SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
SCHEDULE 13D
(Rule 13d-101)
Information to be Included in Statements Filed
Pursuant to Rule 13d-1(a) and Amendments Thereto
Filed Pursuant to Rule 13d-2(a)
Under the Securities Exchange Act of 1934
(Amendment No. ________)
Tranz Rail Holdings Limited
----------------------------------------
(Name of Issuer)
Ordinary Shares
----------------------------------------
(Title of Class of Securities)
894116102
----------------------------------------
(CUSIP Number)
Thomas F. Power, Jr.
President and Chief Executive Officer
Wisconsin Central Transportation Corporation
6250 North River Road, Suite 9000
Rosemont, Illinois 60018
847-318-4600
----------------------------------------
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
November 9, 2000
----------------------------------------
(Date of Event which Requires
Filing of this Statement)
If the filing person has previously filed a statement on Schedule
13G to report the acquisition which is the subject of this Schedule
13D, and is filing this Schedule because of Rule 13d-1(e), 13d-1(f) or
13d-1(g), check the following box: [__]
(1) NAMES OF REPORTING PERSONS/I.R.S. IDENTIFICATION NOS. OF ABOVE
PERSONS (ENTITIES ONLY):
Wisconsin Central Transportation Corporation
I.D. No. 36-3541743
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP:
(a) [ ]
(b) [X]
(3) SEC USE ONLY
(4) SOURCE OF FUNDS
(5) CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e): [ ]
(6) CITIZENSHIP OR PLACE OF ORGANIZATION:
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON
WITH:
(7) SOLE VOTING POWER: 28,684,918
(8) SHARED VOTING POWER: 0
(9) SOLE DISPOSITIVE POWER: 28,684,918
(10) SHARED DISPOSITIVE POWER: 0
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON:
28,684,918
(12) CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES: [X]
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 23.7%
(14) TYPE OF REPORTING PERSON: CO
1
(1) NAMES OF REPORTING PERSONS/I.R.S. IDENTIFICATION NOS. OF ABOVE
PERSONS (ENTITIES ONLY):
Wisconsin Central International, Inc.
I.D. No. 36-3902614
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP:
(a) [ ]
(b) [X]
(3) SEC USE ONLY
(4) SOURCE OF FUNDS
(5) CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e): [ ]
(6) CITIZENSHIP OR PLACE OF ORGANIZATION:
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON
WITH:
(7) SOLE VOTING POWER: 0
(8) SHARED VOTING POWER: 28,684,918
(9) SOLE DISPOSITIVE POWER: 0
(10) SHARED DISPOSITIVE POWER: 28,684,918
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON:
28,684,918
(12) CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES: [X]
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 23.7%
(14) TYPE OF REPORTING PERSON: CO
2
This statement relates to ownership of Ordinary Shares of Tranz
Rail Holdings Limited ("Tranz Rail") by Wisconsin Central Transportation
Corporation ("Wisconsin Central") and one of its wholly owned subsidiaries.
The ownership of these Shares, which was acquired prior to the time that
Tranz Rail became subject to reporting under the Securities Exchange Act,
was previously reported on a Schedule 13G. This Statement is being filed
because the agreement with respect to the proposed sale of the Shares by
Wisconsin Central, as described in Items 5 and 6, below, may be deemed
to create a group of which Wisconsin Central and its subsidiary are
members together with Pacific Rail Limited.
Item 1. Security and Issuer.
This Statement relates to Ordinary Shares of Tranz Rail Holdings
Limited ("Tranz Rail"), which is a limited liability company under the
laws of New Zealand. American Depositary Shares, evidenced by
American Depositary Receipts and each representing the right to
receive three Ordinary Shares, are registered pursuant to
Section 12(g) of the Securities Exchange Act. The address of the
principal offices of Tranz Rail is Wellington Railway Station, Bunny
Street, Wellington, New Zealand.
Item 2. Identity and Background.
Subparagraphs (a), (b), and (c). This Statement is being filed
by Wisconsin Central Transportation Corporation ("Wisconsin Central")
and by its wholly owned subsidiary Wisconsin Central International,
Inc. ("Wisconsin International"). Wisconsin Central owns railroads in
the United States and Canada, and, through Wisconsin International,
invests in railroads in other countries.
The principal office and principal business address of Wisconsin
Central and Wisconsin International are 6250 North River Road, Suite
9000, Rosemont, Illinois 60018.
(d) During the last five years, neither Wisconsin Central nor
Wisconsin International has been convicted in a criminal proceeding.
(e) During the last five years, neither Wisconsin Central nor
Wisconsin International is or was a party to any civil or
administrative proceeding involving alleged violations of the
securities laws.
(f) Wisconsin Central and Wisconsin International are each
Delaware corporations.
The names, business addresses and principal occupations and other
information called for by subparagraphs (a) through (f) of this Item 2
for each executive officer and director of Wisconsin Central and of
Wisconsin International are set forth in Schedule I to this Statement.
3
Item 3. Source and Amount of Funds or Other Consideration.
Not applicable.
Item 4. Purpose of Transaction.
Wisconsin Central and Wisconsin International acquired the
28,684,918 Ordinary Shares of Tranz Rail in the period 1993-1995, as a
long-term investment.
On November 3, 2000, Wisconsin Central announced that its Board
of Directors is pursuing a full range of strategic alternatives to
maximize shareholder value and that it has retained the investment
banking firm of Goldman, Sachs & Co. to act as financial adviser to
the Board in evaluating alternatives, including, but not limited to,
sale of Wisconsin Central and divestiture of its international
holdings.
Consistent with that announcement, Wisconsin Central has engaged
Deutsche Bank AG as financial adviser in connection with the sale of
Wisconsin Central's Ordinary Shares in Tranz Rail. Deutsche Bank is
also advising another Tranz Rail shareholder, Pacific Rail Limited
("Pacific Rail"), in relation to the sale of its shares in Tranz Rail.
Because Deutsche Bank AG will market the Tranz Rail shares held by
Wisconsin Central jointly with those held by Pacific Rail, Wisconsin
Central (along with Wisconsin International) and Pacific Rail may be
deemed to be a group with respect to the sale of such shares.
Subject to market conditions and other factors, Wisconsin Central
proposes to dispose of up to its entire ownership of Tranz Rail
shares. There is no guarantee that such disposition will be effected
or as to the price and other terms that will be obtained.
If that disposition occurs, the following individuals, who are
directors (and in the case of Mr. Wheeler, Chairman) of both Wisconsin
Central and Tranz Rail, are likely, over a period of time yet to be
determined, to cease to be directors of Tranz Rail: Robert H.
Wheeler, Carl Ferenbach, Thomas F. Power, Jr. and Thomas W. Rissman.
On or about October 10, 2000, Tranz Rail announced at its Annual
General Meeting and in related press releases a series of
restructurings to concentrate on its core freight operations.
With the foregoing exceptions, Wisconsin Central and Wisconsin
International and their directors and executive officers have no plans
or proposals which relate to or would result in any of the types of
events or changes described in paragraphs (a) through (j) of Item 4.
Item 5. Interest in Securities of the Issuer.
(a) and (b) Wisconsin Central (through Wisconsin
International) is the owner of 28,684,918 Ordinary Shares of Tranz
Rail, representing 23.7% of the 120,792,079 Ordinary Shares reported
4
by Tranz Rail as outstanding at August 1, 2000. Wisconsin Central
(through Wisconsin International) has sole power to vote or direct the
vote and sole power to dispose or direct the disposition of those
shares.
Information regarding Ordinary Shares (or American
Depositary Shares each representing three Ordinary Shares) of Tranz
Rail held beneficially by any of the directors or executive officers
of Wisconsin Central or Wisconsin International is set forth in
Schedule I to this Statement.
Based on information published by Tranz Rail, Wisconsin
Central believes that Pacific Rail is the holder of 17,551,961 Tranz
Rail Ordinary Shares, representing approximately 14.5% of the Tranz
Rail shares outstanding at August 1, 2000.
(c) There have been no transactions in the Tranz Rail Ordinary
Shares (or in Tranz Rail American Depositary Shares), during the past
60 days by Wisconsin Central or Wisconsin International or any of the
directors or executive officers of Wisconsin Central or Wisconsin
International.
Wisconsin Central does not know of any transactions in the
Ordinary Shares or American Depositary Shares within the past 60 days
by Pacific Rail.
(d) Not applicable.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships
with Respect to Securities of the Issuer.
Wisconsin Central has engaged Deutsche Bank AG to act as
financial adviser to Wisconsin Central in connection with the proposed
sale of its Tranz Rail Ordinary Shares. Wisconsin Central understands
that Pacific Rail has likewise engaged Deutsche Bank AG with respect
to the proposed sale of its Tranz Rail Ordinary Shares. Deutsche Bank
AG has advised that it intends to market jointly the Tranz Rail
Ordinary Shares that may be sold by Wisconsin Central and those that
may be sold by Pacific Rail. Wisconsin Central will pay fees and
reimburse expenses of Deutsche Bank relating to the Tranz Rail
Ordinary Shares that may be sold by Wisconsin Central and will
reimburse one-half of Deutsche Bank's expenses related to the joint
marketing.
Item 7. Material to be Filed as Exhibits.
A. Joint Filing Agreement, dated November 9, 2000.
B. Engagement Letter Agreement between Deutsche Bank AG and
Wisconsin Central Transportation Corporation dated 9
November 2000.
5
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is
true, complete and correct.
Dated: November 9, 2000
Wisconsin Central Transportation
Corporation
By: /s/ Thomas F. Power, Jr.
-------------------------
Name: Thomas F. Power, Jr.
Title: President and Chief Executive
Officer
Wisconsin Central International, Inc.
By: /s/ Ronald G. Russ
-------------------------
Name: Ronald G. Russ
Title: Executive Vice President and
Chief Financial Officer
6
SCHEDULE I
Information with Respect to Executive
Officers and Directors
The following information is disclosed for each of the directors
and executive officers of Wisconsin Central and Wisconsin
International: name; business address; and present principal
occupation or employment and the name, principal business and address
of any corporation or other organization in which such employment is
conducted. Unless otherwise specified, the principal employer of each
such individual is Wisconsin Central. Dr. Small is a citizen of New
Zealand. Each other individual identified below is a citizen of the
United States.
To the knowledge of management of Wisconsin Central and Wisconsin
International, during the last five years, no such person has been
convicted in a criminal proceeding (excluding traffic violations or
similar misdemeanors), and no such person was a party to a civil
proceeding of a judicial or administrative body of competent
jurisdiction as a result of which he was or is subject to a judgment,
decree or final order enjoining future violations of, or prohibiting
or mandating activities subject to, federal or state securities law or
finding any violation with respect to such laws.
Directors of both Wisconsin Central and Wisconsin International
---------------------------------------------------------------
<TABLE>
<CAPTION>
Name Address Principal Occupation
---- ------- --------------------
<S> <C> <C>
Robert H. Wheeler Two Prudential Plaza Chairman of the Board of
180 North Stetson Avenue Wisconsin Central, a non-
Suite 3125 executive office
Chicago, Illinois 60601
Carl Ferenbach Berkshire Partners Managing Director of
One Boston Place Berkshire Partners LLC,
Suite 3300 Boston, Massachusetts, a
Boston, Massachusetts 02108 private equity firm
sponsoring and investing
in acquisitions and
recapitalizations
Roland V. McPherson Asset Acquisition & President of Asset
Management Company Acquisition and Management
10660 West 143rd Street Corporation, a private
Suite E, Lower Level acquisition company
Orland Park, Illinois 60462-0157
Name Address Principal Occupation
---- ------- --------------------
Thomas F. Power, Jr. Wisconsin Central President and Chief
Transportation Corporation Executive Officer of
One O'Hare Centre Wisconsin Central
Suite 9000
6250 North River Road
Rosemont, Illinois 60018
Thomas W. Rissman McLachlan, Rissman & Doll Member of the law firm of
676 North Michigan Avenue McLachlan, Rissman & Doll
Suite 2800
Chicago, Illinois 60611
A. Francis Small Level 5 Dr. Small retired as the
AXON House Managing Director of Tranz
1 Willeston Street Rail in May 2000 following
Wellington 34 years of employment
New Zealand with Tranz Rail and its
predecessors.
Directors of Wisconsin Central who are not Directors of Wisconsin International
-------------------------------------------------------------------------------
Name Address Principal Occupation
---- ------- --------------------
Thomas E. Evans Collins & Aikman Chairman and Chief
5755 New King Court Executive Officer of
Troy, Michigan 48098 Collins & Aikman
J. Reilly McCarren Wisconsin Central President and Chief
Transportation Corporation Executive Officer of
One O'Hare Centre Wisconsin Central's North
Suite 9000 American operating
6250 North River Road subsidiaries
Rosemont, Illinois 60018
John W. Rowe UNICOM Corporation Chairman, President and
One First National Plaza Chief Executive Officer of
37th Floor Unicom Corporation in
Chicago, Illinois 60690 Chicago, Illinois
</TABLE>
Executive Officers
------------------
The principal business address of each person listed below is
Wisconsin Central Transportation Corporation, One O'Hare Centre, Suite
9000, 6250 North River Road, Rosemont, Illinois 60018.
<TABLE>
<CAPTION>
Principal Occupation/
Name Position with Wisconsin Central
---- -------------------------------
<S> <C>
Thomas F. Power, Jr. President and Chief Executive Officer
J. Reilly McCarren President and Chief Executive Officer of North American operating subsidiaries
Ronald G. Russ Executive Vice President and Chief Financial Officer
James E. Fisk Executive Vice President-Corporate Development
John L. Bradshaw Vice President-Corporate Development
Deborah M. Coady Vice President-Human Resources and Claims
Janet H. Gilbert Vice President-General Counsel of North American operating subsidiaries
Walter C. Kelly Vice President and Chief Accounting Officer
Glenn J. Kerbs Vice President-Engineering of North American operating subsidiaries
William R. Schauer Vice President-Marketing of North American operating subsidiaries
J. Edward Terbell Vice President and General Manager of North American operating subsidiaries
Robert F. Nadrowski Vice President-Mechanical of North American operating subsidiaries
Richard P. White Vice President-Corporate Development
Marty J. Mickey Treasurer
Principal Occupation/
Name Position with Wisconsin International
---- -------------------------------------
Thomas F. Power, Jr. President and Chief Executive Officer
Ronald G. Russ Executive Vice President and Chief Financial Officer
James E. Fisk Executive Vice President-Corporate Development
John L. Bradshaw Vice President-Corporate Development
Marty J. Mickey Treasurer
</TABLE>
The following table sets forth the number of Tranz Rail Ordinary
Shares (or their equivalent held in the form of American Depositary
Receipts) that are beneficially owned by each of the directors and
executive officers of Wisconsin Central and Wisconsin International:
% of Ordinary Shares
Number of Tranz Rail Outstanding at
Name Ordinary Shares August 1, 2000
---- -------------------- -------------------
John L. Bradshaw -0- *
Deborah M. Coady -0- *
Thomas E. Evans -0- *
Carl Ferenbach 6,375,733(1)(2) 5.3%
James E. Fisk -0- *
Janet H. Gilbert -0- *
Walter C. Kelly -0- *
Glenn J. Kerbs -0- *
J. Reilly McCarren -0- *
Roland V. McPherson 500 *
Marty J. Mickey 300 *
Robert F. Nadrowski -0- *
Thomas F. Power, Jr. 62,000(2) *
Thomas W. Rissman 71,000(2) *
John W. Rowe -0- *
Ronald G. Russ 76,999 *
William R. Schauer -0- *
A. Francis Small 1,103,599(3) *
J. Edward Terbell -0- *
Robert H. Wheeler 62,000(2) *
Richard P. White 488,649 *
(1) Includes shares held by Berkshire Fund III, a Limited
Partnership, and shares held by certain affiliates of Berkshire
Partners as to which Mr. Ferenbach has been appointed attorney-
in-fact. Mr. Ferenbach is a general partner of the partnership
that is the general partner of Berkshire Fund III.
(2) Includes 50,000 Ordinary Shares subject to options.
(3) Includes 100,000 Ordinary Shares subject to options.
* Less than 1%.
EXHIBIT A
Joint Filing Agreement
In accordance with Rule 13d-1(k) under the Securities Exchange
Act of 1934, the entities named below agree to the joint filing on
behalf of each of them of this Schedule 13D with respect to the
Ordinary Shares of Tranz Rail and further agree that this joint filing
agreement be included as an exhibit to this Schedule 13D. In evidence
thereof, the undersigned hereby execute this Agreement as of the 9th
day of November, 2000.
Wisconsin Central Transportation
Corporation
By: /s/ Thomas F. Power, Jr.
----------------------------
Name: Thomas F. Power, Jr.
Title: President and Chief Executive
Officer
Wisconsin Central International, Inc.
By: /s/ Ronald G. Russ
----------------------------
Name: Ronald G. Russ
Title: Executive Vice President and
Chief Financial Officer
EXHIBIT B
DEUTSCHE BANK [LOGO]
Deutsche Bank AG
Investment Banking
PO Box 6900, Wellesley Street, Auckland
Level 6, Price Waterhouse Centre
66 Wyndham Street, Auckland
New Zealand
Tel: 64 9 351 1000
Fax: 64 9 351 1853
Direct: 64 9 351 1509
Strictly Private & Confidential
9 November 2000
Mr Thomas Power Jr
President and Chief Executive Officer
Wisconsin Central Transportation Corporation
By facsimile 00 847 318 4628
Dear Sir:
Appointment to act as Adviser in the sale of shares in Tranz Rail
Holdings Limited ("the Assignment").
This letter confirms the appointment of Deutsche Bank AG ("Deutsche
Bank" or the "Adviser") as financial adviser to Wisconsin Central
Transportation Corporation ("Wisconsin" or "the Company") in the sale
of its shares in Tranz Rail Holdings Limited ("Tranz Rail").
Wisconsin acknowledges that Deutsche Bank is also advising Pacific
Rail Limited ("Pacific Rail") in relation to the sale of its shares in
Tranz Rail and will market the shares jointly.
Deutsche Bank acknowledges that the Company has exclusively engaged
Goldman, Sachs & Co. (pursuant to a separate letter agreement) as
financial advisor with respect to (i) the consent solicitation being
conducted by certain shareholders of the Company and (ii) the
_____________________________________________________________________
Deutsche Bank AG is incorporated with limited liability in
Frankfurt am Main HRB 30 000, District Court of Frankfurt am
Main, Federal Republic of Germany, Chairman of the
Supervisory Board: Hilmar Kopper Board of Managing
Directors: Josef Ackermann, Carl L von Boehm-Bozing, Rolf-E
Brauer, Thomas R Rischer, Tessen von Heydebreck, Hermann-
Josef Lambero, Edson Mitchell, Michael Philipp
Company's analysis and consideration of various financial alternatives
available to it, which may include, without limitation, the
acquisition by another party of all or a portion of the Company's
stock or assets and potential financial restructurings or
recapitalizations.
This letter outlines the Adviser's basis of assignment including our
role, the project team, basis of remuneration and other matters that
relate to this assignment.
1. Scope of work
Deutsche Bank will:
* Assist Wisconsin to develop a strategy for the sale of its shares
in Tranz Rail.
* Undertake a valuation of Wisconsin's interest in Tranz Rail.
* Act as Project Manager for the divestment, including co-
ordination of other advisers.
The nature and extent of the remaining tasks will depend upon the sale
strategy recommended but may encompass:
* Information memorandum preparation
* Identification of potential buyers
* Assistance with preparation of Management presentations
* Co-ordination of OIC application process
* Co-ordination of the due diligence process (including
preparation)
* Advice on selection of the preferred party; and
* Advice on negotiation strategy.
2. Deutsche Bank Team
Deutsche Bank has selected a team of executives for this assignment
based on their expertise, experience and knowledge relevant to the
particular aspects to this assignment. The core members of the team
are:
* Scott Perkins - Chief Executive Officer, Head of New Zealand
Investment Banking
* Steve Greenwood - Director, Investment Banking
* Mary MacLeod - Vice President
* Troy Mackie - Manager
The Adviser undertakes to make the core team available when reasonably
required for the duration of the assignment, subject to staff changes
as a result of termination of employment, illness, leave or
international staff transfers. Other members of the Adviser's firm,
with international expertise in key business areas, will supplement
this core team as required.
3. Remuneration
In consideration for Deutsche Bank's services as set out in this
letter, the Company agrees to pay Deutsche Bank its customary fees and
expenses.
Expenses
The Company will reimburse all reasonable out-of-pocket expenses
incurred by Deutsche Bank in carrying out this assignment to the
extent that they relate solely to the Company and one half of all such
expenses incurred by Deutsche Bank to the extent that they relate to
the joint marketing of the Tranz Rail shares. These costs will
include (but are not limited to) communications, couriers, travel and
accommodation.
If required, Deutsche Bank will substantiate all out-of-pocket costs
and expenses by reasonable documentary evidence that is satisfactory
to the Company. Deutsche Bank will obtain the Company's approval
prior to incurring any individual expense greater than $5,000.
4. Payment
All payments to be made by the Company to Deutsche Bank under this
assignment must be made in New Zealand dollars to such bank account in
New Zealand as Deutsche Bank advises the Company. All payments to be
made by the Company must be made free and clear of any set-off,
counterclaim, withholding or other deduction such that the net amount
received by Deutsche Bank is the same as the gross amount payable as
if no withholding or deduction has been made.
If the Company is required by applicable law to make any withholding
or deduction on account of taxes with respect to any amount payable by
it under this assignment, it must promptly deliver to Deutsche Bank
all tax receipts evidencing payment of all such taxes withheld or
deducted. In addition, the Company shall bear all applicable taxes
(other than income tax on Deutsche Bank's overall net income) and
duties and related penalties of any kind, including, without
limitation, all value-added, goods and services or other similar tax
associated with the performance of Deutsche Bank's services under this
assignment.
5. Financial Models
If Deutsche Bank is required to prepare a financial model for the
Company in connection with the assignment, the model will be subject
to the assumptions notified at the time of delivery to the Company. If
the financial model is disclosed to any third party Wisconsin will
ensure that the third party is aware of Deutsche Bank's standard
conditions for providing financial models to third parties.
6. Potential Conflicts of Interest
The Company acknowledges that Deutsche Bank is a full service global
financial institution involved in commercial banking, investment
banking, capital markets activities and other financial activities of
all kinds (including without limitation, investment management,
corporate finance and securities issuing, trading and research) out of
which conflicts of interest and duties may arise. Also from time to
time, Deutsche Bank or its affiliates may effect transactions for its
own account or the account of its customers and hold long or short
positions in debt or equity securities of the companies which may be
the subject of the transactions contemplated by this assignment.
By accepting the terms of this assignment, the Company acknowledges
and accepts the potential conflicts of interest that may arise. Both
Deutsche Bank and the Company agree to work together in good faith to
resolve such issues if they arise during the course of this
assignment.
The Company acknowledges that Deutsche Bank has recently completed an
advisory assignment for Tranz Rail in relation to the sale of its
Auckland corridor. The parties agree that this does not constitute a
conflict of interest. Deutsche Bank has advised Tranz Rail of this
assignment and Tranz Rail concurs that this does not constitute a
conflict.
7. Confidential Information
During the course of implementing this assignment, the parties may
have access to financial information, trade secrets and confidential
know-how which is supplied by one party or developed by or on behalf
of the other party, which information is non-public, confidential or
proprietary and identified as such ("Information").
The parties agree to keep the Information confidential and not to
disclose the Information to third parties without the prior written
consent of the party who has supplied, had control of or developed the
Information.
A party may disclose Information only to those of its officers and
employees who have a need to know (and only to the extent that each
has a need to know), provided those persons have been directed by the
disclosing party to keep the Information confidential on terms
consistent with this paragraph. Specifically, Deutsche Bank will not
disclose Information to any employee involved in the trading of
equities without the prior written consent of the Company.
The obligations of confidentiality set out in this clause do not
extend to information that (whether before or after the date of
acceptance of this letter):
(a) is in the receiving party's possession without actual or
constructive knowledge of an obligation of confidentiality with
respect to that information at or prior to the time of
disclosure;
(b) is public knowledge (otherwise than as a result of a breach of
this paragraph); or
(c) is required by law to be disclosed.
The obligations in this clause survive termination of this assignment.
The Company acknowledges that neither Deutsche Bank nor any of its
affiliates will have any duty to disclose to the Company any
information which comes to their notice in the course of carrying on
any other business or as a result of or in connection with the
provision of services to other persons. The Company accepts that
Deutsche Bank and its head office, other branches and affiliates may
be prohibited from disclosing, or it may be inappropriate for Deutsche
Bank and its affiliates to disclose, such information to the Company.
8. Confirmation and Undertakings
The Company confirms and undertakes to Deutsche Bank that:
(a) it is the responsibility of the Company to satisfy itself as to:
(i) the accounting classification, taxation and stamp duty
consequences of any transaction contemplated by or
during the course of this assignment;
(ii) the validity, sufficiency, due execution and
enforceability of all agreements entered into with
respect to any such transaction; and
(iii) its compliance with all applicable legal and regulatory
provisions in relation to this assignment and any such
transaction,
the Company acknowledges that its legal and accounting advisers
are primarily responsible for advising on these matters;
(b) subject to any fiduciary or confidentiality obligations of the
Company, the Company will provide Deutsche Bank with such
information as Deutsche Bank may reasonably request in connection
with the performance by Deutsche Bank of its services under this
assignment;
(c) all such information which the Company supplies to Deutsche Bank
will to the Company's reasonable belief be true, complete and
accurate in all respects and not misleading and Deutsche Bank
shall be entitled to rely upon the accuracy and completeness of
all such information without independent verification;
(d) Deutsche Bank does not assume responsibility for, or for
independently verifying, the accuracy or completeness of such
information;
(e) subject to any fiduciary or confidentiality obligations of the
Company, the Company must continue to inform Deutsche Bank of any
material developments or changes to such information during the
term of Deutsche Bank's assignment;
(f) all forecasts, statements of opinion or expectations supplied to
Deutsche Bank have been or will be made after due and careful
enquiry and were or will be based on reasonable assumptions;
(g) the Company will, at its own expense, engage such legal,
accounting and other advisers as may be required in connection
with the assignment and agrees that, subject to client attorney
privilege, the substance of all material advice received from
such advisers will be made known to Deutsche Bank to enable
Deutsche Bank to perform its services under this assignment;
(h) subject to any fiduciary or confidentiality obligations of the
Company, the Company will provide Deutsche Bank with reasonable
access to the Company's directors, officers, employees, legal and
accounting advisers and other relevant persons for the purpose of
performing the services under this assignment;
(i) the Company will comply with all applicable laws and regulations
in relation to the assignment; and
(j) except as may be required by law or by any relevant regulatory
authority, no advice rendered by Deutsche Bank to the Company in
connection with this assignment will be disclosed or quoted, nor
will any of that advice be referred to in any report, document,
press release, public statement, or other communication by the
Company or any corporation controlling, controlled by, or under
the control of or affiliated with the Company or any director,
employee or agent of the Company or any of those entities without
Deutsche Bank's prior written consent.
The Company represents and warrants to Deutsche Bank that this
assignment is legally valid and binding on the Company and enforceable
against it in accordance with its terms and the execution of this
letter has been duly authorised and approved and all necessary
corporate and other actions required to be taken by the Company have
been taken.
9. Indemnity and Release
The Company indemnifies Deutsche Bank, each of its related bodies
corporate and their respective directors, employees and agents
("Deutsche Bank Group") and agrees to hold the Deutsche Bank Group
harmless from and against:
(a) all actions, claims, demands or proceedings which may be
instituted against; and
(b) all liabilities, losses, damages, costs and expenses (including
reasonable legal costs and expenses) which may be suffered or
incurred by,
any member of the Deutsche Bank Group in connection with or arising
out of this assignment or any transaction contemplated by or during
the course of this assignment.
This indemnity extends to the reasonable cost of investigating,
preparing for or defending any actions, claims, demands or proceedings
and any threatened litigation whether or not any member of the
Deutsche Bank Group is a party to those actions, claims, demands,
proceedings or threatened litigation.
The Company will not be responsible for any liabilities, losses,
damages, costs or expenses to the extent to which they result from
wilful default, negligence or breach of law on the part of the
Deutsche Bank Group.
The Company agrees that the Deutsche Bank Group will not be liable
(whether directly or indirectly in contract or tort or otherwise) to
the Company or any of its related bodies corporate or their respective
officers and agents for or in connection with this assignment or any
transaction contemplated by or during this assignment, except to the
extent that such liability arises directly from the willful default,
negligence or breach of law of the Deutsche Bank Group.
Deutsche Bank receives the benefit of this clause for itself and as
agent for the other members of the Deutsche Bank Group. The indemnity
and other rights and obligations in this clause extend to the maximum
extent permitted by law and remain in full force and effect
notwithstanding termination (for whatever cause) of this assignment.
The benefit of this clause is intended to extend to the related bodies
corporate of Deutsche Bank and each of their directors, employees and
agents and to be enforceable by them pursuant to the Contracts
(Privity) Act 1982.
10. Announcements
Deutsche Bank shall not make any announcements about this assignment
or the matters or transactions surrounding it without the Company's
prior written consent.
11. Termination
The Company may, by 10 days' written notice, terminate this mandate at
any time.
Termination will not release the Company from any of its payment
obligations accrued up to termination.
After the date of termination, Deutsche Bank will continue to be
entitled to the success fee specified in paragraph 3, if Deutsche Bank
provided advisory services and the Company completes the Assignment
within a period of 12 months from the date of termination.
12. Entire Understanding and Variation
This letter constitutes the entire agreement between the parties with
respect to the assignment and supersedes all prior agreements and
understanding in any form, written or oral, between the parties with
respect to the assignment, unless expressly agreed otherwise by the
parties. The terms of this letter may not be amended or modified
except in writing signed by each of the parties.
13. Governing Law
This assignment is governed by and construed in accordance with the
laws in force in New Zealand. Both parties irrevocably and
unconditionally submit to the non-exclusive jurisdiction of the courts
of New Zealand.
We trust that these arrangements are acceptable to you. If so, would
you please indicate your acceptance by signing a copy of this letter
and returning an original to us.
We look forward to working with you towards the successful conclusion
to the assignment.
Yours sincerely
Deutsche Bank AG
/s/ Steve Greenwood /s/ Mary MacLeod
---------------------------- ---------------------------
Steve Greenwood Mary MacLeod
Director Vice President
Investment Banking Investment Banking
Accepted for and on behalf of Wisconsin Central Transportation
Corporation
Signature: /s/ Thomas F. Power, Jr.
Title: President and Chief Executive Officer
Date: November 9, 2000
