Exhibit
4.9
XXX XXXXXXX X'XXXXXX AND XX XXXXX XXXX
XXXXXXXXXX
- and -
WATERFORD WEDGWOOD PLC
DEED OF
UNDERTAKING
XXXXXXX XXX
Solicitors
Xxxxxxxxxx Xxxxx
Xxxxxx Xxxxx
Xxxxxx 0
002542.0207.KC/DMK
THIS DEED is made on 20 June 2005
BETWEEN:
 |
XXX XXXXXXX X'XXXXXX
of
Lissadell, Xxxxxx Xxx, Nassau, Bahamas, AND XX XXXXX XXXX
XXXXXXXXXX
of Sea Saga, Edgewater Drive, Xxxxxx Xxx, Nassau,
Bahamas
(each an "Obligor" and together
the "Obligors"); |
- and -
|
WATERFORD WEDGWOOD PLC,
a company registered in
Ireland (under
number 11861),
having its registered office at
Kilbarry,
Waterford (the "Company"). |
THIS DEED WITNESSES as
follows:
|
|
| 1. |
Interpretation |
|
|
| (a) |
In
this Deed:- |
"Agreement", means
the Underwriting Agreement between J & E Davy, Xxxxxxxxxx and the
Company dated 20 June 2005;
"Xxxxxxxxxx", means Xxxxxxxxxx
Holdings Limited, an International Business Company registered in the
British Virgin Islands under number 458528, having its registered
office at Trident Xxxxxxxx, XX Xxx 000, Xxxx Xxxx, Xxxxxxx, Xxxxxxx
Xxxxxx Xxxxxxx; and
"Relevant
Portion" means, in the case of each Obligor, one
half.
|
|
| (b) |
In this Deed, a reference
to:- |
|
|
| (i) |
a statutory provision
includes a reference to the statutory provision as modified or
re-enacted or both from time to time before the date of this Deed and
any subordinate legislation made under the statutory provision before
the date of this Deed; |
|
|
| (ii) |
a person
includes a reference to a body corporate, association or
partnership; |
|
|
| (iii) |
a person includes a
reference to that person's legal personal representatives,
successors and permitted assigns;
and |
|
|
| (iv) |
a clause, unless the context
otherwise requires, is a reference to a clause of this
Deed. |
|
|
| (c) |
The headings in this Deed
do not affect its
interpretation. |
|
|
| 2. |
Undertaking
and Indemnity |
|
|
| (a) |
The Obligors
irrevocably and unconditionally undertake to the Company to procure the
due and punctual performance of each obligation of Xxxxxxxxxx contained
in the Agreement. The Obligors shall pay to the Company from time to
time on demand a sum of money which Xxxxxxxxxx is at any time liable to
pay to the Company under or pursuant to the Agreement and which has not
been paid at the due time for
payment. |
|
|
| (b) |
The Obligors irrevocably and
unconditionally agree to indemnify (and keep indemnified) the Company
on demand against any loss, liability or cost incurred by the Company
as a result of any obligation of Xxxxxxxxxx referred to in Clause 2(a)
above being or becoming void, voidable or unenforceable as against
Xxxxxxxxxx. The amount of the loss, liability or cost shall be equal to
the amount which the Company would otherwise have been entitled to
recover from Xxxxxxxxxx. |
2
|
|
| (c) |
The
Obligors' obligations under Clauses 2(a) and 2(b) are continuing
obligations and are not satisfied, discharged or affected by an
intermediate payment or settlement of account by or a change in the
constitution or control of, or merger or consolidation with any other
person of, or the insolvency of, or bankruptcy, winding up or analogous
proceedings relating to,
Xxxxxxxxxx. |
|
|
| (d) |
The Company may at
any time as it thinks fit, without reference to the Obligors and
without prejudice to the Obligors' obligations under this Clause
2, grant a time for payment or grant another indulgence or agree to an
amendment, variation, waiver or release in respect of an obligation of
Xxxxxxxxxx under the
Agreement. |
|
|
| (e) |
Each of the Obligors
waives any right he may have of first requiring the Company (or any
trustee or agent on its behalf) to proceed against or enforce any other
rights or security or claim payment from any person before claiming
from the Obligors under this Clause 2. This waiver applies irrespective
of any law or any provision of the Agreement to the
contrary. |
|
|
| (f) |
The liability of each
Obligor under this Deed shall be several. Notwithstanding any other
provision hereof, the proportion of each and every claim by the Company
hereunder which each Obligor shall be obliged to pay shall not in any
circumstances exceed his Relevant Portion of each such claim and the
aggregate of all claims against each Obligor hereunder shall never
exceed his Relevant Portion of the total of all claims of the Company
hereunder. |
|
|
| (g) |
Without prejudice to
Clause 2(f), each Obligor agrees to be bound by this Deed
notwithstanding that any other Obligor who was intended to execute or
to be bound by this Deed does not do so or is not effectively so bound
and notwithstanding that any of the obligations of the other Obligor
herein contained may be determined or become invalid or unenforceable
against such other Obligor and whether or not the same is known to the
Company or its officers, employees, agents or professional
advisers. |
|
|
| (h) |
This Deed shall not be
revoked or otherwise prejudiced or impaired as to any one or more of
the Obligors by the death, incapacity, bankruptcy or insolvency of any
other Obligor. |
|
|
| 3. |
Costs and Expenses |
All the Company's costs and expenses (including legal fees,
stamp duties and any value added tax) incurred in connection with the
enforcement of this Deed shall be reimbursed by the Obligors on demand
on a full indemnity basis together with interest from the date such
costs and expenses were incurred to the date of payment at 6%
per
annum.
|
|
| 4. |
General |
|
|
| (a) |
No
variation of this Deed is valid unless it is in writing and signed by
or on behalf of each party. |
|
|
| (b) |
The failure
to exercise or delay in exercising a right or remedy provided by this
Deed or by law does not constitute a waiver of the right or remedy or a
waiver of other rights or remedies. No single or partial exercise of a
right or remedy provided by this Deed or by law prevents further
exercise of the right or remedy or the exercise of another right or
remedy. |
|
|
| (c) |
The rights and remedies
contained in this Deed are cumulative and not exclusive of rights or
remedies provided by
law. |
|
|
| 5. |
Notices |
|
|
| (a) |
A
notice or other communication under or in connection with this Deed
shall be in writing and shall be delivered personally or sent by first
class post pre-paid recorded delivery (or air mail if overseas) or by
fax, to the party due to receive the notice or communication, at its
address set out in this Deed or another address specified by that party
by written notice to the others. |
3
|
|
| (b) |
In the absence of
evidence of earlier receipt, a notice or other communication is deemed
given:- |
|
|
| (i) |
if delivered personally,
when left at the address referred to in Clause
5(a); |
|
|
| (ii) |
if sent by mail except air
mail, two days after posting it; |
|
|
| (iii)
|
if sent by air mail, six days after posting it;
and |
|
|
| (iv) |
if sent by fax, on completion
of its transmission and receipt of a successful transmission report in
connection therewith. |
|
|
| 6. |
Governing Law and
Jurisdiction |
|
|
| (a) |
This Deed is governed by
Irish law. |
|
|
| (b) |
The courts of Ireland have
exclusive jurisdiction to hear and decide any suit, action or
proceedings, and to settle any disputes, which may arise out of or in
connection with this Deed (respectively,
"Proceedings" and
"Disputes") and, for these purposes, each
party irrevocably submits to the jurisdiction of the courts of
Ireland. |
|
|
| (c) |
Each party irrevocably waives
any objection which it might at any time have to the courts of Ireland
being nominated as the forum to hear and decide any Proceedings and to
settle any Disputes and agrees not to claim that the courts of Ireland
are not a convenient or appropriate
forum. |
|
|
| (d) |
Process by which any Proceedings
are begun in Ireland may be served on either Obligor by being delivered
to Xxxxxxxx Xxxxxx Xxxxxxxx, 00 Xxxxxxx Xxxxxx, Xxxxxx 0, Xxxxxxx, FAO
Xxxxxxx X'Xxxxxxx. Nothing contained in this clause affects the
right to serve process in another manner permitted by
law. |
|
|
| 7. |
Counterparts |
This Deed may
be executed in any number of counterparts each of which when executed
and delivered shall be an original, but all the counterparts together
shall constitute one and the same
instrument.
|
|
| 8. |
Delivery |
This Deed is
delivered on the date written at the start of the Deed.
4
SIGNED, SEALED AND DELIVERED
by the said XXX XXXXXXX X'XXXXXX
in the presence
of:
|
Xxx X.
Xxxxxxx |
|
Duly
authorised Attorney for
Xxx Xxxxxxx X'Xxxxxx |
Xxxxx Xxxxxxx
Solicitor
00 Xxxxxxx
Xxxxxx
Xxxxxx 0
|
Xxxxx
Xxxxxxx |
|
Witness |
SIGNED, SEALED AND DELIVERED
by the said XX.
XXXXX XXXX XXXXXXXXXX
in the presence of:
|
Xxx X. Xxxxxxx |
|
Duly authorised
Attorney for
Xxxxx Xxxx Xxxxxxxxxx |
Xxxxx Xxxxxxx
Solicitor
00 Xxxxxxx
Xxxxxx
Xxxxxx 0
|
Xxxxx
Xxxxxxx |
|
Witness |
PRESENT when the common seal
of WATERFORD
WEDGWOOD PLC
was affixed
hereto:
|
Xxxxxxx X'Xxxxxxxx |
|
Director |
|
Xxxxxxx Xxxxxxx |
|
Director/Secretary |
5
