EXHIBIT 4.4
STOCK SUBSCRIPTION AGREEMENT
This Stock Subscription Agreement (the "Agreement") is entered into as
of November 21, 2002 by and between American Sports Development Group, Inc., a
Delaware corporation with its principal place of business in South Carolina (the
"Company"), and Xxxxxxxx Xxxxxxx Xxxxx Xxxxxxx ("Buyer").
WHEREAS, Buyer and the Company's wholly-owned subsidiary Paintball
Incorporated, formerly known as American Sports Development Group, Inc. and
National Paintball Supply Company, Inc. ("Paintball"), are parties to that
certain Employment Agreement dated as of April 17, 2000 (the "Employment
Agreement") and that certain Agreement dated in or around October, 2001 (the
"Subsequent Agreement") terminating in part and amending in part the Employment
Agreement;
WHEREAS, Section 20 of the Employment Agreement as amended by the
Subsequent Agreement, generally requires that in the event that Paintball
becomes a public company under Section 12 or 15 of the Securities Exchange Act
of 1934 (the "Exchange Act"), upon consummation of Paintball becoming a public
company, Paintball will issue $50,000 worth of its common stock to Buyer with
the per share price equal to the bid price on the date of issuance;
WHEREAS, the last sale price of Company's common stock, par value
$0.001 per share (the "Common Stock"), was $0.20 per share on the day prior to
the date of this Agreement, and Buyer and the Company desire that the Company
issue to Buyer 250,000 shares of Common Stock in satisfaction of Paintball
Incorporated's obligations to issue stock to Buyer under the Employment
Agreement and the Subsequent Agreement;
NOW THEREFORE, in consideration of the mutual covenants set forth
herein and other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto hereby agree as follows:
1. SALE OF SHARES; PURCHASE PRICE. Effective as of the date hereof, the
Company hereby issues 250,000 shares of its Common Stock (the "Shares") to Buyer
at a value of $0.20 per share for an aggregate value of $50,000 in satisfaction
of all obligations of the Company, Paintball Incorporated and any of their
affiliates, successors and assigns to issue securities to Buyer in connection in
any way with the Employment Agreement and the Subsequent Agreement, including
but not limited to the obligation of Paintball Incorporated to issue $50,000 of
its stock to Buyer pursuant to Section 20 of the Employment Agreement as amended
by the Subsequent Agreement.
2. BUYER' REPRESENTATIONS AND WARRANTIES. In order to induce the
Company to issue the Shares to Buyer, Buyer hereby represents and warrants to
the Company as follows:
2.1 PURCHASE FOR INVESTMENT. Buyer is acquiring the Shares
pursuant to this Agreement for his own account for investment purposes
and not with a view to or intention of distribution or resale except
as described in Paragraph 2.2 and Paragraph 3 herein, and Buyer will
not dispose of any of the Shares in contravention of the Securities
Act of 1933, as amended (the "Securities Act") or any applicable state
securities laws.
2.2 SALE AND PURCHASE NOT REGISTERED. Buyer is aware that he
is acquiring the Shares from the Company in a transaction that has not
been registered under the Securities Act or pursuant to the securities
laws and regulations of any State, and that as a consequence, the
Shares are "restricted securities" as defined in Rule 144 promulgated
under the Securities Act ("Rule 144") and may be resold only to the
extent permitted by Rule 144 or any subsequent registration of the
securities via a registration statement per Paragraph 3 herein, or
pursuant to a transaction that is registered under the Securities Act
and applicable state securities laws and regulations, or pursuant to a
transaction that is exempt from such registration.
2.3 ACCREDITED INVESTOR. Buyer is an accredited investor as
that term is defined under Rule 144. Buyer is familiar with the
provisions of Rule 144 and understand the definition of "accredited
investor."
2.4 ACCESS TO INFORMATION. Buyer has had an opportunity to
ask questions and receive answers concerning the Shares and the
business and financial condition of the Company and has had full
access to (A) such information concerning the Company as he has
requested and (B) such other information that Buyer deems necessary or
desirable to make an informed investment decisions regarding the
purchase of the Shares.
2.5 ABLE TO BEAR ECONOMIC RISK. Buyer is able to bear the
economic risk of their investment in the Shares for an indefinite
period of time and can afford a total loss of his investment in the
Shares.
2.6 BINDING OBLIGATION. This Agreement constitutes the
legal, valid and binding obligation of Buyer, enforceable against him
in accordance with its terms.
Buyer hereby agrees to indemnify and hold harmless the Company and its
officers, directors, shareholders, employees, agents, contractors, affiliates,
successors or assigns from and against any and all damages, losses, costs,
liabilities, obligations, expenses and/or the like (including without limitation
reasonable attorneys fees and expenses) incurred or suffered by any of them in
connection with the breach by Buyer of any representation or warranty set forth
herein.
3. "PIGGY-BACK" REGISTRATION RIGHTS. Except as otherwise provided
herein, whenever the Company proposes to register any of its securities under
the Securities Act of 1933, as amended (the "Securities Act"), at any time but
no later than December 18, 2002, the registration form to be used shall be one
that may be used for the registration of resales by Buyer of the Shares (a
"Piggyback Registration"). The Company will include in the Piggyback
Registration, at no cost of any kind to Buyer, all of the Buyer' Shares. The
Company shall act with due diligence in the preparation of the registration
statement and the provision of all necessary follow-up responses to the SEC,
with a view toward expeditious completion of the registration process.
Notwithstanding the forgoing, the Company may file Registration Statements on
Form S-8 with respect to the registration of securities issued or to be issued
to any employee, director, officer, consultant or advisor of the Company without
registering the resale by Buyer of the Shares as provided herein.
4. AMENDMENT; BINDING EFFECT; WAIVER. This Agreement shall not be
modified or amended except by means of a writing signed by each party hereto.
This Agreement shall be binding upon the parties hereto and their respective
heirs, executors, administrators, successors, and permitted transferees and
assigns. Any waiver of a right under the terms of this Agreement must be in
writing and signed by the waiving party.
5. SEVERABILITY. Each provision of this Agreement shall be considered
separable, and if for any reason any provision or provisions herein are
determined to be invalid or contrary to existing or future law, such invalidity
shall not impair the operation of this Agreement or affect those portions of
this Agreement which are valid.
6. COMPLETE AGREEMENT. This Agreement contains the complete agreement
among the parties relating to the subject matter hereof and controls and
supersedes any prior understandings, agreements or representations by or among
the parties, written or oral, which conflicts with, or may have related to, the
subject matter hereof in any way.
7. APPLICABLE LAW; FORUM; INDEMNIFICATION; ATTORNEY'S FEES. This
Agreement shall be interpreted, according to the laws of the State of South
Carolina, without giving effect to any provision of South Carolina law that
would cause the laws of any other jurisdiction, except for non-waivable
provisions of U.S. federal law, to apply. Buyer hereby irrevocably consent to
the non-exclusive jurisdiction of any court of the State of South Carolina and
any U.S. federal court sitting in Greenville County, South Carolina for the
adjudication of any dispute relating to the subject matter of this Agreement and
waives any claims and the right to make any motions of forum non conveniens or
the like that would change the forum or venue of any dispute relating to the
subject matter of this Agreement from any such court.
8. HEADINGS; CONSTRUCTION. The headings contained in this Agreement
are for convenience of reference only and are not intended to have any
substantive significance in interpreting this Agreement. The parties hereto
hereby acknowledge and agree that this Agreement is the result of negotiations
between the parties and that there shall be no presumption that any provision of
this Agreement shall be construed against any party because that party was or is
deemed the drafter of such provision or this Agreement.
9. COUNTERPARTS; PROOF OF EXECUTION. This Agreement may be executed in
multiple counterparts, each bearing the signatures of one or more of parties
hereto and each of which shall constitute an original, but which together shall
constitute a single instrument. The parties hereto hereby agree that rebuttable
proof of execution of this Agreement by any party may be made by a copy of this
Agreement bearing the facsimile or other copy of the signature of such party.
SIGNATURES ON FOLLOWING PAGE
IN WITNESS WHEREOF, the parties hereto have set their signatures below
as of the date first set forth above.
AMERICAN SPORTS DEVELOPMENT
WITNESS: GROUP, INC.:
By:
/s/Xxxxxxx X. Xxxxxxx /s/Xxxxxxx X. Xxxxxxxxx
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[signature] Xxxxxxx X. Xxxxxxxxx, President
Name: Xxxxxxx X. Xxxxxxx
WITNESS: BUYER:
/s/Xxxxxx X. Xxxxxxxx /s/Xxxxxxxx Xxxxxxx Xxxxx Xxxxxxx
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[signature] Xxxxxxxx Xxxxxxx Xxxxx Gellert
Name: Xxxxxx X. Xxxxxxxx
