CONSULTING AGREEMENT
Exhibit
99.2
This
Consulting Agreement (the "Agreement"), effective as of .
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 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 ,
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, or the
trading volume of the Company's common stock.
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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
per month of the Company's Common Stock. $.01 par value per share (the "Shares")
with issue price based on 5 day closing average as . 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.
(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 often (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.
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(iv)
Consultant is not receiving any of the Shares in exchange for assisting the
Company in any fundraising activities.
5. Non-Assignabilitv
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.
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 arbitrators) 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.
AGREED
TO:
ELEMENT
21 GOLF COMPANY
____________________________
By:
Xxxxxxxx Xxxxx, President, and CEO
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