Service Agreement - uDate.com Ltd. and Melvyn Morris
DATED 3RD MAY 2000
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(1) UDATE.COM LIMITED
(2) MELVYN MORRIS
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SERVICE AGREEMENT
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EVERSHEDS
11 St James Court
Friar Gate
Derby DE1 1BT
Tel: 0133 236 0992
Fax: 0133 237 1469
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CONTENTS
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CLAUSE PAGE
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1 INTERPRETATION..........................................................3
2 PREVIOUS AGREEMENTS.....................................................4
3 APPOINTMENT, TERM AND NOTICE............................................4
4 DUTIES..................................................................5
5 PLACE OF WORK...........................................................6
6 HOURS OF WORK...........................................................6
7 REMUNERATION............................................................6
8 EXPENSES................................................................6
9 MOTOR CAR ALLOWANCE.....................................................7
10 PENSION AND OTHER BENEFITS..............................................7
11 VACATIONS...............................................................8
12 CONFLICT OF INTERESTS...................................................8
13 SHARE DEALINGS..........................................................9
14 RESTRICTIVE COVENANTS...................................................9
15 CONFIDENTIALITY........................................................13
16 PATENTS................................................................14
17 COPYRIGHT..............................................................15
18 INCAPACITY.............................................................16
19 TERMINATION............................................................17
20 DEDUCTIONS.............................................................19
21 DELIVERY OF DOCUMENTS AND PROPERTY.....................................19
22 RESIGNATION AS DIRECTOR................................................20
23 RIGHTS FOLLOWING TERMINATION...........................................21
24 DISCIPLINARY AND GRIEVANCE PROCEDURES..................................21
25 NOTICES................................................................21
26 MISCELLANEOUS..........................................................21
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THIS AGREEMENT is made on 2000
BETWEEN
(1) UDate.Com Limited (registered number 3524657) whose registered office is
at New Enterprise House, St Helens Street, Derby, DE1 3GY ("the
Company"); and
(2) Melvyn Morris of Redmire Gap, Intakes Lane, Turnditch, Derbyshire, DE56
2LU ("the Executive").
OPERATIVE PROVISIONS
1. INTERPRETATION
1.1 In this Agreement the following expressions have the following meanings:
"BOARD" the Board of Directors of the Company
from time to time
"GROUP COMPANY" any holding company for the time being
of the Company or any subsidiary for
the time being of the Company or of
any such holding company (for which
purpose "holding company" and
"subsidiary" have the meanings
ascribed to them by section 736 of the
Companies Act 1985 (as amended by the
Companies Act 1989))
"GROUP" the Company and all Group Companies
wherever registered or incorporated
"COMMENCEMENT DATE" May 2000
"THE 1996 ACT" The Employment Rights Act 1996
"THE LONDON STOCK EXCHANGE" London Stock Exchange Limited;
"PAYE DEDUCTIONS" Deductions made to comply with
regulations made under section 203
Income and Corporation Taxes Act 1988
and with any obligations to deduct
national insurance contributions
"RECOGNISED INVESTMENT Has the meaning in section 207 of the
Financial
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EXCHANGE" Services Act 1986.
1.2 References in this Agreement to clauses are to clauses and sub-clauses
of this Agreement unless otherwise specified.
1.3 Unless otherwise required words denoting the singular include the plural
and vice versa.
1.4 References in this Agreement to statutory provisions include all
modifications and re-enactments of them and all subordinate legislation
made under them.
1.5 Clause headings are included in this Agreement for convenience only and
do not affect its construction.
2. PREVIOUS AGREEMENTS
2.1 This Agreement contains the entire and only agreement and will govern
the relationship between the Company and the Executive from the
Commencement Date in substitution for all previous agreements and
arrangements whether written, oral or implied between the Company or any
Group Company and the Executive relating to the services of the
Executive all of which will be deemed to have terminated by consent with
effect from the Commencement Date. The Executive and the Company
acknowledge that in entering into this Agreement neither has relied on
any representation or undertaking by the other whether oral or in
writing except as expressly incorporated in this Agreement.
2.2 The Executive hereby acknowledges that he has no outstanding claim of
any kind against any Group Company.
2.3 The Executive warrants and represents to the Company that he will not be
in breach of any existing or any former terms of employment applicable
to him whether express or implied or of any other obligation binding on
him by reason of him entering into this Agreement or performing all or
any of his duties and obligations under it.
3. APPOINTMENT, TERM AND NOTICE
3.1 The Company will employ the Executive and the Executive will serve the
Company as Chief Executive Officer.
3.2 The appointment will be deemed to have commenced on the Commencement
Date and will continue subject as follows unless and until the
employment is terminated either
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by the Company giving to the Executive not less than twelve calendar
months' written notice or by the Executive giving to the Company not
less than five calendar months' written notice to expire at any time.
3.3 The Executive agrees that at its absolute discretion the Company may
terminate the Executive's employment under this Agreement with immediate
effect by paying to the Executive in full and final settlement of all
claims which he has or may have against the Company or any director,
employee or agent of the Company or any Group Company under or arising
out of his employment with the Company or any such Group Company, the
termination of his employment or otherwise salary (less PAYE deductions)
in lieu of the balance of the notice period or remainder of the notice
period if at the Company's request the Executive has worked during part
of the notice period.
3.4 Notwithstanding the provisions of CLAUSE 3.2, the Executive's employment
under this Agreement will automatically terminate on his 65th birthday.
3.5 The Executive's continuous employment with the Company for the purposes
of the 1996 Act commenced on 1 April 1998. Employment with Icebreakers
Personal Network Limited counts for the purposes of the 1996 Act as part
of the Executive's period of continuous employment.
4. DUTIES
4.1 The Executive will carry out such duties and functions, exercise such
powers and comply with such instructions in connection with the business
of the Company and the Group Companies as the Board determines from time
to time. Except when prevented by illness, accident or holiday as
provided below the Executive will devote substantially the whole of his
time, attention and skill to the affairs of the Company and where
appropriate the Group Companies and use his best endeavours to promote
their interests.
4.2 The Executive will if and so long as he is so required by the Company
carry out duties for and/or act as director, officer or employee of any
other Group Company. The duties attendant on any such appointment will
be carried out by the Executive as if they were duties to be performed
by him on behalf of the Company under this Agreement.
4.3 The Executive will at all times promptly give to the Board (in writing
if requested) all information, explanations and assistance that the
Board may require in connection with the business or affairs of the
Company and the Group and his employment under this Agreement.
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5. PLACE OF WORK
5.1 The Executive will perform his duties principally at New Enterprise
House, St Helen's Street, Derby of the Company or such other place of
business of the Company or of any Group Company as the Company requires
whether inside or outside the United Kingdom but the Company will not
require him without his prior consent to go to or reside anywhere
outside the United Kingdom except for occasional visits in the ordinary
course of his duties.
6. HOURS OF WORK
The Company's normal office hours are from 9.00 am to 5.00 pm Monday to
Friday but the Executive will be required to work outside these hours
without additional remuneration in order to meet the requirements of the
business and for the proper performance of his duties.
7. REMUNERATION
7.1 The Company will pay the Executive a salary at the rate of Pound
Sterling 203,125.00 per annum with effect from the Commencement Date (or
at such higher rate as may from time to time be notified to him by the
Board) which salary will accrue from day to day and be payable in
arrears by equal monthly instalments on the last Friday of each month.
7.2 The Executive's salary will be subject to reviews by the Board which
will be effective on and from the anniversary of the commencement date
in each year during the Executive's employment under this Agreement
provided that the increase (if any) of such salary will be a matter to
be decided at the Board's absolute discretion.
7.3 The salary referred to in CLAUSE 7.1 will be inclusive of any director's
fees to which the Executive may be entitled as a director of the Company
or of any Group Company.
7.4 The Executive will be entitled to be paid a performance related bonus,
calculated at 76% against target achievement and paid quarterly. The
first such bonus payment to be made 3 months after the commencement
date.
8. EXPENSES
The Executive will be reimbursed all out of pocket expenses reasonably
and properly incurred by him in the performance of his duties under this
Agreement on hotel, travelling, entertainment and other similar items
provided that he produces to the Company all relevant vouchers in
respect of such expenses.
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9. MOTOR CAR ALLOWANCE
9.1 During the Executive's employment under this Agreement he will not be
provided with a Motor Car. The Executive will receive a payment of Pound
Sterling 40,000 per annum representing an allowance for him to purchase
or lease a motor vehicle for business and private use, such vehicle to
be approved by the Company as suitably commensurate with his status. The
allowance will also cover the cost of road fund licence, insurance
premiums and running expenses in respect of the motor car including
fuel, oil, maintenance and repairs.
10. PENSION AND OTHER BENEFITS
10.1 The Executive will be entitled to continue to be a member of the
Secondary Minitech Retirement Benefit Scheme ("the Pension Scheme")
subject to and upon the rules of the Pension Scheme from time to time in
effect. There is no contracting out certificate in force in respect of
the Executive's employment under the provisions of the Pension Schemes
Act 1993.
10.2 During his employment the Executive will be entitled to participate at
the Company's expense in the Company's:
10.2.1 life insurance scheme;
10.2.2 private medical expenses insurance scheme for the benefit of the
Executive and his wife and all dependent children in full time
education under the age of 21; and
10.2.3 permanent health insurance scheme,
subject to the rules of the said schemes from time to time (and any
replacement schemes provided by the Company) and subject to the
Executive (and where appropriate his wife and dependent children) being
eligible to participate in or benefit from such schemes pursuant to
their rules.
10.3 The Executive may be invited to participate in the Company's Share
Option Scheme ("the Share Option Scheme") in accordance with its rules
from time to time ("the Rules").
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11. VACATIONS
11.1 In addition to normal public holidays the Executive will be entitled to
25 working days' paid holiday from the Commencement Date until 31 March
2001 and 25 working days' paid holiday in each holiday year after that,
such holiday to be taken at such time or times as may be approved by the
Board.
11.2 For the purposes of this CLAUSE 11 "holiday year" means the period from
1 April to 31 March in each year. The Executive may carry forward to the
following holiday year with the Board's written approval his unused
holiday entitlement but he must take any holiday which is carried
forward before the end of December in that year.
11.3 The Executive's entitlement to paid holiday in the calendar year in
which his employment terminates will be 2.1 days for each completed
calendar month in that year rounded up to the nearest half day provided
that no such entitlement to paid holiday will arise if the Executive
terminates his employment without the Company's consent before the
expiry of notice given by him pursuant to CLAUSE 3.2 or without giving
notice or if the Company terminates the Executive's employment pursuant
to CLAUSE 19.1 or 19.2.
11.4 Where the Executive has taken more or less than his holiday entitlement
in the year his employment terminates, a proportionate adjustment will
be made by way of addition to or deduction from (as appropriate) his
final gross pay calculated on a pro-rata basis.
12. CONFLICT OF INTERESTS
12.1 The Executive will disclose promptly to the Board in writing all his
interests in any business other than that of the Company and the Group
and will notify the Board immediately of any change in his external
interests. Except with the written consent of the Board (such consent
not to be unreasonably withheld) the Executive will not during his
employment under this Agreement be directly or indirectly engaged,
concerned or interested whether as principal, servant or agent (on his
own behalf or on behalf of or in association with any other person) in
any other trade, business or occupation competing in any material
respect with the business for the time being of the Company or any Group
Company other than the business of the Company or any Group Company
provided that the Executive will not be precluded from being interested
for investment purposes only as a member, debenture holder or beneficial
owner of any stock, shares or debentures which are listed or dealt in on
a recognised investment exchange and which do not represent more than
four per cent. of the total share or loan capital from time to time in
issue in such company.
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12.2 The Executive will not during his employment introduce to any other
person, firm, company or organisation business of any kind with which
the Company or any other Group Company for which he has performed
services under this Agreement is able to deal and he will not have any
financial interest in, or derive any financial or other benefit from,
contracts or transactions entered into by the Company or any other Group
Company for which he has performed services under this Agreement with
any third party without first disclosing such interest or benefit to the
Board and obtaining its written approval.
13. SHARE DEALINGS
13.1 The Executive will comply (where relevant) with every rule of law, every
regulation of the London Stock Exchange and every requirement,
recommendation or regulation of the Company from time to time in force
in relation to dealings with shares, debentures or other securities of
the Company or any Group Company and unpublished price-sensitive
information affecting the shares, debentures or other securities of any
such company. In relation to overseas dealings, the Executive will also
comply with all laws of the state and all regulations of the stock
exchange, market or dealing system in which such dealings take place.
13.2 The Executive will not (and will procure so far as he is able that his
wife and children do not) deal or become or cease to be interested
(within the meaning of Part I of Schedule 13 to the Companies Act 1985)
in any securities of the Company except in accordance with the Model
Code of the London Stock Exchange for transactions in securities by
directors and others and any legislation, regulations or rules for
securities transactions applicable from time to time.
14. RESTRICTIVE COVENANTS
14.1 In this CLAUSE 14 the following expressions have the following meanings:
"CRITICAL PERSON" any person who was an employee, agent,
director, consultant or independent
contractor employed, appointed or
engaged by the Company or any Relevant
Group Company at any time within the
Relevant Period who by reason of such
employment, appointment or engagement
and in particular his/her seniority
and expertise or knowledge of trade
secrets or confidential information of
the Company or any Group Company or
knowledge of or influence over the
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clients, customers or suppliers of the
Company or any Group Company is likely
to be able to assist or benefit a
business in or proposing to be in
competition with the Company or any
Relevant Group Company
"RELEVANT CUSTOMER" any person, firm company or
organisation who or which at any time
during the Relevant Period is or was:
(a) negotiating with the Company or
a Relevant Group Company for the
sale or supply of Relevant
Products or Services; or
(b) a client or customer of the
Company or any Relevant Group
Company for the sale or supply
of Relevant Products or
Services; or
(c) in the habit of dealing with the
Company or any Relevant Group
Company for the sale of supply
of Relevant Products or
Services,
and in each case with whom or which
the Executive was directly concerned
or connected or of whom or which the
Executive had personal knowledge
during the Relevant Period in the
course of his employment hereunder
"RELEVANT GROUP COMPANY" any Group Company (other than the
Company) for which the Executive has
performed services under this
Agreement or for which he has had
management responsibility at any time
during the Relevant Period
"RELEVANT PERIOD" the period of 12 months immediately
before the Termination Date
"RELEVANT PRODUCTS OR SERVICES" products or services which are of the
same kind as or of a materially
similar kind to or competitive with
any products or services sold or
supplied by the Company or any
Relevant Group Company
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within the Relevant Period and with
which sale or supply the Executive was
directly concerned or connected or of
which he had personal knowledge during
the Relevant Period in the course of
his employment hereunder
"TERMINATION DATE" the date on which the Executive's
employment under this Agreement
terminates and references to "from the
Termination Date" mean from and
including the date of termination
"RESTRICTED TERRITORY" any area or territory in which the
Executive worked or to which the
Executive was assigned by the Company
or any Relevant Group Company at any
time during the Relevant Period.
14.2 The Executive will not without the prior written consent of the Company
(such consent not to be unreasonably withheld) directly or indirectly
and whether alone or in conjunction with or on behalf of any other
person and whether as a principal, shareholder, director, employee,
agent, consultant, partner or otherwise:
14.2.1 within the Restricted Territory for a period of twelve months
from the Termination Date be engaged, concerned or interested
in, or provide technical, commercial or professional advice to,
any other business which supplies Relevant Products or Services
in competition with the Company or any Relevant Group Company
provided that this restriction does not apply to prevent the
Executive from holding shares or other securities in any company
which is quoted, listed or otherwise dealt in on a recognised
investment exchange or other securities market and which confer
not more than 1% of the votes which could be cast at a general
meeting of such company;
14.2.2 within the Restricted Territory for a period of twelve months
from the Termination Date be engaged, concerned or interested in
any business
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which at any time during the Relevant Period has supplied
Relevant Products or Services to the Company or any Relevant
Group Company or is or was at any time during the Relevant
Period a Relevant Customer of the Company or any Relevant Group
Company if such engagement, concern or interest causes or would
cause the supplier to cease or materially reduce its supplies to
the Company (or any Relevant Group Company as the case may be)
or the Relevant Customer to cease or materially to reduce its
orders or contracts with the Company or any Relevant Group
Company;
14.2.3 for a period of twelve months from the Termination Date so as to
compete with the Company or any Relevant Group Company canvass,
solicit or approach or cause to be canvassed, solicited or
approached any Relevant Customer for the sale or supply of
Relevant Products or Services or endeavour to do so;
14.2.4 for a period of twelve months from the Termination Date so as to
compete with the Company or any Relevant Group Company deal or
contract with any Relevant Customer in relation to the sale or
supply of any Relevant Products or Services, or endeavour to do
so;
14.2.5 for a period of twelve months from the Termination date solicit,
induce or entice away from the Company or any Relevant Group
Company or, in connection with any business in or proposing to
be in competition with the Company or any Relevant Group
Company, employ, engage or appoint or in any way cause to be
employed, engaged or appointed a Critical Person whether or not
such person would commit any breach of his or her contract of
employment or engagement by leaving the service of the Company
or any Relevant Group Company;
14.2.6 use in connection with any business any name which includes the
name of any Group Company or any colourable imitation of it.
14.3 Whilst the restrictions in this CLAUSE 14 are regarded by the parties as
fair and reasonable, it is hereby declared that each of the restrictions
in this CLAUSE 14 is intended to be separate and severable. If any
restriction is held to be unreasonably wide but would be valid if part
of the wording (including in particular but without limitation the
defined expressions referred to in CLAUSE 14.1) were deleted, such
restriction will apply with so much of the wording deleted as may be
necessary to make it valid.
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14.4 The parties agree that the period referred to in CLAUSES 14.2.1, 14.2.2,
14.2.3, 14.2.4 AND 14.2.5 above will be reduced by one day for every day
during which at the Company's direction and pursuant to CLAUSE 19.2
below the Executive has been excluded from the Company's premises and/or
has not carried out any duties or has carried out duties other than his
normal duties.
14.5 If the Executive breaches any of the provisions in this CLAUSE 14 the
Company will be entitled by written notice to the Executive to extend
the period during which the provisions of CLAUSE 14 which have been
breached apply by an equivalent period to that during which the breach
or breaches have continued, such additional period to commence on the
date on which the said period would have otherwise expired. The
Executive hereby agrees that if the Company so extends the period of any
such restriction, this will not prejudice the right of the Company to
apply to the Courts for injunctive relief in order to compel the
Executive to comply with the provisions of this CLAUSE 14 and/or
damages, as the case may be.
14.6 For the purposes of CLAUSES 14 and 15 the Company has entered into this
Agreement as agent for and trustee of all Relevant Group Companies.
14.7 If the Executive applies for or is offered a new employment, appointment
or engagement, before entering into any related contract the Executive
will bring the terms of this CLAUSE 14 and CLAUSES 3,4,15 16, 17 AND
19.2 to the attention of a third party proposing directly or indirectly
to employ, appoint or engage him.
15. CONFIDENTIALITY
15.1 The Executive acknowledges that in the ordinary course of his employment
he will be exposed to information about the Company's business and the
business of other Group Companies and that of the Company's and the
Group Companies' suppliers and customers which amounts to a trade
secret, is confidential or is commercially sensitive and which may not
be readily available to others engaged in a similar business to that of
the Company or any of the Group Companies or to the general public and
which if disclosed will be liable to cause significant harm to the
Company or such Group Companies. The Executive has therefore agreed to
accept the restrictions in this CLAUSE 15.
15.2 Without prejudice to CLAUSE 15.3 or 15.4 and subject to CLAUSE 15.3 the
Executive will not during the period of his employment with the Company:
15.2.1 sell or seek to sell to anyone information acquired by him in
the course of his employment with the Company;
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15.2.2 obtain or seek to obtain any financial advantage (direct or
indirect) from disclosure of such information.
15.3 The Executive will not either during his employment or after its
termination without limit in time for his own purposes or for any
purposes other than those of the Company or any Group Company (for any
reason and in any manner) use or divulge or communicate to any person,
firm, company or organisation except to those officials of any Group
Company whose province it is to know the same any secret or confidential
information or information constituting a trade secret acquired or
discovered by him in the course of his employment with the Company
relating to the private affairs or business of the Company or any Group
Company or their suppliers, customers, management or shareholders.
15.4 The restrictions contained in this CLAUSE 15 do not apply to:
15.4.1 any disclosure authorised by the Board or required in the
ordinary and proper course of the Executive's employment or as
required by the order of a court of competent jurisdiction [or
an appropriate regulatory authority] or otherwise required by
law; or
15.4.2 any information which the Executive can demonstrate was known to
the Executive prior to the commencement of the Executive's
employment by the Company or by a Group Company or is in the
public domain otherwise than as a result of a breach by him of
this CLAUSE 15; or
15.4.3 any information disclosed to the Executive by a third party who
is not bound by any duty of confidence to the Company or any
Group Company.
15.5 The provisions of this CLAUSE 15 are without prejudice to the duties and
obligations of the Executive to be implied into this Agreement at common
law.
16. PATENTS
16.1 The Executive must disclose immediately to the Company any discovery or
invention or secret process or improvement in procedure made or
discovered by the Executive during his employment in connection with or
in any way affecting or relating to the business of the Company or any
Group Company or capable of being used or adapted for use in or in
connection with any such company ("Inventions") which Inventions will
belong to and be the absolute property of the Company or such other
person, firm, company or organisation as the Company may require.
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16.2 If requested by the Board (whether during or after the termination of
his employment) the Executive will at the expense of the Company apply
or join in applying for letters patent or other similar protection in
the United Kingdom or any other part of the world for all Inventions and
will do everything necessary (including executing documents) for vesting
letters patent or other similar protection when obtained and all right
and title to and interest in all Inventions in the Company absolutely
and as sole beneficial owner or in such other person, firm, company or
organisation as the Company may require.
16.3 The Executive will (both during and after the termination of his
employment) at the Company's expense anywhere in the world and at any
time promptly do everything (including executing documents) that may be
required by the Board to defend or protect for the benefit of the
Company all Inventions and the right and title of the Company to them.
16.4 The Executive hereby irrevocably authorises the Company to appoint a
person to execute any documents and to do everything necessary to effect
his obligations under this CLAUSE 16 on his behalf.
16.5 The provisions of CLAUSE 16.1 to 16.3 (inclusive) are without prejudice
to the provisions of the Patents Act 1977.
17. COPYRIGHT
17.1 The entire copyright and all similar rights (including future copyright,
the right to register trade marks or service marks and the right to
register designs and design rights) throughout the world in works of any
description produced by the Executive in the course of or in connection
with his employment ("Works") will vest in and belong to the Company
absolutely throughout the world for the full periods of protection
available in law including all renewals and extensions.
17.2 The Executive will (both during and after the termination of his
employment) at the Company's request and expense anywhere in the world
and at any time promptly do everything (including executing documents)
that may be required by the Board to assure, defend or protect the
rights of the Company in all Works.
17.3 The Executive hereby irrevocably authorises the Company to appoint a
person to execute any documents and to do everything necessary to effect
the obligations of the Executive under this CLAUSE 17 on the Executive's
behalf.
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17.4 For the purposes of CLAUSE 16 and CLAUSE 17, the Executive hereby
irrevocably and unconditionally waives in favour of the Company the
moral rights conferred on him by Chapter IV Part 1 of the Copyright
Designs and Patents Act 1988 in respect of any Inventions or Works in
which the copyright is vested in the Company under CLAUSE 16, this
CLAUSE 17 or otherwise.
18. INCAPACITY
18.1 If the Executive is absent from his duties as a result of illness or
injury he will notify the Chief Operations Officer as soon as possible
and complete any self-certification forms which are required by the
Company. If the incapacity continues for a period of seven days or more
he will produce to the Company a medical certificate to cover the
duration of such absence.
18.2 Subject to the rest of CLAUSE 18 and to CLAUSE 19.1.7 and subject to the
receipt of the appropriate certificates in accordance with CLAUSE 18.1,
if the Executive is absent from his duties as a result of illness or
injury he will be entitled to payment of his salary at the full rate in
respect of such illness or injury for a period (in total) of no more
than 26 weeks in any period of 12 months (whether the absence is
intermittent or continuous). Thereafter the Executive will not be
entitled to any further payment from the Company or any other Group
Company until the resumption of his duties.
18.3 If the Executive is absent from work because of any injury or condition
(physical or mental and whether or not sustained in the course of his
duties) caused wholly or partly by any act or omission of any person,
firm, company or organisation (other than the Company or any Group
Company) from whom the Executive may be or become entitled to recover
damages or compensation, any sum paid by the Company to the Executive in
respect of the said absence will be an interest free loan (subject to
any limit imposed under the Companies Act 1985 or other relevant
legislation) to the Executive repayable immediately by the Executive to
the Company on recovery by him of any such damages or compensation.
18.4 If the Executive has been absent from work because of any injury or
condition caused wholly or partly by the Company or any Group Company or
any person for whom the Company or any Group Company is vicariously
liable and for which the Executive may be or become entitled to recover
damages or compensation, any such damages or compensation payable will
be reduced by the amount of any sick pay (statutory or otherwise) paid
to him and by the pension received or receivable by him in the period in
respect of which such damages or compensation are calculated.
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18.5 The remuneration paid under CLAUSE 18.2 will include any Statutory Sick
Pay payable and when this is exhausted will be reduced by the amount of
any Social Security Sickness Benefit or other benefits recoverable by
the Executive (whether or not recovered). For the avoidance of doubt the
provisions of this CLAUSE 18 and any right or prospective right the
Executive has or may have to receive any benefits under the Company's
permanent heath insurance scheme referred to in CLAUSE 10.2.3 will not
prejudice or limit in any way the Company's right to terminate this
Agreement pursuant to CLAUSES 3.2, 3.3, 3.5, 19.1 or otherwise pursuant
to its terms.
18.6 Whether or not the Executive is absent by reason of sickness, injury or
other incapacity the Executive will at the request of the Board agree to
have a medical examination performed by a doctor appointed and paid for
by the Company and the Executive hereby authorises the Board to have
unconditional access to any report or reports (including copies)
produced as a result of any such examination as the Board may from time
to time require and entitlements to salary pursuant to CLAUSE 18.2 will
be conditional on the Executive complying with the terms of this CLAUSE
18.6.
19. TERMINATION
19.1 The Company may terminate the Executive's employment immediately by
summary notice in writing (notwithstanding that the Company may have
allowed any time to elapse or on a former occasion may have waived its
rights under this CLAUSE 19) if he:
19.1.1 commits, repeats or continues any breach of any part of this
Agreement or his obligations under it;
19.1.2 in the performance of his duties under this Agreement or
otherwise commits any act of gross misconduct or serious
incompetence or does or omits to do any thing else which is
seriously prejudicial to the interests of the Company or any
Group Company;
19.1.3 adversely prejudices or because of his behaviour is likely in
the reasonable opinion of the Board to prejudice adversely the
interests or reputation of the Executive, the Company or any
Group Company;
19.1.4 is convicted of any criminal offence involving dishonesty or
violence other than an offence which does not in the reasonable
opinion of the Board affect his position under this Agreement;
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19.1.5 becomes bankrupt or enters into or makes any arrangement or
composition with or for the benefit of his creditors generally;
19.1.6 becomes of unsound mind;
19.1.7 becomes incapacitated from performing all or any of his duties
under this Agreement by illness, injury or otherwise for a
period exceeding (in total) 26 weeks (or such longer period as
the Company may agree) in any period of 12 months ; or
19.1.8 becomes prohibited by law from being a director of a company or
if the Executive ceases to be a director of the Company without
the consent or concurrence of the Company.
19.2 Without prejudice to CLAUSE 4.1 after notice of termination has been
given by either party pursuant to CLAUSE 3.2 or if the Executive seeks
to or indicates an intention to resign as a director of the Company or
any Group Company or terminate his employment, provided that the
Executive continues to be paid and enjoys his full contractual benefits
until his employment terminates in accordance with the terms of this
Agreement, the Board may in its absolute discretion without breaking the
terms of this Agreement or giving rise to any claim against the Company
or any Group Company for all or part of the notice period (as the case
may be):
19.2.1 exclude the Executive from the premises of the Company and/or
any Group Company;
19.2.2 require him to carry out specified duties (consistent with the
Executive's status, role and experience for the Company) other
than those referred to in CLAUSE 4 or to carry out no duties;
19.2.3 announce to employees, suppliers and customers and the London
Stock Exchange that he has been given notice of termination or
has resigned (as the case may be);
19.2.4 instruct the Executive not to communicate orally or in writing
with suppliers, customers, employees, agents or representatives
of the Company or any Group Company until his employment
hereunder has terminated.
19.3 On commencement of any period of exclusion pursuant to CLAUSE 19.2 the
Executive will:
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19.3.1 deliver up to the Company in accordance with CLAUSE 22 all
property belonging to the Company or any Group Company; and
19.3.2 resign in accordance with CLAUSE 23 from all offices and
appointments he holds in the Company and any Group Company.
19.4 During any period of exclusion pursuant to CLAUSE 19.2 the Executive
will not be entitled to accrue holiday or any bonus/profit
share/performance-related pay under CLAUSE 7.4. Any untaken holiday
entitlement accrued up to the date of commencement of leave should be
taken during the leave period. The Executive agrees to notify the
Company of any day or days during the exclusion period when he will be
unavailable due to holiday and will endeavour to agree convenient
holiday dates in advance with the Board.
19.5 At the expense of the Company, before and after termination of the
Executive's employment, the Executive will provide the Company and/or
any Group Company with reasonable assistance regarding matters of which
he has knowledge and/or experience in any proceedings or possible
proceedings in which the Company and/or Group Company is or may be a
party.
19.6 The Executive agrees that at the expense and request of the Company and
in any event on termination of his employment he will transfer or
procure the transfer of all shares held by him in trust or as a nominee
by virtue of his employment with the Company to such person or persons
as the Company may direct. If the Executive fails to do so within seven
days of any such request or the termination of his employment (as the
case may be) the Company is irrevocably authorised to appoint a person
or persons to execute all necessary transfer forms and other
documentation on his behalf.
20. DEDUCTIONS
The Executive hereby authorises the Company to deduct from his
remuneration (which for this purpose includes salary, pay in lieu of
notice, commission, bonus, holiday pay and sick pay) all debts owed by
the Executive to the Company or any Group Company, including but without
limitation the balance outstanding of any loans (and interest where
appropriate) advanced by the Company to the Executive.
21. DELIVERY OF DOCUMENTS AND PROPERTY
On termination of his employment for any reason (or earlier if
requested) the Executive will immediately deliver up to the Company all
property (including but not limited to documents and software, credit
cards, keys and security passes) belonging to
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it or any Group Company in the Executive's possession or under his
control. Documents and software include (but are not limited to)
correspondence, diaries, address books, databases, files, reports,
minutes, plans, records, documentation or any other medium for storing
information. The Executive's obligations under this CLAUSE 22 include
the return of all copies, drafts, reproductions, notes, extracts or
summaries (however stored or made) of all documents and software.
22. RESIGNATION AS DIRECTOR
22.1 The Executive will on termination of his employment for any reason at
the request of the Board give notice resigning immediately without claim
for compensation (but without prejudice to any claim he may have for
damages for breach of this Agreement):
22.1.1 as a director of the Company and all such Group Companies of
which he is a director; and
22.1.2 all trusteeships held by him of any pension scheme or other
trusts established by the Company or any Group Company or any
other company with which the Executive has had dealings as a
consequence of his employment with the Company.
22.2 If notice pursuant to CLAUSE 23.1 is not received by the relevant
company within seven days of a request by the Company, the Company is
irrevocably authorised to appoint a person to execute any documents and
to do everything necessary to effect such resignation or resignations on
the Executive's behalf.
22.3 Except with the prior written agreement of the Board, the Executive will
not during his employment under this Agreement resign his office as a
director of the Company or any Group Company and if he does so without
the consent or concurrence of the Company, the Company will be entitled
to terminate his employment pursuant to CLAUSE 19.1.8 or at the
Company's absolute discretion, to treat such resignation as notice of
termination given by the Executive to the Company pursuant to CLAUSE 3.2
and to suspend the Executive pursuant to CLAUSE 19.2.
22.4 The Executive will not be required to retire by rotation in accordance
with any provisions in the Articles of Association of the Company. In
all other respects the Executive's appointment as a director of the
Company or any other Group Company will be subject to the Articles of
Association from time to time of the relevant company.
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23. RIGHTS FOLLOWING TERMINATION
The termination of the Executive's employment under this Agreement will
not affect any of the provisions of this Agreement which expressly
operate or lawfully have effect after termination and will not prejudice
any right of action already accrued to either party in respect of any
breach of any terms of this Agreement by the other party.
24. DISCIPLINARY AND GRIEVANCE PROCEDURES
24.1 The disciplinary procedure is not incorporated by reference in this
Agreement and The Company does not have a formal disciplinary procedure
which is applicable to the Executive.
24.2 If the Executive has a grievance in relation to his employment or is
dissatisfied with a disciplinary decision against him he may apply in
writing to the Board of Directors whose decision will be final.
25. NOTICES
Notice under this Agreement by the Executive to the Company should be
addressed to the Company and left at its registered office or sent by
first class post to its registered office and notices given by the
Company to the Executive should be served personally or sent by first
class post or sent by facsimile transmission to his usual or last known
place of residence in England and in case of service by post the day of
service will be 48 hours after posting.
26. MISCELLANEOUS
26.1 This Agreement will be governed by and interpreted in accordance with
the law of England and Wales.
26.2 The parties to this Agreement submit to the exclusive jurisdiction of
the English Courts in relation to any claim, dispute or matter arising
out of or relating to this Agreement.
26.3 Any delay by the Company in exercising any of its rights under this
Agreement will not constitute a waiver of such rights.
THIS DOCUMENT is executed as a deed and delivered by the Executive on the date
stated at the beginning of this Deed.
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SIGNED by ) /s/ H.W. Thacker
duly authorised to sign for and on behalf of )
uDate.Com Limited )
in the presence of: )
Witness signature: /s/ Anthony Dunn
Name:
Address:
Occupation: Technologist
SIGNED by Melvyn Morris ) /s/ Melvyn Morris
in the presence of: )
Witness signature: /s/ Anthony Dunn
Name:
Address:
Occupation: Technologist
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