SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
RULE 13d-2(a)
(Amendment No. __)
Spark Networks plc
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(Name of Issuer)
Ordinary Shares, par value 0.01 pound per share
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(Title of Class of Securities)
G8305M109
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(CUSIP Number)
Charles P. Coleman III
c/o Tiger Global Management, LLC
101 Park Avenue, 48th Floor
New York, New York 10178
(212) 984-2500
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
December 1, 2005
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(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 Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the
following box [_].
CUSIP No. G8305M109
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1. NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Tiger Global Management, LLC(1)
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [_]
(b) [X]
3. SEC USE ONLY
4. SOURCE OF FUNDS
WC
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [_]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON
7. SOLE VOTING POWER
0
8. SHARED VOTING POWER
4,631,085(1)
9. SOLE DISPOSITIVE POWER
0
10. SHARED DISPOSITIVE POWER
4,631,085(1)
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,631,085(1)
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [X] (2)
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
15.3%
14. TYPE OF REPORTING PERSON
OO
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(1) Tiger Global Management, LLC specifically disclaims beneficial ownership in
the Shares reported herein except to the extent of its pecuniary interest
therein.
(2) As described in Items 4 and 5 below, Tiger Global Management, LLC may be
deemed to be part of a group with the Great Hill Entities (as defined
below) pursuant to the terms of the Share Purchase Agreement (as defined
below). Tiger Global Management, LLC does not affirm to be part of a group
and expressly disclaims beneficial ownership of the 6,000,000 Ordinary
Shares (as defined herein), in the aggregate, beneficially owned by the
Great Hill Entities (including global depositary shares representing
Ordinary Shares). Accordingly, such Ordinary Shares are not included in the
amounts specified by Tiger Global Management, LLC above.
CUSIP No. G8305M109
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1. NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Charles P. Coleman III (3)
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [_]
(b) [X]
3. SEC USE ONLY
4. SOURCE OF FUNDS
WC
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [_]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON
7. SOLE VOTING POWER
0
8. SHARED VOTING POWER
4,631,085 (3)
9. SOLE DISPOSITIVE POWER
0
10. SHARED DISPOSITIVE POWER
4,631,085 (3)
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,631,085 (3)
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [X] (4)
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
15.3%
14. TYPE OF REPORTING PERSON
IN
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(3) Charles P. Coleman III specifically disclaims beneficial ownership in the
Shares reported herein except to the extent of his pecuniary interest
therein.
(4) As described in Items 4 and 5 below, Charles P. Coleman III may be deemed
to be part of a group with the Great Hill Entities (as defined below)
pursuant to the terms of the Share Purchase Agreement (as defined below).
Charles P. Coleman III does not affirm to be part of a group and expressly
disclaims beneficial ownership of the 6,000,000 Ordinary Shares (as defined
herein), in the aggregate, beneficially owned by the Great Hill Entities
(including global depositary shares representing Ordinary Shares).
Accordingly, such Ordinary Shares are not included in the amounts specified
by Mr. Coleman above.
CUSIP No. G8305M109
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1. NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Tiger Global, L.P. (5)
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [_]
(b) [X]
3. SEC USE ONLY
4. SOURCE OF FUNDS
WC
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [_]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON
7. SOLE VOTING POWER
0
8. SHARED VOTING POWER
3,649,746 (5)
9. SOLE DISPOSITIVE POWER
0
10. SHARED DISPOSITIVE POWER
3,649,746 (5)
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,649,746 (5)
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [X] (6)
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
12.1%
14. TYPE OF REPORTING PERSON
PN
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(5) Tiger Global, L.P. specifically disclaims beneficial ownership in the
Shares reported herein except to the extent of its pecuniary interest
therein.
(6) As described in Items 4 and 5 below, Tiger Global, L.P. may be deemed to be
part of a group with the Great Hill Entities (as defined below) pursuant to
the terms of the Share Purchase Agreement (as defined below). Tiger Global,
L.P. does not affirm to be part of a group and expressly disclaims
beneficial ownership of the 6,000,000 Ordinary Shares (as defined herein),
in the aggregate, beneficially owned by the Great Hill Entities (including
global depositary shares representing Ordinary Shares). Accordingly, such
Ordinary Shares are not included in the amounts specified by Tiger Global,
L.P. above.
CUSIP No. G8305M109
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1. NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Tiger Global II, L.P. (7)
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [_]
(b) [X]
3. SEC USE ONLY
4. SOURCE OF FUNDS*
WC
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [_]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON
7. SOLE VOTING POWER
0
8. SHARED VOTING POWER
88,763 (7)
9. SOLE DISPOSITIVE POWER
0
10. SHARED DISPOSITIVE POWER
88,763 (7)
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
88,763 (7)
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [X] (8)
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.3%
14. TYPE OF REPORTING PERSON
PN
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(7) Tiger Global II, L.P. specifically disclaims beneficial ownership in the
Shares reported herein except to the extent of its pecuniary interest
therein.
(8) As described in Items 4 and 5 below, Tiger Global II, L.P. may be deemed to
be part of a group with the Great Hill Entities (as defined below) pursuant
to the terms of the Share Purchase Agreement (as defined below). Tiger
Global II, L.P. does not affirm to be part of a group and expressly
disclaims beneficial ownership of the 6,000,000 Ordinary Shares (as defined
herein), in the aggregate, beneficially owned by the Great Hill Entities
(including global depositary shares representing Ordinary Shares).
Accordingly, such Ordinary Shares are not included in the amounts specified
by Tiger Global II, L.P. above.
CUSIP No. G8305M109
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1. NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Tiger Global, Ltd. (9)
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [_]
(b) [X]
3. SEC USE ONLY
4. SOURCE OF FUNDS
WC
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [_]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Cayman Islands
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON
7. SOLE VOTING POWER
0
8. SHARED VOTING POWER
892,576 (9)
9. SOLE DISPOSITIVE POWER
0
10. SHARED DISPOSITIVE POWER
892,576 (9)
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
892,576 (9)
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [X] (10)
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
3.0%
14. TYPE OF REPORTING PERSON
CO
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(9) Tiger Global, Ltd. specifically disclaims beneficial ownership in the
Shares reported herein except to the extent of its pecuniary interest
therein.
(10) As described in Items 4 and 5 below, Tiger Global, Ltd. may be deemed to be
part of a group with the Great Hill Entities (as defined below), pursuant
to the terms of the Share Purchase Agreement (as defined below). Tiger
Global, Ltd. does not affirm to be part of a group and expressly disclaims
beneficial ownership of the 6,000,000 Ordinary Shares (as defined herein),
in the aggregate, beneficially owned by the Great Hill Entities (including
global depositary shares representing Ordinary Shares). Accordingly, such
Ordinary Shares are not included in the amounts specified by Tiger Global,
Ltd. above.
CUSIP No. G8305M109
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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, 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 "Issuer"), whose principal
executive offices are located at 8383 Wilshire Boulevard, Suite 800, Beverly
Hills, California, 90211.
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Item 2. Identity and Background.
(a-c, f) This Schedule 13D is being filed on behalf of: (I) Tiger Global,
L.P., a Delaware limited partnership ("TGLP"); (ii) Tiger Global II, L.P., a
Delaware limited partnership ("TGII"); (iii) Tiger Global, Ltd., a Cayman
Islands exempted company ("TGLTD", and together with TGLP and TGII, the "Tiger
Global Funds"); (iv) Tiger Global Management, LLC, a Delaware limited liability
company ("TGM", and together with the Tiger Global Funds, the "Tiger Global
Entities"); and (v) Charles P. Coleman III (together with Tiger Global Entities,
the "Reporting Persons"). Mr. Coleman is a citizen of the United States.
The Tiger Global Funds are each a private investment fund. TGM acts as the
management company to TGLP and TGII and acts as investment manager to TGLTD. Mr.
Coleman is the managing member of TGM. The principal business office of TGLP,
TGII, TGM and Mr. Coleman is c/o Tiger Global Management, LLC, 101 Park Avenue,
48th Floor, New York, New York 10178. The principal office of TGLTD is c/o Citco
Fund Services (Curacao) N.V., Kaya Flamboyan 9, Willemstad, Curacao, Netherlands
Antilles.
(d) None of the Reporting Persons, individually or collectively, has,
during the last five years, been convicted in a criminal proceeding (excluding
traffic violations or similar misdemeanors).
(e) None of the Reporting Persons has, during the last five years, been 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.
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Item 3. Source and Amount of Funds or Other Consideration.
As more fully described in Item 4 hereof, on December 1, 2005, the Tiger
Global Funds, Great Hill Investors, LLC, Great Hill Equity Partners II, LP and
Great Hill Affiliate Partners, LP (the "Great Hill Entities") entered into a
share purchase agreement (the "Share Purchase Agreement") pursuant to which the
Great Hill Entities acquired from the Tiger 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. A copy of the Share Purchase Agreement is filed as Exhibit A hereto.
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Item 4. Purpose of Transaction
On December 1, 2005, the Tiger Global Funds and the Great Hill Entities
entered into the Share Purchase Agreement pursuant to which the Great Hill
Entities acquired from the Tiger Global Funds an aggregate of 2,000,000 Ordinary
Shares for a purchase price of $5.35 per share, or $10,700,000 in the aggregate.
Voting Arrangements
Pursuant to the terms of the Share Purchase Agreement, for so long as the
Great Hill Entities and their respective affiliates own 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"), the Tiger Global Funds agreed that: (x) if at any time a
Great Hill Entity notifies a Tiger Global Fund of its desire and intention to
designate a single director on behalf of all the Great Hill Entities (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 approval (including by
written consent) is sought with respect to the election of directors or that is
necessary to elect directors of the Issuer, the Tiger Global Funds agreed to
consent, vote (or cause to be voted) all of its Voting Shares that are owned or
held of record by the Tiger Global Funds, or as to which the Tiger Global Funds
have voting power or in respect of which the Tiger Global Funds 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 a Great Hill Entity notifies a Tiger Global
Fund 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 Tiger
Global Funds agree to cooperate in causing the requested removal and/or
replacement by voting in the appropriate manner. Pursuant to the Share Purchase
Agreement, the Tiger Global Funds irrevocably granted, and appointed Michael A.
Kumin, and any other person who shall hereafter by designated by the Great Hill
Entities as the Tiger Global Funds' proxy and attorney (with full power of
substitution) to vote all of the Tiger Global Funds' 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, the Tiger Global Funds 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 Share Purchase Agreement. Pursuant to the terms of the
Share Purchase Agreement, the Tiger Global Funds are not restricted from selling
or otherwise transferring any Remaining Shares or any interest therein to a
third party that is not an affiliate of Tiger Global Funds or the Issuer or to
any affiliate that agrees in writing to be bound by the terms of the Share
Purchase Agreement. The foregoing covenants and obligations of the Tiger Global
Funds terminates 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, the Tiger Global Funds agreed that, in order to secure the
interest of the Great Hill Entities in the Ordinary Shares purchased under the
Share Purchased Agreement with effect from December 1, 2005, each of the Tiger
Global Funds irrevocably appointed Great Hill Partners, LLC to be its attorney
in name and on its behalf to exercise all or any of the voting and other rights,
powers and privileges attached to the Ordinary shares registered in its name.
The Tiger Global Funds 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 purchased pursuant to the Share Purchase Agreement that are
registered in its name.
The Ordinary Shares held by the Reporting Persons were acquired for, and
are being held for, investment purposes only. The acquisitions of the Ordinary
Shares were made in the ordinary course of the Reporting Persons' business or
investment activities, as the case may be.
Except as set forth in this Item 4, the Reporting Persons have no plan or
proposal which relates to, or would result in, any of the actions enumerated in
Item 4 of the instructions to Schedule 13D.
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Item 5. Interest in Securities of the Issuer.
(a, b) As of the date hereof, TGM may be deemed to beneficially own
4,631,085 Ordinary Shares, constituting approximately 15.3% of the Ordinary
Shares of the Issuer, based upon the number of Ordinary Shares outstanding as of
October 19, 2005 as reported in the Issuer's Form 10 filed on November 14, 2005
and after giving effect to the issuance of 4,000,000 shares pursuant to the
exercise of certain options held by Joe Y. Shapira and Alon Carmel.
TGM has the sole power to vote or direct the vote of 0 Ordinary Shares; has
the shared power to vote or direct the vote of 4,631,085 Ordinary Shares; has
the sole power to dispose or direct the disposition of 0 Ordinary Shares; and
has shared power to dispose or direct the disposition of 4,631,085 Ordinary
Shares.
TGM specifically disclaims beneficial ownership in the Ordinary Shares
reported herein except to the extent of its pecuniary interest therein.
(a, b) As of the date hereof, Charles P. Coleman III may be deemed to
beneficially own 4,631,085 Ordinary Shares, constituting approximately 15.3% of
the Ordinary Shares of the Issuer, based upon the number of Ordinary Shares
outstanding as of October 19, 2005 as reported in the Issuer's Form 10 filed on
November 14, 2005 and after giving effect to the issuance of 4,000,000 shares
pursuant to the exercise of certain options held by Joe Y. Shapira and Alon
Carmel.
Mr. Coleman has the sole power to vote or direct the vote of 0 Ordinary
Shares; has the shared power to vote or direct the vote of 4,631,085 Ordinary
Shares; has the sole power to dispose or direct the disposition of 0 Ordinary
Shares; and has shared power to dispose or direct the disposition of 4,631,085
Ordinary Shares.
Mr. Coleman specifically disclaims beneficial ownership in the Ordinary
Shares reported herein except to the extent of its pecuniary interest therein.
(a, b) As of the date hereof, TGLP may be deemed to beneficially own
3,649,746 Ordinary Shares, constituting approximately 12.1% of the Ordinary
Shares of the Issuer, based upon the number of Ordinary Shares outstanding as of
October 19, 2005 as reported in the Issuer's Form 10 filed on November 14, 2005
and after giving effect to the issuance of 4,000,000 shares pursuant to the
exercise of certain options held by Joe Y. Shapira and Alon Carmel.
TGII has the sole power to vote or direct the vote of 0 Ordinary Shares;
has the shared power to vote or direct the vote of 3,649,746 Ordinary Shares;
has the sole power to dispose or direct the disposition of 0 Ordinary Shares;
and has shared power to dispose or direct the disposition of 3,649,746 Ordinary
Shares.
TGII specifically disclaims beneficial ownership in the Ordinary Shares
reported herein except to the extent of its pecuniary interest therein.
(a, b) As of the date hereof, TGII may be deemed to beneficially own 88,763
Ordinary Shares, constituting approximately 0.3% of the Ordinary Shares of the
Issuer, based upon the number of Ordinary Shares outstanding as of October 19,
2005 as reported in the Issuer's Form 10 filed on November 14, 2005 and after
giving effect to the issuance of 4,000,000 shares pursuant to the exercise of
certain options held by Joe Y. Shapira and Alon Carmel.
TGII has the sole power to vote or direct the vote of 0 Ordinary Shares;
has the shared power to vote or direct the vote of 88,763 Ordinary Shares; has
the sole power to dispose or direct the disposition of 0 Ordinary Shares; and
has shared power to dispose or direct the disposition of 88,763 Ordinary Shares.
TGII specifically disclaims beneficial ownership in the Ordinary Shares
reported herein except to the extent of its pecuniary interest therein.
(a, b) As of the date hereof, TGLTD may be deemed to beneficially own
892,576 Ordinary Shares, constituting approximately 3.0% of the Ordinary Shares
of the Issuer, based upon the number of Ordinary Shares outstanding as of
October 19, 2005 as reported in the Issuer's Form 10 filed on November 14, 2005
and after giving effect to the issuance of 4,000,000 shares pursuant to the
exercise of certain options held by Joe Y. Shapira and Alon Carmel.
TGLTD has the sole power to vote or direct the vote of 0 Ordinary Shares;
has the shared power to vote or direct the vote of 892,576 Ordinary Shares; has
the sole power to dispose or direct the disposition of 0 Ordinary Shares; and
has shared power to dispose or direct the disposition of 892,576 Ordinary
Shares.
TGLTD specifically disclaims beneficial ownership in the Ordinary Shares
reported herein except to the extent of its pecuniary interest therein.
Interests in Securities of the Issuer of the Great Hill Entities
(a) As of the date hereof, Great Hill Investors, LLC may be deemed to
beneficially own 68,862 Ordinary Shares, constituting less than 1% of the
Ordinary Shares of the Issuer, based upon the number of Ordinary Shares
outstanding as of October 19, 2005 as reported in the Issuer's Form 10 filed on
November 14, 2005 and after giving effect to the issuance of 4,000,000 shares
pursuant to the exercise of certain options held by Joe Y. Shapira and Alon
Carmel.
(a) As of the date hereof, Great Hill Equity Partners II, Limited
Partnership may be deemed to beneficially own 5,713,465 Ordinary Shares,
constituting approximately 18.9% of the Ordinary Shares of the Issuer, based
upon the number of Ordinary Shares outstanding as of October 19, 2005 as
reported in the Issuer's Form 10 filed on November 14, 2005 and after giving
effect to the issuance of 4,000,000 shares pursuant to the exercise of certain
options held by Joe Y. Shapira and Alon Carmel.
(a) As of the date hereof, Great Hill Affiliate Partners II, L.P. may be
deemed to beneficially own 217,673 Ordinary Shares, constituting approximately
1.0% of the Ordinary Shares of the Issuer, based upon the number of Ordinary
Shares outstanding as of October 19, 2005 as reported in the Issuer's Form 10
filed on November 14, 2005 and after giving effect to the issuance of 4,000,000
shares pursuant to the exercise of certain options held by Joe Y. Shapira and
Alon Carmel.
A "group" including the Tiger Global Funds and the Great Hill Entities may
be deemed to beneficially own, in the aggregate, 18,281,459 Ordinary Shares
(including underlying options exercisable within 60 days as of the date hereof
and global depositary shares representing Ordinary Shares), representing
approximately 60.3% of the Ordinary Shares outstanding as of October 19, 2005 as
reported in the Issuer's Form 10 filed on November 14, 2005 and after giving
effect to the issuance of 4,000,000 shares pursuant to the exercise of certain
options held by Joe Y. Shapira and Alon Carmel. The Reporting Persons do not
affirm that any such "group" exists and expressly disclaim beneficial ownership
of the Ordinary Shares beneficially owned by the Great Hill Entities.
(c) Information set forth in Exhibit C describes any transactions by the
Reporting Persons relating to the Ordinary Shares during the past 60 days.
(d, e) Not applicable.
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Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to
Securities of the Issuer.
See Share Purchase Agreement attached hereto as Exhibit A.
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Item 7. Material to be Filed as Exhibits.
Exhibit A: Share Purchase Agreement, dated as of December 1, 2005, by and
among the Great Hill Entities and the Tiger Global Funds.
Exhibit B: Joint Filing Agreement, dated as of December 12, 2005, by and
among the Reporting Persons.
Exhibit C: The transactions in the Ordinary Shares that were effected by
the Reporting Persons within the past 60 days.
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SIGNATURE
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.
December 12, 2005
-----------------------
(Date)
Tiger Global Management, LLC (11)
By: /s/ Charles P. Coleman III
------------------------------
Name: Charles P. Coleman III
Title: Managing Member
/s/ Charles P. Coleman III (11)
-------------------------------
Charles P. Coleman III
Tiger Global, L.P. (11)
By: Tiger Global Performance, LLC, its general partner
By: /s/ Charles P. Coleman III
------------------------------
Name: Charles P. Coleman III
Title: Managing Member
Tiger Global II, L.P. (11)
By: Tiger Global Performance, LLC, its general partner
By: /s/ Charles P. Coleman III
------------------------------
Name: Charles P. Coleman III
Title: Managing Member
Tiger Global, Ltd. (11)
By: Tiger Global Management, LLC, its investment manager
By: /s/ Charles P. Coleman III
------------------------------
Name: Charles P. Coleman III
Title: Director
(11) Each of the Reporting Persons specifically disclaims beneficial ownership
in the Ordinary Shares reported herein except to the extent of the
Reporting Person's pecuniary interest therein.
Exhibit A
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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 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
6.4(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
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.
"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).
"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.
"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
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").
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 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;
(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 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, 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 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,
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 Act or 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:
(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 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 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.
(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 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
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
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 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)
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.
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 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
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.
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 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):
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 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 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. 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]
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
THE SELLERS:
TIGER GLOBAL, L.P.
By: TIGER GLOBAL MANAGEMENT, L.L.C.
its investment manager
/s/ Jonathan Locker
------------------------------------
By: Jonathan Locker
Its: Managing Director
TIGER GLOBAL II, L.P.
By: TIGER GLOBAL MANAGEMENT, L.L.C.
its investment manager
/s/ Jonathan Locker
------------------------------------
By: Jonathan Locker
Its: Managing Director
TIGER GLOBAL, LTD.
By: TIGER GLOBAL MANAGEMENT, L.L.C.
its investment manager
/s/ Jonathan Locker
------------------------------------
By: Jonathan Locker
Its: Managing Director
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
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
Exhibit B
---------
AGREEMENT
---------
The undersigned agree that this Schedule 13D dated December 12, 2005
relating to the Ordinary Shares par value 0.01 pound per share of Spark Networks
plc shall be filed on behalf of the undersigned.
Tiger Global Management, LLC*
By: /s/ Charles P. Coleman III
---------------------------
Name: Charles P. Coleman III
Title: Managing Member
/s/ Charles P. Coleman III *
---------------------------
Charles P. Coleman III
Tiger Global, L.P. *
By: Tiger Global Performance, LLC, its general partner
By: /s/ Charles P. Coleman III
---------------------------
Name: Charles P. Coleman III
Title: Managing Member
Tiger Global II, L.P. *
By: Tiger Global Performance, LLC, its general partner
By: /s/ Charles P. Coleman III
---------------------------
Name: Charles P. Coleman III
Title: Managing Member
Tiger Global, Ltd. *
By: /s/ Charles P. Coleman III
---------------------------
Name: Charles P. Coleman III
Title: Director
* Each of the Reporting Persons specifically disclaims beneficial ownership
in the Ordinary Shares reported herein except to the extent of the
Reporting Person's pecuniary interest therein.
Exhibit C
---------
TRANSACTIONS IN the SHARES
--------------------------
Transactions in the Ordinary Shares by Tiger Global, L.P.
--------------------------------------------------------------------------
Date of Transaction Number of Shares Price per Share
Purchase/(Sold)
--------------------------------------------------------------------------
12/01/2005 (1,576,400) $5.35
--------------------------------------------------------------------------
Transactions in the Ordinary Shares by Tiger Global II, L.P.
--------------------------------------------------------------------------
Date of Transaction Number of Shares Price per Share
Purchase/(Sold)
--------------------------------------------------------------------------
12/01/2005 (38,200) $5.35
--------------------------------------------------------------------------
Transactions in the Ordinary Shares by Tiger Global, Ltd.
--------------------------------------------------------------------------
Date of Transaction Number of Shares Price per Share
Purchase/(Sold)
--------------------------------------------------------------------------
12/01/2005 (385,400) $5.35
--------------------------------------------------------------------------
03559.0001 #625172v4