MANAGEMENT AGREEMENT
Exhibit 10.2
This
Management Agreement (hereinafter “Agreement”) is effective as of the 14 day
of January 2010 (hereinafter “Agreement Date”), and is made by and
between Zeroloft Corp. (hereinafter “Zeroloft”), a Wyoming corporation having a
legal address of 0000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx, 00000 and Element 21
Golf Company (hereinafter “E21 Sports”), a Delaware corporation having a legal
address of 000 Xxxxxx Xxxx Xxxx, Xxxx # 0, Xxxxxxx, Xxxxxxx X0X 0X0 Canada
(together, the “Parties”).
WHEREAS,
Zeroloft and E21 Sports have separately entered into a Trademark License
Agreement (hereinafter “License Agreement”) for the use and sublicensing of the
name and xxxx Zeroloft in various forms (hereinafter “Trademarks”) by E21
Sports; and
WHEREAS,
Zeroloft and E21 Sports are now desirous of memorializing their understandings
in connection with E21 Sports’ role of rendering services to Zeroloft for the
operation and expansion of Zeroloft’s manufacturing and licensing of its
proprietary, branded weather-resistant fabric, products made of such fabric,
thermal insulation and related insulating fabrics (hereinafter
“Product”);
NOW,
THEREFORE, in consideration of the foregoing recitals and the covenants and
conditions herein set forth, the Parties hereto agree as follows:
1.
Appointment.
Zeroloft
hereby appoints E21 Sports to render the Management Services as described in
Section 2 hereof for the Term of this Agreement.
2. Services.
(a) During the Term of this
Agreement, E21 Sports shall render to Zeroloft, by and through such of E21
SPORTS’ officers, employees, agents, representatives and affiliates as E21
SPORTS, in its sole discretion, shall designate from time to time, management,
business development and related services (hereinafter “Management Services”)
including: (i) expanding the customer base for the Product in the field of sport
wear apparel, footwear and related sports specialty items; and (ii) entering
into agreements directly with purchasers and OEM factories in connection with
the manufacture and sale of items comprised of the Product for use in
sportwear apparel, footwear and related sports specialty items; (iii) handling
marketing, customer relations, public relations and similar functions in
furtherance of the objectives of this Agreement.
(b) In consideration for the Management
Services, Zeroloft shall compensate E21 Sports as follows (hereinafter
“Management Fee”): (i) five percent (5%) on gross receipts of sales of items
made of the Product less than two (2) US dollars per square foot, less
royalties; and (ii) ten percent 10% on gross receipts of sales of items made of
Zeroloft Product greater than two (2) US dollars per square foot, less
royalties.
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(c) E21 SPORTS shall have
the right to deduct any Management Fees due to it from any royalties collected
from any receipts earned under this Agreement.
3.
Out-of-Pocket Expenses.
The
Parties hereby agree that E21 Sports shall not be entitled to or receive
reimbursement for any out-of-pocket expenses incurred in rendering the Agency or
Management Services, unless such reimbursement is agreed to in writing by
Zeroloft. For the purposes of this Agreement, the term “Out-of-Pocket
Expenses” shall mean the amounts actually paid by E21 Sports in cash in
connection with its performance of the Management Services, including, without
limitation, reasonable (i) fees and disbursements of any independent
auditors, outside legal counsel, consultants, investment bankers, financial
advisors and other independent professionals and organizations, (ii) costs
of any outside services or independent contractors such as printers, couriers,
delivery services or similar services and (iii) transportation, per diem,
telephone calls, word processing expenses or any similar expense not associated
with its ordinary operations. All reimbursements for Out-of-Pocket
Expenses shall be made promptly upon or as soon as practicable after
presentation by E21 Sports to Zeroloft of the statement in connection therewith,
assuming such expenses and reimbursement have been approved by Zeroloft, before
such expenses are incurred.
4.
Indemnification.
To the
extent not inconsistent with the License Agreement, Zeroloft will indemnify and
hold harmless E21 Sports and E21 Sports will indemnify and hold harmless
Zeroloft and its officers, employees, agents, representatives, members and
affiliates (each being an “Indemnified Party”) from and against any and all
losses, costs, expenses, claims, damages and liabilities (the “Liabilities”) to
which such Indemnified Party may become subject under any applicable law, or any
claim made by any third party, or otherwise, to the extent they relate to or
arise out of the performance of the Management Services contemplated by this
Agreement or the engagement of E21 Sports pursuant to, and the performance by
E21 Sports of the Management Services contemplated by, this
Agreement. Zeroloft will reimburse any Indemnified Party for all
reasonable costs and expenses (including reasonable attorneys’ fees and
expenses) as they are incurred in connection with the investigation of,
preparation for or defense of any pending or threatened claim for which the
Indemnified Party would be entitled to indemnification under the terms of the
previous sentence, or any action or proceeding arising therefrom, whether or not
such Indemnified Party is a party hereto, provided that, subject to the
following sentence, Zeroloft shall be entitled to assume the defense thereof at
its own expense, with counsel satisfactory to such Indemnified Party in its
reasonable judgment. Any Indemnified Party may, at its own expense,
retain separate counsel to participate in such defense, and in any action, claim
or proceeding in which Zeroloft, on the one hand, and an Indemnified Party, on
the other hand, is, or is reasonably likely to become, a party, such Indemnified
Party shall have the right to employ separate counsel at Zeroloft’s expense and
to control its own defense of such action, claim or proceeding if, in the
reasonable opinion of counsel to such Indemnified Party, a conflict or potential
conflict exists between Zeroloft, on the one hand, and such Indemnified Party,
on the other hand, that would make such separate representation
advisable. Zeroloft agrees that it will not, without the prior
written consent of the applicable Indemnified Party, settle, compromise or
consent to the entry of any judgment in any pending or threatened claim, action
or proceeding relating to the matters contemplated hereby (if any Indemnified
Party is a party thereto or has been actually threatened to be made a party
thereto). Provided that Zeroloft is not in breach of its
indemnification obligations hereunder, no Indemnified Party shall settle or
compromise any claim subject to indemnification hereunder without the consent of
Zeroloft, which consent shall not be unreasonably withheld.
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5.
Term and Termination.
The term
of this Agreement (the “Term”) shall commence on the Effective Date and shall
continue thereafter for one (1) year, unless sooner terminated by either party,
and shall automatically renew for additional periods of one (1) year unless
either party shall provide the other with written notice of non-renewal at least
ninety (90) days prior to the scheduled expiration date for any
term.
This
Agreement may be terminated: (a) by either party in the event the other party
materially breaches the terms and conditions of this Agreement, provided that
the non-breaching party gives the breaching party written notice of any such
breach and the breaching party fails to cure (or fails to take reasonable steps
to cure) such breach within thirty (30) days thereof; (b) by either party in the
event the other party makes a general assignment for the benefit of creditors,
files a voluntary petition in bankruptcy or for reorganization or arrangement
under the bankruptcy laws, if a petition in bankruptcy is filed against such
party, or if a receiver or trustee is appointed for all or any part of the
property or assets of such party, and provided that any such action is not
dismissed within thirty (30) days after such action is initiated; or (c) by a
written agreement executed by the parties.
The
provisions of Sections 4, 5, 7, 8 and otherwise as the context so requires
shall survive the termination of this Agreement.
6. Other
Activities.
Nothing
herein shall in any way preclude E21 Sports or its officers, employees, agents,
representatives, members or affiliates from engaging in any business activities
or from performing services for its or their own account or for the account of
others, including for companies that may be in competition with the business
conducted by Zeroloft.
7.
General.
(a) No
amendment or waiver of any provision of this Agreement, or consent to any
departure by either party from any such provision, shall be effective unless the
same shall be in writing and signed by the Parties, and, in any case, such
amendment, waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given.
(b) Subject
to the terms of the License Agreement, this Agreement and the rights of the
Parties hereunder may not be assigned without the prior written consent of the
Parties hereto.
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(c) Any
and all notices hereunder shall, in the absence of receipted hand delivery, be
deemed duly given when mailed, if the same shall be sent by registered or
certified mail, return receipt requested, and the mailing date shall be deemed
the date from which all time periods pertaining to a date of notice shall
run. Notices shall be addressed to the parties at the following
addresses:
If to
Zeroloft: Zeroloft
Corp.
0000 Xxxxxx Xxxxxx
Xxxxxxxx,
Xxxxxxx 00000
XXX
If to E21
Sports: Element
21 Sports Company
000 Xxxxxx Xxxx Xxxx, Xxxx #
0
Xxxxxxx,
Xxxxxxx X0X 0X0
Xxxxxx
(d) This
Agreement shall constitute the entire agreement between the Parties with respect
to the subject matter hereof, and shall supersede all previous oral and written
(and all contemporaneous oral) negotiations, commitments, agreements and
understandings relating hereto.
(e) This
Agreement shall be governed by, and enforced in accordance with, the laws of the
State of New York (excluding the choice of law principles thereof). The parties
to this Agreement hereby agree to submit to the jurisdiction of the federal and
state courts located in the State of New York in any action or proceeding
arising out of or relating to this Agreement. This Agreement shall
inure to the benefit of, and be binding upon, E21 Sports and Zeroloft (including
any present or future subsidiaries of Zeroloft or E21 Sports that are not
signatories hereto), and their respective successors and assigns.
(f) This
Agreement may be executed in one or more counterparts and shall become effective
when one or more counterparts have been signed by all parties. Each
counterpart shall be deemed an original but all counterparts shall constitute a
single instrument. Any facsimile copy, other copy or reproduction of a single
counterpart original of this Agreement shall be as fully effective and binding
as the original signed counterpart of this Agreement.
(g) The
waiver by any party of any breach of this Agreement shall not operate as or be
construed to be a waiver by such party of any subsequent breach.
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(h) The
Section headings are convenience only and shall not affect the meaning of the
provisions to which they refer.
Attest:
| Zeroloft Corp. | Element 21 Golf Company | |||
|
/s/
Xxxxxxx Xx
|
/s/
Xxxxxxxx Xxxxx
|
|||
|
Xxxxxxx
Xx, Senior Vice President
|
Xxxxxxxx
Xxxxx, CEO
|
|||
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Dated: January
14, 2010
|
Dated:
January 14, 2010
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