SHARE PURCHASE AGREEMENT
This Share Purchase Agreement (this "AGREEMENT"} is made as of December 1,
2005, by and among Great Hill Investors, LLC, a Massachusetts limited liability
company, whose registered office is located at Xxx Xxxxxxx Xxxxxx Xxxxxx,
Xxxxxxxxxxxxx 00000 ("GHI"), Great Hill Equity Partners II Limited Partnership,
a Delaware limited partnership, whose registered office is located at Xxx
Xxxxxxx Xxxxxx Xxxxxx, Xxxxxxxxxxxxx 00000 ("GHEP") and Great Hill Affiliate
Partners II Limited Partnership, a Delaware limited partnership whose registered
office is located at Xxx Xxxxxxx Xxxxxx Xxxxxx, Xxxxxxxxxxxxx 00000 ("GHAP"),
Criterion Capital Partners, L.P., a California limited partnership, whose
registered office is located at 000 Xxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx
00000 ("CCP"), Criterion Institutional Partners, L.P., a California limited
partnership, whose registered office is located at 000 Xxxxxxx Xxxxxx, Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000 ("CIP") and Criterion Capital Partners Ltd., a
Cayman Islands exempted company, whose registered office is located at Walkers
SPV Limited, X.X. Xxx 000 GT, Xxxxxx House, Xxxxxx Town, Grand Cayman, Cayman
Islands, BWI ("CCPL"). Each of GHI, GHEP and GHAP are referred to as a "Buyer."
Each of CCP, CIP and CCPL are referred to as a "Seller."
RECITALS
The Sellers desire to sell, and the Buyers desire to purchase the Shares
for the consideration and on the terms set forth in this Agreement.
AGREEMENT
The parties, intending to be legally bound, agree as follows:
1. DEFINITIONS
For purposes of this Agreement, the following terms have the meanings
specified or referred to in this Section 1:
"ADDITIONAL ACQUISITION AGREEMENTS" has the meaning set forth in Section
6.3(a).
"ADDITIONAL PURCHASES" means the acquisition of an aggregate of 4,500,000
Ordinary Shares or Global Depositary Shares, as applicable, from the Other
Sellers.
"APPLICABLE CONTRACT" means, with respect to any Person, any Contract (a)
under which such Person has or may acquire any rights, (b) under which such
Person has or may become subject to any obligation or liability, or (c) by which
such Person or any of the assets owned or used by such Person is or may become
bound.
A "BREACH" of a representation, warranty, covenant, obligation, or other
provision of this Agreement, any other instrument delivered pursuant to this
Agreement, or any other agreement or Contract, shall be deemed to have occurred
if there is or has been (a) any inaccuracy in or breach of, or any failure to
perform or comply with, such representation, warranty, covenant, obligation, or
other provision, or (b) any claim (by any Person) or other occurrence or
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circumstance that is or was inconsistent with such representation, warranty,
covenant, obligation, or other provision, and the term "BREACH" means any such
inaccuracy, breach, failure, claim, occurrence, or circumstance.
"BUYER" has the meaning set forth in the first paragraph of this
Agreement.
"CLOSING" has the meaning set forth in Section 2.3.
"CLOSING DATE" means the date and time as of which the Closing actually
takes place.
"CODE" has the meaning set forth in Section 3.7.
"COMPANY" means Spark Networks plc, a public limited company, registered
in England and Wales under number 3628907 whose registered office is located at
00-00 Xxxxxxx Xxxxxx, Xxxxxxxx Xxxxxxx, Xxxxxx X0 0XX, Xxxxxxx.
"CONSENT" means any approval, consent, ratification, waiver, or other
authorization (including any Governmental Authorization).
"CONTRACT" means any agreement, contract, obligation, promise, or
undertaking (whether written or oral and whether express or implied), that is
legally binding.
"DISCUSSION TIME" has the meaning set forth in Section 4.3(e).
"DTC" means The Depositary Trust Company.
"ENCUMBRANCE" means any charge, claim, condition, equitable interest,
lien, option, pledge, security interest, right of first refusal, or restriction
of any kind or any other third party right, including any restriction on use,
voting, transfer, receipt of income, or exercise of any other attribute of
ownership, in each case, other than any encumbrance existing as a result of the
fact that the Shares are in the form of Global Depositary Shares.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended, or
any successor law, and regulations and rules issued pursuant thereto or any
successor law.
"GHAP" has the meaning set forth in the Recitals of this Agreement.
"GHEP" has the meaning set forth in the Recitals of this Agreement.
"GHI" has the meaning set forth in the Recitals of this Agreement.
"GLOBAL DEPOSITARY SHARES" means global depositary shares that represent
Ordinary Shares.
"GOVERNMENTAL AUTHORIZATION" means any approval, consent, license, permit,
waiver, or other authorization issued, granted, given, or otherwise made
available by or under the authority of any Governmental Body or pursuant to any
Legal Requirement.
"GOVERNMENTAL BODY" means any:
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(a) nation, state, county, city, town, village, district, or other
jurisdiction of any nature;
(b) federal, state, local, municipal, foreign, or other government;
(c) governmental or quasi-governmental authority of any nature
(including any governmental agency, branch, department, official, or
entity and any court or other tribunal);
(d) multi-national organization or body; or
(e) body exercising, or entitled to exercise, any administrative,
executive, judicial, legislative, police, regulatory, or taxing authority
or power of any nature.
"GREAT HILL DIRECTOR" has the meaning set forth in Section 5.1(a)(ii).
"INFORMATION" has the meaning set forth in Section 8.2(a).
"KNOWLEDGE" of any Person shall mean the actual knowledge of such Person,
without such Person having made any special inquiry or investigation.
"LEGAL REQUIREMENT" means any federal, state, local, municipal, foreign,
international, multinational, or other administrative order, constitution, law,
ordinance, principle of common law, regulation, statute, or treaty.
"ORDER" means any award, decision, injunction, judgment, order, ruling,
subpoena, or verdict entered, issued, made, or rendered by any court,
administrative agency, or other Governmental Body or by any arbitrator.
"ORDINARY SHARES" means the ordinary shares of the Company, par value
0.01 pound per share.
"ORGANIZATIONAL DOCUMENTS" means (a) the articles or certificate of
incorporation and the bylaws of a corporation (including, for the avoidance of
doubt, the Company's articles and memorandum of association as amended from
time to time); (b) the partnership agreement and any statement of partnership of
a general partnership; (c) the limited partnership agreement and the certificate
of limited partnership of a limited partnership; (d) certificate of formation
and operating agreement of a limited liability company; (e) any charter or
similar document adopted or filed in connection with the creation, formation, or
organization of a Person; and (f) any amendment, supplement, modification or
restatement of any of the foregoing.
"OTHER SELLERS" means (i) Xxx X. Xxxxxxx, (ii) Xxxx Xxxxxx and (iii)
Tiger Global Management, L.L.C. and its affiliates.
"PERSON" means any individual, corporation (including any non-profit
corporation), general or limited partnership, limited liability company, joint
venture, estate, trust, association, organization, labor union, or other entity
or Governmental Body.
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"PROCEEDING" means any action, arbitration, audit, hearing,
investigation, litigation, or suit (whether civil, criminal, administrative,
investigative, or informal) commenced, brought, conducted, or heard by or
before, or otherwise involving, any Governmental Body or arbitrator.
"PURCHASE PRICE" has the meaning set forth in Section 2.2.
"RBC" means RBC Capital Markets Corporation.
"REMAINING SHARES" has the meaning set forth in Section 5.1(a)(i).
"REPRESENTATIVE" means with respect to a particular Person, any director,
officer, employee, agent, consultant, advisor, or other representative of such
Person, including legal, counsel, accountants, and financial advisors.
"SEC" means the U.S. Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended, or any
successor law, and regulations and rules issued pursuant thereto or any
successor law.
"SECURITIES REPORTS" means all forms, reports, schedules, registration
statements, definitive proxy or information statements and other documents
required to be filed or filed by the Company with the SEC or any other
Governmental Body, including the Registration Statement on Form S-1 of the
Company (File No. 333-123228), in each case, as amended since the time of their
filing, and including all documents filed as exhibits thereto and any Form 8-Ks
that have been filed with or furnished to the SEC or such other Governmental
Body.
"SELLER" has the meaning set forth in the first paragraph of this
Agreement.
"SHARES" means the 1,500,000 Global Depositary Shares, in the aggregate,
being sold pursuant to this Agreement.
"SHORT SALES" means all "short sales" as defined in Rule 3b-3 of the
Exchange Act.
"TAX" means any tax (including any income tax, capital gains tax,
value-added tax, sales tax, property tax, gift tax, or estate tax), levy,
assessment, tariff, duty (including any customs duty), deficiency, or other fee,
and any related charge or amount (including any fine, penalty, interest, or
addition to tax), imposed, assessed, or collected by or under the authority of
any Governmental Body or payable pursuant to any tax-sharing agreement or any
other Contract relating to the sharing or payment of any such tax, levy,
assessment, tariff, duty, deficiency, or fee.
"THREATENED" means a claim, Proceeding, dispute or action shall be deemed
to have been "THREATENED" if any demand or statement has been made or any notice
has been given, or if any other event has occurred or any other circumstances
exist, that would lead a prudent Person to conclude that such a claim,
Proceeding, dispute or action is likely to be asserted, commenced, taken, or
otherwise pursued in the future.
"TRANSACTIONS" means all of the transactions contemplated by this
Agreement, including:
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(a) the sale of the Shares by the Sellers to the Buyers;
(b) the performance by the Buyers and the Sellers of their
respective covenants and obligations under this Agreement; and
(c) the Buyers' acquisition of the Shares.
"TRANSFER" means any transfer, sale, assignment, gift, pledge,
hypothecation or other disposition, including any such transfer by means of any
Short Sale or other derivative or hedging transaction, or the creation or
existence of any Encumbrance in favor of any third party that is not an
affiliate of any Seller, in each case, in respect of any bona fide transaction
that is not entered into for the purpose of avoiding the obligations under this
Agreement.
"U.S. SHAREHOLDER" has the meaning set forth in Section 3.7.
"VOTING SHARES" means the Ordinary Shares, the Global Depositary Shares
and any other shares in the capital of the Company entitled to vote on the
election of directors.
2. SALE AND TRANSFER OF SHARES; CLOSING
2.1 SHARES
Subject to the terms and conditions of this Agreement, at the
Closing, the Sellers shall sell and transfer, free from all Encumbrances,
the Shares to the Buyers, and the Buyers shall purchase the Shares from
the Sellers, and from and including the Closing Date, all rights and
advantages accruing to the Shares shall belong to the Buyers. The number
of Shares to be sold by each Seller is set forth opposite such Seller's
name on Exhibit B.
2.2 PURCHASE PRICE
The purchase price for the Shares shall be $5.35 per Share, and
$8,025,000 in the aggregate (the "PURCHASE PRICE").
2.3 CLOSING
The purchase and sale of the Shares, shall take place concurrently
with the execution and delivery of this Agreement (the "CLOSING") at the
offices of the Buyers, counsel at 0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000, Xxx
Xxxxxxx, Xxxxxxxxxx, at 10:00 a.m. (local time) on December 1 2005, or at
such other time as the parties may agree.
2.4 CLOSING OBLIGATIONS
At the Closing:
(a) The Sellers shall deliver or cause to be delivered:
(i) to DTC, irrevocable written or electronic instructions
authorizing and ordering DTC to transfer the Shares to the
Buyers in the amounts and to the accounts designated by
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the Buyers on Exhibit A hereto; and
(ii) to the Buyers, any other document that may be required for
any Seller to give good title to the Shares in accordance
with the terms of this Agreement or that may be necessary
to enable the legal and record ownership of the Shares at
the Closing to be held by the Buyers, nominee, DTC, and to
transfer beneficial ownership of the Global Depositary
Shares set forth under each Buyer's name on Exhibit A at
the Closing or which evidence to each Buyer's satisfaction
the authority of any person executing this Agreement or
any of the documents referred to herein, on behalf of the
Sellers.
(b) The Buyers shall deliver to the Sellers the Purchase Price by
wire transfer of immediately available funds to an account or accounts of
the Sellers as specified by the Sellers in writing.
3. REPRESENTATIONS AND WARRANTIES OF THE SELLERS
Each Seller represents and warrants to the Buyers as follows:
3.1 ORGANIZATION AND GOOD STANDING
Each of CCP and CIP is a limited partnership duly organized, validly
existing, and in good standing under the laws of California, with full
power and authority to conduct its business as it is now being conducted,
to own or use the properties and assets that it purports to own or use,
and to perform all its obligations under this Agreement. CCPL is an
exempted company duly organized, validly existing, and in good standing
under the laws of the Cayman Islands, with full power and authority to
conduct its business as it is now being conducted, to own or use the
properties and assets that it purports to own or use, and to perform all
its obligations under this Agreement.
3.2 AUTHORITY; NO CONFLICT
(a) This Agreement constitutes the legal, valid, and binding
obligation of each Seller, enforceable against each Seller in accordance
with its terms. Each Seller has the power and authority to execute,
deliver and perform its obligations under this Agreement.
(b) Neither the execution and delivery of this Agreement nor the
consummation or performance of any of the Transactions shall, directly or
indirectly (with or without notice or lapse of time):
(i) contravene, conflict with, or result in a violation of (A)
any provision of the Organizational Documents of any Seller, or to the
Knowledge of such Seller, the Company, or (B) any resolution adopted by
the manager, the board of managers (or other similar governing body), or
the members of any Seller, or to the Knowledge of such Seller;
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(ii} contravene, conflict with, or result in a violation of, or
give any Person the right to challenge any of the Transactions;
(iii) contravene, conflict with, or result in a violation of any
of the terms or requirements of, or give any Governmental Body the right
to revoke, withdraw, suspend, cancel, terminate, or modify, any
Governmental Authorization that is held by any Seller; or
(iv) contravene, conflict with, or result in a violation or
Breach of any provision of, or give any Person the right to declare a
default or exercise any remedy under, or to accelerate the maturity or
performance of, or to cancel, terminate, or modify, any Applicable
Contract of any Seller that could reasonably be expected to materially
adversely affect the ability of any Seller to consummate any of the
Transactions.
3.3 TITLE TO THE SHARES
(a) Each Seller's nominee, DTC, is the legal and record holder of
the Shares, and each Seller is the beneficial owner of the Global
Depositary Shares set forth opposite such Seller's name on Exhibit B
hereto, free and clear of all Encumbrances. Upon transfer to the Buyers by
each Seller of such Shares at the Closing, the Buyers' nominee, DTC, shall
be the legal and record holder of the Shares and each Buyer shall have
beneficial ownership of the Global Depositary Shares set forth under its
name on Exhibit A, free and clear of all Encumbrances.
(b) There are no Applicable Contracts of the Seller, or to each
Seller's Knowledge, any other Contracts relating to the sale, transfer,
voting or ownership of the Shares or otherwise relating to the Shares,
other than any Contracts that arise solely from the Shares being in the
form of Global Depositary Shares.
3.4 LEGAL PROCEEDINGS; ORDERS
There is no Proceeding pending, or to the Knowledge of any Seller,
Threatened, that relates to the Shares or that challenges, or that may
have the effect of preventing, delaying, making illegal, or otherwise
interfering with, any of the Transactions.
3.5 DISCLOSURE
(a) No fact has come to the Knowledge of any Seller that has caused
such Seller to believe that:
(i) the Company has not filed on a timely basis with the SEC and
each other Governmental Body all Securities Reports;
(ii) as of their respective dates, any Securities Report did not
comply in any material respect with the requirements (including
Governmental Authorizations) of the Exchange Act and the Securities Act or
other Legal Requirements that are or were applicable to such Securities
Report; and
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(iii) any Securities Report contained when filed or contains any
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements made
therein, in light of the circumstances under which they were made, not
misleading.
3.6 BROKERS OR FINDERS
Other than fees or commissions that the Sellers may agree to pay
to RBC, which fees and commissions shall be paid by the Sellers, no Seller
nor any officer or agent of any Seller has incurred no obligation or
liability, contingent or otherwise, for brokerage or finders fees or
agents, commissions or other similar payment in connection with this
Agreement.
3.7 TAX MATTERS
During the taxable year in which the Closing occurs, no Seller to
that Seller's Knowledge has been a "U.S. shareholder" within the meaning
of Section 951(b) of the Internal Revenue Code of 1986, as amended (the
"CODE") with respect to the Company (a "U.S. SHAREHOLDER"). The
information in Exhibit C sets forth and accurately reflects, on a fully
diluted basis, the number of Company securities held by each Seller.
4. REPRESENTATIONS AND WARRANTIES OF THE BUYERS
Each Buyer represents and warrants to the Sellers as follows:
4.1 ORGANIZATION AND GOOD STANDING
GHI is a limited liability company duly organized, validly
existing, and in good standing under the laws of the State of
Massachusetts. GHAP is a limited partnership duly organized, validly
existing, and in good standing under the laws of the State of Delaware.
GHEP is a limited partnership duly organized, validly existing, and in
good standing under the laws of the State of Delaware.
4.2 AUTHORITY; NO CONFLICT
(a) This Agreement constitutes the legal, valid, and binding
obligation of each Buyer, enforceable against each Buyer in accordance
with its terms. Each Buyer has the power and authority to execute and
deliver this Agreement and to perform its obligations under this
Agreement.
(b) Neither the execution and delivery of this Agreement nor the
consummation or performance of any of the Transactions shall, directly or
indirectly (with or without notice or lapse of time):
(i) contravene, conflict with, or result in a violation of (A)
any provision of the Organizational Documents of any Buyer, or (B) any
resolution adopted by the manager, the board of managers (or other similar
governing body), or the members of any Buyer;
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(ii) contravene, conflict with, or result in a violation of, or
give any Person the right to challenge any of the Transactions;
(iii) contravene, conflict with, or result in a violation of any
of the terms or requirements of, or give any Governmental Body the right
to revoke, withdraw, suspend, cancel, terminate, or modify, any
Governmental Authorization that is held by any Buyer; or
(iv) contravene, conflict with, or result in a violation or
Breach of any provision of, or give any Person the right to declare a
default or exercise any remedy under, or to accelerate the maturity or
performance of, or to cancel, terminate, or modify, any Applicable
Contract of any Buyer that, could reasonably be expected to materially
adversely affect the ability of any Buyer to consummate any of the
Transactions.
4.3 INVESTMENT REPRESENTATIONS
(a) Each Buyer is acquiring the Shares solely for its own account,
for investment purposes only, and not with a view to or an intent to
sell, or to offer for resale in connection with any unregistered
distribution of all or any portion of the Shares within the meaning of the
Securities Act or applicable state securities laws.
(b) Each Buyer is either an "accredited investor" as defined in Rule
501 subparagraphs (1), (2), (3) or (7) of Rule 501(a) promulgated under
the Securities Act or "qualified institutional buyer" as defined in Rule
144A promulgated under the Securities Act, or both. Each Buyer is not a
registered broker-dealer under Section 15 of the Exchange Act.
(c) Each Buyer represents, warrants and acknowledges that the Shares
are being offered and sold to it in reliance upon the exemption provided
by Section 4(1) of the Securities Act and similar exemptions from the
registration requirements of state securities laws and that the Sellers
are relying upon the truth and accuracy of, and each Buyer's compliance
with, the representations, warranties, agreements, acknowledgements and
understandings of each Buyer set forth in this Section 4.3 in order to
determine the availability of such exemptions and the eligibility of each
Buyer to acquire the Shares.
(d) Each Buyer is not purchasing the Shares as a result of any
advertisement, article, notice or other communication regarding the Shares
published in any newspaper, magazine or similar media or broadcast over
television or radio or presented at any seminar or any other general
solicitation or general advertisement.
(e) Each Buyer represents and warrants that, except as otherwise
disclosed to the Company in writing, from November 2, 2005 (the
"DISCUSSION TIME") up through the execution of this Agreement, no Buyer,
directly or indirectly, executed any Short Sales or engaged in any other
trading in the Ordinary Shares, the Global Depositary Shares or any
derivative security thereof.
(f) Each Buyer understands that except as otherwise provided in this
Agreement, the Shares have not been and are not being registered under the
Securities Act or any applicable state securities laws and each Buyer may
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have to bear the risk of owning the Shares for an indefinite period of
time because the Shares may not be transferred unless: (i) the resale of
the Shares is registered pursuant to an effective registration statement
under the Securities Act; or (ii) the Shares to be sold or transferred may
be sold or transferred pursuant to Section 4(1) of the Securities Act or
other exemption from such registration.
(g) Until such Shares are registered under the Securities Act, each
Buyer acknowledges that any certificates for the Shares issued to any
Buyer or any Buyer's designated nominee on the transfer from the Sellers
will, at the request of any Seller or the Company, bear an appropriate
restrictive U.S. securities law legend.
(h) The office or offices of each Buyer in which its investment
decision was made is located at the address or addresses of each Buyer set
forth in Section 8.4.
4.4 CERTAIN PROCEEDINGS
There is no pending Proceeding that has been commenced against any
Buyer and that challenges, or may have the effect of preventing, delaying,
making illegal, or otherwise interfering with, any of the Transactions.
To each Buyer's Knowledge, no such Proceeding has been Threatened.
4.5 BROKERS OR FINDERS
Other than fees or commissions that the Buyers may agree to pay to
RBC, no Buyer nor any officer or agent of any Buyer has incurred any
obligation or liability, contingent or otherwise, for brokerage or
finders' fees or agents' commissions or other similar payment in
connection with this Agreement.
5. COVENANTS
5.1 VOTING
(a) For so long as the Buyers and their respective affiliates
collectively own at least 5% of the outstanding Voting Shares that are
owned or held of record by the Buyers and their respective affiliates, or
as to which the Buyers and their respective affiliates have voting power
or in respect of which the Buyers and their respective affiliates can
direct, restrict or control any such voting power:
(i) No Seller shall enter into or exercise its rights under any
voting arrangement, whether by proxy, voting agreement, voting trust,
power-of-attorney or otherwise, with respect to any Voting Shares that are
owned or held of record by such Seller, or as to which such Seller has
voting power or in respect of which the Seller can direct, restrict or
control any such voting power (the "REMAINING SHARES") or take any other
action, that would in any way restrict, limit or interfere with the
performance of its obligations hereunder or the Transactions; provided,
that nothing in this Section 5.1(a) shall restrict the ability of any
Seller to Transfer or consent to Transfer any Remaining Shares or any
interest therein to a third party that is not an affiliate of such Seller
or the Company or to any affiliate that agrees in writing to be bound by
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the terms of this Agreement;
(ii) If at any time any Buyer notifies any Seller of its desire
and intention to designate a single director on behalf of all of the
Buyers (the "GREAT HILL DIRECTOR") in advance of any meeting of
shareholders of the Company called to vote upon for the election of
directors, and at all adjournments thereof and in all other circumstances
upon which a vote, consent or other approval (including by written
consent) is sought with respect to the election of directors or that is
necessary to elect directors of the Company, such Seller shall, including
by executing a written consent, vote (or cause to be voted) all of its
Remaining Shares held at the time such consent is sought or meeting is
held to elect the Great Hill Director (which consent, vote or approval, in
the case of any Global Depositary Shares and other depositary shares owned
by such Seller at such time, shall be delivered in accordance with the
terms of the applicable depositary agreement);
(iii) If at any time any Buyer notifies any Seller of its desire
and intention to remove or replace a Great Hill Director or to fill a
vacancy caused by the resignation of a Great Hill Director, in accordance
with the terms of the depositary agreement, such Seller shall cooperate in
causing the requested removal and/or replacement by voting in the
appropriate manner in accordance with the terms of this Section 5.1.
(iv) Subject to the terms and conditions of this Section 5.1(a)
and in accordance with the terms of the depositary agreement, each Seller
hereby irrevocably grants to, and appoints Xxxxxxx X. Xxxxx, and any other
Person who shall hereafter be designated by the Buyers, as such Seller's
proxy and attorney in its name (with full power of substitution), for and
in the name, place and stead of such Seller, to vote all of its Remaining
Shares held at the time such consent is sought or meeting is held, or
grant a consent or approval in respect of such Remaining Shares, at any
meeting of the shareholders of the Company or at any adjournment thereof
or in any other circumstances upon which their vote, consent or other
approval is sought to elect a Great Hill Director as contemplated in
Section 5.1(a)(ii), but not with respect to any vote, consent or approval
of any other matter that may be concurrently presented for approval. Each
Seller has caused each proxy and attorney previously given in respect of
all Remaining Shares to be revoked.
(v) SUBJECT TO THE TERMS AND CONDITIONS OF THIS SECTION 5.1(a),
EACH SELLER HEREBY AFFIRMS THAT THE PROXY AND ATTORNEY SET FORTH in THIS
SECTION 5.1 IS COUPLED WITH AN INTEREST AND IS IRREVOCABLE. Each Seller
hereby ratifies and confirms all that such irrevocable proxy and attorney
may lawfully do or cause to be done by virtue hereof. Subject to the
terms and conditions of this Section 5.1(a), such irrevocable proxy and
attorney is executed and intended to be irrevocable.
(vi) The covenants and obligations under this Section 5.1(a)
shall terminate after a Great Hill Director (together with any
replacements therefore appointed in accordance with Section 5.1(a)(iii))
has served a single, full term of office of three years, in accordance
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with the Company's articles and memorandum of association, as in effect on
the date hereof.
(b) VOTING OF THE SHARES FOLLOWING CLOSING
(i) In order to secure the interest of the Buyers in the Shares
under this Agreement, with effect from Closing, each Seller irrevocably
appoints Great Hill Partners, LLC to be its attorney in its name and on
its behalf to exercise all or any of the voting and other rights, powers
and privileges attached to the Global Depositary Shares set forth opposite
such Seller's name on Exhibit B hereto.
(ii) Each Seller undertakes following Closing not to exercise
all or any of the voting and other rights, powers and privileges attached
to the Global Depositary Shares set forth opposite such Seller's name on
Exhibit B hereto.
(c) COOPERATION IN REGULATORY COMPLIANCE
For so long as the covenants in Sections 5.1(a) and 5.1(b) are
in effect, the parties agree to furnish promptly to each other such
information as may be reasonably required for the other to prepare and
file timely, complete and accurate statements on Schedule 13D and any
amendments thereto, in each case, regarding their beneficial ownership of
Ordinary Shares, to the extent required under Section 13 of the Exchange
Act.
5.2 MARKET ABUSE DIRECTIVE COMPLIANCE
Each party hereto shall, and shall cause its affiliates to, comply
with the requirements in respect of the Transactions (including any
notification requirements) of the Market Abuse Directive 2003/6/EC
effective in the European Union at the date of this Agreement and any
statute, regulation, code, statutory provision or subordinate legislation
and any other legislation which (either with or without modification)
enacts, implements or consolidates such directive in any member state of
the European Union and any other directive, regulation, code or
legislation, issued pursuant to the Financial Services Action Plan of the
European Union.
5.3 TAXES
(a) The Sellers shall reimburse the Buyers for any applicable U.S.
or U.K. stamp duty or transfer Tax payable by each Buyer in respect of the
Shares, and to the extent any such Taxes are required to be paid, the
parties shall reasonably cooperate with each other to minimize the amount
of such Taxes owed. The Buyers shall be responsible for the preparation
and filing of any returns, if any, related to any stamp duty or transfer
Tax.
(b) If (i) any Seller has been a U.S. Shareholder at any time during
the taxable year of the Company that includes the Closing, (ii) the
Company was, prior to the Closing, a "controlled foreign corporation"
within the meaning of Section 957 of the Code, for an uninterrupted
- 12 -
period of 30 days or more during the taxable year of the Company that
includes the Closing, and (iii) Buyer (or its direct or indirect owners)
is required to include any amounts in income for U.S. tax purposes under
the "controlled foreign corporation" provisions of Section 951 et seq. of
the Code with respect to the taxable year of the Company that includes
the Closing for all or any part of such taxable year prior to the Closing,
then each Seller that has been such a U.S. Shareholder during that year
shall promptly reimburse Buyer for the product of (x) 40%, (y) the amount
of such income attributable to the Shares transferred pursuant to this
Agreement by such Seller to the Buyer and (z) the percentage obtained by
dividing the amount of months prior to the Closing that the Company was a
controlled foreign corporation during the year, over the amount of months
that the Company was a controlled foreign corporation during such year.
The parties agree to cooperate following the Closing to determine the
status of the Company as a "controlled foreign corporation" within the
meaning of Section 957 of the Code during the taxable year of the Company
that includes the Closing within 45 days after the end of such taxable
year.
(c) If any Seller becomes a U.S. Shareholder after the Closing, such
Seller shall provide prompt written notice after such acquisition. Such
notification shall be deemed satisfied by the timely filing of a Schedule
13G or Schedule 13D by such Seller.
6. CONDITIONS PRECEDENT TO THE BUYERS' OBLIGATION TO CLOSE
Each Buyer's obligation to purchase the Shares and to take the other
actions required to be taken by each Buyer at the Closing is subject to the
satisfaction, at or prior to the Closing, of each of the following
conditions (any of which may be waived by each Buyer, in whole or in part):
6.1 ACCURACY OF REPRESENTATIONS
(a) Each Seller's representations and warranties in this Agreement
(considered collectively), and each of these representations and
warranties (considered individually), were accurate in all material
respects as of the date of this Agreement, and are accurate in all
material respects as of the Closing Date as if made on the Closing Date;
provided, that each representation and warranty that is qualified as to
materiality were accurate in all respects as of the date of this
Agreement, and are accurate in all respects as of the Closing Date as if
made on the Closing Date.
6.2 THE SELLERS' PERFORMANCE
(a) All of the covenants and obligations that each Seller is
required to perform or to comply with pursuant to this Agreement at or
prior to the Closing (considered collectively), and each of these
covenants and obligations (considered individually), have been duly
performed and complied with in all material respects.
(b) Each document required to be delivered pursuant to Section
2.4(a) has been delivered.
6.3 ADDITIONAL PURCHASE
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(a) The Buyers shall receive executed share purchase agreements or
other similar agreements evidencing the acquisition of Ordinary Shares or
Global Depositary Shares (as applicable) held by the Other Sellers, in
each case, in a form reasonably satisfactory to the Buyers (the
"ADDITIONAL ACQUISITION AGREEMENTS"); and
(b) The Additional Purchases will be consummated concurrently with
the Transactions in accordance with the terms of the Additional
Acquisition Agreements.
7. CONDITIONS PRECEDENT TO THE SELLERS' OBLIGATION TO CLOSE
Each Seller's obligation to sell the Shares and to take the other actions
required to be taken by such Seller at the Closing is subject to the
satisfaction, at or prior to the Closing, of each of the following conditions
(any of which may be waived by such Seller, in whole or in part):
7.1 ACCURACY OF REPRESENTATIONS
Each Buyer's representations and warranties in this Agreement
(considered collectively), and each of these representations and
warranties (considered individually), was accurate in all material
respects as of the date of this Agreement and is accurate in all material
respects as of the Closing Date as if made on the Closing Date; provided,
that each representation and warranty that is qualified as to materiality
was accurate in all respects as of the date of this Agreement, and is
accurate in all respects as of the Closing Date as if made on the Closing
Date.
7.2 THE BUYERS' PERFORMANCE
(a) All of the covenants and obligations that each Buyer is required
to perform or to comply with pursuant to this Agreement at or prior to the
Closing (considered collectively), and each of these covenants and
obligations (considered individually), have been performed and complied
with in all material respects.
(b) Each Buyer has made the cash payment required to be made by such
Buyer pursuant to Sections 2.4(b).
(c) Each Buyer has delivered all documents required by the
depositary of the Shares to permit such Buyer to receive the Shares, if
any.
8. GENERAL PROVISIONS
8.1 EXPENSES
Each party to this Agreement shall bear its respective expenses
incurred in connection with the preparation, execution, and performance of
this Agreement and the Transactions, including all fees and expenses of
agents, representatives, counsel, and accountants. For the avoidance of
doubt, the parties agree that none of the Sellers nor the Buyers shall be
responsible for the fees and expenses payable to Ernst & Young, LLP in
connection with the due diligence investigation relating to this Agreement
and the Transactions.
- 14 -
8.2 ACCESS TO INFORMATION
(a) Each Seller hereby acknowledges that (i) it knows that each
Buyer may have material, non-public information regarding the Company and
its condition (financial and otherwise), results of operations,
businesses, properties, plans (including plans regarding potential
purchases of the Shares, which may be for different amounts or types of
consideration) and prospects (collectively, "INFORMATION"); (ii) it has
been offered access to the Information, and has reviewed such Information
as it deems appropriate, and that such Information might be material to
such Seller's decision to sell the Shares or otherwise materially adverse
to such Seller's interests. Accordingly, such Seller acknowledges and
agrees that no Buyer nor any other Person shall have any obligation to
disclose to such Seller any of such Information.
(b) Each Seller represents and warrants that it has adequate
information to make an informed decision regarding the sale of the Shares
and has independently and without reliance upon any Buyer made its own
analysis and decision to sell the Shares. Each Seller hereby waives and
releases, to the fullest extent permitted by law, any and all claims and
causes of action directly or indirectly based upon relating to or arising
out of nondisclosure of the Information that it has or may have against
each Buyer, its affiliates (other than the Company) and controlling
persons, and the Representatives of each of them.
(c) Each Seller represents that it is an "accredited investor" as
defined in Rule 501(a) promulgated under the Securities Act.
(d) The sale of the Shares by each Seller and the purchase by each
Buyer hereunder (A) were privately negotiated within an independent
transaction and (B) do not violate any rules or regulations applicable, in
the case of such Seller, to such Seller, and, in the case of such Buyer,
applicable to such Buyer.
8.3 PUBLIC ANNOUNCEMENTS
Subject to applicable Legal Requirements, any public announcement or
similar publicity with respect to this Agreement or the Transactions shall
be issued, if at all, at such time and in such manner as the parties
mutually determine.
8.4 NOTICES
All notices, consents, waivers, and other communications under this
Agreement must be in writing and shall be deemed to have been duly given
when (a) delivered by hand (with written confirmation of receipt), (b)
sent by telecopier (with written confirmation of receipt), provided
that a copy is mailed by registered mail, return receipt requested, or (c)
when received by the addressee, if sent by a nationally recognized
overnight delivery service (receipt requested), in each case to the
appropriate addresses and telecopier numbers set forth below (or to such
other addresses and telecopier numbers as a party may designate by notice
to the other parties):
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Any Seller:
Criterion Capital Management LLC
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx
with a copy (which shall not constitute notice) to:
Shartsis Xxxxxx LLP
Xxx Xxxxxxxx Xxxxx, 00xx Xxxxx,
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: P. Xxxxxx Xxxxxxx
Facsimile No.: (000) 000-0000
Any Buyer:
Great Hill Partners, LLC
Xxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Facsimile No.: (000) 000-0000
with a copy (which shall not constitute notice) to:
Proskauer Rose LLP
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Facsimile No.: (000) 000-0000
8.5 JURISDICTION; SERVICE OF PROCESS
Subject to Section 8.6, the parties hereto irrevocably submit, in
any legal action or proceeding relating to this Agreement, to the
jurisdiction of the courts of the United States or the State of New York
sitting in the Borough of Manhattan, in The City of New York and consent
that any such action or proceeding may be brought in such courts and waive
any objection that they may now or hereafter have to the venue of such
action or proceeding in any such court or that such action or proceeding
was brought in an inconvenient forum. Process in any action or proceeding
referred to in the preceding sentence may be served on any party anywhere
in the world.
8.6 ARBITRATION
Any dispute, claim or controversy arising out of or relating to this
Agreement or the Breach, termination, enforcement, interpretation or
validity thereof, including the determination of the scope or
applicability of this Agreement to arbitrate, shall be determined by
arbitration in New York, New York), before a mutually-agreed upon
- 16 -
arbitrator. The arbitration shall be administered by JAMS pursuant to its
Comprehensive Arbitration Rules and Procedures. The arbitrator shall not
have any power to alter, amend, modify or change any of the terms of this
Agreement nor to grant any remedy which is either prohibited by the terms
of this Agreement, or not available in a court of law. The arbitrator
shall issue a written reasoned award and decision that shall be consistent
with and supported by the facts and the law within 90 days from the date
the arbitration proceedings are initiated. Judgment on the award of the
arbitrator may be entered in any court having jurisdiction thereof. This
clause shall not preclude parties from seeking provisional remedies in aid
of arbitration from a court of appropriate jurisdiction. The costs of the
arbitration, including any administration fee, the arbitrator's fee, and
costs for the use of facilities during the hearings, shall be borne by the
non-prevailing party. Attorneys' fees may be awarded to the prevailing or
most prevailing party at the discretion of the arbitrator.
8.7 FURTHER ASSURANCES
The parties agree (a) to execute and deliver to each other such
other documents, and (b) to do such other acts and things, all as the
other party may reasonably request for the purpose of carrying out the
intent of this Agreement and the documents referred to in this Agreement.
8.8 WAIVER
The rights and remedies of the parties to this Agreement are
cumulative and not alternative. Neither the failure nor any delay by any
party in exercising any right, power, or privilege under this Agreement or
the documents referred to in this Agreement shall operate as a waiver of
such right, power, or privilege, and no single or partial exercise of any
such right, power, or privilege shall preclude any other or further
exercise of such right, power, or privilege or the exercise of any other
right, power, or privilege. To the maximum extent permitted by applicable
law (a) no claim or right arising out of this Agreement or the documents
referred to in this Agreement can be discharged by one party, in whole or
in part, by a waiver or renunciation of the claim or right unless in
writing signed by the other party; (b) no waiver that may be given by a
party shall be applicable except in the specific instance for which it is
given; and (c) no notice to or demand on one party shall be deemed to be a
waiver of any obligation of such party or of the right of the party giving
such notice or demand to take further action without notice or demand as
provided in this Agreement or the documents referred to in this Agreement.
8.9 ENTIRE AGREEMENT AND MODIFICATION
This Agreement supersedes all prior agreements between the parties
with respect to its subject matter and constitutes (along with the
documents referred to in this Agreement) a complete and exclusive
statement of the terms of the agreement between the parties with respect
to its subject matter. This Agreement may not be amended except by a
written agreement executed by the party to be charged with the amendment.
- 17 -
8.10 ASSIGNMENTS, SUCCESSORS, AND NO THIRD-PARTY RIGHTS
None of the parties may assign any of its rights under this
Agreement without the prior consent of the other parties, which shall not
be unreasonably withheld, except that any Buyer may assign any of its
rights under this Agreement to any affiliate of any Buyer. Subject to the
preceding sentence, this Agreement shall apply to, be binding in all
respects upon, and inure to the benefit of the successors and permitted
assigns of the parties. Nothing expressed or referred to in this Agreement
shall be construed to give any Person other than the parties to this
Agreement, RBC (to the extent set forth in Section 8.14) any legal or
equitable right, remedy, or claim under or with respect to this Agreement
or any provision of this Agreement. This Agreement and all of its
provisions and conditions are for the sole and exclusive benefit of the
parties to this Agreement and their successors and assigns.
8.11 SEVERABILITY
If any provision of this Agreement is held invalid or unenforceable
by any court of competent jurisdiction, the other provisions of this
Agreement shall remain in full force and effect. Any provision of this
Agreement held invalid or unenforceable only in part or degree shall
remain in full force and effect to the extent not held invalid or
unenforceable.
8.12 SECTION HEADINGS, CONSTRUCTION
The headings of sections in this Agreement are provided for
convenience only and shall not affect its construction or interpretation.
All references to "Section" or "Sections" refer to the corresponding
section or sections of this Agreement. All words used in this Agreement
shall be construed to be of such gender or number as the circumstances
require. Unless otherwise expressly provided, the word "including" does
not limit the preceding words or terms. Neither this Agreement nor any
uncertainty or ambiguity herein shall be construed or resolved against any
party, whether under any rule of construction or otherwise. No party to
this Agreement shall be considered the draftsman.
8.13 GOVERNING LAW
This Agreement and any claims related to the subject matter hereof
shall be governed by and construed in accordance with the laws of the
State of New York; provided, that the provisions of Section 5.1 shall be
governed by the laws of England and Wales.
8.14 ACKNOWLEDGMENT REGARDING RBC
Each of the parties hereto acknowledges that: (i) RBC is not an
"underwriter" as such term is defined in Section 2(a)(11) of the
Securities Act, and (ii) RBC is not acting as agent for any Buyer or any
Seller in connection with the offering of the Shares by the Sellers. Each
party hereto further acknowledges that the provisions of Section 4.3 and
this Section 8.14 are for the benefit of, and may be enforced by, RBC.
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8.15 COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original copy of this Agreement and all of
which, when taken together, shall be deemed to constitute one and the same
agreement.
(SIGNATURE PAGE TO FOLLOW)
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IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the date first written above.
THE BUYERS:
GREAT HILL INVESTORS LLC
--------------------------------------------
By:
Its:
GREAT HILL EQUITY PARTNERS II LIMITED
PARTNERSHIP
By: GREAT HILL PARTNERS XX XX, LLC, its
General Partner
--------------------------------------------
By:
Its:
GREAT HILL AFFILIATE PARTNERS II
LIMITED PARTNERSHIP
--------------------------------------------
By: GREAT HILL PARTNERS XX XX, LLC, its
General Partner
--------------------------------------------
By:
Its:
- 20 -
THE SELLERS:
CRITERION CAPITAL PARTNERS, L.P.
By: CRITERION CAPITAL MANAGEMENT,
LLC, its General Partner
--------------------------------------------
By:
Its:
CRITERION INSTITUTIONAL PARTNERS, L.P.
By: CRITERION CAPITAL MANAGEMENT,
LLC, its General Partner
--------------------------------------------
By:
Its:
CRITERION CAPITAL PARTNERS LTD.
By: CRITERION CAPITAL MANAGEMENT,
LLC, its Attorney in fact
--------------------------------------------
By:
Its:
- 21 -
EXHIBIT A
ACCOUNTS
For Great Hill Investors, LLC:
DTC #0954 / Mellon
For Great Hill Investors, LLC/0000000000
Institution Bank Number: 95548
Agent Bank Number: 37383
Number of Global Depositary Shares Transferred: 17,216
For Great Hill Equity Partners II, LP:
DTC #0954 / Mellon
For Great Hill Equity Partners II, LP/1084479840
Institution Bank Number: 95548
Agent Bank Number: 37383
Number of Global Depositary Shares Transferred: 1,428,366
For Great Hill Affiliate Partners II, LP:
DTC #0954 / Mellon
For Great Hill Affiliate Partners II, LP/1084479860
Institution Bank Number: 95548
Agent Bank Number: 37383
Number of Global Depositary Shares Transferred: 54,418
- 22 -
EXHIBIT B
OWNERSHIP OF SHARES
CCP 107,984
CIP 403,675
CCPL 988,341
Total 1,500,000
- 23 -
EXHIBIT C
Tax Matters - Ownership of Capital of Company
Description AcctNo AcctName AcctType Share/Face Sold to GH Remainder
SPARK NETWORKS PLC
SPONSORED GDR REG S
(846513109) 118-01093 Criterion LP. 2-LONG 228,802 107,984 120,818
SPARK NETWORKS PLC
SPONSORED GDR REG S
(846513109) 118-01095 Criterion Instit 2-LONG 947,088 403,675 543,413
SPARK NETWORKS PLC
SPONSORED GDR REG S
(846513109) 313-00543 Criterion Off 2-LONG 2,168,447 988,341 1,180,106
3,344,337 1,500,000 1,844,337
- 25 -
