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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT
NO. 6
TO
FORM 10
GENERAL FORM FOR REGISTRATION OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF
THE SECURITIES EXCHANGE ACT OF 1934
Spark Networks plc
(Exact name of Registrant specified in its charter)
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England and Wales
(State or other jurisdiction of
incorporation or organization)
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98-0200628
(I.R.S. Employer Identification Number) |
8383 Wilshire Boulevard, Suite 800
Beverly Hills, California
90211
(Address, including zip code, of principal executive office)
(323) 836-3000
(Registrants telephone number, including area code)
Securities to be registered pursuant to Section 12(b) of the Act: None
Securities to be registered pursuant to Section 12(g) of the Act:
Ordinary Shares, Par value 1p per share
TABLE OF CONTENTS
This registration statement contains forward-looking statements that involve substantial risks and
uncertainties. All statements other than statements of historical facts contained in this
registration statement, including statements regarding our future financial position, business
strategy and plans and objectives of management for future operations, are forward-looking
statements. In some cases, you can identify forward-looking statements by terminology such as
believes, expects, anticipates, intends, estimates, may, will, continue, should,
plan, predict, potential or the negative of these terms or other similar expressions. We
have based these forward-looking statements on our current expectations and projections about
future events and financial trends that we believe may affect our financial condition, results of
operations, business strategy and financial needs. Our actual results could differ materially from
those anticipated in these forward-looking statements, which are subject to a number of risks,
uncertainties and assumptions described in Item 1. BusinessRisk Factors section and elsewhere in
this registration statement.
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Item 1. Business
The information required by this item is contained under the sections Prospectus Summary, Risk
Factors, Business, Cautionary Statement Regarding Forward-Looking Statements and Where You
Can Find More Information of the seventh amendment to the
registration statement on Form S-1 (File
No. 333-123228) filed as an exhibit hereto (the Registration Statement). Those sections are
incorporated herein by reference.
Item 2. Financial Information
The information required by this item is contained under the sections Selected Consolidated
Financial Information, Pro Forma Combined Financial Data and Managements Discussion and
Analysis of Financial Condition and Results of Operations of the Registration Statement. Those
sections are incorporated herein by reference.
Item 3. Properties
The information required by this item is contained under the section BusinessFacilities of the
Registration Statement. That section is incorporated herein by reference.
Item 4. Security Ownership of Certain Beneficial Owners and Management
The following table sets forth certain information with respect to the beneficial ownership of our
ordinary shares, as of December 6, 2005, for:
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each person or entity who we know beneficially owns more than 5% of our ordinary shares; |
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each Named Executive Officer and each director; and |
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all of our executive officers and directors as a group. |
Beneficial ownership is determined in accordance with the rules of the Securities and Exchange
Commission and includes voting or investment power with respect to the securities. The number of
shares of ordinary shares outstanding, on an as-converted basis, used in calculating the percentage
for each listed shareholder includes ordinary shares underlying options or a warrant held by the
shareholder, all of which are being registered in this registration statement, but excludes
ordinary shares underlying options or warrants held by any other person or entity. In addition,
the number of each shareholders ordinary shares underlying warrants and options that are
exercisable within 60 days of December 6, 2005 is set forth below. Percentage of beneficial
ownership is based on 30,238,996 ordinary shares outstanding as of
December 6, 2005. Unless
otherwise indicated, the address of each beneficial owner is c/o: Spark Networks plc, 8383 Wilshire
Blvd., Suite 800, Beverly Hills, California 90211.
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Number of |
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Percentage |
Name of Beneficial Owner |
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Shares |
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of Shares |
5% stockholders: |
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Great Hill Investors, LLC (1) |
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6,000,000 |
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19.8 |
% |
Tiger Global Management, L.L.C. (2) |
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4,631,085 |
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15.3 |
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Alon Carmel
(3) |
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3,499,648 |
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11.6 |
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Capital Research and Management
Company (4) |
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2,505,000 |
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8.3 |
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Criterion
Capital Management LLC (5) |
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1,841,337 |
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6.1 |
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FM Fund
Management Limited (6) |
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2,201,890 |
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7.1 |
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Named Executive Officers and Directors: |
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David E.
Siminoff (7) |
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2,124,500 |
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6.7 |
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Joe Y.
Shapira (8) |
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3,012,639 |
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9.9 |
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Gregory R. Liberman (9) |
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262,500 |
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* |
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Mark Thompson (10) |
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250,000 |
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* |
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Philip Nelson (11) |
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250,000 |
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* |
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1
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Number of |
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Percentage |
Name of Beneficial Owner |
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Shares |
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of Shares |
Scott Shleifer (12) |
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* |
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Michael Brown (13) |
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80,000 |
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* |
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Benjamin Derhy (14) |
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80,000 |
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* |
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Laura Lauder (15) |
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180,000 |
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* |
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Martial Chaillet (16) |
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200,000 |
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* |
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All
directors and executives as a group (13 persons)
(17) |
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6,439,639 |
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19.6 |
% |
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* |
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Less than 1%. |
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(1) |
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Consists of 68,862 shares held by Great Hill Investors, LLC
(GHI); 5,713,465 shares held by Great Hill Equity Partners II, Limited Partnership
(GHEP II); and 217,673 shares held by Great Hill Affiliate Partners II, L.P. (GHAP
II, and together GHI and GHEP II, the Funds). Each Fund is an investment fund,
principally engaged in the business of making private equity and other investments. Great
Hill Partners GP II, LLC (GPII, and together with the Funds, the Great Hill
Entities) is the sole general partner of GHEP II and GHAP II.
Stephen F. Gormley, Christopher S. Gaffney and John G. Hayes (collectively, the
Controlling Persons) are the managers of GPII and GHI. The principal business office of
the Funds, GPII and the Controlling Persons is c/o Great Hill Partners, LLC, One Liberty
Square, Boston, Massachusetts 02109. |
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(2) |
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Consists of 3,649,746 shares held by Tiger Global, L.P.; 892,576 shares held by Tiger
Global, Ltd.; and 88,763 shares held by Tiger Global II, L.P. Each entity has sole voting
power over the shares it holds; Tiger Global Management, L.L.C. is the investment manager of
Tiger Global, L.P., Tiger Global, Ltd. and Tiger Global II, L.P. and it has shared investment
power over the 4,631,085 shares; Charles P. Coleman III is the sole managing member of the
Tiger Global Management, L.L.C. Tiger Global Performance, L.L.C. is the sole general partner
of Tiger Global, L.P.; Charles P. Coleman III is the sole managing member of the general
partner of Tiger Global, L.P.; Tiger Global Performance, L.L.C. is the sole general partner of
Tiger Global II, L.P.; Charles P. Coleman III is the sole managing member of Tiger Global II,
L.P. The address for Tiger Global Management, L.L.C., Tiger Global, L.P. and Tiger Global II,
L.P. is 101 Park Avenue, 48th Floor, New York, New York 10178. The address for Tiger Global,
Ltd. is c/o Ironshore Corporate Services Limited, Queensgate House, South Church Street, P.O.
Box 1234, George Town, Grand Cayman, Cayman Islands. |
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(3) |
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Includes (i) 8,000 shares held by his
spouse and (ii) 550,000 shares held by the Shapira
Childrens Trust of which Mr. Carmel is the trustee. |
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(4) |
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Capital Research and Management Company, an investment adviser registered under Section 203
of the Investment Advisers Act of 1940, is deemed to be the beneficial owner of 2,505,000
shares as a result of acting as investment adviser to various investment companies registered
under Section 8 of the Investment Company Act of 1940. Capital Research and Management Company
has sole dispositive power over these shares. Included in the holdings of Capital Research and
Management Company is the holding of SMALLCAP World Fund, Inc., an investment company
registered under the Investment Company Act of 1940, which is advised by Capital Research and
Management Company. SMALLCAP World Fund, Inc. is the beneficial owner of 1,850,000 shares, of
which it has sole voting power. The persons controlling the investment decisions with respect
to the shares held by Capital Research and Management Company and SMALLCAP World Fund are
Gordon Crawford, J. Blair Frank, J. Dale Harvey, Claudia Huntington , Jonathan Knowles and
Mark Denning. The address for both entities is 333 South Hope Street, Los Angeles, California
90071. |
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(5) |
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Criterion Capital Management LLC, of which Christopher H. Lord is the sole manager, purchased
shares on the open market with no special arrangements with the Company. |
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(6) |
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The registered
office of FM Fund Management Limited is Queensgate House, South Church Street, George Town,
Grand Cayman, Cayman Islands. Florian Homm has voting and investment
powers for the shares held by FM Fund Management Limited. |
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(7) |
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Includes 1,275,000 shares issuable upon exercise of share options, 337,500 shares of which
underlie options exercisable within 60 days of December 6, 2005. |
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(8) |
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Includes (i) 250,000 shares issuable upon exercise of share options, 93,750 shares of
which underlie options exercisable within 60 days of
December 6, 2005, (ii) 1,062,415 shares
held by the Joe Shapira Family Trust of which Mr. Shapira is trustee, (iii) 550,000 shares
held by the Shapira Childrens Trust of which Alon Carmel is
trustee and Mr. Shapira has the right to substitute the corpus, and
(iv) 12,000 shares held by a third-party custodian for
Mr. Shapiras children. Mr. Shapira disclaims beneficial
ownership of the shares held by the Shapira Childrens Trust and
by third-party custodian for his children, except to the extent of
his pecuniary interest. |
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(9) |
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Consists of 250,000 ordinary shares issuable upon the exercise of options, which includes
47,188 shares issuable upon the exercise of options that are currently exercisable or exercisable
within 60 days of December 6, 2005 and 50,000 shares issuable upon the exercise of options that
will vest upon the listing of our securities on the American Stock Exchange. |
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(10) |
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Consists of 250,000 ordinary shares issuable upon the exercise of options, which includes
62,500 shares issuable upon exercise of options that are currently exercisable or exercisable
within 60 days of December 6, 2005 and 50,000 shares issuable upon exercise of options that will
vest upon the listing of our securities on the American Stock Exchange. |
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(11) |
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Consists of 250,000 ordinary shares issuable upon the exercise of options, which includes
78,125 shares issuable upon the exercise of options that are currently exercisable or exercisable
within 60 days of December 6, 2005 and 50,000 shares issuable upon the exercise of options that
will vest upon the listing of our securities on the American Stock Exchange. |
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(12) |
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Excludes 3,649,746 shares held by Tiger Global, L.P. and 88,763 shares held by Tiger
Global II, L.P., of which Scott Shleifer is a limited partner. Mr. Shleifer holds the position
of Managing Director at Tiger Global Management, L.L.C. |
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(13) |
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Represents shares issuable upon exercise of share options, 20,000 shares of which underlie
options exercisable within 60 days of December 6, 2005. |
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(14) |
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Represents shares issuable upon exercise of share options, 25,000 shares of which underlie
options exercisable within 60 days of December 6, 2005. |
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Consists of 100,000 held by Mrs. Lauders husband
and 80,000 shares issuable to Mrs. Lauder upon exercise of share options, 20,000 shares of which
underlie options exercisable within 60 days of December 6, 2005. |
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(16) |
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Includes 80,000 shares issuable upon exercise of share options, 15,000 shares of which
underlie options exercisable within 60 days of December 6, 2005. |
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(17) |
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Shares beneficially owned by all executive officers and directors as a group include options
to purchase 2,595,000 shares, 849,063 shares of which are currently exercisable or
exercisable within 60 days of December 6, 2005. |
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Item 5. Directors and Executive Officers
The information required by this item is contained under the section Management of the
Registration Statement. That section is incorporated herein by reference.
Item 6. Executive Compensation
The information required by this item is contained under the section ManagementSummary Executive
Compensation Table of the Registration Statement. That section is incorporated herein by
reference.
Item 7. Certain Relationships and Related Transactions
The information required by this item is contained under the section Certain Relationships and
Related Party Transactions of the Registration Statement. That section is incorporated herein by
reference.
Item 8. Legal Proceedings
The information required by this item is contained under the section BusinessLegal Proceedings
of the Registration Statement. That section is incorporated herein by reference.
Item 9. Market Price of and Dividends on the Registrants Common Equity and Related Shareholder
Matters
The information required by this item is contained under the sections Dividend Policy and Price
Range of Global Depositary Shares of the Registration Statement and under the section Item
11Description of Registrants Securities to be Registered herein. Each section is incorporated
herein by reference.
Item 10. Recent Sales of Unregistered Securities
The information required by this item is contained under the section Information Not Required in
ProspectusItem 15. Recent Sales of Unregistered Securities of the Registration Statement. That
section is incorporated herein by reference.
Item 11. Description of Registrants Securities
Description of Ordinary Shares
We are providing you with a summary description of our ordinary shares and the material rights of
holders of our ordinary shares. Please remember that summaries by their nature lack the precision
of the information summarized and that a persons rights and obligations as a holder of our
ordinary shares will be determined by reference to our Memorandum and Articles of Association and
applicable English law, each as modified from time to time, and not
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by this summary. We urge you to review our Memorandum and Articles of Association in their entirety
and to seek appropriate professional advice regarding their interpretation and applicable English
law.
General
Our authorized share capital is £800,000 divided into 80,000,000 ordinary shares of £0.01 each. Set
forth below is information concerning the share capital and related summary information concerning
the material provisions of our Memorandum and Articles of Association, or Memorandum and Articles,
and applicable English company law.
Voting rights
Every holder of ordinary shares who, being an individual, is present in person or by proxy or,
being a corporation, has an authorized representative present who is not himself a shareholder, at
a general meeting has one vote on a show of hands. Proxies voting on a show of hands do not have
more than one vote each, even if they hold a number of proxies or are shareholders themselves. On a
poll, every holder of ordinary shares present in person, by its authorized representative or by
proxy has one vote for each share held. Voting at a general meeting is by a show of hands unless a
poll is demanded. A poll may be demanded by:
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the chairman of the meeting; |
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not less than three shareholders present at the meeting in person, by proxy or
represented by an authorized representative and entitled to vote; |
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any shareholder or shareholders present at the meeting in person, by proxy or
represented by an authorized representative and representing not less than one-tenth
of the total voting rights of all shareholders having the right to vote at such
meeting; or |
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any shareholder or shareholders present in person, by proxy or represented by an
authorized representative and holding a number of ordinary shares conferring a right
to vote at the meeting, being shares on which an aggregate sum has been paid up
equal to not less than one-tenth of the total sum paid up on all of the shares
conferring that right. |
Where a poll is not demanded, the interests of beneficial owners of ordinary shares who hold
through a nominee may not be reflected in votes cast on a show of hands if that nominee does not
attend the meeting or receives conflicting voting instructions from different beneficial owners for
whom it holds the shares as nominee. Since, under English law, voting rights are only conferred on
registered holders of shares, a person holding through a nominee may not directly demand a poll.
Unless otherwise required by law or the Memorandum and Articles, voting in a general meeting is by
ordinary resolution. An ordinary resolution, for example, a resolution for the appointment of
directors, the declaration of a final dividend, the appointment of the auditors, the increase of
authorized share capital or grant of authority to allot shares, requires the affirmative vote of a
majority of the shareholders (a) present in person or by an authorized representative or by proxy,
excluding the chairman of the meeting in his role as proxy, in the case of a vote by show of hands
or (b) present in person, by an authorized representative or by proxy and holding shares conferring
in the aggregate a majority of the votes actually cast on the ordinary resolution, in the case of a
vote by poll. In the case of a tied vote, whether on a show of hands or on a poll, the chairman of
the meeting is entitled to cast a deciding vote. A special resolution, for example, a resolution
amending the Memorandum and Articles, changing the name of our company or waiving statutory
pre-emption rights on the issue of shares for cash, or an extraordinary resolution, for example,
modifying the rights of any class of shares at a meeting of the holders of such class or relating
to matters concerning the liquidation of our company, requires the affirmative vote of not less
than three-quarters of shareholders present in person, represented by an authorized representative
or by proxy and holding shares conferring in aggregate at least three-quarters of the votes
actually cast on the resolution, on a vote by poll.
Unless our Board of Directors determines otherwise, no shareholder is entitled to vote in respect
of any share held by him either personally or by proxy or to exercise any other right conferred by
membership in relation to any shareholders meetings, if any sum is payable by him to us in respect
of that share. Our Memorandum and Articles of Association do not contain restrictions on the right
of non-UK residents or foreign owners to be registered holders or exercise voting rights in respect
of our ordinary shares.
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Notices of Shareholder Meetings
An Annual General Meeting and any Extraordinary General Meeting at which it is proposed to pass a
Special Resolution or a resolution of which special notice has been given to our company shall be
called on least 21 days written notice and any other Extraordinary General Meeting is required to
be called on at least 14 days written notice. The period of notice in each case is exclusive of
the day on which the notice is served or deemed to be served and of the day of the meeting itself.
General Meetings may be held on shorter notice than that specified above if such shorter notice is
approved by (i) in the case of an Annual General Meeting, all the shareholders entitled to attend
and vote at that meeting; and (ii) in the case of an Extraordinary General Meeting by a majority in
number of the shareholders entitled to attend and vote at the meeting, such majority holding at
least 95% in nominal value of the shares giving the right to attend and vote at that meeting.
The accidental omission to give notice to or the non-receipt of a notice by any shareholder will
not invalidate the proceedings at the relevant meeting.
Our articles provide that where a notice or other document is served or sent by post, service or
delivery is deemed to be effected on the expiry of 24 hours after the relevant document is posted.
Dividends
The payment of final dividends with respect to any financial year must be recommended by our Board
of Directors and approved by the shareholders by ordinary resolution, provided that no such
dividend shall exceed the amount recommended by our Board of Directors. If, in the opinion of our
Board of Directors, our financial position justifies such payments, the Board of Directors may also
from time to time pay interim dividends of amounts, on dates and in respect of periods as they
think fit.
No dividend can be paid other than out of profits available for distribution under the provisions
of the Companies Act 1985, as amended, and accounting principles generally accepted in the United
Kingdom, which differ in some respects from U.S. GAAP. In addition, as a public limited company, we
may make a distribution only if and to the extent that, at the time of distribution and following
the distribution, the amount of our net assets is not less than the aggregate of the called-up
share capital and undistributable reserves (as such terms are defined in the Companies Act 1985)
and if, and to the extent that, the distribution does not reduce the amount of those assets to less
than that aggregate. No dividend or other moneys payable on or in respect of a share shall bear
interest as against us unless otherwise provided by the rights attached to the share. Any dividend
unclaimed after a period of 12 years from the date on which it was declared or became due for
payment will be forfeited and will revert to us. Our Memorandum and Articles of Association do not
contain restrictions on the right of non-UK resident holders of our ordinary shares to receive
dividends and other payments.
Winding up
If our company is wound up, the liquidator may, pursuant to the authority given by an extraordinary
resolution of our company and any other sanction required by English statutory law, divide among
the members, in specie or in kind, the whole or any part of our assets and, for that purpose, value
any assets as he deems fair and determine how the division is carried out among shareholders or
different classes of shareholders. No shareholder will be compelled to accept any shares or other
property in respect of which there is a liability. Distributions to shareholders on a winding up
are only usually made after the settlement of claims of the various classes of creditor and subject
to applicable company and insolvency laws. Early distributions can be made subject to shareholders
providing appropriate forms of indemnity. Where a distribution is proposed to be made to a
particular class of shareholders on a winding up, such a distribution is usually made pro rata to
their holdings of shares in the company.
Shareholder Derivative Suits
Under English law, our shareholders generally have no right to sue on our behalf. When a wrong has
been done to or against us, we are usually the proper plaintiff. There are exceptions including in
the case of fraud on minority
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shareholders, the case of a breach of a duty owed personally to a shareholder where that
shareholder has suffered personal loss separate and distinct from any loss suffered by the company
and when the act complained of is illegal or ultra vires. English law permits an individual
shareholder of ours to apply for a court order when our affairs are being or have been conducted in
a manner unfairly prejudicial to the interests of one or more of our shareholders or when any
actual or proposed act or omission by us is or would be prejudicial. When granting relief, a court
has wide discretion and may authorize civil proceedings to be brought on our behalf by a
shareholder on such terms as the court may direct.
Issues of shares and pre-emption rights
The directors of English companies may only allot shares and disapply statutory pre-emption rights
if authorized by the shareholders. The current authority for this purpose expires on December 10,
2009 but we may, before such expiry, make an offer or agreement which would or might require equity
securities to be allotted after such expiry and our Board of Directors may allot equity securities
pursuant to any such offer or agreement as if the authority had not expired.
Transfer of shares
Any holder of shares in a certified form may transfer in writing all, or any, of its shares in any
usual or common form or in any other form which our Board of Directors may approve. The instrument
of transfer of a share must be signed by or on behalf of the transferor and, except in the case of
fully paid shares, by or on behalf of the transferee. The transferor will remain the holder of the
shares concerned until the name of the transferee is entered in our register of shareholders. The
transfer of uncertificated shares may be made in accordance with and be subject to the
Uncertificated Securities Regulations 1995.
Our Board of Directors may, in their absolute discretion and without assigning any reason, refuse
to register any transfer of shares, not being fully paid shares. Our Board of Directors may also
refuse to register an allotment or transfer shares, whether fully paid or not, to more than four
persons jointly. Moreover, the registration of transfers may be suspended at such times and for
such periods, but not exceeding thirty days in any year, as our Board of Directors may from time to
time determine.
Our Board of Directors may decline to recognize any instrument of transfer unless it is in respect
of only one class of shares and is lodged, duly stamped if required, at the Registrars Office
accompanied by the relevant share certificate(s) together with such other evidence as the Board may
reasonably require to show the right of the transferor to make the transfer. In the case of a
transfer by a recognized clearing house or a nominee of a recognized clearing house or of a
recognized investment exchange, the lodgment of share certificates is only necessary if and to the
extent that certificates have been issued in respect of the shares in question.
Disclosure of transactions of ownership
The Companies Act 1985 provides that a person, including a company and other legal entities, that
acquires any interest of 3% or more of any class of our relevant share capital, which includes
ADSs and GDSs representing shares, is required to notify us in writing of its interest within two
days following the day on which the obligation arises. Relevant share capital, for these purposes,
means our issued share capital carrying the right to vote in all circumstances at a general
meeting. After the 3% level is exceeded, similar notifications must be made where the interest
falls below the 3% level or otherwise in respect of increases or decreases of a whole percentage
point.
For purposes of the notification obligation, the interest of a person in shares means any kind of
interest in shares including interests in any shares:
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in which a spouse, or child or stepchild under the age of 18,
is interested; |
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in which a company is interested, which includes interests held by other companies
over which that company has effective voting power, and either (a) that company or
its directors generally act in accordance with that persons directions or
instructions or (b) that person controls one-third or more of the voting power of
that company at general meetings; or |
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in which another party is interested and the person and that other party are
parties to an agreement under section 204 of the Companies Act 1985. Such an
agreement is one which provides for two or more parties to acquire
interests in shares of a particular public company and imposes obligations or restrictions on any
of the parties as to the use, retention or disposal of such interests acquired
pursuant to such agreement, if any interest in the companys shares is in fact
acquired by any of the parties pursuant to the agreement. |
Some non-material interests may be disregarded for the purposes of calculating the 3% threshold,
but the obligation of disclosure will still apply where such interests exceed 10% or more of any
class of our relevant share capital and to increases or decreases through a whole percentage point.
In addition, pursuant to section 212 of the Companies Act 1985, we may, as a public company and by
written notice, require a person whom we know or have reasonable cause to believe to be, or to have
been at any time during the three years immediately preceding the date on which the notice is
issued, interested in shares comprised in our relevant share capital to confirm that fact or to
indicate whether or not that is the case.
Where a person holds or during the previous three years had held an interest in the shares, that
person must give any further information that may be required relating to this interest and any
other interest in the shares of which this person is aware.
Where we serve a notice under the foregoing provisions on a person who is or was interested in the
shares and that person fails to give us any information required by the notice within the time
specified in the notice, we may apply to the English courts for an order directing that the shares
in question be subject to restrictions prohibiting, among other things, any transfer, the exercise
of voting rights, the taking up of rights and, other than during a liquidation, payments in respect
of those shares.
A person who fails to fulfill the obligations imposed by sections 198 and 212 of the Companies Act
1985 may be subject to criminal penalties.
Variation of rights and alteration of share capital
Whenever our share capital is divided into different classes of shares, the special rights attached
to any class may, subject to the provisions of English statutory law, be varied or abrogated,
either with the consent in writing of the holders of three-quarters in nominal value of the issued
shares of the class, or with the sanction of an extraordinary resolution passed at a separate
general meeting of the holders of the shares of the class, but not otherwise, and may be so varied
or abrogated either while our company is a going concern or during or in contemplation of a winding
up. At every such separate general meeting, the necessary quorum is at least two persons holding or
representing by proxy issued shares of the class and any holder of shares of the class present in
person or by proxy may demand a poll and will have one vote for every share of the class held by
him. At any adjourned meeting any holder of shares of the class present in person or by proxy is a
quorum.
We may from time to time by ordinary resolution at a general meeting:
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increase the share capital by the creation of new shares of such amount as the
resolution shall prescribe with such preferred, deferred or other special rights, or
subject to such restrictions, whether as regards dividend, return of capital, voting
or otherwise as may be determined and which may be redeemable; |
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consolidate and divide all or any of the share capital into shares of larger amount
than our existing shares; |
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cancel shares which, at the date of the passing of the resolution, have not been
taken, or agreed to be taken, by any person and diminish the amount of its share
capital by the amount of shares so cancelled; and |
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subdivide all or any of the shares into shares of a smaller amount than is fixed by
the Memorandum and Articles and may by resolution determine that as between the
holders of the shares resulting from such subdivision one or more of the shares may,
as compared with the others, have any such preferred, deferred or other special
rights or be subject to any restrictions, as we have the power to attach to unissued
or new shares. |
Subject to English statutory law, we may purchase our own shares of any class, including redeemable
shares, but so that if there shall be in issue any shares convertible into equity share capital of
our own company then no purchase of our own shares shall be made unless it has first been approved
by an extraordinary resolution passed at a separate meeting of the holders of such convertible
shares.
Subject to the provisions of English statutory law, we may, by special resolution, reduce our share
capital, capital redemption reserve, share premium account or other undistributable reserve in any
way.
Directors
Unless otherwise determined by ordinary resolution of the holders of ordinary shares, our Articles
provide that there shall not be less than three directors. At each annual general meeting one-third
(or the number nearest to but not exceeding one-third) of our Board of Directors shall retire from
office by rotation. Our directors who retire by rotation include any director who wishes to retire
and not to offer himself for re-election. Any further directors who retire by rotation are those
who have been longest in office since their last re-election, but, as between persons who become
directors on the same day, those to retire (unless they otherwise agree among themselves) are
determined by lot. A retiring director is eligible for re-election. Any director may be removed
from office at any time by an ordinary resolution of which special notice has been given in
accordance with the Act. Our Memorandum and Articles do not provide for a maximum age for
directors.
Our Articles provide that a director may be party to or be interested in any contract or
transaction to which we are a party, and a director, or any firm of which he is a member, may be
remunerated for any services provided to us or any office held (other than
the office of Auditor) relating to us. In any such case, the director may retain all profits and advantages accruing to him. Our
Articles also provide that (subject to certain exceptions), a director who is in any way interested
in a contract or proposed contract with our company shall declare his interest to the Board, and,
subject to certain exceptions, will not be entitled to vote at Board meetings in respect of any
contract, arrangement or proposal in which that Director has a material interest, nor will that
Director be counted towards the quorum in relation to any resolution on which he is prohibited from
voting.
Our Articles provide that our Board of Directors may exercise all of our powers to borrow money and
to mortgage or charge our undertaking, property, and uncalled capital and, subject to applicable
English law, to issue debentures and other securities. The Board is required to restrict our
borrowings, in the absence of shareholders approval, in accordance with a formula set out in the
Articles.
The ordinary remuneration of our directors for holding office as such shall from time to time be
determined by our Board of Directors. However, such remuneration may not exceed £200,000 per annum
in aggregate or such higher amount as the shareholders may, by ordinary resolution, determine and
will be divisible among our Board of Directors as they agree. Our Board of Directors may also grant
additional remuneration to any director who holds any executive office or who serves on any
committee of our Board of Directors and, have the power to pay and agree to pay gratuities,
pensions or other retirement, death or disability benefits to any Director or ex-Director. Our
Board of Directors are also entitled to be repaid all reasonable expenses incurred by them
respectively in the performance of their duties.
Description of Depositary Shares
Depositary Receipts or Global Depositary Receipts (GDRs)
Depositary Receipts evidencing GDSs are issuable by the Depositary pursuant to the Global Deposit
Agreement. Each GDS represents one Ordinary Share or evidence of the right to receive one Ordinary
Share (together with any additional ordinary shares at any time deposited or deemed deposited under
the Global Deposit Agreement and any and all other securities, cash and property received by the
Depositary or the Custodian in respect thereof and at such
8
time held under the Global Deposit Agreement) (the Shares). Only persons in whose names GDRs are
registered on the books of the Depositary will be treated by the Depositary and us as owners.
So long as the Book-Entry GDSs are eligible for book-entry settlement with Depository Trust Company
(DTC), unless otherwise required by law, such Book-Entry GDSs representing the Shares deposited
with any custodian shall be represented by a Master GDR registered in the name of a nominee of DTC
and no person acquiring such Book-Entry GDSs shall receive or be entitled to receive physical
delivery of certificated GDRs evidencing GDSs. Accordingly, each beneficial owner must rely upon
the procedures of DTC and institutions having accounts with DTC to exercise or be entitled to any
rights of an owner of a GDR. Each person owning a beneficial interest in the Master GDR must rely
upon the procedures of the institutions having accounts with DTC to exercise or be entitled to any
rights of a Regulation S owner. Transfers within DTC and Clearstream Banking are made in accordance
with the usual rules and operating procedures of the relevant system. Cross-market transfers are
effected in DTC through the operating procedures of the relevant system. Cross-market transfers are
effected in DTC through the depositary of Clearstream Banking AG. Because of time zone differences,
credits of securities received in Clearstream Banking AG as a result of a transaction with a DTC
participant are made during the subsequent securities settlement processing date on the business
day following the DTC settlement date and such credits or any transactions in such securities
settled during such processing are reported to the Clearstream Banking AG participant on such
business day. Cash received in Clearstream Banking AG as a result of sales of securities by or
through a Clearstream Banking AG participant to a DTC participant are received with value on the
DTC settlement date, but are available in the Clearstream Banking AG cash account only as of the
business day following settlement in DTC. Where the context requires, the term GDR includes the
Master GDR.
During any period in which Book-Entry GDSs are represented by the Master GDR, ownership of
beneficial interests in the Master GDR are shown on, and the transfer of such ownership is effected
only through, records maintained by (i) DTC or its nominee (with respect to participants
interests) or (ii) institutions having accounts with DTC. All references in the Global Deposit
Agreement to issuance or delivery of GDRs is deemed to include, where applicable, adjustments in
the records of the Depositary showing the number of Book-Entry GDSs evidenced by the Master GDR.
Deposit, transfer and withdrawal
The Depositary agrees, subject to the terms and conditions of the Global Deposit Agreement, that
upon delivery to the Custodian of Shares (or evidence of rights to receive Shares) and pursuant to
appropriate instruments of transfer in a form satisfactory to the Custodian, that the Depositary
will, upon payment of the fees, charges and taxes provided in the Global Deposit Agreement, execute
and deliver at its Corporate Trust Office to, or upon the written order of, the person or persons
named in the notice of the Custodian delivered to the Depositary or requested by the person
depositing such Shares with the Depositary, and, if the Depositary requires a written order (1)
directing the Depositary to adjust its records so as to increase, by the number of GDSs
representing such deposited Shares, the number of GDSs evidenced by the Master GDR, and specifying
the person or persons to whose DTC participant account such increase in the number of GDSs should
be credited or (2) in the case of deposits made at any time that DTCs book-entry settlement system
is not available for the Book-Entry GDSs, directing the Depositary to execute and deliver to, or
upon the written order of, the person or persons stated in such order a Receipt or Receipts in
physical certificated form, for the number of GDSs representing such deposited Shares.
Any deposit of Shares for GDRs must be accompanied by (a) a written certification and agreement (a
Depositors Certificate) by or on behalf of the person who will be the beneficial owner of the
GDS or GDSs to be issued upon deposit of such Shares that (i) the GDRs, the GDSs evidenced thereby,
and the Shares represented thereby have not been registered under the Securities Act of 1933, (ii)
that it is either (a) not a U.S. person (within the meaning of Regulation 5) and is located outside
the United States (within the meaning of Regulation 5) and acquired, or has agreed to acquire and
will acquire, the Shares to be deposited outside the United States, or (b) is an accredited
investor as defined in Regulation D under the Securities Act of 1933, (iii) it is not an Affiliate
of ours or a person acting on behalf of such an Affiliate and (iv) it is not in the business of
buying and selling securities or, if it is in such business, it did not acquire the Shares to be
deposited from us or any affiliate thereof in the Offering and (b) an agreement that, during the
Restricted Period, it will comply with the restrictions on transfer on transfers of the GDRs, the
GDSs evidenced thereby and the Shares represented thereby.
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The Depositary will refuse to accept Shares for deposit whenever it is notified in writing that
such deposit would result in any violation of applicable laws.
Upon surrender at the Corporate Trust Office of the Depositary of a GDR for the purpose of
withdrawal of the Deposited Securities represented by the GDSs evidenced by such GDR, and upon
payment of the fees of the Depositary for the surrender of Receipts, governmental charges and taxes
provided in the Global Deposit Agreement, and subject to the terms and conditions of the Global
Deposit Agreement, the owner of such GDR will be entitled to delivery, to him or upon his order, of
the amount of Deposited Securities at the time represented by the GDS or DDSs evidenced by such
GDR. The forwarding of share certificates, other securities, property, cash and other documents of
title for such delivery will be at the risk and expense of the owner.
Subject to the terms and conditions of the Global Deposit Agreement and any limitations established
by the Depositary, the Depositary may execute and deliver GDRs prior to the receipt of Shares (a
Pre-Release) and deliver Shares upon the receipt and cancellation of GDRs which have been
Pre-Released, whether or not such cancellation is prior to the termination of such Pre-Release or
the Depositary knows that such GDR has been Pre-Released. The Depositary may receive GDRs in lieu
of Shares in satisfaction of a Pre-Release. Each Pre-Release must be (a) preceded or accompanied by
a written representation from the person to whom the GDRs or Shares are to be delivered that such
person, or its customer, owns the Shares or GDRs to be remitted, as the case may be, (b) at all
times fully collateralized with cash or such other collateral as the Depositary deems appropriate,
(c) terminable by the Depositary on not more than five business days notice and (d) subject to
such further indemnities and credit regulations as the Depositary deems appropriate. The number of
Global Depositary Shares which are outstanding at any time as a result of Pre-Releases will not
normally exceed 30% of the Shares deposited pursuant to the Global Deposit Agreement; provided,
however, that the Depositary reserves the right to change or disregard such limit from time to time
as it deems appropriate.
The Depositary may retain for its own account any compensation received by it in connection with
the foregoing.
Dividends, other distributions and rights
Whenever the Depositary shall receive any currency other than US Dollars, by way of dividends or
other distributions or the net proceeds from the sale of securities, property or rights, the
Depositary will convert or cause to be converted into Dollars, to the extent that in its judgment
it can do so on a reasonable basis and can transfer the resulting Dollars to the United States, all
cash dividends and other cash distributions, if any, denominated in a currency other than Dollars
(Foreign Currency), that it receives in respect of the deposited Shares, and to distribute the
resulting Dollar amount (net of the expenses incurred by the Depositary in converting such Foreign
Currency) to the owners entitled thereto, in proportion to the number of GDSs representing such
Deposited Securities evidenced by GDRs held by them, respectively. Such distribution may be made
upon an averaged or other practicable basis without regard to any distinctions among owners on
account of exchange restrictions or the date of delivery of any GDRR or GDRs or otherwise. The
amount distributed to the owners of GDRs will be reduced by any amount on account of taxes to be
withheld by us or the Depositary. See Liability of owner for taxes, below.
If the Depositary determines that in its judgment any Foreign Currency received by the Depositary
cannot be converted on a reasonable basis into Dollars transferable to the United States, or if any
approval or license of any government or agency thereof which is required for such conversion is
denied or in the opinion of the Depositary is not obtainable, or if any such approval or license is
not obtained within a reasonable period as determined by the Depositary, the Depositary may
distribute the Foreign Currency (or an appropriate document evidencing the right to receive such
Foreign Currency) received by the Depositary to, or in its discretion may hold such Foreign
Currency uninvested and without liability for interest thereon for the respective accounts of, the
owners entitled to receive the same. If any such conversion of Foreign Currency, in whole or in
part, cannot be effected for distribution to some of the owners entitled thereto, the Depositary
may in its discretion make such conversion and distribution in US Dollars to the extent permissible
to the owners entitled thereto, and may distribute the balance of the Foreign Currency received by
the Depositary to, or hold such balance uninvested and without liability for interest thereon for,
the respective accounts of, the owners entitled thereto.
If any distribution upon any Deposited Securities consists of a dividend in, or free distribution
of, Shares, the Depositary may (i) if Book-Entry GDSs are available, reflect on the records of the
Depositary such increase in the
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aggregate number of GDSs representing Shares evidenced by the Master GDR and give notice to DTC of
the related increase in the number of GDSs evidenced by the Master GDR or (ii) if Book-Entry GDSs
are not available, distribute to the owners of outstanding Receipts entitled thereto, in proportion
to the number of Depositary Shares representing such Deposited Securities evidenced by Receipts
held by them respectively, additional GDRs evidencing an aggregate number of GDSs that represents
the amount of Shares received as such dividend or free distribution, subject to the terms and
conditions of the Global Deposit Agreement with respect to the deposit of Shares and the issuance
of GDSs evidenced by GDRs, including the withholding of any tax or other governmental charge and
the payment of fees of the Depositary as provided in the Global Deposit Agreement. The Depositary
may withhold any such distribution of GDRs if it has not received satisfactory assurances from us
that such distribution does not require registration under the Securities Act of 1933 or is exempt
from registration under the provisions of such Act. In lieu of delivering GDRs for fractional GDSs
in the event of any such dividend or free distribution, the Depositary will sell the amount of
Shares represented by the aggregate of such fractions and distribute the net proceeds in accordance
with the Global Deposit Agreement. If additional GDRs are not so distributed, each GDS will
thenceforth also represent the additional Shares distributed upon the Deposited Securities
represented thereby. Each beneficial owner of GDRs or Shares so distributed shall be deemed to have
acknowledged that the Shares have not been registered under the Securities Act of 1933 and to have
agreed to comply with the restrictions under the Securities Act of 1933 and to have agreed to
comply with the restrictions on transfer.
If we offer or cause to be offered to the holders of any Deposited Securities any rights to
subscribe for additional Shares or any rights of any other nature, the Depositary will have
discretion as to the procedure to be followed in making such rights available to any owners of GDRs
or in disposing of such rights on behalf of any owners and making the net proceeds available to
such owners or, if by the terms of such rights offering or for any other reason, the Depositary may
not either make such rights available to any owners or dispose of such rights and make the net
proceeds available to such owners, then the Depositary shall allow the rights to lapse. If at the
time of the offering of any rights the Depositary determines in its discretion that it is lawful
and feasible to make such rights available to all owners or to all or certain owners but not to
other owners, the Depositary may distribute to any owner to whom it determines the distribution to
be lawful and feasible, in proportion to the number of GDSs held by such owner, warrants or other
instruments therefore in such form as it deems appropriate. If the Depositary determines in its
discretion that it is not lawful and feasible to make such rights available to all or certain
owners, it may sell the rights, warrants or other instruments in proportion to the number of GDSs
held by the owners to whom it has determined it may not lawfully or feasibly make such rights
available, and allocate the net proceeds of such sales (net of the fees and expenses of the
Depositary and all taxes and governmental charges payable in connection with such right and subject
to the terms and conditions of the Global Deposit Agreement) for the account of such owners
otherwise entitled to such rights, warrants or other instruments, upon an averaged or other
practical basis without regard to any distinctions among such owners because of exchange
restrictions or the date of delivery of any GDR or GDRs, or otherwise.
In circumstances in which rights would not otherwise be distributed, if an owner of GDRs requests
the distribution of warrants or other instruments in order to exercise the rights allocable to the
GDSs of such owner, the Depositary will make such rights available to such owner upon written
notice from us to the Depositary that (a) we have elected in our sole discretion to permit such
rights to be exercised and (b) such owner has executed such documents as we have determined in our
sole discretion are reasonably required under applicable law. Upon instruction pursuant to such
warrants or other instruments to the Depositary from such owner to exercise such rights, upon
payment by such owner to the Depositary for the account of such owner of an amount equal to the
purchase price of the Shares to be received in exercise of the rights, and upon payment of the fees
of the Depositary as set forth in such warrants or other instruments, the Depositary will, on
behalf of such owner, exercise the rights and purchase the Shares, and we shall cause the Shares so
purchased to be delivered to the Depositary on behalf of such owner. As agent for such owner, the
Depositary will cause the Shares so purchased to be deposited, and will execute and deliver
Receipts to such owner, pursuant to the Global Deposit Agreement.
The Depositary will not offer rights to owners unless both the rights and the securities to which
such rights relate are either exempt from registration under the Securities Act of 1933 with
respect to a distribution to all owners or are registered under the provisions of such Act;
provided, that nothing in the Global Deposit Agreement will create, or be construed to create, any
obligation on the part of us to file a registration statement with respect to such rights or
underlying securities or to endeavor to have such a registration statement declared effective. If
an owner of GDRs requests the distribution of warrants or other instruments, notwithstanding that
there has been no such registration
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under such Act, the Depositary will not effect such distribution unless it has received an opinion
from recognized counsel in the United States for us upon which the Depositary may rely that such
distribution to such owner is exempt from such registration. The Depositary will not be responsible
for any failure to determine that it may be lawful or feasible to make such rights available to
owners in general or any owner in particular.
Whenever the Depositary receives any distribution other than cash, Shares or rights in respect of
the Deposited Securities, the Depositary will cause the securities or property received by it to be
distributed to the owners entitled thereto, after deduction or upon payment of any fees and
expenses of the Depositary or any taxes or other governmental charges, in proportion to their
holdings, respectively, in any manner that the Depositary may deem equitable and practicable for
accomplishing such distribution; provided, however, that if in the opinion of the Depositary such
distribution cannot be made proportionately among the owners entitled thereto, or if for any other
reason (including, but not limited to) any requirement that we or the Depositary withhold an amount
on account of taxes or other governmental charges or that such securities must be registered under
the Securities Act of 1933 in order to be distributed to owners or beneficial owners the Depositary
deems such distribution not to be feasible, the Depositary may adopt such method as it may deem
equitable and practicable for the purpose of effecting such distribution, including, but not
limited to, the public or private sale of the securities or property thus received or any part
thereof and the net proceeds of any such sale (net of the fees and expenses of the Depositary) will
be distributed by the Depositary to the owners entitled thereto as in the case of a distribution
received in cash. Each beneficial owner of securities so distributed shall be deemed to have
acknowledged that the securities have not been registered under the Securities Act and to have
agreed to comply with the restrictions on transfer.
If the Depositary determines that any distribution of property (including Shares and rights to
subscribe therefore) is subject to any taxes or other governmental charges which the Depositary is
obligated to withhold, the Depositary may, by public or private sale, dispose of all or a portion
of such property in such amount and in such manner as the Depositary deems necessary and
practicable to pay such taxes or charges and the Depositary will distribute the net proceeds of any
such sale after deduction of such taxes or charges to the owners entitled thereto in proportion to
the number of GDSs held by them, respectively.
Upon any change in nominal or par value, split-up, consolidation or any other reclassification of
Deposited Securities, or upon any recapitalization, reorganization, merger or consolidation or sale
of assets affecting us or to which we are a party, any securities which shall be received by the
Depositary or Custodian in exchange for, in conversion of, or in respect of Deposited Securities
will be treated as new Deposited Securities under the Global Deposit Agreement, and the GDSs will
thenceforth represent, in addition to the existing Deposited Securities, the right to receive the
new Deposited Securities so received in exchange or conversion, unless additional GDRs are
delivered pursuant to the following sentence. In any such case the Depositary may (a) if Book-Entry
GDSs are available, make appropriate entry in its records, or (b) if Book-Entry GDSs are not
available, either (i) execute and deliver additional GDRs as in the case of a dividend in Shares,
or (ii) call for the surrender of outstanding GDRs to be exchanged for new GDRs specifically
describing such new Deposited Securities.
Record dates
Whenever any cash dividend or other cash distribution shall become payable or any distribution
other than cash shall be made, or whenever rights shall be issued with respect to the Deposited
Securities, or whenever for any reason the Depositary causes a change in the number of Shares that
are represented by each GDS, or whenever the Depositary shall receive notice of any meeting of
holders of Shares or other Deposited Securities, or whenever the Depositary shall find it necessary
or convenient the Depositary will fix a record date, which shall be the same date, if any,
applicable to the Deposited Securities, or as close thereto as practicable (a) for the
determination of the owners who will be (i) entitled to receive such dividend, distribution or
rights, or the net proceeds of the sale thereof, or (ii) entitled to give instructions for the
exercise of voting rights at any such meeting, or (b) on or after which each GDS will represent the
changed number of Shares, all subject to the provisions of the Global Deposit Agreement.
Voting of deposited securities
Upon receipt of notice of any meeting of holders of Shares or other Deposited Securities, if
requested in writing by us, the Depositary will, as soon as practicable thereafter, mail to all
owners a notice, the form of which notice will be in the sole discretion of the Depositary,
containing (a) such information included in such notice of meeting received
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by the Depositary from us, and (b) a statement that the owners as of the close of business on a
specified record date will be entitled, subject to any applicable provision of English law and of
our Memorandum and Articles, to instruct the Depositary as to the exercise of the voting rights, if
any, pertaining to the amount of Shares or other Deposited Securities represented by their
respective GDSs and (c) a statement as to the manner in which such instructions may be given. Upon
the written request of an owner on such record date, received on or before the date established by
the Depositary for such purpose, the Depositary will endeavor, insofar as practicable, to vote or
cause to be voted the amount of Shares or other Deposited Securities represented by the GDSs
evidenced by such GDRs in accordance with the instructions set forth in such request. The
Depositary will not vote or attempt to exercise the right to vote that attaches to the Shares or
other Deposited Securities, other than in accordance with such instructions.
Amendment and termination of the Global Deposit Agreement
The form of GDRs and any provisions of the Global Deposit Agreement may at any time and from time
to time be amended by agreement between us and the Depositary in any respect which they may deem
necessary or desirable without the consent of the owners of GDRs; provided, however, that any
amendment that imposes or increases any fees or charges (other than taxes and other governmental
charges, registration fees, cable, telex or facsimile transmission costs, delivery costs or other
such expenses), or which otherwise prejudices any substantial existing right of owners, will not
take effect as to outstanding GDRs until the expiration of 30 days after notice of any amendment
has been given to the owners of outstanding GDRs. Every owner of a GDR, at the time any amendment
so becomes effective, will be deemed, by continuing to hold such GDR, to consent and agree to such
amendment and to be bound by the Global Deposit Agreement as amended thereby. In no event will any
amendment impair the right of the owner of any GDR to surrender such GDR and receive therefore the
Deposited Securities represented thereby, except to comply with mandatory provisions of applicable
law.
The Depositary will at any time at our direction terminate the Global Deposit Agreement by mailing
notice of such termination to the owners of the GDRs then outstanding at least 90 days prior to the
date fixed in such notice for such termination. The Depositary may likewise terminate the Global
Deposit Agreement by mailing notice of such termination to us and the owners of all GDRs then
outstanding if, any time after 90 days have expired after the Depositary will have delivered to us
a written notice of its election to resign and a successor depositary will not have been appointed
and accepted its appointment, in accordance with the terms of the Global Deposit Agreement. On and
after the date of termination, the owner of a Receipt will, upon (a)(i) receipt by the Depositary
at its Corporate Trust Office of written instructions from DTC or DTCs nominee on behalf of any
beneficial owner, if the book-entry settlement system of DTC is then available for the Book-Entry
GDSs, or (ii) surrender of such Receipt at the Corporate Trust Office of the Depositary, (b)
payment of the fee of the Depositary for the surrender of Receipts, and (c) payment of any
applicable taxes or governmental charges, be entitled to delivery, to him or upon his order, of the
amount of Deposited Securities represented by the Depositary Shares evidenced by such Receipt. If
any GDRs remain outstanding after the date of termination of the Global Deposit Agreement, the
Depositary thereafter will discontinue the registration of transfers of GDRs, will suspend the
distribution of dividends and other distributions to the owners thereof and will not give any
further notices or perform any further acts under the Global Deposit Agreement, except the
collection of dividends and other distributions pertaining to the Deposited Securities, the sale of
rights and other property provided in this Global Deposit Agreement and the delivery of Deposited
Securities, together with any dividends or other distributions received with respect thereto and
the net proceeds of the sale of any rights or other property, in exchange for surrendered GDRs
(after deducting, in each case, the fees of the Depositary for the surrender of GDR and other
expenses set forth in the Global Deposit Agreement and any applicable taxes or governmental
charges). At any time after the expiration of one year from the date of termination, the Depositary
may sell the Deposited Securities then held thereunder and may thereafter hold uninvested the net
proceeds of such sale, together with any other cash then held by it, unsegregated and without
liability for interest, for the pro rata benefit of the owners that have not theretofore
surrendered their Receipts, such owners thereupon becoming general creditors of the Depositary with
respect to such net proceeds. After making such sale, the Depositary will be discharged from all
obligations under the Global Deposit Agreement, except to account for net proceeds and other cash
(after deducting, in each case, the fee of the Depositary and other expenses set forth in the
Global Deposit Agreement for the surrender of a GDR. and any applicable taxes or other governmental
charges).
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Charges of Depositary
The Depositary will charge any party depositing or withdrawing Shares or any party surrendering
GDRs or to whom GDRs are issued (including, without limitation) issuance pursuant to a stock
dividend or stock split declared by us or an exchange of stock regarding the GDRs or Deposited
Securities or a distribution of GDRs pursuant to the Global Deposit Agreement) whichever
applicable: (1) taxes and other governmental charges; (2) such registration fees as may from time
to time be in effect for the registration of transfers of Shares generally on our share register or
Foreign Registrar (or any other appointed agent of ours for transfer and registration of the Shares
and applicable to transfers of Shares to the name of the Depositary or its nominee or the Custodian
or its nominee on the making of deposits or withdrawals; (3) such cable, telex or facsimile
transmission expenses as are expressly provided for in the Global Deposit Agreement to be at the
expense of persons depositing Shares or owners; (4) such expenses as are incurred by the Depositary
in the conversion of Foreign Currency pursuant to the Global Deposit Agreement; (5) a fee of $5.00
or less per 100 GDSs (or portion thereof) for the execution, delivery and surrender of GDRs
pursuant to the Global Deposit Agreement; (6) a fee of $02 or less per GDS (or portion thereof) for
any cash distribution made pursuant to the Global Deposit Agreement; (7) a fee of $1.50 or less per
certificate for a GDR or GDRs for transfers made pursuant to the Global Deposit Agreement and; (8)
a fee for the distribution of securities pursuant to the Global Deposit Agreement, such fee being
in an amount equal to the fee for the execution and delivery of GDSs referred to above which would
have been charged as a result of the deposit of such securities (for purposes of this clause (8)
treating all such securities as if they were Shares), but which securities are instead distributed
by the Depositary to owners and the net proceeds distributed.
The Depositary, pursuant to the Global Deposit Agreement, may own and deal in any class of our
securities and our affiliates and in GDRs.
Liability of owner for taxes
If any tax or other governmental charge shall become payable by the Custodian or the Depositary
with respect to any GDR or any Deposited Securities represented by any GDRs, such tax or other
governmental charge will be payable by the owner of such GDR to the Depositary. The Depositary may
refuse to effect registration of transfer of such GDR (or any split-up or combination thereof), or
any withdrawal of Deposited Securities underlying such GDR until such payment is made, and may
withhold any dividends or other distributions, in respect of any Deposited Securities or may sell
for the account of the owner or beneficial owner thereof any part or all of the Deposited
Securities underlying such GDR and may apply such dividends, distributions or the proceeds of any
such sale to pay any such tax or other governmental charge and the owner of such GDR will remain
liable for any deficiency.
General
Neither the Depositary nor our company nor any of our respective directors, employees, agents or
affiliates will be liable to any owner or beneficial owner of any GDR, if by reason of any
provision of any present or future law or regulation of the United States, or any other country, or
of any governmental or regulatory authority or stock exchange, or by reason of any provision,
present or future, of our Memorandum and Articles or by reason of any provision of any securities
issued or distributed by us, or any offering or distribution thereof, or by reason of any act of
God or war or other circumstances beyond our control, the Depositary or our company or any of our
directors, employees, agents or affiliates shall be prevented, delayed or forbidden from, or be
subject to any civil or criminal penalty on account of, doing or performing any act or thing which
by the terms of the Global Deposit Agreement or Deposited Securities it is provided will be done or
performed; nor will the Depositary or our company incur any liability to any owner or beneficial
owner of any GDR by reason of any nonperformance or delay, caused as aforesaid, in the performance
of any act or thing which by the terms of the Global Deposit Agreement it is provided will or may
be done or performed, or by reason of any exercise of, or failure to exercise, any discretion
provided for under the Global Deposit Agreement. Where, by the terms of a distribution pursuant to
the Global Deposit Agreement, or an offering or distribution pursuant to the Global Deposit
Agreement, or for any other reason, such distribution or offering may not be made available to
owners, and the Depositary may not dispose of such distribution or offering on behalf of such
owners and make the net proceeds available to such owners, then the Depositary will not make such
distribution or offering, and will allow the rights, if applicable, to lapse.
We and the Depositary assume no obligation nor will we or the Depositary be subject to any
liability under the Global Deposit Agreement to owners or beneficial owners of GDRs, except that we
and the Depositary agree to
14
perform their respective obligations specifically set forth under the Global Deposit Agreement
without negligence or bad faith.
The GDRs are transferable on the books of the Depositary, provided that the Depositary may close
the transfer books at any time or from time to time when deemed expedient by it in connection with
the performance of its duties. As a condition precedent to the execution and delivery, registration
of transfer, split-up, combination or surrender of any GDR or withdrawal of any Deposited
Securities or the adjustment of the Depositarys records to reflect the deposit of Shares or any
such transfer, split-up, combination, surrender or withdrawal, the Depositary, the Custodian or the
Registrar may require payment from the person presenting the GDR or the depositor of the Shares of
a sum sufficient to reimburse it for any tax or other governmental charge and any stock transfer or
registration fee with respect thereto (including any such tax or charge and fee with respect to
Shares being deposited or withdrawn) and payment of any applicable fees. The Depositary may refuse
to deliver GDRs, to register the transfer of any GDR or to make any distribution on, or related to,
Shares until it has received such proof of citizenship or residence, exchange control approval or
other information as it may deem necessary or proper. The delivery, transfer, registration of
transfer of outstanding GDRs and surrender of GDRs generally may be suspended or refused during any
period when the transfer books of the Depositary, our company or the Foreign Registrar are closed
or if any such action is deemed necessary or advisable by the Depositary or us, at any time or from
time to time.
The Depositary will keep books, at its Corporate Trust Office, for the registration and transfer of
GDRs, which at all reasonable times will be open for inspection by the owners, provided that such
inspection will not be for the purpose of communicating with owners in the interest of a business
or object other than our business or a matter related to the Global Deposit Agreement or the GDRs.
The Depositary may appoint one or more co-transfer agents for the purpose of effecting transfers,
combinations and split-ups of GDRs at designated transfer offices on behalf of the Depositary. In
carrying out its functions, a co-transfer agent may require evidence of authority and compliance
with applicable laws and other requirements by owners or persons entitled to GDRs and will be
entitled to protection and indemnity to the same extent as the Depositary.
Warrants
As of
December 6, 2005, warrants to purchase a total of 430,000 ordinary shares were outstanding with
exercise prices of $2.44 per share. Each warrant contains provisions for the adjustment of the
exercise price and the number of shares issuable upon the exercise of the warrant in the event of
certain types of reorganizations and significant corporate transactions. Warrant holders have
certain registration rights once the only trading market for our securities is located within the
United States. These registration rights expire when the shares can be sold pursuant to Rule 144 of
the Securities Act of 1933.
Registrar
The registrar for our ordinary shares is Capita IRG, plc.
Securities Authorized for Issuance Under Equity Compensation Plans
The following table provides information as of December 31, 2005 regarding compensation plans,
including individual compensation arrangements, under which equity securities of Spark Networks plc
are authorized for issuance.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of securities |
|
|
|
|
|
|
|
|
|
|
remaining available for future |
|
|
Number of Securities to be |
|
Weighted- average |
|
issuance under equity |
|
|
issued upon exercise of |
|
exercise price of |
|
compensation plans |
|
|
outstanding options, |
|
outstanding options, |
|
(excluding securities reflected |
Plan Category |
|
warrants and rights |
|
warrants and rights |
|
in column (a) |
|
|
(a) |
|
(b) |
|
(c) |
Equity
compensation
plans approved
by security
holders |
|
|
5,133,250 |
(1) |
|
$ |
5.32 |
|
|
|
14,386,500 |
(2) |
Equity
compensation
plans not
approved by
security holders |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
|
5,133,250 |
|
|
|
|
|
|
|
14,386,500 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
Represents share options outstanding under the 2004 Share Option
Scheme and the 2000 Executive Share Option Scheme. |
|
|
|
(2) |
|
Represents share options available for future grants under the 2004
Share Option Scheme. The 2000 Executive Share Option Scheme has been
terminated and no future issuances of options are available; however,
all outstanding options granted under the plan continue in full force
and effect. |
|
15
Item 12. Indemnification of Directors and Officers
The information required by this item is contained under the section Information Not Required in
ProspectusItem 14. Indemnification of Directors and Officers of the Registration Statement. That
section is incorporated herein by reference.
Item 13. Financial Statements and Supplementary Data
The information required by this item is contained under the section Consolidated Financial
Statements and Notes to Consolidated Financial Statements of the Registration Statement. That
section is incorporated herein by reference.
Item 14. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure
The information required by this item is contained under the section Managements Discussion and
Analysis of Financial Condition and Results of OperationsChange in Accountants of the
Registration Statement. That section is incorporated herein by reference.
Item 15. Financial Statements and Exhibits
(a) Financial Statement
See Item 13 above.
(b) Exhibits
Except for
Exhibit 99.1, which is included herein, and Exhibits 4.1
and 4.2, which were previously filed, the following exhibits are incorporated herein
by reference from the Registration Statement:
|
|
|
Exhibit |
|
|
Number |
|
Description of Exhibit |
3.1**
|
|
Memorandum of Association of Registrant dated September 3, 1998 |
|
|
|
3.2**
|
|
Certificate Confirming
Incorporation and Change of Name dated January 31, 2005 |
|
|
|
3.3**
|
|
Articles of Association of
Registrant, as amended April 11, 2000, December 10, 2004,
September 2, 2005 and November 14, 2005 (incorporated by
reference to Exhibit 3.1 of the Registrants current report
on Form 8-K filed with the Securities and Exchange Commission on
November 18, 2005). |
|
|
|
4.1** |
|
Deposit Agreement for Global Depositary Shares |
|
|
|
4.2**
|
|
Form of GDR (included in
Exhibit 4.1 herein) |
16
|
|
|
Exhibit |
|
|
Number |
|
Description of Exhibit |
4.3**
|
|
Specimen ordinary share certificate |
|
|
|
10.1** |
|
Lease dated September 1, 2000 between Arden Realty Limited Partnership and the Registrant
regarding 8383 Wilshire Boulevard (incorporated by reference to exhibit 10.1 of MatchNet, Inc.s
registration statement on Form S-1 (file no. 333-117940) filed with the Securities and Exchange
Commission on August 4, 2004) |
|
|
|
10.1(a)**
|
|
First Amendment to Lease, dated September 5, 2000
(incorporated by reference to exhibit 10.1(a) of
MatchNet, Inc.s registration statement on Form S-1
(file no. 333-117940) filed with the Securities and
Exchange Commission on August 4, 2004) |
|
|
|
10.1(b)**
|
|
Second Amendment to Lease, dated January 16, 2003
(incorporated by reference to exhibit 10.1(b) of
MatchNet, Inc.s registration statement on Form S-1
(file no. 333-117940) filed with the Securities and
Exchange Commission on August 4, 2004) |
|
|
|
10.1(c)**
|
|
Third Amendment to Lease, dated October 30, 2003
(incorporated by reference to exhibit 10.1(c) of
MatchNet, Inc.s registration statement on Form S-1
(file no. 333-117940) filed with the Securities and
Exchange Commission on August 4, 2004) |
|
|
|
10.1(d)**
|
|
Fourth Amendment to Lease, dated May 14, 2004
(incorporated by reference to exhibit 10.1(d) of
MatchNet, Inc.s registration statement on Form S-1
(file no. 333-117940) filed with the Securities and
Exchange Commission on August 4, 2004) |
|
|
|
10.2**
|
|
2004 Share Option Scheme |
|
|
|
10.2(a)**
|
|
Form of Option Agreement for 2004
Share Option Scheme |
|
|
|
10.3**
|
|
2000 Executive Share Option Scheme |
|
|
|
10.3(a)**
|
|
Form of Option Agreement for 2000
Executive Share Option Scheme |
|
|
|
10.4**
|
|
Asset Purchase Agreement, dated November 27, 2003, between the Registrant and Point Match USA,
Inc. (incorporated by reference to exhibit 10.4 of MatchNet, Inc.s registration statement on
Form S-1 (file no. 333-117940) filed with the Securities and Exchange Commission on August 4, 2004) |
|
|
|
10.4(a)**
|
|
First Amendment to Asset Purchase Agreement, January 7, 2004, between the Registrant and Point
Match USA, Inc |
|
|
|
10.5**
|
|
Asset Purchase Agreement, dated November 27, 2003, between MatchNet (Israel) Ltd., a subsidiary of
the Registrant, and Point Match Ltd. (incorporated by reference to exhibit 10.5 of MatchNet, Inc.s
registration statement on Form S-1 (file no. 333-117940) filed with the Securities and Exchange
Commission on August 4, 2004) |
|
|
|
10.5(a)**
|
|
First Amendment to Asset Purchase Agreement, dated January 7, 2004, between MatchNet (Israel)
Ltd., a subsidiary of the Registrant, and Point Match Ltd. (incorporated by reference to
exhibit 10.5(a) of MatchNet, Inc.s registration statement on Form S-1 (file no. 333-117940) filed
with the Securities and Exchange Commission on August 4, 2004) |
|
|
|
10.6**
|
|
Executive Employment Agreement, dated August 12, 2004, between the Registrant and David Siminoff |
|
|
|
10.7**
|
|
Executive Employment Agreement, dated October 4, 2004, between the Registrant and Mark Thompson |
|
|
|
10.8**
|
|
Executive Employment Agreement, dated October 4, 2004, between the Registrant and Phillip Nelson |
|
|
|
10.9**
|
|
Executive Employment Agreement, dated March 1, 2005, between the Registrant and Joe Y. Shapira |
|
|
|
10.9(a)**
|
|
Separation Agreement entered into by and between the Company and Joe Y. Shapira effective as
of January 1, 2006 (incorporated by reference to Exhibit 10.1 of the Registrants Current
Report on Form 8-K filed with the Securities and Exchange Commission on February 1, 2006). |
|
|
|
10.10**
|
|
Form of Indemnification Agreement for Officers and Directors |
|
|
|
10.10(a)**
|
|
List of Parties executing Form of Indemnification Agreement for Officers and Directors |
|
|
|
10.11**
|
|
Deal Documents and Purchase Agreement for investment in Yobon, Inc. dated October 19, 2004 |
|
|
|
10.12**
|
|
Warrant Agreement, dated December 30, 2004, between the Registrant and Europlay Capital Advisors
LLC |
|
|
|
10.13**
|
|
Executive Employment Agreement, dated August 31, 2005, between the Registrant and Gregory R.
Liberman |
|
|
|
10.14** |
|
Stock Purchase Agreement dated
May 19, 2005 by and among the Registrant, MingleMatch, Inc., The
Corporation of the President of the Church of Jesus Christ of
Latter-day Saints, and shareholders of MingleMatch, Inc. |
|
|
|
10.15**
|
|
Standstill Agreement entered into by the Registrant
and Great Hill Equity Partners II on December 1, 2005 (incorporated by reference
to Exhibit 10.1 of the Registrants Current Report on Form 8-K filed with the Securities
and Exchange Commission on December 7, 2005). |
|
|
|
10.16**
|
|
Tax Indemnification Agreement entered into by the Registrant
and Joe Y. Shapira on December 1, 2005 (incorporated by
reference to Exhibit 10.2
of the Registrants Current Report on Form 8-K
filed with the Securities and Exchange
Commission on December 7, 2005). |
|
|
|
10.17**
|
|
Tax Indemnification Agreement entered into by
the Registrant and Alon Carmel on December 1, 2005 (incorporated
by reference to Exhibit 10.3 of the Registrants Current Report on
Form 8-K filed with the Securities
and Exchange Commission on December 7, 2005). |
|
|
|
16.1**
|
|
Letter re: Change in Certifying Accountant (incorporated by reference to exhibit 16.1 of MatchNet,
Inc.s registration statement on Form S-1 (file no. 333-117940) filed with the Securities and
Exchange Commission on August 4, 2004) |
|
|
|
21.1**
|
|
List of subsidiaries |
|
|
|
99.1
|
|
Registration Statement on Form S-1 |
17
SIGNATURES
Pursuant to the requirements of Section 12 of
the Securities Exchange Act of 1934, the registrant
has duly caused Amendment No. 6 to this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Beverly Hills, State of
California, on February 16, 2006.
|
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|
Spark Networks plc |
|
|
|
|
|
|
|
By:
|
|
/s/ David E. Siminoff |
|
|
|
|
|
|
|
|
|
David E. Siminoff |
|
|
|
|
Chief Executive Officer and President |
18