Iconic Sports Eagle Investment, LLC v John Textor [2025] EWHC 2620 (Comm)

[2025] EWHC 2620 (Comm)

Case No CL-2025-000308

IN THE HIGH COURT OF JUSTICE

BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES

COMMERCIAL COURT (KBD)

Venue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NL

Date 17/10/2025

Before

HIS HONOUR JUDGE PELLING KC

SITTING AS A JUDGE OF THE HIGH COURT

Between

ICONIC SPORTS EAGLE INVESTMENT, LLCClaimant

JOHN TEXTORDefendant

Ryan Perkins (instructed by Kirkland & Ellis International LLP) for Claimant

David Davies KC and Owen Lloyd (instructed by Reynolds Porter Chamberlain LLP) for Defendant

Hearing Hearing dates: 29-30 September 2025

Approved Judgment

This judgment was handed down remotely at 9.15am on 17 October 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

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HIS HONOUR JUDGE PELLING KC SITTING AS A JUDGE OF THE HIGH COURT

HH Judge Pelling KC:

[1]This is the expedited trial of three preliminary issues which were intended to determine whether the defendant (“JT”) is liable to pay what is now over US$93 million to the claimant (“Iconic”) as the price for purchasing certain shares from Iconic under a Put Option Agreement dated 16 November 2022 (the “Put Option Agreement”).

[2]I directed this trial by an Order made by me on 13 August 2025 on the hearing of an application by JT for an injunction that would have restrained Iconic from enforcing its rights under a share charge dated 9 December 2022 that JT had executed as security for his obligations to Iconic under the Put Option Agreement. On that application JT maintained that he was not liable to pay anything to Iconic under the Put Option Agreement. Given the nature of the arguments being advanced, the tests that apply to the grant of interim prohibitory injunctions and the commercial importance of the issues that arose, I suggested that it might be more appropriate for the issues to be resolved by trial of preliminary issues that would resolve these issues. The parties agreed with that approach. I set out the preliminary issues I have to determine below, having set out the relevant background. I set out at the end of this judgment the answers I give to each of the issues I have been asked to resolve. Factual and Contractual Background. The Commercial Background

[3]The company at the heart of this dispute is Eagle Football Holdings Limited (“Eagle”), a private English registered company with equity interests in various football clubs around the world including a Brazilian club known as Botafogo and a French club known as Olympique Lyonnais. Until July 2025 Eagle also held an interest in Crystal Palace F.C. This is relevant to an understanding of some of the correspondence referred to later. Eagle’s principal secured lender is an investment fund ultimately controlled by Ares Capital Corporation (“Ares”). JT is the founder, 65% shareholder in, and the Chairman, and Chief Executive Officer of Eagle.

[4]Iconic is an investment vehicle for three experienced US based investors (Jamie Dinan (“Mr Dinan”), Alexander Knaster (“Mr Knaster”) and Edward Eisler (“Mr Eisler”)), all of whom operate their own very substantial investment funds. Each is an enormously experienced private equity investor principally using United States approved and regulated structures.

[5]The circumstances leading to this present dispute start in late 2021, when Iconic invested US$75 million into Eagle. This was structured as an equity investment. Iconic received an allocation of 8,250 shares in Eagle (the “Option Shares”), representing about 15% of Eagle’s share capital. The intention was for Eagle to then become a publicly listed company through what is known in United States investment circles as a “De-SPAC” transaction. The details concerning this form of investment do not matter for the purposes of this dispute. However in summary a “SPAC” is a special purpose acquisition company listed on a public stock exchange, which is typically founded, managed and advised by one or more experienced investors. The SPAC raises capital from new investors, and such capital is used to acquire or merge with one or more private companies selected by those managing or advising the SPAC thereby taking the relevant private companies public and generating a significant financial return for shareholders of the private company concerned. The latter process is known as a “De-SPAC”.

[6]In this case, Messrs Dinan, Knaster and Eisler founded a SPAC called Iconic Sports Acquisition Corp (“ISAC”), which was listed on the New York Stock Exchange. They caused Iconic to invest in Eagle as described above for the purpose of ISAC acquiring the issued shares in Eagle. The Eagle De-SPAC failed for reasons that were not examined during, and are immaterial to the issues for determination at, this trial.

[7]Since Iconic’s investment in Eagle was an equity rather than a debt investment, it was improbable that it would recover its investment unless the De-SPAC succeeded. Since the failure of the De-SPAC was a foreseeable outcome, Iconic sought to arrange its investment so as to enable it to recover its outlay and interest in the event that the De-SPAC offer failed. This it sought to do by entering into the Put Option Agreement. Iconic maintains and I accept that without the Put Option Agreement Iconic would not have invested in Eagle. Its general effect was to confer on Iconic a legal right to require JT to purchase the Option Shares for US$75 million, plus interest thereon from the date of a notice defined in the Put Option Agreement as the “Option Notice”. The sum payable is referred to in the Put Option Agreement as the “Aggregate Option Price”. In addition to the Put Option Agreement, Iconic took a charge over JT’s existing shares in Eagle pursuant to a “Share Charge Agreement”. Iconic sought the charge because all parties were aware that it might be necessary to sell JT’s shares and Iconic’s shares together in order to raise the Aggregate Option Price payable by JT to Iconic under the Put Option Agreement in the event that JT failed to purchase the Option Shares following the exercise by Iconic of its put option.

The Put Option Agreement

[8]The Put Option Agreement defined as an “Option Trigger Event” that “Iconic has not exercised its De-SPAC Option by 26 April 2023” and “Completion” as meaning “… the performance by Iconic and JT of the obligations assumed by them respectively under clauses 3.2 and 3.3…” of the Put Option Agreement. The substance of the Put Option Agreement was set out in Clauses 2-5, which in so far as is material for present purposes provided:

“2 Put Option 2.1 In consideration of the payment by Iconic to JT of the sum of £1 (receipt of which is acknowledged), JT hereby grants to Iconic (but not any of its transferees or assignees) the right (but not the obligation) (the Option), upon the occurrence of any Option Trigger Event to require JT (or his nominee) to purchase all of the Option Shares on the Transfer Terms. 2.2 The Option shall only be exercisable on one occasion. 2.3 In order to exercise the Option, Iconic shall deliver an irrevocable written notice (the Option Notice) during the Option Period. If Iconic timely exercises the Option, then the purchase of the Option Shares shall occur no later twelve (12) months after receipt of the Option Notice (the date that is twelve (12) months from the receipt of the Option Notice being the Repayment Date). … 3 Completion 3.1 Completion shall take place at the registered office of the Company (or at such other place as may be agreed in writing between the parties) on such date as agreed between the parties or failing such agreement, on the Repayment Date. 3.2 On Completion, Iconic: (a) shall deliver to JT: (i) a duly executed transfer of the Option Shares in favour of JT; (ii) the share certificate in respect of the Option Shares; (iii) any form of consent or waiver required from Iconic and (so far as it is able) any other member of the Company, to enable the transfer of the Option Shares to be registered in accordance with the Articles; and (iv) a duly executed irrevocable power of attorney (in a form reasonably acceptable to JT) in favour of JT (or such person as may be nominated by JT) generally in respect of the Option Shares and in particular to enable JT (or his nominee) to approve written resolutions circulated and to attend and vote at general meetings of the Company held during the period prior to the name of JT being entered on the register of members of the Company in respect of the Option Shares; (b) do such other acts and things and execute such other documents as shall be necessary or as JT may reasonably request to give effect to the sale of the Option Shares on the Transfer Terms. 3.3 Subject to Iconic complying with its obligations under clause 3.2, JT shall, on Completion, pay the Aggregate Option Price to Iconic on or before the Repayment Date. 3.4 If any of the provisions of clauses 3.2 or 3.3 are not complied with on the date agreed for Completion, the party not in default may (without prejudice to their other rights and remedies under this agreement or otherwise) defer Completion to a date not more than 20 Business Days after such date (and so that the provisions of this clause 3.4 shall apply to Completion as so deferred). … 4 Default Provisions 4.1 If JT (or his nominee, as applicable) fails to give effect to the Option and purchase Iconic’s Option Shares for the Aggregate Option Price by the Repayment Date in accordance with clause 3.3, the following shall occur: (a) Iconic shall be entitled to specific performance on the terms of the Option to the extent permitted by clause 7. … (c) Iconic shall, be entitled to exercise the proxy set forth in clause 5, subject to the exercise thereof not causing, triggering or accelerating (i) a change of control, (ii) event of default, or (iii) mandatory repayment or prepayment obligation, in each case of (i), (ii), and (iii), in respect of 10% or more of the financial indebtedness of Olympique Lyonnais or its subsidiaries pursuant to the then existing debt financing documentation of Olympique Lyonnais or its subsidiaries. (d) Iconic shall be entitled (but not obliged) after consultation with JT to initiate and lead a customary and fair sale process, led by a globally recognised investment bank, which is designed to achieve fair market value for the Option Shares being sold in accordance with clauses 4.2, 4.3 and 4.4 (“Sale Process”). … 4.4 Subject always to clause 4.3: (a) Where a Sale Process Option which falls within the scope of clause 4.2(a) is elected by Iconic and a third party is willing to purchase the Option Shares at a price which is lower than the Aggregate Option Price, JT shall pay to Iconic in cash an amount equal to the difference between such sale proceeds received by Iconic and the Aggregate Option Price. (b) Where a Sale Process Option which falls within the scope of clause 4.2(b) is elected by Iconic, Iconic shall have the right to drag all Ordinary Shares held by JT on the same terms and at the price proposed by the third party; provided that the proceeds from the sale shall be first allocated to Iconic up to an amount equal to the Aggregate Option Price, with all proceeds in excess of the Aggregate Option Price paid to JT. … 5 Appointment of proxy In the event that JT fails to comply with his obligation to satisfy the Aggregate Option Price on Completion in accordance with clause 3.3, JT hereby appoints Iconic as his agent and proxy with full power and authority in JT's name and on his/its behalf to vote and exercise control of the Ordinary Shares held by him in the manner which Iconic in its absolute discretion considers reasonably necessary in order for JT to comply with and perform his obligations under clause 4.”

The De-SPAC Option and the Events Thereafter

[9]The Shareholders’ Agreement established 26 April 2023 as the deadline by which the De-SPAC offer was to take place. That deadline was missed as I explain below and on 26 July 2023 Iconic exercised its rights under the Put Option Agreement by delivering an option notice in accordance with Clause 2.3 of the Put Option Agreement (“Option Notice”) to JT. It is not in dispute that Iconic was entitled to take this step. In so far as is material, the Option Notice provided that:

“We hereby give you irrevocable notice of the exercise of our Option and accordingly we require you to purchase all of our Option Shares on the terms set out in the Put Option Agreement. By exercising the Option on this day, we kindly remind you in particular that, pursuant to the terms of the Put Option Agreement: i. you (or your nominee) shall purchase our Option Shares in the Company before 26 July 2024, failing which, inter alia, (x) a Sale Process can be initiated by us which might lead to the sale of the combined Ordinary Shares held by you and us in the Company; and (y) we will be entitled to specific performance of the Option; … ”

By Paragraph 18(a) of his Defence on Preliminary Issues ("Defence"), JT admits the delivery to him of the Option Notice.

[10]JT did not raise the funds necessary to pay the Aggregate Option Price within the 12-month period required by Clause 2.3 of the Put Option Agreement. There is a dispute of fact as to what JT said about this issue at a meeting between JT and Mr Knaster on 15 July 2024. Iconic maintain that JT told Mr Knaster at that meeting that he would not be able to pay the Aggregate Option Price. In support of that case, Iconic relies on a contemporaneous email from Mr Knaster dated 16 July, in which he states that JT “… told me yesterday that by the 26th he will not repay…”. I return to this issue below. JT maintains that in any event this conversation is immaterial because it did not relieve Iconic of the obligation to perform its completion obligations unless and until the statement was treated as an anticipatory repudiatory breach of contract which was accepted. Iconic maintains that the effect of the conversation was to suspend the performance by Iconic of its completion obligations. In any event, by paragraph 32(c) of his Defence, JT admits that he “… was not ready to perform his obligation to make payment of the Aggregate Option Price on 26 July 2024 in circumstances where Mr Textor did not have financing in place at that date.” It is common ground that the put sale was not completed on 26 July 2024 or at all.

[11]JT maintains that on a proper construction of in particular Clause 3 of the Put Option Agreement, Iconic was obliged to tender executed versions of the documents identified in Clause 3 on the date fixed for Completion, that is 26 July 2024, as a condition precedent to his obligation to pay the Aggregate Option Price. It is common ground that Iconic did not do so. Iconic maintains that JT’s construction of Clause 3 is wrong and required no such thing. That construction issue is the subject of the first preliminary issue. It is common ground that if Iconic is correct in its construction of the Put Option Agreement then the completion obligations of the parties were concurrent or dependant obligations. JT maintains that this is to be tested on the date fixed for Completion and that Iconic was not at that date ready to complete because it had not obtained or prepared any of the documents it was required to hand over on Completion and had not attempted to obtain various third party consents which JT maintains are required before Iconic can sell the Option Shares to him. Iconic denies that the absence of such documents and consents (if, which is denied such consents were required to be obtained by it) does not demonstrate that it was not ready and willing to complete the sale of its shares to JT even if (contrary to its case) its obligation to complete was not suspended as a result of the conversation on 15 July referred to above. I return to that issue further below when considering the second preliminary issue.

[12]Returning to the chronology, Completion not having taken place, Iconic sent to JT a document entitled “Default Notice” dated 27 July 2024. It asserted that JT had breached Clause 3 of the Put Option Agreement by failing to purchase Iconic’s shares by the Repayment Date of 26 July 2024 and then stated:

“Clause 4.1 of the Put Option Agreement sets out the effect of you being in breach, which include: (i) the deemed interest rate applied to the Subscription Price for the purposes of calculating the Option Price shall, as from 26 July 2024, increase by one per cent. (1.0%) every three (3) months (up to a maximum annual interest rate of twenty percent (20%)); (ii) we are entitled to exercise the proxy set out in Clause 5 of the Put Option Agreement if we choose to do so; and (iii) we are entitled to specific performance on the terms of the Option. In addition, we have the right (pursuant to clause 4.1(d) of the Put Option Agreement), to initiate and lead a Sale Process which shall include a full range of monetization options, including a sale of the combined Ordinary Shares held by you and us. We intend to avail of ourselves of these rights and launch a Sales Process. … ”

[13]JT did not object to this process. He did not assert that Iconic had failed to comply with its obligations under Clause 3 or that as a consequence Iconic was not entitled to payment or to do as it proposed. Instead, as he put it in his email to Mr Dinan of 16 October 2024:

“You do have the right to market your shares, in pursuit of a fair market value sale, and I am happy to support your process. The impact on my shares is likely to be non-existent, though I am sure you might have your own opinions.”

However at the same time as Iconic was attempting to sell the Option Shares using the powers conferred by Clause 4 of the Put Option Agreement, JT was promoting the notion of an Initial Public Offering (“IPO”) of Eagle and made clear that he did not consider that what Iconic planned impacted on what he wished to achieve. Mr Dinan confined his response by email on 17 October 2024 to thanking JT for his confirmation that he would support the sale process and observing that it was “… in all parties interests for that process to be concluded as soon as possible…” The sale process did not work either with no offers being received either for Iconic’s shares or all the shares in Eagle. JT implicitly suggests that the sale process was not undertaken in good faith. That is not material to any issue I have to decide, the issue was not fully investigated during the course of this trial and I make no findings in relation to it other than to observe that no commercially rational reason has been identified as to why Iconic would wish to embark on a sale process in bad faith when it could have moved immediately to seek specific performance or why it would wish to do so when it was owed the Aggregate Option Price and a sale represented the most realistic prospect of recovering what it was owed.

[14]The sale process having failed, Iconic commenced these proceedings seeking specific performance of what it maintains is JT’s obligation to purchase Iconic’s shares in Eagle. JT resists that claim on the basis that he is under no obligation to purchase the Option Shares for the Aggregate Option Price as claimed by Iconic because (he maintains):(a) Iconic failed to comply with the terms of the Put Option Agreement and perform its prior obligation under Clause 3.2 with the result that JT’s obligation to pay the Aggregate Option Price was not triggered applying the express wording of Clause 3.3; and/or

(b) Iconic itself was not ready, willing and able to perform its obligations on the date for Completion.

The Preliminary Issues

[15]As I have said, JT sought an interim injunction restraining Iconic from exercising the rights it claimed arose by operation of the Share Charge Agreement in the events that had happened pending resolution of JT’s claim not to be liable to pay the Aggregate Option Price. The parties agreed on various undertakings and cross undertakings pending the trial of the preliminary issues, which it was agreed would finally resolve the issues summarised above. The agreed preliminary issues that were agreed were three in number being: i) whether, on the true construction of the Put Option Agreement, the obligations imposed by Clauses 3.2 and 3.3 are concurrent conditions (such that there was an express or implied term that both parties had to be ready and willing to perform those obligations on the Repayment Date) (“Issue 1”); ii) whether the Claimant was ready and willing to perform its obligations under Clause 3.2 of the Put Option Agreement on the Repayment Date (“Issue 2”); and iii) whether the Defendant was ready and willing to perform its obligations under Clause 3.3 of the Put Option Agreement on the Repayment Date (Issue 3”). In addition, after these preliminary issues had been agreed and ordered, Iconic identified a fourth issue that it maintained needed to be tried, being whether if JT is correct on the construction of the Put Option Agreement, he was nevertheless precluded from relying on the true effect of the Put Option Agreement by reason of an estoppel by convention (the “Estoppel Issue”). JT does not object to the Estoppel Issue being resolved at this trial whilst maintaining that is it a claim that is bound to fail. It is common ground that it does not arise if JT is wrong on the construction issue, the subject of Issue 1.

The Trial

[16]There was some factual evidence heard at trial. Whilst most of it is relevant only to Issue 2 and the Estoppel Issue it is convenient to note at this stage that I heard oral evidence(i) adduced on behalf of Iconic from Messrs Knaster and Dinan and from Mr Fausto Zanetton, the Founder and Chief Executive Officer of Tifosy Capital & Advisory, a sports sector consultancy that was retained as one of Iconic’s advisors during the period material to this dispute; and

(ii) from JT.

[17]I have approached this evidence by testing it wherever possible, against the contemporary documentation, admitted and incontrovertible facts and inherent probabilities – see Onassis and Calogeropoulos v. Vergottis

[1968] 2 Lloyds Rep 403

at 407 and 413 – and their subsequent conduct – see Bailey v. Graham

[2012] EWCA Civ 1469

per Sir Andrew Morritt CHC at [57]. Whilst it is necessary to consider all of the relevant evidence and not simply such documentation as may be available – see Kogan v. Martin

[2019] EWCA Civ 164

per Floyd LJ at [88]-[89] - there is nothing either in this authority or the requirement to consider all of the evidence that prevents the evaluation of oral evidence using the techniques referred to above – see Simetra Global Assets Ltd v Ikon Finance Ltd

[2019] EWCA Civ 1413

per Males LJ at [48], where he observed:

“… I would say something about the importance of contemporary documents as a means of getting at the truth, not only of what was going on, but also as to the motivation and state of mind of those concerned. That applies to documents passing between the parties, but with even greater force to a party’s internal documents including emails and instant messaging. Those tend to be the documents where a witness’s guard is down and their true thoughts are plain to see. Indeed, it has become a commonplace of judgments in commercial cases where there is often extensive disclosure to emphasise the importance of the contemporary documents. Although this cannot be regarded as a rule of law, those documents are generally regarded as far more reliable than the oral evidence of witnesses, still less their demeanour while giving evidence.”

Issue 1 – The Construction Issue The Parties’ Contentions

Issue 1 – The Construction Issue

[18]It is not in dispute that the Put Option established by the Put Option Agreement was exercisable and was in fact exercised by Iconic’s Option Notice of 26 July 2023, and that the contractual date for Completion was 26 July 2024, no earlier date having been agreed between the parties.

[19]JT maintains that as a matter of construction, Clause 3.2 of the Put Option Agreement (the text of which is reproduced above) required Iconic to deliver on Completion to JT(i) a duly executed transfer of the Option Shares;

(ii) the share certificates in respect of the Option Shares; and

(iii) a duly executed irrevocable power of attorney in respect of the Option Shares; that on 26 July 2024 it did no such thing and that in consequence the obligation on him to pay imposed by Clause 3.3 was not triggered because it was expressed to be “[s]ubject to Iconic complying with its obligations under clause 3.2…” and thus was conditional on Iconic complying with its obligations under Clause 3.2. JT contends that the time for compliance has now past and in the result, Iconic is entitled to nothing more than the shares in Eagle that it holds and has no other remedies available to it.

[20]Iconic contends that is wrong and that on their true construction the obligations imposed by Clauses 3.2 and 3.3 are concurrent or inter-dependant obligations with the obligation to provide the documents arising only if JT pays the Aggregate Option Price. It contends that all that must be established if it is to succeed in its claim for specific performance is that it was ready and willing to comply with its obligations and JT was not ready to comply with his, which as he accepts in his Defence he was not.

The Applicable principles

[21]The principles that apply as a matter of English law to the true construction of a contract are now almost trite. In summary:a. The Court construes the relevant words of a contract in its documentary, factual and commercial context assessed in the light of,

(i) the natural and ordinary meaning of the provision being construed;

(ii) any other relevant provisions of the contract being construed;

(iii) the overall purpose of the provision being construed and the contract in which it is contained;

(iv) the facts and circumstances known or assumed by the parties at the time the document was executed and

(v) commercial common sense but

(vi) disregarding subjective evidence of any party’s intentions - see Arnold v Britton

[2015] UKSC 36

[2015] AC169

per Lord Neuberger PSC at 15, the earlier cases he refers to in that paragraph and most recently Sara & Hossein Holdings Ltd v Blacks Outdoor Retail Ltd

[2023] UKSC 2

[2023] 1 WLR 575

per Lord Hamblen at 29 (1);

b. In carrying out this exercise it is necessary to consider the contract as a whole since it may be apparent from such a reading that the parties intended either a narrower or conceivably a wider meaning than the literal meaning of the words used might suggest when read in isolation - see Barclays Bank plc v Unicredit Bank AG

[2014] EWCA Civ 302

[2014] 2 or ER (Comm) 115 per Longmore LJ at paragraph 14 and Apache North Sea Limited v INEOS FPS Limited

[2020] EWHC 2081 (Comm)

per Foxton J at paragraph 21;

c. A Court can only consider facts known or reasonably available to both parties that existed at the time that the contract was made - see Arnold v Britton(ibid.) per Lord Neuberger PSC at paragraph 21. That which is known to one party alone is immaterial and what is reasonably available generally means what is readily available to all parties - see Investors Compensation Scheme Limited v West Bromwich Building Society

[1998] 1 WLR 896

per Lord Hoffmann at 912 to 913 and Toth v Emirates

[2012] EWHC 517 (Ch)

following Movie Network Channels Pty Ltd v Optus Vision Pty Ltd [2010] NSW CA 111;

d. In arriving at the true meaning and effect of a contract, the departure point in most cases will be the language used by the parties because (a) the parties have control over the language they use in the contract and (b) the parties must have been specifically focused on the issue covered by the disputed Clause or Clauses when agreeing the wording of that provision - see Arnold v Britton(ibid.) per Lord Neuberger PSC at paragraph 17;

e. Where the parties have used unambiguous language, the Court must apply it - see Rainy Sky SA v Kookmin Bank

[2011] UKSC 50

[2011] 1 WLR 2900

per Lord Clarke JSC at paragraph 23;

f. Where the language used by the parties is unclear, the Court can properly depart from its natural meaning where the context suggests that an alternative meaning more accurately reflects what a reasonable person with the parties’ actual and presumed knowledge would conclude the parties had meant by the language they used. However, that does not justify the Court searching for drafting errors and omissions in order to facilitate a departure from the natural meaning of the language used - see Arnold v Britton (ibid.) per Lord Neuberger PSC at paragraph 18;

g. If there are two possible constructions, the Court is entitled to prefer the construction which is consistent with business common sense and to reject the others - see Rainy Sky SA v Kookmin Bank (ibid.) per Lord Clarke JSC at paragraph 21. However, commercial common sense is relevant only to the extent of how matters would have been perceived by reasonable people in the position of the parties at the date when the contract was made - see Arnold v Britton (ibid.) per Lord Neuberger PSC at paragraph 19;

h. In striking a balance between the indications given by the language and those arising contextually, the Court should consider the quality of the drafting of the Clause and the agreement in which it appears - see Wood v Capita Insurance Services Ltd

[2017] UKSC 24

per Lord Hodge JSC at paragraph 11. Sophisticated, complex agreements drafted by skilled professionals are likely to be interpreted principally by textual analysis unless a provision lacks clarity or is apparently illogical or incoherent - see Wood v Capita Insurance Services Ltd (ibid.) per Lord Hodge JSC at paragraph 13 and National Bank of Kazakhstan v Bank of New York Mellon

[2018] EWCA Civ 1390

per Hamblen LJ at paragraphs 39 to 40; and

i. A Court should not reject the natural meaning of a provision as incorrect simply because it appears to be a very imprudent term for one of the parties to have agreed because it is not the function of a Court when interpreting an agreement to relieve a party from a bad bargain - see Arnold v Brittonibid per Lord Neuberger PSC at paragraph 20 and Wood v Capita Insurance Services Ltd ibid per Lord Hodge JSC at paragraph 11. Applying these principles should enable a Court to answer what is ultimately the question that arises where there is an interpretation dispute - that is what a reasonable person with all the background knowledge which would have reasonably been available to the parties when they entered the contract, would have understood the language used by the parties to mean - see FCA v Arch Insurance (UK) Ltd

[2021] UKSC 1

[2021] 2 WLR 123

per Lords Hamblen and Leggatt JJSC at paragraph 47.

Discussion

[22]Although unsurprisingly Iconic places significant emphasis on what it maintains was the factual position at the date when Completion was to take place namely that at that date JT did not have the funds available to purchase Iconic’s shares, in my judgment that is entirely immaterial to the construction issue. That is so for two reasons. First it seeks to rely on post contract events as an aid to construction, which is impermissible as a matter of English law – see sub paragraph (a) in the summary of principles set out above – and secondly it assumes the outcome of the construction issue between the parties to be as Iconic contends rather than assisting in determining the outcome of that dispute. That said, in my judgment the construction for which Iconic contends is clearly the one that I should accept. My reasons for reaching that conclusion are as follows.

[23]Firstly, JT’s construction depends upon viewing Clause 3 in general and the opening words of Clause 3.2 (“[s]ubject to…”) in particular in isolation from the rest of the contract in which it appears, which is contrary to basic principle as summarised above. Secondly, it ignores the factual and commercial context in which the Put Option Agreement came to be entered into and thirdly it ignores the point that the construction for which JT contends is contrary to business common sense. I expand on those points further below.

[24]It is first necessary to consider the Put Option Agreement as a whole. Firstly, the transaction when viewed as a whole is entirely straight forward. It was for the sale of the entire legal and beneficial interest in all the shares that had been allocated to Iconic, the consideration for which was the Aggregate Option Price – see the definition of “Transfer Terms” in Clause 1. This definition contemplates or would convey to reasonable people with all the relevant background knowledge available to the parties that there should be a simultaneous transfer of the shares by Iconic in return for and at the same time as payment by JT of the Aggregate Option Price. It does not either state or imply that the parties contemplated that there was a condition precedent to the payment of the price. It contemplated there would simply be a sale of defined subject matter for a defined price to be exchanged mutually by the parties on the Completion date at the place at which the parties had agreed Completion would take place.

[25]Secondly, Clause 2.3 likewise contemplates or would convey to reasonable persons with all the requisite knowledge available to the parties that what was intended was a single transaction being “… the purchase of the Option Shares …”. As is submitted by Iconic, the core obligations of the parties are those set out in Clause 2 of the Put Option Agreement. What is set out in Clause 3 is essentially the machinery for giving effect to the obligation created by Clause 2.

[26]Thirdly, where the parties intended to make an obligation conditional they used language that made that unambiguously clear. A good example is Clause 2.4, which expressly makes the Option created by the Put Option Agreement conditional on the events there identified. Had the parties intended what is a straightforward sale and purchase to take place in the manner contended for by JT, then the parties could and would have stated that to be so in clear and unambiguous language, particularly as what JT contends to have been agreed is at least potentially uncommercial and certainly unusual. The Put Option Agreement was professionally drawn and those who drafted the agreement would have been entirely familiar with the sort of language conventionally used in legally drawn agreements for creating conditions precedent. The failure to use such language, particularly when such language was used for example in Clause 2.4 is in my judgment a strong textual indicator that the parties did not intend payment to be conditional on the prior performance of all Iconic’s Completion obligations. This is all the more the case given the conclusions I reach below concerned the need for clear language to be used if such a result is to be achieved as established in case law going back many years.

[27]Fourthly it ignores the fact that what appears in Clause 3.2 and 3.3 is premised on there being a single event described as “Completion”. This is a word with a defined meaning being “… the performance by Iconic and JT of the obligations assumed by them respectively under clauses 3.2 and 3.3…” of the Put Option Agreement. The definition contemplates the mutual performance by each party of the obligations assumed by them under respectively Clauses 3.2 and 3.3 as part of a single transaction. That this is what reasonable people with all the background knowledge that would have reasonably been available to the parties when they entered the contract would have understood is further confirmed by the terms of Clause 3.1, which contemplates a single event taking place at the registered office of Eagle on the Repayment Date at which each party discharges their respective obligations under Clauses 3.2 and 3.3. That this is so is apparent too from Clause 3.4. It does not contemplate that Completion will nonetheless take place if JT did not comply with his obligations. Rather it contemplates that Completion will not take place in such an event but the party not in default may defer Completion in such circumstances if it chooses to do so.

[28]Fifthly, Clause 3.5 is consistent with this being the intention of the parties - it is principally concerned with ensuring that absent agreement between the parties, the sale and purchase should be of all the Option Shares, rather than some of them. However what is important for present purposes is that the clause provides that the transaction that the parties are obliged to complete is the simultaneous sale and purchase of the Option Shares. This is not consistent with the notion that it was a condition precedent to the obligation to pay that Iconic should first have done all things necessary to transfer the shares to JT.

[29]Sixthly, JT’s construction renders Clause 4.2 unworkable. That clause is available to Iconic in the event that JT failed to purchase the Option Shares. JT’s construction case is that he could not default on his payment obligation unless and until the Option Shares had been transferred by Iconic to him. On that basis Clause 4.2 would be available only if the Option Shares had been transferred to him and he had failed to pay but, in that event, there would be no “… Option Shares held by Iconic…” that could be sold using that process.

[30]There are three remaining textual points relied on by JT that have to be considered. Firstly, it was submitted by JT that Clause 5 points to the obligations being independent rather than dependant because the proxy power applies generically to all the Ordinary Shares held by JT and so would apply to both his original shares and the Option Shares which on this hypothesis would have been transferred to JT even though he had failed to pay the Aggregate Option Price. I do not accept that analysis. The proxy would enable Iconic to exercise JT’s powers in respect of his original shares in the event that Completion had not taken place because he was not ready willing or able to pay the Aggregate Option Price on Completion. The reliance placed on Clause 5 is in my judgment entirely circular. It does not assist in resolving the essential construction issue.

[31]Secondly, JT submits that the effect of Clause 3.3 is that if the parties had agreed a date earlier than the Repayment Date for Completion, then his obligation to pay nevertheless arose only on the Repayment Date thereby providing support for the analysis that the obligations of the parties were independent rather than concurrent or dependant. I reject this construction. The obligation imposed by Clause 3.3 is to pay “on Completion”. That event is defined in terms that make clear the obligations of each party are concurrent or dependant because expressly it is agreed that word means “… the performance by Iconic and JT of the obligations assumed by them respectively under clauses 3.2 and 3.3…” and Clause 3.1 provides that “Completion shall take place … on such date as agreed between the parties or failing such agreement, on the Repayment Date.”. The inclusion of the words “on or before the Repayment Date” in Clause 3.3 is the sort of drafting that Lord Hodge was referring to in Paragraph 13 of his judgment in Wood v Capita Insurance Services Ltd (ibid.) as lacking clarity or is apparently illogical or incoherent when considering a professionally drawn document as a whole.

[32]Finally at a textual level, JT relies on the absence of any qualifying language used by the parties in relation to his obligation to pay, when compared and contrasted with the language used in relation to his obligations, as justifying the conclusion that the obligations were intended to be independent rather than dependant or concurrent. I do not accept that is the correct conclusion as a matter of language when that language is construed in the context of the Put Option Agreement read as a whole and in its correct commercial context. Clause 3.2 and 3.3 are to be read together. They could as easily have been arranged in the reverse order to that which has been adopted but the outcome could not have been intended either way to have been anything other than one that required simultaneous performance if Completion was to take place. In any event, if this point is one that creates an ambiguity, it is to be resolved in favour of Iconic for the reasons referred to below.

[33]Even if it could reasonably be said that the true meaning and effect of the phrase “[s]ubject to” in Clause 3.3 is ambiguous (which in my judgment it cannot, given the considerations referred to above) a court in such circumstances would be entitled to consider commercial common sense when deciding how matters would have been perceived by reasonable people in the position of the parties at the date when the contract was made – see paragraph (g) of the summary of applicable principles set out above.

[34]Adopting the analysis contended for by JT is in my judgment the obviously more uncommercial of the rival constructions, because it would leave Iconic with no choice but to do all things necessary to transfer the Option Shares to JT without any guarantee of receiving payment. That is uncommercial in its own terms but particularly so in the circumstances of this case. Firstly, as I have said, Iconic was to purchase its shares in Eagle, not because it wanted to make a long term open ended investment in a privately held company in which by definition the shares were or were likely to be highly illiquid, but because it wanted to benefit from the completion of the De-SPAC transaction described above, which would have enabled it to sell the shares it was to acquire at a premium to the sum it was to pay for them within a fixed future period ending between 26 April 2023 (the date when it was contemplated Iconic would have exercised its De-SPAC option) and 31 December (the date when the parties contemplated the De-SPAC transaction would be completed) – see the definition of “Option Trigger Event” in the Put Option Agreement. That being the intention, Iconic would be left with nothing other than an unwanted illiquid investment of uncertain value in a private company if the De-SPAC transaction did not complete as the parties contemplated. It was to avoid this being the outcome that the parties entered into the Put Option Agreement.

[35]That the purpose of the Put Option Agreement is as set out above is not in dispute – JT states in his witness statement that Iconic explained to him in terms that the Put Option Agreement was an insurance policy in case the De-SPAC transaction did not occur and was designed to ensure that “… if Eagle did not go public, … Iconic could get its investment back, plus interest, if they decided to exit their investment.” I accept that evidence as I accept Mr Zanetton’s evidence that “… a public listing is inherently uncertain, even if on the basis of an agreed De-SPAC transaction, and that Iconic required a contractual exit from Eagle in the event that expected outcomes were not achieved…. ” and “Given Iconic’s limited role in the management of Eagle, it was imperative to Iconic that should the De-SPAC transaction not occur (which was always a material risk) that it had a contractual exit mechanism. Iconic would not have invested without this right as Messrs. Dinan, Knaster and Eisler were clear that they had no intention of participating in an illiquid investment in a company where they had very little effective control.” This is reflective of Mr Dinan’s evidence (which on this issue I accept) that “Iconic did not want to own stock in a private company run by Mr. Textor, which was the reason why we entered into the Put Option to avoid that outcome.” Mr Knaster accepted as accurate Mr Zanetton’s evidence on the issue I am now considering – see paragraph 11 of his witness statement. I accept all this evidence because it is not in dispute, is inherently credible and is reflective of commercial common sense.

[36]Further it was reasonably foreseeable to both parties as a possibility that JT would not be in a position to meet his obligations under the Put Option Agreement. That is apparent both from the inclusion of the Share Charge Agreement in the suit of agreements by which Iconic’s investment in Eagle was governed and by the Default Provisions set out in Clause 4 of the Put Option Agreement. In those circumstances, it is entirely inherently and commercially improbable that the parties could have intended the Put Option Agreement to require Iconic to part with the Option Shares other than simultaneously with the payment by JT of the Aggregate Option Price. To decide otherwise would be to conclude that it had been intended that JT could acquire the Option Shares without paying the Aggregate Option Price. Given the contextual points so far considered, I reject the notion that a reasonable person with all the relevant background information available to the parties would conclude that it had been intended that Iconic could be required to transfer the ownership of the shares and associated rights with them without requiring the simultaneous payment of the Aggregate Option Price.

[37]In those circumstances, I accept Iconic’s submission that the construction it contends for (being that Iconic’s obligation to deliver the completion documents under Clause 3.2 had to be performed only simultaneously with the payment by JT of the Aggregate Option Price) is one which accords with commercial common sense and is the construction that a reasonable person with all the relevant background knowledge summarised above would conclude had been intended by the parties to be the effect of what they had agreed.

[38]The consequence of this construction is that Clauses 3.2 and 3.3 are concurrent conditions and each party must be ready and willing to perform their respective obligations at the time agreed – in this case on the date fixed for Completion. In those circumstances, if Iconic is to succeed in its claim for specific performance against JT of his Clause 3.3 obligation then Iconic must show that it has always been ready and willing to perform its obligations – see Forrestt & Son v Aramayo

(1900) 83 LT 335

per Lord Halsbury C at 338. If JT was not willing or able to perform his obligations then Iconic was not obliged to perform its obligations as set out in Clause 3.2 as long as it was ready and willing to do so – see Levey & Co v Goldberg

[1922] 1 KB 688

per McCardie J at 692.

[39]Whether two conditions are concurrent conditions is one of construction of the particular contract in which the relevant terms appear applying the principles set out earlier. Whilst what is decided as a matter of construction in other cases in relation to contracts using different language and entered into in different contexts is not a relevant consideration is deciding that issue, what earlier decisions particularly of the Court of Appeal can do is establish that clear language would be required before I could conclude that the correct construction is as JT contends. In my judgment that is the effect of the earlier decisions of the higher courts where similar issues have arisen. This is why Lord Kenyon CJ said in Heard v Wadham (1801) 1 East 619 at 629 that “I never expected to hear it said that these were independent covenants; where one man agrees to pay a certain sum of money on a given day, and another covenants to convey an estate to him on the same day; can it be contended for an instant, that though the one has not conveyed he may call upon the other to pay the money. Common sense revolts at such a proposition …” It is why in more modern times, in Doherty v Fannigan Holdings Ltd

[2018] EWCA Civ 1615

;

[2018] BPIR 1266

, Sir Colin Rimer (with whom the other members of the Court of Appeal agreed) expressed himself in similar terms. He identified the issue that arose in that case at [31] as being whether Mr Doherty’s obligation to pay the £2m purchase money and the obligation of Fannigan Holdings Limited (“FHL”) to transfer the shares to him in exchange were dependent or independent obligations. In summarising the applicable law, Sir Colin held at [33] that the obligations were intended to be dependent because the intention of the parties was that (as here) completion of the sale and purchase was intended to take place at the same day and time. He concluded at [36] that it was an irresistible inference that the parties’ objective was to achieve what would in practice be a simultaneous exchange. He added:

“To attribute to the parties the intention that either should perform his or its completion obligation except against the performance of the other’s is to fix them with unlikely, and uncommercial, intentions. No purchaser of the shares is going to part with £2m to the vendor except against the receipt of the share transfer documents, any more than the vendor is going to part with the documents except against the receipt of the £2m.”

In coming to that conclusion he referred expressly to Lord Kenyon’s observations noted above at [23] and [37] with apparent approval. He also observed that the share sale agreement under consideration in that case was materially the same as a contract for the sale and purchase of land. In my judgment these authorities establish that clear language is required before a court could construe obligations undertaken by the parties in this case as independent as opposed to concurrent or dependent obligations. This principle provides further support for what I have concluded is the correct construction of the Put Option Agreement.

[40]As I have observed already, where the parties to the Put Option Agreement wished to create a conditional obligation they have shown themselves well able to express their contract so as unambiguously to make that intention clear. Had it been the parties’ intention to make delivery of the shares to JT a condition precedent to his obligation to pay they could and would have said so in clear terms.

[41]In the course of his submissions on this issue on behalf of JT, Mr Davies KC drew attention to a number of practical difficulties that might have arisen had JT been ready and willing to complete on the date fixed by the contract. In my judgment those were less significant than suggested or at any rate would have been had JT been ready and willing to complete. However, as Sir Colin Rimer held at [42] of his judgment in Doherty v Fannigan Holdings Ltd (ibid):

“… contrary to the view favoured by the judge, it is anyway not the particular practical arrangements that the parties or their solicitors make for the performance of their completion obligations that govern whether their obligations are dependent or independent. That turns on the interpretation of their contract. The parties’ mutual obligations in a contract for the sale of land incorporating the Standard Conditions of Sale are dependent obligations; and the judge was in error in declining to regard the dependent nature of the obligations in such a contract as providing compelling guidance as to the nature of the parties’ obligations in the essentially analogous circumstances of this case.”

Disposal

[42]In those circumstances I accept Mr Perkins’ submission that Clauses 3.2 and 3.3 are concurrent conditions and resolve Issue 1 in favour of Iconic. It follows that it is not necessary that I determine Iconic’s alternative estoppel case.

Issues 2 and 3

[43]As is common ground, if Iconic is to succeed, it must establish both that JT was not willing and able to perform his obligations and that Iconic was willing and able to perform its obligations on 26 July 2024.

[44]In relation to JT’s position, it is frankly accepted on his behalf that he was not ready to pay the Aggregate Option Price on the Repayment Date. It was nonetheless submitted on behalf of JT that he could have been ready to pay on 26 July if only Iconic had made clear that it would be seeking to complete the Put Option on that date. I reject that contention. There are a number of reasons why in my judgment this contention is one I must reject.

[45]Firstly, it is worth starting with the point that the evidential burden of proving that JT was ready and willing to perform his obligations under the Put Option Agreement is one that rests on him. Secondly, although JT asserts in his second witness statement at [13] that he was not aware of any specific repayment date that is on any view wrong since Clause 2.3 of the Put Option Agreement fixed the date on which the purchase by JT of the Option Shares was to take place absent an agreement between the parties to it taking place on another agreed date – see Clause 3.1. Given that by Paragraph 18(a) of his Defence, JT admits the delivery to him of the Option Notice, JT knew or ought reasonably to have known that in default of an agreement fixing an alternative date for Completion, that he had to be ready and willing to pay the Aggregate Option Price no later than 12 months after receipt of the Option Notice he admits receiving – that is on 26 July 2024.

[46]Furthermore, the letters sent by Iconic to Eagle’s board on 19 December 2023, 27 March 2024 and 10 July 2024 are consistent with Iconic expecting either to be bought out or Completion as provided for by the Put Option Agreement. JT could have been in no doubt of the position having read the letters. The letter of 19 December referred expressly to the “….exercise of the Put Option…”. JT’s email of 1 February 2024 referred to one of the options available to Iconic as being the Put Option. The 27 March letter referred in express terms to the determination of Iconic “… to sell our shares and immediately exit the Company using, if and as required, all of the legal rights and remedies available to us under the Put Option …”. That letter continued:

“… pursuant to the terms of the Put Option Agreement, Mr Textor is required to purchase all of our shares in the Company[ Eagle ] (at the entry valuation plus a deemed 11% interest rate applying from the Exercise Date) before 26 July 2024. Upon a default, we fully intend to exercise the remedies to which we are entitled under the Put Option Agreement, including to appoint an investment bank and initiate a sale process which may lead to the sale of a majority stake in the Company, being all of the shares in the Company held by us and all of the shares in the Company held by Mr Textor, which are currently pledged to us by way of security for enforcement of the Put Option.”

[47]A recurrent theme of JT’s evidence is that while Iconic was ostensibly pushing for the remedies to which it was entitled under the Put Option Agreement he was promoting an IPO for Eagle. In his response to the 27 March letter he referred to the proposed IPO as being commercially the more attractive option. In his reply, Mr Knaster made clear Iconic’s position was to recover its outlay using the Put Option mechanism. As he put it:

“… We served notice indicating that we wished to exercise the put option on 26 July 2023. After receiving no correspondence from you, and having no engagement with you on the issue of how you intend to pay the money you will shortly owe, we issued a first letter to the board in December 2023 and have simply reiterated our position to avoid any confusion. Your email also indicates that “I don’t think it’s a great challenge to get you paid off”

. Please explain what your plan is for doing so. We issued our notice in July 2023 as well as an additional letter in December 2023 and, as I mentioned above, you have not made any written proposals or provided any explanation as to how you intend to fulfil your obligations. Plainly, the IPO will not be completed by the deadline for satisfying your obligations under the put option, so we are at a loss to understand how you can make that statement absent any explanation from you.”

[48]There could have been no sensible doubt in the mind of JT following receipt of this letter that Iconic’s default position was that it wished to recover the sums to which it was entitled under the Put Option Agreement by no later than the Repayment Date and in default it would exercise the power conferred on it by Clause 4. What is clear is that discussion around the purchase of Iconic’s shares as a use of the proceeds of the IPO was incapable of providing an answer given the timing of the IPO. In fact, the Iconic interests had no faith in the IPO succeeding, even though JT continued to prepare for it. In light of this, in the letter to the Eagle board dated 10 July 2024 and sent on 12 July 2024, Iconic stated:

“The purpose of this final letter to the Board is to confirm that, as we have not had any written update from Mr Textor in respect of the Put Option, we assume that our shares will be repurchased on or before 26 July 2024 in line with the terms of the Put Option Agreement. …. As we have made very clear in all correspondence, our intention has always been to exit the Company and to exercise our contractual rights to do so if required. On that basis, we feel it is important to reiterate that in the unlikely event of a default, 12 months after we excised the Put Option, we will seek to enforce our rights. This would include appointing an investment bank and initiating a sale process which may lead to the sale of a majority stake in the Company, being all of the shares in the Company held by us and all of the shares in the Company held by Mr Textor, which are currently pledged to us by way of security for enforcement of the Put Option.”

In light of this correspondence JT could have been in no doubt of the position being adopted by Iconic and I reject his evidence to contrary effect.

[49]I have little doubt that had a more lucrative way of realising Iconic’s investment emerged before the Repayment Date then Iconic would have considered it. Those behind Iconic were very successful private equity investors who invested to make profits within fixed time frames. However none of that has any impact on the legal position in relation to the Put Option. Whilst no doubt the parties could have agreed a variation to the process at any stage had both parties been willing to do so, in the absence of such an agreement the Put Option had been exercised with the result that JT had to be ready to perform his side of the obligation by no later than the Repayment Date as was plainly apparent from the correspondence referred to above. Put another way, following the service of the Option Notice, it was not open to Iconic unilaterally to withdraw. The obligations created by service of the Option Notice were binding on both parties absent an agreed variation.

[50]It is next necessary to consider the meeting of 15 July 2024. The context in which that meeting took place is established by the correspondence to which I have referred above. The 10 July letter was sent and received on 12 July. On the same day, JT texted Mr Dinan saying:

“Guys, I asked for a meeting with you to discuss your Put. I don’t understand why you wouldn’t wait until our meeting, before sending your notice. Affolter is our biggest problem right now, and we need to be aligned…not working against each other.”

It was that meeting that took place on 15 July. It was called by JT and was expressly called “… to discuss your Put…” JT’s evidence of the conversation in summary is that Mr Knaster refused to commit to a definite position as to what Iconic wanted to achieve and that he did not say at the meeting words to the effect that he had no ability or intention to pay the sums required under the Put Option Agreement and that he did not recall any discussion about “… any specific repayment date”. As to this last point whether that was so or not is immaterial. The Repayment Date was established by the Put Option Agreement and service of the Option Notice. That Iconic was holding JT to the performance of his contractual obligations could not be clearer from the correspondence to Eagle’s board set out above. I reject JT’s evidence as to what he said concerning the option at the meeting for the following reasons.

[51]Firstly, concerning intention, although JT denies saying anything to the effect he had no intention of paying, it is worth noting that his own evidence is that at this stage he considered to acquire any more shares in Eagle was contrary to his best interests. As he puts it in his first statement:

“I understood that if Iconic exercised the Put Option, I could buy its shares for the Aggregate Option Price, but I did not want to work on raising the capital for something Iconic ultimately did not want. I was already the majority shareholder in Eagle and I did not need more stock in the Company. This is because I had personally already invested US$200 million in the Company. To increase my capital at risk by almost 50% in order to pick up only 15% more in shares, when I was already the majority shareholder, did not make sense from a risk concentration perspective.”

There is no doubt that JT considered performing his obligations under the Put Option Agreement was not in his best interests and was to be avoided if possible. This provides significant context for evaluating what on the balance of probabilities occurred at the meeting. The other point concerns ability to pay. In my judgment it is more likely than not that JT would have said at the meeting that he was not in a position to pay because that was indeed the position at the date of the meeting and it is something he would probably have said as part of a presentation to persuade Mr Knaster to agree an alternative. I return to this issue in more detail below.

[52]It is next necessary to consider an email that Mr Knaster sent to Mr Zanetton on 16 July. This was a communication between Mr Knaster and one of Iconic’s advisors. The cause of the discussion was an Eagle board meeting concerning the IPO that JT was promoting. There was some discussion by email concerning the merits of this proposal which include an email comment from Mr Zanetton that JT had told him or his firm that “… it would be no problem to repay us…” It was in that context that Mr Knaster replied “[h]e told me yesterday that by the 26th he will not repay.”

[53]I accept JT’s submission that a subsequent email (also in effect internal to Iconic) that repeats this comment does not add materially to the evidence. However, I consider the email from Mr Knaster to be highly probative of what in fact occurred. There was no reason why and there was no reason suggested as to why Mr Knaster would consciously misrepresent the effect of a conversation that took place the day before in an email within the group of individuals controlling Iconic and given the relevant conversation had taken place the previous day and concerned an issue of immediate and critical importance to Mr Knaster and his co-investors. It is inherently highly improbable that he would have mis-recalled the effect of a short conversation that had taken place the previous day.

[54]In cross examination of Mr Knaster, it was suggested that there was an inconsistency between what he said in paragraph 14 of his statement (where he says that at the meeting he asked JT whether he had taken steps to purchase the Option Shares but that JT “either avoided the question or moved on to another subject”) and paragraph 16, where he states that JT explained that “he did not have the necessary funds” and “had no intention of purchasing them”. Whilst there is undoubtedly a difference between what is said in the two paragraphs, the point that Mr Knaster makes in paragraph 14 is that on the basis of JT’s evasion of the question “… I assumed … that [JT] had no intention of purchasing the Option Shares on the Repayment Date”. To my mind whether Mr Knaster inferred the position to be as he states or whether JT told Mr Knaster in terms that this was the position (as stated in paragraph 16) does not much matter. Either expressly or inferentially, JT informed Mr Knaster he would not be paying, as in the event he did not, because he did not have the funds available to him to do so. In reality, however, JT could and would probably have conducted himself as described in both paragraphs. I consider it probable that in the circumstances Mr Knaster would have asked JT directly what his plans were to purchase the Option Shares by the Repayment Date because that was the purpose of the meeting and was the only means by which Iconic considered internally it was likely to recover its investment because the De-SPAC had failed and the Iconic investors had no faith in the outcome of the IPO. It was submitted by JT that had there been a discussion of such importance on 15 July then there would have been follow up correspondence. I don’t accept that. It was obvious to everyone that JT would not be paying on the Repayment Date or at all for the Option Shares. He had said he would not be and his counterparties had no expectation that he would. Equally a series of letters were sent by Iconic following service of the Option Notice, summarised earlier, none of which yielded any meaningful engagement by JT with Iconic. Iconic had made its position clear in its 12 July letter. In those circumstances, there was no point in further correspondence and it would not be appropriate therefore to infer from the absence of such correspondence that the discussion was not to the effect alleged by Mr Knaster.

[55]There is finally an argument to the effect that JT could have been ready to pay on 26 July had he understood there was to be a Completion on the Repayment Date. To a large extent this has to be considered together with JT’s case that he was not aware of “…when the Repayment Date fell…”. I have already rejected this for the reasons set out earlier. In my judgment JT was fully aware of when the Repayment Date fell but did not want to increase his shareholding in Eagle for the reasons set out earlier and did not have the means to do so even if that had not been the case. His sole focus was on the IPO that he was promoting in which Iconic had no confidence and which would not on any view take effect on or before the date when Completion of the sale of the Option Shares was to take place.

[56]It is in any event questionable whether at any earlier date JT had the means to pay the Aggregate Option Price. Paragraph 93 of his first witness statement was qualified by the information provided by JT’s solicitors in their letter of 28 September 2025. In paragraph 93 of his statement JT refers to a loan of “approximately US$25 million to Olympic Lyonnais” in June 2024 which came from “… my personal cash on hand of US$40 million at that time”. This is now said to be slightly less at US$22.5m. Neither figure suggests that JT had personal assets of US$ 75m available to him even in June 2024. He adds that “…(a)round that time, I had also posted US$60 million of cash collateral, to enhance the credit of Eagle’s borrowings in Brazil and France, the balance of which I could have withdrawn at any time.” This would appear to be the subject of a letter dated 17 July 2023 apparently signed by an entity called “XP Bank”. It refers to a deposit by JT of the equivalent in Brazilian currency of €60m which was described as being in a restricted account, to be held exclusively for the benefit ofOlympique Lyonnais. There is no documentation that suggests this funding ever became available thereafter for JT to use for other purposes – see T1/90/17-18. There is no evidence that this sum could have been released and made available to part pay the Aggregate Option Price. It is said that by 25 June 2024, there was approximately US$40m available. However if that is added to what was left after the loan to Olympique Lyonnais, it leaves US$53.5m, which is well short of the sum needed for the Aggregate Option Price. Later in his evidence, JT asserted that he had in excess of US$80m available to him in cash in June 2024 – see T1/124/23. That is not what I read paragraph 93 as saying. The real point however is that the position is not satisfactory from an evidential point of view. I conclude that the evidence that is available does not prove to the relevant standard that JT has available to him at any material time the funds necessary to pay the Aggregate Option Price.

[57]It was common ground that the answer to preliminary issue (iii) was “no” at the specific date identified. However for the reasons I have set out the position is wider than that. Gathering this material together, I conclude that JT was not at any material time ready or willing to complete the sale to him of the Option Shares by paying the Aggregate Option Price on the Repayment Date or any earlier date.

[58]The issue that remains is whether Iconic were ready and able to complete.

[59]This is to be viewed against the point I have made already by reference to the meeting on 15 July – from that day onwards Iconic knew that JT would not be in a position to complete on the Repayment Date. This leads Iconic to submit that its obligation to complete was effectively suspended. It cannot be required to complete the performance of its concurrent obligations because JT was not ready and willing to comply with his interdependent obligations because he did not have available the funds to do so.

[60]I accept that in practical terms the steps that it was required to take became irrelevant because on 15 July JT had made clear that he was not either ready or willing to pay the Aggregate Option Price and for that reason contractual completion could not take place. I also accept that the non-performance of one obligation excuses performance of the other – see Treitel on Contract, 14th Ed., paragraph 17-024. However this point goes no further as a matter of law than that there was no obligation on Iconic to perform on the Repayment Date because JT did not. I do not accept that the effect of the conversation on 15 July entitled Iconic to treat itself as discharged at that point in the absence of an acceptance of anticipatory repudiation of the contract by JT. In that sense, Iconic took a risk that JT would not attend on the Repayment Date with a banker’s draft or the electronic equivalent. In fact he did not and Iconic did not expect him to do so because of the 15 July conversation.

[61]Iconic accepts that ordinarily there would be an exchange of draft documentation ahead of Completion but it maintains that the need to offer draft documentation for approval ceased once JT had made clear as he did by no later than 15 July that he could not and would not be completing the purchase of the Option Shares. That goes too far for the reasons I have given but I accept Iconic’s narrower point that the steps that needed to be taken concerning the preparation of the documentation would have taken little or no time had JT been willing and ready to complete.

[62]The first document on which JT’s submissions focus is the share certificate. It is common ground that Iconic did not have and possibly never had a share certificate. JT’s submission is that without such a document Iconic was not able to complete. The significance of this document is on any view limited since at best it is prima facie evidence of title to the shares in question. No doubt Iconic could have sought the issue of a relevant share certificate had that been insisted upon and could have offered an appropriate undertaking to deliver the certificate once issued, possibly with the purchase price being held in escrow pending delivery of the certificate. In practice however it would not have been insisted on had JT been ready and willing to complete because Iconic was in a position to provide a duly executed transfer of the shares to JT who was the majority shareholder in Eagle and could without difficulty have arranged to be substituted for Iconic as the registered holder of the Option Shares in the books and records of the company and on the statutory records for Eagle. The absence of share certificates would only have been an issue if JT had turned up on the Repayment Date ready and willing to pay the Aggregate Option Price but he did not. There is an air of unreality about this point. Had JT said on 15 July that he intended to complete the purchase of the shares and the only issue had been the absence of share certificates, it is inconceivable that Completion would have failed on that basis. By then either the certificates would have been demanded by Iconic’s solicitors or the requirement to produce them would have been waived or addressed by an undertaking of the sort I have described.

[63]The next point relied on concerned pre-emption rights. This point appears in Paragraph 87(a) of JT’s first statement, where he states that as far as he is aware Iconic did not consider or take any steps in respect of any pre-emption rights on the part of other shareholders under the Articles of Association. However, Clause 4.5 of the Put Option Agreement provides that the “… parties shall procure (to the extent they are legally able) that no provision of the Shareholders’ Agreement or the Articles shall prevent the exercise of the Option. In particular, … any pre-emptive right shall not apply as part of the exercise of the Option except as expressly provided for in this agreement.” Either pursuant to that provision or in any event the parties procured a variation to the Shareholders’ Agreement specifically to facilitate the operation of the Put Option Agreement. Clause 11 of the variation facilitated the grant by JT of security over the shares he held in Eagle so as to permit the Share Charge Agreement referred to earlier. Clause 12 provided the consent of Eagle “…to the share transfers contemplated pursuant to the put option dated 16 November 2022 (the “Iconic Put Option”) between Iconic and JT…” and Clause 13 recorded the agreement of each of the Principal Partners not to exercise their Tag-Along Rights set out in Eagle’s Articles in relation to “… the transfers that are consented to pursuant to … the Iconic Put Option … provided in any case that such transfers shall always remain in compliance with the Football Governing Body Rules.” On the basis of this material, I do not see how pre-emption rights are at all relevant. The suite of agreements has been structured so as to permit what is contemplated by the Put Option Agreement.

[64]The next point that JT relied on in his first statement was that Iconic had not considered what steps may be required in relation to reporting to or seeking approval from the relevant football governing authorities. This point was described as being an “impressionistic” one by Mr Perkins in the sense accepted by Mr Davies at T2/120/10 – that is “(w)e are not trying to prove a specific case about this is precisely what would have happened or this is precisely the approval which would have been needed. We haven't produced all the relevant rules. We are not going into that at all.” JT submits that this issue is one that all parties were bound to consider under Clause 13.1 of the Shareholders’ Agreement. However, as is common ground, no attempt has been made by JT to demonstrate even an arguable basis for contending that a consent clearance or approval was required from any football authority for a transfer of the Option Shares. This is sufficient to dispose of this as a point.

[65]In any event, Iconic’s submission is that this is immaterial because the effect of the option being exercised would be to increase JT’s ownership of Eagle shares from 65% to about 80% and that this was unlikely to be of any interest to the football authorities since JT was already the majority shareholder in Eagle and exercising the Put Option would simply increase his holding. I prefer not to express any view about what position might be adopted by the relevant governing bodies. There are a number of different ones involved and each may have different concerns. The point that matters for present purposes is that it was no part of Iconic’s obligations under the Put Option Agreement to obtain the consents of football regulators to a transfer of the Option Shares to JT. Its obligations were those set out in Clause 3.2 of the Put Option Agreement. If and to the extent that any regulators consent is required, responsibility for acquiring it rests with JT as the purchaser of the Option Shares. There is no provision within the Put Option Agreement that enables JT to refuse to pay for the shares because Iconic has not obtained the consent of the relevant regulators to the sale. Its obligations are confined to transferring the shares. The parties’ agreement has placed the risk associated with regulator approval (to the extent it was required) on JT on whom rests the contractual obligation to buy the shares and pay the Aggregate Option Price. The obligation to purchase is not conditional on any approvals being obtained. True it is that the parties agreed to cooperate with each other in obtaining any third party consents required but that does not make Completion conditional on obtaining such consents, much less on Iconic being required unilaterally to obtain such consents as might be required by various regulators round the world, which Iconic might reasonably not be able to identify.

[66]In summary the reality is this: the obligations of the parties under the Put Option Agreement were interdependent obligations. This required that each party should be ready and willing to perform their respective obligations on the Repayment Date. Had JT not informed Iconic on 15 July that he had neither the intention or ability to complete, then I am satisfied that that transaction would have completed as contemplated. Iconic would have provided an executed stock transfer form in return for the Aggregate Option Price. The notion that this was close to a formality was conceded by Mr Davies (correctly) – see T2/102/23-103/6 and his earlier submissions to the effect that the document could be completed without difficulty – see T2/93/12-21.

[67]A power of attorney would have been provided and its terms agreed in the period prior to Completion in terms that would have been satisfactory to JT or in any event would have been provided in terms that ought reasonably to have been satisfactory to him simply because Iconic would have no continuing interest in the issues to which the power of attorney related between Completion and JT being entered on the register of members as the holder of the Option Shares.

Conclusions

[68]I answer each of the preliminary issues as follows: i) Issue 1: Yes ii) Issue 2: Yes iii) Issue 3: No