Exhibit
4.10
WATERFORD WEDGWOOD PLC
XXX XXXXXXX
X'XXXXXX
- and -
XX XXXXX XXXX
XXXXXXXXXX
RELATIONSHIP AGREEMENT
XXXXXXX XXX
Solicitors
Xxxxxxxxxx Xxxxx
Xxxxxx Xxxxx
Xxxxxx 0
002542.0207.KC
TABLE OF CONTENTS
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| 1. |
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DEFINITIONS |
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| 2. |
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EFFECTIVE
DATE |
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| 3. |
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UNDERTAKINGS |
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| 4. |
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DIRECTOR
CONFLICTS |
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| 5. |
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ENFORCEMENT |
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| 6. |
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TERMINATION |
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| 7. |
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MODIFICATION |
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| 8. |
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SEVERABILITY |
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| 9. |
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COUNTERPARTS |
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| 10. |
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CONSTRUCTION |
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| 11. |
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CAPTIONS |
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| 12. |
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GOVERNING
LAW |
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| 13. |
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NOTICE |
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| 14. |
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CONFLICT OR
INCONSISTENCY |
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THIS AGREEMENT is made on 20 June
2005
BETWEEN:
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WATERFORD WEDGWOOD
plc,
a Public Limited Company registered in
Ireland under
number 11861
whose registered office is
at Kilbarry,
Waterford, Ireland
(hereinafter referred to as the
"Company") |
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XXX
XXXXXXX X'XXXXXX
of Lissadell, Xxxxxx Xxx, Nassau,
Bahamas
(hereinafter referred to as "Xxx Xxxxxxx
X'Xxxxxx") |
- and -
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XX XXXXX XXXX XXXXXXXXXX
of Sea Saga,
Edgewater Drive
Xxxxxx Xxx, Nassau, Bahamas
(hereinafter
referred to as "Xx Xxxxxxxxxx") |
WHEREAS:
A. The Company has at the date
of this Agreement an authorised share capital of
€210,000,000 divided into 3,500,000,000 ordinary shares of
€0.06 each, of which 2,658,632,610 are in issue and fully
paid up.
B. The Company proposes to raise up to
€101,000,000 (before commissions and expenses) by means of
the issue of the Rights Issue Units (as defined below) on the terms to
be set out in the Prospectus (as defined below).
C. The
Company must comply with the Listing Rules (as defined below), which
require the Company to be capable at all times of carrying on its
business independently of any Controlling Shareholder (as defined
below), including any Associate (as defined below) thereof, and that
all transactions and relationships between the Company and any
Controlling Shareholder or Associate thereof be at arm's length
and on a basis no less favourable to the Company than a normal
commercial basis.
D. Each of Xxx Xxxxxxx X'Xxxxxx and
Xx Xxxxxxxxxx may become a Controlling Shareholder (as defined below)
following completion of the Underwriting (as defined below).
E. The Company, Xxx Xxxxxxx X'Xxxxxx and Xx Xxxxxxxxxx
have entered into this Agreement for the purposes of the Listing Rules,
including in particular paragraphs 3.12 and 3.13 of the Listing
Rules.
NOW IN CONSIDERATION OF Xxx Xxxxxxx X'Xxxxxx and Xx
Xxxxxxxxxx agreeing severally to enter into certain undertakings with
the Company upon and subject to the terms and conditions of this
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Agreement, and in consideration of the receipt
of the sum of €1.00 by each of the parties hereto from
each of the other parties hereto (the receipt of which is hereby
acknowledged) and for other valuable consideration the sufficiency of
which is hereby acknowledged, IT IS HEREBY AGREED AS
FOLLOWS:
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| 1. |
Definitions |
In this
Agreement the following expressions shall have the following meanings
unless the context otherwise
requires:
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(a) |
"Articles",
the Articles of Association of the Company for the time being and as
amended from time to
time; |
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(b) |
"Associate",
the meaning given to such expression in paragraphs 11.1(d) and (e) of
the Listing
Rules; |
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(c) |
"Board",
the Board of Directors of the Company for the time being and from time
to time; |
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(d) |
"Controlling
Shareholder", any person (or persons acting jointly by
agreement whether formal or otherwise) who
is: |
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(i) |
entitled to exercise, or to
control the exercise of, 30% or more of the rights to vote at
general meetings of the Company (but the rights to vote attaching to
any treasury shares held by the Company are not to be taken into
account when calculating a person's percentage rights to vote
under this paragraph); or |
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(ii) |
able to
control the appointment of directors who are able to exercise a
majority of votes at board meetings of the
Company. |
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(e) |
"Current
Relationship Directors", Xxx Xxxxxxx X'Xxxxxx, Xx
Xxxxxxxxxx, Lady Xxxxxx X'Xxxxxx and Xx Xxxx X'Xxxxxx,
Jnr.; |
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(f) |
"Directors",
the Directors of the Company for the time being and from time to
time; |
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(g) |
"Group",
the Company and its subsidiaries and subsidiary undertakings for the
time being and from time to time and "member of the
Group" means any one of them; |
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(h) |
"Holding",
the interest of each Principal Shareholder in the equity share capital
of the
Company; |
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(i) |
"Income
Shares", non-voting shares of nominal value Stg 1p each in
the capital of Waterford Wedgwood UK plc which, when issued with and
tied to an Ordinary Share, entitle holders of Stock Units to elect to
receive dividends paid from UK-sourced profits; |
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(j) |
"Independent
Board", for the purposes of each particular determination
to be made by the Board for the purposes of Clauses 3 and 4 of this
Agreement, the Independent
Directors; |
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(k) |
"Independent
Directors", now, the Directors other than the Current
Relationship Directors, and, on an ongoing basis, the Directors other
than the Current Relationship Directors and any Director connected to
one or both of the Principal Shareholders within the meaning of Section
26 of the Companies Xxx 0000 (as amended by Section 76 of the Company
Law Enforcement Act 2001) and any Director who has a significant and
direct business relationship with either or both of the Principal
Shareholders which, in the reasonable opinion of the Independent Board
(excluding also the Director whose relationship is being considered),
would materially interfere with the exercise by him/her of independent
judgment on such
matter; |
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(l) |
"Irish Stock
Exchange", The Irish Stock Exchange
Limited; |
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(m) |
"Listing
Rules", the listing rules of the Irish Stock Exchange
and/or, where appropriate, the listing rules of the UK Listing
Authority, as they may be varied, supplemented and amended from time to
time, inter alia to reflect the Regulations; |
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(n) |
"London Stock
Exchange", The London Stock Exchange plc; |
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(o) |
"Ordinary
Shares", ordinary shares of nominal value
€0.06 each in the capital of the
Company; |
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(p) |
"Principal
Shareholders", Xxx Xxxxxxx X'Xxxxxx and Xx
Xxxxxxxxxx; |
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(q) |
"Prospectus",
the prospectus or listing particulars for the purposes of the Rights
Issue relating to the Company and the Group, as required by the
Regulations and the Listing
Rules; |
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(r) |
"Regulations",
the European Communities (Stock Exchange) Regulations 1984 and the
European Communities (Transferable Securities and Stock Exchange)
Regulations 1992 or any legislation implemented in substitution
therefore, including the European Communities (Prospectus) Regulations
2005 and the Investment Funds, Companies and Miscellaneous Provisions
Xxx 0000; |
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(s) |
"Rights
Issue", the issue of 1,661,857,115 Stock Units to holders
of Stock Units on the basis of 7 Rights Issue Units for every 11 Stock
Units held announced by the Company on 4 May
2005; |
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(t) |
"Rights Issue
Units", 1,661,857,115 Stock Units to be issued pursuant to
the Rights Issue; |
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(u) |
"Stock
Exchanges", together the Irish Stock Exchange and the
London Stock Exchange and either of them a "Stock
Exchange"; |
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(v) |
"Stock
Unit", one Ordinary Share and one Income Share, which are
twinned; |
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(w) |
"UKLA", or
"UK Listing Authority", the Financial
Services Authority acting in its capacity as the competent authority
for the purposes of Part VI of the Financial Services and Markets Xxx
0000 of the United Kingdom; and |
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(x) |
"Underwriting",
the underwriting of the Rights Issue in accordance with the terms of
the conditional Underwriting Agreement dated 20 June 2005 between the
Company, Xxxxxxxxxx Holdings Limited and J&E
Davy. |
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| 2. |
Effective
Date |
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(a) |
The provisions of this
Agreement shall come into effect on the date that either or both of the
Principal Shareholders becomes a Controlling Shareholder of the Company
pursuant to the Rights Issue and shall have no effect in the period
prior to that date. If such event has not occurred on or before 30
August 2005 or such later date as may be agreed, in writing, between
the parties (being in any event no earlier than the date upon which the
Principal Shareholder(s) would, directly or indirectly through
Xxxxxxxxxx Holdings Limited, if required, subscribe for Rights Issue
Units pursuant to the Underwriting), this Agreement shall terminate and
be of no further effect. |
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(b) |
Notwithstanding any other provision of
this Agreement, nothing in this Agreement shall require the Principal
Shareholders to abstain, or procure the abstention, from voting, for
the avoidance of doubt in their capacity as Shareholders in the Company
only, the Stock Units attributable to the Holding in respect of the
resolutions (other than the resolution to be passed by Independent
Shareholders (as that term is defined in the Circular convening such
meeting) as required by the Irish Takeover Panel) to be proposed at an
Extraordinary General Meeting of the Company proposed to be held on 20
June 2005 provided always that the Principal Shareholders will comply
with the provisions of Chapter 11 of the Listing Rules and will so
demonstrate to the satisfaction of the Irish Stock Exchange and the
UKLA as required, prior to taking any action in accordance with this
Clause
2(b). |
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| 3. |
Undertakings |
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Each
of the Principal Shareholders hereby severally undertakes to the
Company, from the time when either of them becomes a Controlling
Shareholder pursuant to the Rights Issue,
that: |
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(a) |
he shall exercise, or procure
the exercise of, the voting rights in the Company attributable to his
Holding so as to ensure that the Company and/or the Group is capable at
all times of carrying on its business independently of him and/or his
Associates; |
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(b) |
all
transactions and relationships between him and/or any entity interested
in his Holding and/or his Associates and the Group are conducted at
arm's length and on a basis which is at least as beneficial to
the Company as a normal commercial basis; |
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(c) |
he will abstain, or procure the
abstention, from voting the Stock Units attributable to his Holding in
general meetings of the Company in respect of any contract or
arrangement in which, in the reasonable opinion of the Independent
Board, he has a material interest; |
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(d) |
he will not exercise, or procure the
exercise of, the voting rights in the Company attributable to his
Holding in favour of any amendment to the Articles which would be
inconsistent with, or in violation of, the terms of this Agreement;
and |
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(e) |
he will procure that, within
seven days of becoming aware of a significant acquisition opportunity
of a non-publicly quoted company in the luxury crystal and ceramics
businesses, the Company will be provided with notice of that investment
opportunity and he and his Associates will not pursue such acquisition
opportunity if within a period of five business days the Company
notifies him of its intention to take up such acquisition
opportunity. |
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| 4. |
Director Conflicts |
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Each of the Principal Shareholders and the
Company hereby severally undertakes to use all reasonable endeavours to
procure that during the term of this
Agreement: |
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(a) |
in respect of any Board
resolution relating to any transaction between any member of the Group
and a Principal Shareholder, no member of the Board may exercise a vote
if he/she: |
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(i) |
is a Current
Relationship Director connected with that Principal
Shareholder; |
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(ii) |
is connected to that
Principal Shareholder within the meaning of Section 26 of the Companies
Xxx 0000 (as amended by Section 76 of the Company Law Enforcement Act
2001); or |
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(iii) |
has a significant and
direct business relationship with that Principal Shareholder which, in
the reasonable opinion of the Independent Board (excluding those
members who fall within sub-paragraph (i) or (ii) and the director who
has such relationship), would materially interfere with the exercise by
him/her of independent judgement on such matter; and |
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(b) |
the requirements of the Listing Rules
(if any) in respect of Controlling Shareholders, insofar as they relate
to him as Principal Shareholder, are complied
with. |
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| 5. |
Enforcement |
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Each of the Principal Shareholders and the
Company agree severally that, if at any time hereafter it proves
necessary to enforce any of the provisions of this Agreement, the
decision as to any such enforcement shall be taken at a meeting of the
Board (or a committee of the Board) comprised solely, in either case,
of Independent
Directors. |
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| 6. |
Termination |
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(a) |
The
provisions of this Agreement shall terminate, without the need for any
further or other action: |
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(i) |
in
relation to a Principal Shareholder, if he ceases to be a Controlling
Shareholder; or |
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(ii) |
if the Company
ceases to be admitted to the Official Lists of the Irish Stock Exchange
and the UKLA. |
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(b) |
The Company shall be
entitled to terminate this Agreement
if: |
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(i) |
at any time during the term of
this Agreement the Listing Rules are amended so as to obviate the
necessity for this Agreement; or |
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(ii) |
it is in the
best interests of the Company to do so. |
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| 7. |
Modification |
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No
modification of any provision of this Agreement shall be binding unless
the same shall be evidenced in writing duly executed by or on behalf of
each of the parties
hereto. |
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| 8. |
Severability |
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If at any time any one or more of the provisions
of this Agreement or any part thereof is or becomes invalid, illegal or
unenforceable in any respect under any law, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired thereby and the parties agree that, in such
circumstances, full effect shall be given to such provision in the
reduced or amended form. |
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| 9. |
Counterparts |
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This Agreement may be executed in any number of
counterparts, each of which when executed and delivered shall
constitute an original and all such counterparts together shall
constitute one and the same
instrument. |
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| 10. |
Construction |
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(a) |
Any
reference to any provision of any legislation shall include any
modification, re-enactment or extension thereof. Any reference to any
provision of any legislation shall be a reference to legislation of the
Republic of Ireland unless the context clearly indicates the
contrary. |
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(b) |
Words such as
"hereunder",
"hereto", "hereof"
and "herein" and other words commencing with
"here" shall, unless the context clearly
indicates to the contrary, refer to the whole of this Agreement and not
to any particular clause or paragraph
thereof. |
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(c) |
Save as otherwise provided
herein, any reference to a clause, paragraph or sub-paragraph shall be
a reference to a clause, paragraph or sub-paragraph, as the case may
be, of this Agreement and any reference in a clause or paragraph to a
paragraph or sub-paragraph shall be a reference to a paragraph or
sub-paragraph of the clause or paragraph in which the reference is
contained, unless it appears from the context that a reference to some
other provision is intended. |
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(d) |
Except
where the context otherwise requires, words denoting the singular
include the plural and vice versa, words denoting any one gender
include all genders and words denoting persons include corporations and
vice versa. |
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| 11. |
Captions |
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The captions to the clauses of this Agreement
are inserted for convenience of reference only and shall not be
considered a part of or affect the construction or interpretation of
this Agreement. |
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| 12. |
Governing Law |
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This Agreement shall in all respects (including
the formation thereof and performance thereunder) be governed by and
construed in accordance with the laws of
Ireland. |
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| 13. |
Notice |
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(a) |
Any
notice or other communication required or permitted to be given or made
hereunder to a party hereto shall be delivered or sent by letter to the
address listed after his or its name herein or to such other address as
such party hereto may from time to time notify to the other parties
hereto in writing in accordance with the provisions
hereof. |
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(b) |
Any notice or
other communication required or permitted to be given or made hereunder
shall be validly given or made if delivered personally or despatched by
prepaid internationally recognised courier service or by prepaid letter
post (airmail, if to an address outside the country of the sender)
addressed as aforesaid and shall be deemed to be given or
made: |
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(i) |
if delivered by hand or by
courier - at the time of delivery;
or |
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(ii) |
if sent by post – one
hundred and twenty hours after the same shall have been
posted. |
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| 14. |
Conflict or Inconsistency |
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In the case of any conflict or inconsistency
between the provisions of this Agreement and the provisions of the
Articles, the provisions of this Agreement shall prevail. |
IN WITNESS WHEREOF this Agreement has been entered into the
day and year first herein written.
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SIGNED,
SEALED AND DELIVERED
by the said XXX XXXXXXX X'XXXXXX
in
the presence
of: |
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Xxx
X. Xxxxxxx
Duly
authorised Attorney for
Xxx Xxxxxxx X'Xxxxxx |
Xxxxx Xxxxxxx
Solicitor
00 Xxxxxxx
Xxxxxx
Xxxxxx 0 |
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Xxxxx
Xxxxxx
Witness |
SIGNED, SEALED AND DELIVERED
by the said XX. XXXXX XXXX
XXXXXXXXXX
in the presence of: |
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Xxx X.
Xxxxxxx
Duly
authorised Attorney for
Xxxxx Xxxx Xxxxxxxxxx |
Xxxxx Xxxxxxx
Solicitor
00 Xxxxxxx
Xxxxxx
Xxxxxx 0 |
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Xxxxx
Xxxxxxx
Witness |
PRESENT when the common seal of WATERFORD WEDGWOOD PLC
was
affixed hereto: |
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Xxxxxxx
X'Xxxxxxxx
Director |
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Xxxxxxx
Xxxxxxx
Director/Secretary |
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WF-433614-v7:exv
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