John Textor v Iconic Sports Eagle Investment LLC

In a share sale agreement with a fixed completion date and place, delivery and payment are presumed to be concurrent conditions. The parties may agree sequential or conditional obligations, but clear words are required to displace that presumption. The expression “subject to” is not, without more, sufficient where the commercial context indicates an exchange. Contractual terms must be interpreted as a whole and in their factual and commercial context. Default provisions intended to operate while the seller still holds the shares may confirm that simultaneous performance was intended.

Iconic invested in Eagle Football Holdings Limited and obtained a put option requiring John Textor, on specified trigger events, to purchase Iconic’s shares for the investment amount plus interest. The Put Option Agreement required Iconic to deliver transfer documents under clause 3.2 and stated in clause 3.3 that Textor’s payment obligation was “subject to” compliance with that clause.

The Commercial Court held that the obligations were concurrent conditions and granted a declaration to that effect: [2025] EWHC 2620 (Comm). Textor appealed, contending that Iconic had to deliver first. The central issue was whether the contractual wording displaced the presumption of mutual and simultaneous performance in a share sale.

1. Ground 1 dismissed. The obligations under clauses 3.2 and 3.3 of the Put Option Agreement were concurrent conditions. Ground 2 was adjourned with liberty to restore and remitted to the Commercial Court for further questions which might affect its determination.
2. Contracting parties may agree any sequence or conditionality for delivery and payment. The agreement must be construed objectively and as a whole, using the background reasonably available to the parties. In a sale of shares with a fixed completion date and place, however, there is a presumption that delivery and payment are mutual and concurrent obligations.
3. Clear words are required to rebut that presumption. Clause 3.3 made payment “subject to compliance with” Iconic’s delivery obligation, but that wording was insufficient. It meant that payment was due on receipt of the documents; it did not require Iconic to deliver without simultaneous payment.
4. The conclusion was reinforced by the commercial context. The transaction was a straightforward exchange, and the default provisions in clauses 4 and 5 contemplated Iconic continuing to hold the shares when Textor defaulted.
5. The reasoning in Doherty v Fannigan Holdings Ltd, including its treatment of “subject to” wording, was directly applicable. Lord Justices Miles and Popplewell agreed with Lord Justice Phillips.

• Court of Appeal (Civil Division) — Ground 1 dismissed. Ground 2 adjourned with liberty to restore and remitted to the Commercial Court. [2026] EWCA Civ 355
• Commercial Court — Preliminary issues determined in Iconic’s favour; a declaration was granted that clauses 3.2 and 3.3 imposed concurrent conditions. [2025] EWHC 2620 (Comm)