ON OF BUSINESS
(A)
SUBJECT TO CLAUSE 4.2, BETWEEN THE DATE OF
THIS AGREEMENT AND THE EARLIER OF COMPLETION AND TERMINATION OF THIS AGREEMENT,
THE SELLER MUST ENSURE THAT THE BUSINESS IS CONDUCTED IN THE ORDINARY COURSE
AND, IN PARTICULAR, THAT NO TRANSACTION ENTITY:
(1)
DISTRIBUTES OR RETURNS ANY CAPITAL TO ITS
MEMBERS;
(2)
BUYS BACK ANY OF ITS SHARES OR OTHERWISE
ALTERS ITS SHARE CAPITAL;
(3)
ISSUES ANY SHARES, OPTIONS OR SECURITIES
WHICH ARE CONVERTIBLE INTO SHARES IN THAT TRANSACTION ENTITY;
(4)
ALTERS ITS CONSTITUTION;
(5)
DISPOSES OF, OR GRANTS ANY OPTION OVER, ANY
ASSET THE WRITTEN DOWN BOOK VALUE OF WHICH EXCEEDS $50,000 (OTHER THAN IN THE
ORDINARY COURSE OF THE BUSINESS);
(6)
ACQUIRES ANY ASSETS THE COST OF WHICH
EXCEEDS $50,000 OTHER THAN:
(A)
PURSUANT TO ANY AGREEMENT EXECUTED PRIOR TO THE
DATE OF THIS AGREEMENT AND DISCLOSED IN THE DISCLOSURE MATERIALS;
(B)
THE REPLACEMENT OF AN ASSET IN ACCORDANCE WITH
PLANNED, ROUTINE OR EMERGENCY PROGRAMS; OR
(C)
IN THE ORDINARY COURSE OF THE BUSINESS;
(7)
TERMINATES, ASSIGNS, MATERIALLY AMENDS OR
WAIVES ANY MATERIAL RIGHTS UNDER ANY MATERIAL CONTRACT EXCEPT WITH THE PRIOR
CONSENT OF THE BUYER;
(8)
COMMENCES OR VOLUNTARILY BECOMES A PARTY TO
ANY COURT PROCEEDINGS OF A MATERIAL NATURE EXCEPT WHERE NECESSARY TO AVOID
MATERIAL PREJUDICE TO THE BUSINESS (IN WHICH CASE THE SELLER WILL NOTIFY THE
BUYER OF, AND CONSULT WITH THE BUYER IN RESPECT OF, SUCH PROCEEDINGS);
(9)
ENTERS INTO ANY MATERIAL AGREEMENT OR
ARRANGEMENT WITH THE SELLER GROUP OTHER THAN AGREEMENTS OR ARRANGEMENTS
NECESSARY TO EFFECT ANY OF THE TRANSACTIONS CONTEMPLATED OR REFERRED TO IN THIS
AGREEMENT OR AGREEMENTS OR ARRANGEMENTS ENTERED INTO ON ARM'S LENGTH COMMERCIAL
TERMS AND IN THE ORDINARY COURSE OF BUSINESS THAT WILL BE TERMINATED ON OR PRIOR
TO COMPLETION;
6
(10)
TERMINATES THE EMPLOYMENT OF ANY EMPLOYEE OF A
TRANSACTION ENTITY OTHER THAN FOR CAUSE OR OTHERWISE PURSUANT TO THEIR
EMPLOYMENT CONTRACT;
(11)
CHANGE THE TERMS OF EMPLOYMENT, SALARY OR BONUS
OF ANY EMPLOYEE OF A TRANSACTION ENTITY IN ANY MATERIAL RESPECT, EXCEPT IN
ACCORDANCE WITH ANY TERMS OF EMPLOYMENT AS AT THE DATE OF THIS AGREEMENT OR
CONSISTENT WITH PAST PRACTICE IN THE ORDINARY COURSE OF THE BUSINESS; OR
(12)
CREATES ANY ENCUMBRANCE AFFECTING ANY OF THE
ASSETS.
(B)
SUBJECT TO CLAUSE 4.2, BETWEEN THE DATE OF
THIS AGREEMENT AND THE EARLIER OF COMPLETION AND TERMINATION OF THIS AGREEMENT,
THE SELLER MUST ENSURE THAT THE BUYER, ITS SOLICITORS, ACCOUNTANTS AND OTHER
AUTHORISED REPRESENTATIVES, ARE (ON REASONABLE NOTICE BEING PROVIDED TO THE
SELLER) GIVEN ACCESS DURING NORMAL BUSINESS HOURS TO:
(1)
ALL AVAILABLE BOOKS OF ACCOUNT, BOOKS,
RECORDS, CONTRACTS, COMMITMENTS AND PROPERTY OF THE TRANSACTION ENTITIES WHICH
ARE IN, OR PRIOR TO THE COMPLETION DATE COME INTO, EXISTENCE AND THE SELLER MUST
FURNISH OR MUST PROCURE THAT EACH TRANSACTION ENTITY FURNISHES TO THE BUYER
DURING SUCH PERIOD ALL SUCH INFORMATION CONCERNING THE TRANSACTION ENTITIES AS
THE BUYER MAY REASONABLY REQUEST; AND
(2)
ALL EXECUTIVES AND MANAGEMENT OF THE
TRANSACTION ENTITIES.
4.2
PERMITTED ACTS
Nothing in