Exhibit
4.12
WATERFORD WEDGWOOD PLC
XXX XXXXXXX X'XXXXXX
- and
-
XX XXXXX XXXX XXXXXXXXXX
RELATIONSHIP AGREEMENT
XXXXXXX XXX
Solicitors
Xxxxxxxxxx Xxxxx
Xxxxxx Xxxxx
Xxxxxx 0
002542.0201.BMC
TABLE OF CONTENTS
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| 1. |
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DEFINITIONS |
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3 |
| 2. |
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EFFECTIVE
DATE |
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5 |
| 3. |
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UNDERTAKINGS |
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5 |
| 4. |
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DIRECTOR
CONFLICTS |
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| 5. |
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ENFORCEMENT |
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| 6. |
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TERMINATION |
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| 7. |
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MODIFICATION |
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6 |
| 8. |
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SEVERABILITY |
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6 |
| 9. |
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COUNTERPARTS |
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6 |
| 10. |
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CONSTRUCTION |
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6 |
| 11. |
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CAPTIONS |
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7 |
| 12. |
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GOVERNING
LAW |
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7 |
| 13. |
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NOTICE |
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7 |
| 14. |
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CONFLICT OR
INCONSISTENCY |
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7 |
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2
THIS AGREEMENT is made on 14
December 2004
BETWEEN:
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WATERFORD
WEDGWOOD plc,
a Public Limited Company registered in
Ireland
under number 11861 whose registered
office is at Kilbarry,
Waterford, Ireland
(hereinafter referred to as the
"Company") |
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XXX
XXXXXXX X'XXXXXX
of Lissadell, Xxxxxx Xxx, Nassau,
Bahamas
(hereinafter referred to as "Xxx Xxxxxxx
X'Xxxxxx") |
- and -
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XX XXXXX XXXX XXXXXXXXXX
of Sea Saga,
Edgewater Drive, Xxxxxx Xxx, Nassau, Bahamas
(hereinafter referred
to as "Xx Xxxxxxxxxx") |
WHEREAS:
A. The Company has at the date
of this Agreement an authorised share capital of
€210,000,000 divided into 3,500,000,000 ordinary shares of
€0.06 each, of which 996,987,229 are in issue and fully
paid up.
B. The Company proposes to raise up to
€100,000,000 (before commissions and expenses) by means of
the issue of the Rights Issue Units (as defined below) on the terms to
be set out in the Listing Particulars (as defined below).
C. The Company must comply with the Listing Rules (as defined
below), which require the Company to be capable at all times of
carrying on its business independently of any Controlling Shareholder
(as defined below), including any Associate (as defined below) thereof,
and all transactions and relationships between the Company and any
Controlling Shareholder or Associate thereof to be at arm's
length and on a normal commercial basis.
D. Each of Xxx
Xxxxxxx X'Xxxxxx and Xx Xxxxxxxxxx may become a Controlling
Shareholder (as defined below) following completion of the Underwriting
(as defined below).
E. The Company, Xxx Xxxxxxx
X'Xxxxxx and Xx Xxxxxxxxxx have entered into this Agreement for
the purposes of the Listing Rules, including in particular paragraphs
3.12 and 3.13 of the Listing Rules.
NOW IN CONSIDERATION
OF Xxx Xxxxxxx X'Xxxxxx and Xx Xxxxxxxxxx agreeing to enter into
certain undertakings to the Company upon and subject to the terms and
conditions of this Agreement, and in consideration of the receipt of
the sum of €1.00 by each of the parties hereto from each
of the other parties hereto (the receipt of which is hereby
acknowledged) and for other valuable consideration the sufficiency of
which is hereby acknowledged, IT IS HEREBY AGREED AS
FOLLOWS:
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| 1. |
Definitions |
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In this Agreement the following expressions
shall have the following meanings unless the context otherwise
requires: |
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(a) |
"Articles",
the Articles of Association of the Company for the time being and as
amended from time to
time; |
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(b) |
"Associate",
the meaning given to such expression in paragraphs 11.1(d) and (e) of
the Listing Rules (for the time being and as amended from time to
time); |
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(c) |
"Board",
the Board of Directors of the Company for the time being and from time
to time; |
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(d) |
"Controlling
Shareholder", the meaning given to such expression in
paragraph 3.13 of the Listing Rules (for the time being and as amended
from time to
time); |
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(e) |
"Current
Relationship Directors", Xxx Xxxxxxx X'Xxxxxx, Xx
Xxxxxxxxxx, Lady Chyrss X'Xxxxxx and Xx Xxxx X'Xxxxxx,
Jnr.; |
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(f) |
"Directors",
the Directors of the Company for the time being and from time to
time; |
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(g) |
"Group",
the Company and its subsidiaries and subsidiary undertakings for the
time being and from time to time and "member of the
Group" means any one of them; |
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(h) |
"Holding",
the interest of the Principal Shareholders in the equity share capital
of the
Company; |
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(i) |
"Income
Shares", non-voting shares of nominal value Stg 1p each in
the capital of Waterford Wedgwood UK plc which, when issued with and
tied to an Ordinary Share, entitle holders of Stock Units to elect to
receive dividends paid from UK-sourced profits; |
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(j) |
"Independent
Board", for the purposes of each particular determination
to be made by the Board for the purposes of Clauses 3 and 4 of this
Agreement, the Independent
Directors; |
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(k) |
"Independent
Directors", now the Directors other than the Current
Relationship Directors and, on an ongoing basis the Directors other
than the Current Relationship Directors and any Director connected to
one or both of the Principal Shareholders within the meaning of Section
26 of the Companies Xxx 0000 (as amended by Section 76 of the Company
Law Enforcement Act 2001) and any Director who has a significant and
direct business relationship with either or both of the Principal
Shareholders which, in the reasonable opinion of the Independent Board
(excluding also the Director whose relationship is being considered),
would materially interfere with the exercise by him/her of independent
judgment on such
matter; |
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(l) |
"Irish Stock
Exchange", The Irish Stock Exchange
Limited; |
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(m) |
"Listing
Particulars", 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; |
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(n) |
"Listing
Rules", the listing rules of the Irish Stock Exchange
and/or, where appropriate, the listing rules of the UK Listing
Authority, as they may be varied and amended from time to time; |
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(o) |
"London Stock
Exchange", The London Stock Exchange plc; |
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(p) |
"Ordinary
Shares", ordinary shares of nominal value
€0.06 each in the capital of the Company; |
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(q) |
"Principal
Shareholders", Xxx Xxxxxxx X'Xxxxxx and Xx
Xxxxxxxxxx; |
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(r) |
"Regulations",
the European Communities (Stock Exchange) Regulations 1984 and the
European Communities (Transferable Securities and Stock Exchange)
Regulations 1992; |
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(s) |
"Rights
Issue", the issue of 1,661,645,381 Stock Units to holders
of Stock Units on the basis of 5 Rights Issue Units for every 3 Stock
Units held announced by the Company on 21 October
2004; |
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(t) |
"Rights Issue
Units", 1,661,645,381 Stock Units to be issued pursuant to
the Rights Issue; |
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(u) |
"Stock
Exchanges", together the Irish Stock Exchange and the
London Stock Exchange and either of them a "Stock
Exchange"; |
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(v) |
"Stock
Unit", one Ordinary Share and one Income Share, which are
twinned; |
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(w) |
"UKLA",
or "UK Listing Authority", the Financial
Services Authority acting in its capacity as the competent authority
for the purposes of Part VI of the Financial Services and Markets Xxx
0000 of the United Kingdom; and |
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(x) |
"Underwriting",
the underwriting of the Rights Issue in accordance with the terms of
the conditional Underwriting Agreement dated 21 October 2004 between
the Company, Xxxxxxxxxx Holdings Limited and J&E
Davy. |
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| 2. |
Effective
Date |
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(a) |
The provisions of this
Agreement shall come into effect on the date that either or both of the
Principal Shareholders becomes a Controlling Shareholder of the Company
pursuant to the Rights Issue and shall have no effect in the period
prior to that date. If such event has not occurred on or before 28
February 2005 or such later date as may be agreed, in writing, between
the parties (being in any event no earlier than the date upon which the
Principal Shareholder(s) would, if required, subscribe for Rights Issue
Units pursuant to the Underwriting), this Agreement shall terminate and
be of no further effect. |
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(b) |
Notwithstanding any other provision of
this Agreement, nothing in this Agreement shall require the Principal
Shareholders to abstain, or procure the abstention, from voting, for
the avoidance of doubt in their capacity as Shareholders in the Company
only, the Stock Units attributable to the Holding in respect of the
ordinary resolution to be proposed at an Extraordinary General Meeting
of the Company proposed to be held on 10 January 2005 provided always
that the Principal Shareholders will comply with the provisions of
Chapter 11 of the Listing Rules and will so demonstrate to the
satisfaction of the Irish Stock Exchange and the UKLA as required,
prior to taking any action in accordance with this Clause
2(b). |
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| 3. |
Undertakings |
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Each of the Principal Shareholders hereby
undertakes to the Company, from the time when either of them becomes a
Controlling Shareholder pursuant to the Rights Issue,
that: |
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(a) |
he shall exercise, or procure
the exercise of, the voting rights in the Company attributable to the
Holding so as to ensure that the Company and/or the Group is capable at
all times of carrying on its business independently of him and/or his
Associates; |
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(b) |
all transactions and
relationships between him and/or any entity interested in the Holding
and/or his Associates and the Group are conducted at arm's length
and on a normal commercial
basis; |
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(c) |
he will abstain, or procure
the abstention, from voting the Stock Units attributable to the Holding
in general meetings of the Company in respect of any contract or
arrangement in which, in the reasonable opinion of the Independent
Board, he has a material interest; |
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(d) |
he will not exercise, or procure the
exercise of, the voting rights in the Company attributable to the
Holding in favour of any amendment to the Articles which would be
inconsistent with, or in violation of, the terms of this Agreement;
and |
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(e) |
he will procure that, within
seven days of becoming aware of a significant acquisition opportunity
of a non-publicly quoted company in the luxury crystal and ceramics
businesses, the Company will be provided with notice of that investment
opportunity and he and his Associates will not pursue such acquisition
opportunity if within a period of five business days the Company
notifies him of its intention to take up such acquisition
opportunity. |
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| 4. |
Director Conflicts |
Each of the parties to this Agreement hereby undertakes to procure
that during the term of this
Agreement:
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(a) |
in respect of any Board
resolution relating to any transaction between any member of the Group
and either or both of the Principal Shareholders, no member of the
Board may exercise a vote if he/she: |
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(i) |
is a Current
Relationship Director; |
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(ii) |
is
connected to one or both of the Principal Shareholders within the
meaning of Section 26 of the Companies Xxx 0000 (as amended by Section
76 of the Company Law Enforcement Act 2001); or |
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(iii) |
has a significant and direct
business relationship with either or both of the Principal Shareholders
which, in the reasonable opinion of the Independent Board (excluding
those members who fall within paragraphs (i) and (ii) and the director
whose relationship is being considered), would materially interfere
with the exercise by him/her of independent judgment on such matter;
and |
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(b) |
the requirements of the
Listing Rules in respect of Controlling Shareholders, insofar as they
relate to the Principal Shareholders, be complied
with. |
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| 5. |
Enforcement |
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Each of the Principal Shareholders and the
Company agree that, if at any time hereafter it proves necessary to
enforce any of the provisions of this Agreement, the decision as to any
such enforcement shall be taken at a meeting of the Board (or a
committee of the Board) comprised solely, in either case, of
Independent
Directors. |
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| 6. |
Termination |
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(a) |
The
provisions of this Agreement shall terminate, without the need for any
further or other action: |
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(i) |
if both of
the Principal Shareholders cease to be Controlling Shareholders under
the provisions of the Listing Rules;
or |
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(ii) |
if the Company ceases to be
admitted to the Official Lists of the Irish Stock Exchange and the
London Stock Exchange. |
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(b) |
The Company
shall be entitled to terminate this Agreement if at any time during the
term of this Agreement the Listing Rules are amended so as to obviate
the necessity for this
Agreement. |
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| 7. |
Modification |
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No modification of any provision of this
Agreement shall be binding unless the same shall be evidenced in
writing duly executed by or on behalf of each of the parties
hereto. |
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| 8. |
Severability |
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If at any time any one or more of the provisions
of this Agreement or any part thereof is or becomes invalid, illegal or
unenforceable in any respect under any law, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired thereby and the parties agree that, in such
circumstances, full effect shall be given to such provision in the
reduced or amended form. |
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| 9. |
Counterparts |
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This Agreement may be executed in any number of
counterparts, each of which when executed and delivered shall
constitute an original and all such counterparts together shall
constitute one and the same
instrument. |
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| 10. |
Construction |
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(a) |
Any
reference to any provision of any legislation shall include any
modification, re-enactment or extension thereof. Any reference to any
provision of any legislation shall be a reference to legislation of the
Republic of Ireland unless the context clearly indicates the
contrary. |
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(b) |
Words such as
"hereunder",
"hereto", "hereof"
and "herein" and other words commencing with
"here" shall, unless the context clearly
indicates to the contrary, refer to the whole of this Agreement and not
to any particular clause or paragraph
thereof. |
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(c) |
Save as otherwise provided
herein, any reference to a clause, paragraph or sub-paragraph shall be
a reference to a clause, paragraph or sub-paragraph, as the case may
be, of this Agreement and any reference in a clause or paragraph to a
paragraph or sub-paragraph shall be a reference to a paragraph or
sub-paragraph of the clause or paragraph in which the reference is
contained, unless it appears from the context that a reference to some
other provision is intended. |
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(d) |
Except
where the context otherwise requires, words denoting the singular
include the plural and vice versa, words denoting any one gender
include all genders and words denoting persons include corporations and
vice versa. |
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| 11. |
Captions |
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The captions to the clauses of this Agreement
are inserted for convenience of reference only and shall not be
considered a part of or affect the construction or interpretation of
this Agreement. |
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| 12. |
Governing Law |
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This Agreement shall in all respects (including
the formation thereof and performance thereunder) be governed by and
construed in accordance with the laws of
Ireland. |
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| 13. |
Notice |
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(a) |
Any
notice or other communication required or permitted to be given or made
hereunder to a party hereto shall be delivered or sent by letter to the
address listed after his or its name herein or to such other address as
such party hereto may from time to time notify to the other parties
hereto in writing in accordance with the provisions
hereof. |
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(b) |
Any notice or other
communication required or permitted to be given or made hereunder shall
be validly given or made if delivered personally or despatched by
prepaid internationally recognised courier service or by prepaid letter
post addressed as aforesaid and shall be deemed to be given or
made: |
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(i) |
delivered by hand or by
courier – at the time of delivery;
or |
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(ii) |
sent by post – one
hundred and twenty hours after the same shall have been
posted. |
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| 14. |
Conflict or Inconsistency |
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In the case of any conflict or inconsistency
between the provisions of this Agreement and the provisions of the
Articles, the provisions of this Agreement shall prevail. |
IN WITNESS whereof this Agreement has been entered into the
day and year first herein written.
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| SIGNED, SEALED AND
DELIVERED |
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| by the said XXX XXXXXXX
X'XXXXXX |
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Xxxxxxx
X'Xxxxxx |
| in the presence of: |
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Xxx
Xxxxxxx X'Xxxxxx |
Xxxxxxx X'Xxxxxxx
00
Xxxxxxx Xxxxxx
Xxxxxx 0
Solicitor |
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Xxxxxxx
X'Xxxxxxx |
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Witness |
| SIGNED, SEALED AND
DELIVERED |
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| by the said XXXXX XXXX
XXXXXXXXXX |
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Xxxxx Xxxx Xxxxxxxxxx |
| in the presence of: |
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Xxxxx Xxxx
Xxxxxxxxxx |
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Xxxxx
Xxxx |
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Witness |
| PRESENT when the common
seal |
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| of WATERFORD WEDGWOOD
plc |
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Xxxx X'Xxxxx |
| was affixed hereto: |
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Director |
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Xxxxxxx
Xxxxxxx |
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Director/Secretary |
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