DIRECTOR APPOINTMENT AGREEMENT
This Director Appointment Agreement, (the "Agreement") dated as of February 15,
2005 by and between Zone4Play, Inc., a company incorporated under the laws of
the state of Nevada (the "Company"), and Xxxx Xxxx, residing at 00 Xxxxxx Xx.,
Xxx Xxxxxxxxx, XX 00000 XXX (the "Director").
WHEREAS, the Company wishes to appoint Director, and Director agrees to be
appointed by the Company, as a member of the Board of Directors of the Company.
NOW, THEREFORE, in consideration of the mutual undertakings and premises herein
contained, the parties hereto hereby agree as follows:
1. The Appointment
The Company hereby appoints Director, and Director hereby agrees to be appointed
by the Company, as a member of the Company's Board of Directors (the "Board").
In serving as a member of the Board, Director acknowledges and agrees that
during the term hereof acting as a member of the Board, Director shall be bound
by all applicable laws and regulations and the Company's Articles of
Incorporation, By-laws or other governing instruments or contractual commitments
of the Company which govern or control in any way Director's rights, powers,
duties or responsibilities as a member of the Board.
Director will exercise care and diligence in exercising Director's position as a
member of the Board and as a director of the Company. Director shall not take
any action which reasonably would or could result in a conflict with, or
prejudice to, the interests of the Company.
2. Scope of Services
Director shall use Director's best efforts during the term of Director's
appointment to the extent reasonably expected by his obligations, to the affairs
and business of the Company as shall be reasonably necessary in order for him to
perform his duties as a director, including participation in all Board meetings,
and if so required in committees of the Board.
3. Compensation
In consideration of the services provided to the Company by Director hereunder,
the company shall compensate Director as follows:
3.1 While Director serves as a member of the Board, the Company shall pay
Director a director's fee of 7,000 U.S. Dollars (US$) per annum, payable
in quarterly installments. In addition, the Company shall pay 750 U.S.
Dollars (US$) per board meeting.
3.2 It is agreed by Director and the Company that the said fee shall cover all
expenses incurred by Director in the discharge of Director's duties under
this Agreement. Notwithstanding the foregoing, the Company shall reimburse
Director for reasonable travel and other expenses incurred by Director in
connection with the performance of Director's duties and responsibilities
hereunder, provided that such expenses are approved in advance by the
Company and supported with customary receipts and expense reports.
3.3 Stock Option
Director shall be granted an option under the terms of the Company's
option plan to purchase 192,261 shares of common stock of the Company,
with an exercise price per share equal to the fair-market value per share
of the Company's Common Stock on the date of the Grant (the "Option") less
10% discount. Director's rights to exercise the Option shall vest in three
equal annual installments during a period of three years commencing on the
date of this agreement, whereby Director shall have the option to purchase
1/3 of the shares subject to the Option at the expiration of the first,
second and third year respectively from the date hereof, provided that
this Agreement is not earlier terminated. In the event of a termination of
this Agreement for Cause (as defined below) at any time, the Option, to
the extent not exercised shall terminate and be cancelled and
non-exercisable.
3.4 The Company shall issue directors and officers insurance policy in
accordance with the customary practices of the Company and the terms
customary in its industry and bear all costs related thereto.
3.5 Director acknowledges that Director is not an employee of the Company for
any purpose and shall not be entitled to participate in any retirement,
health or other benefits which are reserved to employees of the Company.
Director acknowledges that Director is responsible for payment of all
taxes associated with the fees and director stock options granted
hereunder.
4. Confidential Information
4.1 In the course of being a member of the Board, Director may have
access to, and become familiar with, "Confidential Information" of
the Company (as hereinafter defined). Director shall at all times
hereinafter maintain in the strictest confidence all such
Confidential Information and shall not divulge any Confidential
Information to any person, firm or corporation without the prior
written consent of the Company. For purposes hereof, "Confidential
Information" shall mean all information in any and all medium which
is confidential by its nature, including, without limitation, data,
technology, know-how, inventions, discoveries, designs, processes,
formulations, models, and/or trade and business secrets relating to
any line of business in which the Company is involved. Confidential
Information shall also include the Company's marketing and business
plans relating to current, planned or nascent products.
4.2 Director shall not use any Confidential Information for, or in
connection with, the development, manufacture or use of any product
or for any other purpose whatsoever except as and to the extent
provided in this Agreement or in any other subsequent agreement
between the parties.
4.3 Notwithstanding the foregoing, Confidential Information shall not
include any information which Director can prove to the Company by
appropriate documentation is: (i) in, or enters the public domain
otherwise than by reason of a breach hereof by Director; (ii) known
by Director at the time of disclosure thereof by the Company; (iii)
independently developed by Director without recourse to Confidential
Information; or (iv) rightfully transmitted or disclosed to Director
by a third party which owes no obligation of confidentiality with
respect to such information.
4.4 All Confidential Information made available to, or received by,
Director shall remain the property of the Company, and no license or
other rights in or to the Confidential Information is granted
hereby. The obligation of Director not to use any Confidential
Information disclosed pursuant to this Agreement except as provided
in this Agreement shall remain in effect indefinitely, and the
Director shall be prohibited from disclosing any such Confidential
Information during the term of this Agreement and thereafter.
4.5 All files, records, documents, drawings, specifications, equipment,
and similar items relating to the business of the Company, whether
prepared by Director or otherwise coming into his possession, and
whether classified as Confidential Information or not, shall remain
the exclusive property of the Company. Upon termination or
expiration of this Agreement, or upon request by the Company,
Director shall promptly turn over to the Company all such files,
records, reports analyses, documents, and other material of any kind
concerning the Company which Director obtained, received or prepared
pursuant to this Agreement.
5. Terms and Termination
5.1 Subject to the other provision of the Section 5, this Agreement
shall become effective on the date hereof and shall continue in full
force and effect until ........................ unless previously
terminated by either party upon the giving of thirty-day prior
written notice to the other party or by the Company pursuant to
Section 6.2 hereof.
5.2 The provisions of Section 6.1 hereof to the contrary
notwithstanding, the Company shall have the right to terminate this
Agreement following the terms of the Company's Articles of
incorporation, By-laws or other governing instruments, with or
without Cause, by giving Director notice of termination. For
purposes hereof "Cause" shall mean the good faith determination by
the Company's Board of Directors that Director (a) has breached the
specific performance duties assigned to Director in this Agreement
which Director has not diligently commenced to cure and completed
the cure of within ten days following specific written notice of the
breach; (b) has disclosed Confidential Information of or relating to
the Company or (c) has breached his fiduciary duties of loyalty to
the Company.
6. Miscellaneous
6.1 Any notice under this Agreement shall be in writing and shall be
deemed to have been duly given for all purposes (a) seven (7) days
mailing be prepaid registered mail; or (b) upon manual delivery, to
the respective addresses or faxes set forth above or to such other
address of which notice as aforesaid has actually been received.
6.2 Other than the term and conditions set forth in the Articles of
Incorporation, By-laws or other governing instruments of the
Company, this Agreement is the entire Agreement between the parties
with respect to the subject matter hereof, and supersedes all prior
understandings, agreements and discussions between them, written or
oral, with respect to such subject matter.
6.3 This Agreement shall not be modified or amended except by a written
instrument signed by the parties hereto. No Waiver or failure to act
with respect to any breach or default hereunder, subsequent breach
or default, whether of similar or different nature.
6.4 This Agreement may not be assigned without the written consent of
the other party.
6.5 This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York.
IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the date first written above.
By: /s/ Xxxx Xxxx
February 15, 2005
ZONE 4 PLAY, INC.
By: /s/ Xxx Xxxx
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Name: Xxx Xxxx
Title: Chief Financial Officer
February 15,2005
