Exhibit 4
PROFORMA CONSULTANT AGREEMENT
This Consulting Agreement (the "Agreement"), effective as of
____________________, 2005 is entered into by and between, Element 21 Golf
Company, a Delaware corporation (herein referred to as the "Company"), and
_____________________, (herein referred to as the" Consultant"). This agreement
supercedes any prior oral or written agreements between the parties hereto.
RECITALS
WHEREAS, Company is a public company seeking to;
WHEREAS, Company desires to engage the services of Consultant to represent the
company in marketing its products as to the Company's current and proposed
activities, and to consult with management concerning such Company activities;
NOW THEREFORE, in consideration of the promises and the mutual covenants and
agreements hereinafter set forth, the parties hereto covenant and agree as
follows:
1) Term of Consultancy. Company hereby agrees to retain the Consultant to act in
a consulting capacity to the Company, and the Consultant hereby agrees to
provide services to the Company commencing from the date that this contract is
effective and ending __________________months after the date.
2) Duties of Consultant. The Consultant agrees that it will generally provide
the following specified consulting services:
a) Assist the Company in_______________________________________;
b) Consult and assist the Company in developing and implementing
appropriate plans and means for presenting the Company and its business plans,
strategy and personnel to the financial community, establishing an image for the
Company ;
c) Introduce the Company to _________________________;
d) With the cooperation of the Company, maintain an awareness during the
term of this Agreement of the Company's plans, strategy and personnel, as they
may evolve during such period, and consult and assist the Company in
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e) At the Company's request, review
_______________________________________ the purpose of advising the Company
thereof; and,
j) Otherwise perform as the Company's consultant for
____________________________.
3) Allocation of Time and Energies. The Consultant hereby promises to perform
and discharge faithfully the responsibilities which may be assigned to the
Consultant from time to time by the officers and duly authorized representatives
of the Company in connection with the conduct of its
___________________________________________ activities, so long as such
activities are in compliance with applicable securities laws and regulations.
Consultant and staff shall diligently and thoroughly provide the consulting
services required hereunder. Although no specific hours-per-day requirement will
be required, Consultant and the Company agree that Consultant will perform the
duties set forth herein above in a diligent and professional manner. It is
explicitly understood that Consultant's performance of its duties hereunder will
in no way be measured by the price of the Company's common stock, nor the
trading volume of the Company's common stock.
4) Remuneration. As full and complete compensation for services described in
this Agreement, the Company shall compensate ____________________ as follows:
a) For undertaking this engagement and for performance of the services
described above for a period of at least ________________________ months, the
Company acknowledges that Consultant shall be issued
_____________________________________ shares of common stock of the Company,
with a par value of $0.001 per share and a current value of $_________ per
share. The Company understands and agrees that Consultant has foregone
significant opportunities to accept this engagement and that the Company derives
substantial benefit from the execution of this Agreement and the ability to
announce its relationship with Consultant. The shares of Common Stock,
therefore, constitute payment for Consultant's agreement to consult to the
Company and are a nonrefundable, non-apportionable, and non-ratable retainer;
such shares of common stock are not a prepayment for future services. If and in
the event the Company is acquired during the term of this agreement, it is
agreed and understood Consultant will not be requested or demanded by the
Company to return any of the shares of Common stock paid to it hereunder. It is
further agreed that if at any time during the term of this agreement, the
Company or substantially all of the Company's assets are merged with or acquired
by another entity, or some other change occurs in the legal entity that
constitutes the Company that results in a change in control of substantially all
of the Companies shares or assets, the Consultant shall retain and will not be
requested by the Company to return any of the shares. Consultant agrees that it
will not sell or transfer during the term of this Agreement any of the Company
stock issued to Consultant.
b) With each transfer of shares of Common Stock to be issued pursuant to
this Agreement (collectively, the "Shares"), Company shall cause to be issued a
certificate representing the Common Stock and a written opinion of counsel for
the Company stating that said shares are validly issued, fully paid and
non-assessable and that the issuance and eventual transfer of them to Consultant
has been duly authorized by the Company. Company warrants that all Shares issued
to Consultant pursuant to this Agreement shall have been validly issued, fully
paid and non-assessable and that the issuance and any transfer of the shares to
Consultant shall have been duly authorized by the Company's board of directors.
e) Consultant acknowledges that the shares of Common Stock to be issued
pursuant to this Agreement (collectively, the "Shares") have been registered
under the Securities Act of 1933 under form S8.
f) In connection with the acquisition of Shares hereunder, the Consultant
represents and warrants to the Company, to the best of its/his knowledge, as
follows:
i) Consultant acknowledges that the Consultant has been afforded the
opportunity to ask questions of and receive answers from duly authorized
officers or other representatives of the Company concerning an investment in the
Shares, and any additional information which the Consultant has requested.
ii) Consultant's investment in restricted securities is reasonable
in relation to the Consultant's net worth, which is in excess of ten (10) times
the Consultant's cost basis in the Shares. Consultant has had experience in
investments in restricted and publicly traded securities, and Consultant has had
experience in investments in speculative securities and other investments which
involve the risk of loss of investment. Consultant acknowledges that an
investment in the Shares is speculative and involves the risk of loss.
Consultant has the requisite knowledge to assess the relative merits of this
investment without the necessity of relying upon other advisors, and Consultant
can afford the risk of loss of his entire investment in the Shares. Consultant
is (i) an accredited investor, as that term is defined in Regulation D
promulgated under the Securities Act of 1933, and (ii) a purchaser described in
Section 25102 (f) (2) of the California Corporate Securities Law of 1968, as
amended.
iii) Consultant is acquiring the Shares for the Consultant's own
account for long-term investment and not with a view toward resale or
distribution thereof except in accordance with applicable securities laws.
5) Non-Assignability of Services. Consultant's services under this contract are
offered to Company only and may not be assigned by Company to any entity with
which Company merges or which acquires the Company or substantially all of its
assets. In the event of such merger or acquisition, all compensation to
Consultant herein under the schedules set forth herein shall remain due and
payable, and any compensation received by the Consultant may be retained in the
entirety by Consultant, all without any reduction or pro-rating and shall be
considered and remain fully paid and non-assessable. Notwithstanding the
non-assignability of Consultant's services, Company shall assure that in the
event of any merger, acquisition, or similar change of form of entity, that its
successor entity shall agree to complete all obligations to Consultant,
including the provision and transfer of all compensation herein, and the
preservation of the value thereof consistent with the rights granted to
Consultant by the Company herein, and to Shareholders.
6) Expenses. Consultant agrees to pay for all its expenses (phone, mailing,
labor, etc.), other than extraordinary items (travel required by/or specifically
requested by the Company_________________________________________)
7) Indemnification. The Company warrants and represents that all oral
communications, written documents or materials furnished to Consultant by the
Company with respect to financial affairs, operations, profitability and
strategic planning of the Company are accurate and Consultant may rely upon the
accuracy thereof without independent investigation. The Company will protect,
indemnify and hold harmless Consultant against any claims or litigation
including any damages, liability, cost and reasonable attorney's fees as
incurred with respect thereto resulting from Consultant's communication or
dissemination of any said information, documents or materials excluding any such
claims or litigation resulting from Consultant's communication or dissemination
of information not provided or authorized by the Company.
8) Representations. Consultant represents that it is not required to maintain
any licenses and registrations under federal or any state regulations necessary
to perform the services set forth herein. Consultant acknowledges that, to the
best of its knowledge, the performance of the services set forth under this
Agreement will not violate any rule or provision of any regulatory agency having
jurisdiction over Consultant. Consultant acknowledges that, to the best of its
knowledge, Consultant and its officers and directors are not the subject of any
investigation, claim, decree or judgment involving any violation of the SEC or
securities laws. Consultant further acknowledges that it is not a securities
Broker Dealer or a registered investment advisor. Company acknowledges that, to
the best of its knowledge, that it has not violated any rule or provision of any
regulatory agency having jurisdiction over the Company. Company acknowledges
that, to the best of its knowledge, Company is not the subject of any
investigation, claim, decree or judgment involving any violation of the SEC or
securities laws.
9) Legal Representation. The Company acknowledges that it has been represented
by independent legal counsel in the preparation of this Agreement. Consultant
represents that it has consulted with independent legal counsel and/or tax,
financial and business advisors, to the extent the Consultant deemed necessary.
10) Status as Independent Contractor. Consultant's engagement pursuant to this
Agreement shall be as independent contractor, and not as an employee, officer or
other agent of the Company. Neither party to this Agreement shall represent or
hold itself out to be the employer or employee of the other. Consultant further
acknowledges the consideration provided hereinabove is a gross amount of
consideration and that the Company will not withhold from such consideration any
amounts as to income taxes, social security payments or any other payroll taxes.
All such income taxes and other such payment shall be made or provided for by
Consultant and the Company shall have no responsibility or duties regarding such
matters. Neither the Company nor the Consultant possesses the authority to bind
each other in any agreements without the express written consent of the entity
to be bound.
11) Attorney's Fees. If any legal action or any arbitration or other proceeding
is brought for the enforcement or interpretation of this Agreement, or because
of an alleged dispute, breach, default or misrepresentation in connection with
or related to this Agreement, the successful or prevailing party shall be
entitled to recover reasonable attorneys' fees and other costs in connection
with that action or proceeding, in addition to any other relief to which it or
they may be entitled.
12) Waiver. The waiver by either party of a breach of any provision of this
Agreement by the other party shall not operate or be construed as a waiver of
any subsequent breach by such other party.
13) Choice of Law, Jurisdiction and Venue. This Agreement shall be governed by,
construed and enforced in accordance with the laws of the State of Delaware. The
parties agree that Delaware will be the venue of any dispute and will have
jurisdiction over all parties.
14) Arbitration. Any controversy or claim arising out of or relating to this
Agreement, or the alleged breach thereof, or relating to Consultant's activities
or remuneration under this Agreement, shall be settled by binding arbitration in
Delaware, in accordance with the applicable rules of arbitration, and judgment
on the award rendered by the arbitrator(s) shall be binding on the parties and
may be entered in any court having jurisdiction as provided by Paragraph 14
herein.
15) Complete Agreement. This Agreement contains the entire agreement of the
parties relating to the subject matter hereof. This Agreement and its terms may
not be changed orally but only by an agreement in writing signed by the party
against whom enforcement of any waiver, change, modification, extension or
discharge is sought.
AGREED TO:
Element 21 Golf Company
Date: By:
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(Consultant)
Date: By:
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