ACCESS, INFORMATION AND CONDUCT OF BUSINESS. 9.1 Access and information: From the date of this agreement until the Implementation Date, the Company must: (a) procure that Apax and its Representatives are given reasonable access to: (i) the properties, books and records and senior management of the Trade Me Group, during normal business hours, and on reasonable notice to the Company; and (ii) information about the Business reasonably requested by Apax or its Representatives, for the purposes of: (iii) implementing the Scheme and enabling Apax to prepare for the transition of ownership of the Trade Me Group to Apax; and (iv) any other purpose agreed between the Company and Apax in writing, except to the extent that the provision of such access is prohibited by law or any confidentiality obligations owed by the Trade Me Group to third parties and provided that: (v) Apax will focus on issues that it considers to be material, having regard to management commitments and the impact of information requests on the Company's Business; (vi) providing access and/or information pursuant to this clause 9.1(a) is done in a way which minimises disruption to the Company's business; and (vii) nothing in this clause 9.1 (a) will require the Company to provide information concerning its directors' and management's consideration of the Scheme or any Competing Proposal (and nothing in this clause limits Trade Me’s obligations under clause 13); (b) keep Apax updated on all material developments in its Business; and (c) provide Apax copies of papers provided to the Board (including monthly management accounts for the Trade Me Group) within three Business Days after they are provided to Board members, however, the Company may redact information from such papers to the extent it is commercially sensitive or relates to the Transaction or a Competing Proposal, provided that to the extent that any information is provided under this clause 9.1 that is not publicly available, it will be kept confidential by the recipient of that information in accordance with the confidentiality agreement referred to in clause 19.4.
Appears in 1 contract
Sources: Scheme Implementation Agreement
ACCESS, INFORMATION AND CONDUCT OF BUSINESS. 9.1 Access and information: From the date of this agreement until the Implementation Date, the Company must:
(a) procure that Apax and its Representatives are given reasonable access to:
(i) the properties, books and records and senior management of the Trade Me Group, during normal business hours, and on reasonable notice to the Company; and
(ii) information about the Business reasonably requested by Apax or its Representatives, for the purposes of:
(iii) implementing the Scheme and enabling Apax to prepare for the transition of ownership of the Trade Me Group to Apax; and
(iv) any other purpose agreed between the Company and Apax in writing, except to the extent that the provision of such access is prohibited by law or any confidentiality obligations owed by the Trade Me Group to third parties and provided that:
(v) Apax will focus on issues that it considers to be material, having regard to management commitments and the impact of information requests on the Company's Business;
(vi) providing access and/or information pursuant to this clause 9.1(a9.1
(a) is done in a way which minimises disruption to the Company's business; andand F or p er so na l u se o nl 3679077 v1 24
(vii) nothing in this clause 9.1
(a) will require the Company to provide information concerning its directors' and management's consideration of the Scheme or any Competing Proposal (and nothing in this clause limits Trade Me’s obligations under clause 13);
(b) keep Apax updated on all material developments in its Business; and
(c) provide Apax copies of papers provided to the Board (including monthly management accounts for the Trade Me Group) within three Business Days after they are provided to Board members, however, the Company may redact information from such papers to the extent it is commercially sensitive or relates to the Transaction or a Competing Proposal, provided that to the extent that any information is provided under this clause 9.1 that is not publicly available, it will be kept confidential by the recipient of that information in accordance with the confidentiality agreement referred to in clause 19.4.
9.2 Conduct of business; positive obligations: From the date of this agreement until and including the Implementation Date, the Company must procure that:
(a) the Business is carried on as a going concern and in the normal and ordinary course, consistent with past practices preceding the date of this agreement, and this obligation will include using reasonable endeavours to:
(i) keep available the services of its current executive leadership team, subject to any matter fairly disclosed to Apax in the Due Diligence Material or through the NZX market announcements platform before the date of this agreement; and
(ii) maintain and preserve its relationships with relevant Government Agencies, customers, suppliers, licensors, licensees, joint venturers and others having business dealings with it, but nothing in this clause 9.2(a)(i) or clause 9.2(a)(ii) shall require the Company to act in a manner inconsistent with the terms of this agreement;
(b) the tangible assets of the Business are maintained in as good a state of operating condition, order and repair as they were at the date of this agreement, having regard to the age and book value of such assets, except for ordinary depreciation and fair wear and tear;
(c) Apax is promptly notified of:
(i) any claim that is made or legal proceedings instituted against it, or any other member of the Trade Me Group, or any director or employee of any other member of the Trade Me Group (of which it becomes aware), other than any claim or legal proceeding that has potential liability which is less than $500,000;
(ii) any decision by it or any other member of the Trade Me Group proposes to initiate or settle any claims, disputes, demands or proceedings for an amount resulting in a cost to the Trade Me Group which in aggregate exceeds $500,000; and F or p er so na l u se o nl 3679077 v1 25
(iii) any actual or threatened material enquiries or investigations by any Government Agency in relation to the Business (including in relation to Tax) and any material correspondence with any Government Agency in relation to the Business (which, for clarity, does not include any enquires or investigations arising out of or in connection with the conduct of Trade Me's members or other individuals listing on, or otherwise engaging with, the Trade Me platforms);
(d) all material licences, approvals and permits necessary to operate the Business are kept in force, and all conditions attaching to those licences, approvals and permits are complied with in all material respects;
(e) all insurance policies currently in force at the date of this agreement in favour of the Trade Me Group and the Business are maintained on materially the same terms and conditions, and that all premiums payable in respect of such policies are paid when due.
9.3 Conduct of business; negative obligations: From the date of this agreement until and including the Implementation Date, the Company must procure that it, and each other member of the Trade Me Group, does not:
(a) create or incur any liability or indebtedness (whether contingent or otherwise, and including by way of drawing down on any facility), except normal liabilities or indebtedness incurred in the ordinary course of the Business and not exceeding $10,000,000 (in aggregate);
(b) create or otherwise permit to arise any Encumbrance over any of its assets;
(c) commence, compromise or settle any litigation, arbitration or other similar proceedings for an amount exceeding $500,000;
(d) provide any guarantee of, or security for, or indemnity in connection with the obligations of any person other than a member of the Trade Me Group;
(e) exceed borrowing or cash reserve limitations as established by any financier of the member office Trade Me Group;
(f) make any material Taxation election (other than an election in the ordinary course of the Business), or settle, compromise or prejudice any material Tax liability;
(g) make any change in accounting methods, principles or practices used by it (except if required by a change in International Financial Reporting Standards);
(h) employ any new employees, other than:
(i) new hires contemplated by the FY19 forecast (as fairly disclosed to Apax in the Due Diligence Material) or new hires employed in the ordinary course of Business where such hires are made to fill a vacant position within the Business (and provided that the terms and remuneration of those new hires are equivalent to those on which the departed employee was employed); or
(ii) employees with an annual remuneration of less than $200,000; F or p er so na l u se o nl 3679077 v1 26
(i) alter or accelerate the remuneration or other conditions of employment or engagement of any of its directors, officers, senior employees and executives, other than changes consistent with the normal business practices employed by the Trade Me Group or as contemplated by clause 9.5;
(j) make any payment or incur (or enter into) any unbudgeted capital expenditure except in the normal and ordinary course of the Business, other than payments not exceeding in aggregate $2,000,000 and excluding any capitalised development costs;
(k) acquire or dispose of any assets (including shares or other similar interests), other than current assets acquired or disposed of in the ordinary course of the Business, or an asset, or assets which should reasonably be assessed together, with a book value not exceeding $1,000,000;
(l) issue, redeem, or buy back any shares (other than in connection with the forfeiture of any Performance Rights), or increase, reduce or otherwise alter its share capital, or grant any options or rights for the issue of shares or other securities;
(m) alter, adopt or revoke the provisions of its constitution (other to comply with law, including the NZX Listing Rules);
(n) enter into, vary or terminate any contract, or series of contracts which should reasonably be assessed together, where the aggregate payments made, or revenues received, by, the Trade Me Group in any 12-month period exceed $1,000,000, other than contracts entered into, varied or terminated in the ordinary course of its Business;
(o) acquire any land or enter into any new leases in respect of any land;
(p) enter into any material joint venture, strategic alliance or partnership; or
(q) do anything which might reasonably be expected to give rise to a breach of law.
Appears in 1 contract
Sources: Scheme Implementation Agreement