EXHIBIT 99.1
INDEPENDENT CONTRACTOR/CONSULTING AGREEMENT
THE AGREEMENT is made and entered into as of this 27th day of August,
2002 by and between American Sports Development Group, Inc., hereinafter
referred to as "Client", with its principal place of business at 155 Verdin
Road, Greenville, South Carolina 29607, and Warren J. Soloski, with his place of
business at 11300 West Olympic Blvd., Suite 800, Los Angeles, CA 90064,
hereinafter referred to as "Consultant".
RECITALS
A. WHEREAS, Client is primarily a wholesaler of equipment and supplies
to the paintball industry; and
B. WHEREAS, the Consultant is a lawyer generally knowledgeable in the
areas of the business operations of the Company and possesses experience in
securities law and merger structure issues; and
C. WHEREAS, the Company has engaged the Consultant on a nonexclusive
basis as an independent contractor to utilize Consultant's general securities
law and merger structure expertise; and
D. WHEREAS, the Consultant was willing to be so retained on the terms
and conditions as set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the promises and the mutual
agreements hereinafter set forth, the parties hereto agree as follows:
1. Engagement. The Company hereby retains and engages Consultant to
perform the following consulting services (the "Consulting Services");
1.1 Duties of Consultant. The Consultant will provide such services and
advice to the Company so as to advise the Company in structuring mergers or
other acquisitions. Without limiting the generality of the foregoing, Consultant
will also assist the Company in securities and corporate matters, merger
structure and acquisition analysis. Nothing contained herein constitutes a
commitment on the part of the Consultant to find an acquisition target for the
Company or, if such target is found, that any transaction will be completed.
This Agreement is not a contract for listing services, and nothing in this
Agreement will require the Consultant to negotiate on behalf of the Company with
corporations that are involved with listings or making a market in corporate
securities in the OTC markets.
2. Duties Expressly Excluded. This Agreement expressly excludes the
Consultant from providing any and all capital formation and/or public relation
services to the Company inclusive of but not limited to (i) direct or indirect
promotion of the Company's securities; (ii) assistance in making of a market in
the Company's securities; and (iii) assistance in obtaining debt and/or equity
financing. The Consultant shall not have the power or authority to bind the
Company to any transaction without the Company's prior written consent.
3. Consideration. Client and Consultant agree that Consultant
receive from the Client a fee of Fifty Four Thousand Ninety Eight, (54,098)
shares of Client's common stock, as consideration for the services rendered
pursuant to this Agreement.
4. Term. This Agreement shall be effective for a term of nine
(9) months starting from December 1, 2001 and ending August 31, 2002 unless
sooner terminated upon mutual written agreement of the parties hereto.
5. Expenses. Consultant shall bear his out-of-pocket costs and
expenses incident to performing the Consulting Services, with a right of
reimbursement from the Company if such expenses are pre-approved by the Company.
6. Consultant's Liability. In the absence of negligence or
willful misconduct on the part of the Consultant or the Consultant's breach of
any terms of this Agreement, the Consultant shall not be liable to the Company
or to any officer, director, employee, stockholder or creditor of the Company,
for any act or omission in the course of or in connection with the rendering or
providing of services hereunder. This indemnification expressly excludes any and
all damages as a result of any actions or statements, on behalf of the Company,
made by the Consultant without the prior approval or authorization of the
Company.
7. Company's Liability. The Consultant agrees to defend,
indemnify, and hold the Company harmless from and against any and all reasonable
costs, expenses and liability (including reasonable attorney's fees paid in
defense of the Company) which may in any way result from Consultant's gross
negligence or willful misconduct or in Consultant's breach of any provision of
this Agreement or in any connection with any actions taken or statements made,
on behalf of the Company, without the prior approval or authorization of the
Company or which are otherwise in violation of applicable law.
8. Representations. The Consultant makes the following
representations:
a. Consultant has no prior or existing legally binding
obligations that are in conflict with its entering into this Agreement;
b. Consultant shall not offer or make payment of any
consideration to brokers, dealers, or others for purposes of inducing the
purchase, making of a market or recommendation for the purchase of the Company's
securities;
c. Consultant is not currently and never has been the
subject of an investigation or inquiry by the Securities and Exchange
Commission, the NASD, or any state securities commission;
d. Consultant's activities and operations during the
term of this Agreement fully comply with now, and will comply with in the future
all applicable state and federal securities laws and regulations;
e. Consultant understands that, as a result of its services,
it may come to possess material non-public information about the Company, and
that it has implemented internal control procedures designed to reasonably
ensure that it and none of its employees, agents, contractors or affiliates,
trade in the securities of client companies while in possession of material
non-public information;
f. During the Term of this Agreement and for a period of two
years thereafter, the Consultant shall treat as the Company's confidential trade
secrets and keep confidential all data, information, ideas, knowledge and papers
pertaining to the affairs of the Company. Without limiting the generality of the
foregoing, such trade secrets shall include: the identity of the Company's
customers, suppliers and prospective customers and suppliers; the identity of
the Company's creditors and other sources of financing; the Company's estimating
and costing procedures and the cost and gross prices charged by the Company for
its products; the prices or other consideration charged to or required of the
Company by any of its suppliers or potential suppliers; the Company's sales and
promotional policies; and all information relating to entertainment programs or
properties being produced or otherwise developed by the Company. The Consultant
shall not reveal said trade secretes to others except in the proper exercise of
its duties for the Company, or use his knowledge thereof in any way that would
be detrimental to the interest of the Company, unless compelled to disclose such
information by judicial or administrative process; provided, however, that the
divulging of information shall not be a breach of this Agreement to the extent
that such information was (i) previously known by the party to which it is
divulged, (ii) already in the public domain, all through no fault of the
Consultant, or (iii) required to be disclosed by Consultant pursuant to judicial
or governmental order. The Consultant shall also treat all information
pertaining to the affairs of the Company's suppliers and customers and
prospective customers and suppliers as confidential trade secrets of such
customers and suppliers and prospective customers and suppliers: and
g. Consultant agrees to notify the Company immediately if, at
any time, any of the representations and warranties made by the Consultant
herein are no longer true and correct or if a breach of any of the
representations and warranties made by the Consultant herein occurs.
9. The Company makes the following representations:
a. The Company is not currently the subject of an
investigation or inquiry by the Securities and Exchange Commission, the NASD,
or any state securities commission;
b. The Company and its senior management are not aware of any
materially adverse events not previously disclosed in the Company's annual and
quarterly reports with the Securities and Exchange Commission.
10. Entire Agreement. This Agreement embodies the entire agreement and
understanding between the Company and the Consultant and supersedes any and all
negotiations, prior discussions and preliminary and prior agreements and
understandings related to the primary subject matter hereof. This Agreement
shall not be modified except by written instrument duly executed by each of the
parties hereto.
11. Waiver. No waiver of any of the provisions of this Agreement shall
be deemed, or shall constitute a waiver of any other provisions, nor shall any
waiver constitute a continuing wavier. No waiver shall be binding unless
executed in writing by the party making the waiver.
12. Assignment and Binding Effect. This Agreement and the rights
hereunder may not be assigned by the parties (except by operation of law or
merger) and shall be binding upon and inure to the benefit of the parties and
their respective successors, assigns and legal representatives.
13. Notices. Any notice or other communication between the parties
hereto shall be sufficiently given if sent by certified or registered mail,
postage prepaid, or faxed and confirmed at the following locations:
Company:
AMERICAN SPORTS DEVELOPMENT GROUP, INC.
155 Verdin Road,
Greenville, South Carolina 29607
Attn: William R. Fairbanks
Consultant:
Warren J. Soloski
11300 West Olympic Blvd., Suite 800
Los Angeles, CA 90064
or at such other location as the addressee may have specified in a notice duly
given to the sender as provided herein. Such notice or other communication shall
be deemed to be given on the date of receipt.
14. Severability. Every provision of this Agreement is intended to be
severable. If any term or provision hereof is deemed unlawful or invalid for any
reason whatsoever, such unlawfulness or invalidity shall not affect the validity
of this Agreement.
15. Governing Law. This Agreement shall be construed and interpreted
in accordance with the laws of the State of Delaware, without giving effect to
conflicts of laws.
16. Headings. The headings of this Agreement are inserted solely for
the convenience of reference and are not part of, and are not intended to
govern, limit or aid in the construction of any term or provision hereof.
17. Further Acts. Each party agrees to perform any further acts and
execute and deliver any further documents that may be reasonably necessary to
carry out the provisions and intent of this Agreement.
18. Acknowledgment Concerning Counsel. Each party acknowledges that
it had the opportunity to employ separate and independent counsel of its own
choosing in connection with this Agreement.
19. Independent Contractor Status. There is no relationship,
partnership, agency, employment, franchise or joint venture between the parties.
The parties have no authority to bind the other or incur any obligations on
their behalf.
20. Counterparts. This Agreement may be executed simultaneously in
two or more counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have duly execute this Agreement
as of the date first written above.
American Sports Development Group, Inc.
BY: /s/ William R. Fairbanks
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William R. Fairbanks, its President
Warren J. Soloski
/s/ Warren J. Soloski
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Warren J. Soloski