EXHIBIT 4.5
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 Xxxxx Xxxxxx and Xxxxxxx Xxxxxx, natural persons resident in the
State of California (collectively, "Buyers").
WHEREAS, Buyers are jointly the Payees under (i) that certain Note
dated July 18, 2001 in the original principal amount of $75,000.00 and (ii) that
certain Note dated July 18, 2001 in the original principal amount of $104,499.00
(each a "Note" and collectively, the "Notes"), each with the Company's
wholly-owned subsidiary Paintball Incorporated, a South Carolina corporation
formerly known as National Paintball Supply Company, Inc. ("Paintball") as
Maker, and the total outstanding aggregate obligation of Paintball to Buyers
under the Notes as of the date hereof is $179,499.00;
WHEREAS, the Buyers desire that the Company issue to Buyers 897,495
shares (the "Shares") of the Company's common stock, par value $.001 per share
(the "Common Stock") valued at a price of $0.20 per share in satisfaction of all
remaining obligations of Paintball to Buyers under the Notes, and the Company
desires to issue the Shares to Buyers to satisfy all of Paintball's remaining
obligations to Buyers under the Notes, all in accordance with the terms and
provisions of this 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 sells the Shares to the Buyers and the Buyers hereby purchase the
Shares from the Company for a per share purchase price of $0.20 and an aggregate
purchase price of $179,499.00 (the "Purchase Price") to be paid by cancellation
of the Notes and all remaining obligations of Paintball thereunder.
2. BUYER' REPRESENTATIONS AND WARRANTIES. In order to induce the
Company to issue and sell the Shares to Buyers, Buyers hereby jointly and
severally represent and warrant to the Company as follows:
2.1 PURCHASE FOR INVESTMENT. Buyers are acquiring the Shares
pursuant to this Agreement for their 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
Buyers 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. Buyers are aware that
they are 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. Buyers are accredited investors
as that term is defined under Rule 144. Buyers are familiar with the
provisions of Rule 144 and understand the definition of "accredited
investor."
2.4 ACCESS TO INFORMATION. Buyers have had an opportunity to
ask questions and receive answers concerning the Shares and the
business and financial condition of the Company and have had full
access to (A) such information concerning the Company as they have
requested and (B) such other information that Buyers deem necessary or
desirable to make an informed investment decisions regarding the
purchase of the Shares.
2.5 ABLE TO BEAR ECONOMIC RISK. Buyers are 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 their investment in the
Shares.
2.6 BINDING OBLIGATION. This Agreement constitutes the legal,
valid and binding obligation of each of the Buyers, enforceable
against each of them in accordance with its terms.
2.7 FULL RIGHT AND TITLE TO THE NOTE. The aggregate amount
outstanding under the Notes as of the date hereof is $179,499.00.
Buyers are the sole holders of all right, title and interest in and to
the Notes; hold the Notes free and clear of any and all liens,
encumbrances, security interests, mortgages and the like; and have
sole and full right to dispose of the Notes. Upon issuance of the
Shares to Buyers, neither Paintball nor the Company nor any of their
officers, directors, shareholders, employees, agents, contractors,
affiliates, successors or assigns will have any obligation to any
party with respect to the Notes.
Buyers hereby jointly and severally agree 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 either of the Buyers
of any representation or warranty set forth herein or Buyers' obligations under
Paragraph 4 hereof.
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 Buyers of the Shares (a
"Piggyback Registration"). The Company will include in the Piggyback
Registration, at no cost of any kind to Buyers, all of the Buyers' 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 Buyers of the Shares as provided herein.
4. RETURN OF CANCELLED NOTE. Within 5 business days of the date
hereof, Buyers will cancel the original of each Note by writing "satisfied in
full and cancelled" across the face thereof and return the cancelled Notes to
the Company by an overnight courier of national reputation.
5. 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.
6. 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.
7. 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.
8. 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. Buyers 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.
9. 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.
10. 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.
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.:
/s/Xxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxxxxx
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[signature] Xxxxxxx X. Xxxxxxxxx, President
Name: Xxxxxx X. Xxxxx
BUYERS:
WITNESSES:
/s/Xxxxxx X. Xxxxx /s/ Xxxxx Xxxxxx
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[signature] Xxxxx Xxxxxx
Name: Xxxxxx X. Xxxxx
WITNESSES:
/s/Xxxxxx X. Xxxxx /s/ Xxxxxxxx Xxxxxx
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[signature] Xxxxxxxx Xxxxxx
Name: Xxxxxx X. Xxxxx