.5(b), a failure by a member of the SMEC Group to obtain any landlord or third party consent will not constitute a breach of this agreement by SMEC and, together with any consequences that arise, will be disregarded when assessing the operation of any other provision of this agreement. MinterEllison Ref: THW STS KXT Page 29

30 10. Actions on and following Implementation Date 10.1 Reconstitution of the board of each member of the SMEC Group (a) On the Implementation Date, but subject to the Scheme Consideration having been paid in full by the Bidder to SMEC and receipt by SMEC of signed consents to act, SMEC must take all actions necessary (and in accordance with the constitution of the SMEC Group member and the Corporations Act) to appoint the persons nominated by the Bidder as new SMEC Directors and new directors of each Subsidiary. (b) Without limiting clause 10.1(a), on the Implementation Date, but subject to the Bidder notifying SMEC in writing no later than 7 Business Days prior to the Implementation Date as to the identity of the outgoing directors, SMEC must procure that: (i) all outgoing SMEC Directors resign from the SMEC Board; and (ii) all outgoing directors of each Subsidiary resigns from their office, by providing to the SMEC Board or the board of the relevant Subsidiary their resignation in writing to the effect that the outgoing directors have no claim outstanding against any member of the SMEC Group Sequence of actions on the Implementation Date On the Implementation Date, the transactions which form part of the Scheme will be implemented in the following sequence: (a) the Bidder will provide the Scheme Consideration to SMEC in accordance with the Scheme; (b) SMEC will disburse the Scheme Consideration to Scheme Shareholders in accordance with the Scheme; (c) in accordance with clause 5, all SMEC Options will be cancelled and the Bidder will if requested by SMEC provide to SMEC (either directly or indirectly) the consideration payable to those Optionholders who have entered into private treaty arrangements with SMEC for the cancellation of their SMEC Options; (d) the SMEC Board and the board of each Subsidiary of SMEC will be reconstituted in accordance with clause 10.1; and (e) the Bidder will acquire all of the Scheme Shares in accordance with the Scheme. 11. Representations and warranties 11.1 Bidder representations (a) The Bidder and the Guarantor represent and warrant to SMEC (on SMEC's behalf and separately as trustee or nominee for each of the other SMEC Parties) each of the matters set out in clause 11.1(b) as at the date of this agreement and on each subsequent day until the Delivery Time on the Second Court Date (except that where any statement is expressed to be made only at a particular date it is given only at that date). (b) The Bidder and the Guarantor represent and warrant that: (i) the Bidder and the Guarantor are validly existing corporations registered under the laws of its respective place of incorporation; (ii) the execution and delivery of this agreement has been properly authorised by all necessary corporate action and the Bidder and the Guarantor have full corporate power and lawful authority to execute and deliver this agreement and to perform or cause to be performed its respective obligations under this agreement; (iii) this agreement constitutes legal, valid and binding obligations on it and this agreement does not result in a breach of or default under any deed or any writ, MinterEllison Ref: THW STS KXT Page 30

31 (iv) (v) (vi) (vii) (viii) (ix) (x) (xi) (xii) order or injunction, rule or regulation to which the Bidder or the Guarantor is a party or is bound; other than expressly contemplated in this agreement, no approval of any Governmental Agency is required to be obtained by the Bidder or the Guarantor in order for the Bidder or the Guarantor to execute and perform the Transaction Documents; the Bidder Information provided to SMEC in accordance with clause 8.2(a) for inclusion in the Explanatory Booklet will: (A) comply in all material respects with the requirements of the Corporations Act and RG 60; and (B) be provided on the understanding that each of the SMEC Parties will rely on that information for the purposes of preparing the Explanatory Booklet and proposing and implementing the Scheme in accordance with the requirements of the Corporations Act; all information provided by or on behalf of the Bidder or the Guarantor to the Independent Expert to enable the Independent Expert's Report to be included in the Explanatory Booklet to be prepared and completed will be provided in good faith and on the understanding that the Independent Expert will rely on that information for the purposes of preparing the Independent Expert's Report; as at the date the Explanatory Booklet is dispatched to SMEC Shareholders, the Bidder Information, in the form and context in which that information appears in the version of the Explanatory Booklet registered by ASIC under section 412(6) of the Corporations Act will not be misleading or deceptive in any material respect (whether by omission or otherwise); the Bidder and the Guarantor will, as a continuing obligation, provide to SMEC all further or new information which may arise after the Explanatory Booklet has been dispatched until the date of the Scheme Meeting which is necessary to ensure that the Bidder Information, in the form and context in which that information appears in the version of the Explanatory Booklet registered by ASIC under section 412(6) of the Corporations Act, is not misleading or deceptive in any material respect (whether by omission or otherwise); all factual information the Bidder and the Guarantor have provided to SMEC prior to this agreement is, to the best of the Bidder's and Guarantor's knowledge, accurate in all material respects and not misleading in any material respect (whether by omission or otherwise), including that there are reasonable grounds for all statements as to future matters and a reasonable basis for all statements of opinion in that information; no Bidder Prescribed Occurrence has occurred; as at the date of this agreement the Bidder and the Guarantor have a reasonable basis to expect that the Bidder will, by the Implementation Date, have available to it sufficient cash amounts (whether from internal cash resources or external funding arrangements including debt and equity financing or a combination of both) to satisfy the Bidder's obligation to pay the Scheme Consideration in accordance with its obligations under this agreement, the Scheme and the Deed Poll; by the Delivery Time on the Second Court Date, the Bidder will have available to it on an unconditional basis (other than conditions relating to the approval of the Court and other conditions within the control of the Bidder) sufficient cash amounts (whether from internal cash resources or external funding arrangements including debt and equity financing or a combination of both) to satisfy the Bidder's obligation to pay the Scheme Consideration in accordance with its obligations under this agreement, the Scheme and the Deed Poll; MinterEllison Ref: THW STS KXT Page 31

32 (xiii) (xiv) the Bidder will have available to it on the Implementation Date sufficient cash amounts (whether from internal cash resources or external funding including debt and equity financing arrangements or a combination of both) to satisfy the Bidder's obligation to pay the Scheme Consideration in accordance with its obligations under this agreement, the Scheme and the Deed Poll; and the Bidder does not and any member of the Bidder Group do not have any beneficial interest in any Shares and between the date of this agreement and the Record Date, the Bidder will not, and will procure that each other member of the Bidder Group does not, enter into any arrangement under which it obtains the beneficial interest in any Shares, unless the Shares are registered in the name of the Bidder Bidder's indemnity The Bidder agrees with SMEC (on SMEC's behalf and separately as trustee or nominee for each of the other SMEC Parties) to indemnify and keep indemnified the SMEC Parties from and against all claims, actions, proceedings, liabilities, obligations, damages, loss, harm, charges, costs, expenses, duties and other outgoings of whatever nature and however arising which any of the SMEC Parties may suffer or incur by reason of any breach of any of the representations and warranties in clauses 11.1(a) or 11.1(b) SMEC representations (a) SMEC represents and warrants to the Bidder (on its behalf and separately as trustee for each of the Bidder Parties) each of the matters set out in clause 11.3(b) as at the date of this agreement and on each subsequent day until the Delivery Time on the Second Court Date (except that where any statement is expressed to be made only at a particular date it is given only at that date). (b) SMEC represents and warrants that: (i) SMEC is a validly existing corporation registered under the laws of its place of incorporation; (ii) the execution and delivery of this agreement by SMEC has been properly authorised by all necessary corporate action and SMEC has full corporate power and lawful authority to execute and deliver this agreement and to perform or cause to be performed its obligations under this agreement; (iii) this agreement constitutes legal, valid and binding obligations on SMEC and the execution of this agreement does not result in a breach of or default under any agreement or deed or any writ, order or injunction, rule or regulation to which SMEC or any of its Subsidiaries is a party or to which they are bound; (iv) the SMEC Information contained in the Explanatory Booklet will comply in all material respects with the requirements of the Corporations Act and RG 60; (v) as at the date the Explanatory Booklet is dispatched to SMEC Shareholders, the Explanatory Booklet registered by ASIC under section 412(6) of the Corporations Act (excluding the Bidder Information and the Independent Expert's Report) will not be misleading or deceptive in any material respect (whether by omission or otherwise); (vi) SMEC's financial statements as lodged with ASIC have been prepared in accordance with the Accounting Standards on a basis consistent with past practice and, so far as SMEC is aware, there has not been any event, change, effect or development which would require SMEC to restate its financial statements as lodged with ASIC; (vii) the Due Diligence Material and each disclosure in the Disclosure Letter have been collated and disclosed in good faith and, so far as the SMEC Board and the Senior Managers are aware after due and diligent enquiry, SMEC has not: (A) omitted anything from that information which makes any part of that information materially false or misleading; or MinterEllison Ref: THW STS KXT Page 32

33 (viii) (ix) (x) (xi) (xii) (xiii) (xiv) (xv) (B) included anything materially false or misleading in that information; other than expressly contemplated in this agreement and Fairly Disclosed in the Due Diligence Materials, no Regulatory Approvals are required to be obtained by SMEC in order for it to execute and perform the Transaction Documents to which it is a party; no shareholder approval of SMEC is required to complete the Proposed Transaction other than the approval referred to in clause 3.1(f). each member of the SMEC Group has all material licences and permits necessary for it to conduct its business other than as Fairly Disclosed in the Due Diligence Materials; as at the date of this agreement, ASIC has not made a determination against any member of the SMEC Group for any contravention of the requirements of the Corporations Act or any rules, regulations or policy statements under the Corporations Act other than as Fairly Disclosed in the Due Diligence Materials; there is no material Security Interest over all or any of SMEC's or SMEC's Subsidiaries' present or future assets or the revenues of SMEC's business or SMEC's Subsidiaries' businesses other than as Fairly Disclosed in the Due Diligence Materials; as at the date the Explanatory Booklet is dispatched to SMEC Shareholders, the Explanatory Booklet registered by ASIC under section 412(6) of the Corporations Act (excluding the Bidder Information and the Independent Expert's Report) will not be misleading or deceptive in any material respect (whether by omission or otherwise); all information provided by or on behalf of SMEC to the Independent Expert to enable the Independent Expert's Report to be prepared and completed will be provided in good faith and on the understanding that the Independent Expert will rely on that information for the purposes of preparing the Independent Expert's Report; and as at the date of this agreement, the total issued capital of SMEC is: (A) 204,580,601 Shares; and (B) 14,628,715 SMEC Options, and there are no other options, performance rights, shares, convertible notes or other securities (or offers or agreements to issue any of the above securities) SMEC's indemnity SMEC agrees with the Bidder (on the Bidder's behalf and separately as trustee for each of the Bidder Parties) to indemnify and keep indemnified the Bidder Parties from and against all claims, actions, proceedings, liabilities, obligations, damages, loss, harm, charges, costs, expenses, duties and other outgoings of whatever nature and however arising which any of the Bidder Parties may suffer or incur by reason of any breach of any of the representations and warranties in clauses 11.3(a) or 11.3(b) Notifications Each party will promptly advise the other in writing if it becomes aware of any event, fact, matter or circumstance which constitutes or may constitute a breach of any of the representations or warranties given by it under this clause Survival of representations Each representation and warranty in clauses 11.1 and 11.3: (a) is severable; (b) will survive the termination of this agreement; and MinterEllison Ref: THW STS KXT Page 33

34 (c) is given with the intent that any liability will not be confined to breaches which are discovered prior to the date of termination of this agreement Survival of indemnities Each indemnity in this agreement (including those in clauses 11.2 and 11.4) will: (a) be severable; (b) be a continuing obligation; (c) constitute a separate and independent obligation of the party giving the indemnity from any other obligations of that party under this agreement; and (d) survive the termination of this agreement. 12. Releases 12.1 SMEC Parties (a) Without limiting the Bidder's rights under clause 11, the Bidder (for itself and as agent of every member of the Bidder Group) releases all rights against and agrees with SMEC that it will not make a Claim against, any SMEC Party (other than SMEC) in connection with: (i) SMEC's execution or delivery of this agreement; (ii) any breach of any representation, covenant and warranty of SMEC in this agreement; (iii) the implementation of the Scheme; or (iv) any disclosure made by any SMEC Party including in the Due Diligence Material or the Disclosure Letter that contains any statement which is false or misleading whether in content or by omission, except to the extent the relevant SMEC Party has acted fraudulently or has engaged in wilful misconduct. (b) This clause is subject to any Corporations Act restriction and will (if and to the extent required) be read down accordingly. SMEC receives and holds the benefit of this clause as trustee for each other SMEC Party Bidder Parties (a) Without limiting SMEC's rights under clause 11, SMEC releases its rights against, and agrees with the Bidder that it will not make a Claim against any Bidder Party (other than the Bidder or the Guarantor) in connection with: (i) the Bidder's execution or delivery of this agreement; (ii) any breach of any representation, covenant and warranty of the Bidder in this agreement; (iii) the implementation of the Scheme; or (iv) any disclosure made by any the Bidder Party that contains any statement which is false or misleading whether in content or by omission, except to the extent that the relevant the Bidder Party has acted fraudulently or has engaged in wilful misconduct. (b) This clause is subject to any Corporations Act restriction and will (if and to the extent required) be read down accordingly. The Bidder receives and holds the benefit of this clause as trustee for each other Bidder Party Deeds of indemnity (a) Subject to the Scheme becoming Effective, the Bidder undertakes in favour of SMEC and each other person who is a SMEC Party that it will: MinterEllison Ref: THW STS KXT Page 34

35 (b) (c) (d) (i) subject to clause 12.3(d), for seven years from the Implementation Date, ensure that the constitutions of SMEC and each other member of the SMEC Group continue to contain rules as are contained in those constitutions at the date of this agreement that provide for each company to indemnify each of its directors and officers against any liability incurred by that person in his or her capacity as a director or officer of the company to any person other than a member of the SMEC Group; and (ii) procure that SMEC and each other member of the SMEC Group complies with any deeds of indemnity, access and insurance made by them in favour of their respective directors and officers. The undertakings contained in clause 12.3(a) are subject to any Corporations Act restriction, or any restriction in the law of a jurisdiction in which an entity is incorporated, and will be read down accordingly. SMEC receives and holds the benefit of clause 12.3(a), to the extent it relates to the other SMEC Parties, as trustee for them. The undertakings contained in clause 12.3(a) are given: (i) in the case of clause 12.3(a)(i), until the earlier of seven years from the Implementation Date or the relevant member of the SMEC Group ceasing to be part of the Bidder Group; or (ii) in the case of clause 12.3(a)(ii), until the earlier of seven years from the retirement of each director and officer or the relevant member of the SMEC Group ceasing to be part of the Bidder Group Directors' and officers' insurance The Bidder acknowledges that SMEC will in respect of SMEC and all other members of the SMEC Group: (a) prior to the Effective Date, arrange for the cover currently provided under the directors' and officers' insurance policy for SMEC and all other members of the SMEC Group (Policy) to be extended for a further 12 months; and (b) by no later than the Implementation Date, to the extent reasonable at normal commercial rates, arrange for the cover provided under the Policy to be amended so as to provide run off cover in accordance with the terms of the Policy for seven years from the end of the term of the Policy, and pay all premiums required so as to ensure that insurance cover is provided under the Policy on those terms until that date Obligations in relation to directors' and officers' insurance From the Implementation Date, SMEC must not: (a) vary or cancel the Policy; or (b) unless required under the Policy, commit any act or omission that may prejudice any claim by a director or officer of SMEC under the Policy as extended under clause 12.4(b) above. 13. Confidentiality and Public Announcement 13.1 Confidentiality Each party agrees and acknowledges that it is bound by the terms of the Confidentiality Agreement except that the terms of this agreement will prevail over the Confidentiality Agreement to the extent of any inconsistency Public Announcements on execution Promptly after the execution of this agreement, the parties must issue public announcements in the form of the Announcement. MinterEllison Ref: THW STS KXT Page 35

36 13.3 Further public announcements Subject to clause 13.4, any further public announcements by SMEC, the Guarantor or the Bidder in relation to, or in connection with, the Proposed Transaction or any other transaction the subject of this agreement or the Scheme may only be made in a form approved by each party in writing (acting reasonably) subject to where a party is required by law to make any announcement or to make any disclosure in relation to, or in connection with, the Proposed Transaction or any other transaction the subject of this agreement or the Scheme Required announcement Where a party is required by applicable law or any other applicable financial market regulation to make any announcement or to make any disclosure in connection with the Proposed Transaction or any other transaction the subject of this agreement or the Scheme, it may do so but must use reasonable endeavours, to the extent practicable and lawful, to consult with the other party before making the relevant disclosure and must give the other party as much notice as reasonably practicable Statements on termination The parties must use all reasonable endeavours to issue agreed statements in respect of any termination of this agreement and to that end clauses 13.3 and 13.4 apply to any of these statements or disclosures. 14. Termination 14.1 Termination by notice (a) The Bidder or SMEC may, by notice in writing to the other, terminate this agreement at any time prior to the Second Court Date: (i) if the other is in material breach of any of its obligations under this agreement (including a material breach of a representation or warranty and in the case of the Bidder includes any failure by it to pay an amount when due including an amount of damages or amounts due under an indemnity and any breach of clauses 11.1(b)(xi) to 11.1(b)(xiii) inclusive) is deemed to be a material breach) and the other party has failed to remedy that breach within ten Business Days (or the Delivery Time on the Second Court Date if earlier) of receipt by it of a notice in writing from the terminating party setting out details of the relevant circumstance and requesting the other party to remedy the breach; (ii) in accordance with clause 3.7; (iii) if the Court refuses to make any order directing SMEC to convene the Scheme Meeting, provided that both SMEC and the Bidder have complied with clause 8.1(m) and met and consulted in good faith and agreed that they do not wish to proceed with the Scheme; or (iv) if the Effective Date for the Scheme has not occurred on or before the End Date. (b) SMEC may, by notice in writing to the Bidder, terminate this agreement at any time prior to the Delivery Time on the Second Court Date if at any time before then that number of SMEC Directors as constitutes a majority of the SMEC Board publicly recommends a Superior Proposal and do not, within three Business Days, reinstate their recommendation of the Proposed Transaction; (c) The Bidder may, by notice in writing to SMEC, terminate this agreement at any time prior to the Delivery Time on the Second Court Date if at any time before then: (i) any director of SMEC fails to recommend the Proposed Transaction in accordance with clause 2.1(a); (ii) any director of SMEC withdraws or adversely modifies their recommendation of the Proposed Transaction or recommends or supports a Competing Proposal; or MinterEllison Ref: THW STS KXT Page 36

37 (iii) there is a Competing Proposal under which a third party actually acquires a relevant interest (under a transaction that is or has become unconditional) in more than 20% of the issued shares of SMEC Automatic termination Without limiting any other term of this agreement, this agreement will terminate automatically if the Scheme is not approved by the necessary majorities at the Scheme Meeting Effect of termination (a) In the event of termination of this agreement under clause 3.6, 14.1 or 14.2, this agreement will become void and have no effect, except that the provisions of clauses 11.6, 11.7, 14, 15, 16 and 20.3 to (inclusive) survive termination. (b) Termination of this agreement does not affect any accrued rights of a party in respect of a breach of this agreement prior to termination Disclosure on termination The parties agree that, if this agreement is terminated under this clause 14, any party may disclose: (a) the fact that this agreement has been terminated, where the disclosure is in the reasonable opinion of that party required to ensure that the market in its securities is properly informed; (b) the fact that this agreement has been terminated to ASIC and the Court; and (c) information that is required to be disclosed as a matter of law or in any proceedings. 15. SMEC Break Fee 15.1 Background (a) SMEC and the Bidder acknowledge that, if they enter into this agreement and the Scheme is subsequently not implemented, the Bidder will incur significant costs including those described in clause (b) In the circumstances referred to in clause 15.1(a), the Bidder has requested that provision be made for the payments outlined in clause 15.3, without which the Bidder would not have entered into this agreement. (c) The SMEC Board believes that the Scheme will provide benefit to SMEC and SMEC Shareholders and that it is appropriate for SMEC to agree to the payments referred to in this clause 15 in order to secure the Bidder's participation in the Proposed Transaction Costs incurred by the Bidder (a) The fee payable under clause 15.3 has been calculated to reimburse the Bidder for the following: (i) fees for legal and financial advice in planning and implementing the Proposed Transaction; (ii) reasonable opportunity costs incurred in engaging in the Proposed Transaction or in not engaging in other alternative acquisitions or strategic initiatives; (iii) costs of management and directors' time in planning and implementing the Proposed Transaction; (iv) out of pocket expenses incurred in planning and implementing the Proposed Transaction; (v) costs associated with the financing arrangements in respect of the Proposed Transaction; and MinterEllison Ref: THW STS KXT Page 37

38 (b) (vi) any damage to the Guarantor's reputation associated with a failed transaction and the implications of those damages if the Guarantor seeks to execute alternative acquisitions in the future, in each case, incurred by the Bidder directly or indirectly as a result of having entered into this agreement and pursuing the Proposed Transaction. The parties acknowledge that: (i) the amount of fees, costs and losses referred to in this clause 15.2 is inherently unascertainable and that, even after termination of this agreement, the costs will not be able to be accurately ascertained; and (ii) the amount of the costs payable under clause 15.3 is a genuine and reasonable pre-estimate of those fees, costs and losses Payment by SMEC to the Bidder (a) SMEC agrees to pay to the Bidder $3.9 million (exclusive of GST) (SMEC Break Fee) in any of the following circumstances: (i) (Competing Proposal) both of the following occur: (ii) (iii) (A) a Competing Proposal is publicly announced during the period commencing on the date of this agreement and ending on the date of termination of this agreement; and (B) within six months from the date of the public announcement of that Competing Proposal: (I) the Competing Proposal is implemented or completed substantially in the terms described in the public announcement; or (II) without limiting clause 15.3(a)(B)(i), the proponent of that Competing Proposal acquires a relevant interest in at least 50% of the SMEC Shares and the Competing Proposal is (or becomes) free of any defeating condition; or (Change of Recommendation) at any time prior to the Second Court Date, any director of SMEC: (A) withdraws or adversely modifies their recommendation of the Proposed Transaction or recommends or supports a Competing Proposal; (B) does not recommend in the Explanatory Booklet that SMEC Shareholders approve the Scheme; or (C) makes any public statement to the effect that the Scheme is not, or is no longer, recommended, except where that act is: (D) as a result of the Independent Expert opining that the Scheme is not in the best interest of SMEC Shareholders (other than where the reason for that opinion is a Superior Proposal); or (E) as a result of any matter or thing giving SMEC the right to terminate this agreement under clauses 14.1(a)(i); or (F) as a result of a failure of a Condition in clause 3.1 (and where that failure is determined under clause 3.7(b)), other than where the failure is due to an act (or failure to act) of SMEC or any member of the SMEC Group in breach of SMEC's obligations under clause 3.3; or (Material Breach) SMEC is in breach of any of its obligations under this agreement which is material in the context of the Scheme taken as a whole or of a representation and warranty given by it under clause 11.3 which is material in the context of the Scheme taken as a whole and the Bidder terminates this agreement in accordance with (and subject to the cure periods specified in) clause 14.1(a)(i); MinterEllison Ref: THW STS KXT Page 38

39 (b) (c) (d) (e) (f) SMEC must pay the Bidder the SMEC Break Fee within five Business Days of receipt by SMEC of a demand for payment from the Bidder made after the occurrence of the event referred to in clause 15.3(a). The SMEC Break Fee is not payable merely because the resolution submitted to the Scheme Meeting in respect of the Scheme is not approved by the majorities required under section 411(4)(a)(ii) of the Corporations Act. The SMEC Break Fee is only payable once and the maximum amount payable by SMEC under this clause 15.3 is $3.9 million (exclusive of GST). Where the SMEC Break Fee becomes payable to the Bidder under this clause 15.3 and is paid to the Bidder, the Bidder (for itself and as agent of every member of the Bidder Group): (i) releases all rights against and agrees with SMEC that the Bidder will not make a Claim against any SMEC Party (other than a claim under this clause 15.3) in connection with: (A) the event that gave rise to the right to demand the payment of the SMEC Break Fee; nor (B) any other event, fact, matter or circumstance that may give rise to a separate right to the SMEC Break Fee or that constitutes or may constitute a breach of this agreement; and (ii) indemnifies any SMEC Party against a Claim that is made contrary to the release under clause 15.3(e)(i), with the effect that the payment of the SMEC Break Fee represents the sole and exclusive remedy of any Bidder Group Member. The SMEC Break Fee is not payable where SMEC has become entitled to the Bidder Break Fee. 16. Bidder Break Fee 16.1 Bidder Break Fee (a) The Bidder agrees to pay to SMEC $3.9 million (exclusive of GST) (Bidder Break Fee) if: (b) (c) (i) The Bidder is in breach of any of its obligations under this agreement which is material in the context of the Scheme taken as a whole or of a representation and warranty given by it under clause 11.1 which is material in the context of the Scheme taken as a whole and SMEC terminates this agreement in accordance with (and subject to the cure periods specified in) clause 14.1(a)(i) ;or (ii) the Bidder does not pay the Scheme Consideration in accordance with the terms and conditions of this agreement and the Deed Poll. The Bidder must pay SMEC the Bidder Break Fee within five Business Days of receipt by the Bidder of a demand for payment from SMEC made after the occurrence of the event referred to in clause 16.1(a). The Bidder Break Fee is only payable once and the maximum amount payable by the Bidder under clause 16.1(a) is $3.9 million (exclusive of GST). MinterEllison Ref: THW STS KXT Page 39

40 17. Exclusivity 17.1 No existing discussions Other than in relation to the discussions with the Bidder in connection with the Proposed Transaction, SMEC represents and warrants to the Bidder that, as at the date of this agreement: (a) neither it, its Related Bodies Corporate nor any of their respective Authorised Persons is a party to any agreement with a third party entered into for the purpose of facilitating a Competing Proposal; and (b) neither it, its Related Bodies Corporate nor any of their respective Authorised Persons is participating in any discussions or negotiations with a third party that concern, or that could reasonably be expected to lead to, a Competing Proposal No shop restriction During the Exclusivity Period, except with the prior written consent of the Bidder, SMEC must not, and must ensure that none of its Related Bodies Corporate nor any of their Authorised Persons, directly or indirectly solicit, invite, encourage or initiate any Competing Proposal or any enquiries, negotiations or discussions with any Third Party in relation to, or that may reasonably be expected to lead to, a Competing Proposal, or communicate any intention to do any of those things No talk restriction Subject to clause 17.5, during the Exclusivity Period, SMEC must not, and must ensure that none of its Related Bodies Corporate nor any of their Authorised Persons, (whether directly or indirectly): (a) negotiate or enter into or participate in negotiations or discussions with any person; or (b) communicate any intention to do any of these things, in relation to, or that may reasonably be expected to lead to, a Competing Proposal, even if: (c) the Competing Proposal was not directly or indirectly solicited, invited, encouraged or initiated by SMEC or any of its Related Bodies Corporate; or (d) that person has publicly announced the Competing Proposal No due diligence During the Exclusivity Period, except with the prior written consent of the Bidder, SMEC must not, and must ensure that its Related Bodies Corporate and their respective Authorised Persons do not, directly or indirectly: (a) solicit, invite, initiate, or encourage, or (subject to clause 17.5) facilitate or permit, any person (other than the Bidder) to undertake due diligence investigations in respect of SMEC, its Related Bodies Corporate, or any of their businesses and operations, in connection with that person formulating, developing or finalising, or assisting in the formulation, development or finalisation of, a Competing Proposal; or (b) subject to clause 17.5, make available to any person (other than the Bidder) or permit any person to receive any non public information relating to SMEC, its Related Bodies Corporate, or any of their businesses and operations, in connection with that person formulating, developing or finalising, or assisting in the formulation, development or finalisation of, a Competing Proposal Exceptions Clauses 17.3 and 17.4 does not apply if the SMEC Board, acting in good faith, determines: (a) where there is a written Competing Proposal, that the Competing Proposal is a Superior Proposal or the steps which the SMEC Board proposes to take may reasonably be expected to lead to a Competing Proposal which is a Superior Proposal; and MinterEllison Ref: THW STS KXT Page 40

41 (b) after receiving written legal advice from SMEC's external legal advisers, that failing to respond to the Competing Proposal would be likely to constitute a breach of its fiduciary or statutory duties Notice of Competing Proposal (a) During the Exclusivity Period, SMEC must promptly notify the Bidder in writing of: (i) any approach, inquiry or proposal made by any person to SMEC, any of its Related Bodies Corporate or any of their respective Authorised Persons, to initiate any discussions or negotiations that concern, or that could reasonably be expected to lead to, a Competing Proposal; and (ii) any request made by any person to SMEC, any of its Related Bodies Corporate or any of their respective Authorised Persons, for any information relating to SMEC, its Related Bodies Corporate, or any of their businesses and operations, in connection with that person formulating, developing or finalising, or assisting in the formulation, development or finalisation of a Competing Proposal, (a Competing Proposal Notice). (b) (c) Subject to clause 17.9, a Competing Proposal Notice must be accompanied by all material details of the relevant event, including (as the case may be): (i) the identity of the person who made the relevant approach, inquiry or proposal to initiate discussions or negotiations referred to in clause 17.6(a)(i) or who made the relevant request for information referred to in clause 17.6(a)(ii); and (ii) the material terms and conditions (including price, conditions precedent, timetable and any break fee) of any Competing Proposal or any proposed Competing Proposal (to the extent known). If SMEC gives the Bidder a Competing Proposal Notice, the Bidder agrees that the notice will be Confidential Information of SMEC (as defined in the Confidentiality Agreement) SMEC's response to Competing Proposal and the Bidder's right to respond (a) If SMEC receives a Competing Proposal and as a result, any SMEC Director proposes to either: (i) change, withdraw or modify his or her recommendation of the Scheme; or (ii) approve or recommend entry into any agreement, commitment, arrangement or understanding relating to the Competing Proposal with the person who has made the applicable Competing Proposal (Rival Acquirer), (b) SMEC must ensure that no SMEC Director does so: (iii) unless the Competing Proposal is bona fide; and (iv) until each of the following has occurred: (A) SMEC has given the Bidder written notice (Relevant Notice) of the SMEC Director's proposal to take the action referred to in clauses 17.7(a)(i) or 17.7(a)(ii) (subject to the Bidder's rights under clause 17.7(c)), including details of the grounds on which the SMEC Director proposes to take that action; (B) subject to clause 17.7(b), SMEC has given the Bidder all information that would be required by clause 17.6(b) as if it was not subject in any way to clause 17.9; and (C) the Bidder's rights under clause 17.7(c) have been exhausted. Prior to giving the Bidder the information under clause 17.7(a)(iv)(B), SMEC must advise the Rival Acquirer that the Rival Acquirer's name and other details which may identify the Rival Acquirer will be provided by SMEC to the Bidder on a confidential basis. MinterEllison Ref: THW STS KXT Page 41

42 (c) (d) (e) If SMEC gives a Relevant Notice to the Bidder under clause 17.7(a)(iv)(A), the Bidder will have the right, but not the obligation, at any time during the three Business Days following the receipt of the Relevant Notice, to amend the terms of the Proposed Transaction including increasing the amount of consideration offered under the Proposed Transaction or proposing another form of transaction (each a Counter Proposal). If the Bidder submits a Counter Proposal, then the SMEC Directors must review the Counter Proposal in good faith and if the SMEC Directors determine that the Counter Proposal would be no less favourable to SMEC and the SMEC Shareholders than the Competing Proposal (having regard to the matters set out in 17.9(b)), then: (i) SMEC and the Bidder must use their best endeavours to agree the amendments to this agreement that are reasonably necessary to reflect the Counter Proposal and to enter into an amended agreement to give effect to those amendments and to implement the Counter Proposal; and (ii) SMEC must use its best endeavours to procure that the SMEC Directors recommend the Counter Proposal to the Shareholders and not recommend the applicable Competing Proposal. For the purposes of this clause 17.7, each successive material modification of any third party expression of interest, offer or proposal in relation to a Competing Proposal will constitute a new Competing Proposal Disclosure of Competing Proposal Despite clauses 17.6 and 17.7, to the extent required to discharge what they have determined in good faith to be their fiduciary or statutory obligations, the SMEC Board may release a public announcement acknowledging receipt of a Competing Proposal and: (a) recommending that SMEC Shareholders take no action in relation to the Competing Proposal; and (b) reserving the SMEC Board's position in relation to the recommendation of the Scheme, provided that the announcement does not disclose the person from whom the Competing Proposal has been received nor any of the material terms of the Competing Proposal, including the price Fiduciary carve out to notification right Despite anything in clause 17.6(b), the obligation of SMEC under that clause does not apply: (a) to the extent it restricts the SMEC Board from taking or refusing to take any action with respect to a Competing Proposal which is or may reasonably be expected to lead to a Superior Proposal (which was not solicited, invited, encouraged or initiated (whether directly or indirectly) by SMEC or any of its Authorised Persons in contravention of this clause 17); and (b) to the extent that the SMEC Board determines that complying with that obligation would be likely to involve a breach of the fiduciary or statutory duties owed by any SMEC Director. 18. Modification of SMEC Break Fee or exclusivity arrangements 18.1 Modifications following regulatory intervention If any of the following occurs: (a) a Governmental Agency finds that all or any part of the payment required to be made under clause 15 or an exclusivity arrangement under clause 17 is unacceptable or unenforceable; or (b) as a result of an application to the Takeovers Panel, the Takeovers Panel indicates that, in the absence of a written undertaking under section 201A of the Australian Securities and Investments Commission Act 2001 (Cth) to modify the amount of the SMEC Break Fee or MinterEllison Ref: THW STS KXT Page 42

43 the circumstances in which it is to be paid or the circumstances in relation to an exclusivity arrangement under clause 17, it will make a declaration of unacceptable circumstances, then, subject to clause 18.2: (c) (d) the parties must amend clause 15 and/or 17 to the extent required to give effect to the requirements of the Governmental Agency or the Takeovers Panel (as the case may be) and (in circumstances referred to in clause 18.1(b)) must give the required undertaking(s); and neither the occurrence of any of the events referred to in clauses 18.1(a) or 18.1(b) nor the amendment of clause 15 and/or 17 will be taken to be a breach of, or permit any party to terminate, this agreement No requirement to act unless decision final The parties are only required to take steps under 18.1(c) in relation to any requirement of a Governmental Agency or the Takeovers Panel if: (a) no appeal or review proceeding is available from the decision to impose that requirement or the period for lodging an appeal or commencing review proceedings has expired without an appeal having been lodged or review proceedings commenced; or (b) the Bidder and SMEC agree in writing not to appeal or seek review of the decision to impose that requirement Appeals and review of regulatory decisions Nothing in this agreement requires either party to appeal or seek review of any decision of a Governmental Agency or the Takeovers Panel referred to in clauses 18.1(a) or 18.1(b). If either the Bidder and SMEC wishes to appeal or seek review of that decision then the other must make submissions in the course of those proceedings supporting the review made by the first party Determination by Governmental Agency If a Governmental Agency determines that payment of all or any part of the SMEC Break Fee is unacceptable, unlawful or involves a breach of the fiduciary or statutory duties of the members of the SMEC Board (Impugned Amount) and either no appeal from that determination is available or the period for lodging an appeal has expired without having an appeal having been lodged then: (a) the obligation of SMEC to pay the SMEC Break Fee does not apply to the extent of the Impugned Amount; and (b) if the Bidder has received any part of the Impugned Amount, it must refund it within 5 Business Days after that determination is made or the period for lodging has expired, whichever is later. 19. Notices Any communication under or in connection with this agreement: (a) must be in writing; (b) must be sent to the address for service of the addressee specified in the Details; (c) must be signed by the party making the communication or by a person duly authorised by that party; (d) must be delivered or posted by prepaid post to the address or sent by to the address of the addressee, in accordance with the Details; and (e) will be deemed to be received by the addressee: (i) (in the case of prepaid post) on the third Business Day after the date of posting to an address within Australia, and on the fifth Business Day after the date of posting to an address outside Australia; MinterEllison Ref: THW STS KXT Page 43

44 (ii) (iii) (in the case of delivery by hand) on delivery at the address of the addressee as provided in the Details, unless that delivery is not made on a Business Day, or after 5.00pm on a Business Day, when that communication will be deemed to be received at 9.00am on the next Business Day; and (in the case of ) immediately after the time sent (as recorded on the device from which the sender sent the ) unless the sender receives an automated message that the has not been delivered. 20. General 20.1 Further acts Each party will promptly do and perform all further acts and execute and deliver all further documents (in form and content reasonably satisfactory to that party) required by law or reasonably requested by any other party to give effect to this agreement Timetable The parties agree that the Timetable is indicative only and is not binding on the parties Payments Unless otherwise provided in this agreement, where an amount is required to be paid to a party (the Receiving Party) by another party under this agreement, that amount will be paid: (a) (b) in immediately available and irrevocable funds by electronic transfer to a bank account or accounts notified by the Receiving Party in writing on or before the due date for payment, or in any other immediately payable funds as the parties may agree; and without deduction, withholding or set off Interest (a) If a party fails to pay any amount payable under this agreement on the due date for payment, that party must pay interest on the amount unpaid at the higher of the Interest Rate plus 3% per year or the rate (if any) fixed or payable under any judgment or other thing into which the liability to pay the amount becomes merged. (b) The interest payable under clause 20.4(a): (i) accrues from day to day from and including the due date for payment up to the actual date of payment, before and, as an additional and independent obligation, after any judgment or other thing into which the liability to pay the amount becomes merged; and (ii) may be capitalised by the person to whom it is payable at monthly intervals GST (a) (b) (c) Any reference in this clause 20.5 to a term defined or used in the A New Tax System (Goods and Services Tax) Act 1999 is, unless the context indicates otherwise, a reference to that term as defined or used in that Act. Unless expressly included, the consideration for any supply under or in connection with this agreement does not include GST. To the extent that any supply made by a party (Supplier) to another party (Recipient) under or in connection with this agreement is a taxable supply, the Recipient must pay to the Supplier, in addition to the consideration to be provided under this agreement but for the application of this clause 20.5(c) for that supply (GST Exclusive Consideration), an amount equal to the amount of the GST Exclusive Consideration (or its GST exclusive market value) multiplied by the rate at which GST is imposed in respect of the supply. This clause 20.5(c) does not apply to any taxable supply under or in connection with this agreement that is stated to include GST. MinterEllison Ref: THW STS KXT Page 44

45 (d) (e) The amount on account of GST payable in accordance with this clause 20.5 will be paid at the same time and in the same manner as the consideration otherwise payable for the supply is provided. Any reference in the calculation of any consideration or of any indemnity, reimbursement or similar amount to a cost, expense or liability incurred by a person (Relevant Expense) is a reference to the relevant expense reduced by an amount equal to any input tax credit entitlement of that person (or of the representative member of any GST group to which the person belongs) in relation to the Relevant Expense. A party will be assumed to have an entitlement to a full input tax credit unless it demonstrates otherwise prior to the date on which the relevant payment or consideration must be provided Stamp duty The Bidder must pay all stamp duties (if any) and any fines and penalties with respect to stamp duty in respect of this agreement or the Scheme or the steps to be taken under this agreement or the Scheme (including the acquisition or transfer of Scheme Shares under the Scheme) Expenses Except as otherwise provided in this agreement, each party will pay its own costs and expenses in connection with the negotiation, preparation, execution, and performance of this agreement and the Explanatory Booklet and the proposed, attempted or actual implementation of this agreement and the Scheme Amendments This agreement may only be varied by a document signed by or on behalf of each of the parties Assignment A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior written consent of each other party, which consent that other party may give or withhold in its absolute discretion Business Day Except where otherwise provided, where under this agreement the day on which any act, matter or thing is to be done is a day other than a Business Day, that act, matter or thing will be done on the next Business Day Waiver (a) Failure to exercise or enforce or a delay in exercising or enforcing or the partial exercise or enforcement of any right, power or remedy provided by law or under this agreement by any party will not in any way preclude, or operate as a waiver of, any exercise or enforcement, or further exercise or enforcement of that or any other right, power or remedy provided by law or under this agreement. (b) Any waiver or consent given by any party under this agreement will only be effective and binding on that party if it is given or confirmed in writing by that party. (c) No waiver of a breach of any term of this agreement will operate as a waiver of another breach of that term or of a breach of any other term of this agreement. (d) Nothing in this agreement obliges a party to exercise a right to waive any conditional term of this agreement that may be in its power Counterparts (a) This agreement may be executed in any number of counterparts and by the parties on separate counterparts. Each counterpart constitutes the agreement of each party who has executed and delivered that counterpart. Each counterpart is an original but the counterparts together are one and the same agreement. (b) This agreement is binding on the parties on the exchange of duly executed counterparts. MinterEllison Ref: THW STS KXT Page 45

46 (c) The parties agree that a copy of an original executed counterpart sent by to the address of the other party specified in clause 19, instead of the original, is sufficient evidence of the execution of the original and may be produced in evidence for all purposes in place of the original Entire agreement (a) This agreement: (i) embodies the entire understanding of the parties and constitutes the entire terms agreed on between the parties; and (ii) supersedes any prior agreement (whether or not in writing) between the parties. (b) Despite clause 20.13(a), the Confidentiality Agreement continues to apply to the parties in accordance with its terms, except to the extent of any express inconsistency, in which case this agreement prevails No representation or reliance (a) Each party acknowledges that no party (nor any person acting on its behalf) has made any representation or other inducement to it to enter into this agreement, except for representations or inducements set out in this agreement. (b) Each party acknowledges and confirms that it does not enter into this agreement in reliance on any representation or other inducement by or on behalf of any other party, except for any representation or inducement set out in this agreement No merger The rights and obligations of the parties will not merge on completion of any transaction under this agreement. They will survive the execution and delivery of any assignment or other document entered into for the purpose of implementing any transaction Governing law (a) This agreement is governed by and will be construed according to the laws of Victoria. (b) Each party irrevocably submits to the non exclusive jurisdiction of the courts of Victoria and of the courts competent to determine appeals from those courts. MinterEllison Ref: THW STS KXT Page 46

47 Schedule 1 - Timetable Event Date Enter into Scheme Implementation Agreement Mon, 9 May 2016 Lodge Explanatory Booklet with ASIC for review and comment Tues, 24 May 2016 First Court Date Fri, 10 June 2016 Explanatory Booklet registered with ASIC Tue, 14 June 2016 Dispatch Explanatory Booklet to SMEC Shareholders Wed, 15 June 2016 Scheme Meeting and General Meeting Fri, 8 Jul 2016 Second Court Date Fri, 15 July 2016 Effective Date lodge office copy of Court order approving the Scheme with ASIC Mon, 18 July 2016 Record Date Wed, 20 July 2016 Implementation Date: Dispatch cheques or electronically transfer funds to participants in the Scheme. Reconstitute boards of each SMEC Group company Mon, 25 July 2016 MinterEllison Ref: THW STS KXT Page 47

48 Schedule 2 - Deed Poll MinterEllison Ref: THW STS KXT Page 48

49 Deed Poll Surbana Jurong Holdings (Australia) Pty Ltd (Bidder) Surbana Jurong Private Limited (Guarantor) Level 23 Rialto Towers 525 Collins Street Melbourne Vic 3000 Australia DX 204 Melbourne T F minterellison.com ME_ _6 (W2003x)

50 Deed Poll Details 3 Agreed terms 4 1. Defined terms & interpretation Defined terms Terms defined in Scheme Implementation Agreement Incorporation by reference 4 2. Nature of this deed poll 4 3. Conditions Conditions Termination Consequences of termination 4 4. Performance of obligations Generally Provision of Scheme Consideration Covenant by Guarantor 5 5. Warranties 5 6. Continuing Obligations Deed poll irrevocable Variation 6 7. Notices 6 8. General Provisions Assignment Cumulative rights No waiver Stamp duty Further assurances Governing law and jurisdiction 7 Signing page 8 Deed Poll MinterEllison Ref: THW STS KXT Page 2 ME_ _6 (W2003x)

51 Details Date Parties Name Surbana Jurong Holdings (Australia) Pty Ltd ACN Short form name Bidder Notice details c/o Whittens & McKeough, Level 5, Bathurst Street, Sydney NSW Jalan Bukit Merah, #01-01 Surbana One, Singapore Attention: Daniel Teo, Director Name Surbana Jurong Private Limited Short form name Guarantor Notice details 168 Jalan Bukit Merah, #01-01 Surbana One, Singapore Attention: Daniel Teo, Group Chief Financial Officer Background A B C D On [*] May 2016, SMEC, the Bidder and the Guarantor entered into the Scheme Implementation Agreement to provide for (among other matters) the implementation of the Scheme. The effect of the Scheme will be to transfer all Scheme Shares to the Bidder in return for the Scheme Consideration. The Guarantor has agreed in the Scheme Implementation Agreement to guarantee all of the obligations of the Bidder contained in or implied under the Scheme Implementation Agreement. The Bidder enters this deed poll to covenant in favour of Scheme Shareholders to: (i) (ii) perform the actions attributed to it under the Scheme; and provide the Scheme Consideration in accordance with the Scheme. E The Guarantor enters this deed poll to covenant in favour of the Scheme Shareholders to guarantee that the Bidder will provide the Scheme Consideration subject to and in accordance with the Scheme Deed Poll MinterEllison Ref: THW STS KXT Page 3 ME_ _6 (W2003x)

52 Agreed terms 1. Defined terms & interpretation 1.1 Defined terms In this document: Scheme Implementation Agreement means the Scheme Implementation Agreement dated [*] May 2016 between SMEC, the Bidder and the Guarantor. SMEC means SMEC Holdings Limited ABN of Level 10, 71 Queens Road, Melbourne VIC 3004 as trustee for the Scheme Shareholders. 1.2 Terms defined in Scheme Implementation Agreement Words and phrases defined in the Scheme Implementation Agreement have the same meaning in this deed poll unless the context requires otherwise. 1.3 Incorporation by reference The provisions of clauses 1.2, 1.3 and 1.4 of the Scheme Implementation Agreement form part of this deed poll as if set out at length in this deed poll but with deed poll substituted for agreement and with any reference to party being taken to include the Scheme Shareholders. 2. Nature of this deed poll The Bidder and the Guarantor agree that this deed poll may be relied on and enforced by any Scheme Shareholder in accordance with its terms even though the Scheme Shareholders are not a party to it. 3. Conditions 3.1 Conditions The obligations of the Bidder and the Guarantor under clause 4 are subject to the Scheme becoming Effective. 3.2 Termination This deed poll and the obligations of the Bidder and the Guarantor will automatically terminate and this deed poll will be of no further force or effect if: (a) the Scheme Implementation Agreement is terminated in accordance with its terms before the Scheme becomes Effective; or (b) the Scheme is not Effective on or before the End Date or any later date as the Court, with the consent of SMEC and the Bidder, may order. 3.3 Consequences of termination If this deed poll terminates under clause 3.2, in addition and without prejudice to any other rights, powers or remedies available to them: (a) the Bidder and the Guarantor are released from their obligation to further perform this deed poll; and (b) each Scheme Shareholder retains the rights they have against the Bidder and the Guarantor in respect of any breach of this deed poll which occurred before it terminated. Deed Poll MinterEllison Ref: THW STS KXT Page 4 ME_ _6 (W2003x)

53 4. Performance of obligations 4.1 Generally Subject to clause 3, the Bidder covenants in favour of Scheme Shareholders to perform the actions attributed to it under the Scheme and otherwise comply with the Scheme as if the Bidder was a party to the Scheme. 4.2 Provision of Scheme Consideration Subject to clause 3, in consideration for the transfer to Bidder of all of the Scheme Shares and all rights and entitlement attaching to them by each Scheme Shareholder, the Bidder covenants in favour of each Scheme Shareholder to provide or procure the provision of the Scheme Consideration to each Scheme Shareholder in accordance with the terms of the Scheme into an Australian dollar denominated trust account operated by SMEC as trustee for the Scheme Shareholders and notified to the Bidder at least three Business Days prior to Implementation Date, except that any interest on the amounts deposited (less bank fees and other charges) will be for the account of the Bidder. 4.3 Covenant by Guarantor Subject to clause 3, the Guarantor undertakes in favour of each Scheme Shareholder to guarantee that the Bidder will perform its obligations under clauses 4.1 and 4.2 of this deed poll. 5. Warranties Each of the Bidder and the Guarantor represents and warrants to each Scheme Shareholder that: (a) (status) it is a corporation duly incorporated and validly existing under the laws of the place of its incorporation; (b) (power) it has the power to enter into and perform its obligations under this deed poll and to carry out the transactions contemplated by this deed poll; (c) (corporate authorisations) it has taken all necessary corporate action to authorise the entry into and performance of this deed poll and to carry out the transactions contemplated by this deed poll; (d) (documents binding) this deed poll is valid and binding on it and enforceable against it in accordance with its terms; (e) (transactions permitted) the execution and performance by it of this deed poll and each transaction contemplated by this deed poll did not and will not violate in any respect a provision of: (i) a law or treaty or a judgment, ruling, order or decree of a Regulatory Authority binding on it; (ii) its constitution or other constituent documents; or (iii) any other document which is binding on it or its assets; and (f) (solvency) it is solvent and no resolutions have been passed nor has any other step been taken or legal action or proceedings commenced or threatened against it for its winding up, deregistration or dissolution or for the appointment of a liquidator, receiver, administrator or similar officer over any or all of its assets. 6. Continuing Obligations 6.1 Deed poll irrevocable This deed poll is irrevocable and, subject to clause 3, remains in full force and effect until the earlier of: (a) the Bidder and the Guarantor having fully performed their obligations under this deed poll; and Deed Poll MinterEllison Ref: THW STS KXT Page 5 ME_ _6 (W2003x)

54 (b) termination of this deed poll under clause Variation A provision of this deed poll may not be varied unless: (a) before the Second Court Date, the variation is agreed to in writing by SMEC (which agreement may be given or withheld without reference to or approval by any SMEC Shareholder); or (b) on or after the Second Court Date, the variation is agreed to in writing by SMEC and is approved by the Court (which agreement may be given or withheld without reference to or approval by any SMEC Shareholder), in which event the Bidder and the Guarantor will enter into a further deed poll in favour of each Scheme Shareholder giving effect to the amendment. 7. Notices Any notice, demand or other communication (a Notice) to the Bidder in respect of this deed poll: (a) (b) (c) must be in writing and signed by the sender or a person duly authorised by it; must be delivered to the intended recipient by prepaid post (if posted to an address in another country, by registered airmail) or by hand or to the address specified in the Details; and will be conclusively taken to be duly given or made: (i) (in the case of prepaid post) on the third Business Day after the date of posting to an address within Australia, and on the fifth Business Day after the date of posting to an address outside Australia; (ii) (in the case of delivery by hand) on delivery at the address of the addressee as provided in the Details, unless that delivery is not made on a Business Day, or after 5.00pm on a Business Day, then that communication will be deemed to be received at 9.00am on the next Business Day; and (iii) (in the case of ) immediately after the time sent (as recorded on the device from which the sender sent the ) unless the sender receives an automated message that the has not been delivered. 8. General Provisions 8.1 Assignment (a) The rights and obligations of the Bidder, the Guarantor and each Scheme Shareholder under this deed poll are personal. They cannot be assigned, charged, encumbered or otherwise dealt with at law or in equity without the prior written consent of SMEC, the Guarantor and the Bidder. (b) Any purported dealing in contravention of clause 8.1(a) is invalid. 8.2 Cumulative rights The rights, powers and remedies of the Bidder, the Guarantor and each Scheme Shareholder under this deed poll are cumulative with and do not exclude any other rights, powers or remedies provided by law independently of this deed poll. 8.3 No waiver (a) Neither the Bidder nor the Guarantor may rely on the words or conduct of any Scheme Shareholder as a waiver of any right unless the waiver is in writing and signed by the Scheme Shareholder granting the waiver. Deed Poll MinterEllison Ref: THW STS KXT Page 6 ME_ _6 (W2003x)

55 (b) (c) (d) If a Scheme Shareholder does not exercise a right arising from a breach of this deed poll at a given time, it may, unless it has waived that right in writing, exercise the right at a later point in time. No Scheme Shareholder may rely on words or conduct of the Bidder or the Guarantor as a waiver of any right unless the waiver is in writing and signed by the Bidder or the Guarantor, as appropriate. The meanings of the terms used in this clause 8.3 are set out below. conduct includes delay in the exercise of a right. right means any right arising under or in connection with this deed poll and includes the right to rely on this clause. waiver includes an election between rights and remedies, and conduct which might otherwise give rise to an estoppel. 8.4 Stamp duty The Bidder: (a) must pay or procure the payment of all stamp duty (if any) and any related fines, penalties and interest in respect of the Scheme and this deed poll (including the acquisition or transfer of Scheme Shares pursuant to the Scheme), the performance of this deed poll and each transaction effected by or made under or pursuant to the Scheme and this deed poll; and (b) indemnifies and undertakes to keep indemnified each Scheme Shareholder against any liability arising from failure to comply with clause 8.4(a). 8.5 Further assurances The Bidder and the Guarantor will, at their own expense, do all things reasonably required of it to give full effect to this deed poll. 8.6 Governing law and jurisdiction This deed poll is governed by the laws of the State of Victoria. In relation to it and related non contractual matters the Bidder and the Guarantor irrevocably: (a) submit to the non exclusive jurisdiction of courts with jurisdiction there; and (b) waive any right to object to the venue on any ground if the venue of those proceedings fall within clause 8.6(a). Deed Poll MinterEllison Ref: THW STS KXT Page 7 ME_ _6 (W2003x)

56 Signing page EXECUTED as a deed. Executed by Surbana Jurong Holdings (Australia) Pty Ltd in accordance with Section 127 of the Corporations Act 2001 Signature of director Signature of director/company secretary (Please delete as applicable) Name of director (print) Name of director/company secretary (print) Signed for Surbana Jurong Private Limited by an authorised officer in the presence of Signature of officer Signature of witness Name of officer (print) Name of witness (print) Office held Deed Poll MinterEllison Ref: THW STS KXT Page 8 ME_ _6 (W2003x)

57 Schedule 3 - Scheme MinterEllison Ref: THW STS KXT Page 49

58 Scheme of Arrangement SMEC Holdings Limited Scheme Shareholders Level 23 Rialto Towers 525 Collins Street Melbourne Vic 3000 Australia DX 204 Melbourne T F minterellison.com ME_ _8 (W2003x)

59 Scheme of Arrangement Details 3 1. Definitions and interpretation Defined terms Interpretation Business Day 5 2. Preliminary SMEC Bidder General Consequence of this Scheme becoming Effective 6 3. Conditions 6 4. Implementation Lodgement of Court orders Transfer of Scheme Shares 6 5. Scheme Consideration Amount of Scheme Consideration Payment of Scheme Consideration Joint holders Fractional entitlements Unclaimed monies Order of a court or Governmental Agency Definition of sending 8 6. Dealings in Shares Determination of Scheme Shareholders Register 9 7. General Scheme provisions Consent to amendments to this Scheme Binding effect of Scheme Scheme Shareholders' agreements and acknowledgment Warranties by Scheme Shareholders Title to and rights in Scheme Shares Authority given to SMEC Appointment of sole proxy Instructions and elections General Stamp duty Notices Further assurances Governing law and jurisdiction 12 Scheme of Arrangement MinterEllison Ref: THW STS KXT Page 2 ME_ _8 (W2003x)

60 Details This scheme of arrangement is made under section 411 of the Corporations Act 2001 (Cth) Between the parties SMEC Holdings Limited ABN of Level 10, 71 Queens Road, Melbourne, Victoria 3004 and Each Scheme Shareholder 1. Definitions and interpretation 1.1 Defined terms In this Scheme, unless the context requires otherwise: ASIC means the Australian Securities and Investments Commission. Bidder means Surbana Jurong Holdings (Australia) Pty Ltd ACN Bidder Group means the Bidder and each of its Subsidiaries and the Guarantor and each of its Subsidiaries (excluding, at any time, SMEC and its Subsidiaries to the extent that SMEC and its Subsidiaries are Subsidiaries of the Bidder or the Guarantor at that time). A reference to a member of the Bidder Group or a Bidder Group Member is a reference to the Bidder, the Guarantor or any of their Subsidiaries. Business Day means a day that is not a Saturday, Sunday or a public holiday or bank holiday in Melbourne, Australia or Singapore. Corporations Act means the Corporations Act 2001 (Cth). Court means the Supreme Court of Victoria or any other court of competent jurisdiction under the Corporation Act agreed in writing between SMEC and the Bidder. Deed Poll means the deed poll dated [*] 2016 executed by the Bidder and the Guarantor under which the Bidder and the Guarantor covenant in favour of the Scheme Shareholders to perform the actions attributed to the Bidder under this Scheme. Delivery Time means in relation to the Second Court Date two hours before the commencement of the hearing or if the commencement of the hearing is adjourned, the commencement of the adjourned hearing, of the Court to approve this Scheme in accordance with section 411(4)(b) of the Corporations Act. Effective means the coming into effect under section 411(10) of the Corporations Act of the order of the Court made under section 411(4)(b) of the Corporations Act in relation to this Scheme. Effective Date means the date on which this Scheme becomes Effective. End Date means the 'End Date' determined in accordance with the Scheme Implementation Agreement. Excluded Shareholder means any person who: (a) is registered in the register maintained by SMEC under section 168(1) of the Corporations Act as a holder of one or more Shares; and (b) is a member of the Bidder Group. Governmental Agency means any government or representative of a government or any governmental, semi governmental, administrative, fiscal, regulatory or judicial body, department, commission, authority, tribunal, agency, competition authority or entity and includes any minister, ASIC and any regulatory organisation established under statute or any stock exchange. Guarantor means Surbana Jurong Private Limited. Scheme of Arrangement MinterEllison Ref: THW STS KXT Page 3 ME_ _8 (W2003x)

61 Implementation Date means the third Business Day after the Record Date or any other Business Day after the Record Date agreed to in writing between SMEC and the Bidder. Record Date means 7.00pm on the second Business Day after the Effective Date or any other Business Day after the Effective Date agreed to in writing between SMEC and the Bidder. Registered Address means, in relation to a SMEC Shareholder, the address shown in the Share Register as at the Record Date. Scheme means this scheme of arrangement under Part 5.1 of the Corporations Act between SMEC and the Scheme Shareholders, subject to any alterations or conditions that are: (a) agreed to in writing by SMEC and the Bidder, and approved by the Court; or (b) made or required by the Court under section 411(6) of the Corporations Act and agreed to by each party. Scheme Consideration means, in respect of each Scheme Share held by a Scheme Shareholder, $1.90 per Scheme Share. Scheme Implementation Agreement means the scheme implementation agreement dated 9 May 2016 between SMEC, the Bidder and the Guarantor. Scheme Meeting means the meeting of SMEC Shareholders ordered by the Court to be convened under section 411(1) of the Corporations Act to consider and vote on this Scheme and includes any meeting convened following any adjournment or postponement of that meeting. Scheme Share means a Share on issue as at the Record Date other than any Share then held by an Excluded Shareholder (but including any Share held on behalf of one or more third parties or otherwise in a fiduciary capacity). Scheme Shareholder means a person who holds one or more Scheme Shares. Second Court Date means the first day on which an application made to the Court for an order under section 411(4)(b) of the Corporations Act approving this Scheme is heard or scheduled to be heard or, if the application is adjourned for any reason, means the date on which the adjourned application is heard or scheduled to be heard. Share means an issued fully paid ordinary share in the capital of SMEC. Share Register means the register of members of SMEC maintained in accordance with the Corporations Act. SMEC means SMEC Holdings Limited ABN of Level 10, 71 Queens Road, Melbourne VIC SMEC Option means an option granted by SMEC to acquire by way of issue one or more Shares. SMEC Registry means Link Market Services Limited or any replacement provider of share registry services to SMEC. SMEC Shareholder means a person who is registered in the register maintained by SMEC under section 168(1) of the Corporations Act as a holder of one or more Shares but excludes an Excluded Shareholder. Subsidiary has the meaning given to that term in section 46 of the Corporations Act. Trust Account means an Australian dollar denominated trust account operated by SMEC as trustee for the benefit of Scheme Shareholders. 1.2 Interpretation Headings are for convenience only and do not affect interpretation. The following rules apply unless the context requires otherwise. (a) The singular includes the plural, and the converse also applies. (b) A gender includes all genders. (c) If a word or phrase is defined, its other grammatical forms have a corresponding meaning. Scheme of Arrangement MinterEllison Ref: THW STS KXT Page 4 ME_ _8 (W2003x)

62 (d) (e) (f) (g) (h) (i) (j) (k) (l) (m) (n) A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them. A reference to a clause or schedule is a reference to a clause of or schedule to this Scheme. A reference to an agreement or document (including a reference to this Scheme) is to the agreement or document as amended, supplemented, novated or replaced, except to the extent prohibited by this Scheme or that other agreement or document, and includes the recitals, schedules and annexures to that agreement or document. A reference to a party to this Scheme or an agreement or document includes the party's successors, permitted substitutes and permitted assigns (and, where applicable, the party's legal personal representatives). A reference to legislation or to a provision of legislation includes a modification or reenactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it. A reference to conduct includes an omission, statement or undertaking, whether or not in writing. A reference to an agreement includes any undertaking, deed, agreement and legally enforceable arrangement, whether or not in writing, and a reference to a document includes an agreement (as so defined) in writing and any certificate, notice, instrument and document of any kind. A reference to dollars and $ is to Australian currency. All references to time are to Melbourne, Australia time. Mentioning anything after includes, including, for example, or similar expressions, does not limit what else might be included. A reference to, an officer or subsidiary is to that term as it is defined in the Corporations Act. 1.3 Business Day Where the day on or by which any act, matter or thing under this Scheme is to be done is not a Business Day, that act, matter or thing must be done on or by the next Business Day. 2. Preliminary 2.1 SMEC (a) SMEC is a public unlisted company limited by shares and registered in New South Wales. (b) As at 9 May 2016: (i) 204,580,601 Shares were on issue which are not quoted on any financial market; and (ii) 14,628,715 SMEC Options were on issue which are not quoted on any financial market. 2.2 Bidder The Bidder is a proprietary company limited by shares registered in Victoria, Australia. 2.3 General (a) (b) SMEC and the Bidder have agreed by executing the Scheme Implementation Agreement to implement this Scheme. This Scheme attributes actions to the Bidder but does not itself impose an obligation on it to perform those actions, as the Bidder is not a party to this Scheme. The Bidder has agreed, by executing the Deed Poll, to perform the actions attributed to it under this Scheme of Arrangement MinterEllison Ref: THW STS KXT Page 5 ME_ _8 (W2003x)

63 Scheme, including the provision of the Scheme Consideration to the Scheme Shareholders. 2.4 Consequence of this Scheme becoming Effective If this Scheme becomes Effective: (a) the Bidder will provide or procure the provision of the Scheme Consideration to Scheme Shareholders in accordance with this Scheme; and (b) all the Scheme Shares, together with all rights and entitlements attaching to the Scheme Shares, will be transferred to the Bidder, and SMEC will enter the Bidder in the Share Register as the holder of the Scheme Shares with the result that SMEC will become a wholly owned subsidiary of the Bidder. 3. Conditions (a) (b) This Scheme is conditional on, and will have no force or effect until, the satisfaction of each of the following conditions precedent: (i) all the conditions precedent in clause 3.1 of the Scheme Implementation Agreement (other than the condition in clause 3.1(h) of the Scheme Implementation Agreement (Court approval)) having been satisfied or waived in accordance with the terms of the Scheme Implementation Agreement by no later than the Delivery Time on the Second Court Date; (ii) neither the Scheme Implementation Agreement nor the Deed Poll having been terminated in accordance with their terms by no later than the Delivery Time on the Second Court Date; (iii) approval of this Scheme by the Court under section 411(4)(b) of the Corporations Act, including with any alterations made or required by the Court under section 411(6) of the Corporations Act as are agreed to in writing by SMEC and the Bidder; (iv) any other conditions imposed by the Court under section 411(6) of the Corporations Act, as are acceptable to SMEC and the Bidder, having been satisfied; and (v) the orders of the Court made under section 411(4)(b) (and if applicable section 411(6)) of the Corporations Act approving the Scheme coming into effect, pursuant to section 411(10) of the Corporations Act, on or before the End Date (or any later date SMEC and the Bidder agree in writing). The satisfaction of the conditions referred to in clause 3(a) of this document is a condition precedent to the operation of clauses 4 and Implementation 4.1 Lodgement of Court orders SMEC must lodge with ASIC office copies of any Court orders under section 411(4)(b) (and if applicable section 411(6)) of the Corporations Act approving this Scheme as soon as possible and in any event no later than by 5.00pm on the first Business Day after the Court approves this Scheme. 4.2 Transfer of Scheme Shares On the Implementation Date: (a) subject to the payment by SMEC of the Scheme Consideration in the manner contemplated by clause 5.2(b), the Scheme Shares, together with all rights and entitlements attaching to the Scheme Shares at the Implementation Date, will be transferred to the Bidder, without the need for any further act by any Scheme Shareholder Scheme of Arrangement MinterEllison Ref: THW STS KXT Page 6 ME_ _8 (W2003x)

64 (including the delivery of any share certificate, but other than acts performed by SMEC or its officers as agent and attorney of the Scheme Shareholders under clause 7.6 or otherwise), by: (b) (i) SMEC delivering to the Bidder a duly completed and executed share transfer form to transfer all the Scheme Shares to the Bidder, executed on behalf of the Scheme Shareholders by SMEC; and (ii) the Bidder duly executing that transfer form and delivering it to SMEC for registration; and immediately after receipt of the transfer form in accordance with clause 4.2(a)(ii), SMEC must enter, or procure the entry of, the name of the Bidder in the Share Register in respect of the Scheme Shares transferred to the Bidder in accordance with this Scheme. 5. Scheme Consideration 5.1 Amount of Scheme Consideration Each Scheme Shareholder is entitled to receive the Scheme Consideration. 5.2 Payment of Scheme Consideration (a) The Bidder must, by no later than the Business Day before the Implementation Date, deposit in cleared funds into the Trust Account an amount equal to the aggregate amount of the total Scheme Consideration payable to all Scheme Shareholders, that amount to be held by SMEC on trust for the Scheme Shareholders and for the purpose of sending the aggregate Scheme Consideration to the Scheme Shareholders (except that any interest on the amount will be for the account of the Bidder). (b) On the Implementation Date and subject to funds having been deposited in accordance with clause 5.2(a), SMEC must pay or procure the payment of the Scheme Consideration to each Scheme Shareholder from the Trust Account by doing any of the following at its election: (i) sending (or procuring the SMEC Registry to send) it to the Scheme Shareholder s Registered Address by cheque in Australian currency drawn out of the Trust Account; or (ii) depositing (or procuring the SMEC Registry to deposit) it into an account with any bank notified to SMEC (or the SMEC Registry) by an appropriate authority from the Scheme Shareholders in Australian currency. (c) To the extent that, following satisfaction of SMEC's obligations under clause 5.2(b), there is a surplus in the amount held in the Trust Account, that surplus may be paid by SMEC to the Bidder. 5.3 Joint holders In the case of Scheme Shares held in joint names: (a) any cheque required to be sent under this Scheme will be made payable to the joint holders and sent at the sole discretion of SMEC, either to the holder whose name appears first in the Share Register as at the Record Date or to the joint holders; and (b) any other document required to be sent under this Scheme, will be forwarded, at the sole discretion of SMEC, either to the holder whose name appears first in the Share Register as at the Record Date or to the joint holders. Scheme of Arrangement MinterEllison Ref: THW STS KXT Page 7 ME_ _8 (W2003x)

65 5.4 Fractional entitlements Where the calculation of the Scheme Consideration to be paid to a Scheme Shareholder would result in the Scheme Shareholder becoming entitled to a fraction of a cent, that fractional entitlement will be rounded down to the nearest whole cent. 5.5 Unclaimed monies (a) SMEC may cancel a cheque sent under this clause 5 if the cheque: (i) is returned to SMEC; or (ii) has not been presented for payment within six months after the date on which the cheque was sent. (b) During 11 months commencing on the Implementation Date, on request in writing from a Scheme Shareholder to SMEC (or the Share Registry) (which request may not be made until the date which is 20 Business Days after the Implementation Date), SMEC must reissue a cheque that was previously cancelled under clause 5.5(a). (c) The Unclaimed Moneys Act 2008 (Vic) will apply in relation to any Scheme Consideration which becomes unclaimed money (as defined in section 3 of the Unclaimed Moneys Act 2008 (Vic)). 5.6 Order of a court or Governmental Agency If: (a) written notice is given to SMEC (or the Share Registry) of an order or direction made by a court of competent jurisdiction or by another Governmental Agency that requires payment to a third party of a sum in respect of Scheme Shares held by a particular Scheme Shareholder, which would otherwise be payable to that Scheme Shareholder by SMEC in accordance with this clause 5, then SMEC may procure that payment is made in accordance with that order or direction; or (b) written notice is given to SMEC (or the Share Registry) of an order or direction made by a court of competent jurisdiction or by another Governmental Agency that prevents SMEC from making a payment to any particular Scheme Shareholder in accordance with clause 5.2(b), or that payment is otherwise prohibited by applicable law, SMEC may retain an amount equal to the number of Scheme Shares held by that Scheme Shareholder multiplied by the Scheme Consideration until the time that the payment in accordance with this clause 5 is permitted by that order or direction or otherwise by law, and the payment or retention by SMEC (or the Share Registry) will constitute the full discharge of SMEC's obligations under clause 5.2(b) with respect of the amount so paid or retained until, in the case of clause 5.6(b), it is no longer required to be retained. 5.7 Definition of sending For the purposes of clause 5, the expression sending means, in relation to each Scheme Shareholder: (a) sending by ordinary pre paid post or courier to the Registered Address of that Scheme Shareholder as at the Record Date; or (b) delivery to the Registered Address of that Scheme Shareholder as at the Record Date by any other means at no cost to the recipient. Scheme of Arrangement MinterEllison Ref: THW STS KXT Page 8 ME_ _8 (W2003x)

66 6. Dealings in Shares 6.1 Determination of Scheme Shareholders To establish the identity of the Scheme Shareholders, dealings in Shares or other alterations to the Share Register will only be recognised if: (a) the transferee is registered in the Share Register as the holder of the relevant Shares on or before 7.00pm on the Record Date; or (b) registrable transfers in respect of those dealings are received on or before 5.00pm on the day on which the Record Date occurs at the place where the Share Register is kept, and SMEC will not accept for registration, nor recognise for any purpose (except a transfer to the Bidder under this Scheme and any subsequent transfer by the Bidder or its successors in title), any transfer or other request received after those times, or received prior to those times but not in registrable or actionable form, as appropriate. 6.2 Register (a) (Registration of transfers) SMEC must register registrable transfers of the kind referred to in clause 6.1(b) by or as soon as reasonably practicable after the Record Date. (b) (No registration after Record Date) SMEC will not accept for registration or recognise for any purpose any transfer in respect of Shares received after 5.00pm on the Record Date, other than to the Bidder in accordance with this Scheme and any subsequent transfer by the Bidder or its successors in title. (c) (Maintenance of Share Register) For the purpose of determining entitlements to the Scheme Consideration, SMEC must maintain the Share Register in accordance with the provisions of this clause until the Scheme Consideration has been delivered to the Scheme Shareholders. The Share Register in this form will solely determine entitlements to the Scheme Consideration. (d) (No disposal after Record Date) From the Record Date until registration of the Bidder in respect of all Scheme Shares under clause 4, no SMEC Shareholder may dispose or otherwise deal with Shares in any way except as set out in this Scheme and any attempt to do so will have no effect and SMEC shall be entitled to disregard any disposal or dealing of this nature. (e) (Statements of holding from Record Date) All statements of holding for Shares will cease to have effect from the Record Date as documents of title in respect of those shares (other than statements of holding in favour of any Excluded Shareholders). As from the Record Date, each entry current at that date on the Share Register (other than entries in respect of any Excluded Shareholder) will cease to have effect except as evidence of entitlement to the Scheme Consideration in respect of the Shares relating to that entry. (f) (Provision of Scheme Shareholder details) As soon as practicable after the Record Date and in any event within one Business Day after the Record Date, SMEC will ensure that details of the names, Registered Addresses and holdings of Shares for each Scheme Shareholder are available to the Bidder in the form the Bidder reasonably requires. 7. General Scheme provisions 7.1 Consent to amendments to this Scheme If the Court proposes to approve this Scheme subject to any alterations or conditions: (a) SMEC may, by its counsel or solicitors, consent on behalf of all persons concerned to those alterations or conditions to which the Bidder has consented in writing; and (b) each Scheme Shareholder agrees to any alterations or conditions to which counsel for SMEC has consented. Scheme of Arrangement MinterEllison Ref: THW STS KXT Page 9 ME_ _8 (W2003x)

67 7.2 Binding effect of Scheme This Scheme binds SMEC and all Scheme Shareholders (including those who did not attend the Scheme Meeting, those who did not vote at that meeting, or voted against this Scheme at that meeting) and, to the extent of any inconsistency, overrides the constitution of SMEC. 7.3 Scheme Shareholders' agreements and acknowledgment Each Scheme Shareholder: (a) agrees to the transfer of their Shares together with all rights and entitlements attaching to those Shares in accordance with this Scheme; (b) agrees to any variation, cancellation or modification of the rights attached to their Shares constituted by or resulting from this Scheme; (c) agrees: (i) that any share certificate relating to their Shares will not after transfer of their Shares constitute evidence of title to those Shares; and (ii) on the direction of the Bidder, to destroy any share certificates relating to their Shares; and (d) acknowledges and agrees that this Scheme binds SMEC and all Scheme Shareholders (including those who did not attend the Scheme Meeting or did not vote at that meeting or voted against this Scheme at that Scheme Meeting). 7.4 Warranties by Scheme Shareholders (a) Each Scheme Shareholder is deemed to have warranted to SMEC, in its own right and for the benefit of the Bidder, that as at the Implementation Date: (i) all of its Shares which are transferred to the Bidder under this Scheme, including any rights and entitlements attaching to those Shares, will, at the time of transfer, be free from all mortgages, charges, liens, encumbrances, pledges, security interests (including any security interests within the meaning of section 12 of the Personal Property Securities Act 2009 (Cth)) and interests of third parties of any kind, whether legal or otherwise, and restrictions on transfer of any kind; (ii) all of its Shares which are transferred to the Bidder under this Scheme will, on the date on which they are transferred to the Bidder, be fully paid; (iii) it has full power and capacity to transfer its Shares to the Bidder together with any rights attaching to those shares; and (iv) it has no existing right to be issued any Shares, SMEC Options, performance rights, SMEC convertible notes or any other SMEC securities, other than, in the case of any Scheme Shareholder who is also the holder of SMEC Options, the right to be issued Shares on the exercise of those SMEC Options before the Record Date in accordance with their terms. (b) SMEC undertakes that it will provide the warranties in clause 7.4(a) to the Bidder as agent and attorney of each Scheme Shareholder. 7.5 Title to and rights in Scheme Shares (a) To the extent permitted by law, the Scheme Shares transferred under this Scheme will be transferred free from all mortgages, charges, liens, encumbrances, pledges, security interests (including any security interests within the meaning of section 12 of the Personal Property Securities Act 2009 (Cth)) and interests of third parties of any kind, whether legal or otherwise, and restrictions on transfer of any kind. (b) On and from the Implementation Date, immediately after the payment by SMEC of the Scheme Consideration in the manner contemplated in clause 5.2(b), the Bidder will be beneficially entitled to the Scheme Shares transferred to it under this Scheme pending registration by SMEC of the Bidder in the Share Register as the holder of the Scheme Shares. Scheme of Arrangement MinterEllison Ref: THW STS KXT Page 10 ME_ _8 (W2003x)

68 7.6 Authority given to SMEC (a) Scheme Shareholders will be deemed to have authorised SMEC to do and execute all acts, matters, things and documents on the part of each Scheme Shareholder necessary for or incidental to the implementation of this Scheme, including executing, as agent and attorney of each Scheme Shareholder, a share transfer or transfers in relation to Scheme Shares as contemplated by clause 4.2. (b) Each Scheme Shareholder, without the need for any further act, irrevocably appoints SMEC and each of its directors, secretaries and officers (jointly and severally) as its attorney and agent for the purpose of executing any document necessary to give effect to this Scheme including, a proper instrument of transfer of its Scheme Shares for the purposes of section 1071B of the Corporations Act which may be a master transfer of all the Scheme Shares. 7.7 Appointment of sole proxy Immediately after the payment by SMEC of the Scheme Consideration in the manner contemplated in clause 5.2(b) until SMEC registers the Bidder as the holder of all Shares in the Share Register, each Scheme Shareholder: (a) is deemed to have irrevocably appointed the Bidder as its attorney and agent (and directed the Bidder in that capacity) to appoint an officer or agent nominated by the Bidder as its sole proxy and, where applicable, corporate representative to attend shareholders meetings of SMEC, exercise the votes attaching to the Scheme Shares registered in its name and sign any Shareholders resolution; (b) undertakes not to otherwise attend shareholders' meetings, exercise the votes attaching to Scheme Shares registered in their names or sign or vote on any resolutions (whether in person, by proxy or by corporate representative) other than as under clause 7.7(a); (c) must take all other actions in the capacity of a registered holder of Scheme Shares as the Bidder reasonably directs; and (d) acknowledges and agrees that in exercising the powers referred to in clause 7.7(a), the Bidder and any officer or agent nominated by the Bidder under clause 7.7(a) may act in the best interests of the Bidder as the intended registered holder of the Scheme Shares. 7.8 Instructions and elections If not prohibited by law (and including where permitted or facilitated by relief granted by a Governmental Agency), all instructions, notifications or elections by a Scheme Shareholder to SMEC binding or deemed binding between the Scheme Shareholder and SMEC relating to SMEC or Shares (including any addresses, instructions relating to communications from SMEC, whether dividends are to be paid by cheque or into a specific bank account, notices of meetings or other communications from SMEC) will be deemed from the Implementation Date (except to the extent determined otherwise by the Bidder in its sole discretion), by reason of this Scheme, to be made by the Scheme Shareholder to the Bidder until that instruction, notification or election is revoked or amended in writing addressed to the Bidder at its registry. 8. General 8.1 Stamp duty The Bidder must pay all stamp duty payable in connection with the transfer of the Scheme Shares to the Bidder. 8.2 Notices (a) If a notice, transfer, transmission application, direction or other communication referred to in this document is sent by post to SMEC, it will not be taken to be received in the ordinary course of post or on a date and time other than the date and time (if any) on which it is actually received at SMEC's registered office or at the office of the SMEC Registry. Scheme of Arrangement MinterEllison Ref: THW STS KXT Page 11 ME_ _8 (W2003x)

69 (b) The accidental omission to give notice of the Scheme Meeting or the non receipt of a notice by any Shareholder may not, unless so ordered by the Court, invalidate the Scheme Meeting or the proceedings of the Scheme Meeting. 8.3 Further assurances (a) SMEC must do anything necessary (including executing agreements and documents) or incidental to give full effect to this Scheme and the transactions contemplated by it. (b) Each Scheme Shareholder consents to SMEC doing all things necessary or incidental to give full effect to this Scheme and the transactions contemplated by it. 8.4 Governing law and jurisdiction (a) This Scheme is governed by the laws of Victoria. (b) The parties irrevocably submit to the non exclusive jurisdiction of courts exercising jurisdiction in Victoria and courts of appeal from them in respect of any proceedings arising out of or in connection with this Scheme. Scheme of Arrangement MinterEllison Ref: THW STS KXT Page 12 ME_ _8 (W2003x)

70 Schedule 4 - Announcement MinterEllison Ref: THW STS KXT Page 50

71 [ON SMEC ANNOUNCEMENT TEMPLATE] 10 May 2016 SURBANA JURONG PROPOSAL TO ACQUIRE ALL SMEC SHARES Surbana Jurong has submitted a proposal to acquire all SMEC shares under a scheme of arrangement for $1.90 per share in cash The offer price represents an implied equity capitalisation of $397 million and an implied enterprise value of $451 million 1 In addition, SMEC shareholders on the register as at 16 May 2016 will be entitled to a $0.005 per share unfranked interim dividend Surbana Jurong is aiming to be Asia s consultancy powerhouse for urban and infrastructure developments and has identified SMEC to significantly accelerate its growth in the infrastructure sector. SMEC will retain and grow its own brand, becoming a division that spearheads Surbana Jurong s global infrastructure operations SMEC management will remain in place with SMEC's CEO reporting to Surbana Jurong's Group CEO The SMEC Board considers that the Scheme is an attractive transaction for shareholders and employees and unanimously recommends voting in favour of the Scheme, in the absence of a superior proposal and subject to the independent expert concluding that the Scheme is in the best interest of SMEC shareholders The Board of SMEC Holdings Limited (SMEC) announces today that it has entered into a Scheme Implementation Agreement (SIA) with Surbana Jurong Holdings (Australia) Pty Ltd (BidCo), a wholly owned subsidiary of Surbana Jurong Private Limited (Surbana Jurong), under which it is proposed that BidCo will acquire all SMEC shares by scheme of arrangement (Scheme). Holders of options over SMEC shares will also be offered a cash payment, referable to the exercise price of the option, for the cancellation of their options. Surbana Jurong is one of Asia s leading consultancy powerhouses for urban and infrastructure developments with a distinguished track record in shaping Singapore s urban and industrial landscape over the last 50 years. It provides total urbanisation, infrastructure and engineering solutions to support sustainable social and economic growth for its clients. Surbana Jurong is jointly owned by Singapore investment company Temasek Holdings and JTC, the lead Singaporean government agency responsible for the development of industrial infrastructure. The transaction will deliver SMEC shareholders $1.90 cash per share. The cash payment of $1.90 per share represents a significant premium to the last traded price of SMEC shares on its internal market 2, an implied market capitalisation of $397 million and an implied enterprise value of $451 million. 1 SMEC shareholders on the register as at 5pm Monday 16 May 2016 will also be entitled to a $0.005 unfranked FY16 interim dividend, payable on 2 June This means a total benefit of $1.905 cash will be received by SMEC shareholders if the Scheme becomes effective. 1 Based on fully diluted shares on issue of million and net debt, minority interests and other transaction specific adjustments of $54.1 million. 2 The last price at which SMEC shares traded on its internal market was $0.75 on 14 March ME_ _1 (W2003x)

72 The proposed acquisition of SMEC is an important step by Surbana Jurong as it seeks to rapidly grow to become Asia s leading consultancy practice for urban and infrastructure developments. It is planned that SMEC will be run as a division within Surbana Jurong and will retain the SMEC name. SMEC management and employees will remain in place with CEO Andy Goodwin reporting to Surbana Jurong Group CEO Wong Heang Fine. SMEC Chairman Max Findlay said: After careful consideration of the proposal from Surbana Jurong, we are pleased to recommend it to shareholders in the absence of a superior proposal and subject to the independent expert concluding that it is in the best interest of shareholders. Together, this will be a very powerful combination to deliver top class infrastructure and urban design solutions to global clients. The group operation would have an extensive international presence, with over 100 offices in more than 50 countries in Asia, Australia, the Middle East, Africa, Europe and North and South America, employing over 9,400 professionals. SMEC is a great Australian success story, having grown from its origins on the iconic Snowy Mountains Scheme in the 1950s to this significant milestone today for SMEC shareholders and employees. Critically, it will enhance our service to existing and new customers by offering a broader footprint, scope for expansion of activities and greater access to capital to ensure SMEC remains globally competitive. SMEC Managing Director & CEO Andy Goodwin said: The proposed combination will enable SMEC to offer Surbana Jurong s complementary service capabilities across our extensive global footprint. It will deliver enhanced opportunities for our staff, customers and strategic partners. The SMEC culture built on over 50 years will work well alongside Surbana Jurong s similar established values. The welfare of our staff has been an important factor in considering Surbana Jurong as a partner. I am delighted to have been invited to lead this new division of Surbana Jurong and look forward to working with the rest of the group. Group CEO of Surbana Jurong Wong Heang Fine said: The combination of Surbana Jurong and SMEC will be a transformational transaction for both our companies and we are very pleased we have been able to reach agreement. Both companies bring complementary strengths to the table as well as a rich and proud heritage of iconic projects that are recognised around the world. As we join with SMEC s 5,400 staff to create a formidable organisation that will be among the leading engineering firms in the world, we will be in a much stronger position to compete in the big league of global urbanisation and infrastructure projects. The Board of SMEC unanimously recommends that SMEC s shareholders vote in favour of the Scheme at the shareholder meeting, in the absence of a superior proposal and subject to an independent expert concluding that the Scheme is in the best interest of SMEC s shareholders. Subject to those qualifications, each Director of SMEC intends to vote all the SMEC shares held or controlled by them in favour of the Scheme. Mr Findlay said, The Board s primary concern has always been, and continues to be, to act in the best interests of SMEC s shareholders and maximise value for them. For some time now, the Board has been examining transactions that provide a liquidity event for shareholders and better position SMEC to execute on its 2020 Vision. Since discussions began some time ago, the Board, senior management and SMEC s professional advisors have worked diligently with Surbana Jurong to bring this attractive proposal to shareholders. The Board believes Surbana Jurong s proposal of $1.90 cash per share, which allows shareholders to receive a further $0.005 interim dividend, offers an attractive valuation to SMEC s shareholders through an all cash transaction. SMEC has appointed Lonergan Edwards & Associates to prepare a report on whether the Scheme is in the best interest of SMEC shareholders. The independent expert s report will be included in the Scheme booklet which is expected to be distributed to shareholders in June. The implementation of the Scheme is subject to certain customary conditions and other matters set out in the SIA including: ME_ _1 (W2003x)

73 SMEC shareholders approving the Scheme by the requisite majorities (being 50% in number of shareholders who vote and at least 75% of the total number of shares voted); approval from the Treasurer of the Commonwealth of Australia under Australia s foreign investment rules and other regulatory approvals; no material adverse change occurring in relation to SMEC; no prescribed occurrence occurring in relation to either SMEC or Surbana Jurong; and court approval of the Scheme. Under the SIA, SMEC will be bound by customary exclusivity provisions including no shop, no talk, 'no due diligence', notification and 'matching right' obligations (subject, in certain circumstances, to customary fiduciary carve outs). A break fee of $3.9 million will be payable by SMEC in certain limited circumstances relating to a successful competing proposal, a member of the SMEC Board changing their recommendation (in certain circumstances) or supporting a competing proposal or the termination of the SIA by Surbana Jurong because of SMEC's material breach of the SIA. A reverse break fee of $3.9 million will be payable by BidCo if the SIA is terminated by SMEC because of BidCo's material breach of the SIA or if BidCo fails to pay the consideration for the Scheme to SMEC shareholders. Surbana Jurong has also provided a guarantee of the obligations of BidCo under the SIA. A copy of the executed SIA entered into by SMEC and BidCo is attached to this announcement, which sets out in full (among other things) all conditions precedent for the proposal and the exclusivity provisions. Timetable Shareholders do not need to take any action at the present time. The Scheme booklet containing information relating to the proposal, the reasons for the Directors unanimous recommendation and details of the shareholder meeting is expected to be sent to SMEC s shareholders in June It is anticipated that SMEC shareholders will have the opportunity to vote on the Scheme at a meeting to be held in July Subject to all the conditions of the Scheme being satisfied, the Scheme is expected to be implemented in late July With effect from the release of this announcement, the suspension in trading of SMEC shares will be lifted. SMEC is being advised by ANZ Corporate Advisory, as financial adviser, and MinterEllison, as legal adviser. Media Enquiries Andy Goodwin Managing Director and CEO Shareholder Enquiries Philip Wilcox Company Secretary smecshareoffer@smec.com ME_ _1 (W2003x)

74 About SMEC SMEC is a professional services company recognised around the world for providing high-quality consultancy services on major infrastructure projects. SMEC has over 5,400 employees and an established network of more than 75 offices throughout Australia, Asia, the Middle East, Africa and South America. SMEC provides consultancy services for the lifecycle of a project to a broad range of industry sectors. SMEC s consultancy services include: pre-feasibility and feasibility studies, field investigations, laboratory testing, computer modelling, detailed design, tender and contract management, asset management, construction supervision, quality assurance, commissioning, operation and maintenance, training, and project management. Since its creation, SMEC has delivered thousands of civil, transport, water, environment and power projects in more than 100 countries. SMEC s services generate economic wealth and provide essential services that contribute to national development in some of the world s fastest growing economies. By facilitating the economic development of nations, SMEC meets the requirements of a diverse range of clients and communities and delivers returns to shareholders. About Surbana Jurong Surbana Jurong is one of Asia s consultancy powerhouses for urban and infrastructure developments. Surbana Jurong delivers total urban, infrastructure and engineering solutions to support sustainable social and economic growth for its clients and has a distinguished track record in shaping Singapore s urban and industrial landscape over the last 50 years. Its multi-disciplinary team of specialists provides one-stop complete value chain consultancy services harnessed through years of successfully completing a wide array of projects in more than 200 cities in over 50 countries worldwide. Surbana Jurong has designed and completed more than a million homes in Singapore, completed masterplans for over 30 countries and developed more than 50 industrial parks around the world. With over 600 international and local awards under its belt, Surbana Jurong has what it takes to understand, anticipate and exceed its clients expectations. Today, Surbana Jurong employs over 4,000 employees from 40 nationalities in 26 offices across Asia, Africa and the Middle East Surbana Jurong is jointly owned by Singapore investment company Temasek Holdings and JTC, the lead Singaporean government agency responsible for the development of industrial infrastructure. ME_ _1 (W2003x)

75 ME_ _1 (W2003x) [ANNEXURE: SCHEME IMPLEMENTATION AGREEMENT]

76 Signing page EXECUTED as an agreement. Executed by SMEC Holdings Limited in accordance with Section 127 of the Corporations Act 2001 Signature of dire tor Signature of dieter/co u a y secretary (Please delete as applic 4\13ts`1 Name of director (print) G90-15v4 Name of Gkeeter/company secretary (print) Executed by Surbana Jurong Holdings (Australia) Pty Ltd in accordance with Section 127 of the Corporations Act 2001 Signature of director Signature of director/company secretary (Please delete as applicable) Name of director (print) Name of director/company secretary (print) Signed for Surbana Jurong Private Limited by an authorised officer in the presence of Signature of officer Signature of witness Name of officer (print) Name of witness (print) Office held MinterEllison I Ref: THW STS KXT Page 51