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") and
Tiger Global II, L.P., a Delaware limited partnership, whose registered office
is located at 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("TGII"),
Tiger Global, L.P., a Delaware limited partnership, whose registered office is
located at 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("TGLP"), Tiger
Global, Ltd., an exempted company formed under the laws of the Cayman Islands,
whose registered office is located at x/x Xxxxx Xxxx Xxxxxxxx (Xxxxxx Xxxxxxx)
Limited, Regatta Office Park, West Bay Road, P.O: Box 31106 SMB, Grand Cayman,
Cayman Islands, British West Indies ("TGLTD"). Each of GHI, GHEP and GHAP are
referred to as a "Buyer." Each of TGII, TGLP and TGLTD are referred to as
"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
6.4(a)
"ADDITIONAL PURCHASES" means the acquisition of an aggregate of 4,000,000
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" means the Internal Revenue Code of 1986, as amended.
"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.
"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(e).
"DTC" means The Depositary Trust Company.
"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.
"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.
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"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:
(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.l(a)(ii).
"INFORMATION" has the meaning set forth in Section 8.2(a).
"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 3.7.
"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 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)
Criterion Capital Management LLC and its affiliates.
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"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.
"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 2,000,000 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, 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)
that such a claim, Proceeding, dispute, action, or other matter is likely to be
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asserted, commenced; taken, or otherwise pursued in the future.
"Transactions" means all of the transactions contemplated by this
Agreement, including:
(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 and ownership of the Shares.
"U.S. SHAREHOLDER" means a "U.S. shareholder" within the meaning of Section
951(b) of the Code, with respect to the Company.
"VOTING SHARES" means the Ordinary Shares (including Ordinary Shares that
are represented by the Global Depositary Shares and any other 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, other than
Encumbrances arising as a result of the depositary agreement in respect of
the Shares or Encumbrances created by any Buyer, 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
$10,700,000 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. The settlement of the purchase and
sale of the Shares shall occur no later than December 7, 2005 (the
"Settlement Date").
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2.4 POST-CLOSING OBLIGATIONS
(a) The Sellers shall:
(i) on or prior to the Settlement Date, instruct the broker that
holds the Shares on the Sellers' behalf to transfer the
Shares to the Buyers in the amounts and to the accounts
designated by the' Buyers in writing prior to the Settlement
Date to ensure that settlement with respect to such transfer
shall occur on the Settlement Date; and
(ii) deliver to the Buyers 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 each Buyer or its nominee(s) 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 no later than the
Settlement Date 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 TGII and TGLP is a limited partnership, duly organized,
validly existing, and in good standing under the laws of Delaware, with the
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. TGLTD is an exempted
company, duly organized, validly existing, and in good standing under the
laws of the Cayman Islands, with the 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 by any Seller
nor the performance by any Seller of any of its obligations hereunder
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 (without having made any special inquiry or
investigation), the Company, or (B) any resolution adopted by the
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manager, the board of managers (or other similar governing body), or
the members of any Seller, or, to the knowledge of such Seller
(without having made any special inquiry or investigation), the
Company;
(ii) contravene, conflict with, or result in a violation of any
Legal Requirement or any Order to which any Seller is subject;
(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.
3.3 TITLE TO THE SHARES
(a) 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, other than Encumbrances arising as a result of
the depositary agreement in respect of the Shares or Encumbrances
created by any Buyer. Immediately following the Closing, 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, other than
Encumbrances arising as a result of the depositary agreement in
respect of the Shares or Encumbrances created by any Buyer.
(b) There are no Applicable Contracts of any Seller or, to each
Seller's knowledge (without having made special inquiry or
investigation), any other Contracts, relating to the sale, transfer,
voting or ownership of the Shares or otherwise relating to the Shares,
other than the depositary agreement in respect of the Shares.
3.4 LEGAL PROCEEDINGS; ORDERS
There is no Proceeding pending or, to the knowledge of any Seller
(without having made special inquiry or investigation), Threatened,
that relates to the Shares or that challenges, or that may have the
effect of preventing, delaying, making illegal, or otherwise
interfering with, the performance of any Seller's obligations
hereunder.
3.5 DISCLOSURE
(a) Without having made any special inquiry or investigation, no
fact has come to the attention of any Seller that has caused any
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;
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(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
(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
No Seller nor any officer or agent of any Seller 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.
3.7 ACKNOWLEDGEMENT REGARDING TRADING ACTIVITY
Except as provided in the Confidentiality Agreement with respect
to purchases of the Company's Ordinary Shares or Global Depositary
Shares, anything in this Agreement or elsewhere herein to the contrary
notwithstanding, it is understood and agreed by each Seller: (i) that
neither the Buyers nor any Person to whom an offer of Shares have
been made (each, an "Offeree") have 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 or the Global Depositary 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.
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. Each Buyer has the power and authority to
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execute and deliver this Agreement and to perform its obligations
under this Agreement.
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.
(b) Neither the execution and delivery of this Agreement by
any Buyer nor the performance of its obligations hereunder 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;
(ii) contravene, conflict with, or result in a
violation of any Legal Requirement or any Order to which
any Buyer is subject;
(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;
(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.
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, onto 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 an
exemption from the registration requirements of Section 5 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,
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acknowledgements and understandings of each Buyer set forth in
this Section 4.3 in order to determine the availability of such
exemption 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 Sellers 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 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 Actor other exemption from such
registration.
(g) 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, the performance of any Buyer's obligations hereunder. 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:
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(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 such 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)(i) shall
restrict the ability of such Seller to sell or otherwise 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 the terms of this Agreement;
(ii) If at anytime 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
and to elect such Great Hill Director to any committee of the board of
directors of the Company;
(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, 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) 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), 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) 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. Such irrevocable proxy and attorney is executed and
intended to be irrevocable.
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(vi) The covenants, obligations, proxy and attorney 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 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 Shares registered
in its name.
(ii) Each 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.
(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 maybe 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
To the extent applicable to the transactions contemplated by this
Agreement, each Seller shall, and shall cause its affiliates (including
Xxxxx Xxxxxxxx) to, comply with the requirements (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) If (i) any Seller has been a U.S. Shareholder within the meaning
of Section 951(b) of the Code 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, at any time during the taxable year of the Company that
includes the Closing, and (iii) Buyer (or its direct or indirect owners) is
required to include an amount 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, then each Seller that has been such a U.S. Shareholder during that
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year shall reimburse Buyer for 11/12th of the amount equal to the product
of (x) 40% and (y) the amount of such income attributable to that
proportion of the Shares transferred by such Seller pursuant to this
Agreement.
(b) 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. The parties further agree to furnish to each other upon request such
information as may be reasonably required for the other to determine
whether it is a "U.S. shareholder" within the meaning of Section 951(b) of
the Code, with respect to the Company and whether the Company is a
"controlled foreign corporation" within the meaning of Section 957 of the
Code, and the Buyers and Sellers shall use their commercially reasonable
efforts to cause the Company to provide all such information.
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 maybe 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) and such other documents as the Buyers 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.
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6.4 ADDITIONAL PURCHASE
(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 purchase and sale of the Shares hereunder 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 maybe 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
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.
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.
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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 bylaw, 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) Each Seller represents that: (i) it is an "accredited investor" as
defined in Rule 501(a) promulgated under the Securities Act; (ii) that it
has not acquired the Shares on behalf, or at the request,, of the Company
or any of its affiliates; and (iii) the sale of the Shares by such Seller
were privately negotiated within an independent transaction and not
solicited.
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 and the
Sellers mutually agree.
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:
Tiger Technology Management, L.L.C.
000 Xxxx Xxxxxx 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Facsimile No.: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxxxxx,
LLP
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxxx
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 maybe 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
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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 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.
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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.
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 internal 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 the Sellers or any Buyer. 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 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:
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THE SELLERS:
TIGER GLOBAL, L.P. By: TIGER GLOBAL
MANAGEMENT, L.L.C.
its investment manager
-----------------------------------------
By: Xxxxxxxx Xxxxxx
Its: Managing Director
TIGER GLOBAL II, L.P.
By: TIGER GLOBAL MANAGEMENT, L.L.C.
its investment manager
-----------------------------------------
By: Xxxxxxxx Xxxxxx
Its: Managing Director
TIGER GLOBAL, LTD.
By: TIGER GLOBAL MANAGEMENT, L.L.C.
its investment manager
-----------------------------------------
By: Xxxxxxxx Xxxxxx
Its: Managing Director
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EXHIBIT A
FOR GREAT HILL INVESTORS, LLC:
Number of Global Depositary Shares Transferred: 22,954
FOR GREAT HILL EQUITY PARTNERS II, LP:
Number of Global Depositary Shares Transferred: 1,904,488
FOR GREAT HILL AFFILIATE PARTNERS II, LP:
Number of Global Depositary Shares Transferred: 72,558
-22-
EXHIBIT B
OWNERSHIP OF SHARES
Tiger Global, L.P. 1,576,400
Tiger Global II, L.P. 38,200
Tiger Global, Ltd 385,400
Total 2,000,000
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