CONSULTING AGREEMENT
Exhibit
10.11
This
Consulting Agreement (the “Agreement”), effective as of September 15, 2008 is
entered into by and between, Element 21 Golf Company, a Delaware corporation
(herein referred to as the “Company”), and Xxxxx Xxxxxxxxxxx, (herein referred
to as the “Consultant”). This agreement supersedes any prior oral or written
agreements between the parties hereto.
RECITALS
WHEREAS,
the Company desires to engage the Consultant to perform the Consulting Services
(as such term is defined below) pursuant to and in accordance with the terms of
this Agreement;
WHEREAS,
the Consultant wishes to provide the Consulting Services to the Company pursuant
to and in accordance with the terms of this Agreement;
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.
The Company hereby agrees to retain the Consultant to act in a consulting
capacity to the Company, and the Consultant hereby agrees to provide the
Consulting Services to the Company during the period commencing on the date
first above written and ending on December 31, 2008, unless this Agreement is
earlier terminated by either party hereto.
2. Duties of Consultant.
The Consultant agrees that it will generally provide the following specified
consulting services to the Company (the “Consulting Services”):
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Assist
the Company in sourcing of
materials;
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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 ;
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Introduce
the Company to manufacturers and
producers;
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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
communicating appropriate information regarding such plans
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At
the Company's request, review the purpose of advising the Company thereof;
and, production, design and manufacturing
plans
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Otherwise
perform as the Company's consultant for
manufacturing.
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3. Allocation of Time and
Energies. The Consultant hereby promises to perform the Consulting
Services 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 pursuant to this Agreement, so long as such
activities are in compliance with applicable laws and regulations. Consultant
and its staff if any, 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 its
duties hereunder 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 the Consultant as follows:
(a) For
agreeing to undertake this engagement and for performance of the services
described above, the Consultant shall be issued 144 Rule 200,000 shares of the
Company’s Common Stock, with issue price of 0.12 USD. The Company understands
and agrees that Consultant has foregone significant opportunities to accept this
engagement and that the Company will derive a substantial benefit from the
execution of this Agreement and the ability to announce its relationship with
Consultant. The Shares therefore, constitute payment in full for Consultant’s
agreement to provide the Consulting Services to the Company and represent a
nonrefundable, non-apportionable, and non-ratable retainer. The
Shares 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. 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 Company’s shares or assets, the Consultant shall retain
and will not be requested by the Company to return any of the
Shares.
(b) Upon
the Company’s transfer to the Consultant of the Shares, the Company shall cause
to be issued a certificate representing the Shares. The Company hereby
represents and warrants to the Consulting that the Shares 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.
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(c) Consultant
acknowledges that the Shares have NOT been registered under the Securities Act
of 1933 on a registration statement on Form S-8 filed with the
Securities.
(d) In
connection with the acquisition of Shares hereunder, the Consultant represents
and warrants to the Company, to the best of his, her or its 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 the Shares 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 an investment in the Shares 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.
(iv) Consultant
is not receiving any of the Shares in exchange for assisting the Company in any
fundraising activities.
5. Non-Assignability of
Services. Consultant’s services under this Agreement 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.
6. Expenses. Consultant
expenses related to the Companies’ work (phone, mailing, labor, etc.), will be
reimbursed. For travel to Russia and Asia, the consultant will
receive $300 per day stipend.
7. 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 Securities and Exchange Commission (“SEC”) or applicable
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.
8. Termination. This
Agreement may be terminated by either party hereto upon 30 days advance written
notice to the other party hereto.
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.
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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 13 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.
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AGREED
TO:
ELEMENT
21 GOLF COMPANY
/s/
Xxxxxxx Bedziouk
By:
Xxxxxxx Bedziouk
By:
Xxxxxxxx Xxxxx, President & Chairperson
Date:
Oct 21, 2008
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CONSULTANT
By:
Xxxxx Xxxxxxxxxxx
Date:
Oct 21, 2008
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