SHARE PURCHASE AGREEMENT
This Share Purchase Agreement (the "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), and
Alon Carmel, an individual, whose resident address is located 000 Xxxxx Xxxxx
Xxxxx, Xxxxxxx Xxxxx, XX 00000 XXX (the "SELLER"). Each of GHI, GHEP and GHAP
are referred to as a "BUYER."
RECITALS
The Seller holds an option (the "OPTION") to acquire up to 2,000,000
ordinary shares, par value 0.01 pound per share (collectively, the "ORDINARY
SHARES"), of 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 (the "Company"), issued
pursuant to the Option Agreement (as defined below); and
The Seller desires to exercise the Option and sell, and the Buyers desire
to purchase, an aggregate of 1,250,000 Ordinary Shares issuable upon exercise of
the Option (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 6.5(a)
"ADDITIONAL PURCHASES" means the acquisition of an aggregate of 4,750,000
Ordinary Shares (or Global Depositary Shares representing such Ordinary Shares)
of the Company from the Other Sellers.
"APPLICABLE CONTRACT" means any Contract (a) under which the Seller has or
may acquire any rights, (b) under which the Seller has or may become subject to
any obligation or liability, or (c) by which the Seller or any of the assets
owned or used by it is or may become bound.
A "BREACH" of a representation, warranty, covenant, obligation, or other
provision of this Agreement or any instrument delivered pursuant to this
Agreement 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
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representation, warranty, covenant, obligation, or other provision, or (b) any
claim (by any Person) or other occurrence or 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 3.9(a).
"COMPANY" has the meaning set forth in the Recitals of this Agreement.
"CONFIDENTIALITY AGREEMENT" means the Confidentiality Agreement, dated
October 14, 2004, by and between Spark Networks plc and Great Hill Equity
Partners II, Limited Partnership.
"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(d).
"ENCUMBRANCE" means any charge, claim, community property interest,
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. For the avoidance of doubt, a
diminution in value of the Shares caused by the failure to issue the Shares in
accordance with applicable securities laws and the obligation to conduct a
rescission offer in the manner described in the section entitled "Rescission
Offer" of the Registration Statement, shall not be deemed to be an
"ENCUMBRANCE."
"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.
"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.
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"GOVERNMENTAL BODY" means any:
(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" with respect to any Person means the actual knowledge of such
Person without any 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.
"OFFEREE" has the meaning set forth in Section 3.8.
"OPTION" has the meaning set forth in the Recitals.
"OPTION AGREEMENT" means the Option Agreement, dated January 27, 2002, by
and between the Company under its previous name, MatchNet plc, and the Seller,
together with all amendments, restatements, supplements and other modifications.
"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" has the meaning set forth in the Recitals.
"OTHER SELLERS" means (i) Criterion Capital Management LLC and its
affiliates, (ii) Xxx X. Xxxxxxx 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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"PLAN" means the MatchNet plc 2000 Unapproved Executive Share Option
Scheme, together with all amendments, restatements, supplements and other
modifications.
"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.
"REGISTRATION STATEMENT" means the Amendment No. 3 to the Company's
Registration Statement on Form S-1 (File No. 333-123228), filed on November
14, 2005.
"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 AUTHORITY" means the SEC, the Frankfurt Stock Exchange (FWB
Frankfurter Wertpapierborse), or any other Governmental Body pursuant to Legal
Requirements under the laws of England or Wales or the Federal Republic of
Germany applicable to the Company's securities.
"SECURITIES REPORTS" means all forms, reports, schedules, registration
statements, definitive proxy or information statements and other documents filed
by the Company with any Securities Authority, 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" has the meaning set forth in the Recitals of this Agreement.
"SHORT SALES" means all "short sales" as defined in Rule 3b-3 of the
Exchange Act.
"SUBSIDIARY" means with respect to any Person (the "OWNER"), any
corporation or other Person of which securities or other interests having the
power to elect a majority of that corporation's or other Person's board of
directors or similar governing body, or otherwise having the power to direct the
business and policies of that corporation or other Person (other than securities
or other interests having such power only upon the happening of a contingency
that has not occurred) are held by the Owner or one or more of its Subsidiaries;
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when used without reference to a particular Person, "SUBSIDIARY" means a
Subsidiary of the Company.
"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, action, or other matter
shall be deemed to have been "THREATENED" if any demand or statement has been
made (orally or in writing) or any notice has been given (orally or in writing),
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,
action, or other matter is likely to be asserted, commenced, taken, or otherwise
pursued in the future.
"TRANSACTIONS" means all of the transactions contemplated by this
Agreement, including:
(a) the exercise of the Option;
(b) the delivery of the Purchase Price by the Buyers on behalf of
the Seller to the account of the Company set forth on Exhibit A;
(c) the delivery of (pound)8,305 ($14,385.09) by the Seller to the
account specified by the Buyers for stamp duty or transfer tax payable by
each Buyer in respect of the Shares;
(d) the performance by the Buyers and the Seller of their respective
covenants and obligations under this Agreement; and
(e) the Buyers' acquisition and ownership of the Shares.
"U.S. SHAREHOLDER" has the meaning set forth in Section 3.9(a).
2. SALE AND TRANSFER OF SHARES; CLOSING
2.1 SHARES
Subject to the terms and conditions of this Agreement, at the
Closing, the Seller shall exercise the Option and sell and transfer, free
from all Encumbrances (other than restrictions on transfer imposed by the
Securities Act or the Exchange Act), the Shares to the Buyers, and the
Buyers shall purchase the Shares from the Seller, and from and including
the Closing Date, all rights and advantages accruing to the Shares shall
belong to the Buyers.
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2.2 PURCHASE PRICE
The purchase price for the Shares shall be $4.60 per share, and
$5,750,000 in the aggregate (the "PURCHASE PRICE").
2.3 CLOSING
The exercise of the Option and 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 Seller shall deliver to the Company written notice of
exercise, in the form required under the Option Agreement and the Plan
(which shall be reasonably satisfactory to the Buyers), together with all
other documents and information required under the Option Agreement, the
Plan and applicable law to exercise the Option.
(b) The Seller shall deliver to the Buyers:
(i) certificates representing the Shares and duly executed
stock powers, for transfer to the Buyers in the amounts
designated by the Buyers to the Seller; provided, that
such certificates may be delivered on December 1, 2005;
and
(ii) transfers in favor of the Buyers or their respective
nominee(s) in respect of the Shares, duly executed by the
Seller, in a form reasonably satisfactory to the Buyers;
(iii) the delivery of (pound)8,305 ($14,385.09) by the Seller to
the account specified by the Buyers for stamp duty or
transfer tax payable by each Buyer in respect of the
Shares; and
(iv) any other document that may be required to give good title
to the Shares or that may be necessary to give good title
to the Shares or which may be necessary to enable the
Buyers to procure the registration of the Shares in the
name of the Buyers or their respective nominee(s) or which
evidence to the Buyers' satisfaction the authority of any
person executing this Agreement or any of the documents
referred to herein, on behalf of the Seller.
(c) The Buyers shall deliver the Purchase Price by wire transfer of
immediately available funds to an account or accounts of the Company set
forth on Exhibit A as payment on behalf of the Seller.
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3. REPRESENTATIONS AND WARRANTIES OF SELLER
The Seller represents and warrants to each Buyer as follows:
3.1 ORGANIZATION AND GOOD STANDING
The Seller is an individual, residing in the State of California.
3.2 AUTHORITY; NO CONFLICT
(a) This Agreement constitutes the legal, valid, and binding
obligation of the Seller, enforceable against the Seller in accordance
with its terms. The Seller has the power, authority and capacity 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, or
give any Person the right to challenge any of the Transactions or to
exercise any remedy or obtain any relief under, any Legal Requirement or
any Order;
(ii) 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 the Seller or the Company;
(iii) cause any Buyer to become subject to, or to become liable
for the payment of, any Tax, other than any stamp duty or transfer Tax
payable in the U.K. as a result of the transfer of the Shares from the
Seller to the Buyers; 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.
3.3 OPTION
(a) The Seller is the registered, legal and beneficial owner and
holder of, and has good and marketable title with respect to, the Option,
free and clear of all Encumbrances (other than restrictions on transfer
imposed by the Securities Act or the Exchange Act), and the Seller has not
assigned or otherwise transferred to any Person the Option or any interest
therein.
(b) The Seller has delivered to the Buyers a true and complete copy
of the Plan and the Option Agreement.
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(c) The Company has agreed to deliver the Shares at the Closing and
waived its rights under the Option Agreement and the Plan to deliver such
Shares at a later date.
(d) The Seller has paid to the Company or made arrangements with the
Company to pay, all withholding Taxes that will be due and payable upon
exercise of the Option.
3.4 TITLE TO THE SHARES
(a) The Seller is the registered, legal and beneficial owner and
holder of, and has good and marketable title with respect to, the Shares,
free and clear of all Encumbrances (other than restrictions on transfer
imposed by the Securities Act or the Exchange Act). Immediately following
the Closing, each Buyer shall have good and marketable title with respect
to the Shares, free and clear of all Encumbrances (other than restrictions
on transfer imposed by the Securities Act or the Exchange Act), regardless
of whether Seller delivers a certificate representing such Shares.
(b) To the Knowledge of the Seller, the Shares have been duly
authorized and validly issued and are fully paid up and non-assessable.
There are no Applicable Contracts or to the Seller's Knowledge, any other
Contracts relating to the sale, transfer, voting or ownership of the
Shares or otherwise relating to the Shares. To the Knowledge of the
Seller, the Shares were issued in compliance with all Legal Requirements,
other than the failure by the Company to comply with the securities laws
described in the section entitled "Rescission Offer" of the Registration
Statement.
3.5 LEGAL PROCEEDINGS; ORDERS
There is no Proceeding pending or Threatened or, to the Knowledge of
the Seller, any other event, that relates to the Option or the Shares or
that challenges, or that may have the effect of preventing, delaying,
making illegal, or otherwise interfering with, any of the Transactions.
3.6 DISCLOSURE
(a) To the Knowledge of the Seller, no information provided in
writing to any Buyer or any Representative of any Buyer by or on behalf of
the Seller contained any untrue statement of a material fact or omits to
state a material fact necessary to make the statements therein not
misleading.
(b) To the Knowledge of the Seller:
(i) the Company has filed on a timely basis with each Securities
Authority all forms, reports, schedules, registration statements,
definitive proxy or information statements and other documents required to
be filed;
(ii) as of their respective dates, each Securities Report
complied in all material respects with the requirements (including
Governmental Authorizations) of the Exchange Act and the Securities Act or
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other Legal Requirements that are or were applicable to such Securities
Report; and
(iii) the Registration Statement when filed did not contain, and
does not now contain, any untrue statement of a material fact and did not
and does not omit 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.
(c) The Seller has not taken, directly or indirectly, any action
designed, or which has constituted or could reasonably be expected to
cause or result in, under the Exchange Act or otherwise, the stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Shares.
3.7 BROKERS OR FINDERS
Other than fees or commissions in the amount of $201,250 to be paid
to RBC, which fees and commissions shall be paid by the Seller, the Seller
and its agents have 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.
3.8 ACKNOWLEDGEMENT REGARDING TRADING ACTIVITY
Except as provided in the Confidentiality Agreement with respect to
purchases of the Ordinary Shares, anything in this Agreement or elsewhere
herein to the contrary notwithstanding, it is understood and agreed by the
Seller: (i) that no Buyer or any Person to whom an offer of Shares have
been made (each, an "OFFEREE") has been asked to agree, nor has any Buyer
or Offeree agreed, to desist from purchasing or selling, long and/or
short, securities of the Company, or "derivative" securities based on
securities issued by the Company or to hold the Shares, securities of the
Company, or "derivative" securities based on securities issued by the
Company for any specified term; (ii) that past or future open market or
other transactions by any Buyer or Offeree, including without limitation,
Short Sales or "derivative" transactions, before or after the closing of
the Transactions, may negatively impact the market price of the Company's
publicly-traded securities; (iii) that any Buyer or Offeree, and counter
parties in "derivative" transactions to which any Buyer or Offeree is a
party, directly or indirectly, presently may have a "short" position in
the Ordinary Shares; and (iv) that no Buyer or Offeree shall be deemed to
have any affiliation with or control over any arm's length counter-party
in any "derivative" transaction.
3.9 TAX MATTERS
(a) During the taxable year in which the Closing occurs, the Seller
has not 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"), and to the Knowledge of the Seller,
the Company is not a "controlled foreign corporation" within the meaning
of Section 957 of the Code.
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(b) The information in Exhibit B sets forth and accurately reflects,
on a fully diluted basis, the ownership of Company shares by the Seller
and any person or entity whose ownership would be aggregated with that of
the Seller for purposes of determining whether the Seller is a U.S.
Shareholder with respect to the Company immediately prior to the Closing
Date.
4. REPRESENTATIONS AND WARRANTIES OF EACH BUYER
Each Buyer represents and warrants to the Seller 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
This Agreement constitutes the legal, valid, and binding obligation
of the Buyer, enforceable against the Buyer in accordance with its terms.
The Buyer has the power and authority to execute and deliver this
Agreement and to perform its obligations under this Agreement.
4.3 INVESTMENT REPRESENTATIONS
(a) The Buyer is acquiring the Shares it is purchasing hereunder
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 such Shares within
the meaning of the Securities Act or applicable state securities laws.
(b) The 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. The Buyer is not a
registered broker-dealer under Section 15 of the Exchange Act.
(c) The Shares are being offered and sold to the Buyer in reliance
upon the exemption provide by Section 4(1) of the Securities Act and
similar exemptions from the registration requirements of state securities
laws and that the Seller is relying upon the truth and accuracy of, and
the Buyer's compliance with, the representations, warranties, agreements,
acknowledgements and understandings of the Buyer set forth in this Section
4.3 in order to determine the availability of such exemptions and the
eligibility of the Buyer to acquire the Shares.
(d) The 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
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television or radio or presented at any seminar or any other general
solicitation or general advertisement.
(e) Except as otherwise disclosed to the Company in writing, from
November 2, 2005 (the "DISCUSSION TIME") up through the execution of this
Agreement, the Buyer did not, directly or indirectly, execute any Short
Sales or engage in any other trading in the Ordinary Shares or any
derivative security thereof.
(f) The 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 the Buyer may
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) The office or offices of the Buyer in which its investment
decision was made is located at the address or addresses of the Buyer set
forth in Section 8.4.
4.4 CERTAIN PROCEEDINGS
There is no pending Proceeding that has been commenced against the
Buyer and that challenges, or may have the effect of preventing, delaying,
making illegal, or otherwise interfering with, any of the Transactions. To
the Buyer's Knowledge, no such Proceeding has been Threatened.
4.5 BROKERS OR FINDERS
Other than fees or commission 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 OF SELLER
5.1 VOTING
(a) For so long as the Buyer and their respective affiliates
collectively own at least 10% of the outstanding Ordinary Shares (and/or
other depositary shares representing such Ordinary Shares):
(i) The Seller shall not 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 Ordinary Shares,
depositary shares representing such Ordinary Shares, or other shares in
the capital of the Company entitled to vote thereon that are owned or held
of record by the Seller, or as to which the 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
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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)(i) shall restrict the ability of the Seller to sell or
otherwise transfer any Remaining Shares or any interest therein to a third
party that is not an affiliate of the Seller or the Company or to any
affiliate that agrees in writing to be bound by the terms of this
Agreement;
(ii) If at any time any Buyer notifies the 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, the 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 such 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 the 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, the 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) The Seller hereby irrevocably grants to, and appoints
Xxxxxxx X. Xxxxx, and any other Person who shall hereafter be designated
by the Buyers, as the Seller's proxy and attorney (with full power of
substitution), for and in the name, place and stead of the 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). The Seller has caused each proxy
and attorney previously given in respect of all Remaining Shares to be
revoked.
(v) THE SELLER HEREBY AFFIRMS THAT THE PROXY AND ATTORNEY SET
FORTH IN THIS SECTION 5.1 IS COUPLED WITH AN INTEREST AND IS IRREVOCABLE.
The Seller hereby ratifies and confirms all that such irrevocable proxy
and attorney may lawfully do or cause to be done by virtue hereof. 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, the 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 Shares registered in its name.
(ii) The Seller undertakes following Closing not to exercise all
or any of the voting and other rights, powers and privileges attached to
the Shares registered in its name.
5.2 MARKET ABUSE DIRECTIVE COMPLIANCE
In the relation to the Transactions, each party shall, and shall
cause its affiliates to, comply with the applicable requirements
(including any applicable notification requirements) of the Market Abuse
Directive 2003/6/EC effective in the United Kingdom and Germany at the
date of this Agreement and any applicable statute, regulation, code,
statutory provision or subordinate legislation and any other applicable
legislation which (either with or without modification) enacts, implements
or consolidates such directive in any member state of the European Union
whose legislation applies to the Company or that party and any other
applicable directive, regulation, code or legislation, issued pursuant to
the Financial Services Action Plan of the European Union.
5.3 TAX MATTERS
(a) The Seller shall provide prompt written notice to the Buyers if
the Seller becomes a U.S. Shareholder after the Closing.
(b) The Seller shall reimburse the Buyers for one-half of all
applicable 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 parties agree that, where it is necessary to
determine any amount under this Agreement in Pounds Sterling, in order to
calculate the amount of any stamp duty or transfer Tax, the value of
amount shall be translated into Pounds Sterling at the prevailing exchange
rate applicable to that amount of the non - Pounds Sterling currency by
reference to middle-market rates quoted by the Federal Reserve Bank of New
York on the business day immediately prior to the Closing Date. The Buyers
shall be responsible for the preparation and filing of any returns, if
any, related to any stamp duty or transfer Tax.
6. CONDITIONS PRECEDENT TO EACH BUYER'S 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
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(any of which may be waived by each Buyer, in whole or in part):
6.1 ACCURACY OF REPRESENTATIONS
(a) All of the 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 SELLER'S PERFORMANCE
(a) All of the covenants and obligations that the 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(b) and such other documents as any Buyer may reasonably request for
the purpose of facilitating the consummation or performance of any of the
Transactions have been delivered.
6.3 CONSENTS
All Consents, if any, required in connection with the consummation
of the Transactions have been obtained and are in full force and effect.
6.4 OPTION EXERCISE
(a) Concurrently with the Closing, the Seller has validly exercised
the Option representing the Shares in accordance with the terms of the
Option Agreement and the Plan, and delivered documents and information to
the Company required by the Option Agreement, the Plan and applicable law
to such exercise; and
(b) Concurrently with the Closing, the Company has issued the
Shares.
6.5 ADDITIONAL PURCHASE
(a) The Buyers shall receive executed share purchase agreements or
other similar agreements evidencing the acquisition of ordinary shares of
the Company 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.
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7. CONDITIONS PRECEDENT TO SELLER'S OBLIGATION TO CLOSE
The Seller's obligation to sell the Shares and to take the other actions
required to be taken by the 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 the 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 BUYER'S 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) The Buyers have made the cash payments required to be made by
the Buyers pursuant to Section 2.4(c).
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 no Buyer shall not 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.
8.2 ACCESS TO INFORMATION
(a) The 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") and (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 the Seller's
decision to sell the Shares or otherwise materially adverse to the
Seller's interests. Accordingly, the Seller acknowledges and agrees that
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no Buyer nor any other Person shall have any obligation to disclose to the
Seller any of such Information.
(b) The 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. The Seller hereby waives and
releases, to the fullest extent permitted by law, any and all claims and
causes of action it has or may have against each Buyer, the Company, their
respective affiliates and controlling persons, and the Representatives of
each of them, directly or indirectly based upon, relating to or arising
out of the Transactions, including any claim or cause of action based
upon, relating to or arising out of nondisclosure of the Information.
(c) The Seller is an "accredited investor" as defined in Rule 501(a)
promulgated under the Securities Act. The Seller has not acquired the
Shares on behalf, or at the request, of the Company or any of its
affiliates. The sale of the Shares by the Seller (i) were privately
negotiated within an independent transaction and not solicited and (ii)
does not violate any rules or regulations applicable to the Seller.
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 Buyers
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):
The Seller:
Alon Carmel
000 Xxxxx Xxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
with a copy (which shall not constitute notice) to:
Xxxxxxxxxxx & Xxxxxxxx Xxxxxxxxx Xxxxxx LLP
10100 Santa Xxxxxx Boulevard
Seventh Floor
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Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. 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
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
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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 furnish upon request to each other such
further information, (b) to execute and deliver to each other such other
documents, and (c) 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; notwithstanding the foregoing, the Confidentiality
Agreement shall survive the execution of this Agreement and the provisions
thereof shall survive for the term set forth therein. This Agreement may
not be amended except by a written agreement executed by the party to be
charged with the amendment.
8.10 ASSIGNMENTS, SUCCESSORS, AND NO THIRD-PARTY RIGHTS
No party 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
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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 8.10) 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 acting
solely as a placement agent for the Seller in connection with the offering
of the Shares owned by the Seller and will be compensated by the Seller in
an amount equal to $201,250 for acting in such capacity, (ii) RBC is not
an "underwriter" as such term is defined in Section 2(a)(11) of the
Securities Act, and (iii) RBC is not acting agent for any Buyer in
connection with the offering of the Shares by the Seller. 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.
8.15 ACKNOWLEDGMENT BY THE BUYERS
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Each Buyer acknowledges that it may have received material
non-public information of the Company in connection with the Transactions.
Each Buyer agrees to comply with its obligations under the Exchange Act
with respect to the use of such information.
8.16 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
/s/ Xxxxxxxxxxx X. Xxxxxxx
------------------------------------
By: Xxxxxxxxxxx X. Xxxxxxx
Its: Manager
GREAT HILL EQUITY PARTNERS II LIMITED
PARTNERSHIP
By: GREAT HILL PARTNERS XX XX, LLC, its
General Partner
/s/ Xxxxxxxxxxx X. Xxxxxxx
------------------------------------
By: Xxxxxxxxxxx X. Xxxxxxx
Its: Manager
GREAT HILL AFFILIATE PARTNERS II LIMITED
PARTNERSHIP
By: GREAT HILL PARTNERS XX XX, LLC, its
General Partner
/s/ Xxxxxxxxxxx X. Xxxxxxx
------------------------------------
By: Xxxxxxxxxxx X. Xxxxxxx
Its: Manager
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SELLER:
/s/ Alon Carmel
------------------------------------
Alon Carmel
- 22 -
