EXHIBIT 10.4
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Dated: August 6, 1999
(1) WISCONSIN CENTRAL INTERNATIONAL, INC.
AND
(2) XXXXXX X. XXXXXXXXX,
an individual
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DEED RELATING TO THE SALE AND PURCHASE OF
SHARES AND OPTIONS IN ENGLISH WELSH AND
SCOTTISH RAILWAY HOLDINGS LIMITED
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THIS DEED is made on August 6, 1999.
BETWEEN:
(1) WISCONSIN CENTRAL INTERNATIONAL, INC., a Delaware corporation whose
principal place of business is at Xxx X'Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx
00000, XXX ("WCI" or "Transferee"); and
(2) XXXXXX X. XXXXXXXXX, an individual ("Xxxxxxxxx" or "Seller").
WHEREAS:
(A) Seller owns 200,000 ordinary shares in English Welsh & Scottish Railway
Holdings Limited ("EWS") and Directors Share Options to acquire an
additional 100,000 ordinary shares in EWS (together the "Xxxxxxxxx EWS
Shares"); and
(B) Seller has agreed to sell and Transferee has agreed to buy and pay for
the Xxxxxxxxx EWS Shares on the terms set forth in this Deed.
THIS DEED WITNESSES as follows:
1. INTERPRETATION
1.1 In this Deed:
"Xxxxxxxxx EWS Shares" has the meaning given in Recital (A);
"Completion" means completion of the sale and purchase of the
Xxxxxxxxx EWS Shares in accordance with the provisions of this Deed;
"Directors Share Options" means the options granted to Xxxxxxxxx to
acquire 100,000 ordinary shares in EWS for (pound)1.00 per share;
"Encumbrance" means a mortgage, charge, pledge, lien, option,
restriction, right of preemption, third party right or interest, any
other encumbrance or security interest of any kind, and any other type
of preferential arrangement (including, without limitation, title
transfer and retention arrangements) having a similar effect (but
excluding the Shareholder Agreement among certain shareholders of EWS).
1.2 In this Deed a reference to a clause, paragraph or schedule, unless the
context otherwise requires, is a reference to a clause, paragraph or
schedule to this Deed.
1.3 The headings in this Deed shall not affect the interpretation of this
Deed.
2. TRANSFER OF SHARES
2.1 In accordance with and subject to the terms of this Deed, Seller:
2.1.1 agrees to transfer to WCI the 200,000 shares in EWS
included in the Xxxxxxxxx EWS Shares; and
2.1.2 agrees to assign to WCI (subject to the consent of EWS
to be obtained by WCI) the Directors Share Options included in
the Xxxxxxxxx EWS Shares representing the right to acquire
100,000 shares in EWS.
3. SALE AND PURCHASE
3.1 In accordance with and subject to the terms of this Deed, Xxxxxxxxx
agrees to sell and WCI agrees to buy the Xxxxxxxxx EWS Shares and each
right attaching thereto at or after the date of this Deed on the
following basis:
3.1.1 200,000 Xxxxxxxxx EWS Shares free from any Encumbrance for a
price of $4.788586 per share and an aggregate price of
$957,717.20;
3.1.2 (subject to EWS's consent) an assignment of the Directors
Share Options included in the Xxxxxxxxx EWS Shares
representing the right to acquire 100,000 shares in EWS, free
from any Encumbrance for a price of $2.3397 per option and an
aggregate price of $233,970.00.
3.2 The total purchase price to be paid to Xxxxxxxxx by WCI for the
Xxxxxxxxx EWS Shares referred to in Clause 3.1 of this Deed is
$1,191,687.20.
4. COMPLETION
4.1 Completion shall take place at the offices of WCI on the signing of
this Deed.
4.2 At Completion Xxxxxxxxx shall deliver to WCI duly executed transfers in
respect of the 200,000 Xxxxxxxxx EWS Shares and the share certificate
for such shares and an assignment of the Director Share Options
granting WCI the right to acquire 100,000 shares in EWS for (pound)1.00
per share by giving notice of exercise directly to EWS.
4.3 At Completion WCI shall pay the amount stated in Clause 3.2 of this
Deed to Xxxxxxxxx or as Xxxxxxxxx directs by wire transfer of
immediately available funds.
5. FURTHER ASSURANCE; REPRESENTATIONS AND WARRANTIES; CONSENTS
5.1 Seller shall do and execute, or procure to be done and executed, all
acts, deeds, documents and things as may be reasonably requested of him
by the Transferee to give effect to this Deed.
5.2 Seller represents and warrants to Transferee that:
5.2.1 He is the legal and beneficial owner of all rights in
and to the Xxxxxxxxx EWS Shares, free and clear of any
Encumbrance, and, in the case of shares covered by Directors
Share Options, subject to exercise of such Directors Share
Options;
5.2.2 The transfer of legal and beneficial ownership of the
Xxxxxxxxx EWS shares to Transferee pursuant to this Deed is
rightful and does not violate any law, regulation or agreement
applicable to Xxxxxxxxx; and
5.2.3 Upon Completion the Transferee will be the sole legal
and beneficial owner of the Xxxxxxxxx EWS Shares subject in
the case of shares covered by Directors Share Options, to
exercise by the Transferee of the Directors Share Options.
6. COSTS
Each party shall pay its own costs relating to the negotiation,
preparation, execution and performance by it of this Deed and of each
document referred to in it.
7. PARTIAL INVALIDITY, ILLEGALITY OR UNENFORCEABILITY
The invalidity, illegality or unenforceability of any provision of this
Deed shall not affect the continuation in force of the remainder of
this Deed.
8. EXCLUSION OF IMPLIED RELATIONSHIPS
Nothing in this Deed shall be deemed or construed to constitute any
party a partner, agent or representative of any other party and no
party shall have the authority to act for, or to incur any obligation
on behalf of, any other party.
9. NOTICES
9.1 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 prepaid recorded delivery (or air mail if overseas) or by
telex, 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.
9.2 In the absence of evidence of earlier receipt, a notice or other
communication under or in connection with this Deed is deemed given:
9.2.1 if delivered personally, when left at the address referred to
in Clause 9.1 of this Deed;
9.2.2 if sent by mail, two days after posting it;
9.2.3 if sent by air mail, six days after posting it;
9.2.4 if sent by telex, when the proper answer-back is received; and
9.2.5 if sent by fax, on completion of its transmission.
10. NO RELIANCE
Each of the parties to this Deed is a beneficial holder of shares in
EWS, and each party has made its own determination to effect the
transactions contemplated by this Deed without reliance on any
statements or representations, express or implied, of any party, other
than the express representations and warranties in this Deed.
11. GOVERNING LAW
This Deed is governed by, and shall be construed in accordance with,
the law of Illinois and each party submits to the non-exclusive
jurisdiction of the courts of Illinois.
12. COUNTERPARTS
This Deed may be executed in any number of counterparts each of which
when executed and delivered shall be deemed an original, but all the
counterparts together shall constitute the same document.
13. DELIVERY
This Deed is delivered on the date written at the start of this Deed.
EXECUTED by the parties as a deed
Executed as a deed by
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XXXXXX X. XXXXXXXXX
Executed as a deed by WISCONSIN CENTRAL INTERNATIONAL, INC.
By___________________________
Title:
