-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, OywTgFLdX3CxkmA8lBjJyOeYN/PqvIzXIXJpRfS6JDQo5mm+oyHYXHdyoydsLbur zRB02IH4iTr2+i9fI9NvXg== 0001144204-05-022226.txt : 20050722 0001144204-05-022226.hdr.sgml : 20050722 20050721175558 ACCESSION NUMBER: 0001144204-05-022226 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20050722 DATE AS OF CHANGE: 20050721 EFFECTIVENESS DATE: 20050722 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ELEMENT 21 GOLF CO CENTRAL INDEX KEY: 0000797662 STANDARD INDUSTRIAL CLASSIFICATION: [3949] IRS NUMBER: 880218411 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-126796 FILM NUMBER: 05967158 BUSINESS ADDRESS: STREET 1: 340 GRANITE STREET STREET 2: SUITE 200 CITY: MANCHESTER STATE: NH ZIP: 03102-4004 BUSINESS PHONE: 6036418443 MAIL ADDRESS: STREET 1: 340 GRANITE STREET STREET 2: SUITE 200 CITY: MANCHESTER STATE: NH ZIP: 13102-4004 FORMER COMPANY: FORMER CONFORMED NAME: BRL HOLDINGS INC DATE OF NAME CHANGE: 20011212 FORMER COMPANY: FORMER CONFORMED NAME: BIORELEASE CORP DATE OF NAME CHANGE: 19930809 FORMER COMPANY: FORMER CONFORMED NAME: OIA INC DATE OF NAME CHANGE: 19920703 S-8 1 v022202.txt SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ELEMENT 21 GOLF COMPANY ------------------ (Exact name of registrant as specified in its charter) Delaware 88-0218411 -------- ---------- (State or other jurisdiction of (I. R. S. Employment Number) incorporation or organization) 264 Queens Quay W # 303 Toronto, Ontario, Canada M5J 2L4 -------------------- (Address of Principal Executive Offices) (800) 710-2021 -------------- (Issuer's Telephone Number, including Area Code) 2005 CONSULTANT STOCK COMPENSATION PLAN ------------------------------------------------------------ (Full title of the Plan) Jim Morin 196 Technology Dr. Suite C Irvine, CA 92618 -------------------- (Name and Address of Agent for Service) (949) 340-3861 -------------- (Telephone number including area code, of agent for service) IF ANY OF THE SECURITIES BEING REGISTERED ON THIS FORM ARE TO BE OFFERED ON A DELAYED OR CONTINUOUS BASIS PURSUANT TO RULE 415 UNDER THE SECURITIES ACT OF 1933, OTHER THAN SECURITIES OFFERED ONLY IN CONNECTION WITH DIVIDEND OR INTEREST REINVESTMENT PLANS, CHECK THE FOLLOWING BOX: [ ] CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------ Title of Each Proposed Proposed Class of Maximum Maximum Amount of Securities to Amount to Price per Aggregate Registration be Registered be Registered(1) Unit/Share Offering Price Fee(2) - ------------------------------------------------------------------------------------------------------ $0.01 par value common voting stock 13,346,688 $0.06 $800,801 $94.25 - ------------------------------------------------------------------------------------------------------
(1) Pursuant to Consulting Agreements for services rendered. None of the Consultants is believed presently to be an "affiliate" of the Registrant; however, if any becomes an "affiliate" at any time that he or she owns securities that are registered hereunder, resale by that person must also be made in compliance with applicable provisions of Rule 144. (2) Calculated according to Rule 230.457(h) of the Securities and Exchange Commission, based upon the exercise price of the options covering the underlying common stock to be issued under the Plan. PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS Item 1. Plan Information. ----------------- A copy of our ("Element 21 Golf Company," or the "Company," "we," "our" and "us" or words of similar import) proforma written Consulting agreement (the" Consulting Agreements") is attached hereto and incorporated herein by reference. (See the Exhibit Index) Item 2. Registrant Information and Employee Plan Annual Information. ------------------------------------------------------------ Not Applicable. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. ---------------------------------------- We are subject to the information requirements of the Securities Exchange Act of 1934 (the "Exchange Act") and, in accordance with the Exchange Act, we file reports with the Securities and Exchange Commission. The documents listed below are hereby incorporated by reference into this Registration Statement on Form S-8; and all documents subsequently filed by us pursuant to Sections 13(a),13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities registered and offered hereby have been sold or which de-registers all securities remaining unsold, shall be deemed to be incorporated herein by reference in this Registration Statement, and shall be a part hereof from the date of the filings of such documents. (a) Element 21's Current Report on Form 8-K, filed on January 7, 2005. (b) Our Annual Report on Form 10-KSB for the fiscal year ended June 30,2004, filed December 21,2004; and (c) Element's Quarterly Report on Form 10-Q for the quarter ended March 31, 2005, filed on May 13, 2005. (d) All other reports filed by Element 21 pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), since December 31, 2004. (e) We are authorized to issue two class of securities, that are comprised of $0.01 par value common voting stock, and a class of preferred stock with a $0.10 par value, of which no shares are issued or outstanding. The holders of our $0.01 par value common stock have traditional rights as to voting, dividends and liquidation. All shares of common stock are entitled to one vote on all matters; there are no pre-emptive rights and cumulative voting is not allowed. The common stock is not subject to redemption and carries no subscription or conversion rights. In the event of our liquidation, the holders of our common stock are entitled to share equally in corporate assets after satisfaction of all liabilities. All documents subsequently filed by Element 21 with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated by reference in this Registration Statement and made a part hereof from their respective dates of filing (such documents, and the documents enumerated above, being hereinafter referred to as "Incorporated Documents"); provided, however, that the documents enumerated above or subsequently filed by Element 21 pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act in each year during which the offering made by this Registration Statement is in effect prior to the filing with the Commission of the Company's Annual Report on Form 10-K covering such year shall not be Incorporated Documents or be incorporated by reference in this Registration Statement or be a part hereof from and after the filing of such Annual Report on Form 10-K. Any statement contained in this Registration Statement, in an amendment hereto or in an Incorporated Document shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed amendment to this Registration Statement or in any subsequent Incorporated Document modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. Item 4. Description of Securities. -------------------------- Not applicable; however, see Item 3(c) above. Item 5. Interest of Named Experts and Counsel. -------------------------------------- The validity of the authorization and issuance of the common stock being registered hereby will be passed upon by William Yarno, P.C. Item 6. Indemnification of Directors and Officers. ------------------------------------------ Section 145 of the Delaware General Corporation Law (DGCL) permits us to indemnify our directors, officers, employees and agents against actual and reasonable expenses (including attorneys' fees) incurred by them in connection with any action, suit or proceeding brought against them by reason of their status or service as a director, officer, employee or agent by or on our behalf and against expenses (including attorneys' fees), judgments, fines and settlements actually and reasonably incurred by him or her in connection with any such action, suit or proceeding, if: o He or She acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of Element 21 and o in the case of a criminal proceeding, he or she had no reasonable cause to believe his or her conduct was unlawful. Except as ordered by a court, no indemnification shall be made in connection with any proceeding brought by or in the right of the corporation where the person involved is adjudged to be liable to us. Item 7. Exemption from Registration Claimed. ------------------------------------ Not applicable. Item 8. Exhibits. --------- Exhibit Number - ------ 1. Opinion and Consent of William Yarno, P.C. re the legality of the securities registered. 2. Consent of William Yarno, P.C., to use the opinion with respect to the legality of the securities being registered is contained in Exhibit 5 above. 4. Consent of Lazar, Levine & Felix LLP, Independent Registered Public Accounting Firm 5. Form of Consulting Agreement 6. Power of Attorney Item 9. Undertakings. ------------- We hereby undertake: (a) (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) To include any prospectus required by Section 10(a) (3) of the Securities Act of 1933 (the "Securities Act"); (ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement; and (iii) To include any additional or changed material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; provided, however, only to the extent required by the general rules and regulations of the Securities and Exchange Commission. (2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) That for purposes of determining any liability under the 1933 Act, each filing of the Registrant's annual report pursuant to Section 13(a) or Section15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (h) Insofar as indemnification for liabilities arising under the Securities Act, as amended, may be permitted to directors, executive officers and controlling persons of the Registrant as outlined above or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission, such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, executive officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, executive officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question of whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. SIGNATURES Pursuant to the requirements of Section 13 or 15(d) of the Exchange Act of 1934, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement on Form S-8 to be signed on its behalf by the undersigned, thereunto duly authorized, on the date set forth below. Element 21 Golf Company Date: July 15, 2005 By: /s/Nataliya Hearn, Ph.D. ------------------------- Nataliya Hearn, President Pursuant to the requirements of the Securities Act, the following persons on behalf of the Registrant and in the capacities and on the dates indicated have signed this registration statement below. Date: July 15, 2005 By: /s/ ----------------------- Nataliya Hearn, President and Director Date: July 15, 2005 By: /s/ ----------------------- Gerald Enloe, Director Date: July 15, 2005 By: /s/ ----------------------- Jim Morin, Treasurer and Director POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Nataliya Hearn, Gerald Enloe and Jim Morin his or her true and lawful attorney-in-fact and agent with full power of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including pre-effective and post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or either of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
Name Title Date - -------------------------------- ------------------------------- ------------------------------- /s/ Nataliya Hearn President, Chief Executive July 15, 2005 ------------------- Officer and Director Nataliya Hearn /s/ Gerald Enloe Director July 15, 2005 ------------------- Gerald Enloe /s/ Jim Morin Secretary and Director July 15, 2005 ------------------- Jim Morin
SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 EXHIBITS TO FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ELEMENT 21 GOLF COMPANY EXHIBIT INDEX Exhibit Number - ------ 1. Opinion and Consent of William Yarno, P.C. re the legality of the securities registered. 2. Consent of William Yarno, P.C., to use the opinion with respect to the legality of the securities being registered is contained in Exhibit 1 above. 3. Consent of Lazar, Levine & Felix LLP, Independent Registered Public Accounting Firm. 4. Power of Attorney 5. Form of Consulting Agreement EX-1 2 v022202_ex1.txt Exhibit 1 July 15, 2005 Element 21 Golf Company 264 Queens Quay W # 303 Toronto, Ontario, Canada M5J 2L4 Gentlemen: We have reviewed a Registration Statement on Form S-8 (the "Registration Statement"), to be filed with the Securities and Exchange Commission, relating to 13,346,688 shares of common stock, $.01 par value per share (the "Shares") of Element 21 Golf Company (the "Company"), which shares have been issued pursuant to certain Company's consulting agreements and employment agreements, the forms of which are filed as an exhibit to the Registration Statement (the "Agreement"). We have examined the Certificate of Incorporation, as amended, and the By-Laws of the Company and all amendments thereto, the Registration Statement and originals, or copies certified to our satisfaction, of such records of meetings written actions in lieu of meetings, or resolutions adopted at meetings, of the directors of the Company, and such other documents and instruments as in our judgment are necessary or appropriate to enable us to render the opinion expressed below. In examination of the foregoing documents, we have assumed the genuineness of all signatures and the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified or photo static copies, and the authenticity of the originals of such latter documents. Based upon and subject to the foregoing, we are of the opinion that the Shares have been duly and validly authorized for issuance under the Agreement, and the Shares, when issued against payment therefore in accordance with the terms of their agreements, will be legally issued, fully paid and non assessable. We hereby consent to the filing of this opinion as an Exhibit to the Registration Statement. Very truly yours, William Yarno, P.C. EX-3 3 v022202_ex3.txt Exhibit 3 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Nataliya Hearn, Gerald Enloe and Jim Morin his or her true and lawful attorney-in-fact and agent with full power of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including pre-effective and post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or either of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
Name Title Date - -------------------------------- ------------------------------- ------------------------------- /s/ Nataliya Hearn President, Chief Executive July 15, 2005 ------------------- Officer and Director Nataliya Hearn /s/ Gerald Enloe Director July 15, 2005 ------------------- Gerald Enloe /s/ Jim Morin Secretary and Director July 15, 2005 ------------------- Jim Morin
EX-4 4 v022202_ex4.txt Exhibit 4 PROFORMA CONSULTANT AGREEMENT This Consulting Agreement (the "Agreement"), effective as of ____________________, 2005 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. RECITALS WHEREAS, Company is a public company seeking to; WHEREAS, Company desires to engage the services of Consultant to represent the company in marketing its products as to the Company's current and proposed activities, and to consult with management concerning such Company activities; 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. Company hereby agrees to retain the Consultant to act in a consulting capacity to the Company, and the Consultant hereby agrees to provide services to the Company commencing from the date that this contract is effective and ending __________________months after the date. 2) Duties of Consultant. The Consultant agrees that it will generally provide the following specified consulting services: a) Assist the Company in_______________________________________; b) 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 ; c) Introduce the Company to _________________________; d) 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 - --------------------------------------; e) At the Company's request, review _______________________________________ the purpose of advising the Company thereof; and, j) Otherwise perform as the Company's consultant for ____________________________. 3) Allocation of Time and Energies. The Consultant hereby promises to perform 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 in connection with the conduct of its ___________________________________________ activities, so long as such activities are in compliance with applicable securities laws and regulations. Consultant and staff 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 the duties set forth herein above 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 ____________________ as follows: a) For undertaking this engagement and for performance of the services described above for a period of at least ________________________ months, the Company acknowledges that Consultant shall be issued _____________________________________ shares of common stock of the Company, with a par value of $0.001 per share and a current value of $_________ per share. The Company understands and agrees that Consultant has foregone significant opportunities to accept this engagement and that the Company derives substantial benefit from the execution of this Agreement and the ability to announce its relationship with Consultant. The shares of Common Stock, therefore, constitute payment for Consultant's agreement to consult to the Company and are a nonrefundable, non-apportionable, and non-ratable retainer; such shares of common stock 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 of Common stock paid to it hereunder. 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 Companies shares or assets, the Consultant shall retain and will not be requested by the Company to return any of the shares. Consultant agrees that it will not sell or transfer during the term of this Agreement any of the Company stock issued to Consultant. b) With each transfer of shares of Common Stock to be issued pursuant to this Agreement (collectively, the "Shares"), Company shall cause to be issued a certificate representing the Common Stock and a written opinion of counsel for the Company stating that said shares are validly issued, fully paid and non-assessable and that the issuance and eventual transfer of them to Consultant has been duly authorized by the Company. Company warrants that all Shares issued to Consultant pursuant to this Agreement 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. e) Consultant acknowledges that the shares of Common Stock to be issued pursuant to this Agreement (collectively, the "Shares") have been registered under the Securities Act of 1933 under form S8. f) In connection with the acquisition of Shares hereunder, the Consultant represents and warrants to the Company, to the best of its/his 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 restricted securities 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 this investment 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. 5) Non-Assignability of Services. Consultant's services under this contract 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. In the event of such merger or acquisition, all compensation to Consultant herein under the schedules set forth herein shall remain due and payable, and any compensation received by the Consultant may be retained in the entirety by Consultant, all without any reduction or pro-rating and shall be considered and remain fully paid and non-assessable. Notwithstanding the non-assignability of Consultant's services, Company shall assure that in the event of any merger, acquisition, or similar change of form of entity, that its successor entity shall agree to complete all obligations to Consultant, including the provision and transfer of all compensation herein, and the preservation of the value thereof consistent with the rights granted to Consultant by the Company herein, and to Shareholders. 6) Expenses. Consultant agrees to pay for all its expenses (phone, mailing, labor, etc.), other than extraordinary items (travel required by/or specifically requested by the Company_________________________________________) 7) Indemnification. The Company warrants and represents that all oral communications, written documents or materials furnished to Consultant by the Company with respect to financial affairs, operations, profitability and strategic planning of the Company are accurate and Consultant may rely upon the accuracy thereof without independent investigation. The Company will protect, indemnify and hold harmless Consultant against any claims or litigation including any damages, liability, cost and reasonable attorney's fees as incurred with respect thereto resulting from Consultant's communication or dissemination of any said information, documents or materials excluding any such claims or litigation resulting from Consultant's communication or dissemination of information not provided or authorized by the Company. 8) 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 SEC or 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. Company acknowledges that, to the best of its knowledge, Company is not the subject of any investigation, claim, decree or judgment involving any violation of the SEC or securities laws. 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. 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 14 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 Date: By: ------------------ --------------------------------- (Consultant) Date: By: ------------------ --------------------------------- EX-23.2 5 v022202_ex23-2.txt Exhibit 23.2. Consent of Independent Registered Public Accounting Firm The Board of Directors Element 21 Golf Company We consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated December 16, 2004, with respect to the consolidated balance sheet of Element 21 Golf Company and subsidiaries as of June 30, 2004, and the related consolidated statements of operations, stockholders' deficit and cash flows for the year ended June 30, 2004, which report appears in the June 30, 2004 annual report on Form 10-KSB of Element 21 Golf Company. ----------------------------- /s/ Lazar, Levine & Felix, LLP New York, New York July 20, 2005 -----END PRIVACY-ENHANCED MESSAGE-----