EXHIBIT 10.10
DIRECTORS AGREEMENT
THIS DIRECTORS AGREEMENT (this "Agreement") is made and entered into as
of May 1, 1996, by and between DataLink Systems Corporation, a Nevada
corporation, located at 0000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxx, XX, 00000
("DataLink"), and Xxxxxxxx Xxxxxx, residing at 0000 Xxxxxx Xxxxx, Xxxx
Xxxxxxxxx, XX ("Director")
NOW, THEREFORE, in consideration of the mutual promises below, DataLink
hereby engages the Director and the Director hereby accepts engagement with
DataLink in accordance with the terms and conditions set forth in this
Agreement.
1. Services.
Director will serve, at the will of DataLink, as a director and
Chairman of the Board of Directors of DataLink. Director shall preside over
all meetings of the Board of Directors and render consultation and advice
relating to strategic alliances, key customer accounts and other strategic
corporate matters. Director shall faithfully and to the best of his ability
serve in the foregoing capacities for so long as he is duly elected and
qualified in accordance with the provisions of the Bylaws or other applicable
charter documents of DataLink; provided however, that neither DataLink nor any
affiliate shall have any obligation under this Agreement to continue Director
in any such position. Director shall devote such time as appropriate to the
performance of the services outlined in Section 1.
2. Indemnity of Director.
2.1 Indemnification. DataLink hereby agrees to hold harmless
and indemnify Director to the fullest extent authorized or permitted by
Datalink's Bylaws and applicable law, as the same may be amended from time to
time (but, only to the extent that such amendment permits DataLink to provide
broader indemnification rights than the Bylaws or applicable law permitted
prior to adoption of such amendment).
2.2 Continuation of Indemnity. All agreements and obligations
of DataLink contained herein shall continue during the period Director is a
director, officer, employee or other agent of the Corporation (or is or was
serving at the request of the Corporation as a director, officer, employee or
other agent of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise) and shall continue thereafter so
long as Director shall be subject to any possible claim or threatened, pending
or completed action, suit or proceeding, whether civil, criminal,
arbitrational, administrative or investigative, by reason of the fact that
Director was serving in the capacity referred to herein.
3. Termination. DataLink shall have the right to terminate this
Agreement for any reason or no reason upon thirty (30) days advance written
notice to Director.
4. Compensation. As full and complete compensation for Director's
services and for the discharge of all Director's obligations hereunder,
DataLink shall grant an option to Director to purchase Seven Hundred Thousand
(700,000) shares of Common Stock of DataLink at a purchase price of $2.20 per
share.
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5. Conflicts of Interest. Director agrees that during the term of
the Agreement, or any extension or renewal hereof, he will not, individually
or with any other person or organization, directly or indirectly, enter into
or engage in the activity that competes with the proposed product or product
lines of DataLink or engage in any other activity in competition with
DataLink. In addition, Director agrees that he will not engage in any methods
of unfair trade practices which are or have the potential to be harmful to the
interest of DataLink.
Without limiting the generality of the foregoing, Director agrees that
during the term of this Agreement he will not (i) directly or indirectly
solicit or induce any employees of DataLink to leave the employ of DataLink
for any reason whatsoever; or (ii) engage in any business (whether in the
capacity of proprietor, principal, partner, director, officer, employee,
consultant, shareholder, agent or representative) which is directly
competitive with or substantially similar to the primary business of DataLink.
6. Independent Contractor.
6.1 Independent Status. DataLink shall neither exercise not
have any right to control the Director as to the means by which Director's
work is to be accomplished. Director's relationship with DataLink shall be
that of an independent contractor and nothing in this Agreement shall be
construed to create an employer-employee relationship between the parties.
6.2 Tax Compliance. Director shall file, on a timely basis, all
tax returns and payments required to be filed with or made to any federal,
state or local tax authority, including all self-employment taxes or returns,
with respect to Director's performance of services hereunder. In the
performance of all services hereunder, Director shall comply with all
applicable laws and regulations.
7. Proprietary Information and Inventions Agreement. Director hereby
agrees to execute and deliver to DataLink a Director's Proprietary Information
and Inventions Agreement in the form of Exhibit A, and to abide by and be
bound by the terms and conditions thereof. The Director's Proprietary
Information and Inventions Agreement is hereby incorporated in this Agreement
by this reference. Termination of this Agreement shall not release Director
from his obligations thereunder.
8. General Provisions.
8.1 Notices. Any notice required or permitted hereunder shall
be given in writing and shall be deemed effectively given upon personal
delivery or three (3) days after deposit in the United States or Canadian
mail, by registered or certified mail, with postage and fees prepaid,
addressed to the other party at the address shown on the last page hereof, or
at such other address as a party may designate by written notice to each of
the other parties hereto.
8.2. Governing Law, Jurisdiction and Venue. This Agreement shall be
governed by and construed and enforced in accordance with the laws of the
State of California (regardless of that jurisdiction or any other
jurisdiction's choice of law principles). To the extent permitted by law, the
parties hereto agree that all actions or proceedings arising in connection
herewith, shall be arbitrated or litigated in the state and federal courts
located in the State of California, and each party hereby waives any right it
may have to assert the doctrine of Forum Non Conveniens or to object to venue.
The parties each hereby
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stipulate that the state and federal courts located in the County of Santa
Xxxxx, State of California, shall have personal jurisdiction and venue over
each party for the purpose of litigating any such dispute, controversy or
proceeding arising out of or related to this Agreement and beyond the scope of
mediation and arbitration set forth below.
8.3 Equitable Remedies. The parties acknowledge that money
damages would not be a sufficient remedy for any violation of Section 7 of
this Agreement, and, accordingly, the Company will be entitled to specific
performance, injunctive relief, or any other equitable relief as remedies for
any violation of this Agreement, without prejudice to any other rights and
remedies that the Company may have.
8.4 Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties and their respective successors, heirs
and permitted assigns. This Agreement may not be altered, modified, changed or
discharged except in writing signed by both the parties.
8.5 Surviving Agreement. Sections 2.2, 5, 6.2, 7 and Exhibit A
shall survive any termination of this Agreement.
8.6 Severability. If any one or more of the provisions (or any
part thereof) of this Agreement shall be held to be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions (or any part thereof) shall not in any way be affected or
impaired thereby.
8.7 No Waiver. The delay or failure of either party to enforce
at any time any provision of this Agreement shall in no way be considered a
waiver of any such provision, or any other provision, of this Agreement. No
waiver of, or delay or failure to enforce any provision of this Agreement
shall in any way be considered a continuing waiver or be construed as a
subsequent waiver of any such provision, or any other provision of this
Agreement.
8.8 Attorneys' Fees. In any litigation or arbitration between
the parties arising out of or related to this Agreement, the prevailing party
therein shall be entitled to have its attorneys' fees, arbitration expenses,
related litigation costs and costs of suit (if any) paid by the non-prevailing
party.
8.9 Arbitration. Except with respect to any breach or alleged
breach of Section 8 or Exhibit A hereof, any claim or controversy arising out
of or related to this Agreement which cannot be resolved informally shall be
settled in San Jose, California, by arbitration before a single arbitrator
agreeable to both parties under the then current commercial rules of the
American Arbitration Association. If the parties cannot agree on an
arbitrator within sixty (60) days after a demand for arbitration has been
requested in writing by either of them, then arbitration shall proceed before
an arbitrator appointed by the American Arbitration Association under its then
current commercial rules. The arbitration award shall be specifically
enforceable; judgment upon any arbitration award may be entered in any court
with personal jurisdiction over the parties and subject matter of the dispute.
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IN WITNESS WHEREOF, the parties hereto have executed this Directors
Agreement as of the day and year first above written.
DATALINK: DATALINK SYSTEMS CORPORATION
By: /s/ Xxxxxxx XxXxxx
Xxxxxxx XxXxxx, Chief Executive Officer
DIRECTOR: /s/ Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxxxx
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