Exhibit 99.1
Dated the 7th day of December 1995
(1) MINMET PLC
(2) GULF EXPLORATION CONSULTANTS, INC
(3) MICRON LIMITED
(4) EMERGING MONEY PUBLIC LIMITED COMPANY
SUBSCRIPTION AGREEMENT AND OPTION
MCCANN FITZGERALD
SOLICITORS
2 HARBOURMASTER PLACE
CUSTOM HOUSE DOCK
DUBLIN 1
AGREEMENT
THIS AGREEMENT is made the 7th day of December 1995 BETWEEN
(1) MINMET PLC having its registered office at 51/52 Fitzwilliam
Square, Dublin 2 (hereinafter called "Minmet").
(2) GULF EXPLORATION CONSULTANTS, INC. having an office C/o Reid
and Priest LLP New York New York 10019 USA [hereinafter
called "Gulf")
(3) MICRON LIMITED (in the course of changing its name to
Emerging Markets Data Limited) having its registered office
at 2 Harbourmaster Place, Custom House Dock, Dublin 1
(hereinafter called "Micron") and
(4) EMERGING MONEY PUBLIC LIMITED COMPANY having its registered
office at 51/52 Fitzwilliam Square, Dublin 2 (hereinafter
called "Emerging")
WHEREAS
Emerging has resolved by way of Special Resolution to convert
from a public limited company to a private limited company by
resolution dated the 7th day of December 1995 and is a wholly
owned subsidiary of Gulf. Gulf is a 52.8% owned subsidiary of
Minmet. The authorised share capital of Emerging is 1,000,000
pounds divided into 1,500,000 Deferred Ordinary Non Voting Shares
"Deferred Shares" (as defined and restricted in accordance with
Article 4 (b) of the Articles of Association of the Company) of
9p each and 86,500,000 Ordinary Shares of 1p each ("Ordinary
Shares") of which 1,500,000 Ordinary Shares and 1,500,000
Deferred Shares have been issued and all of which are fully paid
and in the beneficial ownership of Gulf.
AND WHEREAS Emerging is beneficially entitled to the proportion
of the issued share capitals of those companies ("the
Subsidiaries") specified in Part A of the First Schedule hereto
details of which companies are contained in Part B of such
Schedule. All of such shares are held by Emerging beneficially
free from encumbrances and all claims demands or otherwise.
AND WHEREAS
Immediately following execution of this Agreement Micron shall
subscribe for 3,954,545 Ordinary Shares at par representing 72.5%
("the Subscription Shares") of the issued Ordinary Shares of
Emerging. The price payable or deemed to be payable by Micron
for such Ordinary Shares shall be as hereinafter set forth.
AND WHEREAS the parties intend to enter into the Shareholders
Agreement (as hereafter defined).
AND WHEREAS the form of newly adopted Memorandum and Articles of
Emerging are set out in the Second Schedule hereto.
AND WHEREAS the parties are considering (but without imposing any
obligation to do so) a listing for the shares in Emerging in the
foreseeable future.
AND WHEREAS Micron may subscribe for an additional Ordinary Share
on the terms hereafter set out.
In this Agreement:
"the Shareholders Agreement" means the Agreement referred to in
Clause 4.3 to be entered into between Micron, Minmet, Emerging
and, if applicable, Gulf (or alternatively by Minmet on its own
behalf and on behalf of Gulf) in relation to the conduct of
Emerging;
"the Disclosure Letter" means the Disclosure Letter referred to
in the Warranties;
"the Diligence Period" means the date on which the Conditions
Precedent (as set forth in Clause 4 hereof) are met in full
subject to such date being no later (unless otherwise extended at
the absolute discretion of Micron) than 1st June 1996 ("the
Expiry Date");
"Emerging's Activities" means the activities of the provision of
economic and financial data from the emerging markets to third
party subscribers through the mediums of screen services, CD-ROM
and various electronic media (including information sent by fax)
and hard copy publishing;
"the Warranties" means the Representations and Warranties set out
in the Third Schedule;
"the Warrantor" means Minmet;
"the Deed of Indemnity" means the Indemnity the form of which is
set out in the Fourth Schedule;
"Pound symbol" or "p" means Irish pounds or Irish pence, the lawful
currency of the Republic of Ireland;
"Russiamoney Limited - Newco" means a newly incorporated Irish
company as Dovehouse Limited (in the course of changing its name
to Russiamoney Limited) and at the date hereof owned 100% by
Micron but which is intended to be hereafter owned as to 50% by
Micron and 50% by Sobolev Consulting Services of Raspletin
Street, Moscow, Russia.
THIS AGREEMENT HEREBY WITNESSETH AS FOLLOWS:
1. Upon execution hereof Micron shall acquire by way of
subscription the Subscription Shares amounting to 3,954,545
Ordinary Shares and Micron shall pay in cash on each such share
the sum of 1p making a total payment of 39,546 pounds ("the Initial
Payment") (the receipt of which subscription is hereby
acknowledged). The Board of Emerging shall upon execution hereof
pass a directors resolution authorising the issue to Micron of
the Subscription Shares as aforesaid with full voting rights
ranking pari passu with all existing Ordinary Shares. Gulf
hereby waives any and all preemption rights in respect of the
issue of the Subscription Shares.
2. Provisions as to expiration of the Due Diligence Period and
Conditions Precedent
2.1 Upon all of the Conditions Precedent having been met prior
to the Expiry Date or such later date as Micron may
determine but not otherwise and provided that Emerging shall
have converted to a private company as aforesaid, Micron
shall be deemed to have paid to Emerging the amounts
referred to in Clause 2.3 (i) (a) and (b) as a premium in
respect of the Subscription Shares (and so that the premium
on each of the Subscription Shares shall be and shall be
deemed to be the same) and shall pay to Emerging such cash
amounts (if any) as shall be required when added to the
amounts deemed to have been so paid as per Clause 2.3 (i)
(a) and (b) shall result in an aggregate total of such
premium of 400,454 pounds ("the Balance Payment"). Such deemed
payment and cash payment (if any) shall be made or satisfied
in full seven days following all of the Conditions Precedent
having been met ("the Completion Date"). The Secretary of
Emerging shall be instructed to issue a receipt for such
payment and to make all necessary returns to the Companies
Office in respect of same. Micron shall procure that
Russiamoney Limited shall then transfer and assign at no
cost to Russia- money Limited - Newco all it's beneficial
ownership of and in the assets, trade marks, cash,
receivables, marketing material, contracts and products
which have been or have become part of the business carried
on by Russiamoney Limited. Thereupon Micron shall forthwith
transfer and assign at no cost to Emerging Micron's
beneficial ownership of and in the assets, trade marks,
receivables, marketing material, contracts and products
which have been or have become part of the business carried
on by Micron or any company in any group of which Micron is
a member including but not limited to Micron's 50% interest
in Russiamoney Limited -Newco and any other interests in
other companies or entities held by Micron; Provided that
such assets trademarks cash receivables marketing material
contracts products and other interests fall within the
definition of Emerging's Activities.
2.2 In the event that all of the Conditions Precedent are not
met prior to the Expiry Date (or such later date as Micron
may determine) then unless the parties agree otherwise
Minmet shall upon notice from Micron purchase from Micron
and Micron will sell or Micron upon notice from Minmet/Gulf
shall immediately sell to Minmet/Gulf the Subscription
Shares free from all liens, charges and encumbrances
together with all rights then or thereafter attaching
thereto for a consideration equal to (a) the Initial Payment
plus (b) the excess (if any) between the amount of the
Initial Payment and the amounts calculated under Clause
2.3(i)(a).
Any sale and purchase of the Subscription Shares as
contemplated in this Clause 2.2 shall be completed at the
office of Micron's solicitors in Dublin and the following
shall apply:
1. the total price shall be discharged by bank draft,
2. Micron shall hand over a Share Certificate or
Certificates for the Subscription Shares together
with an executed Share Transfer in respect thereof
but no other document whatever; and
3. The Subscription Shares shall be purchased subject
to all rights and obligations then existing.
2.3 (i) For the purposes of Clause 2.1 there shall be included
as the whole or part of the Balance Payment:
(a) all amounts (if any) lent by Micron to Emerging or
paid on by Micron behalf of Emerging for the
purpose of:
(1) enabling Emerging to discharge agreed
creditors of Emerging and/or the Subsidiaries
or
(2) paying liabilities of Emerging and/or the
Subsidiaries which arose prior to the date
hereof but which are not contained in
Appendix A referred to in Clause 2.4 hereof.
Less all amounts received by Emerging from debtors
arising or pursuant to the grant from Irish Trade
Board in respect of the period prior to the
execution hereof.
(b) all net expenditures (ie, all expenditures
incurred net of amounts received from commercial
operations or grants) incurred other than as in
(a) above by Micron to or on behalf of Emerging
and Russiamoney Limited - Newco and other similar
companies formed with other third party providers
of data. In the absence of agreement as to the
value of such net expenditures Micron's auditors
shall determine and certify in writing the amount
thereof.
For the purpose of this Clause 2.3 (i) the parties
acknowledge and agree that at the date hereof Micron
has expended the sums of money shown and totalled on
Appendix B.
2.4 Appendix "A" is a Schedule of Liabilities ("the Creditors")
of Emerging as at 30 November 1995 showing a total of
63,217 pounds .08p. Micron has agreed to fund the Creditors
(utilising the Initial Payment).
The anticipated receipts after the date hereof from debtors
and grants ("the Receivables") for Emerging in respect of
the period up to and including 30 November 1995 is at least
8,000 pounds.
(i) The parties agree that if the Creditors less the amount
of Receivables collected by Emerging prior to 1 June
1996 are greater than 55,000 pounds then Minmet agrees and
undertakes with Micron to pay Micron on a pound for
pound basis the amount by which such sum is greater
than 55,000 pounds to the extent such sum has been funded by
Micron. Such payment shall be made within seven days
of Minmet being called up by Micron so to do, and
(ii) The parties agree that to the extent a payment is made
under this Clause the Warrantor shall not be liable in
respect of any claim for breach of the Warranties or
under the Deed of Indemnity to the extent satisfied
under this Clause.
3. Provisions as to prior to and following execution
3.1 At or prior to the execution of this Agreement:
(i) The respective Boards of Directors of Gulf, Minmet and
Emerging shall have irrevocably granted approval of the
transaction in the form as set forth herein,
(ii) Gulf hereby agrees to subordinate all its intercompany
claims against Emerging and the Subsidiaries firstly to
all sums which are or may become due to be paid or
repaid or discharged by Emerging to or in favour of
Micron including any joint venture Company in which
Micron is a shareholder Provided that such joint
venture relates to Emerging's Activities and secondly
to all creditors of Emerging and the Subsidiaries. In
recognition and consideration of the Balance Payment
herein, in the case of Minmet on the date hereof and in
the case of Gulf in the Completion Date all
intercompany claims shall be capitalised by way of
reconstitution as contributed capital (but not to
involve the issue of any further shares to Minmet/Gulf)
so that Minmet and Gulf (either between themselves or
only one or the other) shall after such capitalisation
be entitled to hold (in the aggregate) 27.5% of the
undiluted full voting Ordinary shares of Emerging and
the Deferred Shares. It is agreed that as of the date
of execution hereof the intercompany claims against
Emerging are, in the case of Gulf, approximately
US$135,000 and in the case of Minmet approximately
US$358,100.
(iii) Subject to the provisions of subclause (ii) above
Gulf and Minmet hereby waive all other (if any)
claims of whatever nature or demands (if any)
against Emerging and the Subsidiaries and their
assets. Provided that if the transaction does not
proceed in accordance with Clause 2.1 hereof the
claims referred to in this Clause and Clause 3.1
(ii) hereof so far as Gulf is concerned may be
reinstated and admitted by Emerging subject to the
prior payment to Micron of all amounts provided
for in this Agreement.
(iv) A resolution will have been passed to convert Emerging
to a private limited company and reorganize its share
capital as agreed between the parties and the other
documents provided for in Section 14 of the Companies
(Amendment) Act 1993 shall have been completed and
filed.
(v) The parties shall procure that Russiamoney Limited
shall resolve to change its name to Russiarouble
Limited or to another name to be first approved by
Micron (such approval not to be unreasonably withheld
or delayed) so as to facilitate Micron in changing the
name of Dovehouse Limited to Russiamoney Limited.
(vi) The parties shall procure that Emerging transfers all
the issued shares in India Money Limited, South Africa
Money Limited and Russiamoney Limited (the UK company)
to Micron for a consideration of 3 Irish pounds and that
Minmet shall have confirmed to Micron that such companies
have no liabilities whatever and have never traded.
(vii) Gulf, Minmet, the Subsidiaries and Jeremy Metcalfe
and Michael Nolan by signing or countersigning
this Agreement hereby agree and covenant to
compete directly or indirectly in any business
activities of the type carried on by Emerging
and/or the Subsidiaries at the Completion Date for
a period of at least two years from the Completion
Date. Minmet shall also agree to request Mr. Paul
Bristol to give a like Undertaking not to compete.
(viii) Emerging shall transfer the shares in Minmet (UK)
Limited to another entity outside the Emerging
group.
(ix) Gulf and Minmet shall have procured that all directors
and secretaries of Emerging and the Subsidiaries (with
the exception of Frank Fitzgibbon, Vladimir Grabarnik
and Alexander Kolankov who shall remain as directors of
Russiamoney Limited) shall have resigned from their
respective Boards and shall have confirmed in writing
that they have no claims or demands whatever against
Emerging and/or the Subsidiaries. Mr. Harris Freedman
will be appointed as Chairman of Russiamoney Limited,
and
(x) Minmet shall by its execution hereof undertake to
procure subject to the receipt of landlords consent the
assignment (without fine cost or premium) of the
various Leases listed in the Fifth Schedule to Micron
together with the title to all furniture and equipment
located at Emerging's Dublin office but currently held
in the name of Minmet and Micron hereby agrees to
assume all rental payments and any other liabilities
arising thereunder with effect from the date of
execution hereof. Minmet hereby agrees to discharge
all (if any) arrears in relation to all such Leases up
to the date of execution hereof. In the absence of
landlords consent Minmet shall agree to allow Micron
occupy such offices on the same basis as occupied by
Minmet at the date hereof. Micron agrees to make
available to Minmet free of charge one room for one
person for the calendar year 1996 but not longer, and
the use (if available) of a conference room from time
to time for the calendar year 1996.
3.2 Immediately following execution of this Agreement:
(i) Micron shall have the right to control the management
and finances of Emerging which such right shall cease
on the application of Clause 2.2 hereof.
(ii) Micron will request Emerging to provide to Micron up to
the Completion Date exclusive editing and
administration services for which Emerging shall be
paid on a basis as shall be agreed from time to time by
the parties hereto. It is further acknowledged and
agreed that Micron shall be entitled to market all
products of Emerging (including but not limited to
Russia Money Screens) including all new products and
all new subscriber screen revenues shall belong to and
be collected by Micron and shall be dealt with as
otherwise provided in this Agreement. Emerging shall
collect all revenues from old subscribers due in
respect of periods prior to the date hereof and the
proceeds thereof and shall be dealt with as otherwise
provided in this Agreement, and
(iii) Micron shall subject to Clause 2.1 have the right
to and shall succeed to the unconditional and
beneficial ownership of all names, trademarks and
copyrights in connection with Emerging's
Activities and future business and in connection
with the businesses of the Subsidiaries. In
connection with such ownership all of the parties
hereto shall co-operate with Micron to secure the
registration of trade marks in respect of the
above mentioned names in such countries and in
respect of such classes as Micron shall reasonably
require and at the cost of Micron. Any names
similar to the above shall not be used following
the date hereof by Minmet Gulf or their
subsidiaries.
4. Conditions Precedent
4.1 Gulf and Minmet having procured all requisite third
party approvals and having complied with all
appropriate requirements (including but not limited to
the giving of notice to and approval by Gulf
stockholders as required by Delaware law and obtaining
any necessary fairness or other opinions) to fully
effect this transaction in accordance with law, Stock
Exchange and SEC requirements.
4.2 A letter of opinion having being obtained from Reid &
Priest LLP Attorneys at Law to Gulf that all the
requirements and approvals referred to in 4.1 hereof
and relating to Gulf have been obtained in accordance
with proper procedure and law.
4.3 The Shareholders Agreement having been entered into.
The Shareholders Agreement shall provide for certain
matters requiring the consent of Shareholders holding
at least 75% of the entire issued share capital of
Emerging. Such matters shall be:
(i) a resolution to alter the Memorandum or Articles
of Association;
(ii) a resolution to liquidate;
(iii) a resolution to reduce capital; or
(iv) a resolution to amend any class rights;
In addition the Shareholders Agreement shall provide
for:
(v) preemption on the issue of new shares;
(vi) each party shall have the right of first refusal
in a case where either party wishes to sell;
(vii) preemption in favour of Micron on sale by
Minmet and/or Gulf of their minority holding.
(viii) Confirmation and agreement that the rights
attaching to the Deferred Shares as provided
for in Article 4(b) of the Articles of
Association will not be altered amended or
varied in any way.
The parties agree that the Shareholders Agreement shall
terminate on the application of Clause 2.2 hereof.
4.4 Notwithstanding Clause 4.3 Minmet/Gulf hereby
irrevocably agrees that for so long as Micron holds in
excess of 50% of the voting shares of Emerging it will
upon request by Micron exercise all voting rights
attached to its Ordinary shares to vote in favour of a
resolution to alter the Memorandum or Articles of
Association in respect of an increase in authorised
capital or a reduction in the par value of Emerging's
shares providing that such increase or reduction is in
connection with the requirements of Emerging for the
following purposes:
(a) to enable Emerging to enter into a joint venture of any
kind (except in a case where the other joint venture
partner is owned as to 50% or more by Micron or the
beneficial owners of Micron in which case the required
percentage to vote in favour of establishing such joint
venture shall be 75%); or
(b) to enable Emerging to obtain a listing for its shares,
it being noted by the parties hereto that they would
like to obtain a listing for the shares of Emerging
after the Completion Date in due course; or
(c) without prejudice to Clause 4.3 (v) to enable Emerging
to complete a subscription for shares in Emerging in
favour of a third party; or
(d) without prejudice to Clause 4.3 (vii) to enable the
shareholders to complete a sale of all or part of their
shares to a third party provided that the terms for all
shareholders are similar,
5. Right to appoint Chairman and other Officers
5.1 On signing hereof Micron shall have the right to appoint the
Chairman plus at least two other directors to the Board of
Emerging; Minmet/Gulf shall have the right to appoint one
non-executive director for as long as they maintain a
shareholding interest of at least 15% in the issued voting
share capital of Emerging from time to time. The provision
of this Clause shall be Incorporated into the Shareholders
Agreement. If this Agreement does not proceed in accordance
with Clause 2.1 Micron shall procure that its nominees
resign from the Board of Emerging without compensation or
other claim.
5.2 In addition to Clause 5.1, on signing hereof and until the
Completion Date Minmet/Gulf shall have the right to appoint
one non-executive director to the Board of Micron. On the
Completion Date Minmet shall procure that such appointee
shall resign without claim or compensation.
6. Warranties
6.1 The Warrantor shall not be liable in respect of any claim in
respect of the Warranties unless such claim or claims,
whether individually or collectively when aggregated with
any claim or claims under the provisions of the Deed of
Indemnity, exceed an amount of 5,000 pounds but following such
figure being exceeded shall be liable for the total amount
of such claim or claims;
6.2 The aggregate amount of the liability of the Warrantor for
all claims in respect of the Warranties, when added to the
aggregate amount of any liability of the Warrantor, in
respect of claims under the Deed of Indemnity shall not
exceed the sum of 440,000 Irish pounds;
6.3 The Warrantor shall not be liable in respect of any claim
for breach of the Warranties to the extent that same has
given rise to a liability under the Deed of Indemnity which
has been satisfied in full;
6.4 The Warrantor shall not be liable (by way of damages or
otherwise) for any claim in respect of the Warranties unless
it shall have received from Micron written notice containing
specific details of the relevant claim including Micron's
estimate of that claim in the case of the Warranties (other
than Tax Warranties) within a period of eighteen months
after the Completion Date and in relation to the Tax
Warranties and/or the Deed of Indemnity the period for
making a claim shall be six years from the Completion Date.
6.5 If the Warrantor shall be liable to pay an amount pursuant
to a claim in respect of any of the Warranties or pursuant
to the Deed of Indemnity the Warrantor shall on demand by
Micron pay to Emerging an amount in cash equal to the amount
of such Warranty/Indemnity Claim.
6.6 The Warrantor acknowledges that to the best of its
knowledge, information and belief and after due and careful
enquiry, it is giving the Warranties with the intention of
inducing Micron as subscriber to enter into this Agreement
and Option and Micron has entered into this Agreement on the
basis of, and in full reliance upon the Warranties and the
Warrantor hereby to the best of its knowledge, information
and belief and after due and careful enquiry, warrants,
represents and undertakes to Micron as subscriber in the
terms set out in the Third Schedule.
6.7 The Warrantor undertakes in relation to any Warranty which
refers to the knowledge information or belief of the
Warrantor that it has made full enquiry into the subject
matter of that Warranty.
6.8 Each of the Warranties is separate and independent and
without prejudice to any other Warranty and, except where
expressly stated otherwise, no clause contained in this
Agreement shall govern or limit the extent or application of
any other clause.
7. Legal fees and costs
7.1 Each party shall bear its own legal fees and transaction
costs in relation to the preparation of this Agreement.
8. Disclosure of confidential information
8.1 Irrespective of whether the provisions of Clause 2.1 or 2.2
apply none of the parties hereto shall during the Diligence
Period and for a period of one year thereafter (or one year
from the date of application of Clause 2.2 as the case may
be) disclose any confidential information received during
the Diligence Period to any competitor of Emerging. For the
purposes of this the term "confidential information" shall
mean technical, commercial and financial information whether
documented or not.
9. Acknowledgement and confirmation
9.1 Without prejudice and in addition to the terms of Clause 3.2
(ii) and 3.2 (iii) hereof the parties agree, acknowledge and
confirm that should the terms of Clause 2.2 apply Micron
shall be entitled to and shall retain the unconditional and
beneficial ownership of:
(i) all assets (including names, trade marks and
copyrights, products and contract rights) relating to
Russiamoney, Russinfo, India Money, South Africa Money,
Israel Money; and
(ii) all other assets, products, contracts or rights which
Micron has purchased and/or created up to and including
the Completion Date.
10. Undertaking by Micron
10.1 Micron undertakes that it shall not cause Emerging between
the date hereof and the Completion Date to wilfully and
intentionally carry out or do any illegal or wrongful act
outside the normal course of Emerging's business and Micron
hereby indemnifies Minmet and Gulf in respect of any such
act or acts. The provisions of this Clause shall only apply
in the event of the application of Clause 2.2 hereof.
11. Each party to act in good faith
11.1 Each party will act with the utmost good faith towards the
other parties and shall use their best endeavors to conclude
the transaction hereby envisaged in the manner and form
herein described.
12. Applicable law etc.
12.1 This Agreement shall be governed by and construed in
accordance with the laws of Ireland and the parties hereto
hereby submit themselves to the non-exclusive jurisdiction
of the Irish Courts.
13. Deed of Indemnity
13.1 Upon the Completion Date the Warrantor as Covenantor shall
hand over to Micron the duly executed Deed of Indemnity.
PRESENT when the Common Seal of
MINMET PLC was affixed hereto: /s/ M. Nolan
/s/ J. Metcalfe
PRESENT when the Common Seal of
GULF EXPLORATION CONSULTANTS INC
was affixed hereto: /s/ M. Nolan
/s/ J. Metcalfe
SIGNED on behalf of MICRON LIMITED
in the presence of:
SIGNED on behalf of EMERGING MONEY
PUBLIC LIMITED COMPANY in the
presence of: /s/ Illegible
/s/ Illegible /s/ M. Nolan
SIGNED by JEREMY METCALFE and
MICHAEL NOLAN for the purpose of
Clause 3.1(vii) in the presence
of: /s/ M. Nolan
/s/ Illegible /s/ J. Metcalfe