Exhibit
4.15
[XXXXXXXX CHANCE LOGO TO
COME]
XXX XXXXXXX X'XXXXXX AND XXXXX
XXXX XXXXXXXXXX
AND
WATERFORD WEDGWOOD
PLC
DEED OF
UNDERTAKING
THIS DEED is made on 21
October 2004
BETWEEN:
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| (1) |
XXX
XXXXXXX X'XXXXXX of Lissadell, Xxxxxx Xxx, Nassau,
Bahamas, AND XXXXX XXXX XXXXXXXXXX of Sea Saga, Edgewater Drive,
Xxxxxx Xxx, Nassau, Bahamas (each an
"Obligor" and together the
"Obligors");
and |
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| (2) |
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:
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| 1. |
INTERPRETATION |
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| 1.1 |
In
this Deed: |
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"Agreement"
means the Underwriting Agreement between J & E Davy, Xxxxxxxxxx and
the Company dated 21 October 2004; |
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"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 |
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"Relevant
Portion" means, in the case of each Obligor, one
half. |
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| 1.2 |
In this Deed, a reference
to: |
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1.2.1 |
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; |
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1.2.2 |
a person
includes a reference to a body corporate, association or
partnership; |
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1.2.3 |
a person includes
a reference to that person's legal personal representatives,
successors and permitted assigns;
and |
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1.2.4 |
a clause, unless the
context otherwise requires, is a reference to a clause of this
Deed. |
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| 1.3 |
The headings in this Deed do
not affect its
interpretation. |
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| 2. |
UNDERTAKING AND
INDEMNITY |
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| 2.1 |
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. |
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| 2.2 |
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 2.1
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. |
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| 2.3 |
The
Obligors' obligations under clauses 2.1 and 2.2 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. |
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| 2.4 |
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. |
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| 2.5 |
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. |
2
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| 2.6 |
The liability
of each Obligor under this Undertaking 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. |
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| 2.7 |
Without prejudice to
Clause 2.6, each Obligor agrees to be bound by this Undertaking
notwithstanding that any other Obligor who was intended to execute or
to be bound by this Undertaking 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. |
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| 2.8 |
This Undertaking 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. |
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| 3. |
COSTS AND
EXPENSES |
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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%. |
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| 4. |
GENERAL |
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| 4.1 |
No
variation of this Deed is valid unless it is in writing and signed by
or on behalf of each party. |
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| 4.2 |
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. |
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| 4.3 |
The rights and
remedies contained in this Deed are cumulative and not exclusive of
rights or remedies provided by
law. |
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| 5. |
NOTICES |
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| 5.1 |
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 other. |
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| 5.2 |
In
the absence of evidence of earlier receipt, a notice or other
communication is deemed
given: |
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5.2.1 |
if delivered personally,
when left at the address referred to in clause
5.1; |
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5.2.2 |
if sent by mail except air
mail, two days after posting
it; |
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5.2.3 |
if sent by air mail, six
days after posting it; and |
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5.2.4 |
if
sent by fax, on completion of its transmission and receipt of a
successful transmission report in connection
therewith. |
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| 6. |
GOVERNING LAW AND
JURISDICTION |
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| 6.1 |
This Deed is
governed by Irish law. |
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| 6.2 |
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. |
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| 6.3 |
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. |
3
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| 6.4 |
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. |
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| 7. |
COUNTERPARTS |
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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. |
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| 8. |
DELIVERY |
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This Deed is delivered on the date written at
the start of the Deed. |
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EXECUTED
by the parties as a deed
EXECUTED AS A DEED by
XXX XXXXXXX X'XXXXXX
In the presence
of:
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| Signature: |
Xxxxxxx
Xxxxxxx |
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| Name: |
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| Address: |
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EXECUTED
AS A DEED by
XXXXX XXXX XXXXXXXXXX
In
the presence of:
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| Signature: |
Xxxxxxx
Xxxxxxx |
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| Name: |
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| Address: |
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5
The common seal of
WATERFORD
WEDGWOOD PLC
was affixed to this deed
in the presence
of
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| Xxxxx
XxXxxxx |
Signature of
director |
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Name of
director |
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| Xxxxxxx
Xxxxxxx |
Signature of
director/secretary |
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Name of
director/secretary |
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