Exhibit
4.13
J & E DAVY
(AS SPONSOR AND AS AN
UNDERWRITER)
▇▇▇▇▇▇▇▇▇▇ HOLDINGS
LIMITED
AND
WATERFORD WEDGWOOD
PLC
RIGHTS ISSUE
UNDERWRITING
AGREEMENT
DATED
21 OCTOBER 2004
1
CONTENTS
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| Clause |
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Page |
| 1. |
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Interpretation |
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3 |
| 2. |
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Conditions |
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9 |
| 3. |
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Appointments |
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12 |
| 4. |
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Registration And Application |
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12 |
| 5. |
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Allotment |
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13 |
| 6. |
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Sponsor / Underwriters
Obligations |
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15 |
| 7. |
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Payment |
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17 |
| 8. |
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Settlement |
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17 |
| 9. |
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Fees, Commissions And
Expenses |
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18 |
| 10. |
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Warranties And
Undertakings |
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19 |
| 11. |
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Release And
Indemnity |
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21 |
| 12. |
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Termination |
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23 |
| 13. |
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Continuing Obligations |
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24 |
| 14. |
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Announcements And
Information |
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24 |
| 15. |
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General |
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2
THIS AGREEMENT is made on 21 October
2004.
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, ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇ ("Sponsor" in its
capacity as sponsor of the Rights
Issue); |
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| (2) |
J & E DAVY, an
unlimited company registered in Ireland under number 106680, having its
registered office at Davy House, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇
("Davy" in its capacity as an
underwriter of the Rights
Issue); |
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| (3) |
▇▇▇▇▇▇▇▇▇▇ HOLDINGS
LIMITED, an International Business Company registered in the
British Virgin Islands under number 458528, having its registered
office at Trident ▇▇▇▇▇▇▇▇, PO Box 146, Road Town, Tortola, British
Virgin Islands ("▇▇▇▇▇▇▇▇▇▇");
and |
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| (4) |
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
€120,000,000 divided into 2,000,000,000 ordinary shares of
€0.06 each, of which 996,987,229 are in issue and fully
paid up. |
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| (B) |
The Company proposes to
raise up to €100,000,000 (before commissions and expenses)
by means of the Rights Issue at the Price and on the terms to be set
out in the Listing Particulars and the
PALs. |
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| (C) |
Davy and ▇▇▇▇▇▇▇▇▇▇ (each an
"Underwriter" and together the
"Underwriters") have agreed to
underwrite severally the Rights Issue at the Price in their respective
Proportions 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 |
Definitions
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| 1.1 |
In
this Agreement, including the Schedules, the following words and
expressions shall have the meanings ascribed to them below: |
"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 2004;
"Acquisition" means
the proposed offer to be made by a Group Company for all of the issued
and to be issued share capital of Royal Doulton plc (other than any
such share capital held or controlled by the Group or held as treasury
shares by Royal Doulton plc) to be implemented by way of takeover offer
to which the City Code on Takeovers and Mergers applies;
"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;
3
"Announcement
Date" means the date on which the Company or a Group
Company announces a firm intention to make an offer for Royal Doulton
plc in accordance with Rule 2.5 of the UK City Code on Takeovers and
Mergers not being later than the time of the fulfilment of the
Condition in Clause 2.1(f) or such other time as the Company, the
Underwriters and Sponsor may agree in writing;
"Application" means
the applications for Admission to be made by Sponsor on behalf of the
Company;
"▇▇▇▇▇▇▇▇▇▇ Relevant
Persons" means ▇▇▇▇▇▇▇▇▇▇ and (a) ▇▇▇ ▇▇▇▇▇▇▇
▇'▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ and the ▇'▇▇▇▇▇▇/Goulandris
Interests; and (b) each undertaking which is, on or at any time after
the date of this Agreement, a subsidiary undertaking or parent
undertaking of ▇▇▇▇▇▇▇▇▇▇ or a subsidiary undertaking of a parent
undertaking of ▇▇▇▇▇▇▇▇▇▇ or any of the ▇'▇▇▇▇▇▇/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 ▇▇▇▇▇▇▇▇▇▇ 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;
"Concert
Party" means ▇▇▇▇▇▇▇▇▇▇, the ▇'▇▇▇▇▇▇/Goulandris
Interests, ▇▇▇ ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, the
directors of ▇▇▇▇▇▇▇▇▇▇ 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;
"Companies Acts"
means the Companies Acts 1963 to 2003;
"Company's
Solicitors" means ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇;
"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 ▇▇▇ ▇▇▇▇ (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 Davy and (a) each undertaking which is,
on or at any time after the date of this Agreement, a subsidiary
undertaking or parent undertaking of Davy or a subsidiary undertaking
of a parent undertaking of Davy (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 Davy or an undertaking specified in sub-paragraph (a) of
this definition;
"Directive" means
Article 100 of European Parliament and Council Directive
2001/34/EC;
"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;
4
"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 21 October 2004 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);
"Enlarged
Group" means the Group together with Royal Doulton plc
and its subsidiary undertakings;
"Excluded
Conditions"
means:
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the Condition in Clause
2.1(i) insofar as such Condition requires the Company to deliver the
letter referred to in paragraph 16 of Part III solely to the extent
that such letter relates to the representations and warranties given by
the Company to Sponsor under this Agreement;
and |
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| (b) |
the Condition in Clause 2.1(j)
insofar as such Condition requires the Company to deliver the letter
referred to in paragraph 13 of Part VII solely to the extent that such
letter relates to the representations and warranties given by the
Company to the Underwriters under this Agreement; |
"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 ▇▇▇ ▇▇▇▇ of the United Kingdom;
"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 to be contained in
the notice of meeting convening the Extraordinary General Meeting;
"Independent
Directors" means all of the Directors except for ▇▇▇
▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Lady ▇'▇▇▇▇▇▇ and
▇▇▇▇ ▇'▇▇▇▇▇▇, 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
Particulars" means the 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 and the Enlarged Group is sufficient for
their respective
5
present requirements, that is for at least the
next 12 months following the Posting Date and containing a notice
convening an extraordinary general meeting of the Company for the
purpose of approving the Acquisition in accordance with Chapter 10 of
the Listing Rules;
"Listing
Rules" means the listing rules of the Irish Stock
Exchange and/or, where appropriate, the listing rules of the UK Listing
Authority;
"London Stock
Exchange" means the London Stock Exchange plc;
"Long Stop Date"
means 15 January 2005 or such other date as the Company, the
Underwriters 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;
"▇'▇▇▇▇▇▇/Goulandris
Interests" means the holders of Stock Units in which
(i) ▇▇▇ ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇ has an interest, being currently
Stoneworth Investment Limited, Albany Hill Limited, Mystic Investments
(Cayman) Limited and Indexia Holdings Limited who hold, in aggregate,
199,115,372 Stock Units at the date of this Agreement; and (ii)
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ has an interest, being currently Stoneworth
Investment Limited, Albany Hill Limited, Araquipa International Limited
and Cressborough Holdings Limited who hold, in aggregate, 244,475,744
Stock Units at the date of this Agreement. At the date of this
Agreement, due to common interests, ▇▇▇ ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇ and ▇▇.
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ are in aggregate interested in 245,329,624 Stock
Units through the ▇'▇▇▇▇▇▇/Goulandris Interests;
"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 Listing Particulars
and despatches the PALs being not later than 15 December 2004 or such
other date as the Company, the Underwriters 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;
"Proportion" means,
in relation to Davy, 30 per cent. and, in relation to ▇▇▇▇▇▇▇▇▇▇, 70
per cent.;
"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 Underwriters
and Sponsor may agree in writing;
6
"Registrars"
and/or "Receiving Agent" means Capita
Corporate Registrars plc, ▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇;
"Regulations" means
the European Communities (Stock Exchange) Regulations 1984 and the
European Communities (Transferable Securities and Stock Exchange)
Regulations 1992;
"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 Listing Particulars 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 5 Rights Issue Units for
every 3 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 Listing Particulars and the PAL;
"Rights Issue
Documents" means the Press Release, the Listing
Particulars (and any supplementary listing particulars issued in
accordance with Clause 4.1), the Form of Proxy and the PAL;
"Rights Issue
Units" means the 1,661,645,381 Stock Units to be
allotted pursuant to the Rights Issue;
"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;
"Underwriters'
Relevant Persons" means, in relation to ▇▇▇▇▇▇▇▇▇▇,
the ▇▇▇▇▇▇▇▇▇▇ Relevant Persons and, in relation to Davy, the Davy
Relevant Persons;
"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 Listing
Particulars 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
7
Takeover Panel ▇▇▇ ▇▇▇▇, 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);
"WaiverResolution" 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 to be 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 Underwriters, the warranties, agreements, indemnities and
representations expressed to be for the benefit of the Underwriters 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
"Working Capital
Estimates" means the working capital estimates to be
prepared by the Company for the Group, and for the Enlarged 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 |
8
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 Underwriters, 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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| 1.10 |
Obligations
of the Underwriters |
The obligations of the
Underwriters under this Agreement are several and not joint and not
joint and
several.
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| 2. |
CONDITIONS |
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| 2.1 |
Conditions |
The obligations of Sponsor and of the Underwriters 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 Underwriters 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 Listing Particulars 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) before the Posting
Date; |
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(d) |
the Listing Particulars being
stamped and approved by the Irish Stock Exchange and a copy thereof,
together with the consents and material contracts, as 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 Underwriters by the Company's Solicitors, in each case
before the Posting Date; |
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(e) |
the
Listing Particulars being stamped and approved by the UK Listing
Authority and a copy thereof, as required by FSMA, 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 Underwriters by the Company's Solicitors, in each
case before the Posting Date; |
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(f) |
the
Listing Particulars 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 5.1(a) below
but excluding those referred to in Clause 5.1(b) below);
and |
9
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(ii) |
Clause
5.1(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 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) |
prior to the
Announcement Date, the documents listed in Part II of the Second
Schedule; |
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(iii) |
on or prior to the
Posting Date, the documents listed in Part III of the Second Schedule;
and |
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(iv) |
on the Closing Date, the
document listed in Part IV of the Second
Schedule; |
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(j) |
there having been
delivered to the Underwriters (save, in the case of Davy, to the extent
already delivered to Sponsor under Clause
2.1(i)): |
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(i) |
simultaneously with the
execution of this Agreement, the documents listed in Part V of the
Second Schedule; |
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(ii) |
prior to the
Announcement Date, the documents listed in Part VI of the Second
Schedule; |
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(iii) |
on or prior to the
Posting Date, the documents listed in Part VII of the Second Schedule;
and |
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(iv) |
on the Closing Date, the
document listed in Part VIII 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 listing particulars which may be required pursuant to the
Regulations or FSMA being approved by the Irish Stock Exchange and by
the UK Listing Authority and published in accordance with the Listing
Rules, the Regulations and FSMA 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) |
the release of the Press
Release to the UK Listing Authority and the Irish Stock Exchange by not
later than 7:30 am on the first Business Day after the date of
this Agreement; |
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(o) |
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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(p) |
the Company
having announced a firm intention to make an offer for Royal Doulton
plc in accordance with Rule 2.5 of the UK City Code on Takeovers and
Mergers before the fulfilment of the Condition in Clause 2.1(f), |
provided that any of the above conditions may be waived in
whole or in part by agreement between Sponsor and the Underwriters, 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 Listing Particulars, the PALs and
other documents required in connection with the Rights Issue, the
Extraordinary General
10
Meeting and the subsequent extraordinary
general meeting required for the purpose of approving the Acquisition
in accordance with Chapter 10 of the Listing Rules, in each case as
soon as reasonably practicable after the date of this Agreement. The
Company agrees to consult with Sponsor and the Underwriters 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 any Underwriter requests and not to
despatch the Listing Particulars without the prior consent of Sponsor,
such consent 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
Underwriters and the Company may agree in writing pursuant to Clause
2.1) and Sponsor (and, to the extent applicable, the Underwriters)
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 Underwriters all such other information and documents as any
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 ▇▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇▇ 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. |
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| 2.4 |
Press release |
The Company hereby authorises Sponsor to release the Press
Release to the press and the Irish Stock Exchange and the UKLA as soon
as reasonably practicable after the execution of this
Agreement.
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| 2.5 |
Non-fulfilment of
Conditions |
If any Condition (other than an Excluded
Condition) becomes incapable of being fulfilled (and is not waived by
Sponsor and the Underwriters) or if any Condition (other than an
Excluded Condition) is not fulfilled (or waived by Sponsor and the
Underwriters), in each case on or before the time or date set for its
fulfilment (or such later time as Sponsor, the Underwriters and the
Company may agree in writing pursuant to Clause 2.1), then
Sponsor's and the Underwriters' obligations under this
Agreement shall terminate immediately
and:
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(a) |
the Company shall forthwith
pay to each 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 Underwriters all costs, expenses
and disbursements of the nature referred to in Clause 9.2;
and |
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(c) |
none of Sponsor, the
Underwriters 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.
11
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| 3. |
APPOINTMENTS |
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| 3.1 |
The
Company irrevocably appoints Davy 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 each case in accordance with the terms and
conditions set out in the Rights Issue Documents and this Agreement
(but not for the purpose of itself subscribing as an Underwriter for
any Rights Issue Units).
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| 3.2 |
The Company
hereby irrevocably and unconditionally confers on Sponsor and each
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 an 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 an
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
Underwriters that every significant change, significant new matter or
significant inaccuracy in the Listing Particulars which arises or
becomes apparent between the date the Listing Particulars are
registered and the date of Admission Fully Paid shall be dealt with in
accordance with the Directive and FSMA 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
Directive and/or FSMA. The Company undertakes to bring to the attention
of Sponsor and the Underwriters 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 Underwriters 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.
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| 4.3 |
Information |
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(a) |
The
Company undertakes to Sponsor and the Underwriters to provide all such
information and assistance relating to the Group or otherwise as may
reasonably be required by Sponsor or the Underwriters for the purpose
of complying with any requirement of law or any 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 Underwriters 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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(i) |
undertakes
to the Company to provide all information and assistance which it might
reasonably be expected to provide for the purposes of applying for the
Waiver and shall provide all such information concerning ▇▇▇▇▇▇▇▇▇▇
and/or the ▇'▇▇▇▇▇▇/Goulandris Interests which is relevant in the
context of the Waiver as the Company reasonably requests for inclusion
in the circular to the Company's shareholders containing a notice
convening the Extraordinary General Meeting; |
12
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(ii) |
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); and |
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(iii) |
hereby authorises Sponsor to contact
the Panel and take such other steps as are appropriate on behalf of
▇▇▇▇▇▇▇▇▇▇ and any other Concert Party with a view to obtaining the
Waiver. |
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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 5.1(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 Listing Particulars
and authorise the despatch of the Listing Particulars 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 Davy. |
The Company will procure that copies of the
resolutions referred to in this Clause 5.1(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
Underwriters as soon as reasonably practicable after being passed and
in any event prior to
Admission.
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|
(c) |
The Company undertakes
to Sponsor and to each of the Underwriters not to give, or, so far as
it is within its powers, not to permit there to be given, any direction
to Sponsor, the Underwriters 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 each of the Underwriters to procure that Waterford
Wedgwood UK shall not give, or so far as it is within its powers, not
to permit to |
13
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|
be given, any direction to Sponsor, the
Underwriters 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. |
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| 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).
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| 5.3 |
Overseas
Stockholders |
The following arrangements will apply
to certain entitlements under the Rights Issue of overseas
Stockholders:
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|
(a) |
The Rights Issue
Units have not been, and will not be, registered under the United
States Securities Act 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. |
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|
(c) |
Sponsor and the Underwriters
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 Underwriters 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 Underwriters 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
Underwriters 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
Underwriters agree that no such securities will be offered or sold by
or on behalf of them or any sub-Underwriters in the United States
except by a broker/dealer registered under the ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, as
amended (the "Exchange Act") 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. |
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|
(d) |
Sponsor and the Underwriters
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. |
14
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| 6. |
SPONSOR /
UNDERWRITERS
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 Davy and sold in accordance with the provisions of Clause
6.2.
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| 6.2 |
Subscription for fractional
entitlements |
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|
|
(a) |
The Company shall
inform Davy of the number of Rights Issue Units provisionally allotted
to Davy in accordance with Clause 6.1, representing the aggregate of
fractional entitlements. Davy 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 9.30 am on the Closing Date. Immediately after
such sale takes place, the Company shall deliver to Davy nil paid split
provisional allotment letters in the names and denominations required
by Davy. Davy 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. |
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|
(b) |
If the rights to
subscribe for the Rights Issue Units referred to in Clause 6.2 have not
been sold before 9.30 am on the Closing Date, they will be dealt with
in accordance with the remaining provisions of this Clause
6. |
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|
| 6.3 |
Procedures on the Closing
Date |
If by 9.30 am on the Closing Date (or otherwise
as provided in the Listing Particulars) 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 Underwriters 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:
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|
(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 Underwriters
by not later than 9.30 am on the second Business Day after the Closing
Date; or |
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|
(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 ▇▇▇ ▇▇▇▇ or the ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ and being, in the case of Stockholders in the United
Kingdom, an adviser authorised pursuant to FSMA) no later than 9.30 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 Underwriters |
The Company shall from time to
time, at the request of Sponsor or the Underwriters, keep Sponsor and
the Underwriters informed of the amount of Rights Issue Units
provisionally allotted which
15
have been taken up. If, however, by 9.30 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 Underwriters 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 |
Davy to procure subscribers
for the Rights Issue Units not taken up |
Davy 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 sixth
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 Davy 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.
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|
| 6.7 |
Allotment to
subscribers |
Forthwith upon Davy notifying the
Company that any subscriber has been procured pursuant to Clause 6.6,
the Company will deliver or procure the delivery to Davy of duly
receipted, fully paid PALs in respect of those Rights Issue Units
and/or, to the extent so directed by Davy, 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 Davy)
entitlements to Rights Issue Units as directed by Davy, 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 Davy. Subject to the Company delivering such duly receipted
fully paid PALs and/or taking such other steps as aforesaid, Davy will,
not later than 3.00 pm on the eighth Business Day following the Closing
Date, account to the Company for the proceeds received from subscribers
(after deduction of the expenses of 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.
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|
| 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 Underwriters by not later than 4.30 pm on the sixth
Business Day following the Closing Date of the amount of Rights Issue
Units taken up and whether Davy has procured subscribers under Clause
6.6 for any of the Rights Issue Units which have been not taken up (in
which case the announcement must include the date such subscribers were
procured and the price at which they agreed to subscribe for such
Rights Issue Units) and that all such Rights Issue Units for which Davy
has not procured subscribers will be subscribed for by the Underwriters
in their respective Proportions or such other subscribers as the
Underwriters procure pursuant to Clause
6.9.
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| 6.9 |
Underwriting |
Each Underwriter hereby severally 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
16
for acceptance and payment) and in reliance
upon the Warranties given to each of the Underwriters by the Company to
procure, as agent for the Company, subscribers for its Proportion of
the Rights Issue Units having been not taken up and, in default, to
subscribe for such Rights Issue Units itself and, by not later than
3.00 pm on the eighth 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 an Underwriter, 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 such Underwriter) entitlements to Rights Issue Units as directed
by such Underwriter, and, as soon as practicable after Admission Fully
Paid, will ensure that the same are enabled for settlement in favour of
the persons and in the denominations required by such
Underwriter.
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| 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.
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| 7. |
PAYMENT |
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| 7.1 |
Payment
of subscription monies by Sponsor |
Davy shall procure
the payment for the Rights Issue Units as set out in Clauses 6.2 and
6.7, subject to deduction of:
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(a) |
the
expenses of sale referred to in Clauses 6.2 and
6.7; |
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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. |
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| 7.2 |
Payment of
subscription monies by the Underwriters |
Subject to
Clause 8.1, each Underwriter shall procure the payment for its
Proportion of 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.
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| 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 Underwriters by the Company prior to the
Closing Date and such payment by Sponsor or an Underwriter shall
constitute a full discharge of Sponsor or such Underwriter in respect
of its obligations pursuant to Clauses 6, 7.1, 7.2 and
8.1.
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| 8. |
SETTLEMENT |
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| 8.1 |
Settlement |
Upon Admission Fully Paid, the Company will deliver to the
Underwriters, or as they 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 Underwriters, 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 Underwriters) entitlements
to Rights Issue Units as directed by the Underwriters, 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,
each Underwriter will pay or cause to be paid to the Company in
accordance with Clauses 7.2 and 7.3 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.
17
|
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| 9. |
FEES,
COMMISSIONS AND
EXPENSES |
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| 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 each Underwriter (provided that this
Agreement is not terminated under Clause 2.5 or, in relation to such
Underwriter, under Clause 12.2 or 12.3) a commission equal
to: |
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(i) |
in respect of the first 28 day
period commencing on (and including) the date of this Agreement, in
aggregate, 2.5% of such Underwriter's Relevant Amount,
less, in the case only of any amounts due to ▇▇▇▇▇▇▇▇▇▇ under this
sub-Clause 9.1(a)(i), an amount equal to 2.5% of the ▇▇▇▇▇▇▇▇▇▇
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 28 day period referred to in sub-Clause 9.1(a)(i) up to and
including the Cut Off Date (both dates inclusive), an additional
commission equal to 0.125% of such Underwriter's Relevant
Amount less, in the case only of any amounts due to ▇▇▇▇▇▇▇▇▇▇ under
this sub-Clause 9.1(a)(ii), an amount equal to 0.125% of the
▇▇▇▇▇▇▇▇▇▇ Deductible Amount. |
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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 Clause
2.5, 12.2 or 12.3, then the Company will pay to each Underwriter (or,
in the case of termination by an Underwriter under Clause 12.2 or 12.3,
to such terminating Underwriter) a commission equal
to: |
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(i) |
in respect of the first 28 day
period (or any part thereof) commencing on (and including) the date of
this Agreement 1% of such Underwriter's Relevant Amount
less, in the case only of any amounts due to ▇▇▇▇▇▇▇▇▇▇ under this
sub-Clause 9.1(b)(i), an amount equal to 1% of the ▇▇▇▇▇▇▇▇▇▇
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 28 day period referred to in sub-Clause 9.1(b)(i) up to and
including the date on which this Agreement is terminated pursuant to
Clause 2.5, 12.2 or 12.3 (both dates inclusive), an additional
commission equal to 0.125% of such Underwriter's Relevant
Amount less, in the case only of any amounts due to ▇▇▇▇▇▇▇▇▇▇ under
this sub-Clause 9.1(b)(ii), an amount equal to 0.125% of the
▇▇▇▇▇▇▇▇▇▇ Deductible Amount. |
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(i) |
"▇▇▇▇▇▇▇▇▇▇
Deductible Amount" means the product (expressed in
Euro) of (x) the Price and (y) the number of Rights Issue Units to
which the ▇'▇▇▇▇▇▇/Goulandris Interests are, in aggregate,
entitled under the terms of the Rights
Issue; |
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(ii) |
"Relevant
Amount" means, in relation to an Underwriter, the
product (expressed in Euro) of (x) the Price, (y) such
Underwriter's Proportion and (z) the aggregate number of Rights
Issue Units; and |
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(iii) |
the term
"Cut Off Date"
means: |
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(1) |
if the Closing Date falls on
any date between (and including) 22 December 2004 and 29 December 2004,
the earlier of (A) the sixth Business Day following the Closing Date
and (B) the date (if any) by which Sponsor has procured subscribers for
all of the Rights Issue Units not taken up or determined that it will
no longer procure subscribers for such Rights Issue Units in accordance
with Clause 6.6; or |
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(2) |
in any other
circumstance, the second Business Day following the Closing
Date. |
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(d) |
Payments to the Underwriters
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 Underwriters. |
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(e) |
Out of
the commissions referred to in this Clause 9.1, the Underwriters will
pay sub-underwriting commissions (together with any VAT thereon, if
applicable), if any, in respect of the underwritten Rights Issue
Units. |
18
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| 9.2 |
Costs |
Provided that Sponsor or, as the case may be, an 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 each of
the Underwriters' legal advisers' fees. The Company shall
upon receipt from Sponsor or, as the case may be, an 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 relevant
Underwriter (as the case may be) the amount of any such costs, charges
and expenses which Sponsor or such Underwriter may have
paid.
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| 9.3 |
VAT |
Where, pursuant to Clauses 2, 9.1 or 9.2 a sum is payable to
Sponsor or to an Underwriter the Company shall, in addition, pay to
Sponsor or the relevant 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 relevant
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 relevant 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.
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| 10. |
WARRANTIES AND
UNDERTAKINGS |
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| 10.1 |
Warranties |
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(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. |
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(b) |
The Company warrants to and
agrees with each of the Underwriters 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 each of the
Underwriters 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. |
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| 10.2 |
Indemnity |
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|
(a) |
The
Company will, subject to Clause 10.1(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. |
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(b) |
The Company will, subject to
Clause 10.7, indemnify and hold each of the Underwriters 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
each of the Underwriters in terms of this Clause
10. |
19
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| 10.3 |
Undertaking |
The Company undertakes to Sponsor and each of the
Underwriters 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.
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| 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.
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| 10.5 |
Notice of
breach |
The Company undertakes to Sponsor and each of
the Underwriters that, until the earlier of Admission and the date on
which this Agreement is terminated, it will notify Sponsor and each of
the Underwriters 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.
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| 10.6 |
Consultation |
If before Admission Fully Paid, Sponsor or either of the
Underwriters receive a notice pursuant to Clause 10.5 or otherwise
become aware of any Warranty being untrue, inaccurate or misleading by
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 Underwriters (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
Underwriters after consultation with the
Board.
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| 10.7 |
Limitations |
Without prejudice to Clause 11 and except in the case
of fraud, wilful misrepresentation, deliberate concealment or gross
negligence:
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|
(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 2006;
and |
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(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. |
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| 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.
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| 10.9 |
Acknowledgement |
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(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. |
20
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(b) |
The Company
acknowledges that each of the Underwriters has entered into this
Agreement in reliance upon, inter alia, the Warranties given by it to
the Underwriters and the release and indemnity contained in Clause
11. |
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(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. |
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| 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 Underwriters, such consent not to be
unreasonably withheld or
delayed.
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| 11. |
RELEASE AND
INDEMNITY |
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| 11.1 |
Release |
The Company shall not make or assert a claim against
Sponsor, any Davy Relevant Person, the Underwriters or any
Underwriters' Relevant Person to recover, and none of Sponsor,
any Davy Relevant Person, the Underwriters or any Underwriters'
Relevant Person shall have any liability to the Company or the
Directors for, any loss, liability or cost incurred by any of them
arising:
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(a) |
out of the performance by
Sponsor, any Davy Relevant Person, the Underwriters or any
Underwriters' Relevant Person of Sponsor's or the
Underwriters' obligations under this Agreement;
or |
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(b) |
in connection with the
performance by Sponsor, any Davy Relevant Person, the Underwriters or
any Underwriters' 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, an Underwriter or such Underwriters' Relevant
Person. The Company will procure that no Director or Group Company will
make or assert such claim or seek to establish such
liability.
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| 11.2 |
Indemnity |
The Company will indemnify and hold Sponsor, all Davy
Relevant Persons, each of the Underwriters and all Underwriters'
Relevant Persons harmless against any losses, claims, damages,
liabilities incurred or suffered by Sponsor, any Davy Relevant Person,
any Underwriter and any Underwriters' Relevant Person
arising:
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(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 Underwriters or
any Underwriters' Relevant Person of the Underwriters'
obligations under this Agreement;
or |
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(b) |
in connection with the Rights
Issue and the preparation and publication of the Rights Issue
Documents, including, without
limitation: |
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(i) |
the Listing Particulars
not containing or being alleged not to contain all the information
required to be stated therein;
or |
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(ii) |
any statement contained in the
Listing Particulars not being or being alleged not to be complete,
true, accurate, fair or reasonable or being alleged to be misleading;
or |
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(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 |
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(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, |
21
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, an Underwriter or such Underwriter's
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 Underwriters or any Underwriter's
Relevant Person may suffer or incur arising from any reduction in the
value of any of the Rights Issue Units at any 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 ▇▇▇
▇▇▇▇.
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| 11.3 |
Acknowledgment |
The Company hereby acknowledges that Sponsor and the
Underwriters 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 Listing Particulars, save, in the case of
Sponsor, for those matters which Sponsor has agreed to verify in the
Verification Notes.
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| 11.4 |
Indemnity
additional |
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(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. |
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(b) |
The Company
agrees with each Underwriter, for its benefit and as trustee for all of
its Underwriters' 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 Underwriters
and any Underwriters' 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 Underwriters and all
Underwriters' Relevant
Persons. |
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| 11.5 |
Notice of
claims |
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(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. |
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(b) |
Each Underwriter shall, as
soon as reasonably practicable after it becomes aware of any claims
made or threatened against it or any Underwriters' Relevant
Person which may occasion a liability on the Company under Clause 11,
notify the Company in writing of any such claims and such 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 |
22
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opinion of such Underwriter after
consultation with the Company, the reputation or standing of such
Underwriter (or in the case of ▇▇▇▇▇▇▇▇▇▇, any shareholder of
▇▇▇▇▇▇▇▇▇▇) 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 Company against all
costs, damages and expenses thereby incurred, in which event the
Underwriter shall not make, and shall procure that no
Underwriters' 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. |
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| 11.6 |
Other remedies |
The rights and remedies contained in this Agreement are
cumulative and not exclusive of rights or remedies provided by
law.
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| 12. |
TERMINATION |
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| 12.1 |
Limitation on ability to terminate
or rescind |
Neither Sponsor nor any Underwriter will
have the right to terminate or rescind this Agreement for any reason
other than pursuant to Clauses 2.5, 12.2 and 12.3, but the foregoing
shall be without prejudice to any other rights which Sponsor or any of
the Underwriters may have in respect of any breach of this Agreement by
the Company.
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| 12.2 |
Termination |
If at any time before the time at which the Condition in
Clause 2.1(p) is fulfilled:
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|
(a) |
it
shall come to the notice of an Underwriter or Sponsor that any Warranty
given to it was not, when given, true, accurate and not misleading in
any respect and as a result could be expected to have a material
adverse effect on the Rights Issue by reference to the facts existing
at the time the Warranty was
given; |
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(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; |
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(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 |
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|
|
|
(d) |
a material adverse change occurs
with respect to the Group, |
then each of the Underwriters
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 2.5 will apply in respect of any terminating party as if
this Agreement had been terminated pursuant to Clause
2.5.
|
|
| 12.3 |
Force majeure |
If at any time before the time at which the Condition in
Clause 2.1(p) 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 an 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 an 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 2.5 will apply in respect of any
terminating party as if this Agreement had been terminated pursuant to
Clause 2.5.
23
|
|
| 13. |
CONTINUING
OBLIGATIONS |
|
|
| 13.1 |
Undertaking |
The Company undertakes to Sponsor and to each of the
Underwriters that it will:
|
|
|
|
(a) |
apply
the sums received by it pursuant to the Rights Issue for the purposes
to be described in the Listing Particulars;
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
each of the Underwriters 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 |
Undertaking concerning
Deed of Undertaking |
The Company undertakes to Davy
and to Sponsor that:
|
|
|
|
(a) |
if the
Underwriters become obliged to subscribe for Rights Issue Units
pursuant to Clause 6.9 and ▇▇▇▇▇▇▇▇▇▇ fails to satisfy or discharge its
obligations under any of Clauses 6.9, 7.2 or 8.1, then the Company will
enforce, in full, its rights under the deed of undertaking dated 21
October 2004 given in favour of the Company relating to this Agreement
(the "Deed of Undertaking") against
the Obligors (as that term is defined in the Deed of Undertaking);
and |
|
|
|
|
(b) |
it will refrain from doing any
act or thing pursuant to Clause 2.4 of the Deed of Undertaking or from
terminating the Deed of Undertaking without the prior consent of
Davy. |
|
|
| 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 Underwriters
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 Underwriters 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 Underwriters
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.
24
|
|
| 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.
|
|
| 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
Underwriters or any person procured by them 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:
|
|
|
|
|
|
|
|
|
|
|
| Party |
|
Address |
|
Facsimile
No. |
| Sponsor and ▇▇▇▇ |
|
▇▇▇▇ House
▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇ |
|
+ 353 1 679
6366 |
| Company |
|
▇-▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇ |
|
+ 353 1 478
4863 |
| ▇▇▇▇▇▇▇▇▇▇ |
|
P O Box N-858
▇▇▇▇▇▇
Manor
▇▇▇▇▇▇ ▇▇▇
Nassau
Bahamas |
|
+ ▇ (▇▇▇) ▇▇▇
▇▇▇▇ |
|
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 |
| ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Sons Ltd |
| ▇▇▇▇▇▇▇▇▇
▇▇ |
| 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 |
| ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Sons (Exports)
Ltd |
| ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Malaysia) Pte Ltd |
| Waterford Wedgwood Trading Singapore Pte. Ltd |
| Waterford Wedgwood (Taiwan) Ltd |
| Wedgwood
GmbH |
| W/C Imports Inc. |
| All-Clad
Switzerland GmbH |
| Spring USA Corporation |
| Cashs Mail Order Limited |
| ▇▇▇▇▇▇
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 |
|
27
SECOND SCHEDULE
PART I
DELIVERY OF DOCUMENTS TO SPONSOR AT
EXECUTION
|
|
| 1. |
A copy of the resolution
of the Board and of the board of directors of Waterford Wedgwood UK
approving the Rights Issue, the Press Release, this Agreement and its
execution. |
|
|
| 2. |
The Press
Release. |
|
|
| 3. |
A copy of the Deed of
Undertaking. |
PART II
DELIVERY OF DOCUMENTS TO SPONSOR
ON OR PRIOR TO THE
ANNOUNCEMENT
DATE
|
|
| 1. |
A letter from the Company
addressed to Sponsor confirming that, taking into account (a) the
financing facilities available to them and (b) the proceeds of the
Rights Issue, the working capital available to the Group and to the
Enlarged Group is sufficient for their respective present requirements,
that is for at least the next 12 months from the Announcement
Date. |
|
|
| 2. |
A letter from the auditors of
the Company addressed to the Company and Sponsor in a form acceptable
to Sponsor, acting reasonably, confirming that the statement contained
in the letter referred to in paragraph 1 above as to sufficiency of
working capital available to the Group and to the Enlarged Group has
been made after due and careful enquiry and that the persons or
institutions providing finance have confirmed in writing that the
relevant financing facilities exist, together with a copy of each such
written confirmation. |
|
|
| 3. |
The Working
Capital Estimates. |
|
|
| 4. |
A letter addressed
to Sponsor in the form set out in the Fourth
Schedule. |
|
|
| 5. |
A certified copy of the
announcement referred to in Clause 2.1(p). |
PART III
DELIVERY OF DOCUMENTS TO SPONSOR ON OR PRIOR TO THE POSTING
DATE
|
|
| 1. |
Two copies of the Listing
Particulars, 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. |
|
|
| 2. |
Two
copies of the Form of Proxy. |
|
|
| 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 of the Board and the meeting 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. |
28
|
|
| 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 Listing
Particulars. |
|
|
| 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 Listing
Particulars, in a form satisfactory to Sponsor acting reasonably. |
|
|
| 10. |
A letter from the Company addressed to
Sponsor confirming the sufficiency of working capital available to the
Group and the Enlarged Group in a form satisfactory to Sponsor acting
reasonably. |
|
|
| 11. |
A letter from the
Company to Sponsor and the Underwriters confirming that, save as
disclosed in the Listing Particulars, there has been no significant
change in the financial or trading position
of: |
|
|
|
|
(a) |
the Group since the date to
which the Group's most recent consolidated financial statements
were published; and |
|
|
|
|
(b) |
Royal Doulton
plc and its subsidiaries since 30 June
2004. |
|
|
| 12. |
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 and to the Enlarged Group as
contained in the section of the Listing Particulars 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. |
|
|
| 13. |
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. |
|
|
| 14. |
Schedule 3As and Form 1s duly
executed for and on behalf of the
Company. |
|
|
| 15. |
Two originals of the
letter, specified in paragraph 5.5 of the Listing Rules, relating to
the contents of the Listing Particulars, 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). |
|
|
| 16. |
A letter from the
Company addressed to Sponsor in substantially the form set out in the
Fourth Schedule dated the Posting
Date. |
|
|
| 17. |
The Enablement
Letter. |
|
|
| 18. |
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. |
PART IV
DELIVERY OF DOCUMENTS TO SPONSOR ON OR PRIOR TO
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.
PART V
DELIVERY OF DOCUMENTS TO EACH OF
THE UNDERWRITERS AT EXECUTION
|
|
| 1. |
A copy
of the resolution of the Board and of the board of directors of
Waterford Wedgwood UK approving the Rights Issue, the Press Release,
this Agreement and its execution. |
29
|
|
| 2. |
The Press
Release. |
|
|
| 3. |
A copy of the Deed of
Undertaking. |
PART VI
DELIVERY OF DOCUMENTS TO EACH OF THE
UNDERWRITERS ON OR
PRIOR TO ANNOUNCEMENT
DATE
|
|
| 1. |
Copies of the letters referred
to in Part II of this 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
Underwriters and the Company shall, subject to provision of any
non-reliance or other form of letter from the Underwriters as may be
required by the auditors, use reasonable endeavours to obtain such
authorisation) and, in the case of the letters referred to in
paragraphs 1 and 4 of Part II, addressed to the Underwriters rather
than Sponsor. |
|
|
| 2. |
The Working Capital
Estimates. |
|
|
| 3. |
A certified copy of the
announcement referred to in Clause 2.1(p). |
PART
VII
DELIVERY OF DOCUMENTS TO EACH OF THE UNDERWRITERS ON OR
PRIOR TO THE POSTING DATE
|
|
| 1. |
A copy of
the Listing Particulars, 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. |
|
|
| 2. |
A copy of the Form of
Proxy. |
|
|
| 3. |
A copy of the form of
PAL. |
|
|
| 4. |
One signed original of the
Verification Notes. |
|
|
| 5. |
A copy of: |
|
|
|
|
(a) |
the minutes of the meeting of the
Board and the meeting 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 Listing
Particulars. |
|
|
| 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 Listing
Particulars in a form satisfactory to Davy acting reasonably (provided
that the auditors have authorised the Company to disclose such letter
to the Underwriters and the Company shall, subject to provision of any
non-reliance or other form of letter from the Underwriters as may be
required by the auditors, use reasonable endeavours to obtain such
authorisation). |
30
|
|
| 10. |
A letter
from the Company addressed to the Underwriters confirming the
sufficiency of working capital available to the Group and to the
Enlarged Group, in a form satisfactory to Sponsor acting
reasonably. |
|
|
| 11. |
A letter from the
Company to the Underwriters confirming that, save as disclosed in the
Listing Particulars, there has been no significant change in the
financial or trading position
of: |
|
|
|
|
(a) |
the Group since the date to
which the Group's most recent consolidated financial statements
were published; and |
|
|
|
|
(b) |
Royal Doulton
plc and its subsidiaries since 30 June
2004. |
|
|
| 12. |
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 and to the Enlarged Group, as
contained in the section of the Listing Particulars 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 (provided that the auditors have authorised the Company to
disclose such letter to the Underwriters and the Company shall, subject
to provision of any non-reliance or other form of letter from the
Underwriters as may be required by the auditors, use reasonable
endeavours to obtain such
authorisation). |
|
|
| 13. |
A letter from the
Company addressed to the Underwriters in substantially the form set out
in the Fifth Schedule dated the Posting
Date. |
|
|
| 14. |
Evidence in a form
satisfactory to each of the Underwriters, 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. |
PART VIII
DELIVERY OF DOCUMENTS TO
EACH OF THE UNDERWRITERS ON OR
PRIOR TO THE CLOSING DATE
A
letter from the Company addressed to the Underwriters in substantially
the form set out in the Seventh Schedule dated the Closing
Date.
31
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. |
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.
32
|
|
| 1. |
Since the
Accounts Date, save as disclosed in the Press Release and the circular
from the Company to its shareholders dated 2 July 2004 relating to,
inter alia, the sale of All-Clad USA Inc, and the Form 20-F filed by
the Company on 30 September 2004 (unless disclosure of any of the
matters set out in paragraphs (a) to (e) below would not be required in
order to prevent the Listing Particulars 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, 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. |
|
|
| 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 |
33
|
|
| |
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
Listing Particulars. |
|
|
| 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. |
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 Listing Particulars the
omission of which would make misleading in any material respect any
statement therein, whether of fact or opinion, and in
particular: |
34
|
|
|
|
(a) |
the
financial information contained in the Listing Particulars 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 Listing
Particulars; |
|
|
|
|
(c) |
the Pro Forma
Consolidated Balance Sheet included in the Listing Particulars has been
properly compiled on the basis of the Group's audited
consolidated financial statements for the six months ended 30 September
2004, as adjusted for the Acquisition 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 Listing Particulars;
and |
|
|
|
|
(e) |
the Company has no material
subsidiaries other than those identified in the Listing Particulars and
the Company is not itself the subsidiary of any other
company. |
|
|
| 2. |
The Listing Particulars
contain all such information as investors and their professional
advisers would reasonably require and reasonably expect to find in the
Listing Particulars 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 Listing Particulars 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 Underwriters complying with its
underwriting obligations contained in Clause 6 of this Agreement, the
Group and the Enlarged 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 Listing Particulars 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. |
|
|
| 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 2004. Save as disclosed in the
Listing Particulars, 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 |
35
|
|
| |
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. |
PART IV
WARRANTIES AND
REPRESENTATIONS
FOR THE BENEFIT OF EACH OF THE UNDERWRITERS (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 5.1(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 Davy 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 V
WARRANTIES AND
REPRESENTATIONS
FOR THE BENEFIT OF EACH OF THE UNDERWRITERS (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, the circular from the Company to its
shareholders dated 2 July 2004 relating to, inter alia, the sale of
All-Clad USA Inc, and the Form 20-F filed by the Company on 30
September 2004 (unless disclosure of any of the matters set out in
paragraphs (a) to (e) below would not be required in order to prevent
the Listing Particulars 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, 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
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. |
|
|
| 5. |
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. |
|
|
| 6. |
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 |
37
|
|
| |
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. |
|
|
| 7. |
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. |
|
|
| 8. |
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. |
|
|
| 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
Listing Particulars. |
|
|
| 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 VI
WARRANTIES AND
REPRESENTATIONS
FOR THE BENEFIT OF EACH OF THE UNDERWRITERS
(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
Listing Particulars 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 Listing Particulars 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 Listing
Particulars; |
|
|
|
|
(c) |
the Pro Forma
Consolidated Balance Sheet included in the Listing Particulars has been
properly compiled on the basis of the Group's audited
consolidated financial statements for the six months ended 30 September
2004, as adjusted for the Acquisition 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 Listing Particulars;
and |
|
|
|
|
(e) |
the Company has no material
subsidiaries other than those identified in the Listing Particulars and
the Company is not itself the subsidiary of any other
company. |
|
|
| 2. |
The Listing Particulars
contain all such information as investors and their professional
advisers would reasonably require and reasonably expect to find in the
Listing Particulars 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 Listing Particulars 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 Underwriters complying with its
underwriting obligations contained in Clause 6 of this Agreement, the
Group and the Enlarged 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 Listing Particulars 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 2004. Save as disclosed in the Listing Particulars, 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
FOURTH SCHEDULE
LETTER OF
CONFIRMATION FROM THE COMPANY TO SPONSOR
(GIVEN ON OR PRIOR TO THE
ANNOUNCEMENT DATE AND ON THE POSTING DATE)
|
[Date] 2004 |
|
|
| TO: |
J & E ▇▇▇▇
▇▇▇▇ House
▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇ ▇ |
Dear Sirs
Proposed Rights
Issue of 1,661,645,381 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 21 October 2004 (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
41
FIFTH SCHEDULE
LETTER OF
CONFIRMATION FROM THE COMPANY TO THE UNDERWRITERS
(GIVEN ON OR
PRIOR TO THE ANNOUNCEMENT DATE AND ON THE POSTING DATE)
|
[Date] 2004 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| TO: |
|
▇▇▇▇▇▇▇▇▇▇
Holdings Limited
PO Box N-858
▇▇▇▇▇▇ Manor
▇▇▇▇▇▇
▇▇▇
Nassau
Bahamas |
|
AND TO: |
|
J & E
▇▇▇▇
▇▇▇▇ House
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇ |
|
Dear Sirs
Proposed Rights Issue of
1,661,645,381 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 21 October 2004 (the
"Underwriting Agreement"). Words and
expressions defined in the Underwriting Agreement have the same meaning
herein.
The Company hereby confirms to each of the Underwriters
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 an Underwriter), the Company hereby confirms that
none of the representations and warranties given by it to each of the
Underwriters 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
42
SIXTH SCHEDULE
LETTER OF
CONFIRMATION FROM THE COMPANY TO SPONSOR
(GIVEN ON THE CLOSING
DATE)
|
[Closing Date] |
|
|
| TO: |
J & E ▇▇▇▇
▇▇▇▇ House
▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇ ▇ |
Dear Sirs
Proposed Rights Issue
of 1,661,645,381 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 21 October 2004 (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
43
SEVENTH SCHEDULE
LETTER OF
CONFIRMATION FROM THE COMPANY TO THE UNDERWRITERS
(GIVEN ON THE
CLOSING DATE)
|
[Closing Date] |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| TO: |
|
▇▇▇▇▇▇▇▇▇▇
Holdings Limited
PO Box N-858
▇▇▇▇▇▇ Manor
▇▇▇▇▇▇
▇▇▇
Nassau
Bahamas |
|
AND TO: |
|
J & E
▇▇▇▇
▇▇▇▇ House
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇ |
|
Dear Sirs
Proposed Rights Issue of
1,661,645,381 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 21 October 2004 (the
"Underwriting Agreement"). Words and
expressions defined in the Underwriting Agreement have the same meaning
herein.
The Company hereby confirms to each of the Underwriters
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 an 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
|
|
|
|
|
|
|
| SIGNED
by |
|
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ |
| duly authorised |
|
|
| for and on behalf
of |
|
|
| J & E DAVY |
|
|
| (in
its capacity as Sponsor) |
|
|
| in the presence
of:- |
|
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ |
| SIGNED by |
|
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ |
| duly authorised |
|
|
| for and on behalf of |
|
|
| J & E
DAVY |
|
|
| (in its capacity as an
Underwriter) |
|
|
| in the presence
of:- |
|
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ |
| SIGNED
by |
|
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ |
|
44
|
|
|
|
|
|
|
| duly authorised |
|
|
| for and on behalf of |
|
|
| WATERFORD WEDGWOOD
plc |
|
|
| in the presence of:- |
|
▇▇▇▇
▇'▇▇▇▇▇ |
| SIGNED
by |
|
▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇ |
| duly authorised |
|
|
| for and on behalf
of |
|
|
| ▇▇▇▇▇▇▇▇▇▇ HOLDINGS LIMITED |
|
|
| in the presence of:- |
|
Security Officer, ▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇ |
|
▇▇
