Employment Agreement - uDate.com Inc. and Martin Clifford
CONFIDENTIAL
Mr. Martin Clifford
Chief Operating Officer
uDate.com Inc
New Enterprise House
St. Helens Street
Derby DE1 3GY
Dear Martin
We acknowledge that, from time to time, you may be requested to participate in
assisting the Board of uDate.com Inc. ("the Company") in connection with offers
or other transactions involving the Company or its shareholders that could
result in a change in control of the Company.
In the event of any such offer or transaction, you would be expected to provide
the Company with such services as the Board may require, which could involve
extensive travel and personal time commitments. These services could extend to
the preparation, issuing and approving of documents or announcements, and/or
providing advice in relation to any formal recommendation made by the Board in
connection with any such transaction.
In the event of any such offer or transaction, your support would have a
material impact on the value attributed to the Company and it is acknowledged
that your role within the Company after the completion of any such offer or
transaction could be uncertain. As such the Board have appointed the
Compensation Committee of the Company to consider ways to encourage your
continued employment and dedication without the distraction from the possibility
of such an offer or transaction and related events and circumstances. After full
discussion and review the Compensation Committee have decided to offer you a
Performance Bonus payable to you on completion of such a transaction.
Such Performance Bonus will be calculated as follows:
1. A Performance Bonus Fund would be set up for those key executives who
would be required to participate in any such transaction, the value of
which would be dependant on the Consideration paid for the Company in the
transaction. For a Consideration of or less than $49,999,999 the
Performance Bonus Fund shall be $500,000, for a Consideration of between
$50,000,000 and $74,999,999 the Performance Bonus Fund shall be
$1,000,000, for a Consideration of between $75,000,000 and $99,999,999 the
Performance Bonus Fund shall be $1,500,000, for a Consideration of between
$100,000,000 and $124,999,999 the Performance Bonus Fund shall be
$2,000,000 and for a Consideration of or more than $125,000,000 the
Performance Bonus Fund shall be $2,500,000.
2. You will be allocated 45.0% of the Performance Bonus Fund as a Performance
Bonus.
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3. The Performance Bonus will become payable in cash within two business days
of completion of a transaction. In the event that the Company does not
survive the completion of the transaction, the surviving corporation shall
be obligated to pay the Performance Bonus. In the event of an offer being
made for part or all of the Company's issued share capital, "completion"
will mean the point in time at which the transaction becomes unconditional
in all respects/control of the Company's shares or assets is transferred.
Should the Company engage in a transaction to merge with or acquire a
counter-party, such that the Company is the surviving entity, "completion"
will mean the point in time at which control over such counter-party
passes to the Company. For the avoidance of doubt, the Performance Bonus,
in case of a merger, will be calculated on the value of the Company entity
within the transaction. "Consideration" includes, without limitation,
consideration directly or indirectly paid (including, without limitation,
the value of shares of an acquiring entity or affiliate thereof issued in
the transaction), dividends or other payments made in connection with the
transaction, loan notes, share options, payments to holders of preferred
shares and option holders, assumption of borrowings, advances or loans to
cover operating and/or other expenses, and contingent or deferred
consideration.
The amount of any contingent consideration will be estimated for the
purposes of the Performance Bonus calculation at an expected value
mutually agreeable to you and us at the time of completion, except amounts
held in escrow will be deemed paid at completion. If such mutual agreement
cannot be reached, the Performance Bonus element associated with the
contingent consideration will become due and payable in cash when the
amount of such consideration is determined.
In the case of a general offer being made for the issued share capital of the
Company, the Company's share price, for purposes of calculating consideration,
will be defined as the value attributable to each of the Company's shares as
reported in the official public announcement of the transaction. If
consideration includes shares of the counter-party but with a partial or full
cash alternative at a different value per share, the value attributed to each of
the Company's shares (for the purposes of determining the share price) will be
based on selecting the share alternative.
For the purposes of all Performance Bonus calculations, the exchange rate will
be, as appropriate, the mid point of the closing rate on the day of announcement
or when the contingent consideration is determined.
If you or the Company's Board is advised that the payment by the Company of any
part of the Performance Bonus is unlawful, the Company will take all reasonable
steps open to it either to render such payment lawful or procure that it will be
a term of the relevant transaction agreement that such Performance Bonus be
borne by the counter-party to the transaction. The obligation for payment of the
Performance Bonus due under this agreement may be assumed by a third party if
mutually agreed by the Company and yourself.
Each provision of this letter is several and is not affected if another
provision of this letter is found to be invalid or unenforceable or to
contravene applicable law or regulations.
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This letter sets out the entire agreement between us and will be governed by and
construed in accordance with English law, and no term or provision of this
agreement may be amended, discharged or modified in any respect except in
writing signed by both the Company and yourself. Any claim or disputes arising
out of or in connection with this agreement will be subject to the exclusive
jurisdiction of the English courts. This letter is not enforceable by anyone
other than yourself and the Company.
Should you wish to proceed, please confirm your acceptance of the terms of this
letter by signing and returning one copy to me.
Yours sincerely,
/s/ Melvyn Morris December 19, 2002
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Mel Morris Date
President and CEO
For and on behalf of uDate.com Inc
ACCEPTED AND AGREED TO:
Martin Clifford
/s/ Martin Clifford
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