ELEMENT 21 GOLF COMPANY SERIES A CONVERTIBLE PREFERRED STOCK EXCHANGE AGREEMENT AND ACKNOWLEDGEMENT
EXHIBIT
10.1
ELEMENT
21 GOLF COMPANY
SERIES
A CONVERTIBLE PREFERRED STOCK
EXCHANGE
AGREEMENT AND ACKNOWLEDGEMENT
This
Series A Convertible Preferred Stock Exchange Agreement and Acknowledgement
(this “Agreement”)
is
entered into as of February 22, 2006, between Element 21 Golf Company, a
Delaware corporation (the “Corporation”),
and
[Individual], an individual residing at [Address], (the “Stockholder”).
W I T N E
;S S E T H
WHEREAS,
the Corporation has authorized 5,000,000 shares of Preferred Stock under its
Amended and Restated Certificate of Incorporation and has designated 2,220,000
shares of such Preferred Stock as Series A Convertible Preferred Stock, par
value $0.001 per share (“Series
A Preferred Stock”),
the
voting powers, preferences and relative participating, option or other special
rights, and qualifications, limitations and restrictions of which are governed
by that certain Certificate of the Powers, Designations, Preferences and Rights
of Series A Convertible Preferred Stock, $.001 Par Value Per Share
(“Certificate
of Designation”)
attached hereto as Appendix
A;
WHEREAS,
the Stockholder is: (i) a stockholder who has loaned an aggregate amount of
$________ to the Corporation (“Indebtedness”);
and/or (ii) has previously rendered services to the Corporation for the benefit
of the Corporation as an independent contractor (“Services”);
WHEREAS,
the Corporation desires to issue, in full payment and satisfaction of the
Indebtedness and/or in consideration of the Services, to the Stockholder
__________ shares of Series A Preferred Stock (the “Total
Shares”)
pursuant to this Agreement and according to the terms and conditions hereof;
WHEREAS,
Stockholder desires to have and/or increase such Stockholder’s equity investment
in the Corporation and concomitant proprietary interest in the Company’s
financial success by investing in the Corporation and is willing to enter into
this Agreement;
NOW,
THEREFORE, in consideration of the promises and mutual covenants herein set
forth, and other good and valuable consideration, receipt of which is hereby
acknowledged, and intending to be legally bound by the terms and conditions
of
this Agreement, the parties hereto hereby mutually covenant and agree as
follows:
1. Grant
of Stock.
As
of the
date of this Agreement, the Corporation hereby agrees to grant to the
Stockholder, in full payment and satisfaction of the Indebtedness owing to
the
Stockholder and/or in consideration for any and all Services performed by
Stockholder, __________ Total Shares.
The fair
market value of such Total Shares, as of the date of this Agreement, is $0.255
per share.
2. Satisfaction
and Discharge.
Stockholder hereby acknowledges that the Corporation has granted to the
Stockholder the Total Shares, and in consideration of the same, Stockholder
hereby accepts such Total Shares as payment in full of the Indebtedness and/or
Services and acknowledges the satisfaction and discharge of: (i) the
Indebtedness; and/or (ii) any salary or other consideration owing for Services
performed by Stockholder as of the date hereof.
3. Acknowledgement
of Terms and Conditions of the Certificate of Designation.
Stockholder hereby acknowledges that the voting powers, preferences and relative
participating, option or other special rights and qualifications, limitations
and restrictions of the Series A Preferred Stock are governed by: (i) the
Certificate of Designation; (ii) the governing documents of the Corporation
including, without limitation, the Amended and Restated Certificate of
Incorporation and Amended and Restated By-laws; and (iii) the General
Corporation Law of the State of Delaware.
4. Title.
The
Total Shares granted by the Corporation to the Stockholder pursuant to this
Agreement will be, when delivered, duly authorized, validly issued, fully paid
and non-assessable, and will be free and clear of all liens, obligations and
encumbrances.
5. Miscellaneous.
| a. |
Notices.
All notices hereunder shall be in writing and shall be deemed given
when
sent by mail, if to the Stockholder, at the address shown on the
records
of the Company, and if to the Company, to the Company’s principal
executive offices, attention of the Corporate
Secretary.
|
| b. |
Entire
Agreement; Modification.
This agreement constitutes the entire agreement between the parties
relative to the subject matter hereof, and supersedes all proposals,
written or oral, and all other communications between the parties
relating
to the subject matter of this agreement. This agreement may be modified,
amended or rescinded only by a written agreement executed by both
parties.
|
| c. |
Severability.
The invalidity, illegality or unenforceability of any provision of
this
agreement shall in no way affect the validity, legality or enforceability
of any other provision.
|
| d. |
Successors
and Assigns.
This agreement shall be binding upon and inure to the benefit of
the
parties hereto and their respective successors and assigns, subject
to the
limitations set forth herein.
|
| e. |
Governing
Law.
This agreement shall be governed by and interpreted in accordance
with the
laws of the State of Delaware without giving effect to the principles
of
the conflicts of laws thereof.
|
[Remainder
of page intentionally blank; signature page follows.]
2
IN
WITNESS WHEREOF the parties hereto have caused this Agreement to be executed
in
multiple counterparts as of the date set forth above.
| ELEMENT 21 GOLF COMPANY | ||
| By:____________________________ | ||
| [Name] | ||
| [Title] | ||
| ____________________________ | ||
| [Name] |
3
Appendix
A
Certificate
of the Powers, Designations, Preferences and Rights
of
the Series A Convertible Preferred Stock, $.001 Par Value Per
Share
4
