EXHIBIT 10.9
LOAN FORGIVENESS AGREEMENT
This Loan Forgiveness Agreement, dated June 28, 1996, is by and between
DataLink Systems Corporation, a Nevada corporation ("DataLink") and Xxxxxxx
XxXxxx ("XxXxxx").
Recitals.
A. DataLink and XxXxxx entered into an Employment Agreement, dated
May 1, 1996, whereby XxXxxx agreed to serve as Chief Executive Officer of
DataLink (the "Employment Agreement"). Except as otherwise set forth herein,
capitalized terms shall have the meanings ascribed to them in the Employment
Agreement.
B. Subject to the terms and conditions set forth herein, XxXxxx and
DataLink desire to supplement the Employment Agreement to provide for the loan
forgiveness of the principal and interest due under that certain Nonrecourse
Promissory Note, dated May 1, 1996 (the "Note"), provided that XxXxxx
continues as Chief Executive Officer of DataLink through May 1, 1999.
Agreement.
NOW, THEREFORE in consideration of the mutual covenants set forth herein
and for other good and valuable consideration, the parties hereby agree as
follows:
1. Loan Forgiveness. At the close of business on May 1, 1999 (the
"Third Anniversary"), all principal and interest due under that certain
Nonrecourse Promissory Note, dated May 1, 1996, in the original principal
amount of $1,500,000, executed and delivered by XxXxxx in favor of DataLink
(the "Note"), shall be automatically and immediately forgiven and cancelled,
provided that the following conditions have been met:
1.1 XxXxxx shall have continued as Chief Executive Officer of
DataLink through the close of business on May 1, 1996; and
1.2 There shall be no existing and uncured default by XxXxxx of
any material obligation of his under the Employment Agreement.
Provided that the foregoing conditions have been met, at the close of business
on the Third Anniversary, DataLink shall cancel the Note, record such
cancellation on the books and records of DataLink and deliver the original
Note, xxxx cancelled, to XxXxxx, provided however, that DataLink's failure to
perform any of the foregoing acts shall not in any way affect the automatic
cancellation of the debts and obligations of XxXxxx under the Note.
Concurrently with the close of business on the Third Anniversary, XxXxxx shall
be forever and unconditionally released from all obligations and liabilities
whatsoever under the Note.
2. Jurisdiction, Venue and Governing Law. 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
-1-
that all actions or proceedings arising in connection herewith, shall be
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 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. To the extent permitted by law, service
of process sufficient for personal jurisdiction in any action against either
party may be made by registered or certified mail, return receipt requested,
to its address indicated on the first page hereof.
3. Validity. 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.
4. Attorneys' Fees. The prevailing party shall be entitled to
recover from the losing party its attorneys fees and costs incurred in any
action or proceeding, including arbitration, brought to interpret this
Agreement or to enforce any right arising out of this Agreement.
5. No Waiver of Rights. 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.
IN WITNESS WHEREOF, the undersigned have executed this Loan Forgiveness
Agreement as of the date first set forth above.
DATALINK: DATALINK SYSTEMS CORPORATION
By: /s/ Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxxxx, Secretary
XXXXXX: /s/ Xxxxxxx XxXxxx
Xxxxxxx XxXxxx
-2-
