-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, F46QvWx28nyBa2HlyoEvkux5BnYBST6rRnMaU//+EbSOWjt2fZcIcLpSFp1IGkpD 90U7isTgyDFYIa7OrPgW8w== 0000898432-05-001016.txt : 20051212 0000898432-05-001016.hdr.sgml : 20051212 20051212164254 ACCESSION NUMBER: 0000898432-05-001016 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 20051212 DATE AS OF CHANGE: 20051212 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: SHAPIRA JOE Y CENTRAL INDEX KEY: 0001324964 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: BUSINESS PHONE: (323) 836-3000 MAIL ADDRESS: STREET 1: 8383 WILSHIRE BLVD. SUITE 800 CITY: BEVERLY HILLS STATE: CA ZIP: 90211 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: SPARK NETWORKS PLC CENTRAL INDEX KEY: 0001314475 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-BUSINESS SERVICES, NEC [7389] IRS NUMBER: 980200628 STATE OF INCORPORATION: X0 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-81138 FILM NUMBER: 051258733 BUSINESS ADDRESS: STREET 1: 8383 WILSHIRE BOULEVARD STREET 2: SUITE 800 CITY: BEVERLY HILLS STATE: CA ZIP: 90211 BUSINESS PHONE: 323-836-3000 MAIL ADDRESS: STREET 1: 8383 WILSHIRE BOULEVARD STREET 2: SUITE 800 CITY: BEVERLY HILLS STATE: CA ZIP: 90211 SC 13D 1 sch13d.txt UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D UNDER THE SECURITIES EXCHANGE ACT OF 1934 (AMENDMENT NO. ___________) Spark Networks plc ------------------ (Name of Issuer) Ordinary Shares, par value 0.01 pound per share ----------------------------------------------- (Title of Class of Securities) G8305M109 --------- (CUSIP Number) Joe Y. Shapira 8383 Wilshire Boulevard, Suite 800 Beverly Hills, CA 90211 (323) 836-3000 ------------------------------------------ (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) December 1, 2005 ---------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. / / NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Section 240.13d-7 for other parties to whom copies are to be sent. *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934, as amended ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). CUSIP No. G8305M109 1 Names of Reporting Persons. Joe Y. Shapira I.R.S. Identification Nos. of above persons (entities only) --------------------------------------------------------------------- 2 Check the Appropriate Box if a Member of a Group (See Instructions) (a) | | (b) |X| - ---------------------------------------------------------------------------- 3 SEC Use Only - ---------------------------------------------------------------------------- 4 Source of Funds (See Instructions) n/a - ---------------------------------------------------------------------------- 5 Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) | | - ---------------------------------------------------------------------------- 6 Citizenship or Place of Organization U.S. and Israel - ---------------------------------------------------------------------------- 7 Sole Voting Power 2,294,389 ---------------------------------------------- 8 Shared Voting Power 0 ---------------------------------------------- 9 Sole Dispositive Power 2,294,389 ---------------------------------------------- 10 Shared Dispositive Power 0 ---------------------------------------------- 11 Aggregate Amount Beneficially Owned by Each Reporting Person 2,294,389 - ----------------------------------------------------------------------------- 12 Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) |X| The aggregate amount excludes (i) 550,000 shares held by the Shapira Children's Trust of which a third party is trustee and (ii) 12,000 shares held by a third-party custodian for Mr. Shapira's children. In addition, as described in Items 4 and 5 below, the Mr. Shapira may be deemed to be part of a group with: (i) Great Hill Affiliates (as defined below); (ii) Carmel (as defined below); (iii) the Tiger Global Entities (as defined below); (iv) the Criterion Entities (as defined below); and/or (v) the other Group Members (as defined below), in each case, pursuant to the terms of respective Share Purchase Agreements (as defined below). Mr. Shapira does not affirm to be part of a group and expressly disclaims beneficial ownership of (i) the 6,000,000 Ordinary Shares, in the aggregate, beneficially owned by the Great Hill Affiliates; (ii) the 3,499,648 Ordinary Shares, in the aggregate, beneficially owned by Carmel (as defined below); (iii) the 4,631,085 Ordinary Shares (including global depositary shares representing Ordinary Shares), in the aggregate, beneficially owned by the Tiger Global Entities (as defined below); (iv) the 1,844,337 Ordinary Shares (including global depositary shares representing such Ordinary Shares), in the aggregate, beneficially owned by the Criterion Entities; and/or (v) the 15,975,070 Ordinary Shares (including global depositary shares representing such Ordinary Shares), in the aggregate, beneficially owned by the other Group Members (as defined below). Accordingly, such Ordinary Shares are not included in the amounts specified by the Mr. Shapira above. - ---------------------------------------------------------------------------- 13 Percent of Class Represented by Amount in Row (11) 7.6%(1) - ---------------------------------------------------------------------------- 2 14 Type of Reporting Person (See Instructions) IN - ---------------------------------------------------------------------------- (1) Based on 30,209,496 ordinary shares outstanding, which is the number of shares outstanding as of October 19, 2005, plus 4,000,000 shares issued upon the exercise of options on December 1, 2005 by Joe Shapira and Alon Carmel, and consists of (i) 1,138,224 shares held directly by Mr. Shapira, (ii) 1,062,415 shares held by the Shapira Family Trust of which Mr. Shapira is trustee, and (iii) options held by Mr. Shapira to purchase 93,750 ordinary shares exercisable within 60 days of the date of this Statement on Schedule 13D. 3 ITEM 1. SECURITY AND ISSUER This Statement on Schedule 13D (the "Schedule 13D") relates to the ordinary shares, par value 0.01 pound per share (the "Ordinary Shares"), of Spark Networks plc (the "Issuer"), whose principal executive offices are located at 8383 Wilshire Boulevard, Suite 800, Beverly Hills, California 90211. ITEM 2. IDENTITY AND BACKGROUND This statement is being filed on behalf of Joe Y. Shapira. Mr. Shapira is currently the Executive Chairman of the Board of Directors of the Issuer, the business address of which is 8383 Wilshire Boulevard, Suite 800, Beverly Hills, CA 90211. Mr. Shapira has announced his resignation from his executive operating role with the Issuer effective December 31, 2005, after which date Mr. Shapira will continue to be a director and serve as Chairman of the Issuer's Board of Directors. Mr. Shapira has not, during the last five years, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). Mr. Shapira has not, during the last five years, been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction which resulted in a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. Mr. Shapira has citizenship in the U.S. and Israel. ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION. Although Joe Y. Shapira ("Shapira" or "Mr. Shapira") did not pay any consideration to acquire Ordinary Shares (other than the exercise of his option as described below), on December 1, 2005, Mr. Shapira and Great Hill Investors, LLC, a Massachusetts limited liability company; Great Hill Equity Partners II Limited Partnership, a Delaware limited partnership; and Great Hill Affiliate Partners II, L.P., a Delaware limited partnership (collectively, the "Funds") entered into a share purchase agreement (the "Shapira Share Purchase Agreement") pursuant to which Mr. Shapira sold an aggregate of 1,250,000 shares to the Funds. Pursuant to the Shapira Share Purchase Agreement, Mr. Shapira and the Funds agreed to certain voting arrangements, as more fully described in Item 4 hereof, pursuant to which Mr. Shapira agreed to, among other things, vote his securities to elect a director of the Issuer as selected by the Funds and to cooperate with the Funds in voting to remove or replace such director or to fill a vacancy caused by the resignation of such director. In addition, the Funds entered into the Share Purchase Agreements (as defined below) with Carmel, the Tiger Global Entities and the Criterion Entities (each as defined below) pursuant to which the Funds acquired an aggregate of 4,750,000 Ordinary Shares (including global depositary shares representing Ordinary Shares). Affiliates of the Funds include (i) Great Hill Partners GP II, LLC, a Massachusetts limited liability company; (ii) Stephen F. Gormley; (iii) Christopher S. Gaffney; and John G. Hayes (together with the Funds, the "Great Hill Affiliates"). By virtue of the Share Purchase Agreements (as defined below), it could be alleged that a "group," within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or Rule 13d-5(b)(1) thereunder, has been formed that includes Mr. Shapira and the Great Hill Affiliates or includes Mr. Shapira and each or all of the other Group Members (as defined below). While Mr. Shapira does not concede that any such "group" has been formed, this filing is being made to ensure compliance with the Exchange Act. Mr. Shapira expressly disclaims beneficial ownership of Ordinary Shares beneficially owned by the Great Hill Affiliates and the other Group Members and does not affirm that any such "group" exists. A copy of the Shapira Share Purchase Agreement is filed as Exhibit 1 hereto and is incorporated herein by reference. A copy of the Carmel Share Purchase Agreement (as defined below) is filed as Exhibit 2 hereto and is incorporated herein by reference. A copy of the Tiger Share Purchase Agreement (as defined below) is filed as Exhibit 3 hereto and is incorporated herein by reference. A copy of the Criterion Share Purchase Agreement (as defined below) is filed as Exhibit 4 hereto and is incorporated herein by reference. The descriptions herein of the Share Purchase Agreements are qualified in their entirety by reference to such agreements. 4 ITEM 4. PURPOSE OF TRANSACTION On December 1, 2005, Joe Y. Shapira and the Funds entered into a share purchase agreement (the "Shapira Share Purchase Agreement"), pursuant to which the Funds acquired from Shapira (the "Shapira Purchase") an aggregate of 1,250,000 Ordinary Shares for a purchase price of $4.60 per share, or $5,750,000 in the aggregate. In connection with the Shapira Share Purchase Agreement, Shapira exercised an option to purchase 2,000,000 Ordinary Shares (the "Shapira Option") immediately prior to the Shapira Purchase. In addition, on December 1, 2005, the Funds and Alon Carmel ("Carmel") entered into a share purchase agreement (the "Carmel Share Purchase Agreement"), pursuant to which the Funds acquired from Carmel (the "Carmel Purchase") an aggregate of 1,250,000 Ordinary Shares for a purchase price of $4.60 per share, or $5,750,000 in the aggregate. In connection with the Carmel Share Purchase Agreement, Carmel exercised an option to purchase 2,000,000 Ordinary Shares (the "Carmel Option") immediately prior to the Carmel Purchase. On December 1, 2005, the Funds, Tiger Global II, L.P. ("TGII"), Tiger Global, L.P. ("TGLP") and Tiger Global, Ltd. ("TGLTD," and together with TGII and TGLP, the "Tiger Global Entities") entered into a share purchase agreement (the "Tiger Share Purchase Agreement"), pursuant to which the Funds acquired from the Tiger Global Entities an aggregate of 2,000,000 Ordinary Shares for a purchase price of $5.35 per share, or $10,700,000 in the aggregate. On December 1, 2005, the Funds, Criterion Capital Partners, L.P. ("CCP"), Criterion Institutional Partners, L.P. ("CIP") and Criterion Capital Partners Ltd. ("CCPL" and together with CCP and CIP, the "Criterion Entities") entered into a share purchase agreement (the "Criterion Share Purchase Agreement"), pursuant to which the Funds acquired from the Criterion Entities an aggregate of 1,500,000 Ordinary Shares for a purchase price of $5.35 per share, or $8,025,000 in the aggregate. The Shapira Share Purchase Agreement, the Carmel Share Purchase Agreement, the Tiger Share Purchase Agreement and the Criterion Share Purchase Agreements are collectively referred to as the "Share Purchase Agreements." Mr. Shapira was not a party to the Share Purchase Agreements other than the Shapira Share Purchase Agreement. Shapira, Carmel, the Tiger Global Entities and the Criterion Entities are collectively referred to as the "Selling Shareholders." VOTING ARRANGEMENTS Pursuant to the terms of the respective Share Purchase Agreements, for so long as the Funds and their respective affiliates collectively own: (i) in the case of the Shapira Share Purchase Agreement and the Carmel Share Purchase Agreement, at least 10% of the outstanding Ordinary Shares (and/or other depositary shares representing such Ordinary Shares); and (ii) in the case of the Tiger Share Purchase Agreement and the Criterion Share Purchase Agreement, at least 5% of the outstanding Ordinary Shares (including Ordinary Shares that are represented by global depositary shares and any other depositary shares) and any other shares in the capital of the Issuer entitled to vote on the election of directors) ("Voting Shares"), each Selling Shareholder, including Mr. Shapira, agreed that: (x) if at any time any Fund notifies a Selling Shareholder of its desire and intention to designate a single director on behalf of all of the Funds (the "Great Hill Director") in advance of any meeting of the Issuer's shareholders 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 Issuer, such Selling Shareholder agreed to consent, vote (or cause to be voted) all of its any Voting Shares (as defined below) that are owned or held of record by such Selling Shareholder, or as to which such Selling Shareholder has voting power or in respect of which such Selling Shareholder can direct, restrict or control any such voting power (the "Remaining Shares") held at the time such consent is sought or meeting is held to elect such Great Hill Director; and (y) if at any time any Fund notifies a Selling Shareholder 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 Selling Shareholder agreed to cooperate in causing the requested removal and/or replacement by voting in the appropriate manner. Each Selling Shareholder irrevocably granted, and appointed Michael A. Kumin, and any other person who shall hereafter be designated by the Funds, as such Selling Shareholder's proxy and attorney (with full power of substitution), to vote all of such Selling Shareholder's shares held at the time such consent is sought or meeting is held in any circumstances where a vote, consent or other approval is sought to elect a Great Hill Director. In addition, each Selling Shareholder, including Mr. Shapira, agreed not to enter into or exercise its rights under any voting arrangements with respect to any Remaining Shares or take any other action, that would in any way restrict, limit or interfere with the performance of its obligations to vote its Remaining Shares in accordance with the terms of the applicable Share Purchase 5 Agreement. Pursuant to the terms of the Share Purchase Agreements, no Selling Shareholder is restricted from selling or otherwise transferring any Remaining Shares or any interest therein to a third party that is not an affiliate of such Selling Stockholder or the Issuer or to any affiliate that agrees in writing to be bound by the terms of the applicable Share Purchase Agreement. The foregoing covenants and obligations of each Selling Shareholder terminate after a Great Hill Director (together with any replacements therefore) has served a single, full term of office of three years, in accordance with the Issuer's articles and memorandum of association, as in effect on December 1, 2005. In addition, each Selling Shareholder, including Mr. Shapira, agreed that, in order to secure the interest of the Funds in the Ordinary Shares purchase under each applicable Share Purchase Agreement, with effect from December 1, 2005, each Selling Shareholder irrevocably appointed 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 Ordinary Shares (or global depositary shares representing Ordinary Shares) registered in its name. Each Selling Shareholder agreed, following December 1, 2005, not to exercise all or any of the voting and other rights, powers and privileges attached to the Ordinary Shares purchase pursuant to the applicable Share Purchase Agreement that are registered in its name. Other than the exercise of the Shapira Option, Mr. Shapira did not acquire any Ordinary Shares in connection with the Shapira Share Purchase Agreement or Shapira Purchase. Mr. Shapira may acquire or dispose of Ordinary Shares (including global depositary shares or other depositary shares, in each case, representing Ordinary Shares) in the future. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER (a) Mr. Shapira beneficially owns an aggregate of 2,294,389 Ordinary Shares (including depositary shares representing shares and shares underlying options exercisable within 60 days of the date hereof), representing 7.6% of the outstanding Ordinary Shares, based on 30,209,496 Ordinary Shares outstanding, which is the number of shares outstanding as of October 19, 2005 plus 4,000,000 shares issued upon the exercise of options on December 1, 2005 by Mr. Shapira and Alon Carmel. In addition, by virtue of the Shapira Share Purchase Agreement, it could be alleged that a "group," within the meaning of Section 13(d)(3) of the Exchange Act, or Rule 13d-5(b)(1) thereunder, has been formed that includes Mr. Shapira and the Great Hill Affiliates (the "Great Hill Group"). In addition, by virtue of the Shapira Share Purchase Agreement, the Carmel Share Purchase Agreement, the Tiger Share Purchase Agreement and/or the Criterion Share Purchase Agreement, it could be alleged that a "group" has been formed that includes Mr. Shapira, the Great Hill Affiliates, Carmel, the Tiger Global Entities and/or the Criterion Entities (Shapira, Carmel, the Great Hill Affiliates, the Tiger Global Entities and the Criterion Entities are herein referred to as the "Group Members"). While Shapira does not concede that any such "group" has been formed, this filing is being made to ensure compliance with the Exchange Act. Based upon the number of Ordinary Shares outstanding as of October 19, 2005 and after giving effect to the exercise of the Carmel Option and Shapira Option: (i) the Great Hill Group would be deemed to beneficially own, in the aggregate, 8,294,389 Ordinary Shares (including shares underlying options exercisable within 60 days of the date hereof), representing approximately 27.4% of the Ordinary Shares and (ii) a group including all Group Members would be deemed to beneficially own, in the aggregate, 18,269,459 Ordinary Shares (including shares underlying options exercisable within 60 days of the date hereof and global depositary shares representing Ordinary Shares), representing approximately 60.3% of the Ordinary Shares. Mr. Shapira does not affirm to be part of a group and expressly disclaims beneficial ownership of (i) the 6,000,000 Ordinary Shares, in the aggregate, beneficially owned by the Great Hill Affiliates; (ii) the 3,499,648 Ordinary Shares, in the aggregate, beneficially owned by Carmel; (iii) the 4,631,085 Ordinary Shares (including global depositary shares representing Ordinary Shares), in the aggregate, beneficially owned by the Tiger Global Entities; (iv) the 1,844,337 Ordinary Shares (including global depositary shares representing such Ordinary Shares), in the aggregate, beneficially owned by the Criterion Entities; and/or (v) the 15,975,070 Ordinary Shares (including global depositary shares representing such Ordinary Shares), in the aggregate, beneficially owned by the other Group Members. (b) Mr. Shapira has the power to vote, direct the vote, dispose and direct the disposition of 2,294,389 Ordinary Shares (including depositary shares representing shares and shares underlying options exercisable within 60 days of the date hereof). In addition, pursuant to, and to the extent set forth in, the Carmel Share Purchase Agreement, the Tiger Share Purchase Agreement and the 6 Criterion Share Purchase Agreement, it could be alleged that the Great Hill Affiliates share voting and dispositive power with respect to the Ordinary Shares beneficially owned by Carmel, the Tiger Global Entities and the Criterion Entities, respectively. To the knowledge of the Mr. Shapira and based on documents publicly filed by the Group Members, the name, address and principal occupation/business of each Group Member is as set forth on Exhibit 5 hereto and is incorporated herein by reference. To the knowledge of the Mr. Shapira and based on documents publicly filed by the Group Members, during the last five years, no Group Member has been: (i) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors), or (ii) a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to Federal or State securities laws or finding any violation with respect to such laws. (c) Except for the information incorporated by reference herein or in Items 3, 4 and 6, Mr. Shapira has not, and to the knowledge of Mr. Shapira, Great Hill has not, effected any transaction relating to the Ordinary Shares during the past 60 days except for (i) sales of 237,500 ordinary shares and 12,500 ordinary shares by Mr. Shapira to two individuals, respectively, on December 1, 2005 at $4.40 per share in two private transactions; (ii) the sale of 150,000 ordinary shares by Carmel to an individual on December 1, 2005 at $4.00 per share in a private transaction; and (iii) the sale of 80,700 ordinary shares in the form of Global Depositary Shares by Carmel on November 14, 2005 at $6.07 per share in a public trade on the Frankfurt Stock Exchange. (d) Not applicable. (e) Not applicable. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER Reference is made to the description of the Share Purchase Agreements contained in Item 4, which is incorporated by reference herein. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS. Exhibit 1 Share Purchase Agreement, dated as of December 1, 2005, by and among the Funds and Joe Y. Shapira. Exhibit 2 Share Purchase Agreement, dated as of December 1, 2005, by and among the Funds and Alon Carmel. Exhibit 3 Share Purchase Agreement, dated as of December 1, 2005, by and among the Funds and the Tiger Global Entities. Exhibit 4 Share Purchase Agreement, dated as of December 1, 2005, by and among the Funds and the Criterion Entities. Exhibit 5 Name, address and principal occupation of certain Group Members. 7 S I G N A T U R E After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Statement is true, complete, and correct. Date: December 12, 2005 JOE Y. SHAPIRA By: /s/ JOE Y. SHAPIRA ----------------------------- JOE Y. SHAPIRA 8 EXHIBIT INDEX Exhibit 1 Share Purchase Agreement, dated as of December 1, 2005, by and among the Funds and Joe Y. Shapira. Exhibit 2 Share Purchase Agreement, dated as of December 1, 2005, by and among the Funds and Alon Carmel. Exhibit 3 Share Purchase Agreement, dated as of December 1, 2005, by and among the Funds and the Tiger Global Entities. Exhibit 4 Share Purchase Agreement, dated as of December 1, 2005, by and among the Funds and the Criterion Entities. Exhibit 5 Name, address and principal occupation of the Group Members. 9 EX-99 2 exh1.txt (EXHIBIT 1) 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 One Liberty Square Boston, Massachusetts 02109 ("GHI"), Great Hill Equity Partners II Limited Partnership, a Delaware limited partnership, whose registered office is located at One Liberty Square Boston, Massachusetts 02109 ("GHEP") and Great Hill Affiliate Partners II Limited Partnership, a Delaware limited partnership whose registered office is located at One Liberty Square Boston, Massachusetts 02109 ("GHAP), and Joe Y. Shapira, an individual, whose resident address is located c/o 8383 Wilshire Boulevard, Suite 800, Beverly Hills, CA 90211 USA (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 24-26 Arcadia Avenue, Finchley Central, London N3 2JU, England (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 - 1 - 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 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. - 2 - "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 5.1(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 and the knowledge such Person reasonably would have after conducting a reasonable inquiry. "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) Alon Carmel and (iii) Tiger Global Management, L.L.C. and its affiliates. - 3 - "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. "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. - 4 - "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; 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 - 5 - 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. 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 2049 Century Park East, Suite 3200, Los Angeles, California, 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. - 6 - (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. 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. - 7 - (b) The Seller has delivered to the Buyers a true and complete copy of the Plan and the Option Agreement. (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; - 8 - (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 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. - 9 - (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 - 10 - 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 - 11 - 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 Michael A. Kumin, 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 - 12 - 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 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 preceding 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 - 13 - (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. - 14 - 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 - 15 - 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: c/o Spark Networks plc 8383 Wilshire Boulevard Suite 800 Beverly Hills, California 90211 Attention: Joe Y. Shapira with a copy (which shall not constitute notice) to: Kirkpatrick & Lockhart Nicholson Graham LLP 10100 Santa Monica Boulevard - 16 - Seventh Floor Los Angeles, California 90067 Attention: Thomas J. Poletti Facsimile No.: (310) 552-5001 Any Buyer: Great Hill Partners, LLC One Liberty Square Boston, Massachusetts 02109 Attention: Michael A. Kumin Facsimile No.: (617) 790-9401 with a copy (which shall not constitute notice) to: Proskauer Rose LLP 2049 Century Park East, Suite 3200 Los Angeles, California 90067 Attention: Michael A. Woronoff Facsimile No.: (310) 557-2193 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 - 17 - 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. 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, - 18 - 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 8.10) 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 - 19 - 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] - 20 - 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/ Christopher S. Gaffney ------------------------------------ By: Christopher S. Gaffney Its: Manager GREAT HILL EQUITY PARTNERS II LIMITED PARTNERSHIP By: GREAT HILL PARTNERS GP II, LLC, its General Partner /s/ Christopher S. Gaffney ------------------------------------ By: Christopher S. Gaffney Its: Manager GREAT HILL AFFILIATE PARTNERS II LIMITED PARTNERSHIP By: GREAT HILL PARTNERS GP II, LLC, its General Partner /s/ Christopher S. Gaffney ------------------------------------ By: Christopher S. Gaffney Its: Manager - 21 - SELLER: /s/ Joe Y. Shapira ------------------------------------ Joe Y. Shapira - 22 - EX-99 3 exh2.txt (EXHIBIT 2) 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 One Liberty Square Boston, Massachusetts 02109 ("GHI"), Great Hill Equity Partners II Limited Partnership, a Delaware limited partnership, whose registered office is located at One Liberty Square Boston, Massachusetts 02109 ("GHEP") and Great Hill Affiliate Partners II Limited Partnership, a Delaware limited partnership whose registered office is located at One Liberty Square Boston, Massachusetts 02109 ("GHAP), and Alon Carmel, an individual, whose resident address is located 256 South Rodeo Drive, Beverly Hills, CA 90211 USA (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 24-26 Arcadia Avenue, Finchley Central, London N3 2JU, England (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 - 1 - 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. - 2 - "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) Joe Y. Shapira 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. - 3 - "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; - 4 - 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. - 5 - 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 2049 Century Park East, Suite 3200, Los Angeles, California, 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. - 6 - 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. - 7 - (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 - 8 - 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. - 9 - (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 - 10 - 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 - 11 - 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 Michael A. Kumin, 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 - 12 - 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 - 13 - (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. - 14 - 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 - 15 - 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 256 South Rodeo Drive Beverly Hills, California 90211 with a copy (which shall not constitute notice) to: Kirkpatrick & Lockhart Nicholson Graham LLP 10100 Santa Monica Boulevard Seventh Floor - 16 - Los Angeles, California 90067 Attention: Thomas J. Poletti Facsimile No.: (310) 552-5001 Any Buyer: Great Hill Partners, LLC One Liberty Square Boston, Massachusetts 02109 Attention: Michael A. Kumin Facsimile No.: (617) 790-9401 with a copy (which shall not constitute notice) to: Proskauer Rose LLP 2049 Century Park East, Suite 3200 Los Angeles, California 90067 Attention: Michael A. Woronoff Facsimile No.: (310) 557-2193 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 - 17 - 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 - 18 - 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 - 19 - 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] - 20 - 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/ Christopher S. Gaffney ------------------------------------ By: Christopher S. Gaffney Its: Manager GREAT HILL EQUITY PARTNERS II LIMITED PARTNERSHIP By: GREAT HILL PARTNERS GP II, LLC, its General Partner /s/ Christopher S. Gaffney ------------------------------------ By: Christopher S. Gaffney Its: Manager GREAT HILL AFFILIATE PARTNERS II LIMITED PARTNERSHIP By: GREAT HILL PARTNERS GP II, LLC, its General Partner /s/ Christopher S. Gaffney ------------------------------------ By: Christopher S. Gaffney Its: Manager - 21 - SELLER: /s/ Alon Carmel ------------------------------------ Alon Carmel - 22 - EX-99 4 exhibit-3.txt EXHIBIT 3 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 One Liberty Square Boston, Massachusetts 02109 ("GHI"), Great Hill Equity Partners II Limited Partnership, a Delaware limited partnership, whose registered office is located at One Liberty Square Boston, Massachusetts 02109 ("GHEP") and Great Hill Affiliate Partners II Limited Partnership, a Delaware limited partnership whose registered office is located at One Liberty Square Boston, Massachusetts 02109 ("GHAP") and Tiger Global II, L.P., a Delaware limited partnership, whose registered office is located at 101 Park Avenue, 48th Floor, New York, New York 10178 ("TGII"), Tiger Global, L.P., a Delaware limited partnership, whose registered office is located at 101 Park Avenue, 48th Floor, New York, New York 10178 ("TGLP"), Tiger Global, Ltd., an exempted company formed under the laws of the Cayman Islands, whose registered office is located at c/o Citco Fund Services (Cayman Islands) 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 -1- 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 24-26 Arcadia Avenue, Finchley Central, London N3 2JU, England. "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. -2- "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) Joe Y. Shapira, (ii) Alon Carmel and (iii) Criterion Capital Management LLC and its affiliates. -3- "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 -4- 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 2049 Century Park East, Suite 3200, Los Angeles, California, 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"). -5- 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 -6- 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; -7- (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 -8- 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, -9- 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: -10- (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 Michael A. Kumin, 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. -11- (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 Scott Shleifer) 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 -13- 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. -13- 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. -14- 8.2 ACCESS TO INFORMATION (a) Each Seller hereby acknowledges that (i) it knows that each Buyer may have material, non-public information regarding the Company and its condition (financial and otherwise), results of operations, businesses, properties, plans (including plans regarding potential purchases of the Shares, which may be for different amounts or types of consideration) and prospects (collectively, "Information"); (ii) it has been offered access to the Information, and has reviewed such Information as it deems appropriate, and that such Information might be material to such Seller's decision to sell the Shares or otherwise materially adverse to such Seller's interests. Accordingly, such Seller acknowledges and agrees that no Buyer nor any other Person shall have any obligation to disclose to such Seller any of such Information. (b) Each Seller represents and warrants that it has adequate information to make an informed decision regarding the sale of the Shares and has independently and without reliance upon any Buyer made its own analysis and decision to sell the Shares. Each Seller hereby waives and releases, to, the fullest extent permitted 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): -15- Any Seller: Tiger Technology Management, L.L.C. 101 Park Avenue 48th Floor New York, NY 10178 Attention: Scott Shleifer Facsimile No.: (212) 557-1701 with a copy (which shall not constitute notice) to: Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP 220 West 42nd Street, 20th Floor New York, New York 10036 Attention: Brian C. Hutchings Facsimile No.: (877) 881-3734 Any Buyer: Great Hill Partners, LLC One Liberty Square Boston, Massachusetts 02109 Attention: Michael A. Kumin Facsimile No.: (617) 790-9401 with a copy (which shall not constitute notice) to: Proskauer Rose LLP 2049 Century Park East, Suite 3200 Los Angeles, California 90067 Attention: Michael A. Woronoff Facsimile No.: (310) 557-2193 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 -16- 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. -18- 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) -19- 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 GP II, LLC, its General Partner ----------------------------------------- By: Its: GREAT HILL AFFILIATE PARTNERS II LIMITED PARTNERSHIP By: GREAT HILL PARTNERS GP II, LLC, its General Partner ----------------------------------------- By: Its: -20- THE SELLERS: TIGER GLOBAL, L.P. By: TIGER GLOBAL MANAGEMENT, L.L.C. its investment manager ----------------------------------------- By: Jonathan Locker Its: Managing Director TIGER GLOBAL II, L.P. By: TIGER GLOBAL MANAGEMENT, L.L.C. its investment manager ----------------------------------------- By: Jonathan Locker Its: Managing Director TIGER GLOBAL, LTD. By: TIGER GLOBAL MANAGEMENT, L.L.C. its investment manager ----------------------------------------- By: Jonathan Locker Its: Managing Director -21- 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 -23- EX-99 5 exhibit-4.txt EXHIBIT 4 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 One Liberty Square Boston, Massachusetts 02109 ("GHI"), Great Hill Equity Partners II Limited Partnership, a Delaware limited partnership, whose registered office is located at One Liberty Square Boston, Massachusetts 02109 ("GHEP") and Great Hill Affiliate Partners II Limited Partnership, a Delaware limited partnership whose registered office is located at One Liberty Square Boston, Massachusetts 02109 ("GHAP"), Criterion Capital Partners, L.P., a California limited partnership, whose registered office is located at 435 Pacific Avenue, San Francisco, California 94133 ("CCP"), Criterion Institutional Partners, L.P., a California limited partnership, whose registered office is located at 435 Pacific Avenue, San Francisco, California 94133 ("CIP") and Criterion Capital Partners Ltd., a Cayman Islands exempted company, whose registered office is located at Walkers SPV Limited, P.O. Box 908 GT, Walker House, George Town, Grand Cayman, Cayman Islands, BWI ("CCPL"). Each of GHI, GHEP and GHAP are referred to as a "Buyer." Each of CCP, CIP and CCPL are referred to as a "Seller." RECITALS The Sellers desire to sell, and the Buyers desire to purchase the Shares for the consideration and on the terms set forth in this Agreement. AGREEMENT The parties, intending to be legally bound, agree as follows: 1. DEFINITIONS For purposes of this Agreement, the following terms have the meanings specified or referred to in this Section 1: "ADDITIONAL ACQUISITION AGREEMENTS" has the meaning set forth in Section 6.3(a). "ADDITIONAL PURCHASES" means the acquisition of an aggregate of 4,500,000 Ordinary Shares or Global Depositary Shares, as applicable, from the Other Sellers. "APPLICABLE CONTRACT" means, with respect to any Person, any Contract (a) under which such Person has or may acquire any rights, (b) under which such Person has or may become subject to any obligation or liability, or (c) by which such Person or any of the assets owned or used by such Person is or may become bound. A "BREACH" of a representation, warranty, covenant, obligation, or other provision of this Agreement, any other instrument delivered pursuant to this Agreement, or any other agreement or Contract, shall be deemed to have occurred if there is or has been (a) any inaccuracy in or breach of, or any failure to perform or comply with, such representation, warranty, covenant, obligation, or other provision, or (b) any claim (by any Person) or other occurrence or - 1 - circumstance that is or was inconsistent with such representation, warranty, covenant, obligation, or other provision, and the term "BREACH" means any such inaccuracy, breach, failure, claim, occurrence, or circumstance. "BUYER" has the meaning set forth in the first paragraph of this Agreement. "CLOSING" has the meaning set forth in Section 2.3. "CLOSING DATE" means the date and time as of which the Closing actually takes place. "CODE" has the meaning set forth in Section 3.7. "COMPANY" means Spark Networks plc, a public limited company, registered in England and Wales under number 3628907 whose registered office is located at 24-26 Arcadia Avenue, Finchley Central, London N3 2JU, England. "CONSENT" means any approval, consent, ratification, waiver, or other authorization (including any Governmental Authorization). "CONTRACT" means any agreement, contract, obligation, promise, or undertaking (whether written or oral and whether express or implied), that is legally binding. "DISCUSSION TIME" has the meaning set forth in Section 4.3(e). "DTC" means The Depositary Trust Company. "ENCUMBRANCE" means any charge, claim, condition, equitable interest, lien, option, pledge, security interest, right of first refusal, or restriction of any kind or any other third party right, including any restriction on use, voting, transfer, receipt of income, or exercise of any other attribute of ownership, in each case, other than any encumbrance existing as a result of the fact that the Shares are in the form of Global Depositary Shares. "EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended, or any successor law, and regulations and rules issued pursuant thereto or any successor law. "GHAP" has the meaning set forth in the Recitals of this Agreement. "GHEP" has the meaning set forth in the Recitals of this Agreement. "GHI" has the meaning set forth in the Recitals of this Agreement. "GLOBAL DEPOSITARY SHARES" means global depositary shares that represent Ordinary Shares. "GOVERNMENTAL AUTHORIZATION" means any approval, consent, license, permit, waiver, or other authorization issued, granted, given, or otherwise made available by or under the authority of any Governmental Body or pursuant to any Legal Requirement. "GOVERNMENTAL BODY" means any: - 2 - (a) nation, state, county, city, town, village, district, or other jurisdiction of any nature; (b) federal, state, local, municipal, foreign, or other government; (c) governmental or quasi-governmental authority of any nature (including any governmental agency, branch, department, official, or entity and any court or other tribunal); (d) multi-national organization or body; or (e) body exercising, or entitled to exercise, any administrative, executive, judicial, legislative, police, regulatory, or taxing authority or power of any nature. "GREAT HILL DIRECTOR" has the meaning set forth in Section 5.1(a)(ii). "INFORMATION" has the meaning set forth in Section 8.2(a). "KNOWLEDGE" of any Person shall mean the actual knowledge of such Person, without such Person having made any special inquiry or investigation. "LEGAL REQUIREMENT" means any federal, state, local, municipal, foreign, international, multinational, or other administrative order, constitution, law, ordinance, principle of common law, regulation, statute, or treaty. "ORDER" means any award, decision, injunction, judgment, order, ruling, subpoena, or verdict entered, issued, made, or rendered by any court, administrative agency, or other Governmental Body or by any arbitrator. "ORDINARY SHARES" means the ordinary shares of the Company, par value 0.01 pound per share. "ORGANIZATIONAL DOCUMENTS" means (a) the articles or certificate of incorporation and the bylaws of a corporation (including, for the avoidance of doubt, the Company's articles and memorandum of association as amended from time to time); (b) the partnership agreement and any statement of partnership of a general partnership; (c) the limited partnership agreement and the certificate of limited partnership of a limited partnership; (d) certificate of formation and operating agreement of a limited liability company; (e) any charter or similar document adopted or filed in connection with the creation, formation, or organization of a Person; and (f) any amendment, supplement, modification or restatement of any of the foregoing. "OTHER SELLERS" means (i) Joe Y. Shapira, (ii) Alon Carmel 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. - 3 - "PROCEEDING" means any action, arbitration, audit, hearing, investigation, litigation, or suit (whether civil, criminal, administrative, investigative, or informal) commenced, brought, conducted, or heard by or before, or otherwise involving, any Governmental Body or arbitrator. "PURCHASE PRICE" has the meaning set forth in Section 2.2. "RBC" means RBC Capital Markets Corporation. "REMAINING SHARES" has the meaning set forth in Section 5.1(a)(i). "REPRESENTATIVE" means with respect to a particular Person, any director, officer, employee, agent, consultant, advisor, or other representative of such Person, including legal, counsel, accountants, and financial advisors. "SEC" means the U.S. Securities and Exchange Commission. "SECURITIES ACT" means the Securities Act of 1933, as amended, or any successor law, and regulations and rules issued pursuant thereto or any successor law. "SECURITIES REPORTS" means all forms, reports, schedules, registration statements, definitive proxy or information statements and other documents required to be filed or filed by the Company with the SEC or any other Governmental Body, including the Registration Statement on Form S-1 of the Company (File No. 333-123228), in each case, as amended since the time of their filing, and including all documents filed as exhibits thereto and any Form 8-Ks that have been filed with or furnished to the SEC or such other Governmental Body. "SELLER" has the meaning set forth in the first paragraph of this Agreement. "SHARES" means the 1,500,000 Global Depositary Shares, in the aggregate, being sold pursuant to this Agreement. "SHORT SALES" means all "short sales" as defined in Rule 3b-3 of the Exchange Act. "TAX" means any tax (including any income tax, capital gains tax, value-added tax, sales tax, property tax, gift tax, or estate tax), levy, assessment, tariff, duty (including any customs duty), deficiency, or other fee, and any related charge or amount (including any fine, penalty, interest, or addition to tax), imposed, assessed, or collected by or under the authority of any Governmental Body or payable pursuant to any tax-sharing agreement or any other Contract relating to the sharing or payment of any such tax, levy, assessment, tariff, duty, deficiency, or fee. "THREATENED" means a claim, Proceeding, dispute or action shall be deemed to have been "THREATENED" if any demand or statement has been made or any notice has been given, or if any other event has occurred or any other circumstances exist, that would lead a prudent Person to conclude that such a claim, Proceeding, dispute or action is likely to be asserted, commenced, taken, or otherwise pursued in the future. "TRANSACTIONS" means all of the transactions contemplated by this Agreement, including: - 4 - (a) the sale of the Shares by the Sellers to the Buyers; (b) the performance by the Buyers and the Sellers of their respective covenants and obligations under this Agreement; and (c) the Buyers' acquisition of the Shares. "TRANSFER" means any transfer, sale, assignment, gift, pledge, hypothecation or other disposition, including any such transfer by means of any Short Sale or other derivative or hedging transaction, or the creation or existence of any Encumbrance in favor of any third party that is not an affiliate of any Seller, in each case, in respect of any bona fide transaction that is not entered into for the purpose of avoiding the obligations under this Agreement. "U.S. SHAREHOLDER" has the meaning set forth in Section 3.7. "VOTING SHARES" means the Ordinary Shares, the Global Depositary Shares and any other shares in the capital of the Company entitled to vote on the election of directors. 2. SALE AND TRANSFER OF SHARES; CLOSING 2.1 SHARES Subject to the terms and conditions of this Agreement, at the Closing, the Sellers shall sell and transfer, free from all Encumbrances, the Shares to the Buyers, and the Buyers shall purchase the Shares from the Sellers, and from and including the Closing Date, all rights and advantages accruing to the Shares shall belong to the Buyers. The number of Shares to be sold by each Seller is set forth opposite such Seller's name on Exhibit B. 2.2 PURCHASE PRICE The purchase price for the Shares shall be $5.35 per Share, and $8,025,000 in the aggregate (the "PURCHASE PRICE"). 2.3 CLOSING The purchase and sale of the Shares, shall take place concurrently with the execution and delivery of this Agreement (the "CLOSING") at the offices of the Buyers, counsel at 2049 Century Park East, Suite 3200, Los Angeles, California, at 10:00 a.m. (local time) on December 1 2005, or at such other time as the parties may agree. 2.4 CLOSING OBLIGATIONS At the Closing: (a) The Sellers shall deliver or cause to be delivered: (i) to DTC, irrevocable written or electronic instructions authorizing and ordering DTC to transfer the Shares to the Buyers in the amounts and to the accounts designated by - 5 - the Buyers on Exhibit A hereto; and (ii) to the Buyers, any other document that may be required for any Seller to give good title to the Shares in accordance with the terms of this Agreement or that may be necessary to enable the legal and record ownership of the Shares at the Closing to be held by the Buyers, nominee, DTC, and to transfer beneficial ownership of the Global Depositary Shares set forth under each Buyer's name on Exhibit A at the Closing or which evidence to each Buyer's satisfaction the authority of any person executing this Agreement or any of the documents referred to herein, on behalf of the Sellers. (b) The Buyers shall deliver to the Sellers the Purchase Price by wire transfer of immediately available funds to an account or accounts of the Sellers as specified by the Sellers in writing. 3. REPRESENTATIONS AND WARRANTIES OF THE SELLERS Each Seller represents and warrants to the Buyers as follows: 3.1 ORGANIZATION AND GOOD STANDING Each of CCP and CIP is a limited partnership duly organized, validly existing, and in good standing under the laws of California, with full power and authority to conduct its business as it is now being conducted, to own or use the properties and assets that it purports to own or use, and to perform all its obligations under this Agreement. CCPL is an exempted company duly organized, validly existing, and in good standing under the laws of the Cayman Islands, with full power and authority to conduct its business as it is now being conducted, to own or use the properties and assets that it purports to own or use, and to perform all its obligations under this Agreement. 3.2 AUTHORITY; NO CONFLICT (a) This Agreement constitutes the legal, valid, and binding obligation of each Seller, enforceable against each Seller in accordance with its terms. Each Seller has the power and authority to execute, deliver and perform its obligations under this Agreement. (b) Neither the execution and delivery of this Agreement nor the consummation or performance of any of the Transactions shall, directly or indirectly (with or without notice or lapse of time): (i) contravene, conflict with, or result in a violation of (A) any provision of the Organizational Documents of any Seller, or to the Knowledge of such Seller, the Company, or (B) any resolution adopted by the manager, the board of managers (or other similar governing body), or the members of any Seller, or to the Knowledge of such Seller; - 6 - (ii} contravene, conflict with, or result in a violation of, or give any Person the right to challenge any of the Transactions; (iii) contravene, conflict with, or result in a violation of any of the terms or requirements of, or give any Governmental Body the right to revoke, withdraw, suspend, cancel, terminate, or modify, any Governmental Authorization that is held by any Seller; or (iv) contravene, conflict with, or result in a violation or Breach of any provision of, or give any Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contract of any Seller that could reasonably be expected to materially adversely affect the ability of any Seller to consummate any of the Transactions. 3.3 TITLE TO THE SHARES (a) Each Seller's nominee, DTC, is the legal and record holder of the Shares, and each Seller is the beneficial owner of the Global Depositary Shares set forth opposite such Seller's name on Exhibit B hereto, free and clear of all Encumbrances. Upon transfer to the Buyers by each Seller of such Shares at the Closing, the Buyers' nominee, DTC, shall be the legal and record holder of the Shares and each Buyer shall have beneficial ownership of the Global Depositary Shares set forth under its name on Exhibit A, free and clear of all Encumbrances. (b) There are no Applicable Contracts of the Seller, or to each Seller's Knowledge, any other Contracts relating to the sale, transfer, voting or ownership of the Shares or otherwise relating to the Shares, other than any Contracts that arise solely from the Shares being in the form of Global Depositary Shares. 3.4 LEGAL PROCEEDINGS; ORDERS There is no Proceeding pending, or to the Knowledge of any Seller, Threatened, that relates to the Shares or that challenges, or that may have the effect of preventing, delaying, making illegal, or otherwise interfering with, any of the Transactions. 3.5 DISCLOSURE (a) No fact has come to the Knowledge of any Seller that has caused such Seller to believe that: (i) the Company has not filed on a timely basis with the SEC and each other Governmental Body all Securities Reports; (ii) as of their respective dates, any Securities Report did not comply in any material respect with the requirements (including Governmental Authorizations) of the Exchange Act and the Securities Act or other Legal Requirements that are or were applicable to such Securities Report; and - 7 - (iii) any Securities Report contained when filed or contains any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances under which they were made, not misleading. 3.6 BROKERS OR FINDERS Other than fees or commissions that the Sellers may agree to pay to RBC, which fees and commissions shall be paid by the Sellers, no Seller nor any officer or agent of any Seller has incurred no obligation or liability, contingent or otherwise, for brokerage or finders fees or agents, commissions or other similar payment in connection with this Agreement. 3.7 TAX MATTERS During the taxable year in which the Closing occurs, no Seller to that Seller's Knowledge has been a "U.S. shareholder" within the meaning of Section 951(b) of the Internal Revenue Code of 1986, as amended (the "CODE") with respect to the Company (a "U.S. SHAREHOLDER"). The information in Exhibit C sets forth and accurately reflects, on a fully diluted basis, the number of Company securities held by each Seller. 4. REPRESENTATIONS AND WARRANTIES OF THE BUYERS Each Buyer represents and warrants to the Sellers as follows: 4.1 ORGANIZATION AND GOOD STANDING GHI is a limited liability company duly organized, validly existing, and in good standing under the laws of the State of Massachusetts. GHAP is a limited partnership duly organized, validly existing, and in good standing under the laws of the State of Delaware. GHEP is a limited partnership duly organized, validly existing, and in good standing under the laws of the State of Delaware. 4.2 AUTHORITY; NO CONFLICT (a) This Agreement constitutes the legal, valid, and binding obligation of each Buyer, enforceable against each Buyer in accordance with its terms. Each Buyer has the power and authority to execute and deliver this Agreement and to perform its obligations under this Agreement. (b) Neither the execution and delivery of this Agreement nor the consummation or performance of any of the Transactions shall, directly or indirectly (with or without notice or lapse of time): (i) contravene, conflict with, or result in a violation of (A) any provision of the Organizational Documents of any Buyer, or (B) any resolution adopted by the manager, the board of managers (or other similar governing body), or the members of any Buyer; - 8 - (ii) contravene, conflict with, or result in a violation of, or give any Person the right to challenge any of the Transactions; (iii) contravene, conflict with, or result in a violation of any of the terms or requirements of, or give any Governmental Body the right to revoke, withdraw, suspend, cancel, terminate, or modify, any Governmental Authorization that is held by any Buyer; or (iv) contravene, conflict with, or result in a violation or Breach of any provision of, or give any Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contract of any Buyer that, could reasonably be expected to materially adversely affect the ability of any Buyer to consummate any of the Transactions. 4.3 INVESTMENT REPRESENTATIONS (a) Each Buyer is acquiring the Shares solely for its own account, for investment purposes only, and not with a view to or an intent to sell, or to offer for resale in connection with any unregistered distribution of all or any portion of the Shares within the meaning of the Securities Act or applicable state securities laws. (b) Each Buyer is either an "accredited investor" as defined in Rule 501 subparagraphs (1), (2), (3) or (7) of Rule 501(a) promulgated under the Securities Act or "qualified institutional buyer" as defined in Rule 144A promulgated under the Securities Act, or both. Each Buyer is not a registered broker-dealer under Section 15 of the Exchange Act. (c) Each Buyer represents, warrants and acknowledges that the Shares are being offered and sold to it in reliance upon the exemption provided by Section 4(1) of the Securities Act and similar exemptions from the registration requirements of state securities laws and that the Sellers are relying upon the truth and accuracy of, and each Buyer's compliance with, the representations, warranties, agreements, acknowledgements and understandings of each Buyer set forth in this Section 4.3 in order to determine the availability of such exemptions and the eligibility of each Buyer to acquire the Shares. (d) Each Buyer is not purchasing the Shares as a result of any advertisement, article, notice or other communication regarding the Shares published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or any other general solicitation or general advertisement. (e) Each Buyer represents and warrants that, except as otherwise disclosed to the Company in writing, from November 2, 2005 (the "DISCUSSION TIME") up through the execution of this Agreement, no Buyer, directly or indirectly, executed any Short Sales or engaged in any other trading in the Ordinary Shares, the Global Depositary Shares or any derivative security thereof. (f) Each Buyer understands that except as otherwise provided in this Agreement, the Shares have not been and are not being registered under the Securities Act or any applicable state securities laws and each Buyer may - 9 - have to bear the risk of owning the Shares for an indefinite period of time because the Shares may not be transferred unless: (i) the resale of the Shares is registered pursuant to an effective registration statement under the Securities Act; or (ii) the Shares to be sold or transferred may be sold or transferred pursuant to Section 4(1) of the Securities Act or other exemption from such registration. (g) Until such Shares are registered under the Securities Act, each Buyer acknowledges that any certificates for the Shares issued to any Buyer or any Buyer's designated nominee on the transfer from the Sellers will, at the request of any Seller or the Company, bear an appropriate restrictive U.S. securities law legend. (h) The office or offices of each Buyer in which its investment decision was made is located at the address or addresses of each Buyer set forth in Section 8.4. 4.4 CERTAIN PROCEEDINGS There is no pending Proceeding that has been commenced against any Buyer and that challenges, or may have the effect of preventing, delaying, making illegal, or otherwise interfering with, any of the Transactions. To each Buyer's Knowledge, no such Proceeding has been Threatened. 4.5 BROKERS OR FINDERS Other than fees or commissions that the Buyers may agree to pay to RBC, no Buyer nor any officer or agent of any Buyer has incurred any obligation or liability, contingent or otherwise, for brokerage or finders' fees or agents' commissions or other similar payment in connection with this Agreement. 5. COVENANTS 5.1 VOTING (a) For so long as the Buyers and their respective affiliates collectively own at least 5% of the outstanding Voting Shares that are owned or held of record by the Buyers and their respective affiliates, or as to which the Buyers and their respective affiliates have voting power or in respect of which the Buyers and their respective affiliates can direct, restrict or control any such voting power: (i) No Seller shall enter into or exercise its rights under any voting arrangement, whether by proxy, voting agreement, voting trust, power-of-attorney or otherwise, with respect to any Voting Shares that are owned or held of record by such Seller, or as to which such Seller has voting power or in respect of which the Seller can direct, restrict or control any such voting power (the "REMAINING SHARES") or take any other action, that would in any way restrict, limit or interfere with the performance of its obligations hereunder or the Transactions; provided, that nothing in this Section 5.1(a) shall restrict the ability of any Seller to Transfer or consent to Transfer any Remaining Shares or any interest therein to a third party that is not an affiliate of such Seller or the Company or to any affiliate that agrees in writing to be bound by - 10 - the terms of this Agreement; (ii) If at any time any Buyer notifies any Seller of its desire and intention to designate a single director on behalf of all of the Buyers (the "GREAT HILL DIRECTOR") in advance of any meeting of shareholders of the Company called to vote upon for the election of directors, and at all adjournments thereof and in all other circumstances upon which a vote, consent or other approval (including by written consent) is sought with respect to the election of directors or that is necessary to elect directors of the Company, such Seller shall, including by executing a written consent, vote (or cause to be voted) all of its Remaining Shares held at the time such consent is sought or meeting is held to elect the Great Hill Director (which consent, vote or approval, in the case of any Global Depositary Shares and other depositary shares owned by such Seller at such time, shall be delivered in accordance with the terms of the applicable depositary agreement); (iii) If at any time any Buyer notifies any Seller of its desire and intention to remove or replace a Great Hill Director or to fill a vacancy caused by the resignation of a Great Hill Director, in accordance with the terms of the depositary agreement, such Seller shall cooperate in causing the requested removal and/or replacement by voting in the appropriate manner in accordance with the terms of this Section 5.1. (iv) Subject to the terms and conditions of this Section 5.1(a) and in accordance with the terms of the depositary agreement, each Seller hereby irrevocably grants to, and appoints Michael A. Kumin, and any other Person who shall hereafter be designated by the Buyers, as such Seller's proxy and attorney in its name (with full power of substitution), for and in the name, place and stead of such Seller, to vote all of its Remaining Shares held at the time such consent is sought or meeting is held, or grant a consent or approval in respect of such Remaining Shares, at any meeting of the shareholders of the Company or at any adjournment thereof or in any other circumstances upon which their vote, consent or other approval is sought to elect a Great Hill Director as contemplated in Section 5.1(a)(ii), but not with respect to any vote, consent or approval of any other matter that may be concurrently presented for approval. Each Seller has caused each proxy and attorney previously given in respect of all Remaining Shares to be revoked. (v) SUBJECT TO THE TERMS AND CONDITIONS OF THIS SECTION 5.1(a), EACH SELLER HEREBY AFFIRMS THAT THE PROXY AND ATTORNEY SET FORTH in THIS SECTION 5.1 IS COUPLED WITH AN INTEREST AND IS IRREVOCABLE. Each Seller hereby ratifies and confirms all that such irrevocable proxy and attorney may lawfully do or cause to be done by virtue hereof. Subject to the terms and conditions of this Section 5.1(a), such irrevocable proxy and attorney is executed and intended to be irrevocable. (vi) The covenants and obligations under this Section 5.1(a) shall terminate after a Great Hill Director (together with any replacements therefore appointed in accordance with Section 5.1(a)(iii)) has served a single, full term of office of three years, in accordance - 11 - with the Company's articles and memorandum of association, as in effect on the date hereof. (b) VOTING OF THE SHARES FOLLOWING CLOSING (i) In order to secure the interest of the Buyers in the Shares under this Agreement, with effect from Closing, each Seller irrevocably appoints Great Hill Partners, LLC to be its attorney in its name and on its behalf to exercise all or any of the voting and other rights, powers and privileges attached to the Global Depositary Shares set forth opposite such Seller's name on Exhibit B hereto. (ii) Each Seller undertakes following Closing not to exercise all or any of the voting and other rights, powers and privileges attached to the Global Depositary Shares set forth opposite such Seller's name on Exhibit B hereto. (c) COOPERATION IN REGULATORY COMPLIANCE For so long as the covenants in Sections 5.1(a) and 5.1(b) are in effect, the parties agree to furnish promptly to each other such information as may be reasonably required for the other to prepare and file timely, complete and accurate statements on Schedule 13D and any amendments thereto, in each case, regarding their beneficial ownership of Ordinary Shares, to the extent required under Section 13 of the Exchange Act. 5.2 MARKET ABUSE DIRECTIVE COMPLIANCE Each party hereto shall, and shall cause its affiliates to, comply with the requirements in respect of the Transactions (including any notification requirements) of the Market Abuse Directive 2003/6/EC effective in the European Union at the date of this Agreement and any statute, regulation, code, statutory provision or subordinate legislation and any other legislation which (either with or without modification) enacts, implements or consolidates such directive in any member state of the European Union and any other directive, regulation, code or legislation, issued pursuant to the Financial Services Action Plan of the European Union. 5.3 TAXES (a) The Sellers shall reimburse the Buyers for any applicable U.S. or U.K. stamp duty or transfer Tax payable by each Buyer in respect of the Shares, and to the extent any such Taxes are required to be paid, the parties shall reasonably cooperate with each other to minimize the amount of such Taxes owed. The Buyers shall be responsible for the preparation and filing of any returns, if any, related to any stamp duty or transfer Tax. (b) If (i) any Seller has been a U.S. Shareholder at any time during the taxable year of the Company that includes the Closing, (ii) the Company was, prior to the Closing, a "controlled foreign corporation" within the meaning of Section 957 of the Code, for an uninterrupted - 12 - period of 30 days or more during the taxable year of the Company that includes the Closing, and (iii) Buyer (or its direct or indirect owners) is required to include any amounts in income for U.S. tax purposes under the "controlled foreign corporation" provisions of Section 951 et seq. of the Code with respect to the taxable year of the Company that includes the Closing for all or any part of such taxable year prior to the Closing, then each Seller that has been such a U.S. Shareholder during that year shall promptly reimburse Buyer for the product of (x) 40%, (y) the amount of such income attributable to the Shares transferred pursuant to this Agreement by such Seller to the Buyer and (z) the percentage obtained by dividing the amount of months prior to the Closing that the Company was a controlled foreign corporation during the year, over the amount of months that the Company was a controlled foreign corporation during such year. The parties agree to cooperate following the Closing to determine the status of the Company as a "controlled foreign corporation" within the meaning of Section 957 of the Code during the taxable year of the Company that includes the Closing within 45 days after the end of such taxable year. (c) If any Seller becomes a U.S. Shareholder after the Closing, such Seller shall provide prompt written notice after such acquisition. Such notification shall be deemed satisfied by the timely filing of a Schedule 13G or Schedule 13D by such Seller. 6. CONDITIONS PRECEDENT TO THE BUYERS' OBLIGATION TO CLOSE Each Buyer's obligation to purchase the Shares and to take the other actions required to be taken by each Buyer at the Closing is subject to the satisfaction, at or prior to the Closing, of each of the following conditions (any of which may be waived by each Buyer, in whole or in part): 6.1 ACCURACY OF REPRESENTATIONS (a) Each Seller's representations and warranties in this Agreement (considered collectively), and each of these representations and warranties (considered individually), were accurate in all material respects as of the date of this Agreement, and are accurate in all material respects as of the Closing Date as if made on the Closing Date; provided, that each representation and warranty that is qualified as to materiality were accurate in all respects as of the date of this Agreement, and are accurate in all respects as of the Closing Date as if made on the Closing Date. 6.2 THE SELLERS' PERFORMANCE (a) All of the covenants and obligations that each Seller is required to perform or to comply with pursuant to this Agreement at or prior to the Closing (considered collectively), and each of these covenants and obligations (considered individually), have been duly performed and complied with in all material respects. (b) Each document required to be delivered pursuant to Section 2.4(a) has been delivered. 6.3 ADDITIONAL PURCHASE - 13 - (a) The Buyers shall receive executed share purchase agreements or other similar agreements evidencing the acquisition of Ordinary Shares or Global Depositary Shares (as applicable) held by the Other Sellers, in each case, in a form reasonably satisfactory to the Buyers (the "ADDITIONAL ACQUISITION AGREEMENTS"); and (b) The Additional Purchases will be consummated concurrently with the Transactions in accordance with the terms of the Additional Acquisition Agreements. 7. CONDITIONS PRECEDENT TO THE SELLERS' OBLIGATION TO CLOSE Each Seller's obligation to sell the Shares and to take the other actions required to be taken by such Seller at the Closing is subject to the satisfaction, at or prior to the Closing, of each of the following conditions (any of which may be waived by such Seller, in whole or in part): 7.1 ACCURACY OF REPRESENTATIONS Each Buyer's representations and warranties in this Agreement (considered collectively), and each of these representations and warranties (considered individually), was accurate in all material respects as of the date of this Agreement and is accurate in all material respects as of the Closing Date as if made on the Closing Date; provided, that each representation and warranty that is qualified as to materiality was accurate in all respects as of the date of this Agreement, and is accurate in all respects as of the Closing Date as if made on the Closing Date. 7.2 THE BUYERS' PERFORMANCE (a) All of the covenants and obligations that each Buyer is required to perform or to comply with pursuant to this Agreement at or prior to the Closing (considered collectively), and each of these covenants and obligations (considered individually), have been performed and complied with in all material respects. (b) Each Buyer has made the cash payment required to be made by such Buyer pursuant to Sections 2.4(b). (c) Each Buyer has delivered all documents required by the depositary of the Shares to permit such Buyer to receive the Shares, if any. 8. GENERAL PROVISIONS 8.1 EXPENSES Each party to this Agreement shall bear its respective expenses incurred in connection with the preparation, execution, and performance of this Agreement and the Transactions, including all fees and expenses of agents, representatives, counsel, and accountants. For the avoidance of doubt, the parties agree that none of the Sellers nor the Buyers shall be responsible for the fees and expenses payable to Ernst & Young, LLP in connection with the due diligence investigation relating to this Agreement and the Transactions. - 14 - 8.2 ACCESS TO INFORMATION (a) Each Seller hereby acknowledges that (i) it knows that each Buyer may have material, non-public information regarding the Company and its condition (financial and otherwise), results of operations, businesses, properties, plans (including plans regarding potential purchases of the Shares, which may be for different amounts or types of consideration) and prospects (collectively, "INFORMATION"); (ii) it has been offered access to the Information, and has reviewed such Information as it deems appropriate, and that such Information might be material to such Seller's decision to sell the Shares or otherwise materially adverse to such Seller's interests. Accordingly, such Seller acknowledges and agrees that no Buyer nor any other Person shall have any obligation to disclose to such Seller any of such Information. (b) Each Seller represents and warrants that it has adequate information to make an informed decision regarding the sale of the Shares and has independently and without reliance upon any Buyer made its own analysis and decision to sell the Shares. Each Seller hereby waives and releases, to the fullest extent permitted by law, any and all claims and causes of action directly or indirectly based upon relating to or arising out of nondisclosure of the Information that it has or may have against each Buyer, its affiliates (other than the Company) and controlling persons, and the Representatives of each of them. (c) Each Seller represents that it is an "accredited investor" as defined in Rule 501(a) promulgated under the Securities Act. (d) The sale of the Shares by each Seller and the purchase by each Buyer hereunder (A) were privately negotiated within an independent transaction and (B) do not violate any rules or regulations applicable, in the case of such Seller, to such Seller, and, in the case of such Buyer, applicable to such Buyer. 8.3 PUBLIC ANNOUNCEMENTS Subject to applicable Legal Requirements, any public announcement or similar publicity with respect to this Agreement or the Transactions shall be issued, if at all, at such time and in such manner as the parties mutually determine. 8.4 NOTICES All notices, consents, waivers, and other communications under this Agreement must be in writing and shall be deemed to have been duly given when (a) delivered by hand (with written confirmation of receipt), (b) sent by telecopier (with written confirmation of receipt), provided that a copy is mailed by registered mail, return receipt requested, or (c) when received by the addressee, if sent by a nationally recognized overnight delivery service (receipt requested), in each case to the appropriate addresses and telecopier numbers set forth below (or to such other addresses and telecopier numbers as a party may designate by notice to the other parties): - 15 - Any Seller: Criterion Capital Management LLC 435 Pacific Avenue San Francisco, California 94133 Attention: Daniel Beckham with a copy (which shall not constitute notice) to: Shartsis Friese LLP One Maritime Plaza, 18th Floor, San Francisco, California 94111 Attention: P. Rupert Russell Facsimile No.: (415) 421-2922 Any Buyer: Great Hill Partners, LLC One Liberty Square Boston, Massachusetts 02109 Attention: Michael A. Kumin Facsimile No.: (617) 790-9401 with a copy (which shall not constitute notice) to: Proskauer Rose LLP 2049 Century Park East, Suite 3200 Los Angeles, California 90067 Attention: Michael A. Woronoff Facsimile No.: (310) 557-2193 8.5 JURISDICTION; SERVICE OF PROCESS Subject to Section 8.6, the parties hereto irrevocably submit, in any legal action or proceeding relating to this Agreement, to the jurisdiction of the courts of the United States or the State of New York sitting in the Borough of Manhattan, in The City of New York and consent that any such action or proceeding may be brought in such courts and waive any objection that they may now or hereafter have to the venue of such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient forum. Process in any action or proceeding referred to in the preceding sentence may be served on any party anywhere in the world. 8.6 ARBITRATION Any dispute, claim or controversy arising out of or relating to this Agreement or the Breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be determined by arbitration in New York, New York), before a mutually-agreed upon - 16 - arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. The arbitrator shall not have any power to alter, amend, modify or change any of the terms of this Agreement nor to grant any remedy which is either prohibited by the terms of this Agreement, or not available in a court of law. The arbitrator shall issue a written reasoned award and decision that shall be consistent with and supported by the facts and the law within 90 days from the date the arbitration proceedings are initiated. Judgment on the award of the arbitrator may be entered in any court having jurisdiction thereof. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The costs of the arbitration, including any administration fee, the arbitrator's fee, and costs for the use of facilities during the hearings, shall be borne by the non-prevailing party. Attorneys' fees may be awarded to the prevailing or most prevailing party at the discretion of the arbitrator. 8.7 FURTHER ASSURANCES The parties agree (a) to execute and deliver to each other such other documents, and (b) to do such other acts and things, all as the other party may reasonably request for the purpose of carrying out the intent of this Agreement and the documents referred to in this Agreement. 8.8 WAIVER The rights and remedies of the parties to this Agreement are cumulative and not alternative. Neither the failure nor any delay by any party in exercising any right, power, or privilege under this Agreement or the documents referred to in this Agreement shall operate as a waiver of such right, power, or privilege, and no single or partial exercise of any such right, power, or privilege shall preclude any other or further exercise of such right, power, or privilege or the exercise of any other right, power, or privilege. To the maximum extent permitted by applicable law (a) no claim or right arising out of this Agreement or the documents referred to in this Agreement can be discharged by one party, in whole or in part, by a waiver or renunciation of the claim or right unless in writing signed by the other party; (b) no waiver that may be given by a party shall be applicable except in the specific instance for which it is given; and (c) no notice to or demand on one party shall be deemed to be a waiver of any obligation of such party or of the right of the party giving such notice or demand to take further action without notice or demand as provided in this Agreement or the documents referred to in this Agreement. 8.9 ENTIRE AGREEMENT AND MODIFICATION This Agreement supersedes all prior agreements between the parties with respect to its subject matter and constitutes (along with the documents referred to in this Agreement) a complete and exclusive statement of the terms of the agreement between the parties with respect to its subject matter. This Agreement may not be amended except by a written agreement executed by the party to be charged with the amendment. - 17 - 8.10 ASSIGNMENTS, SUCCESSORS, AND NO THIRD-PARTY RIGHTS None of the parties may assign any of its rights under this Agreement without the prior consent of the other parties, which shall not be unreasonably withheld, except that any Buyer may assign any of its rights under this Agreement to any affiliate of any Buyer. Subject to the preceding sentence, this Agreement shall apply to, be binding in all respects upon, and inure to the benefit of the successors and permitted assigns of the parties. Nothing expressed or referred to in this Agreement shall be construed to give any Person other than the parties to this Agreement, RBC (to the extent set forth in Section 8.14) any legal or equitable right, remedy, or claim under or with respect to this Agreement or any provision of this Agreement. This Agreement and all of its provisions and conditions are for the sole and exclusive benefit of the parties to this Agreement and their successors and assigns. 8.11 SEVERABILITY If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement shall remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree shall remain in full force and effect to the extent not held invalid or unenforceable. 8.12 SECTION HEADINGS, CONSTRUCTION The headings of sections in this Agreement are provided for convenience only and shall not affect its construction or interpretation. All references to "Section" or "Sections" refer to the corresponding section or sections of this Agreement. All words used in this Agreement shall be construed to be of such gender or number as the circumstances require. Unless otherwise expressly provided, the word "including" does not limit the preceding words or terms. Neither this Agreement nor any uncertainty or ambiguity herein shall be construed or resolved against any party, whether under any rule of construction or otherwise. No party to this Agreement shall be considered the draftsman. 8.13 GOVERNING LAW This Agreement and any claims related to the subject matter hereof shall be governed by and construed in accordance with the laws of the State of New York; provided, that the provisions of Section 5.1 shall be governed by the laws of England and Wales. 8.14 ACKNOWLEDGMENT REGARDING RBC Each of the parties hereto acknowledges that: (i) RBC is not an "underwriter" as such term is defined in Section 2(a)(11) of the Securities Act, and (ii) RBC is not acting as agent for any Buyer or any Seller in connection with the offering of the Shares by the Sellers. Each party hereto further acknowledges that the provisions of Section 4.3 and this Section 8.14 are for the benefit of, and may be enforced by, RBC. - 18 - 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) - 19 - 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 GP II, LLC, its General Partner -------------------------------------------- By: Its: GREAT HILL AFFILIATE PARTNERS II LIMITED PARTNERSHIP -------------------------------------------- By: GREAT HILL PARTNERS GP II, LLC, its General Partner -------------------------------------------- By: Its: - 20 - THE SELLERS: CRITERION CAPITAL PARTNERS, L.P. By: CRITERION CAPITAL MANAGEMENT, LLC, its General Partner -------------------------------------------- By: Its: CRITERION INSTITUTIONAL PARTNERS, L.P. By: CRITERION CAPITAL MANAGEMENT, LLC, its General Partner -------------------------------------------- By: Its: CRITERION CAPITAL PARTNERS LTD. By: CRITERION CAPITAL MANAGEMENT, LLC, its Attorney in fact -------------------------------------------- By: Its: - 21 - EXHIBIT A ACCOUNTS For Great Hill Investors, LLC: DTC #0954 / Mellon For Great Hill Investors, LLC/1084479850 Institution Bank Number: 95548 Agent Bank Number: 37383 Number of Global Depositary Shares Transferred: 17,216 For Great Hill Equity Partners II, LP: DTC #0954 / Mellon For Great Hill Equity Partners II, LP/1084479840 Institution Bank Number: 95548 Agent Bank Number: 37383 Number of Global Depositary Shares Transferred: 1,428,366 For Great Hill Affiliate Partners II, LP: DTC #0954 / Mellon For Great Hill Affiliate Partners II, LP/1084479860 Institution Bank Number: 95548 Agent Bank Number: 37383 Number of Global Depositary Shares Transferred: 54,418 - 22 - EXHIBIT B OWNERSHIP OF SHARES CCP 107,984 CIP 403,675 CCPL 988,341 Total 1,500,000 - 23 -
EXHIBIT C Tax Matters - Ownership of Capital of Company Description AcctNo AcctName AcctType Share/Face Sold to GH Remainder SPARK NETWORKS PLC SPONSORED GDR REG S (846513109) 118-01093 Criterion LP. 2-LONG 228,802 107,984 120,818 SPARK NETWORKS PLC SPONSORED GDR REG S (846513109) 118-01095 Criterion Instit 2-LONG 947,088 403,675 543,413 SPARK NETWORKS PLC SPONSORED GDR REG S (846513109) 313-00543 Criterion Off 2-LONG 2,168,447 988,341 1,180,106 3,344,337 1,500,000 1,844,337
- 25 - EX-99 6 exh-5.txt (EXHIBIT 5) EXHIBIT 5 To the knowledge of Joe Y. Shapira and based on documents publicly filed by Great Hill, the following is information pertaining to the name, address and principal occupation/business of Great Hill: Great Hill Investors, LLC, a Massachusetts limited liability company ("GHI"); (ii) Great Hill Equity Partners II Limited Partnership, a Delaware limited partnership ("GHEP"); (iii) Great Hill Affiliate Partners II, L.P., a Delaware limited partnership ("GHAP," and together GHI and GHEP, the "Funds"); (iv) Great Hill Partners GP II, LLC, a Massachusetts limited liability company ("GHP," and together with the Funds, the "Great Hill Entities"); (v) Stephen F. Gormley ("Gormley"); (vi) Christopher S. Gaffney ("Gaffney"); and John G. Hayes ("Hayes", together with Gormley and Gaffney, the "Controlling Persons"). Each Controlling Person is a citizen of the United States. Each of GHAP, GHI and GHEP is an investment fund, principally engaged in the business of making private equity and other investments. GHP is principally engaged in the business of acting as general partner or other authorized person of, investment funds engaged in private equity and other investments. GHP is the sole general partner of GHEP and GHAP. The Controlling Persons are the managers of GHP and GHI and the principal occupation of the Controlling Person is to act as the manager of GHI and GHP. The principal business office of Great Hill, GHP and the Controlling Persons is c/o Great Hill Partners, One Liberty Square, Boston, Massachusetts 02109. To the knowledge of Mr. Shapira and based on documents filed by the other Group Members, Carmel is a citizen of Israel, his principal occupation is private investor. The business address of Carmel is 269 South Beverly Drive, #1031, Beverly Hills, CA 90212. To the knowledge of Mr. Shapira and based on documents filed by the other Group Members, the name, address and principal business or occupation of the officers, directors, partners and/or controlling person(s) of the Criterion Entities, in each case, as applicable, are as follows: Criterion Capital Partners, L.P. ("CCP") is a California limited partnership whose principal business is that of a private investment partnership. Criterion Institutional Partners, L.P. ("CIP") is a California limited partnership, whose principal business is that of a private investment partnership. Criterion Capital Partners, Ltd. ("CCPL") is a Cayman Islands exempted company whose principal business is that of a private investment partnership. Criterion Capital Management, LLC ("CCM") is a California limited liability company whose principal business is that of an investment adviser. CCM is the investment adviser of CCPL, CCP and CIP. The sole manager and controlling member of CCM is Christopher H. Lord ("Lord"), whose principal occupation is serving as the sole manager and controlling person of CCM. The business address of CCP, CIP, CCM and Lord is 435 Pacific Avenue, 5th Floor, San Francisco, CA 94133. The business address of CCPL is c/o Walkers SPV Limited, P.O. Box 908 GT, Walker House, George Town, Grand Cayman, Cayman Islands, BWI. Lord is a citizen of the United States of America. To the knowledge of Mr. Shapira and based on documents filed by the other Group Members, the name, address and principal business or occupation of the officers, directors, partners and/or controlling person(s) of the Tiger Global Entities, in each case, as applicable, are as follows: Tiger Global II, L.P. ("TGII") is a Delaware limited partnership whose principal business is that of a private investment fund. Tiger Global, L.P. ("TGLP") is a Delaware limited partnership, whose principal business is that of a private investment fund. Tiger Global, Ltd. ("TGLTD") is a Cayman Islands exempted company whose principal business is that of a private investment fund. Tiger Global Management, L.L.C. ("TGM"), is a Delaware limited liability company whose principal business is serving as the management company to TGLP and TGII and the investment manager to TGLTD. Tiger Global Performance, L.L.C. ("TGP") is a Delaware limited liability company whose principal business is that of an investment manager. TGP is the sole general partner of TGLP and TGII. Charles P. Coleman III ("Coleman") is the sole managing member of TGM, TGP and TGII. Coleman's principal occupation is serving as the sole managing member of TGM, TGP and TGII. The business address of TGII, TGLP, TGM and TGP is 101 Park Avenue, 48th Floor, New York, NY 10178. The business address of TGLTD is c/o Citco Fund Services (Cayman Islands) Limited, Regatta Office Park, West Bay Road, P.O. Box 31106 SMB, Grand Cayman, Cayman Islands, BWI. Coleman is a citizen of the United States of America. -----END PRIVACY-ENHANCED MESSAGE-----