AGREEMENT OF SALE
THIS AGREEMENT OF SALE (the "Agreement") is entered into this 1 day of
August, 2005 between INVESTMENT CAPITAL RESEARCHERS, INC., a California
corporation ("ICR"), and LAND BANC LLC, A California limited liability company
("Land Banc"), XXXX XXXXXX, and XXXXXXX XXXXXXX ("Land Banc's Affiliates").
R E C I T A L S
- - - - - - - -
A. ICR has spent the last year developing a confidential business opportunity
to raise capital to buy tax lien real property at county auctions and sell
the property to individual buyers with related financial projects (the
"Business Opportunity"). As used herein, the term "Business Opportunity"
includes any variation of the "Business Opportunity" used to raise capital
to purchase tax lien and bulk sale real properties.
B. ICR has obtained the interest of Xxxx Xxxxx of Great Eastern Securities and
of Xxx Xxxxx of Xxxxxxxx Securities in the Business Opportunity (the
"Capital Contracts").
C. ICR has spent time and money in accomplishing the foregoing:
D. Land Bank is currently in the business of buying large tracts of real
property through purchases of real property subject to tax liens and other
methods and of dividing and selling the real property in various markets
using various methods ("Land Banc Business").
E. The parties agree that the Land Bank Business has a fair market value of
Twenty Million Dollars ($20,000,000).
F. Land Bank wishes to acquire the Business Opportunity from ICR.
G. Land Bank may acquire the shares of a publicly traded shell company ("New
Land Banc"). Land Banc may contribute the Business Opportunity and the Land
Banc Business to New Land Banc for shares of the capital stock of New Land
Banc.
H. Land Bank or New Land Banc will seek to raise capital through the Business
Opportunity with the assistance of ICR, the Capital Contracts, and others.
I. Land Banc has engaged the Capital Contacts on a consulting basis to advise
it in connection with the foregoing project.
J. Land Banc and Land Banc's Affiliates wish to pay ICR for the Business
Opportunity by giving ICR's share of the capital raised by Land Banc or New
Land Banc and a share of the capital received by Land Banc or Land Banc's
Affiliates in New Land Banc or retained by Land Banc's Affiliates in Land
Banc that, in each case, exceeds Twenty Million Dollars ($20,000,000) in
fair market value.
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K. The parties contemplate that ICR or its Affiliates will serve as
consultants, directors, or officers of Land Banc or New Land Banc and be
separately compensated therefore.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants contained herein, the parties agree as follows:
1. Assignment of the Business Opportunity
ICR hereby assigns all right, title, and interest in the Business
Opportunity to Land Banc.
2. Consideration of Assignment
(a) Land Bank shall pay, and shall cause New Land Banc to pay, ICR
four percent (4%) of the first Twenty Million Dollars ($20,000,000), or any
portion thereof, in capital raised by Land Banc and New Land Banc when and as
received by Land Banc, New Land Banc, or their successors, as the case may be.
One-half of the four percent (4%) shall be paid in cash and the remaining
balance shall be paid by the issuance of equity on the same terms as the equity
is issued for the capital raised ($20,000,000 or portion thereof) by Land Banc
or its successors, as the case may be.
(b) Land Banc shall pay, and shall cause New Land Banc to pay, ICR two
percent (2%) of all capital in excess of Twenty Million Dollars ($20,000,000) up
to Twenty-Five Million Dollars ($25,000,000) raised by Land Banc and New Land
Banc when and as received by Land Banc, or New Land Banc, or their successors,
as the case may be. One-half of the two percent (2%) shall be paid in cash and
the remaining balance shall be paid by the issuance of equity on the same terms
as the equity is issued for the capital raised ($20,000,000 - $25,000,000 or
portion thereof) by Land Banc or its successors, as the case may be.
(c) Land Banc shall pay, and shall cause New Land Banc to pay, ICR one
percent (1%) of all capital in excess of Twenty-Five Million Dollars
($25,000,000) raised by Land Banc and New Land Banc when and as received by Land
Banc, or New Land Banc, or their successors, as the case may be. One-half of the
one percent (1%) shall be paid in cash and the remaining balance shall be paid
by the issuance of equity on the same terms as the equity is issued for the
capital raised (in excess of $25,000,000) by Land Banc or its successors, as the
case may be.
(d) Land Banc and Land Banc's Affiliates shall ensure that ICR
received the same registration rights with respect to securities assigned to ICR
pursuant to this Section 2 as Land Banc and Land Banc's Affiliates receive in
securities received or retained by them.
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3. Covenant as to Use and Confidentiality of Business Opportunity
(a) Land Banc shall use its best efforts or cause New Land Banc to use
its best efforts to raise capital through the Business Opportunity.
(b) Land Banc and Land Banc's Affiliates shall preserve an shall cause
New Land Banc to present the confidential nature of the Business Opportunity
except to the extent necessary for the Land Banc or New Land Banc to raise
capital.
4. Representation and Warranties of Land Banc and Land Banc's Affiliates
Land Banc and each of Land Banc's Affiliates represent and warrant the
following:
(a) Land Banc's Affiliates are the record and beneficial owners of all
of the membership and economic interests in Land Banc free and clear of all
encumbrances.
(b) Land Banc or Land Banc's Affiliates will receive record and
beneficial ownership of one hundred percent (100%) of the equity or debt
interests issued by New Land Banc in return for the transfer of the Land Banc
Business and the transfer or license of the business Opportunity.
(c) Neither Land Banc nor Land Banc's Affiliates will assign or
encumber their interests in New Land Banc or land Banc so as to reduce or
encumber the interests to be assigned to ICR under Section 2.
5. General
(a) Governing Law. This Agreement shall be governed by, and construed
and interpreted in accordance with, the Laws of California, without regard to
conflicts of laws principles.
(b) Further Assurances. Each of the parties agrees (a) to furnish upon
request to each other party such further information, (b) to execute and deliver
to each other party such other documents, and (c) to do such other acts as the
other party may reasonably request for this purpose of carrying out the intent
of this Agreement.
(c) Definition of Affiliates. "Affiliate" shall mean, with respect to
any Person, any other Person with regard to which the Person is controlling,
controlled or commonly controlled. For purposes of the preceding sentence,
"control" shall mean the power to direct the principal business management and
activities of a Person, whether through ownership of voting securities, by
agreement, or otherwise.
(d) Definition of Person. As used in this Agreement, "Person" shall
mean an individual, partnership, corporation, limited liability company,
unincorporated organization, trust, joint venture, governmental agency, or other
entity, whether domestic or foreign.
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(e) Assignment. Except as expressly permitted by this Agreement,
neither this Agreement nor the Business Opportunity may be assigned by Land Banc
or New Land Banc without the prior written consent of ICR.
(f) Parties of Interest. This Agreement, including the Exhibits
hereto, shall be bindin upon and inure solely to the benefit of each party
hereto and their legal representatives and successors, and nothing in this
Agreement, express or implied, is intended to confer upon any other Person any
rights or remedies of any nature whatsoever under or by reason of this
Agreement.
(g) Notices. Any notice or other communication required by this
Agreement shall be made in writing and given by prepaid, first class, certified
mail, return receipt requested, and shall be deemed to have been served on the
date received by the addressee at the following address or such other address as
may from time to time be designated to the other party in writing:
If to ICR: Investment Capital Researchers, Inc.,
A California corporation
Attn: Xxxxxx Xxxxx
00000 Xxxxxxx Xxxx., Xxxxx 000
Xxxxxxx Xxxx, XX 00000
With a copy to:
Xxxxxx X. Xxxxxxx, Esq.
Xxxxxxx and Xxxxxxx APC
00000 Xxxxxxxx Xxxx., Xxxxx 0000
Xxx Xxxxxxx, XX 00000
If to Land Banc or
Land Banc's Affiliates: Land Banc LLC
A California limited liability company
Attn: Xxxx Xxxxxx
0000 Xxxxxxxxxxx Xxx
Xxx Xxxx, XX 00000
with a copy to:
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--------------------------------------
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(h) Compliance with Law. Land Banc and Land Banc's Affiliates shall
comply with all applicable federal, state, foreign, and local laws and
regulations in connection with the activities contemplated by this Agreement.
(i) Dispute Resolution. Any controversy, claim, action, or dispute
arising out of or relating to this Agreement shall be heard in Los Angeles,
California by a reference pursuant to the provisions of California Code of Civil
Procedure Sections 638 through 645.1, inclusive, according to the following
procedures:
(i) The parties shall agree upon a single referee who shall then
try all issues, whether of fact or law, and report a finding and judgment
thereon. If the parties are unable to agree upon a referee with ten (10) days of
a written request to do so by any party, then any party may thereafter seek to
have a referee appointed pursuant to California Code of Civil Procedure Sections
638 and 640.
(ii) The referee shall have the power to decide all issues of
fact and law and report his or her decision thereon, and to issue all legal and
equitable relief appropriate under the circumstances of the controversy before
him or her; provided, however, that to the extent the referee is unable to issue
or enforce any such legal and equitable relief, a party may petition the court
to issue or enforce such relief on the basis of the referee's decision.
(iii) The California Evidence Code rules of evidence and
procedure relating to the conduct of the hearing, examination of witnesses, and
presentation of evidence shall apply.
(iv) Any party desiring a stenographic record of the hearing may
secure a court reporter to attend the hearing; provided, the requesting party
notifies the other parties of the request and pays for the costs incurred for
the court reporter.
(v) The referee shall issue a written statement of decision which
shall be reported to the court in accordance with California Code of Civil
Procedure Section 643 ad mailed promptly to the parties.
(vi) Judgment may be entered on the decision of the referee in
accordance with California Code of Civil Procedure Section 644, and the decision
may be excepted to, challenged, and appealed according to law.
(vii) The parties shall promptly and diligently cooperate with
one another and the referees, and shall perform such acts as may be necessary to
obtain a prompt and expeditious resolution of the dispute or controversy in
accordance with the terms hereof.
(viii) The cost of such proceeding, including but not limited to
the referee's fees, shall initially be borne equally by the parties to the
dispute or controversy. However, the prevailing party in such proceeding shall
be entitled, in addition to all other costs, to recover its contribution for the
cost of the reference, its costs incurred under subsection (b)(iv), and its
reasonable attorneys' fees as items of recoverable costs.
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(j) Modification. This Agreement may not be altered, amended, or
modified in any way expect by a writing signed by the parties.
(k) Severability. If any provision of this Agreement shall be found by
a court to be void, invalid or unenforceable, the same shall be reformed to
comply with applicable law or stricken if not so conformable, so as not to
affect the validity or enforceability of the remainder of this Agreement.
(l) Entire Agreement. The parties hereto acknowledge that this
Agreement and its Exhibits set forth the entire agreement and understanding of
the parties hereto as to the subject matter hereof, and supercede all prior
discussions, agreements, and writings in respect hereto.
(m) Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
(n) Miscellaneous. No failure or delay by any party in exercising any
right, power, or privilege under this Agreement shall operate as a waiver
thereof; any actual waiver shall be contained in a writing signed by the party
against whom enforcement of the waiver is sought. The section headings contained
in this Agreement are for reference purposes only and shall not affect the
meaning or interpretation of this Agreement. Unless the content clearly requires
to the contrary, all references in this Agreement to designated "Sections" or
"subsections" are to the designated Sections and other subdivisions of this
Agreement. This Agreement shall not be construed for or against any party by
reason of the authorship or alleged authorship of any provision hereof or by
reason of the status of the respective parties. Except where the context clearly
requires to the contrary: (i) instances of gender- or entity-specific usage
(e.g., "his," "her," "its," "Person," or "individual") shall not be interpreted
to preclude the application of any provision of this Agreement to any individual
or entity; (ii) the singular may include the plural and the plural may refer
only to the singular; (iii) the word "or" shall not be applied in its exclusive
sence; and (iv) "including" shall mean "including without limitation."
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
INVESTMENT CAPITAL RESEARCHERS, INC.
a California corporation
By: /s/ Xxxxxxx X. Xxxxx
--------------------
Xxxxxxx X. Xxxxx, President
LANDBANK, LLC, a California limited liability company
By: /s/ Xxxx Xxxxxxx
----------------
Xxxx Xxxxxxx, CEO Landbank Group, Inc.,
member
/s/ Xxxx Xxxxxx
---------------
XXXX XXXXXX
/s/ Xxxx Xxxxxxx
----------------
XXXXXXX XXXXXXX
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Exhibit 10.4B
FIRST AMENDMENT TO AGREEMENT OF SALE
------------------------------------
THIS FIRST AMENDMENT TO AGREEMENT OF SALE is entered into this 27th day of
June, 2006, by and between INVESTMENT CAPITAL RESEARCHERS, INC., a California
corporation ("ICR"), and LANDBANK, LLC, a California limited liability company
("Landbank"), XXXX XXXXXX and XXXXXXX XXXXXXX ("Landbank Affiliates").
RECITALS
--------
A. ICR and Landbank entered into an Agreement of Sale, dated August 1, 2005.
B. The parties wish to amend the Agreement of Sale.
AGREEMENT
---------
1. Paragraph 2(a) is hereby deleted and the following paragraph is inserted in
lieu thereof:
The compensation to be paid by Landbank to ICR shall be Four Million
(4,000,000) shares of common stock par value $0.00001 ("Shares") to be issued as
follows:
a. Two million (2,000,000) shares to be issued immediately prior to the
1:10 reverse stock split; and
b. Two million (2,000,000) shres to be issued upon consummation of a
secondary offering resulting in aggregate gross procees of at least $20 million
(Twenty Million Dollars).
In the event the Company effects a reverse split of its shares, the foregoing
amounts of shares shall be adjusted accordingly. ICR understands that the Shares
to be issued hereunder have not been and will not be registered under the
Securities Act or any other applicable state or federal securities statutes
(together with the Securities Act, the "Acts"). Except as otherwise set forth in
this Agreement, no shares shall be sold, conveyed, transferred, pledged,
encumbered or otherwise disposed of (any such disposition being herein called a
"Transfer") prior to the first anniversary of the date of the closing with
respect to the Company's secondary offering (the "Closing Date"). This transfer
restriction shall lapse with respect to One Million (1,000,000) shares on each
of the first, second, third and fourth anniversaries of the Closing Date. ICR
further understands that in the event Rule 144 under the Act ("Rule 144")
hereafter becomes applicable to the shares, any routine sale of the shares made
thereunder can be made only in accordance with the terms and conditions of this
Agreement and of Rule 144 and that in the event Rule 144 is not applicable,
compliance with a registration exemption will be required before the undersigned
can transfer part or all of the shares.
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment
as of the date first above written.
INVESTMENT CAPITAL RESEARCHERS, INC.
a California corporation
By: /s/ Xxxxxxx X. Xxxxx
--------------------
Xxxxxxx X. Xxxxx, President
LANDBANK, LLC, a California limited liability company
By: /s/ Xxxx Xxxxxxx
----------------
Xxxx Xxxxxxx, CEO Landbank Group, Inc.
/s/ Xxxx Xxxxxx
---------------
XXXX XXXXXX
/s/ Xxxx Xxxxxxx
----------------
XXXXXXX XXXXXXX
