SEK – Waiver from NZX Listing Rule 5.2.1

15 October 2024


NZ RegCo Decision

Seeka Limited (“
SEK
”)

Waiver from NZX Listing Rule 5.2.1

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1


Background

1. The material information on which this decision is based is set out in Appendix One to this
decision. These waivers will not apply if that information is not, or ceases to be, full and
accurate in all material respects.
2. The NZX Listing Rules (
Rules
) to which these decisions relate are set out in Appendix Two
to this decision.
3. Capitalised terms that are not defined in this decision have the meanings given to them in
the Rules.

Waiver from NZX Listing Rule 5.2.1

Decision
4. Subject to the conditions set out in paragraph 5 below, and on the basis that the information
provided by SEK is complete and accurate in all material respects, NZX Regulation Limited
(
NZ RegCo
) grants SEK a waiver from Rule 5.2.1 to the extent that this Rule would
otherwise require SEK to obtain shareholder approval to enter into Future Post-Harvest
Agreements with Related Party Growers.
5. The waiver in paragraph 4 above is provided on the conditions that:
(a) all Independent Directors of SEK certify (on behalf of the SEK Board) to NZX
alongside this waiver decision, in relation to any Future Post-Harvest Agreement with
Related Party Growers for all future seasons, that:

i. the granting of the waiver decision is in the best interests:
A. of SEK, and
B. SEK’s shareholders who would not be precluded from voting under Rule
6.3; and
ii. entry into of the Future Post-Harvest Agreements with Related Party Growers is
in the best interests of:
A. SEK,
B. all of SEK’s shareholders, and
C. SEK’s shareholders who would not be precluded from voting under Rule
6.3;
(b) the certificate in paragraph 5(a) include a summary of the core grounds for the
certifications given under each limb of paragraphs 5(a)(i) and (ii) described above;
(c) the waiver, its conditions and implications being disclosed in all of SEK’s future
annual reports, including the disclosure of the following:
i. SEK Directors’ interests in Related Party Growers;

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ii. Details of transactions entered into with related parties of SEK for post-harvest
and orchard management services, including the annual aggregated transaction
revenue received by SEK from sales of services;
iii. That all related party transactions were made on normal commercial terms and
conditions and at market rates; and
iv. The terms of the Post-Harvest Agreements of that year were entered into and
negotiated on an arm’s length, commercial basis, following the process as set out
in Appendix One
Reasons
6. In coming to the decision to provide the waiver set out in paragraph 4 above, NZ RegCo
has considered that:
(a) The policy behind Rule 5.2.1 is to ensure that a Related Party does not exercise
undue influence or use personal connections to reach a favourable outcome for, or a
transfer of value to, the Related Party in respect of a transaction and that
shareholders are given an opportunity to review transactions where the Board may
have been subject to actual or perceived influence from a Related Party. Granting
this waiver will not offend the policy behind Rule 5.2.1.
(b) The waiver does not offend the policy of Rule 5.2.1 as SEK has submitted, and NZ
RegCo has no reason not to accept, that the Related Party Growers nor their
associated Directors will not have the opportunity to exercise undue influence or use
personal connections to reach a favourable outcome for, or transfer value to,
themselves who will be party to the Post-Harvest Agreements because the form of
these agreements is the same that applies to all growers, not just Related Party
Growers. SEK management prepares the standard-form of Post-Harvest Agreement
each year, and it is SEK management that enters into the Post-Harvest Agreements
with individual growers (including Related Party Growers) under delegated authority.
(c) SEK has submitted, and NZ RegCo has no reason not to accept, that entry into of the
Post-Harvest Agreements have been and will be in the ordinary course of SEK’s
business, and the terms of those agreements are, and will continue to be, negotiated
on an arm’s-length basis.

(d) The terms of the Post-Harvest Agreements are the same for all SEK kiwifruit
growers, including the Related Party Growers.

(e) SEK’s Annual Reports disclose, and will continue to disclose:

i. Directors’ interests in Related Party Growers;

ii. details of transactions entered into with related parties of SEK for post-harvest
and orchard management services, including the annual aggregated transaction
revenue received by SEK from sales of services; and

iii. confirmation that all related party transactions were made on normal commercial
terms and conditions and at market rates.

Accordingly, the market is aware that certain of SEK’s Directors are Associated
Persons of Related Party Growers, that SEK provides Related Party Growers with

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post-harvest and orchard management services and the aggregate quantum of
revenue derived from the sale of services.

(f) Due to the future-looking nature of the waiver, it would be difficult to determine who
among SEK’s Directors are “non-interested” for the purposes of providing the
Directors’ Certificate as required by the NZX Guidance Note on Major and Related
Party Transactions. NZ RegCo therefore considers the current Independent Directors
who do not have Associated Persons relationships with kiwifruit growers are the
appropriate group of SEK Directors to provide the Directors’ Certificate to satisfy the
conditions for this decision; and
(g) There is precedent for this decision.

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Appendix One

1. Seeka Limited (
SEK
) is a Listed Issuer with securities Quoted on the NZX Main Board.

2. SEK is a produce supply chain services business, which grows, processes and supplies
fruit (mainly kiwifruit) to domestic and international consumers. SEK operates along the
supply chain from orchard to market, providing growers with a variety of services from
orchard management, harvest, post-harvest and marketing services.
3. Each year SEK adopts a standard form of post-harvest kiwifruit services agreement for the
provision by SEK of certain Picking, Packing, Rejects, Coolstorage and Ancillary services to
kiwifruit growers for the next harvest season (
Post-Harvest Agreement
). Those kiwifruit
growers include growers who are Associated Persons of SEK Directors (
Related Party
Growers
). A summary of Seeka’s approval process for Post-Harvest Agreements is
included under the subheading “Summary of Seeka’s approval process for Post-Harvest
Agreements” below.
4. Rule 5.2.1(a) requires an Issuer to obtain shareholder approval to a Material Transaction if
a Related Party is a direct party to the Material Transaction. A Material Transaction
includes a transaction whereby an Issuer provides any services where the gross cost to the
Issuer in any financial year is likely to exceed an amount equal to 1% of the Average
Market Capitalisation of the Issuer. Accordingly, where the gross cost to SEK in any
financial year of providing services to a Related Party Grower under a Post-Harvest
Agreement exceeds an amount equal to 1% of SEK’s Average Market Capitalisation, the
provision of those services to the Related Party Grower requires SEK shareholder approval
or must be conditional on SEK obtaining shareholder approval.
5. SEK expects that the gross cost to SEK of providing services to Related Party Growers
under separate Post-Harvest Agreements in future financial years could in certain cases
exceed an amount equal to 1% of SEK’s then Average Market Capitalisation (
Future Post-
Harvest Agreements
).
6. Each year SEK enters into approximately 530 separate Post-Harvest Agreements, around
five of which are with Related Party Growers, and out of those, between one to three which
trigger the 1% of Average Market Capitalisation threshold for a Material Transaction.
7. The process by which SEK prepares and approves the standard form of Post-Harvest
Agreements is substantially the same each season. The terms of those agreements have
been negotiated on an arm’s-length basis and SEK is not influenced by the Related Party
Growers into entering into those agreements, because the terms of those agreements are
the same as for all other growers. The gross cost of the services for each Post-Harvest
Agreement depends on the size of the orchard and related services and activities that each
Related Party Grower undertakes.
Summary of Seeka’s approval process for Post-Harvest Agreements
8. Seeka’s preparation and approval process for Post-Harvest Agreements is as follows:
(a) The SEK Board delegates authority to SEK management to prepare and approve the
standard form of Post-Harvest Agreement each year and the standard form of Post-
Harvest Agreement is not considered or approved by the SEK Board.
(b) The standard form of Post-Harvest Agreement sets out the terms on which SEK
provides Picking, Packing, Rejects, Coolstorage and Ancillary services to kiwifruit

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growers for the next harvest season. Not all kiwifruit growers require all the services
contemplated by the Post-Harvest Agreement. Kiwifruit growers will, in consultation
with their SEK client relationship manager, determine what post-harvest services the
kiwifruit grower requires, and can opt for all or some services contemplated by the
Post-Harvest Agreement as needed. No terms of the Post-Harvest Agreement can be
negotiated or changed by kiwifruit growers (including Related Party Growers).
(c) Each year, after preparing the forthcoming season’s Post-Harvest Agreement, SEK
management presents the Post-Harvest Agreement to the grower-controlled Seeka
Grower Council (Council) for the next harvest season.
(d) Membership to the Council is determined annually and comprises of persons
appointed by SEK (which cannot appoint more than 49% of the Council), and persons
elected by Seeka kiwifruit suppliers and their subsidiaries.
(e) The Council does not approve, nor have a right to approve, the Post-Harvest
Agreements. Rather, the presentation of the Post-Harvest Agreement to the Council
is for the purpose of establishing a forum to discuss the Post-Harvest Agreement with
it as the body representing Seeka kiwifruit growers. The ultimate determination of the
terms of the Post-Harvest Agreement is made by SEK management.
(f) SEK management has delegated authority to enter into the standard form Post-
Harvest Agreements with all growers for the next season. Accordingly, the SEK Board
does not vote on or approve the entry into of Post-Harvest Agreements with individual
growers.

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Appendix Two

Glossary, Part A - Definitions

Associated Person a person (A) is associated with, or an Associated Person of, another
person (B) if:
(a) A is able, directly or indirectly, to exert a substantial degree of influence over the
activities of B (or vice versa),
(b) B is a body corporate and A has the power, directly or indirectly, to exercise, or control
the exercise of, more than 50% of the Votes attaching to the Financial Products of B (or
vice versa),
[...]
(e) A is a director or Senior Manager of B (or vice versa), or
[...]

Material Transaction means a transaction, or a related series of transactions, whereby an
Issuer:
[...]
(e) provides or obtains any services (including the underwriting of Financial Products or
services as an Employee) where the gross cost to the Issuer in any financial year is
likely to exceed an amount equal to 1% of the Average Market Capitalisation of the
Issuer, or
[...]

Related Party means a person who, at the time of a Material Transaction, or at any time
within the previous six months, was:
(a) a Director or Senior Manager of the Issuer or any of its Subsidiaries,
[...]
(c) an Associated Person of the Issuer or any of the persons referred to in (a) or (b), except
where the person becomes an Associated Person as a consequence of the Material
Transaction, or
[...]

Rule 5.2.1
An Issuer must not enter into a Material Transaction if a Related Party is, or is likely to
become:
(a) a direct party to the Material Transaction, or
(b) a beneficiary of a guarantee or other transaction which is a Material Transaction,
unless that Material Transaction is approved by an Ordinary Resolution (such resolution being
subject to the voting restrictions in Rule 6.3) or conditional on such approval.