This Consulting Services Agreement involves
Title: FORM OF CONSULTING AGREEMENT
Governing Law: Delaware Date: 9/25/2008
Industry: Recreational Products Sector: Consumer Cyclical
FORM OF CONSULTING AGREEMENT
This Consulting Agreement (the “Agreement”), effective as of ______, 2008 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.
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”):
[ADD DESCRIPTION OF CONSULTING SERVICES]
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 ___________ shares of the Company’s Common Stock, $.01 par value per share (the “Shares”). 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 been registered under the Securities Act of 1933 on a registration statement on Form S-8 filed with the Securities and Exchange Commission on September 12, 2006, as the same may be amended from time to time.
(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 Compan