Exhibit
4.8
J & E DAVY
(AS SPONSOR)
XXXXXXXXXX HOLDINGS LIMITED
AND
WATERFORD WEDGWOOD PLC
RIGHTS ISSUE UNDERWRITING
AGREEMENT
DATED 20 June
2005
TABLE OF CONTENTS
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| 1. INTERPRETATION |
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3 |
| 2. CONDITIONS |
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9 |
| 3. APPOINTMENTS |
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11 |
| 4. REGISTRATION AND
APPLICATION |
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11 |
| 5. ALLOTMENT |
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12 |
| 6. SPONSOR / UNDERWRITER
OBLIGATIONS |
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14 |
| 7. PAYMENT |
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16 |
| 8. SETTLEMENT |
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17 |
| 9. FEES, COMMISSIONS AND
EXPENSES |
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17 |
| 10. WARRANTIES AND
UNDERTAKINGS |
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19 |
| 11. RELEASE AND
INDEMNITY |
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21 |
| 12. TERMINATION |
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23 |
| 13. CONTINUING OBLIGATIONS AND
CONSENTS |
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24 |
| 14. ANNOUNCEMENTS
AND INFORMATION |
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25 |
| 15. GENERAL |
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25 |
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THIS
AGREEMENT is made on 20 June 2005
BETWEEN:
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| (1) |
J & E DAVY, an unlimited company
registered in Ireland under number 106680, having its registered office
at Davy House, 00 Xxxxxx Xxxxxx, Xxxxxx 0
("Sponsor"); |
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| (2) |
XXXXXXXXXX HOLDINGS LIMITED, an
International Business Company registered in the British Virgin Islands
under number 458528, having its registered office at Trident Xxxxxxxx,
PO Box 146, Road Town, Tortola, British Virgin Islands
("Xxxxxxxxxx"); and |
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| (3) |
WATERFORD WEDGWOOD PLC, a public
limited company registered in Ireland under number 11861, having its
registered office at Kilbarry, Waterford (the
"Company"). |
WHEREAS:
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| (A) |
The Company is a public limited company
incorporated in Ireland under number 11861 and 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. |
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| (B) |
The Company proposes to raise up to
€101,000,000 (before commissions and expenses) by means of
the Rights Issue at the Price and on the terms to be set out in the
Prospectus and the PALs. |
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| (C) |
Xxxxxxxxxx
(the "Underwriter") has agreed to underwrite
the Rights Issue at the Price on the terms and subject to the
conditions of this Agreement and on the terms and conditions which will
be contained in the Rights Issue Documents. |
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| (D) |
Sponsor has agreed to sponsor the Rights
Issue on the terms and subject to the conditions of this Agreement and
on the terms and conditions which will be contained in the Rights Issue
Documents. |
IT IS AGREED as follows:
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| 1. |
INTERPRETATION |
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| 1.1 |
Definitions |
In
this Agreement, including the Schedules, the following words and
expressions shall have the meanings ascribed to them below:
"2004 Rights Issue"
means the 5 for 3 rights issue of 1,661,645,381 Stock Units as
detailed in the listing particulars document dated 15 December 2004
issued to Stockholders;
"Accounts"
means the Group's reported audited financial statements as at or
for the 12 month period ended on the Accounts Date (being the
Group's last reported audited financial statements);
"Accounts Date"
means 31 March 2005;
"Admission"
means the admission of all of the Rights Issue Units, nil paid, to the
official list of the Irish Stock Exchange and the official list
maintained by the UK Listing Authority and to trading on the main
markets for listed securities of the Irish Stock Exchange and the
London Stock Exchange becoming effective in accordance with the Listing
Rules and, in relation only to admission to trading of such units on
the London Stock Exchange, the Admission and Disclosure Standards of
the London Stock Exchange from time to time;
"Admission Fully
Paid" means admission of all the Rights Issue Units
fully paid to trading on the main markets for listed securities of the
Irish Stock Exchange and the London Stock Exchange;
"Application"
means the applications for Admission to be made by Sponsor on behalf of
the Company;
"Xxxxxxxxxx
Relevant Persons" or "Underwriter
Relevant Persons" means Xxxxxxxxxx and (a) Xxx Xxxxxxx
X'Xxxxxx, Xx Xxxxx Xxxx Xxxxxxxxxx and the
X'Xxxxxx/Goulandris Interests; (b) each
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undertaking which is, on or at any time after
the date of this Agreement, a subsidiary undertaking or parent
undertaking of Xxxxxxxxxx or a subsidiary undertaking of a parent
undertaking of Xxxxxxxxxx or any of the X'Xxxxxx/Goulandris
Interests; and (c) a person who is, on or at any time after the date of
this Agreement, a director, officer or employee of Xxxxxxxxxx or an
undertaking specified in sub-paragraph (a) or (b) of this
definition;
"Board" means
the board of directors of the Company from time to time;
"Board
Resolutions" means the resolutions of the Board to
approve this Agreement and its execution and of the Board and the board
of directors of Waterford Wedgwood UK to approve the Rights Issue
Documents and to authorise (where required) their publication;
"Business Day"
means any day (other than a Saturday or Sunday) on which lending banks
in Dublin and London are open for business;
"Closing Date"
means the last date for acceptance and payment in full under the Rights
Issue;
"Companies
Acts" means the Companies Acts 1963 to 2003;
"Company's
Solicitors" means Xxxxxxx Xxx, Xxxxxxxxxx Xxxxx,
Xxxxxx Xxxxx, Xxxxxx 0;
"Concert Party"
means Xxxxxxxxxx, the X'Xxxxxx/Goulandris Interests, Xxx Xxxxxxx
X'Xxxxxx, Xx Xxxxx Xxxx Xxxxxxxxxx, the directors of Xxxxxxxxxx
and any spouse, parent, sibling or child of any of the foregoing and a
reference to a "member of the Concert Party"
means any one of those persons;
"Conditions"
means the conditions set out in Clause 2.1;
"CREST" means
the relevant system for the paperless settlement of trades and the
holding, of uncertificated securities operated by CRESTCo in accordance
with the CREST Regulations;
"CRESTCo" means
CRESTCo Limited (the operator of CREST);
"CREST member"
means a person who has been admitted by CRESTCo as a system- member (as
defined in the CREST Regulations);
"CREST
Regulations" means the Companies Xxx 0000
(Uncertificated Securities) Regulations 1996 (SI No 68/1996) and the UK
Uncertificated Securities Regulations 2001 (SI 2001/3755);
"CREST
participant" means a person who is, in relation to
CREST, a system-participant (as defined in the CREST Regulations);
"Davy Relevant
Persons" means Sponsor and (a) each undertaking which
is, on or at any time after the date of this Agreement, a subsidiary
undertaking or parent undertaking of Sponsor or a subsidiary
undertaking of a parent undertaking of Sponsor (including for the
avoidance of doubt, Davy Corporate Finance Limited); and (b) each
person who is, on or at any time after the date of this Agreement, a
director, officer or employee of Sponsor or an undertaking specified in
sub paragraph (a) of this definition;
"Directive"
means European Parliament and Council Directive 2003/71/EC and any
amending legislation in effect prior to the date of Admission Fully
Paid;
"Directors"
means all of the directors of the Company;
"Employee Participation
Schemes" means the 1995 Irish Profit Sharing Scheme,
the Employee Share Ownership Plan and the Share Incentive Plan
2002;
"Enablement
Letter" means the letter in the agreed form from the
Company to CRESTCo confirming that the conditions for admission of the
Nil Paid Rights and Fully Paid Rights to CREST have been satisfied;
"Engagement
Letter" means the letter from Davy Corporate Finance
Limited to the Company dated 30 May 2005 confirming the scope of the
engagement by the Company of Davy Corporate Finance Limited and Sponsor
(in the latter's capacity as sponsor of the Rights Issue under
the Listing Rules);
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"Extraordinary
General Meeting" means the extraordinary general
meeting of the Company to be held no later than the day prior to the
Posting Date for the purpose of passing the Increase/Authorisation
Resolution and the Waiver Resolution or any adjournment of such
meeting;
"Form of
Proxy" means the form of proxy in connection with the
Extraordinary General Meeting;
"Fully Paid
Rights" means fully paid rights to acquire Rights
Issue Units;
"FSMA" means
the Financial Services and Markets Xxx 0000 of the United Kingdom and
any amending legislation in effect prior to the date of Admission Fully
Paid;
"Group" means
the Company and the Subsidiary Undertakings and "member of
the Group" or "Group Company"
shall mean any one of them;
"Income Shares"
means non-voting shares of nominal value Stg 1p each in the capital of
Waterford Wedgwood UK which, when held by holders who have given a
dividend election which remains in force in relation to Ordinary
Shares, entitle holders of Stock Units to elect to receive dividends
paid from UK sourced profits;
"Increase/Authorisation
Resolution" means the ordinary resolution(s) of the
holders of Ordinary Shares to increase the authorised share capital of
the Company and to grant the Board authority to allot and issue a
sufficient number of Ordinary Shares for the purposes of the Rights
Issue and the special resolution to disapply applicable pre- emption
rights so as to enable the Rights Issue to be made, in each case to be
proposed at the Extraordinary General Meeting and contained in the
notice of meeting convening the Extraordinary General Meeting;
"Independent
Directors" means all of the Directors except for Xxx
Xxxxxxx X'Xxxxxx, Xx Xxxxx Xxxx Xxxxxxxxxx, Lady X'Xxxxxx
and Xx Xxxx X'Xxxxxx, Jnr and any other Director who is directed
by any of the Irish Stock Exchange, the UKLA or the Panel to abstain
from participating in the recommendation of the Waiver Resolution;
"Independent
Shareholders" means all holders of Ordinary Shares
other than a holder of Ordinary Shares who is a member of the Concert
Party;
"Irish Stock
Exchange" means The Irish Stock Exchange Limited;
"Listing Rules"
means the listing rules of the Irish Stock Exchange and/or, where
appropriate, the listing rules of the UK Listing Authority, as such
rules may be amended prior to Admission;
"London Stock
Exchange" means the London Stock Exchange plc;
"Long Stop
Date" means 30 September 2005 or such other date as
the Company, the Underwriter and Sponsor may agree in writing;
"member account
ID" means the identification code or number attached
to any member account in CREST;
"Nil Paid
Rights" means nil paid rights to subscribe for Rights
Issue Units;
"Official
List" means the official list of the Irish Stock
Exchange (and/or, as appropriate, the official list maintained by the
UK Listing Authority);
"Ordinary
Shares" means ordinary shares of nominal value
€0.06 each in the capital of the Company;
"X'Xxxxxx/Goulandris
Interests" means the holders of Stock Units in which
(i) Xxx Xxxxxxx X'Xxxxxx has an interest, being currently
Stoneworth Investment Limited, Albany Hill Limited, and Indexia
Holdings Limited who hold, in aggregate, 530,974,324 Stock Units at the
date of this Agreement; and (ii) Xx Xxxxx Xxxx Xxxxxxxxxx has an
interest, being currently Stoneworth Investment Limited, Albany Hill
Limited, Araquipa International Limited and Cressborough Holdings
Limited who hold, in aggregate, 651,935,092 Stock Units at the date of
this Agreement. At the date of this Agreement, due to common interests,
Xxx Xxxxxxx X'Xxxxxx and Xx Xxxxx Xxxx Xxxxxxxxxx are in
aggregate interested in 654,212,329 Stock Units through the
X'Xxxxxx/Goulandris Interests;
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"PAL"
means a renounceable provisional allotment letter in the agreed form to
be issued in connection with the Rights Issue by the Company to certain
Qualifying Non CREST Stockholders in respect of the Nil Paid
Rights;
"Panel" means
the Irish Takeover Panel;
"Participant
ID" means the identification code or membership number
used in CREST to identify a particular CREST member or other CREST
participant;
"Posting
Date" means the date on which the Company publishes
the Prospectus and despatches the PALs being not later than 31 August
2005 or such other date as the Company, the Underwriter and Sponsor may
agree in writing;
"Press
Release" means the press release, in the agreed form,
giving details, inter alia, of the Rights Issue;
"Price" means
€0.06 per Rights Issue Unit;
"Prospectus"
means the prospectus document 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, in a form approved by Sponsor
in accordance with Clause 2.2, which will contain an unqualified
statement to the effect that, taking into account existing financing
facilities and the proceeds of the Rights Issue, the working capital
available to the Group is sufficient for its present requirements, that
is for at least the next 12 months following the Posting Date;
"Qualifying CREST
Stockholder" means a Qualifying Stockholder whose
Ordinary Shares on the register of members of the Company and whose
Income Shares on the register of members of Waterford Wedgwood UK are,
in each case, in uncertificated form;
"Qualifying Non-CREST
Stockholder" means a Qualifying Stockholder other than
a Qualifying CREST Stockholder;
"Qualifying
Stockholder" means a holder of Ordinary Shares on the
register of members of the Company and a holder of Income Shares on the
register of members of Waterford Wedgwood UK, in each case on the
Record Date;
"Record
Date" means 6.00 pm on the fifth Business Day before
the Posting Date or such other date as the Company, the Underwriter and
Sponsor may agree in writing;
"Registrars"
and/or "Receiving Agent" means Capita
Corporate Registrars plc, Xxxx 0, Xxxxx Xxxxxx Xxxxxxxx Xxxx, Xxxxx
Xxxxxx, Xxxxxx 0;
"Regulations"
means the European Communities (Stock Exchange) Regulations 1984 and
the European Communities (Transferable Securities and Stock Exchange)
Regulations 1992 or any regulations issued in substitution therefor
pursuant to Directive 2003/71/EC of the European Parliament and of the
Council of the European Union of 4 November 2003;
"Resolutions"
means any resolutions required to be passed at an extraordinary general
meeting of Waterford Wedgwood UK in order to enable the issue of Income
Shares by that company under the Rights Issue;
"Restricted
Jurisdiction" means the United States of America,
Canada, Australia, Japan and any other territory or jurisdiction where
the posting of the Prospectus and/or the PALs would constitute a breach
of local law or regulation and where to avoid such breach the steps
required to be taken by the Company would be unduly onerous;
"Rights Issue"
means the proposed issue of Rights Issue Units in accordance with this
Agreement and the Rights Issue Documents by way of rights to Qualifying
Stockholders at the Price on the basis of 7 Rights Issue Units for
every 11 Stock Units held at the close of business on the Record Date
and otherwise on the terms and subject to the conditions set out or
referred to in the Prospectus and the PAL;
"Rights Issue
Documents" means the Press Release, the Prospectus
(and any supplementary listing particulars or prospectus issued in
accordance with Clause 4.1), the Form of Proxy and the PAL;
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"Rights
Issue Units" means the 1,691,857,115 Stock Units to be
allotted pursuant to the Rights Issue;
"Senior
Facilities" means the facilities agreement dated 30
September 2004 between, amongst others, the Company and Burdale
Financial Limited as amended, varied or supplemented from time to
time;
"Share Option
Schemes" means the Group's share option schemes
comprising the Executive Share Option Scheme 1995, the Group Share
Option Scheme 1995, the Approved Group Share Option Scheme 1996, the
Savings Related Share Option Scheme 1995 and the Irish and
International Savings Related Share Option Scheme 1995;
"Stock Account"
means an account within a member account in CREST to which a holding of
a particular share or other security in CREST is credited;
"Stock
Exchanges" means the Irish Stock Exchange and the
London Stock Exchange;
"Stockholders"
means holders of Stock Units;
"Stock Unit"
means one Ordinary Share in respect of which the holder has made or is
entitled to make a dividend election in accordance with the provisions
of the Company's articles of association and one Income Share
held by the same person with the same designation which ranks for
dividends (if any) on the Income Shares when such a dividend election
is in force;
"Subsidiary
Undertakings" means all subsidiaries and subsidiary
undertakings of the Company, including the companies listed in the
First Schedule or any one or more of them;
"uncertificated"
or "in an uncertificated form" means
Stock Units recorded on the registers of members of the Company and
Waterford Wedgwood UK as being held in uncertificated form in CREST and
title to which, by virtue of the CREST Regulations, may be transferred
by means of an instruction issued in accordance with the rules of
CREST;
"UK Listing
Authority" or "UKLA"
means the UK Financial Services Authority acting in its capacity as the
competent authority for the purposes of Part VI of FSMA;
"VAT" means
value added tax;
"Verification
Notes" means the questions to be prepared by the
Company's Solicitors to verify statements in the Prospectus and
the answers to such questions in a form satisfactory to Sponsor acting
reasonably;
"Waiver" means
a waiver of the obligation of the Concert Party or any member of it to
make a general offer for the balance of the issued share capital of the
Company under Rule 9.1 of the Irish Takeover Panel Xxx 0000, Takeover
Rules 2001 granted by the Panel conditional on the approval of the
Independent Shareholders at an extraordinary general meeting and with
no other conditions attaching which would materially constrain or
impose obligations on any member of the Concert Party with regard to
the acquisition, disposal or exercise of rights attaching to any Stock
Units (other than any conditions which reflect (but are no more onerous
than) any legal or regulatory provision or constraint by which such
person would be bound apart from the waiver);
"Waiver
Resolution" means the ordinary resolution relating to
the grant of approval of the Independent Shareholders referred to in
the definition of the term "Waiver" above to
be proposed at the Extraordinary General Meeting and contained in the
notice of meeting convening the Extraordinary General Meeting;
"Warranties"
means (a) in respect of Sponsor, the warranties, agreements,
indemnities and representations expressed to be for the benefit of
Sponsor set out in Clause 10 and the warranties and representations set
out in Parts I, II and III of the Third Schedule and (b) in respect of
the Underwriter, the warranties, agreements, indemnities and
representations expressed to be for the benefit of the Underwriter set
out in Clause 10 and the warranties and representations set out in
Parts IV, V and VI of the Third Schedule;
"Waterford Wedgwood
UK" means Waterford Wedgwood U.K. plc, a subsidiary of
the Company incorporated in England and Wales under number 2058427;
and
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"Working
Capital Estimates" means the working capital estimates
to be prepared by the Company for the Group for the 18 month period
following the Posting Date.
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| 1.2 |
Interpretation |
Where used in this Agreement, the terms
"subsidiary", "financial
year" and "connected persons"
shall have the meanings respectively attributed to them by the
Companies Acts at the date of this Agreement and the terms
"subsidiary undertaking" and
"parent undertaking" shall have the meanings
respectively attributed to them by the European Community (Companies:
Group Accounts) Regulations 1992.
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| 1.3 |
Legislation |
A
reference to any statutory provision in this Agreement:
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(a) |
includes any order,
instrument, regulation, permission and direction made or issued under
such statutory provision or deriving validity from it; |
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(b) |
shall be construed as a
reference to such statutory provision as in force at the date of this
Agreement (including, for the avoidance of doubt, any amendments made
to such statutory provision that are in force at the date of this
Agreement); and |
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(c) |
shall also be construed
as a reference to any statutory provision of which such statutory
provision is a re enactment or consolidation. |
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| 1.4 |
Headings |
The
headings in this Agreement are for convenience only and shall not
affect its meaning.
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| 1.5 |
Reference to
Clauses, etc. |
A reference to a Clause or
sub-Clause, Schedule, paragraph or sub-paragraph is (unless otherwise
stated) respectively to a Clause or sub-Clause of, or a Schedule to
this Agreement or to a paragraph or sub-paragraph of the relevant
Schedule or this Agreement. The Schedules form part of this
Agreement.
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| 1.6 |
Clauses incorporating
gender |
Words importing one gender shall
(where appropriate) include any other gender and words importing the
singular shall (where appropriate) include the plural and vice
versa.
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| 1.7 |
Agreed form |
A document expressed to be "in
agreed form" means a document, the terms, conditions and
form of which have been agreed by the parties to this Agreement prior
to the despatch of that document and a copy of which has been
identified as such and initialled by or on behalf of the parties to
this Agreement (subject to any further amendments as the parties to
this Agreement may subsequently agree).
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| 1.8 |
Material |
In
this Agreement, unless the context otherwise requires, a reference to
the word "material" means material in the
context of the Rights Issue in the reasonable opinion of Sponsor and/or
the Underwriter, as appropriate, and
"materially" shall be construed
accordingly.
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| 1.9 |
Best of knowledge |
Unless expressly stated otherwise, where any
statement is qualified by the expression "to the best of
the knowledge, information and belief of the Company" or
"so far as the Company is aware", or any
similar expression, unless otherwise stated, there shall be deemed to
be included after such statement the words "after due
consideration and having made proper enquiries".
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| 2. |
CONDITIONS |
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| 2.1 |
Conditions |
The obligations of Sponsor and
of the Underwriter pursuant to this Agreement are conditional upon the
fulfilment or waiver (in the manner provided for below) of each of the
following conditions by not later than the time or date specified
therein (or such later date as the Company, Sponsor and the Underwriter
may agree in writing but not being later than 8.30 am on the Long Stop
Date):
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(a) |
the
grant of the Waiver prior to the posting of the notice convening the
Extraordinary General Meeting; |
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(b) |
the
Independent Shareholders passing the Waiver Resolution and the
Company's shareholders passing the Increase/Authorisation
Resolution, in each case without amendment, at the Extraordinary
General Meeting prior to the Prospectus and the PALs being despatched
in fulfilment of the Condition in Clause 2.1(f); |
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(c) |
the holders of
the ordinary shares in Waterford Wedgwood UK passing the Resolutions
(without amendment) on or before the Posting Date; |
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(d) |
the
Prospectus being stamped and approved by the Irish Stock Exchange or
otherwise as required by the Regulations and a copy thereof, together
with such consents and material contracts as may be required by the
Regulations, being filed with the Registrar of Companies in Ireland and
written confirmation of such filing being made to the Company, Sponsor
and the Underwriter by the Company's Solicitors, in each case on
or before the Posting Date; |
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(e) |
the
Prospectus being stamped and approved by the applicable authority in
the United Kingdom and a copy thereof, as required by applicable law in
England and Wales, being delivered for registration to the Registrar of
Companies in England and Wales and written confirmation of such
delivery being made to the Company, Sponsor and the Underwriter by the
Company's Solicitors, in each case on or before the Posting
Date; |
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(f) |
the
Prospectus being despatched to certain Qualifying Stockholders, the
CREST accounts of certain Qualifying CREST Stockholders being credited
with Nil Paid Rights and the PALs being despatched to certain
Qualifying Non- CREST Stockholders, in each case on the Posting
Date; |
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(g) |
(to
the extent that the same has not already occurred) the matters referred
to in: |
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(i) |
this
Agreement (and in particular, the matters referred to in Clauses 3, 4
and 5.l(a) below but excluding those referred to in Clause 5.l(b)
below); and |
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(ii) |
Clause 5.l(b)
below, |
being duly approved at a
meeting of the Board (and, where appropriate, by the board of directors
of Waterford Wedgwood UK) or a duly established and authorised
committee thereof (or, as the case may be, of the board of directors of
Waterford Wedgwood UK) in each case on or before the Posting Date;
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(h) |
the
submission to the Stock Exchanges and/or the UKLA of any advertisement
or announcement (including, without limitation, the Press Release) or
other requisite information relating to the Rights Issue and/or the
Application, and the Stock Exchanges and/or the UKLA approving the
contents thereof or authorising the issue thereof without such approval
by no later than the proposed date for release or issue thereof; |
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(i) |
there having
been delivered to Sponsor: |
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(i) |
simultaneously with
the execution of this Agreement, the documents listed in Part I of the
Second Schedule; |
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(ii) |
on or prior to the
Posting Date, the documents listed in Part II of the Second Schedule;
and |
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(iii) |
on the
Closing Date, the document described in Part III of the Second
Schedule; |
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(j) |
there
having been delivered to the Underwriter: |
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(i) |
simultaneously with the
execution of this Agreement, the documents listed in Part IV of the
Second Schedule; |
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(ii) |
on or
prior to the Posting Date, the documents listed in Part V of the Second
Schedule; and |
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(iii) |
on the
Closing Date, the document described in Part VI of the Second
Schedule; |
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(k) |
Admission
occurring and becoming effective not later than 8.00 am on the First
Business Day after the Posting Date; |
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(l) |
any supplementary
Prospectus which may be required pursuant to the Regulations or the
applicable law in England and Wales being approved by the Irish Stock
Exchange and by the applicable authority in the UK and published in
accordance with the Listing Rules and the applicable law in England and
Wales before Admission; |
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(m) |
the Company having
complied in all material respects with its obligations under this
Agreement which are required to be performed prior to Admission; |
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(n) |
satisfaction of all the
conditions (other than Admission) to enable the Nil Paid Rights and the
Fully Paid Rights to be admitted as separate participating securities
(as defined in the CREST Regulations) in CREST on or before the Posting
Date, and |
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(o) |
no event
having occurred or circumstances having arisen which constitutes an
Event of Default (as defined in the Senior Facilities) or Default (as
defined in the Senior Facilities) which is continuing and has not been
remedied or waived; |
provided that any of the
above conditions may be waived in whole or in part by agreement between
Sponsor and the Underwriter, in their absolute discretion, by notice in
writing to the Company.
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| 2.2 |
Fulfilment of
Conditions |
The Company undertakes to use
all reasonable endeavours to produce the Prospectus, the PALs and other
documents required in connection with the Rights Issue and the
Extraordinary General Meeting, in each case as soon as reasonably
practicable after the date of this Agreement. The Company agrees to
consult with Sponsor and the Underwriter in relation to all of the
aforementioned documents and any proposed public announcement relating
to the Rights Issue and to incorporate such reasonable comments as
Sponsor or the Underwriter requests and not to despatch the Prospectus
without its prior approval by Sponsor and the Underwriter, such
approval not to be unreasonably withheld or delayed. The Company
undertakes to use its reasonable endeavours, at the Company's own
expense, to fulfil or procure the fulfilment of the Conditions by the
times and dates specified therein (or such later time as Sponsor, the
Underwriter and the Company may agree in writing pursuant to Clause
2.1) and Sponsor (and, to the extent applicable, the Underwriter) shall
provide all reasonable assistance in connection therewith.
|
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| 2.3 |
Other information |
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|
(a) |
The Company shall
deliver to Sponsor all such other information and documents as Sponsor
may reasonably require in connection with the fulfilment and observance
of this Agreement and the implementation of the Rights Issue. |
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|
(b) |
The Company shall
deliver to the Underwriter all such other information and documents as
the Underwriter may reasonably require in connection with the
fulfilment and observance of this Agreement and the implementation of
the Rights Issue. |
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|
(c) |
As soon as reasonably
practicable after the Extraordinary General Meeting, the Company shall
deliver to Sponsor and to the Underwriter two copies of the Waiver
Resolution and the Increase/Authorisation Resolution certified by the
company secretary of the Company as having been duly passed. The
Company shall deliver to Sponsor and to the Underwriter two copies of
the Resolutions certified by the company secretary of Waterford
Wedgwood UK as having been duly passed as soon as reasonably
practicable after the close of the meeting at which such resolutions
were passed. |
10
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| 2.4 |
Non-fulfilment
of Conditions |
If any Condition becomes
incapable of being fulfilled (and is not waived by Sponsor and the
Underwriter) or if any Condition is not fulfilled (or waived by Sponsor
and the Underwriter), in each case on or before the time or date set
for its fulfilment (or such later time as Sponsor, the Underwriter and
the Company may agree in writing pursuant to Clause 2.1) then
Sponsor's and the Underwriter's obligations under this
Agreement shall terminate immediately and:
|
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|
(a) |
the Company shall
forthwith pay to the Underwriter the commissions due to it in
accordance with Clause 9.1; |
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(b) |
the Company shall
forthwith pay to Sponsor and the Underwriter all costs, expenses and
disbursements of the nature referred to in Clause 9.2; and |
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|
(c) |
none of Sponsor, the
Underwriter or the Company shall have any claim whatsoever against the
other under or in respect of this Agreement except in respect of any
breach of the provisions of this Agreement which has occurred before
then, except that the provisions of Clauses 10, 11 and 14 will remain
in full force and effect; |
provided however
that this Agreement shall not be capable of termination after
Admission.
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| 3. |
APPOINTMENTS |
|
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| 3.1 |
The Company irrevocably appoints Sponsor to
act as its agent for the purpose of: |
|
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|
|
(a) |
procuring subscribers
in accordance with Clause 6.2 to subscribe for the Rights Issue Units
representing the aggregate of fractional entitlements; and |
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|
(b) |
procuring subscribers
in accordance with Clause 6.6 to subscribe for Rights Issue Units not
taken up; |
in accordance with the terms and
conditions set out in the Rights Issue Documents and this
Agreement.
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| 3.2 |
The Company hereby
irrevocably and unconditionally confers on Sponsor and the Underwriter
all powers, authorities and discretions which are necessary for, or
reasonably incidental to, the Rights Issue (including, without
limitation, the giving of such instructions to the Registrars as may in
the reasonable opinion of Sponsor or the Underwriter be necessary or
desirable in connection with the Rights Issue and/or the Application)
and hereby agrees to ratify and confirm everything which Sponsor or the
Underwriter shall lawfully and properly do in the exercise of such
appointment, powers, authorities and discretions. |
|
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| 4. |
REGISTRATION AND APPLICATION |
|
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| 4.1 |
Significant change |
The Company agrees with Sponsor and the
Underwriter that every significant change, significant new matter or
significant inaccuracy in the Prospectus which arises or becomes
apparent between the date the Prospectus are registered and the date of
Admission Fully Paid shall be dealt with in accordance with applicable
law and, in particular, should the need arise and in conjunction with
Sponsor for the purpose of their obligations under this Agreement, a
supplementary prospectus and/or supplementary listing particulars will
be published as required by the applicable law. The Company undertakes
to bring to the attention of Sponsor and the Underwriter any such
matters as are referred to in this Clause of which it has knowledge
before the date of Admission Fully Paid promptly upon any such matter
coming to its attention.
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| 4.2 |
Application |
The Company undertakes to Sponsor and the
Underwriter that it will as soon as reasonably practicable make the
Application through Sponsor and that it will comply with all reasonable
requirements which the Stock Exchanges and the UK Listing Authority
shall make of it so as to enable the Application to be granted.
11
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| 4.3 |
Information |
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|
(a) |
The Company undertakes
to Sponsor and the Underwriter to provide all such information and
assistance relating to the Group or otherwise as may reasonably be
required by Sponsor or the Underwriter for the purpose of complying
with any applicable requirement of law or any applicable requirement of
the Irish Stock Exchange, the London Stock Exchange or the UK Listing
Authority in relation to the Application or the Rights Issue or its
associated transactions and documents and will do (or procure to be
done) all such things and execute (or procure to be executed) all such
documents as may be necessary or desirable in the reasonable opinion of
Sponsor or the Underwriter to be done or executed by the Company or by
its officers, employees or agents in connection with the Rights Issue
or Admission. |
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(b) |
The
Underwriter undertakes to the Company and to Sponsor to comply with
conditions attaching to the Waiver (for the avoidance of doubt,
provided such conditions are limited as outlined in the definition of
"Waiver" above). |
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| 4.4 |
Application to CRESTCo |
Prior to Admission the Company will, unless
Sponsor agrees otherwise:
|
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|
(a) |
apply to CRESTCo for
the Rights Issue Units to be admitted to CREST as participating
securities; and |
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|
(b) |
take all reasonable
steps necessary for the Rights Issue Units to become participating
securities in CREST immediately after Admission. |
|
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| 5. |
ALLOTMENT |
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| 5.1 |
Board meetings |
|
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|
(a) |
The Company shall
procure that prior to the Posting Date the Directors (and the directors
of Waterford Wedgwood UK) shall convene and hold a meeting of the Board
(and of the board of directors of Waterford Wedgwood UK) for the
purpose of considering and passing the Board Resolutions (to the extent
such resolutions (i) have not already been passed prior to the
execution of this Agreement or (ii) will be passed in accordance with
Clause 5.l(b)). |
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|
(b) |
The
Company shall procure that, following the passing of the
Increase/Authorisation Resolution and the Resolutions, and in any event
no later than the Posting Date, the Directors (and the directors of
Waterford Wedgwood UK) shall convene and hold a meeting of the Board or
a duly appointed committee thereof (and of the board of directors of
Waterford Wedgwood UK or a duly appointed committee thereof) to: |
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|
(i) |
approve the Prospectus and
authorise the despatch of the Prospectus to certain Qualifying
Stockholders and the PALs to certain Qualifying Non CREST
Stockholders; |
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|
(ii) |
provisionally allot the
Ordinary Shares and the Income Shares comprised in the Rights Issue
Units to Qualifying Stockholders by way of rights nil paid at the
Price, the entitlement of each Qualifying Stockholder to be rounded
down to the nearest whole number of Rights Issue Units; and |
|
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|
(iii) |
provisionally allot the
Ordinary Shares and the Income Shares comprised in any fractional
entitlements to Rights Issue Units nil paid in accordance with Clause
6.1 to Sponsor. |
The Company will procure that
copies of the resolutions referred to in this Clause 5.l(b), certified
by the company secretary of the Company and of Waterford Wedgwood UK
(respectively) as having been duly passed, are provided to Sponsor and
to the Underwriter as soon as reasonably practicable after being passed
and in any event prior to Admission.
12
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|
(c) |
The
Company undertakes to Sponsor and to the Underwriter not to give, or,
so far as it is within its powers, not to permit there to be given, any
direction to Sponsor, the Underwriter or the Directors, and not to take
any action, which is inconsistent with its obligations or any of the
powers or authorities conferred by it under this Agreement and, in
particular, not to create any adverse interest over the Rights Issue
Units to be allotted and issued by it pursuant to this Agreement. |
|
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|
|
(d) |
The Company undertakes
to Sponsor and to the Underwriter to procure that Waterford Wedgwood UK
shall not give, or so far as it is within its powers, not to permit to
be given, any direction to Sponsor, the Underwriter or the directors of
Waterford Wedgwood UK, and not to take any action, which is
inconsistent with its obligations or any of the powers or authorities
conferred by it under this Agreement and, in particular, not to create
any adverse interest over the Rights Issue Units to be allotted and
issued by it pursuant to this Agreement. |
|
|
| 5.2 |
Confirmation |
The Company hereby confirms that the Rights
Issue Units will, as from the date when they become Fully Paid Rights,
rank pari passu in all respects with the Stock Units then in issue and,
in particular, will, after such date, rank in full for all dividends
and other distributions declared, made and paid on the Stock Units
after the date of their allotment (nil paid).
|
|
| 5.3 |
Overseas Stockholders |
The following arrangements will apply to certain
entitlements under the Rights Issue of overseas Stockholders:
|
|
|
|
(a) |
The Rights Issue Units
have not been, and will not be, registered under the United States
Securities Act of 1933, as amended (the "US Securities
Act"), or relevant securities legislation in Canada,
Australia or Japan. Accordingly, Qualifying Stockholders who have
registered addresses in Canada, Australia, Japan or the United States
or their respective territories or possessions or any areas subject to
their respective jurisdictions ("Excluded
Holders") will not be sent a PAL unless they have first
satisfied the Company that they may take up their entitlement to Rights
Issue Units in accordance with an applicable exemption from local
securities law. |
|
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|
|
(b) |
Qualifying Stockholders
(not being Excluded Holders) with registered addresses in a Restricted
Jurisdiction will not be sent a PAL unless they have satisfied the
Company prior to the PALs being posted to them that they may subscribe
for Rights Issue Units under the terms of the Rights Issue in
accordance with an applicable exemption from local securities law. |
|
|
|
|
(c) |
Sponsor and the
Underwriter acknowledge that the Rights Issue Units have not been and
will not be registered under the US Securities Act and may not be
offered or sold within the United States or to, or for the account or
benefit of, U.S. persons except in accordance with Regulation S under
the US Securities Act ("Regulation S") or
pursuant to an exemption from the registration requirements of the US
Securities Act. Sponsor and the Underwriter agree that they will not
offer or sell the Rights Issue Units as part of their initial allotment
at any time until 40 days after the commencement of the Rights Issue
within the United States or to or for the account or benefit of U.S.
persons, except in either case in accordance with Regulation S.
Accordingly, none of Sponsor, the Underwriter or any person acting on
their behalf has engaged or will engage in any directed selling effort
in the United States with respect to the Rights Issue Units. Sponsor
and the Underwriter will send to each broker/dealer or sub-underwriters
to which it sells in reliance on Regulation S during such 40 day period
a confirmation or other notice detailing the restrictions on offers and
sales of such securities within the United States, or to or for the
account or benefit of U.S. persons. In addition, Sponsor and the
Underwriter agree that no such securities will be offered or
|
13
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|
|
sold by or on behalf of them or any
sub-underwriters in the United States except by a broker/dealer
registered under the United States Securities Exchange Act of 1934, as
amended (the "Exchange Act"), in the United
States or pursuant to a valid exemption from such requirements under
the Exchange Act. Terms used in this paragraph have the meaning given
to them by Regulation S. |
|
|
|
|
(d) |
Sponsor and the
Underwriter acknowledge that each Qualifying Stockholder who is in the
United States and who wishes to exercise a right to purchase Rights
Issue Units will be required to execute a representation letter in a
form acceptable to the Company. Such representation letter will require
the investor to represent that, among other things, it is a
"qualified institutional buyer" (as defined
in Rule 144A under the US Securities Act) and is acquiring such
securities in a transaction not involving a public offering in the
United States. |
|
|
| 6. |
SPONSOR / UNDERWRITER
OBLIGATIONS |
|
|
| 6.1 |
Fractions |
Fractions of Rights Issue Units
("fractional entitlements") will not be
provisionally allotted to Qualifying Stockholders but will be
aggregated, provisionally allotted to Sponsor and sold in accordance
with the provisions of Clause 6.2.
|
|
| 6.2 |
Subscription for fractional
entitlements |
|
|
|
|
(a) |
The
Company shall inform Sponsor of the number of Rights Issue Units
provisionally allotted to Sponsor in accordance with Clause 6.1,
representing the aggregate of fractional entitlements. Sponsor shall
use its reasonable endeavours to procure that the rights to subscribe
all or as many as is reasonably practicable of such Rights Issue Units
are sold through the Stock Exchanges nil paid at a price equal to, or
at a premium over, the expenses of sale (including any VAT thereon) as
soon as practicable but no later than by 11.00 am on the Closing Date.
Immediately after such sale takes place, the Company shall deliver to
Sponsor nil paid split provisional allotment letters in the names and
denominations required by Sponsor. Sponsor shall account to the
Receiving Agent for the net proceeds of sale (after deduction of
expenses, including any VAT thereon) of those Rights Issue Units that
have been sold and the net proceeds shall be paid to and retained for
the benefit of the Company in accordance with Clause 7.1. |
|
|
|
|
(b) |
If the rights to
subscribe for the Rights Issue Units referred to in Clause 6.2(a) have
not been sold before 11.00 am on the Closing Date, they will be dealt
with in accordance with the remaining provisions of this Clause 6. |
|
|
| 6.3 |
Procedures on the Closing Date |
If by 11.00 am on the Closing Date (or otherwise
as provided in the Prospectus) duly completed PALs in respect of all
the Rights Issue Units have been lodged (whether by Qualifying
Stockholders or by allotees pursuant to Clause 6.2 or by renouncees of
the right to accept an allotment of Rights Issue Units in accordance
with the terms of the Rights Issue Documents), accompanied by cheques
or other remittances for the Price in respect of the Rights Issue Units
the subject of such PALs (provided that such cheques or other
remittances have not been dishonoured by such time), then Sponsor and
the Underwriter shall cease to have any obligations under the following
sub-Clauses of this Clause 6. The Rights Issue Units comprised in PALs
which have been so lodged and accompanied by cheques or other
remittances for the Price in respect of the Rights Issue Units the
subject of such PALs (provided that such cheques or other remittances
have not been dishonoured by such time) are for the purposes of this
Clause 6 described as having been "taken up"
(and, accordingly, all other Rights Issue Units, including any Rights
Issue Units representing the aggregate of fractional entitlements which
are not sold as provided in Clause 6.2, are described as having been
"not taken up") provided that, if the Company
so elects, Rights Issue Units shall be deemed to have been taken up
if:
14
|
|
|
|
(a) |
PALs
and accompanying remittances are received late (the cover bearing a
legible postmark dated not later than the Business Day prior to the
Closing Date) provided that such fact is notified to Sponsor and to the
Underwriter by not later than 11.00 am on the second Business Day after
the Closing Date; or |
|
|
|
|
(b) |
a cheque or other
remittance (and whether or not such cheque or other remittance shall be
honoured) is received from an authorised person (being, in the case of
Stockholders in Ireland, an organisation or firm authorised or exempted
pursuant to the Investment Intermediaries Xxx 0000 or the Xxxxx
Xxxxxxxx Xxx 0000 and being, in the case of Stockholders in the United
Kingdom, an adviser authorised pursuant to FSMA) no later than 11.00 am
on the second Business Day after the Closing Date who identifies the
Rights Issue Units concerned and undertakes to lodge the relevant PALs
duly completed in due course. |
|
|
| 6.4 |
Notification to Sponsor and the
Underwriter |
The Company shall from time to
time, at the request of Sponsor or the Underwriter, keep Sponsor and
the Underwriter informed of the amount of Rights Issue Units
provisionally allotted which have been taken up. If, however, by 11.00
am on the Closing Date, any of the Rights Issue Units are not taken up,
then the provisional allotment of such Rights Issue Units will, subject
to an election of the Company as referred to in Clause 6.3, be deemed
to have been declined. The Company will then as soon as possible but in
any event not later than 4.00 pm on the next Business Day following the
Closing Date, procure that Sponsor and the Underwriter are notified in
writing of the number of Rights Issue Units not taken up.
|
|
| 6.5 |
Consultation in connection with proposed
notification to the Stock Exchanges |
Sponsor
and the Company shall consult as to whether the Stock Exchanges should
be notified of the number of Rights Issue Units not taken up before
Sponsor begins to procure subscribers for Rights Issue Units not taken
up pursuant to Clause 6.6.
|
|
| 6.6 |
Sponsor to
procure subscribers for the Rights Issue Units not taken up |
Sponsor will, as agent for the Company, subject
to the provisions of Clauses 6.4 and 6.5, use its reasonable endeavours
to procure subscribers as soon as possible and in any event by not
later than 3.00 pm on the third Business Day following the Closing Date
for all or as many as is reasonably practicable of the Rights Issue
Units not taken up if a price (in respect of each such Rights Issue
Unit) equal to, or at a premium over, the sum of (x) the Price and (y)
the expenses of procuring such subscribers (including any VAT thereon)
can be obtained, provided that Sponsor may at any time after 4.00 pm on
the Business Day following the Closing Date determine that it shall no
longer use its reasonable endeavours to procure subscribers in
accordance with this Clause 6.6, if, in its reasonable opinion, it is
unlikely that any such subscribers can be procured as aforesaid, in
which case it will promptly consult with the Company in relation to the
basis for such determination.
|
|
| 6.7 |
Allotment to subscribers |
Forthwith upon Sponsor notifying the Company
that any subscriber has been procured pursuant to Clause 6.6, the
Company will deliver or procure the delivery to Sponsor of duly
receipted, fully paid PALs in respect of those Rights Issue Units
and/or, to the extent so directed by Sponsor, will procure that CRESTCo
is instructed to credit to stock accounts of one or more CREST members
(identified by member account ID and participant ID by Sponsor)
entitlements to Rights Issue Units as directed by Sponsor, and will
ensure that the same are enabled for settlement as soon as practicable
after Admission Fully Paid in favour of the persons and in the
denominations required by Sponsor. Subject to the Company delivering
such duly receipted fully paid PALs and/or taking such other steps as
aforesaid, Sponsor will, not later than 3.00 pm on the fifth Business
Day following the Closing Date, account to the Company for the proceeds
received from subscribers
15
(after deduction of the expenses procuring
subscriptions, including any VAT thereon) in accordance with Clause
7.1. The Company will distribute the relevant part of the proceeds
(after deduction of the Price and of the expenses of procuring
subscriptions, including any VAT thereon) pro rata to Qualifying
Stockholders who did not take up all the Rights Issue Units
provisionally allotted to them, except that individual amounts of less
than €3.80 per holding will not be distributed but will be
retained for the benefit of the Company.
|
|
| 6.8 |
Notification to the Stock Exchanges |
Sponsor will, with the prior agreement of the
Company, on behalf of the Company, notify the Stock Exchanges and the
Underwriter by not later than 4.30 pm on the third Business Day
following the Closing Date of the amount of Rights Issue Units taken up
and that all such Rights Issue Units which have not been taken up will
be subscribed for by the Underwriter in their respective Proportions or
such other subscribers as the Underwriter procures pursuant to Clause
6.9.
|
|
| 6.9 |
Underwriting |
The Underwriter hereby undertakes on the terms,
subject to the conditions and on the basis of the information to be
contained in the Rights Issue Documents (except as regards the time for
acceptance and payment) and in reliance upon the Warranties given to
the Underwriter by the Company to procure, as agent for the Company,
subscribers for the Rights Issue Units having been not
"taken up" for the purposes of Clause 6.3 nor
subscribed for in accordance with Clause 6.7 and, in default, to
subscribe for such Rights Issue Units itself, by not later than 3.00 pm
on the fifth Business Day following the Closing Date, to procure
payment of, or pay to such accounts as may be specified by the Company,
the Price for such Rights Issue Units against delivery to it or to its
nominees or designees (as it may request) of duly receipted, fully paid
PALs in such names and in such denominations as it may require and/or,
to the extent so directed by the Underwriter, against the Company
procuring that CRESTCo is instructed to credit to stock accounts of one
or more CREST members (identified by member account ID and participant
ID by the Underwriter) entitlements to Rights Issue Units as directed
by the Underwriter, and, as soon as practicable after Admission Fully
Paid, the Company ensuring that the same are enabled for settlement in
favour of the persons and in the denominations required by the
Underwriter.
|
|
| 6.10 |
Admission |
Sponsor shall use its reasonable endeavours to
procure that Admission occurs on the first Business Day after the
Posting Date and in any event (but on a reasonable endeavours basis
only) not later than the Long Stop Date.
|
|
| 7. |
PAYMENT |
|
|
| 7.1 |
Payment of subscription monies by
Sponsor |
Sponsor shall procure the payment
for the Rights Issue Units as set out in Clause 6.2, subject to
deduction of:
|
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|
|
(a) |
the
expenses of sale referred to in Clause 6.2; |
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|
(b) |
any fees payable to
Davy Corporate Finance Limited under the Engagement Letter; and |
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|
(c) |
any expenses referred
to in Clause 9.2. |
|
|
| 7.2 |
Payment of
subscription monies by the Underwriter |
Subject to Clause 8.1, the Underwriter shall
procure the payment for the Rights Issue Units as set out in Clause
6.9, subject to deduction of the commissions payable by the Company
pursuant to Clause 9.1 and any expenses referred to in Clause 9.2.
16
|
|
| 7.3 |
Bank
account |
Payment to the Company of amounts
referred to in Clauses 7.1 and 7.2 (subject, in each case, to the
deductions referred to therein) shall be made by telegraphic transfer
to the account notified in writing to Sponsor and the Underwriter by
the Company prior to the Closing Date and such payment by Sponsor or
the Underwriter shall constitute a full discharge of Sponsor or the
Underwriter in respect of its obligations pursuant to Clauses 6, 7.1,
7.2 and 8.1.
|
|
| 8. |
SETTLEMENT |
|
|
| 8.1 |
Settlement |
Upon Admission Fully Paid, the Company will
deliver to the Underwriter, or as it may direct, duly receipted, fully
paid PALs in such names and denominations as they shall specify in
respect of the Rights Issue Units referred to in Clause 6.9 and/or, to
the extent so directed by the Underwriter, procure that CRESTCo is
instructed to credit to stock accounts of one or more CREST members
(identified by member account ID and participant ID by the Underwriter)
entitlements to Rights Issue Units as directed by the Underwriter, and
ensure that the same are enabled for settlement as soon as practicable
after Admission Fully Paid. Subject to the Company delivering such duly
receipted fully paid PALs and/or taking such other steps as aforesaid,
the Underwriter will pay or cause to be paid to the Company in
accordance with Clause 7.2 the amounts required to be paid by it as
specified in that Clause.
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|
| 8.2 |
Registration |
The Company will provide the Registrars with all
necessary authorisations and information to enable them to perform
their duties as registrars in accordance with and as contemplated by
this Agreement and the terms of the Rights Issue Documents.
|
|
| 9. |
FEES, COMMISSIONS AND EXPENSES |
|
|
| 9.1 |
Underwriting Fees |
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|
|
(a) |
In consideration of the
covenants given and the obligations assumed by them under this
Agreement, the Company will pay to the Underwriter (provided that this
Agreement is not terminated under Clause 2.4 or, in relation to the
Underwriter, under Clauses 12.2 or 12.3) a commission equal to: |
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|
|
(i) |
in respect of the first 30
day period commencing on (and including) the date of this Agreement, in
aggregate, 2.5% of the Relevant Amount, less an amount equal to
2.5% of the Xxxxxxxxxx Deductible Amount; and |
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|
|
(ii) |
for each seven days or
part of seven days commencing (if any) after the expiry of the 30 day
period referred to in sub Clause 9.l(a)(i) up to and including the Cut
Off Date (both dates inclusive), an additional commission equal to
0.125% of the Relevant Amount less an amount equal to
0.125% of the Xxxxxxxxxx Deductible Amount and less an amount
equal to 0.125% of the product (expressed in Euro) of (x) the
Price and (y) the number of Rights Issue Units then taken up other than
by the X'Xxxxxx/Goulandris Interests. |
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|
(b) |
In consideration of the
covenants given and the obligations assumed by them under this
Agreement, if this Agreement is terminated under Clauses 2.5, 12.2 or
12.3, then the Company will pay to the Underwriter a commission equal
to: |
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|
(i) |
in respect of the
first 30 day period (or any part thereof) commencing on (and including)
the date of this Agreement, 1% of the Relevant Amount less an
amount equal to 1% of the Xxxxxxxxxx Deductible Amount;
and |
17
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|
(ii) |
for
each seven days or part of seven days commencing (if any) after the
expiry of the 30 day period referred to in sub-Clause 9.l(b)(i) up to
and including the date on which this Agreement is terminated pursuant
to Clauses 2.5, 12.2 or 12.3 (both dates inclusive), an additional
commission equal to 0.125% of the Relevant Amount less an amount
equal to 0.125% of the Xxxxxxxxxx Deductible Amount and less an
amount equal to 0.125% of the product (expressed in Euro) of (x)
the Price and (y) the number of Rights Issue Units then taken up other
than by the X'Xxxxxx/Goulandris Interests. |
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|
|
(i) |
"Xxxxxxxxxx
Deductible Amount" means the product (expressed in
Euro) of (x) the Price and (y) the number of Rights Issue Units to
which the X'Xxxxxx/Goulandris Interests are, in aggregate
entitled under the terms of the Rights Issue; |
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|
(ii) |
"Relevant
Amount" means the product (expressed in Euro) of (x)
the Price and (z) the aggregate number of Rights Issue Units; and |
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|
(iii) |
the term
"Cut Off Date" means the second
Business Day following the Closing Date. |
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|
(d) |
Payments to the
Underwriter under this Clause 9 are to be made by way of the deductions
permitted by Clause 7.1 or, to the extent that there is no such
deduction, on demand by the Underwriter. |
|
|
|
|
(e) |
Out of the commissions
referred to in this Clause 9.1, the Underwriter will pay
sub-underwriting commissions (together with any VAT thereon, if
applicable), if any, in respect of the underwritten Rights Issue
Units. |
|
|
| 9.2 |
Costs |
Provided that Sponsor or, as the case may be,
the Underwriter has consulted with the Company prior to the appointment
by it of any professional adviser whose fees are to be discharged by
the Company and provided that the Company has received an estimate of
the fees, costs and expenses to be paid for such appointment prior to
the date hereof, the Company will bear all costs, charges and expenses
of, or incidental to, the satisfaction of the Conditions, the Rights
Issue, the issue of the Rights Issue Units and the arrangements
referred to in this Agreement or contemplated by this Agreement
(together with any VAT chargeable thereon), including, without
limitation, all fees and expenses payable in connection with Admission,
the Engagement Letter, all expenses of the Registrars, printing and
advertising expenses, postage and all reasonable accountancy, actuarial
and other professional fees and expenses, including Sponsor's and
the Underwriter's legal advisers' fees. The Company shall
upon receipt from Sponsor or, as the case may be, the Underwriter of
invoices and/or, without prejudice to Clause 7.1, vouchers in respect
of the same, reimburse to, or pay on behalf of, Sponsor or the
Underwriter (as the case may be) the amount of any such costs, charges
and expenses which Sponsor or the Underwriter may have paid.
|
|
| 9.3 |
VAT |
Where,
pursuant to Clauses 2, 9.1 or 9.2 a sum is payable to Sponsor or to the
Underwriter the Company shall, in addition, pay to Sponsor or the
Underwriter, as appropriate, in respect of VAT, where the payment (or
any part of it) constitutes the consideration (or any part thereof) for
any supply of services by Sponsor or the Underwriter, as appropriate,
to the Company, such amount as equals any VAT properly payable thereon.
Where a sum in respect of VAT is paid pursuant to this Clause 9.3,
Sponsor or the Underwriter, as appropriate, shall within 10 Business
Days provide the Company with an appropriate and valid tax invoice in
respect of the supply to which the payment relates, naming the Company
as the recipient of the supply.
18
|
|
| 10. |
WARRANTIES AND
UNDERTAKINGS |
|
|
| 10.1 |
Warranties |
|
|
|
|
(a) |
The Company warrants to
and agrees with Sponsor that each statement set out in Parts I and II
of the Third Schedule is true, accurate and not misleading as at the
date of this Agreement and agrees with Sponsor that each statement set
out in Parts I, II and III of the Third Schedule will be true, accurate
and not misleading as of the Posting Date by reference to the facts and
circumstances then existing and be treated as Warranties given and/or
repeated on such date. Such Warranties and agreements are given to
Sponsor solely in its capacity as sponsor. Sponsor shall not be
entitled to bring any action against the Company or any member of the
Group under this Clause 10 or any other provision of this Agreement for
any loss or liability that it may suffer or incur arising from its
subscription for Rights Issue Units. |
|
|
|
|
(b) |
The Company warrants to
and agrees with the Underwriter that each statement set out in Parts IV
and V of the Third Schedule is true, accurate and not misleading as at
the date of this Agreement and agrees with the Underwriter that each
statement set out in Parts IV, V and VI of the Third Schedule will be
true, accurate and not misleading as of the Posting Date by reference
to the facts and circumstances then existing and be treated as
Warranties given and/or repeated on such date. |
|
|
| 10.2 |
Indemnity |
|
|
|
|
(a) |
The Company will,
subject to Clause 10.l(a) and to Clause 10.7, indemnify and hold
Sponsor harmless against any losses, claims, damages, costs, expenses
or liabilities arising out of breach by it of any of the Warranties
given by it to Sponsor in terms of this Clause 10. |
|
|
|
|
(b) |
The Company will,
subject to Clause 10.7, indemnify and hold the Underwriter harmless
against any losses, claims, damages, costs, expenses or liabilities
arising out of breach by it of any of the Warranties given by it to the
Underwriter in terms of this Clause 10. |
|
|
| 10.3 |
Undertaking |
The Company undertakes to Sponsor and the
Underwriter that (except to the extent necessary to give effect to this
Agreement) it will not, and will procure (so far as lies within its
power of procurement) that no Group Company will do, allow or procure
any act or omission which would constitute a breach of any Warranty
either when given or repeated or which would cause any Warranty to
become untrue, inaccurate or misleading in any respect by reference to
the facts then existing if the Warranties were to be given at any time
before the Posting Date.
|
|
| 10.4 |
Warranties
not extinguished by completion |
Subject to
the provisions of this Clause 10, the Warranties shall not in any
respect be extinguished or affected by the completion of all matters
and arrangements contemplated by this Agreement.
|
|
| 10.5 |
Notice of breach |
The Company undertakes to Sponsor and the
Underwriter that, until the earlier of Admission and the date on which
this Agreement is terminated, it will notify Sponsor and the
Underwriter in writing as soon as practicable if it becomes aware of
any matter which constitutes a breach of any Warranty or which would,
or would be likely to, constitute a breach of any Warranty or cause any
Warranty to become untrue, inaccurate or misleading by reference to the
facts then existing if the Warranties were to be given at any time
before Admission.
|
|
| 10.6 |
Consultation |
If before Admission Fully Paid, Sponsor or the
Underwriter receive a notice pursuant to Clause 10.5 or otherwise
become aware of any Warranty being untrue, inaccurate or misleading by
19
reference to the facts then existing or of
any circumstance which would, or would be likely to, cause any
Warranty, if given at such time, to become untrue, inaccurate or
misleading by reference to the facts then existing, Sponsor and/or the
Underwriter (as appropriate) shall consult with the Board and (provided
this Agreement has not, at the relevant time, been terminated) may
require the Company at its own expense to make or cause to be made an
announcement and/or despatch a communication to potential subscribers
for the Rights Issue Units, such announcement or communication to be
approved by Sponsor and/or the Underwriter after consultation with the
Board.
|
|
| 10.7 |
Limitations |
Without prejudice to Clause 11 and except in the
case of fraud, wilful misrepresentation, deliberate concealment or
gross negligence:
|
|
|
|
(a) |
no claim may be made
against the Company for breach of Warranty or under this Agreement
unless written notice that such claim may be made (giving reasonable
details of the circumstances giving rise to the claim) has been given
to the Company on or before 31 October 2007; and |
|
|
|
|
(b) |
no claim may be made by
Sponsor against the Company for breach of Warranty or under Clause
10.2(a) unless the aggregate amount of all such claims exceeds
€50,000 in which case the full amount of all claims shall
become payable. |
|
|
| 10.8 |
Grossing-up |
If the Revenue Commissioners or any other taxing
authority brings into charge to tax any sum payable under the
Warranties or indemnities contained in this Agreement then the amount
so payable shall be grossed up by such amount as will ensure that,
after deduction of the tax so chargeable, there shall remain a sum
equal to the amount that would otherwise be payable under such Warranty
or indemnity.
|
|
| 10.9 |
Acknowledgement |
|
|
|
|
(a) |
The Company
acknowledges that Sponsor has entered into this Agreement in reliance
upon, inter alia, the Warranties given by it to Sponsor and the release
and indemnity contained in Clause 11. |
|
|
|
|
(b) |
The Company
acknowledges that the Underwriter has entered into this Agreement in
reliance upon, inter alia, the Warranties given by it to the
Underwriter and the release and indemnity contained in Clause 11. |
|
|
|
|
(c) |
Each of the Warranties
shall be construed separately and independently and shall not be
limited or restricted by reference to, or inference from, the terms of
any other of them or any other provision of this Agreement. |
|
|
| 10.10 |
Action materially affecting Rights
Issue |
The Company will not, and will
procure that none of the Subsidiary Undertakings will, between the date
hereof and the Closing Date, enter into any agreement, commitment or
arrangement which is material in the context of the business or affairs
of the Group (taken as a whole) or which would, or would be likely to,
materially and adversely affect the Rights Issue, without the prior
consent of the Underwriter, such consent not to be unreasonably
withheld or delayed.
20
|
|
| 11. |
RELEASE AND
INDEMNITY |
|
|
| 11.1 |
Release |
The Company shall not make or assert a claim
against Sponsor, any Davy Relevant Person, the Underwriter or any
Underwriter Relevant Person to recover, and none of Sponsor, any Davy
Relevant Person, the Underwriter or any Underwriter Relevant Person
shall have any liability to the Company or the Directors for, any loss,
liability or cost incurred by any of them arising:
|
|
|
|
(a) |
out of the performance
by Sponsor, any Davy Relevant Person, the Underwriter or any
Underwriter Relevant Person of Sponsor's or the
Underwriter's obligations under this Agreement; or |
|
|
|
|
(b) |
in connection with the
performance by Sponsor, any Davy Relevant Person the Underwriter or any
Underwriter Relevant Person of any matter incidental to or related to
the Rights Issue, |
unless and to the extent
that, any such loss, liability or cost arises directly from the
negligence, bad faith, wilful default, recklessness or fraud of, or
breach of this Agreement by, (as applicable) Sponsor, such Davy
Relevant Person, the Underwriter or the Underwriter Relevant Person.
The Company will procure that no Director or Group Company will make or
assert such claim or seek to establish such liability.
|
|
| 11.2 |
Indemnity |
The
Company will indemnify and hold Sponsor, all Davy Relevant Persons, the
Underwriter and all Underwriter Relevant Persons harmless against any
losses, claims, damages, liabilities incurred or suffered by Sponsor,
any Davy Relevant Person, the Underwriter and any Underwriter Relevant
Person arising:
|
|
|
|
(a) |
out
of or in connection with the performance by, as the case may be,
Sponsor or any Davy Relevant Person of Sponsor's obligations, or
the Underwriter or any Underwriter Relevant Person of the
Underwriter's obligations under this Agreement; or |
|
|
|
|
(b) |
in connection with the
Rights Issue and the preparation and publication of the Rights Issue
Documents, including, without limitation: |
|
|
|
|
(i) |
the Prospectus not
containing or being alleged not to contain all the information required
to be stated therein; or |
|
|
|
|
(ii) |
any statement contained in
the Prospectus not being or being alleged not to be complete, true,
accurate, fair or reasonable or being alleged to be misleading; or |
|
|
|
|
(c) |
out of any breach or
alleged breach of the laws or regulations of any country resulting from
the issue, offer or underwriting of the Rights Issue or the publication
or distribution of the Rights Issue Documents or the performance of the
terms of this Agreement; or |
|
|
|
|
(d) |
out of the Company
failing to comply with any of the requirements imposed upon it by the
Irish Stock Exchange, the London Stock Exchange or the UK Listing
Authority in connection with the Rights Issue, |
including, without limitation, all losses,
claims, damages, liabilities and costs incurred as a result of
investigating, defending or settling any actual or potential claim,
action or proceeding alleging any such liability and enforcing the
terms of this Clause, unless and to the extent that any of them arises
from the negligence, bad faith, wilful default, recklessness or fraud
of, or breach of this Agreement by, as the case may be, Sponsor, such
Davy Relevant Person, the Underwriter or the Underwriter Relevant
Person or a breach by Sponsor or a Davy Relevant Person of its duties
or obligations under any system by which it is regulated but, without
prejudice to Clause 10.2, excluding any loss which Sponsor, any Davy
Relevant Person, the Underwriter or the Underwriter Relevant Person may
suffer or incur arising from any reduction in the value of any of the
Rights Issue Units at any
21
time unless such loss arising from any such
reduction in value results from, or is attributable to, or would not
have arisen but for (in each case directly or indirectly), the neglect
of the Company of, or a default by the Company in performing, any of
its obligations under this Agreement (including, without limitation,
any breach of the Warranties) provided always that nothing in this
Clause 11.2 shall oblige the Company to indemnify any person where to
do so would constitute a breach of section 200 of the Companies Xxx
0000.
|
|
| 11.3 |
Acknowledgement |
The Company hereby acknowledges that Sponsor and
the Underwriter shall not be responsible to the Company for verifying
the accuracy and fairness of any information contained in the Rights
Issue Documents or otherwise published by the Company in connection
with the transactions described in the Prospectus, save, in the case of
Sponsor, for those matters which Sponsor has agreed to verify in the
Verification Notes.
|
|
| 11.4 |
Indemnity
additional |
|
|
|
|
(a) |
The
Company agrees with Sponsor for its benefit and as trustee for all Davy
Relevant Persons that the indemnity obligations of the Company under
Clause 11.2 shall be in addition to any liability which the Company may
otherwise have to Sponsor and any Davy Relevant Person (as the case may
be) and shall be binding upon and inure to the benefit of any
successors, heirs and personal representatives of the Company, Sponsor
and all Davy Relevant Persons. |
|
|
|
|
(b) |
The Company agrees with
the Underwriter, for its benefit and as trustee for all of the
Underwriter Relevant Persons, that the indemnity obligations of the
Company under Clause 11.2 shall be in addition to any liability which
the Company may otherwise have to the Underwriter and the Underwriter
Relevant Person (as the case may be) and shall be binding upon and
inure to the benefit of any successors, heirs and personal
representatives of the Company, the Underwriter and all Underwriter
Relevant Persons. |
|
|
| 11.5 |
Notice of
claims |
|
|
|
|
(a) |
Sponsor
shall, as soon as reasonably practicable after it becomes aware of any
claims made or threatened against it or any Davy Relevant Person which
may occasion a liability on the Company under Clause 11, notify the
Company in writing of any such claims and Sponsor shall, at the request
of the Company, use all reasonable endeavours to avoid, dispute,
resist, appeal, compromise or defend any claim (unless in the
reasonable opinion of Sponsor after consultation with the Company, the
reputation or standing of Sponsor would thereby be affected adversely
to a material extent, in which case Sponsor shall be at liberty to
settle the claim) upon being fully indemnified and secured by the
Company against all costs, damages and expenses thereby incurred, in
which event Sponsor shall not make, and shall procure that no Davy
Relevant Person makes any admission as to liability or any compromise
in respect of any such claim without the prior written consent of the
Company, such consent not to be unreasonably withheld or delayed. |
|
|
|
|
(b) |
The Underwriter shall
as soon as reasonably practicable after it becomes aware of any claims
made or threatened against it or any Underwriter Relevant Person which
may occasion a liability on the Company under Clause 11, notify the
Company in writing of any such claims and the Underwriter shall, at the
request of the Company, use all reasonable endeavours to avoid, dispute
resist, appeal, compromise or defend any claim (unless in the
reasonable opinion of the Underwriter after consultation with the
Company, the reputation or standing of the Underwriter (or in the case
of Xxxxxxxxxx, any shareholder of Xxxxxxxxxx) would thereby be affected
adversely to a material extent, in which case the Underwriter shall be
at liberty to settle the claim) upon being fully indemnified and
secured by the |
22
|
|
|
|
|
Company against all costs, damages and
expenses thereby incurred, in which event the Underwriter shall not
make, and shall procure that no Underwriter Relevant Person shall make
any admission as to liability or any compromise in respect of any such
claim without the prior written consent of the Company, such consent
not to be unreasonably withheld or delayed. |
|
|
| 11.6 |
Other remedies |
The rights and remedies contained in this
Agreement are cumulative and not exclusive of rights or remedies
provided by law.
|
|
| 12. |
TERMINATION |
|
|
| 12.1 |
Limitation on ability to terminate or
rescind |
Neither Sponsor nor the Underwriter
will have the right to terminate or rescind this Agreement for any
reason other than pursuant to Clauses 2.4, 12.2 and 12.3, but the
foregoing shall be without prejudice to any other rights which Sponsor
or the Underwriter may have in respect of any breach of this Agreement
by the Company.
|
|
| 12.2 |
Termination |
If at any time before the time at which the
Condition in Clause 2.l(k) is fulfilled:
|
|
|
|
(a) |
it shall come to the
notice of the Underwriter or Sponsor that any Warranty given to it was
not, when given, true, accurate and not misleading in any respect by
reference to the facts existing at the time the Warranty was given and
as a result could be expected to have a material adverse effect on the
Rights Issue; |
|
|
|
|
(b) |
a
matter has arisen after the date of this Agreement which would have
rendered any Warranty, if repeated at that time, to be untrue,
inaccurate or misleading by reference to the facts then existing in any
respect and as a result could be expected to have a material adverse
effect on the Rights Issue; |
|
|
|
|
(c) |
the Company has failed
to comply, in any respect which would have a material adverse effect on
the Rights Issue, with any of its obligations under this Agreement;
or |
|
|
|
|
(d) |
a material
adverse change occurs with respect to the Group, |
then the Underwriter or Sponsor may, after
consultation with the Company, in their absolute discretion by notice
in writing to the Company given before such time, terminate its
obligations under this Agreement with immediate effect and Clause 2.4
will apply in respect of any terminating party as if this Agreement had
been terminated pursuant to Clause 2.4.
|
|
| 12.3 |
Force majeure |
If at any time before the time at which the
Condition in Clause 2.l(k) is fulfilled, there shall have occurred any
change in national or international financial, monetary, military,
economic or political or stock market conditions which, in the
reasonable opinion of Sponsor or the Underwriter arrived at in good
faith would, or would be likely to, be materially prejudicial to the
Company, any other member of the Group or to the Application or the
offering constituted by the Rights Issue or to the acquisition of the
Rights Issue Units by persons pursuant thereto, then Sponsor or the
Underwriter may, in its absolute discretion, by notice in writing to
the Company given before such time, terminate its obligations under
this Agreement with immediate effect and Clause 2.4 will apply in
respect of any terminating party as if this Agreement had been
terminated pursuant to Clause 2.4.
23
|
|
| 13. |
CONTINUING
OBLIGATIONS AND CONSENTS |
|
|
| 13.1 |
Undertaking |
The Company undertakes to Sponsor and to the
Underwriter that it will:
|
|
|
|
(a) |
apply the sums received
by it pursuant to the Rights Issue for the purposes to be described in
the Prospectus; and |
|
|
|
|
(b) |
for the period of 180
days after the Closing Date, not issue securities, or re-issue any
treasury shares, without prior consultation with and the consent of
Sponsor, save on exercise of any options under the Share Option
Schemes. |
|
|
| 13.2 |
Compliance by Group
Companies |
The Company undertakes to Sponsor
and to the Underwriter to use all reasonable endeavours to ensure that
the Subsidiary Undertakings comply with those provisions of this
Agreement which are applicable to them.
|
|
| 13.3 |
Consents |
Sponsor, in each of its capacities as sponsor
and as underwriter pursuant to the underwriting agreement dated 21
October 2004 between the parties hereto (the "2004
Agreement"), and the Underwriter each confirms its consent
to the Rights Issue for the purposes of the 2004 Agreement.
|
|
| 14. |
ANNOUNCEMENTS AND INFORMATION |
|
|
| 14.1 |
No publication |
From the date of this Agreement until the
Closing Date the Company undertakes to Sponsor and the Underwriter not
to make any public statement (in response to enquiries or otherwise) or
publish any document or information which relates to the Rights Issue
or which relates to any member of the Group unless:
|
|
|
|
(a) |
it is a normal trade
announcement or document; or |
|
|
|
|
(b) |
the statement, document
or information is required by law or the Irish Stock Exchange or the UK
Listing Authority to be made or published, |
provided such party has first, in the case of
(a) above, obtained the prior consent of Sponsor and the Underwriter as
to the content, timing and manner of the making or publication of the
announcement, statement, document or information, such consent not to
be unreasonably withheld or delayed and, in the case of (b) above, has,
to the extent practical, consulted with Sponsor and the Underwriter
prior to any such statement or publication.
|
|
| 14.2 |
References to public statement |
In Clause 14.1 references to making a public
statement or publishing a document or information include authorising
or permitting another person to do so.
|
|
| 14.3 |
Release of statement |
The parties undertake to each other to use all
their reasonable endeavours to ensure that any public statement or
document or information which any member of the Group proposes to make
or publish and which requires to be released to the Irish Stock
Exchange or the London Stock Exchange or the UKLA shall be released,
where practicable, simultaneously on the Irish Stock Exchange and the
London Stock Exchange or to the UKLA or, where not so practicable, on
the same day.
|
|
| 14.4 |
Client
confidentiality |
The parties agree that
where any information, which is required by law or by any regulatory
authority to be disclosed, is disclosed by Sponsor to the Stock
Exchanges or the UKLA or the Irish Takeover Panel in relation to the
Group or the Rights Issue such disclosure shall not be a breach of
client confidentiality.
24
|
|
| 14.5 |
Disclosure
required by law |
Sponsor hereby undertakes
that, where it is required by law or any regulatory body to disclose
any information in relation to the Group or the Rights Issue to any
statutory or regulatory authority, it will immediately after making the
required disclosure provide the Company with details of the information
disclosed.
|
|
| 15. |
GENERAL |
|
|
| 15.1 |
Waiver |
No
waiver by any party hereto of any breach or non-fulfilment by any other
party of any provision of this Agreement shall be deemed to be a waiver
of any subsequent or other breach of that or any other provision hereof
and no failure to exercise or delay in exercising any right or remedy
under this Agreement shall constitute a waiver thereof. No single or
partial exercise of any right or remedy under this Agreement shall
constitute a waiver thereof. No single or partial exercise of any such
right or remedy under this Agreement shall preclude or restrict the
further exercise of any such right or remedy. The rights and remedies
of the parties provided in this Agreement are cumulative and not
exclusive of any rights and remedies provided by law.
|
|
| 15.2 |
Agreement remains in force |
This Agreement shall remain in full force and
effect so far as concerns any matter remaining to be performed at
completion of the subscription for Rights Issue Units by the
Underwriter or any person procured by it in accordance with Clause 6
and notwithstanding that such subscription shall have taken place.
|
|
| 15.3 |
Warranties continuing |
Subject to the provisions of Clauses 10.7 and
11.5, the warranties, indemnities, undertakings, agreements and
provisions contained in this Agreement shall remain in full force and
effect notwithstanding completion of all matters and arrangements
contemplated by this Agreement.
|
|
| 15.4 |
Severance |
The
invalidity, illegality or unenforceability of any provision of this
Agreement shall not affect the continuation in force of the remainder
of this Agreement.
|
|
| 15.5 |
Time of the
essence |
Dates, times or periods referred to
in this Agreement shall not be of the essence except for the
Announcement Date, the Posting Date and the Long Stop Date in respect
of which the date shall be of the essence.
|
|
| 15.6 |
Variations |
No
variation of this Agreement or any of the documents in the agreed form
shall be valid unless it is in writing and signed by or on behalf of
each of the parties hereto.
|
|
| 15.7 |
Counterparts |
This Agreement may be executed in any number of
counterparts each of which when executed by one or more of the parties
hereto shall constitute an original but all of which shall constitute
one and the same instrument.
|
|
| 15.8 |
Entire
agreement |
This Agreement and any documents
referred to herein constitute the entire agreement between the parties
with respect to the subject matter of this Agreement.
25
|
|
| 15.9 |
Notices |
Any notice to be given pursuant to the terms of
this Agreement must be given in writing to the party due to receive
such notice at its address or number set out below:
|
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|
|
|
|
|
|
|
|
|
| Party |
|
Address |
|
Facsimile
No. |
| Sponsor |
|
Davy House
00 Xxxxxx Xxxxxx
Xxxxxx 0
Xxxxxxx |
|
+ 353 1 679
6366 |
| Company |
|
Xxxxxxx
Xxxxx
Xxxxxxx Xxxx Xxxx
Xxxxxxxxxxx
Xxxxxx 0
Xxxxxxx |
|
+ 353 1
6070177 |
| Xxxxxxxxxx |
|
P
O Box N-858
Xxxxxx Manor
Xxxxxx Xxx
Nassau
Bahamas |
|
+ 0 (000) 000
0000 |
|
|
|
| |
or such other address
as may have been notified for the purpose to the other parties in
accordance with this Clause. Notice shall be sent by pre-paid recorded
delivery or pre-paid registered post (air mail if overseas) or by
facsimile transmission and shall be deemed to be given in the case of
posting (in the absence of evidence of earlier receipt) within forty
eight hours after posting or six days if sent by air mail and in the
case of facsimile transmission on completion of the transmission (as
confirmed in a successful transmission report) if such transmission is
received prior to 5.00 pm on a Business Day or, if received after that
time or on a day which is not a Business Day, on the next Business Day
provided that a confirmation copy is sent on that date by pre-paid post
as aforesaid. |
|
|
| 15.10 |
Governing law and
jurisdiction |
|
|
|
|
(a) |
This
Agreement is governed by Irish law. |
|
|
|
|
(b) |
Each party irrevocably
agrees that the Irish courts shall have non-exclusive jurisdiction to
hear and determine any suit, action or proceedings, and to settle any
disputes, which may arise out of or in connection with this Agreement
(respectively, "Proceedings" and
"Disputes") and, for such purposes,
irrevocably submits to the jurisdiction of the Irish courts. Each party
irrevocably waives any objection which it might at any time have to the
Irish courts being nominated as the forum to hear and determine any
Proceedings and to settle any Disputes and agrees not to claim that the
Irish courts are not a convenient or appropriate forum. Each party
agrees that the process by which any Proceedings are begun in Ireland
or elsewhere may be served on it by being posted in accordance with
Clause 15.9, although this shall not affect the right to serve process
in any other manner permitted by law. |
IN WITNESS WHEREOF this
Agreement has been entered into the day and year first herein
written.
26
FIRST SCHEDULE
MATERIAL SUBSIDIARY UNDERTAKINGS
Name
Waterford Crystal
(Manufacturing) Ltd
Xxxxxx Xxxxxxxx & Sons Ltd Xxxxxxxxx
XX
Waterford Crystal Ltd
Stuart & Sons Ltd
Waterford
Wedgwood Australia Ltd
Waterford Wedgwood Canada Inc.
Waterford Wedgwood USA Inc.
Waterford Wedgwood Japan Ltd
Waterford Wedgwood Retail Ltd
Xxxxxx Xxxxxxxx & Sons (Exports)
Ltd
Xxxxxx Xxxxxxxx (Malaysia) Pte Ltd
Waterford Wedgwood
Trading Singapore Pte. Ltd
Waterford Wedgwood (Taiwan) Ltd
Wedgwood GmbH
W/C Imports Inc.
Spring International GmbH
Spring USA Corporation
Cashs Mail Order Limited
Xxxxxx
Limited
Waterford Wedgwood U.K. plc
Wedgwood Ltd
Waterford Wedgwood Inc.
Waterford Glass Research and Development
Ltd
Waterford Wedgwood Employee Share Ownership Plan (Jersey)
Ltd
Waterford Wedgwood GmbH
Waterford Wedgwood Linens
Inc.
Ashling Corporation
Royal Doulton plc
Royal Doulton
(UK) Limited
PT Doulton
Royal Doulton Australia Pty
Limited
Royal Doulton Canada Limited
Royal Doulton Hong Kong
Limited
Royal Doulton Japan KK
Royal Doulton USA
Inc.
27
SECOND SCHEDULE
PART I
DELIVERY OF DOCUMENTS TO SPONSOR AT EXECUTION
|
|
| 1. |
A copy of the resolutions of the Board and
of the board of directors of Waterford Wedgwood UK approving:- |
|
|
|
|
(i) |
the Rights Issue and
the Press Release; and |
|
|
|
|
(ii)
|
this Agreement and its execution. |
|
|
| 2. |
A certified copy of the Press
Release. |
28
PART II
DELIVERY OF DOCUMENTS TO
SPONSOR
ON OR PRIOR TO THE POSTING DATE
|
|
| 1. |
A letter, in a form satisfactory to Sponsor
acting reasonably, from the Company addressed to Sponsor confirming
that, taking into account (a) the financing facilities available to it
and (b) the proceeds of the Rights Issue, the working capital available
to the Group is sufficient for its present requirements, that is for at
least the next 12 months from the Announcement Date. |
|
|
| 2. |
Two copies of the Prospectus, together with
evidence of approval by the Irish Stock Exchange and UK Listing
Authority, each duly signed and dated by each of the Directors and the
directors of Waterford Wedgwood UK or by his agent duly authorised in
writing, together with two certified copies of the authority of any
such agent. |
|
|
| 3. |
Two copies of the form of
PAL. |
|
|
| 4. |
One signed original of the
Verification Notes. |
|
|
| 5. |
A copy of: |
|
|
|
|
(a) |
the minutes of the
meeting(s) of the Board and the meeting(s) of the board of directors of
Waterford Wedgwood UK (or, in either case, a duly appointed committee
thereof) as referred to in Clause 5.1, certified by the Secretary of
the Company or the Secretary of Waterford Wedgwood UK, as appropriate,
as having been duly passed; and |
|
|
|
|
(b) |
a copy of the minutes
of the meeting of the Board and the meeting of the board of directors
of Waterford Wedgwood UK appointing any committee referred to in
sub-paragraph 5(a) above, certified by the Secretary of the Company or
the Secretary of Waterford Wedgwood UK, as appropriate, as having been
duly passed. |
|
|
| 6. |
The Working Capital
Estimates. |
|
|
| 7. |
A copy (certified as
aforesaid) of a duly executed power of attorney granted by each
Director, or director of Waterford Wedgwood UK, as appropriate, in a
form satisfactory to Sponsor acting reasonably. |
|
|
| 8. |
A copy (certified by a Director or the
secretary of the Company or by a director or the secretary of Waterford
Wedgwood UK, as appropriate) of a responsibility letter from or on
behalf of each of the Directors and the directors of Waterford Wedgwood
UK, in a form satisfactory to Sponsor acting reasonably, confirming his
acceptance of responsibility for the Prospectus. |
|
|
| 9. |
A letter from the auditors of the Company
addressed to Sponsor and the Company confirming the accuracy of the
extraction of financial information in the Prospectus, in a form
satisfactory to Sponsor acting reasonably. |
|
|
| 10. |
A letter from the Company to Sponsor and
the Underwriter confirming that, save as disclosed in the Prospectus,
there has been no significant change in the financial or trading
position of the Group since the date to which the Group's most
recent consolidated financial statements were published. |
|
|
| 11. |
A letter from the auditors of the Company
addressed to Sponsor and the Company in a form acceptable to Sponsor,
acting reasonably, reporting on the Working Capital Estimates and
confirming that the statement as to sufficiency of working capital
available to the Group as contained in the section of the Prospectus
entitled "Working Capital" has been made
after due and careful enquiry by the Company and that the persons or
institutions providing finance have confirmed in writing that the
relevant facilities exist, together with a copy of each such written
confirmation. |
|
|
| 12. |
A letter from the Company
addressed to Sponsor confirming that the Directors have had explained
to them the nature of their responsibilities and obligations as
directors of a listed company under the Listing Rules and confirming
matters in relation to paragraph 2.13 of the Listing Rules. |
29
|
|
| 13. |
Schedule 3As and
Form 1s duly executed for and on behalf of the Company. |
|
|
| 14. |
Two originals of the letter, specified in
paragraph 5.5 of the Listing Rules, relating to the contents of the
Prospectus, each duly signed by each of the Directors and the directors
of Waterford Wedgwood UK or by his agent duly authorised in writing
(and, in the case of execution by an agent, a certified copy of such
authorisation). |
|
|
| 15. |
A letter from the
Company addressed to Sponsor in substantially the form set out in the
Fourth Schedule dated the Posting Date. |
|
|
| 16. |
The Enablement Letter. |
|
|
| 17. |
Evidence in a form satisfactory to Sponsor
acting reasonably of the fulfilment of all of those Conditions
contained in Clause 2.1 which fall to be fulfilled (and which have not
been waived) on or prior to the Posting Date. |
30
PART III
DELIVERY OF DOCUMENTS
TO SPONSOR ON THE CLOSING DATE
A letter from the Company
addressed to Sponsor in substantially the form set out in the Sixth
Schedule dated the Closing Date.
31
PART IV
DELIVERY OF DOCUMENTS TO
THE UNDERWRITER AT EXECUTION
|
|
| 1. |
A copy of
the resolutions of the Board and of the board of directors of Waterford
Wedgwood UK approving:- |
|
|
|
|
(i) |
the Rights Issue and
the Press Release; and |
|
|
|
|
(ii) |
this Agreement and its
execution. |
|
|
| 2. |
A certified copy of the Press
Release. |
|
|
| 3. |
A copy of the deed of
undertaking and the relationship agreement entered into by Xxx Xxxxxxx
X'Xxxxxx, Xx Xxxxx Xxxx Xxxxxxxxxx and Waterford Wedgwood plc on
or about the date of this agreement. |
|
|
| 4. |
A
copy of the Form of Proxy and a copy of the circular published in
connection with the Extraordinary General Meeting. |
32
PART V
DELIVERY OF DOCUMENTS TO
THE UNDERWRITER
ON OR PRIOR TO THE POSTING DATE
|
|
| 1. |
Copies of the letters referred to in Part II
of this Second Schedule (provided that, in relation to the letter from
the auditors referred to in paragraph 2 thereof, the auditors have
authorised the Company to disclose such letter to the Underwriter and
the Company shall, subject to provision of any non-reliance or other
form of letter from the Underwriter as may be required by the auditors,
use reasonable endeavours to obtain such authorisation) and, in the
case of letters referred to in paragraphs 1 and 4 of Part II, addressed
to the Underwriter rather than Sponsor. |
|
|
| 2. |
The Working Capital Estimates. |
|
|
| 3. |
A copy of the Prospectus, together with
evidence of approval by the Irish Stock Exchange and UK Listing
Authority, each duly signed and dated by each of the Directors and the
directors of Waterford Wedgwood UK or by his agent duly authorised in
writing, together with a certified copy of the authority of any such
agent. |
|
|
| 4. |
A copy of the form of PAL. |
|
|
| 5. |
One signed original of the Verification
Notes. |
|
|
| 6. |
A copy of: |
|
|
|
|
(a) |
the minutes of the
meeting(s) of the Board and the meeting(s) of the board of directors of
Waterford Wedgwood UK (or, in either case, a duly appointed committee
thereof) as referred to in Clause 5.1, certified by the Secretary of
the Company or the Secretary of Waterford Wedgwood UK, as appropriate,
as having been duly passed; and |
|
|
|
|
(b) |
a copy of the minutes
of the meeting of the Board and the meeting of the board of directors
of Waterford Wedgwood UK appointing any committee referred to in
sub-paragraph 5(a) above, certified by the Secretary of the Company or
the Secretary of Waterford Wedgwood UK, as appropriate, as having been
duly passed. |
|
|
| 7. |
A copy (certified as
aforesaid) of a duly executed power of attorney granted by each
Director, or director of Waterford Wedgwood UK, as appropriate, in a
form satisfactory to Sponsor acting reasonably. |
|
|
| 8. |
A copy (certified by a Director or the
secretary of the Company or by a director or the secretary of Waterford
Wedgwood UK, as appropriate) of a responsibility letter from or on
behalf of each of the Directors and the directors of Waterford Wedgwood
UK, in a form satisfactory to Sponsor acting reasonably, confirming his
acceptance of responsibility for the Prospectus. |
|
|
| 9. |
A letter from the auditors of the Company
addressed to Sponsor and the Company confirming the accuracy of the
extraction of financial information in the Prospectus in a form
satisfactory to Sponsor acting reasonably (provided that the auditors
have authorised the Company to disclose such letter to the Underwriter
and the Company shall, subject to provision of any non-reliance or
other form of letter from the Underwriter as may be required by the
auditors, use reasonable endeavours to obtain such authorisation). |
|
|
| 10. |
A letter from the Company addressed to the
Underwriter confirming the sufficiency of working capital available to
the Group in a form satisfactory to the Underwriter acting
reasonably. |
|
|
| 11. |
A letter from the Company
to the Underwriter confirming that, save as disclosed in the
Prospectus, there has been no significant change in the financial or
trading position of the Group since the date to which the Group's
most recent consolidated financial statements were published. |
|
|
| 12. |
A certified copy of the letter from the
auditors of the Company addressed to Sponsor and the Company in a form
acceptable to Sponsor, acting reasonably, reporting on the Working
Capital Estimates and confirming that the statement as to sufficiency
of working capital available to the Group, as contained in the section
of the Prospectus entitled "Working Capital"
has been made |
33
|
|
| |
after due and careful enquiry by the Company
and that the persons or institutions providing finance have confirmed
in writing that the relevant facilities exist, together with a copy of
each such written confirmation (provided that the auditors have
authorised the Company to disclose such letter to the Underwriter and
the Company shall, subject to provision of any non- reliance or other
form of letter from the Underwriter as may be required by the auditors,
use reasonable endeavours to obtain such authorisation). |
|
|
| 14. |
A letter from the Company addressed to the
Underwriter in substantially the form set out in the Fifth Schedule
dated the Posting Date. |
|
|
| 15. |
Evidence in a
form satisfactory to the Underwriter, acting reasonably, of the
fulfilment of all of those conditions contained in Clause 2.1 which
fall to be fulfilled (and which have not been waived) on or prior to
the Posting Date. |
34
PART VI
DELIVERY OF DOCUMENTS TO
THE UNDERWRITER ON THE CLOSING DATE
A letter from the Company
addressed to the Underwriter in substantially the form set out in the
Seventh Schedule dated the Closing Date.
35
THIRD SCHEDULE
WARRANTIES AND
REPRESENTATIONS FOR THE BENEFIT OF SPONSOR (GIVEN ON THE DATE OF THIS
AGREEMENT AND ON THE POSTING DATE)
PART I
|
|
| 1. |
The implementation of the Rights Issue, and
the publication and despatch of the Rights Issue Documents, will comply
in all respects with the relevant provisions of the Companies Acts, the
Regulations, the CREST Regulations, the Listing Rules and all other
relevant laws and regulations and will comply in all material respects
with, and will not infringe, any agreements and obligations to which
the Company or any of the Subsidiary Undertakings is a party or by
which the Company or any of the Subsidiary Undertakings is bound. |
|
|
| 2. |
All sums due in respect of the issued
capital of each member of the Group have been paid to and received by
the relevant member of the Group and there are no authorised but
unissued shares or outstanding options or other rights to subscribe for
or call for the allotment of any share or loan capital of any member of
the Group other than those disclosed in the Group's most recently
published annual consolidated financial statements. |
|
|
| 3. |
Subject to the passing of the Waiver
Resolution, the Resolutions, the Increase/Authorisation Resolution, the
Board Resolutions and to the resolutions referred to in Clause 5.1(b),
the Company, the Directors and Waterford Wedgwood UK and its directors
have all necessary power under the Memorandum and Articles of
Association of the Company and Waterford Wedgwood UK, and all
authorisations, approvals, consents and licences required by the
Company and Waterford Wedgwood UK have been unconditionally obtained
and are in full force and effect, to permit the Company and Waterford
Wedgwood UK to allot and issue the Rights Issue Units, and to permit
the Company to enter into this Agreement and to perform its obligations
under this Agreement. |
|
|
| 4. |
The creation,
allotment and issue of the Rights Issue Units will, subject to the
passing of the Increase/Authorisation Resolution and the Resolutions,
not infringe or exceed any limits, powers or restrictions or the terms
of any contract, obligation or commitment whatsoever of the Company or
Waterford Wedgwood UK. |
|
|
| 5. |
None of the
owners or holders of shares in the Company or Waterford Wedgwood UK
will, following Admission, have any rights, in their capacity as such,
in relation to the Company or Waterford Wedgwood UK, as the case may
be, other than as set out in the relevant Articles of Association of
the Company or Waterford Wedgwood UK. |
|
|
| 6. |
The Rights Issue Units will be allotted and
issued in accordance with the Rights Issue Documents free from all
encumbrances, claims, liens or other third party rights of whatsoever
nature. |
|
|
| 7. |
The Rights Issue Units will, as
from the date when they become Fully Paid Rights, rank pari passu in
all respects with the Stock Units then in issue and, in particular,
will, after such date, rank in full for all dividends and other
distributions declared, paid or made on the Stock Units after the date
of their allotment (nil paid). |
|
|
| 8. |
All
written information supplied to Sponsor or its agents or advisors by
the Company or, to the extent authorised by the Company, by its agents
or advisors for the purposes of the Rights Issue and the arrangements
contemplated by this Agreement is true and accurate in all material
respects and all forecasts and estimates given or implied have been
made after due and proper consideration. |
36
PART II
WARRANTIES AND
REPRESENTATIONS FOR THE BENEFIT OF SPONSOR (GIVEN ON THE DATE OF THIS
AGREEMENT AND ON THE POSTING DATE)
In this Part II references
to the Company shall, except where the context otherwise requires, be
deemed to include additional and separate references also to each
Subsidiary Undertaking, whether or not it was a subsidiary of the
Company at the relevant time.
|
|
| 1. |
Since the
Accounts Date, save as disclosed in the press release dated 4 May,
2005, the circular from the Company to its shareholders dated 27 May
2005, the preliminary year end results dated 16 June, 2005, and the
Prospectus from the Company to its shareholders dated on or about
27 June 2005, (unless disclosure of any of the matters
set out in paragraphs (a) to (e) below would not be required in order
to prevent the Prospectus being untrue, inaccurate or misleading in any
material respect): |
|
|
|
|
(a) |
the Company has carried
on its business in the ordinary and usual course; |
|
|
|
|
(b) |
there has been no
significant material adverse change in the financial or trading
position of the Group taken as a whole; |
|
|
|
|
(c) |
the Company has not
disposed of any of its assets other than in the ordinary course of
trading and has not entered into any material contract or commitment of
an unusual and/or unusually onerous nature or assumed any material
liabilities (including contingent liabilities); |
|
|
|
|
(d) |
the Company has not
paid or made any payment or transfer to shareholders of any dividend,
bonus, loan or distribution; and |
|
|
|
|
(e) |
the Company has not
incurred any tax liability which could reasonably be considered
material in respect of carrying on its business in the ordinary
course. |
|
|
| 2. |
Save as disclosed in the Form 20
F filed by the Company on 30 September, 2004 and the Prospectus from
the Company to its shareholders dated on or about 27 June
2005, the Company is not engaged in any litigation, arbitration or
similar proceedings of material importance in the context of the Group
nor, so far as the Company is aware, are any such litigation,
arbitration or similar proceedings threatened or pending and there are
no circumstances known to the Company, after due and careful enquiry,
which are likely to give rise to any such litigation, arbitration or
similar proceedings. |
|
|
| 3. |
The Company has not
taken any action, nor have legal proceedings started or been threatened
against the Company for its winding up or dissolution or for it to
enter into any arrangement with or composition for the benefit of
creditors, or for the appointment of a receiver, administrator,
examiner, administrative receiver, trustee or similar officer of the
Company or any of its properties, revenues or other assets. |
|
|
| 4. |
No event has occurred or, to the best of the
knowledge, information and belief of the Company, is about to occur by
reason of the happening of which any secured or unsecured borrowings of
the Company, in an amount material as against the overall borrowings of
the Group taken as a whole, have become or would with the giving of
notice or the lapse of time become repayable prior to maturity. |
|
|
| 5. |
Save for grants of options under the Share
Option Schemes and the Employee Participation Schemes or pursuant to
the Company's scrip dividend plan there are in force no options
or other agreements or arrangements which call for the issue to any
person or accord to any person the right to call for the issue of any
shares in the capital of the Group or any other securities of any
member of the Group. |
|
|
| 6. |
The execution of
this Agreement and the consummation of the transactions contemplated by
it will not, nor is likely to, cause the Company or any of the
Subsidiary Undertakings to lose the benefit of any material right or
privilege which it presently enjoys or any person who normally does
business with the Company or the relevant Subsidiary Undertakings not
to continue to do so on the same basis. |
37
|
|
| 7. |
No event has
occurred or, to the best of the knowledge, information and belief of
the Company, is subsisting which constitutes or would constitute a
material default under, or result in the acceleration by reason of
default of, any material obligations under any agreement, undertaking,
instrument or arrangement to which the Company is a party or by which
it or any of its properties, revenues or assets are bound and which
would in any such case have a material adverse effect on the business,
assets prospects or condition of the Group taken as a whole. |
|
|
| 8. |
Each member of the Group has been duly
incorporated and has full corporate power and authority to carry on its
business as at the date this Warranty is given or repeated and has
carried on such business in compliance with all legal requirements
applicable to such business (save where the failure to do so would not
have a material adverse effect on the Group taken as a whole) and as
far as the Company is aware having made due and careful enquiry, each
member of the Group holds all licences, permissions, authorisations and
consents necessary to enable it to carry on the same business in all
material respects as hitherto carried on (including, without
limitation, all necessary planning and other consents or permissions in
relation to the properties owned or occupied by it and all consents,
authorisations and licences required under environmental and health and
safety legislation) and so far as the Company is aware all such
licences, permissions, authorisations and consents are in full force
and effect and so far as the Company is aware there are no
circumstances which indicate that any of them is reasonably likely to
be revoked, rescinded, avoided or repudiated or not renewed in whole,
or in part, in the ordinary course of events. |
|
|
| 9. |
With respect to the Accounts and each
announcement made by or on behalf of the Company to either of the Stock
Exchanges or the UK Listing Authority since the date of publication of
the Accounts, at the date that the Accounts were published or, as the
case may be, at the date such announcement was made, all statements
contained therein (other than expressions of opinion, intention or
expectation of the Directors) were true and fair in all material
respects and not misleading in any material respect and, in accordance
with the facts and do not omit anything likely to affect the import of
such statements and all expressions of opinion, intention or
expectation of the Directors contained therein were when made fair and
honestly held by the Directors and had been made on reasonable grounds
and were fairly based and so far as the Company is aware, none of the
statements or expressions were or are rendered misleading in any
material respect by the omission of any information. |
|
|
| 10. |
Since the Accounts Date all information
required by Rules 9.1 and 9.2 of the Listing Rules has been notified to
the Stock Exchanges. |
|
|
| 11. |
The entry into
this Agreement and the performance by the Company of its obligations
under this Agreement, including the offer, allotment and issue of the
Rights Issue Units in accordance with the Rights Issue Documents and
the provisions of this Agreement will comply with the Articles of
Association of the Company and Waterford Wedgwood UK, FSMA, the Listing
Rules and all other relevant laws and regulations of the United Kingdom
and Ireland. |
|
|
| 12. |
The amounts borrowed by
the Company do not exceed any limitation on its borrowing contained in
its Articles of Association and any debenture or other deed or document
binding upon it and the Company has no outstanding loan capital and has
not engaged in financing of a type which would not require to be shown
or reflected in audited accounts (other than factoring of its debts) or
borrowed any money which it has not repaid, save for borrowings
specified in the Prospectus. |
|
|
| 13. |
The
Company maintains appropriate insurance cover against fire and other
risks upon all its assets and public and employer's liability,
taking into account the nature and scale of its activities and the
provisions of agreements binding upon it and such insurance is now in
force and the Company is not aware of any fact or matter which would
lead to any such insurance being vitiated or repudiated and there is no
claim which is material in the context of the Group taken as a whole
which is pending or outstanding and all premiums in respect of such
insurances have been duly paid. |
38
PART III
WARRANTIES AND
REPRESENTATIONS FOR THE BENEFIT OF SPONSOR (GIVEN ON THE POSTING DATE
ONLY)
|
|
| 1. |
All statements of fact contained
in the Rights Issue Documents are true and accurate and not misleading.
All statements of opinion, intention or expectation contained in the
Rights Issue Documents are made on reasonable grounds after due and
proper consideration, are fair and honest, and there are no facts known
or which could on reasonable enquiry have been known to the Company
which are not disclosed in the Prospectus the omission of which would
make misleading in any material respect any statement therein, whether
of fact or opinion, and in particular: |
|
|
|
|
(a) |
the financial
information contained in the Prospectus gives a true and fair view of
the profits and source of funds and cash flows for the financial period
covered by the report and of the state of affairs of the Group as at
the end of such financial period; |
|
|
|
|
(b) |
the reasons for the
Rights Issue are fairly and accurately described in the Prospectus; |
|
|
|
|
(c) |
the Pro Forma
Consolidated Balance Sheet included in the Prospectus has been properly
compiled on the basis of the Group's audited consolidated
financial statements for the twelve months ended 31 March 2005, as
adjusted for the acquisition of Royal Doulton plc and its subsidiaries
and the net proceeds of the Rights Issue; |
|
|
|
|
(d) |
the interests (if any)
of the Directors in the share capital of the Company and in contracts
and arrangements with the Company are fairly and accurately described
in the Prospectus; and |
|
|
|
|
(e) |
the Company has no
material subsidiaries other than those identified in the Prospectus and
the Company is not itself the subsidiary of any other company. |
|
|
| 2. |
The Prospectus contain all such information
as investors and their professional advisers would reasonably require
and reasonably expect to find in the Prospectus for the purpose of
making an informed assessment of the assets and liabilities, financial
position, profits and losses and prospects of the Group and of the
rights attaching to the Stock Units. |
|
|
| 3. |
All
statements made by or with the express authority of the Company in
connection with the Application for certain information to be omitted
from the Prospectus as being inapplicable or of minor importance only
and not such as would influence assessment of the assets and
liabilities, financial position, profits and losses and prospects of
the Group or any other reason permitted by the applicable Listing
Rules, were when made, and continue to be, true and accurate in all
material respects. |
|
|
| 4. |
The answers to the
Verification Notes have been prepared or approved by persons having
appropriate knowledge and responsibility to enable them properly to
provide such replies and are believed by the Company to be true,
complete and accurate in all material respects. |
|
|
| 5. |
The Working Capital Estimates have been
approved by the Board and have been prepared after due and careful
enquiry and on the basis and assumptions stated in the Working Capital
Estimates, which the Company believes to be reasonable. |
|
|
| 6. |
Upon satisfaction of the Conditions and
subject to the Underwriter complying with its underwriting obligations
contained in Clause 6 of this Agreement, the Group will have sufficient
working capital for at least the period of 12 months following the
Posting Date. |
|
|
| 7. |
Except pursuant to those
pension arrangements disclosed in the Prospectus or in the audited
accounts made up to the Accounts Date, the Company is not under any
liability or obligation (whether or not legally enforceable) which is
material to the Group taken as a whole to pay, provide or contribute
towards any retirement, death or disability benefit for or in respect
of any past officer or employee (or any spouse, child or dependant of
any of them) of the Company. |
39
|
|
| 8. |
The Company has
not done or omitted to do any act, matter or thing in respect of any
agreement relating to intellectual property material to the Group taken
as a whole which would impinge (to an extent which is material to the
Group taken as a whole) upon the validity or enforceability of the same
or upon the right of the Company to use the same nor are there any
outstanding obligations of the Company whether as to payment or
otherwise which if left outstanding would so impinge and which have not
been provided for in the audited accounts of the Company for the year
ended 31 March 2005. Save as disclosed in the Prospectus, the Company
owns or licences all intellectual property material to the Group taken
as a whole relating to the business of the Company free from all liens,
charges and encumbrances and none of such intellectual property is the
subject of any claim, opposition, assertion, infringement, attack,
right, action or other restriction or arrangement of whatsoever nature
which does or may impinge upon the validity, enforceability or
ownership of the same or the utilisation thereof by the Company to an
extent which is material in the context of the Group. To the best of
the knowledge, information and belief of the Company, having made due
and careful enquiry, none of the activities of the Company infringes
any right of any other person relating to intellectual
property. |
40
PART IV
WARRANTIES AND
REPRESENTATIONS FOR THE BENEFIT OF THE UNDERWRITER (GIVEN ON THE DATE
OF THIS AGREEMENT AND ON THE POSTING DATE)
|
|
| 1. |
The implementation of the Rights Issue, and
the publication and despatch of the Rights Issue Documents, will comply
in all respects with the relevant provisions of the Companies Acts, the
Regulations, the CREST Regulations, the Listing Rules and all other
relevant laws and regulations and will comply in all material respects
with, and will not infringe, any agreements and obligations to which
the Company or any of the Subsidiary Undertakings is a party or by
which the Company or any of the Subsidiary Undertakings is bound. |
|
|
| 2. |
All sums due in respect of the issued
capital of each member of the Group have been paid to and received by
the relevant member of the Group and there are no authorised but
unissued shares or outstanding options or other rights to subscribe for
or call for the allotment of any share or loan capital of any member of
the Group other than those disclosed in the Group's most recently
published annual consolidated financial statements. |
|
|
| 3. |
Subject to the passing of the Waiver
Resolution, the Resolutions, the Increase/Authorisation Resolution, the
Board Resolutions and to the resolutions referred to in Clause 5.l(b),
the Company, the Directors and Waterford Wedgwood UK and its directors
have all necessary power under the Memorandum and Articles of
Association of the Company and Waterford Wedgwood UK and all
authorisations, approvals, consents and licences required by the
Company and Waterford Wedgwood UK have been unconditionally obtained
and are in full force and effect, to permit the Company and Waterford
Wedgwood UK to allot and issue the Rights Issue Units, and to permit
the Company to enter into this Agreement and to perform its obligations
under this Agreement. |
|
|
| 4. |
The creation,
allotment and issue of the Rights Issue Units will, subject to the
passing of the Increase/Authorisation Resolution and the Resolutions,
not infringe or exceed any limits, powers or restrictions or the terms
of any contract, obligation or commitment whatsoever of the Company or
Waterford Wedgwood UK. |
|
|
| 5. |
None of the
owners or holders of shares in the Company or Waterford Wedgwood UK
will, following Admission, have any rights, in their capacity as such,
in relation to the Company or Waterford Wedgwood UK, as the case may
be, other than as set out in the relevant Articles of Association of
the Company or Waterford Wedgwood UK. |
|
|
| 6. |
The Rights Issue Units will be allotted and
issued in accordance with the Rights Issue Documents free from all
encumbrances, claims, liens or other third party rights of whatsoever
nature. |
|
|
| 7. |
The Rights Issue Units will, as
from the date when they become Fully Paid Rights, rank pari passu in
all respects with the Stock Units then in issue and, in particular,
will, after such date, rank in full for all dividends and other
distributions declared, paid or made on the Stock Units after the date
of their allotment (nil paid). |
|
|
| 8. |
All
written information supplied to Sponsor or its agents or advisors by
the Company or, to the extent authorised by the Company, by its agents
or advisors for the purposes of the Rights Issue and the arrangements
contemplated by this Agreement is true and accurate in all material
respects and all forecasts and estimates given or implied have been
made after due and proper consideration. |
41
PART
V
WARRANTIES AND REPRESENTATIONS FOR THE BENEFIT OF THE
UNDERWRITER (GIVEN ON THE DATE OF THIS AGREEMENT AND ON THE POSTING
DATE)
In this Part V references to the Company shall, except
where the context otherwise requires, be deemed to include additional
and separate references also to each Subsidiary Undertaking, whether or
not it was a subsidiary of the Company at the relevant time.
|
|
| 1. |
Since the Accounts Date, save as disclosed
in the press release dated 4 May, 2005, the circular from the Company
to its shareholders dated 27 May 2005, the preliminary year end results
dated 16 June 2005 and the Prospectus from the Company to its
shareholders dated on or about 27 June 2005, (unless disclosure of any
of the matters set out in paragraphs (a) to (e) below would not be
required in order to prevent the Prospectus being untrue, inaccurate or
misleading m any material respect): |
|
|
|
|
(a) |
the Company has carried
on its business in the ordinary and usual course; |
|
|
|
|
(b) |
there has been no
significant material adverse change in the financial or trading
position of the Group taken as a whole; |
|
|
|
|
(c) |
the Company) has not
disposed of any of its assets other than in the ordinary course of
trading and has not entered into any material contract or commitment of
an unusual and/or unusually onerous nature or assumed any material
liabilities (including contingent liabilities); |
|
|
|
|
(d) |
the Company has not
paid or made any payment or transfer to shareholders of any dividend,
bonus, loan or distribution; and |
|
|
|
|
(e) |
the Company has not
incurred any tax liability which could reasonably be considered
material in respect of carrying on its business in the ordinary
course. |
|
|
| 2. |
Save as disclosed in the Form
20-F filed by the Company on 30 September, 2004 and the Prospectus from
the Company to its shareholders dated on or about 27 June
2005, the Company is not engaged in any litigation, arbitration or
similar proceedings of material importance in the context of the Group
nor, so far as the Company is aware, are any such litigation,
arbitration or similar proceedings threatened or pending and there are
no circumstances known to the Company, after due and careful enquiry,
which are likely to give rise to any such litigation, arbitration or
similar proceedings. |
|
|
| 3. |
The Company has not
taken any action, nor have legal proceedings started or been threatened
against the Company for its winding up or dissolution or for it to
enter into any arrangement with or composition for the benefit of
creditors, or for the appointment of a receiver, administrator,
examiner, administrative receiver, trustee or similar officer of the
Company or any of their properties, revenues or other assets. |
|
|
| 4. |
No event has occurred or, to the best of the
knowledge, information and belief of the Company, is about to occur by
reason of the happening of which any secured or unsecured borrowings of
the Company, in an amount material as against the overall borrowings of
the Group taken as a whole, have become or would with the giving of
notice or the lapse of time become repayable prior to maturity. |
|
|
| 5. |
Save for grants of options under the Share
Option Schemes and the Employee Participation Schemes or pursuant to
the Company's scrip dividend plan there are in force no options
or other agreements or arrangements which call for the issue to any
person or accord to any person the right to call for the issue of any
shares in the capital of the Group or any other securities of any
member of the Group. |
|
|
| 6. |
The execution of
this Agreement and the consummation of the transactions contemplated by
it will not, nor is likely to, cause the Company or any of the
Subsidiary Undertakings to lose the benefit of any material right or
privilege which it presently enjoys or any person who normally does
business with the Company or the relevant Subsidiary Undertakings not
to continue to do so on the same basis. |
42
|
|
| 7. |
No event has
occurred or, to the best of the knowledge, information and belief of
the Company, is subsisting which constitutes or would constitute a
material default under, or result in the acceleration by reason of
default of, any material obligations under any agreement, undertaking,
instrument or arrangement to which the Company is a party or by which
it or any of its properties, revenues or assets are bound and which
would in any such case have a material adverse effect on the business,
assets, prospects or condition of the Group taken as a whole. |
|
|
| 8. |
Each member of the Group has been duly
incorporated and has full corporate power and authority to carry on its
business as at the date this Warranty is given or repeated and has
carried on such business in compliance with all legal requirements
applicable to such business (save where the failure to do so would not
have a material adverse effect on the Group taken as a whole) and as
far as the Company is aware, having made due and careful enquiry, each
member of the Group holds all licences, permissions, authorisations and
consents necessary to enable it to carry on the same business in all
material respects as hitherto carried on (including, without
limitation, all necessary planning and other consents or permissions in
relation to the properties owned or occupied by it and all consents,
authorisations and licences required under environmental and health and
safety legislation) and so far as the Company is aware all such
licences, permissions, authorisations and consents are in full force
and effect and so far as the Company is aware there are no
circumstances which indicate that any of them is reasonably likely to
be revoked, rescinded, avoided or repudiated or not renewed in whole,
or in part, in the ordinary course of events. |
|
|
| 9. |
With respect to the Accounts and each
announcement made by or on behalf of the Company to either of the Stock
Exchanges or the UK Listing Authority since the date of publication of
the Accounts, at the date that the Accounts were published or, as the
case may be, at the date such announcement was made, all statements
contained therein (other than expressions of opinion, intention or
expectation of the Directors) were true and fair in all material
respects and not misleading in any material respect and are in
accordance with the facts and do not omit anything likely to affect the
import of such statements and all expressions of opinion, intention or
expectation of the Directors contained therein were when made fair and
honestly held by the Directors and had been made on reasonable grounds
and were fairly based and so far as the Company is aware, none of the
statements or expressions were or are rendered misleading in any
material respect by the omission of any information. |
|
|
| 10. |
Since the Accounts Date all information
required by Rules 9.1 and 9.2 of the Listing Rules has been notified to
the Stock Exchanges. |
|
|
| 11. |
The entry into
this Agreement and the performance by the Company of its obligations
under this Agreement, including the offer, allotment and issue of the
Rights Issue Units in accordance with the Rights Issue Documents and
the provisions of this Agreement will comply with the Articles of
Association of the Company and Waterford Wedgwood UK, FSMA, the Listing
Rules and all other relevant laws and regulations of the United Kingdom
and Ireland. |
|
|
| 12. |
The amounts borrowed by
the Company do not exceed any limitation on its borrowing contained in
its Articles of Association and any debenture or other deed or document
binding upon it and the Company has no outstanding loan capital and has
not engaged in financing of a type which would not require to be shown
or reflected in audited accounts (other than factoring of its debts) or
borrowed any money which it has not repaid, save for borrowings
specified in the Prospectus. |
|
|
| 13. |
The
Company maintains appropriate insurance cover against fire and other
risks upon all its assets and public and employer's liability,
taking into account the nature and scale of its activities and the
provisions of agreements binding upon it and such insurance is now in
force and the Company is not aware of any fact or matter which would
lead to any such insurance being vitiated or repudiated and there is no
claim which is material in the context of the Group taken as a whole
which is pending or outstanding and all premiums in respect of such
insurances have been duly paid. |
43
PART VI
WARRANTIES AND
REPRESENTATIONS FOR THE BENEFIT OF THE UNDERWRITER (GIVEN ON THE
POSTING DATE ONLY)
|
|
| 1. |
All statements of
fact contained in the Rights Issue Documents are true and accurate and
not misleading. All statements of opinion, intention or expectation
contained in the Rights Issue Documents are made on reasonable grounds
after due and proper consideration, are fair and honest, and there are
no facts known or which could on reasonable enquiry have been known to
the Company which are not disclosed in the Prospectus the omission of
which would make misleading in any material respect any statement
therein, whether of fact or opinion, and in particular: |
|
|
|
|
(a) |
the financial
information contained in the Prospectus gives a true and fair view of
the profits and source of funds and cash flows for the financial period
covered by the report and of the state of affairs of the Group as at
the end of such financial period; |
|
|
|
|
(b) |
the reasons for the
Rights Issue are fairly and accurately described in the Prospectus; |
|
|
|
|
(c) |
the Pro Forma
Consolidated Balance Sheet included in the Prospectus has been properly
compiled on the basis of the Group's audited consolidated
financial statements for the twelve months ended 31 March 2005, as
adjusted for the acquisition of Royal Doulton plc and its subsidiaries
and the net proceeds of the Rights Issue; |
|
|
|
|
(d) |
the interests (if any)
of the Independent Directors in the share capital of the Company and in
contracts and arrangements with the Company are fairly and accurately
described in the Prospectus; and |
|
|
|
|
(e) |
the Company has no
material subsidiaries other than those identified in the Prospectus and
the Company is not itself the subsidiary of any other company. |
|
|
| 2. |
The Prospectus contain all such information
as investors and their professional advisers would reasonably require
and reasonably expect to find in the Prospectus for the purpose of
making an informed assessment of the assets and liabilities, financial
position, profits and losses and prospects of the Group and of the
rights attaching to the Stock Units. |
|
|
| 3. |
All
statements made by or with the express authority of the Company in
connection with the Application for certain information to be omitted
from the Prospectus as being inapplicable or of minor importance only
and not such as would influence assessment of the assets and
liabilities, financial position, profits and losses and prospects of
the Group or any other reason permitted by the applicable Listing
Rules, were when made, and continue to be, true and accurate in all
material respects. |
|
|
| 4. |
The Working Capital
Estimates have been approved by the Board and have been prepared after
due and careful enquiry and on the basis and assumptions stated in the
Working Capital Estimates, which the Company believes to be
reasonable. |
|
|
| 5. |
The answers to the
Verification Notes have been prepared or approved by persons having
appropriate knowledge and responsibility to enable them properly to
provide such replies and are believed by the Company to be true,
complete and accurate in all material respects. |
|
|
| 6. |
Upon satisfaction of the Conditions and
subject to the Underwriter complying with its underwriting obligations
contained in Clause 6 of this Agreement, the Group will have sufficient
working capital for at least the period of 12 months following the
Posting Date. |
|
|
| 7. |
Except pursuant to those
pension arrangements disclosed in the Prospectus or in the audited
accounts made up to the Accounts Date, the Company is not under any
liability or obligation (whether or not legally enforceable) which is
material to the Group taken as a whole to pay, provide or contribute
towards any retirement, death or disability benefit for or in respect
of any past officer or employee (or any spouse, child or dependant of
any of them) of the Company. |
44
|
|
| 8. |
The Company has
not done or omitted to do any act, matter or thing in respect of any
agreement relating to intellectual property material to the Group taken
as a whole which would impinge (to an extent which is material to the
Group taken as a whole) upon the validity or enforceability of the same
or upon the right of the Company to use the same nor are there any
outstanding obligations of the Company whether as to payment or
otherwise which if left outstanding would so impinge and which have not
been provided for in the audited accounts of the Company for the year
ended 31 March 2005. Save as disclosed in the Prospectus, the Company
owns or licences all intellectual property material to the Group taken
as a whole relating to the business of the Company free from all liens,
charges and encumbrances and none of such intellectual property is the
subject of any claim, opposition, assertion, infringement, attack,
right, action or other restriction or arrangement of whatsoever nature
which does or may impinge upon the validity, enforceability or
ownership of the same or the utilisation thereof by the Company to an
extent which is material in the context of the Group. To the best of
the knowledge, information and belief of the Company, having made due
and careful enquiry, none of the activities of the Company infringes
any right of any other person relating to intellectual
property. |
45
FOURTH SCHEDULE
LETTER OF
CONFIRMATION FROM THE COMPANY TO SPONSOR (GIVEN ON THE POSTING
DATE)
[Date] 2005
|
|
| TO: |
J & E Xxxx
Xxxx House
00 Xxxxxx Xxxxxx
Xxxxxx 0 |
Dear Sirs
Proposed Rights Issue of 1,691,857,115 Units by Waterford Wedgwood
plc at a price of €0.06 per New Stock Unit (the
"Rights Issue")
We refer to the
Rights Issue and to the Underwriting Agreement relating thereto dated
20 June 2005 (the "Underwriting
Agreement"). Words and expressions defined in the
Underwriting Agreement have the same meaning herein.
The Company
hereby confirms to Sponsor that the Company has complied with its
obligations under Clauses 2, 3, 4 and 5 of the Underwriting Agreement
solely to the extent such obligations fall to be performed prior to the
date hereof.
Subject to the limitations contained in Clause 10.7
of the Underwriting Agreement, the Company hereby confirms that none of
the representations and warranties given by it to Sponsor in Clause 10
of the Underwriting Agreement is breached or untrue or inaccurate or
misleading in any respect when made, none of such representations and
warranties would be breached or untrue or inaccurate or misleading in
any respect were it to be repeated by reference to the facts and
circumstances subsisting at the date hereof and none of the
undertakings contained in Clause 10 of the Underwriting Agreement has
been breached by the Company.
Yours faithfully
______________________________
Director
For and on behalf
of Waterford Wedgwood plc
46
FIFTH SCHEDULE
LETTER OF
CONFIRMATION FROM THE COMPANY TO THE UNDERWRITER (GIVEN ON THE POSTING
DATE)
[Date] 2005
|
|
| TO:
|
Xxxxxxxxxx Holdings Limited
PO Box N-858
Xxxxxx Manor
Xxxxxx Xxx
Nassau
Bahamas |
Dear Sirs
Proposed Rights Issue of 1,691,857,115
Units by Waterford Wedgwood plc at a price of €0.06 per
New Stock Unit (the "Rights Issue")
We refer to the Rights Issue and to the Underwriting Agreement
relating thereto dated 20 June 2005 (the
"Underwriting Agreement"). Words and
expressions defined in the Underwriting Agreement have the same meaning
herein.
The Company hereby confirms to the Underwriter that the
Company has complied with its obligations under Clauses 2, 3, 4 and 5
of the Underwriting Agreement solely to the extent such obligations
fall to be performed prior to the date hereof.
Subject to the
limitations contained in Clause 10.7 of the Underwriting Agreement
(solely to the extent that clause applies to claims brought by the
Underwriter), the Company hereby confirms that none of the
representations and warranties given by it to the Underwriter in Clause
10 of the Underwriting Agreement is breached or untrue or inaccurate or
misleading in any respect when made, none of such representations and
warranties would be breached or untrue or inaccurate or misleading in
any respect were it to be repeated by reference to the facts and
circumstances subsisting at the date hereof and none of the
undertakings contained in Clause 10 of the Underwriting Agreement has
been breached by the Company.
Yours faithfully
______________________________
Director
For and on behalf
of Waterford Wedgwood plc
47
SIXTH SCHEDULE
LETTER OF
CONFIRMATION FROM THE COMPANY TO SPONSOR (GIVEN ON THE CLOSING
DATE)
[Closing Date]
|
|
| TO: |
J & E Xxxx
Xxxx House
00 Xxxxxx Xxxxxx
Xxxxxx 0 |
Dear Sirs
Proposed Rights Issue of 1,691,857,115 Units by Waterford Wedgwood
plc at a price of €0.06 per New Stock Unit (the
"Rights Issue")
We refer to the
Rights Issue and to the Underwriting Agreement relating thereto dated
20 June 2005 (the "Underwriting
Agreement"). Words and expressions defined in the
Underwriting Agreement have the same meaning herein.
The Company
hereby confirms to Sponsor that the Company has complied with its
obligations under Clauses 2, 3, 4 and 5 of the Underwriting Agreement
solely to the extent such obligations fall to be performed prior to the
date hereof.
Subject to the limitations contained in Clause 10.7
of the Underwriting Agreement, the Company hereby confirms that none of
the undertakings contained in Clause 10 of the Underwriting Agreement
has been breached by the Company.
Yours faithfully
______________________________
Director
For and on behalf
of Waterford Wedgwood plc
48
SEVENTH SCHEDULE
LETTER OF
CONFIRMATION FROM THE COMPANY TO THE UNDERWRITER (GIVEN ON THE CLOSING
DATE)
[Closing Date]
|
|
| TO: |
Xxxxxxxxxx Holdings Limited
PO
Box N-858
Xxxxxx Manor
Xxxxxx Xxx
Nassau
Bahamas |
Dear Sirs
Proposed Rights Issue of
1,691,857,115 Units by Waterford Wedgwood plc at a price of
€0.06 per New Stock Unit (the "Rights
Issue")
We refer to the Rights Issue and to the
Underwriting Agreement relating thereto dated 20 June
2005 (the "Underwriting Agreement"). Words
and expressions defined in the Underwriting Agreement have the same
meaning herein.
The Company hereby confirms to the Underwriter
that the Company has complied with its obligations under Clauses 2, 3,
4 and 5 of the Underwriting Agreement solely to the extent such
obligations fall to be performed prior to the date hereof.
Subject to the limitations contained in Clause 10.7 of the
Underwriting Agreement (solely to the extent that clause applies to
claims brought by the Underwriter), the Company hereby confirms that
none of the undertakings contained in Clause 10 of the Underwriting
Agreement has been breached by the Company.
Yours faithfully
______________________________
Director
For and on behalf
of Waterford Wedgwood plc
49
|
|
|
|
|
|
|
| SIGNED
by |
|
Xxxx Xxxxx |
| duly
authorised |
|
|
| for and on behalf of |
|
|
| J&E DAVY |
|
|
| in the presence
of: |
|
Xxxxxx XxXxxx
Secretary
00 Xxxxxx
Xxxxxx
Xxxxxx 0 |
| |
|
|
| SIGNED
by |
|
Xxxxxxx Xxxxxxx |
| duly
authorised |
|
|
| for and on behalf of |
|
|
| WATERFORD WEDGWOOD plc |
|
|
| in the
presence of: |
|
Xxx Xxxxx
Solicitor
Xxxxxx
0 |
| |
|
|
| SIGNED
by |
|
Xxx X.Xxxxxxx |
| duly
authorised |
|
|
| for and on behalf of |
|
|
| XXXXXXXXXX HOLDINGS LIMITED |
|
|
| in the
presence of: |
|
Xxxxx Xxxxxxx
Solicitor,
00 Xxxxxxx Xxxxxx,
Xxxxxx
0 |
|
50
