UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D/A
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 1)*
Trist Holdings, Inc.
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(Name of Issuer)
Common Stock, par value $.0001 per share
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(Title of Class of Securities)
896767 100
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(CUSIP Number)
Eric Stoppenhagen
7030 Hayvenhurst Avenue
Van Nuys, CA 91406
(818) 464-1640
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
December 31, 2007
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on
Schedule 13G to report the acquisition which is the subject of this Schedule
13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g),
check the following box. [_]
NOTE: Schedules filed in paper format shall include a signed original
and five copies of the schedule, including all exhibits. See Rule 13d-7 for
other parties to whom copies are to be sent.
(Page 1 of 9)
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*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 or otherwise subject to the liabilities of that section of the Act but
shall be subject to all other provisions of the Act (however, see the Notes).
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CUSIP NO. 896767 100 PAGE 2 OF 9 PAGES
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1 NAME OF REPORTING PERSON
SS. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Landbank Acquisition LLC
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (see Instructions)
(a) |_|
(b) |_|
---------- ---------------------------------------------------------------------
3 SEC USE ONLY
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4 SOURCE OF FUNDS (see Instructions)
OO
---------- ---------------------------------------------------------------------
5 CHECK BOX OF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) |_|
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
CALIFORNIA
----------------------- -------- -----------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES 84,777,924
--------- --------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY EACH 0
--------- --------------------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON WITH 84,777,924
--------- --------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
------------- --------- --------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
84,777,924
---------- ---------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(see Instructions) |_|
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
95%
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14 TYPE OF REPORTING PERSON (see Instructions)
OO LIMITED LIABILITY COMPANY
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CUSIP NO. 896767 100 PAGE 3 OF 9 PAGES
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1 NAME OF REPORTING PERSON
SS. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Doug Gravink
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (see Instructions)
(a) |_|
(b) |_|
---------- ---------------------------------------------------------------------
3 SEC USE ONLY
---------- ---------------------------------------------------------------------
4 SOURCE OF FUNDS (see Instructions)
OO
---------- ---------------------------------------------------------------------
5 CHECK BOX OF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) |_|
---------- ---------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
CALIFORNIA
----------------------- -------- -----------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES 0
--------- --------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY EACH 84,777,924
--------- --------------------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON WITH 0
--------- --------------------------------------------------------
10 SHARED DISPOSITIVE POWER
84,777,924
---------- ---------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
84,777,924
---------- ---------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(see Instructions) |_|
---------- ---------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
95%
---------- ---------------------------------------------------------------------
14 TYPE OF REPORTING PERSON (see Instructions)
IN
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CUSIP NO. 896767 100 PAGE 4 OF 9 PAGES
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1 NAME OF REPORTING PERSON
SS. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Gary Hewitt
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (see Instructions)
(a) |_|
(b) |_|
---------- ---------------------------------------------------------------------
3 SEC USE ONLY
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4 SOURCE OF FUNDS (see Instructions)
OO
---------- ---------------------------------------------------------------------
5 CHECK BOX OF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) |_|
---------- ---------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
CALIFORNIA
----------------------- -------- -----------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES 0
--------- --------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY EACH 84,777,924
--------- --------------------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON WITH 0
--------- --------------------------------------------------------
10 SHARED DISPOSITIVE POWER
84,777,924
---------- ---------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
84,777,924
---------- ---------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(see Instructions) |_|
---------- ---------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
95%
---------- ---------------------------------------------------------------------
14 TYPE OF REPORTING PERSON (see Instructions)
IN
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This Schedule 13D/A ("Schedule 13D/A") amends the following section of
the Schedule 13D filed with the Securities and Exchange Commission on October 1,
2007.
ITEM 1. SECURITY AND ISSUER.
Item 1 of Schedule 13D is supplemented and amended by the information
below.
This Schedule 13D (this "Schedule 13D") relates to the common stock,
par value $.0001 per share (the "Common Stock"), of Trist Holdings, Inc.
(formerly Landbank Group, Inc.), a Delaware corporation (the "Company"), which
has its principal executive offices at 7030 Hayvenhurst Ave., Van Nuys,
California 91406.
ITEM 2. IDENTITY AND BACKGROUND.
Item 2 of Schedule 13D is supplemented and amended by the information
below:
This statement is being filed jointly by Landbank Acquisition LLC, a
California limited liability company ("LALLC"), Doug Gravink, an individual
resident of California ("Gravink") and Gary Hewitt, an individual resident of
California ("Hewitt").
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
THE SECURITIES EXCHANGE AGREEMENT
The closing (the "Closing") of the transactions contemplated by that
certain Securities Exchange Agreement (the "Securities Exchange Agreement") by
and among LALLC, the Company and Family Products LLC occurred on December 31,
2007. At the Closing, (1) the Company transferred ownership of its operating
subsidiary Landbank LLC ("LLC") to LALLC, (2) the Company issued 79,311,256 new
shares of its common stock to LALLC, (3) LALLC agreed to provide full indemnity
to Company for LLC's prior operations and liabilities, (4) LLC assigned $500,000
in debt to Company owed to LALLC, (5) LLC retained approximately $500,000 in
debt owed to third parties and approximately $2.5 million in debt owed to LALLC.
Following the Closing, LALLC held a total of 84,777,924 shares of Company common
stock directly. The Managing Members each hold a 50% beneficial ownership
interest in LALLC through both direct and indirect ownership via their
affiliates.
The beneficial ownership of the Company's Common Stock reported in this
Schedule 13D/A by LALLC is based on LALLC's ownership of 84,777,924 shares of
Common Stock of the Company, and assumes a total of 89,239,920 shares of the
Company's Common Stock issued and outstanding as of December 31, 2007.
The beneficial ownership of the Company's Common Stock reported in this
Schedule 13D/A by Gravink and Hewitt is based on their indirect ownership of
84,777,924 shares of Common Stock of the Company, and assumes a total of
89,239,920 shares of the Company's Common Stock issued and outstanding as of
December 31, 2007.
ITEM 4. PURPOSE OF TRANSACTION.
Reference is made to the disclosure set forth under Item 3 of this
Schedule 13D, which disclosure is incorporated herein by reference.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
Reference is made to the disclosure set forth under Items 3 and 4 of
this Schedule 13D, which disclosure is incorporated herein by reference.
As of December 31, 2007, LALLC owned 84,777,924 shares of Common Stock
of the Company. Assuming a total of 89,239,920 shares of the Company's Common
Stock outstanding as of December 31, 2007, the LALLC's ownership constitutes
approximately 95% of the shares of the Company's Common Stock issued and
outstanding.
Each of the Managing Members beneficially owns 84,777,924 shares of
Common Stock of the Company in so far as the Managing Members and their
affiliates own 100% of the membership interests of LALLC and in so far as they
have the power to direct the very disposition of such securities. Assuming a
total of 89,239,920 shares of Company Common Stock outstanding as of December
31, 2007, the Managing Members beneficial ownership constitutes 95% of the
shares of the Company's Common Stock issued and outstanding.
Transactions by the Reporting Persons in the Company's Common Stock
effected in the past 60 days are described in Item 3 above.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER.
Not applicable.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit No.
1 Joint Filing Agreement.
2 Securities Exchange Agreement dated November 1, 2007 by and among
Landbank Group, Inc., Landbank Acquisition LLC and Family Products LLC
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this Schedule 13D/A is true, complete
and correct.
Landbank Acquisition LLC
a California limited liability company
Dated: December 31, 2007 /S/ DOUG GRAVINK
---------------------------
By: Doug Gravink
Its: Manager
Dated: December 31, 2007 /S/ DOUG GRAVINK
---------------------------
Doug Gravink
Dated: December 31, 2007 /S/ GARY HEWITT
---------------------------
Gary Hewitt
EXHIBIT INDEX
Exhibit No.
Exhibit No.
1 Joint Filing Agreement.
2 Securities Exchange Agreement dated November 1, 2007 by and among
Landbank Group, Inc., Landbank Acquisition LLC and Family Products LLC
EXHIBIT 1
JOINT FILING AGREEMENT
The undersigned acknowledge and agree that the foregoing statement on
Schedule 13D/A is filed on behalf of each of the undersigned and that all
subsequent amendments to this statement on Schedule 13D/A shall be filed on
behalf of each of the undersigned without the necessity of filing additional
joint acquisition statements. The undersigned acknowledge that each shall be
responsible for the timely filing of such amendments, and for the completeness
and accuracy of the information concerning him or it contained therein, but
shall not be responsible for the completeness and accuracy of the information
concerning the other, except to the extent that it knows or has reason to
believe that such information is inaccurate.
Landbank Acquisition LLC
a California limited liability company
Dated: December 31, 2007 /S/ DOUG GRAVINK
---------------------------
By: Doug Gravink
Its: Manager
Dated: December 31, 2007 /S/ DOUG GRAVINK
---------------------------
Doug Gravink
Dated: December 31, 2007 /S/ GARY HEWITT
---------------------------
Gary Hewitt
EXHIBIT 2
SECURITIES EXCHANGE AGREEMENT
THIS SECURITIES EXCHANGE AGREEMENT (this "AGREEMENT") is made and
entered into as of this 1st day of November, 2007, by and among Landbank Group,
Inc., a Delaware corporation (the "COMPANY"), located at 7030 Hayvenhurst Ave.,
Van Nuys, CA 91406-3801, Landbank Acquisition LLC, a California limited
liability company (the "INVESTOR"), located at 7030 Hayvenhurst Ave., Van Nuys,
CA 91406-3801, and Family Products LLC, a California limited liability company,
located at 7030 Hayvenhurst Ave., Van Nuys, CA 91406-3801 ("FPLLC") (for
purposes of providing indemnification pursuant to Section 8 and the
acknowledgement of Section 9.13 only). Each of the Company and Investor are
referred to individually herein as a "PARTY," and collectively, as the
"PARTIES."
RECITALS:
A. Landbank LLC, a wholly-owned subsidiary of the Company (the "LLC"),
has previously issued those certain Promissory Notes in the aggregate principal
amount of $3,032,657.47 (the "INITIAL NOTES"), which were assigned to Investor
as holder thereof on September 20, 2007.
B. The LLC desires to transfer to the Company, and the Company desires
to assume and acquire, $500,000.00 of debt under the Initial Notes (the
"ASSIGNED DEBT"), leaving the remaining principal and interest due and owing to
Investor pursuant to the remaining Initial Notes (such remaining promissory
notes shall be referred to herein as the "REMAINING NOTES," and the transfer by
LLC hereunder shall be referred to as the "NOTE TRANSFER").
C. The Investor desires to obtain from the Company, and the Company
desires to deliver to the Investor, shares of Common Stock of the Company, par
value $0.0001 per share (the "COMMON STOCK"), and 100% of the membership
interests (the "INTERESTS") of the LLC (the "SHARE AND INTEREST TRANSFER").
D. The Company desires to obtain from Investor, and Investor desires to
deliver to the Company, the obligation to defend, indemnify and hold harmless
the Company and its designees from any and all claims arising from or as a
result of the business operations or assets of the LLC (the "INDEMNIFICATION,"
and together with the Note Transfer and Share and Interest Transfer, the
"TRANSACTIONS").
E. The Company has obtained a fairness opinion from Gemini Valuation
Services, LLC stating that the Transactions contemplated by this Agreement are
fair to the Company and its stockholders from a financial point of view (the
"FAIRNESS Opinion").
F. The Parties desire to set forth in this Agreement the terms and
conditions applicable to the Transactions.
AGREEMENT:
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein made, and in consideration of the representations, warranties,
and covenants contained herein, the Parties agree as follows:
1. ISSUANCE AND DELIVERY OF COMMON STOCK; TRANSFER OF INTERESTS.
1.1 The Company has authorized and hereby agrees to (i) issue
and deliver to Investor, and Investor agrees to acquire from the
Company, 79,311,256 shares of Common Stock; and (ii) transfer to
Investor, and Investor agrees to acquire from Company, 100% of the
Interests. The shares of Common Stock to be issued pursuant to the
terms hereof are referred to as the "SHARES". The Shares, together with
the shares of Common Stock owned by Investor prior to Closing, shall
represent 95% of the Fully Diluted Capital Stock immediately following
the Closing. For purposes of this Agreement, "FULLY DILUTED CAPITAL
STOCK" shall mean the Company's issued and outstanding shares of Common
Stock, assuming the conversion or exercise of all outstanding
securities convertible into or exercisable for shares of Common Stock.
1.2 CLOSING AND DELIVERY.
1.2.1 CLOSING. The issuance of the Shares and the
transfer of the Interests shall occur as soon as reasonably
practicable following the satisfaction or waiver of all
conditions to closing described in SECTION 5 below. The
closing of such respective issuance and transfer is referred
to herein as the "CLOSING," and the date of the Closing is
referred to herein as the "CLOSING DATE." The Closing shall be
held at the offices of the Company first set forth above.
1.2.2 DELIVERIES BY INVESTOR. At the Closing, the
Investor shall (a) surrender to the Company the Initial Notes
so that such notes can be cancelled and reissued by the
Company to represent the Assigned Debt and the Remaining
Notes; and (b) deliver an executed signature page to the
Registration Rights Agreement between the Company and Investor
in the form attached hereto as EXHIBIT A (the "REGISTRATION
RIGHTS AGREEMENT").
1.2.3 DELIVERIES BY COMPANY. At the Closing, the
Company shall (a) deliver to the Investor an assignment and
assumption of Assigned Debt (the "ASSIGNMENT") executed by the
LLC (as assignor) and Company (as assignee), and/or a
replacement note to represent and evidence the Assigned Debt
to document the Note Transfer, (b) deliver to the Investor a
certificate evidencing the Shares acquired at the Closing, (c)
deliver an executed signature page to the Registration Rights
Agreement, and (d) deliver to the Investor a certificate
evidencing the Interests transferred at the Closing or
otherwise deliver an assignment of interests in a form
reasonably acceptable to Investor in order to adequately
document the transfer of the Interests to the Investor.
1.3 ASSUMPTION OF LIABILITIES. Subject to the provisions of
this Agreement, the Investor agrees that upon transfer of the Interests
on the Closing Date, it shall assume, pay, satisfy, discharge, perform
and fulfill, to the extent not paid, satisfied, performed, discharged
or fulfilled by the Company on or before the Closing Date or the LLC
following the Closing Date, all of the Liabilities of the Company
and/or the LLC arising out of, or relating to, periods, events, or
occurrences happening prior to the Closing (the "ASSUMED LIABILITIES")
other than the Assigned Debt. "LIABILITIES" shall mean any direct or
indirect liability, indebtedness, obligation, commitment, expense,
claim, deficiency, deferred income, guaranty, or endorsement of or by
any person or entity of any type, whether accrued, absolute,
contingent, matured, unmatured or otherwise.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to the Investor that:
2.1 STATUS. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware and has all requisite corporate power and authority to carry
on its business as now conducted and as proposed to be conducted. The
LLC is a limited liability company duly organized, validly existing and
in good standing under the laws of the State of California and has all
requisite limited liability company power and authority to carry on its
business as now conducted and as proposed to be conducted. The
Interests constitute all of the issued and outstanding membership
interests and economic interests in the LLC.
2.2 POWER. The Company has all requisite power and authority
to accept, execute and deliver this Agreement, to issue the Shares, to
transfer the Interests, to except, execute and deliver the Assignment,
and to carry out the provisions of this Agreement.
2.3 APPROVALS. All action on the part of the Company, its
Board of Directors and stockholders necessary for the authorization,
execution and delivery of this Agreement, the performance of all
obligations of the Company hereunder, the authorization, issuance, sale
and delivery of the Shares hereunder, the transfer and delivery of the
Interests, and the authorization, execution and deliver of the Note
Transfer have been taken (other than approval by the Company's
stockholders, which is a condition to Closing), and this Agreement, the
Registration Rights Agreement and the Remaining Notes constitute valid
and legally binding obligations of the Company, enforceable in
accordance with its terms, except (i) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium, and other laws of
general application affecting enforcement of creditors' rights
generally, and (ii) as limited by laws relating to the availability of
specific performance, injunctive relief, or other equitable remedies.
2.4 EXEMPTION FROM REGISTRATION; VALID ISSUANCES. Subject to
the accuracy of each of the Investor's representations in SECTION 3,
the issuance of the Shares and the transfer of the Interests and
delivery of the Replacement Note will not require registration under
the Securities Act of 1933, as amended (the "SECURITIES ACT") or any
applicable state securities law. The Shares, when issued and delivered
in accordance with the terms of this Agreement, shall be duly and
validly issued, fully-paid and non-assessable shares of Common Stock,
free of all liens, claims, encumbrances, preemptive rights, rights of
first refusal and restrictions on transfer, except as imposed by
applicable securities laws or this Agreement. The Interests shall be
free of all liens, claims, encumbrances, preemptive rights, rights of
first refusal and restrictions on transfer, except as imposed by
applicable securities laws or this Agreement.
2.5 BUSINESS OF LLC. All of the properties, rights, interests
and other tangible and intangible assets necessary to enable the
Investor to conduct the business of the Company in the manner in which
such business is currently being conducted, and has been conducted
prior to the Closing, are owned by and in the name of the LLC;
provided, however, that the Company shall retain $5,000.00 in its bank
account following the Closing.
3. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR. The Investor hereby
represents and warrants to the Company that:
3.1 STATUS. The Investor is duly organized, validly existing
and in good standing under the laws of the state of California, and has
the power to own and operate its properties, to carry on its business
as now conducted and to enter into and to perform its obligations under
this Agreement.
3.2 POWER AND AUTHORITY. The Investor has the full legal
right, power and authority to enter into and perform its obligations
under this Agreement. The execution and delivery of this Agreement and
the performance by the Investor of its obligations hereunder are within
the powers of the Investor and have been duly authorized by all
necessary action properly taken and the Investor has received all
necessary governmental approvals, if any, that are required. The person
executing this Agreement is duly authorized to act on behalf of the
Investor.
3.3 VALIDITY AND BINDING EFFECT. This Agreement constitutes
the valid and legally binding obligation of the Investor, enforceable
in accordance with its terms, except (i) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium, and other laws of
general application affecting enforcement of creditors' rights
generally, and (ii) as limited by laws relating to the availability of
specific performance, injunctive relief, or other equitable remedies.
3.4 INVESTMENT. The Investor has been advised that the Shares
will not be registered under the Securities Act nor qualified under any
state securities law, on the ground that no distribution or public
offering of the Shares is to be effected, and that in this connection
the Company is relying in part on the representations of the Investor
set forth in this SECTION 3. The Investor represents that:
3.4.1 INVESTMENT INTENT. The Investor is acquiring
the Shares solely for its own account, for investment purposes
only, and with no present intention of distributing, selling
or otherwise disposing of the Shares.
3.4.2 ECONOMIC RISK. The Investor is able to bear the
economic risk of an investment in the Shares acquired by it or
to be acquired by it pursuant to this Agreement and can afford
to sustain a total loss on such investment.
3.4.3 SOPHISTICATION. The Investor (i) has a
preexisting business relationship with the Company or its
officers and/or directors, and (ii) is an experienced and
sophisticated investor, is able to fend for itself in the
transactions contemplated by this Agreement, and has such
knowledge and experience in financial and business matters
that it is capable of evaluating the risks and merits of
acquiring the Shares. The Investor has had, during the course
of this transaction and prior to its purchase of the Shares
the opportunity to ask questions of, and receive answers from,
the Company and its management concerning the Company and the
terms and conditions of this Agreement. The Investor hereby
acknowledges that it has received all such information as it
considers necessary for evaluating the risks and merits of
acquiring the Shares and for verifying the accuracy of any
information furnished to it or to which he had access.
3.4.4 ACCREDITED INVESTOR. The Investor is an
"accredited investor" for purposes of Regulation D promulgated
by the Securities and Exchange Commission (the "COMMISSION")
under the Securities Act.
3.5 TRANSFER RESTRICTIONS. The Investor understands the
restrictions on resale and transfer of the Shares imposed upon the
Investor pursuant to SECTION 4 of this Agreement, and will abide by
such resale and transfer restrictions.
3.6 LEGEND. The Investor understands that a legend in
substantially the following form will be placed on the certificates
representing the Shares (if any):
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE
SECURITIES LAWS, HAVE BEEN TAKEN FOR INVESTMENT, AND MAY NOT BE SOLD OR
OFFERED FOR SALE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAW OR AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED."
4. RESTRICTIONS ON TRANSFER.
4.1 SECURITIES LAW COMPLIANCE. The Investor hereby agrees that
none of the Shares shall be sold, transferred, assigned, pledged,
hypothecated or otherwise disposed of unless and until one of the
following events shall have occurred:
4.1.1 Such securities are disposed of pursuant to and
in conformity with an effective registration statement filed
with the Commission pursuant to the Securities Act or pursuant
to Rule 144 of the Commission thereunder; or
4.1.2 The Company shall have received a written
opinion of counsel reasonably acceptable to the Company (which
may be counsel for the Company) to the effect that the
proposed transfer is exempt from the registration and
prospectus delivery requirements of the Securities Act.
As a further condition to any such disposition and to the Company's
obligation to register any such disposition, so long as the legend set forth
above will appear on the stock certificate resulting from such transfer, the
Company may require, as a condition to such transfer, that the contemplated
transferee furnish the Company with an investment letter in form and substance
reasonably satisfactory to the Company and its counsel.
4.2 REGISTRATION RIGHTS. The Investor shall receive certain
registration rights in connection with the issuance of the Shares in
accordance with the terms and conditions of the Registration Rights
Agreement.
5. CONDITIONS TO CLOSING.
5.1 CONDITIONS TO THE OBLIGATIONS OF INVESTOR. The obligations
of the Investor to acquire the Shares and Interests pursuant to the
terms of this Agreement at the Closing and the other obligations of the
Investor under this Agreement are subject to the satisfaction as of the
Closing of the following conditions, any of which may be waived in
writing in whole or in part by the Investor:
5.1.1 REPRESENTATIONS AND WARRANTIES. The
representations and warranties of the Company shall be true
and correct in all material respects (except for
representations and warranties that contain qualifications as
to materiality, which shall be true and correct in all
respects) at and as of the date when made and as of the
Closing Date as though made at that time, and the Investor
shall have received a certificate attesting thereto from the
Company signed by a duly authorized officer of the Company.
5.1.2 BOARD APPROVAL. The Company shall have
delivered to the Investor a resolution of a majority of the
Board of Directors of the Company, including a majority of
members of the Board of Directors of the Company who do not
have an interest in the transactions contemplated by this
Agreement, approving the transactions contemplated by this
Agreement.
5.1.3 STOCKHOLDER APPROVAL. This Agreement and the
Transactions shall have been duly and validly approved by the
requisite vote or consent of Company's stockholders.
5.1.4 AMENDMENT TO CERTIFICATE OF INCORPORATION. The
Company shall have amended its certificate of incorporation to
(i) change its name from "Landbank Group, Inc." to another
name reasonably acceptable to Investor, which name shall not
include the word "Landbank" or any variation thereof, and (ii)
increase the number of shares of authorized common stock from
100,000,000 to 2,000,000,000.
5.1.5 DELIVERIES OF THE COMPANY. At the Closing, the
Company shall have delivered or caused to be delivered to
Investor those deliveries required to be delivered at Closing
pursuant to Section 1.2.3 along with a certificate executed by
the President of the Company, dated the Closing Date,
certifying (1) the resolutions of Company's Board of Directors
and stockholders approving and authorizing the execution,
delivery and performance of the Agreement and the other
transaction documents to which the Company is a party, (2) the
certificate of incorporation of the Corporation, as amended
hereunder, and (3) the satisfaction of the closing conditions
contained in this Section 5.1.
5.1.6 EXPENSES. At or prior to the Closing, the LLC
shall have paid all expenses, fees and other amounts incurred
by the Company or the LLC with respect to this Agreement and
the Transactions contemplated herein. Additionally, the LLC
shall transferred cash to the Company's bank account such that
its balance is at least $5,000.00.
5.1.7 NO MATERIAL ADVERSE CHANGE. No material adverse
change shall have occurred to, and no event or circumstance
shall have occurred that could reasonably be expected to cause
a material adverse change to, the LLC's financial condition or
businesses since the date of the Agreement.
5.2 CONDITIONS TO THE OBLIGATIONS OF THE COMPANY. The
obligations of the Company to issue the Shares and transfer the
Interests pursuant to the terms of this Agreement at the Closing and
the other obligations of the Company under this Agreement are subject
to the satisfaction as of the Closing of the following conditions, any
of which may be waived in writing in whole or in part by the Company:
5.2.1 REPRESENTATIONS AND WARRANTIES. The
representations and warranties of the Investor shall be true
and correct in all material respects (except for
representations and warranties that contain qualifications as
to materiality, which shall be true and correct in all
respects) at and as of the date when made and as of the
Closing Date as though made at that time, and the Company
shall have received a certificate attesting thereto from the
Investor signed by a duly authorized officer of the Investor.
5.2.2 STOCKHOLDER APPROVAL. This Agreement and the
Transactions shall have been duly and validly approved by the
requisite vote or consent of Company's stockholders.
5.2.3 DELIVERIES OF THE INVESTOR. At the Closing, the
Investor shall have delivered or caused to be delivered to
Investor those deliveries required to be delivered at Closing
pursuant to Section 1.2.2 along with a certificate executed by
a Manager of the Investor, dated the Closing Date, certifying
the satisfaction of the closing conditions contained in this
Section 5.2.
6. ADDITIONAL AGREEMENTS.
6.1 STOCKHOLDER APPROVAL.
6.1.1 As soon as practicable after the date of this
Agreement, and in no event later than fifteen (15) business
days after the date hereof, the Company shall prepare and
cause to be filed with the Commission a proxy statement
pursuant to Rule 14a-3 promulgated under Section 14A of the
Securities Exchange Act of 1934, as amended (the "EXCHANGE
ACT") (together with any amendments or supplements thereto,
the "PROXY STATEMENT") in connection with the approval and
adoption of this Agreement and the Transactions. The Proxy
Statement shall include a statement that Company's Board of
Directors has approved this Agreement, determined that this
Agreement and the Transactions are in the best interests of
Company's stockholders and recommends that Company's
stockholders vote in favor thereof, and Company shall use its
commercially reasonable efforts to solicit such votes from its
stockholders. The Proxy Statement shall comply as to form in
all material respects with the provisions of the Exchange Act
and the rules and regulations promulgated thereunder. Company
shall immediately advise Investor if the Proxy Statement,
including any amendments or supplements thereto, at the time
filed with the Commission, as of the date of mailing to the
stockholders of Company or at any other time, contains any
untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary in
order to make the statement therein, in light of the
circumstances under which they are made, not misleading.
Company shall respond promptly to any comments of the
Commission or its staff with respect thereto and use its best
efforts to have the Proxy Statement cleared by the Commission
as soon as practicable after its filing. Company shall also
promptly furnish to Investor copies of any correspondence
received from the Commission, and shall permit representatives
of the Investor to attend any telephone calls with the
Commission that discuss comments made by its staff. As soon as
practicable after clearance by the Commission of the Proxy
Statement, Company shall mail the Proxy Statement to its
stockholders. In addition, Company shall take all action
necessary in accordance with applicable Laws and its charter
to duly call, give notice of, convene and hold a meeting of
its stockholders as soon as practicable solely to consider and
approve this Agreement and the Transactions.
6.1.2 In the event that prior to the Company's filing
of the Proxy Statement, Company receives authorization by
written consent from that number of holders of its capital
stock necessary to approve this Agreement and the
Transactions, then notwithstanding the provisions of this
Section 6.1 to the contrary, as soon as practicable after the
date of this Agreement, and in no event later than fifteen
(15) business days after the date hereof, Company shall
prepare and cause to be filed with the Commission an
information statement pursuant to Rule 14(c) promulgated under
Section 14A of the Exchange Act (together with any amendments
or supplements thereto, the "INFORMATION STATEMENT") in
connection with the approval and adoption of this Agreement
and the Transactions, and shall take all other actions
necessary and consistent with the provisions of this Section
6.1, with respect to the Information Statement.
6.1.3 As promptly as practicable, Company shall
properly prepare and file any other filings required under the
Securities Act, the Exchange Act or any other Laws (including,
without limitation, state securities and "blue sky" laws)
relating to the Transactions contemplated by this Agreement
(collectively, "OTHER FILINGS").
6.1.4 Company shall provide copies of drafts of the
Proxy Statement or the Information Statement, as the case may
be, to Company at least two (2) business days prior to the
date of filing of such document with the Commission (including
with respect to each amendment or supplement thereto) so as to
allow Investor to review and comment on such documents. Such
review shall not be deemed a review by Investor as to whether
the Company has properly complied with Commission rules or
regulations. Prior to the filing of the Proxy Statement or the
Information Statement, as the case may be, with the
Commission, the Company shall consider in good faith any
comments made by, or changes requested by, Investor.
6.2 The Company shall take such actions, do such things,
execute and deliver such other documents, instruments or agreements,
and make such filings as may be necessary or desirable in order to
obtain the approval of the Company's stockholders as described herein.
7. TERMINATION.
7.1 TERMINATION EVENTS. This Agreement may be terminated at
any time prior to the Closing by mutual written consent of the Company
and the Investor.
7.2 EFFECT OF TERMINATION. Upon termination of this Agreement
as provided in SECTION 7.1, this Agreement shall forthwith become void
and there shall be no liability or obligation on the part of any party
hereto or their respective, subsidiaries, stockholders, directors,
officers, employees, agents or other representatives.
8. INDEMNIFICATION.
8.1 Each of Investor and FPLLC (the "INDEMNIFYING PARTIES")
shall defend, hold harmless and indemnify each of the Company
Indemnitees from and against, and shall compensate and reimburse each
of the Company Indemnitees for, any Damages that are directly or
indirectly suffered or incurred by any of the Company Indemnitees or to
which any of the Company Indemnitees may otherwise become subject at
any time (regardless of whether or not such Damages relate to any third
party claim) and that arise directly or indirectly from or as a direct
or indirect result of, or are directly or indirectly connected with (i)
the operation of the business or assets of the LLC prior to or
following the Closing, but not including any Damages arising from the
Assigned Debt which shall remain an obligation of the Company following
the Closing, (ii) any breach of any representation or warranty or
covenant made by the Investor in this Agreement and (iii) the Assumed
Liabilities excluding the Assigned Debt. "COMPANY INDEMNITEES" shall
mean (a) the Company; (b) the Company's officers, directors,
stockholders, and other current and future affiliates; and (c) the
respective successors and assigns of the persons and entities referred
to in clauses "(a)" and "(b)" above. "DAMAGES" shall include any direct
damage, injury, liability, claim, demand, settlement, judgment, award,
fine, penalty, tax, fee (including any reasonable legal fee, expert
fee, accounting fee or advisory fee), charge, cost (including any cost
of investigation) or expense of any nature; but shall specifically
exclude any special, incidental, consequential, lost profits, indirect,
punitive, or exemplary damages.
8.2 If any Damages or alleged Damages shall be brought against
any Company Indemnitee in respect of which such Company Indemnitee may
be indemnified under this Section 8 by INDEMNIFYING PARTIES, such
Company Indemnitee shall promptly notify the Indemnifying Parties in
writing. The Indemnifying Parties at their option may assume the
defense of any action in respect of which it has acknowledged its
obligation to indemnify such Company Indemnitee under this Section 8.
If any Indemnifying Party assumes the defense of any action, such
Company Indemnitee shall not be liable for any settlement thereof
without its consent (but such consent will not be unreasonably
withheld). If any Indemnifying Party assumes the defense of any such
action, such Company Indemnitee shall have the right to employ separate
counsel in such action and to participate in the defense thereof, but
the fees and expenses of such counsel shall be paid by such Company
Indemnitee unless there exists a conflict between the positions of the
Indemnifying Party and of such Company Indemnitee in conducting the
defense of such action or that there may be legal defenses available to
such Company Indemnitee different from or in addition to those which
counsel to the Indemnifying Party would be able to raise, in which
event the reasonable fees and expenses of such counsel shall be paid by
the Indemnifying Party.
8.3 CONTRIBUTION. If the indemnification from the Indemnifying
Parties provided for in this Section 8 is unavailable to a Company
Indemnitee hereunder in respect of any Damages referred to therein,
then the Indemnifying Parties, in lieu of indemnifying such Company
Indemnitee, shall contribute to the amount paid or payable by such
Indemnifying Parties as a result of such Damages in such proportion as
is appropriate to reflect the relative fault of the Indemnifying
Parties and Company Indemnitees in connection with the actions which
resulted in such Damages, as well as any other relevant equitable
considerations. The relative fault of such Indemnifying Parties and
Company Indemnitees shall be determined by reference to, among other
things, whether any action in question, including any untrue or alleged
untrue statement of a material fact, has been made by, or relates to
information supplied by, such Indemnifying Party or Company Indemnitee,
and the parties intent, knowledge, access to information and
opportunity to correct or prevent such action. The amount paid or
payable by a party as a result of the Damages shall be deemed to
include any reasonable legal or other fees or expenses reasonably
incurred by such party in connection with any investigation or
proceeding. No Company Indemnitee guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation.
9. MISCELLANEOUS.
9.1 NOTICES. Any and all notices, elections or demands
permitted or required to be made under this Agreement shall be in
writing, signed by the party giving such notice, election or demand and
shall be delivered personally, telecopied, or sent by certified mail or
overnight via nationally recognized courier service (such as Federal
Express), to the other party at the address set forth in the
introductory paragraph to this Agreement or at such other address as
may be supplied in writing and of which receipt has been acknowledged
in writing. The date of personal delivery or telecopy or two (2)
business days after the date of mailing (or the next business day after
delivery to such courier service), as the case may be, shall be the
date of such notice, election or demand.
9.2 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA,
WITHOUT REGARD TO THE CONFLICTS OF LAW PRINCIPLES OF SUCH STATE.
9.3 SUBMISSION TO JURISDICTION; VENUE. The Parties hereto
expressly acknowledge and agree that the exclusive forum for the
resolution of disputes hereunder shall be the courts located in Los
Angeles, California, and waive any objection thereto on the basis of
personal jurisdiction or venue.
9.4 FURTHER ASSURANCES. Whether or not specifically required
under the terms of this Agreement, each party hereto shall execute and
deliver such documents and take such further actions as shall be
necessary in order for such party to perform all of his or its
obligations specified herein or reasonably implied from the terms
hereof.
9.5 AMENDMENT. This Agreement may not be amended or any
provision hereof waived in whole or in part, except by a written
amendment signed by the Company and the Investor.
9.6 SUCCESSORS AND ASSIGNS. Whenever in this Agreement one of
the parties hereto is named or referred to, the heirs, legal
representatives, successors, successors-in-title and assigns of such
parties shall be included, and all covenants and agreements contained
in this Agreement by or on behalf of the Company or by or on behalf of
an Investor shall bind and inure to the benefit of their respective
heirs, legal representatives, successors-in-title and assigns, whether
so expressed or not.
9.7 ASSIGNABILITY. Neither this Agreement nor any right,
remedy, obligation or liability arising hereunder or by reason hereof
shall be assignable by either the Company or the Investor, without the
prior written consent of each other party.
9.8 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement and understanding of the parties in respect of its subject
matters and supersedes all prior understandings, agreements, or
representations by or between the parties, written or oral, to the
extent they relate in any way to the subject matter hereof.
9.9 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed as original but all of
which together shall constitute one and the same instrument.
9.10 SEVERABILITY. The provisions of this Agreement shall be
deemed severable and the invalidity or unenforceability of any
provision shall not affect the validity or enforceability of the other
provisions hereof.
9.11 ARTICLE AND SECTION HEADINGS, DEFINED TERMS. Numbered and
titled article and section headings and defined terms are for
convenience only and shall not be construed as amplifying or limiting
any of the provisions of this Agreement.
9.12 EXPENSES. Each party shall bear its own costs and
expenses incurred in connection with the preparation, execution and
performance of this Agreement and the transactions contemplated
hereunder including all fees and expenses of agents, representatives,
financial advisors, legal counsel and accountants.
9.13 INDEPENDENT COUNSEL; INTERPRETATION. THE INVESTOR AND
FPLLC HEREBY EXPRESSLY REPRESENT, ACKNOWLEDGE AND CONFIRM THAT THEY
UNDERSTAND THAT STUBBS ALDERTON & MARKILES, LLP HAS REPRESENTED THE
COMPANY ONLY IN THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AND
THAT THEY HAVE BEEN ADVISED TO SEEK AND OBTAIN LEGAL ADVICE FROM
INDEPENDENT COUNSEL REPRESENTING THEIR INTERESTS WITH RESPECT TO THIS
AGREEMENT, THAT THEY HAVE HAD THE FULL RIGHT AND OPPORTUNITY TO CONSULT
WITH SUCH COUNSEL, THAT THEY HAVE AVAILED THEMSELVES OF THIS RIGHT AND
OPPORTUNITY, THAT THEY HAVE CAREFULLY READ AND FULLY UNDERSTANDS THIS
AGREEMENT IN ITS ENTIRETY, THAT THEY ARE FULLY AWARE OF THE CONTENTS
HEREOF AND THE MEANING, INTENT AND LEGAL EFFECT OF THIS AGREEMENT, AND
THAT THEY HAVE EXECUTED THIS AGREEMENT FREE FROM COERCION, DURESS OR
UNDUE INFLUENCE. SPECIFICALLY, BY SIGNING THIS AGREEMENT, INVESTOR AND
FPLCC UNDERSTAND, AND HEREBY ACKNOWLEDGE AND CONFIRM, THAT THEY MAY BE
GIVING UP SIGNIFICANT LEGAL RIGHTS. SHOULD ANY PROVISION OF THIS
AGREEMENT REQUIRE JUDICIAL INTERPRETATION, IT IS AGREED THAT A COURT
INTERPRETING OR CONSTRUING THE SAME SHALL NOT APPLY A PRESUMPTION THAT
THE TERMS HEREOF SHALL BE MORE STRICTLY CONSTRUED AGAINST ANY PARTY BY
REASON OF THE RULE OF CONSTRUCTION THAT A DOCUMENT IS TO BE CONSTRUED
MORE STRICTLY AGAINST THE PARTY WHO ITSELF OR THROUGH ITS AGENT
PREPARED THE SAME, IT BEING AGREED THAT ALL PARTIES HERETO HAVE
PARTICIPATED IN THE PREPARATION OF THIS AGREEMENT.
IN WITNESS WHEREOF, this Agreement has been executed by the parties
with the intent that it be effective as of the date first above written.
LANDBANK GROUP, INC.
a Delaware corporation
By: /S/ ERIC STOPPENHAGEN
--------------------------------
Name: ERIC STOPPENHAGEN
Its: Interim President
LANDBANK ACQUISITION, LLC
a California limited liability company
By: /S/ DOUGLAS GRAVINK
--------------------------------
Name: DOUGLAS GRAVINK
Its: Member
FAMILY PRODUCTS LLC
a California limited liability company
By: /S/ DOUGLAS GRAVINK
--------------------------------
Name: DOUGLAS GRAVINK
Its: Member
EXHIBIT A
TO
SECURITIES EXCHANGE AGREEMENT
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is made and
entered into as of the 1st day of November, 2007, by and among Landbank Group,
Inc., a Delaware corporation (the "COMPANY"), and Landbank Acquisition LLC, a
California limited liability company (the "STOCKHOLDER").
W I T N E S S E T H:
WHEREAS, the Company and Stockholder are parties to that certain
Securities Exchange Agreement, dated November 1, 2007 (the "SECURITIES EXCHANGE
AGREEMENT") pursuant to which the Stockholder is to be issued 79,311,256 shares
of common stock of the Company (the "COMMON STOCK");
WHEREAS, it is a condition of the Securities Exchange Agreement that
the Stockholder and Company enter into a Registration Rights Agreement in the
form hereof.
NOW THEREFORE, in consideration of the premises and the mutual promises
herein made, and for other good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged, the parties agree as follows:
1. REGISTRATION RIGHTS
Effective as of the Closing of the Securities Exchange
Agreement (the "EFFECTIVE DATE"), the Company hereby grants to the Stockholder
the following registration rights.
A. DEFINITIONS. As used in this SECTION 1, the following terms
shall have the following respective meanings:
BUSINESS DAY: Any day other than a day on which banks are
authorized or required to be closed in the State of New York.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated
thereunder.
PERSON: Any individual, corporation, partnership, joint
venture, association, joint-stock company, trust,
unincorporated organization or government or other agency or
political subdivision thereof.
PROSPECTUS: The prospectus included in any Registration
Statement (including, without limitation, a prospectus that
discloses information previously omitted from a prospectus
filed as part of an effective registration statement in
reliance upon Rule 430A promulgated under the Securities Act),
as amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any portion of the
Registrable Securities covered by such Registration Statement,
and all other amendments and supplements to the prospectus,
including post-effective amendments, and all material
incorporated by reference or deemed to be incorporated by
reference in such prospectus.
REGISTRABLE SECURITIES: Each issued and outstanding share of
Common Stock held as of the Effective Date by the Stockholder
and identified on EXHIBIT A hereto until such time as such
shares (a) have been sold pursuant to, or are subject to, an
effective registration statement under the Act, (b) have been
sold pursuant to Rule 144, or (b) may be sold without any
time, volume or manner limitations pursuant to section (k) of
Rule 144.
REGISTRATION STATEMENT: Any registration statement of the
Company that covers any of the Registrable Securities pursuant
to the provisions of this Agreement, including the Prospectus,
amendments and supplements to such registration statements,
including post effective amendments, all exhibits, and all
material incorporated by reference or deemed to be
incorporated by reference in such registration statement.
RULE 144: Rule 144 promulgated by the Commission pursuant to
the Act, as such Rule may be amended from time to time, or any
similar rule or regulation hereafter adopted by the SEC having
substantially the same effect as such Rule.
SEC: The United States Securities and Exchange Commission.
TRADING DAY: A day on whichever (a) the national securities
exchange, (b) the NASDAQ Stock Market, or (c) such other
securities market, in any such case which at the time
constitutes the principal securities market for the Common
Stock, is open for general trading of securities.
B. DEMAND REGISTRATION RIGHT. If the Company receives at any
time after the date that is six (6) months from the Effective Date, a
written request (a "DEMAND REQUEST") from the Stockholder that the
Company register any such Registrable Securities, then the Company
shall agree to take all actions as are necessary to keep any
Registration Statement filed pursuant to this Section 1.B. effective
until the date on which all Registrable Securities thereunder may be
sold without any restriction, under Rule 144 during any 90-day period
in accordance with all rules and regulations regarding sales of
securities pursuant to Rule 144.
The Company shall file, no later than forty-five (45) days
following receipt of a Demand Request (the "DEMAND FILING DATE"), a
Registration Statement (the "DEMAND REGISTRATION STATEMENT") covering
such Registrable Securities which the Company has been so requested to
register by the Stockholder, providing for the registration under the
Securities Act of such Registrable Securities to the extent necessary
to permit the disposition of such Registrable Securities in accordance
with the intended method of distribution specified in such Demand
Request, and use its commercially reasonable efforts to have such
Demand Registration Statement declared effective by the SEC within one
hundred fifty (150) days after the Demand Filing Date. If a
registration pursuant to this Section 1.B. involves an underwritten
public offering, the Stockholder registration may elect, in writing
prior to the effective date of the Registration Statement filed in
connection with such registration, not to register such securities in
connection with such registration.
The Company may delay making a filing of a Demand Registration
Statement in connection with a Demand Request or taking action in
connection therewith by not more than ninety (90) days if the Company
provides a written certificate signed by the Chief Executive Officer
and Chief Financial Officer of the Company to the Stockholders, prior
to the time it would otherwise have been required to file such Demand
Registration Statement or take such action pursuant to this SECTION
1.B., stating that the Board has determined in good faith that the
filing of such Demand Registration Statement would be seriously
detrimental to the Company or would otherwise materially adversely
affect a financing, acquisition, disposition, merger or other material
transaction (collectively, a "VALID BUSINESS REASON") and that it is
therefore essential to defer the filing of the Demand Registration
Statement; provided, however, that such right to delay a Demand Request
shall be exercised by the Company not more than once in any twelve
(12)-month period and the Company shall only have the right to delay a
Demand Request so long as such Valid Business Reason exists, and during
such time, the Company may not file a registration statement for
securities to be issued and sold for its own account or for that of
anyone other than the Stockholders.
The Company shall only be obligated to effect one (1) Demand
Request pursuant to this SECTION 1.B.
The Stockholder shall have the right to cancel a proposed
registration of Registrable Securities pursuant to this SECTION 1.B
when the request for cancellation is based upon material adverse
information relating to the Company that is different from the
information known to the Stockholder at the time of the Demand Request.
Such cancellation of a registration shall be made in writing and shall
not be counted as a Demand Request.
C. PIGGYBACK REGISTRATION. If the Company proposes to register
any of its securities under the Securities Act for sale to the public
for its own account or for the account of other security stockholders
(except with respect to the Initial Registration Statement, or
registration statements on Forms S-4 or S-8 or another form not
available for registering the Registrable Securities for sale to the
public), each such time it will give written notice thereof to
Stockholder of its intention so to do (such notice to be given at least
fifteen (15) days prior to the filing thereof). Upon the written
request of the Stockholder (which request shall specify the number of
Registrable Securities intended to be disposed of by the Stockholder
and the intended method of disposition thereof), received by the
Company within ten (10) days after giving of any such notice by the
Company, to register any of the Stockholder's Registrable Securities,
the Company will use its commercially reasonable efforts to cause the
Registrable Securities as to which registration shall have been so
requested to be included in the securities to be covered by the
Registration Statement proposed to be filed by the Company, all to the
extent requisite to permit the sale or other disposition by the
Stockholder (in accordance with its written request) of such
Registrable Securities so registered ("PIGGYBACK REGISTRATION RIGHTS");
PROVIDED, that if, at any time after giving written notice of its
intention to register any securities pursuant to this SECTION 1.C and
prior to the effective date of the Registration Statement filed in
connection with such registration, the Company shall determine for any
reason not to register such securities, the Company shall give written
notice to the Stockholder and, thereupon, shall be relieved of its
obligation to register any Registrable Securities in connection with
such registration. If a registration pursuant to this Section 1.C.
involves an underwritten public offering, the Stockholder may elect, in
writing prior to the effective date of the registration statement filed
in connection with such registration, not to register such securities
in connection with such registration. The foregoing provisions
notwithstanding, the Company may withdraw any registration statement
referred to in this SECTION 1.C. without thereby incurring any
liability to the Stockholder.
D. UNDERWRITING. If a Registration Statement is for a
registered public offering involving an underwriting, the Company shall
so advise the Stockholder in writing or as a part of the written notice
given pursuant to SECTION 1.B or 1.C, as applicable. In such event the
right of the Stockholder to registration pursuant to SECTION 1.B and/or
1.C shall be conditioned upon the Stockholder's participation in such
underwriting and the inclusion of the Stockholder's Registrable
Securities in the underwriting to the extent provided herein. The
Stockholder, if proposing to distribute their securities through such
underwriting, shall (together with the Company and any other
stockholders of the Company distributing their securities through such
underwriting) enter into an underwriting agreement in customary form
with the underwriter or underwriters selected for such underwriting by
the Company or selling stockholders, as applicable. Notwithstanding any
other provision of this SECTION 1, if the underwriter or the Company
determines that marketing factors require a limitation of the number of
shares to be underwritten, the underwriter may exclude some or all
Registrable Securities from such registration and underwriting. The
Company shall so advise the Stockholder, and the number of shares of
Registrable Securities that may be included in the registration and
underwriting, if any, shall be allocated to the Stockholder as follows:
(i) In the event of a registration that is initiated
by the exercise of demand registration rights by the
Stockholder, then the number of shares that may be included in
the registration and underwriting shall be allocated first to
the Stockholder;
(ii) In the event of a registration that is initiated
by the Company, the number of shares that may be included in
the registration and underwriting shall be allocated first to
the Company and then, subject to obligations and commitments
existing as of the date hereof, to all selling stockholders,
including the Stockholder, who have requested to sell in the
registration on a pro rata basis according to the number of
shares requested to be included; and
(iii) In the event of a registration that is
initiated by the exercise of demand registration rights by a
stockholder or stockholders of the Company (other than the
Stockholder), then the number of shares that may be included
in the registration and underwriting shall be allocated first
to such selling stockholders who exercised such demand and
then, subject to obligations and commitments existing as of
the date hereof, to all other selling stockholders, including
the Stockholder, who have requested to sell in the
registration, on a pro rata basis according to the number of
shares requested to be included.
No Registrable Securities excluded from the underwriting by reason of
the underwriter's marketing limitation shall be included in such registration.
If the Stockholder disapproves of the terms of any such underwriting, the
Stockholder may elect to withdraw therefrom by written notice to the Company and
the underwriter. The Registrable Securities and/or other securities so withdrawn
from such underwriting shall also be withdrawn from such registration.
E. REGISTRATION PROCEDURES. In connection with the
registration obligations of the Company pursuant to the terms and
conditions of this Agreement, the Company shall:
(i) Prepare and file with the SEC such amendments and
supplements to all Registration Statements and each related
Prospectus as may be necessary to comply with the provisions
of the Act with respect to the disposition of securities
covered by such Registration Statements;
(ii) Respond as promptly as reasonably practicable to
any comments received from the SEC with respect to a
Registration Statement or any amendment thereto.
(iii) Notify the Stockholder as promptly as
reasonably practicable and confirm such notice in writing no
later than one trading day following the day (A) when a
Prospectus or any Prospectus supplement or post-effective
amendment to a Registration Statement is proposed to be filed
and (B) with respect to a Registration Statement or any
post-effective amendment, when the same has become effective;
(iv) Furnish such number of Prospectuses and other
documents incident thereto, including supplements and
amendments, as the Stockholder may reasonably request;
(v) Furnish to the Stockholder, upon request, a copy
of all documents filed with and all correspondence from or to
the SEC in connection with any such registration statement
other than non-substantive cover letters and the like;
(vi) Use its reasonable best efforts to avoid the
issuance of, or, if issued, obtain the withdrawal of (i) any
order suspending the effectiveness of a registration
statement, or (ii) any suspension of the qualification (or
exemption from qualification) of any of the Registrable
Securities for sale in any jurisdiction, at the earliest
practicable moment; and
(vii) Use its reasonable best efforts to comply with
all applicable rules and regulations of the SEC.
Notwithstanding the foregoing, if at any time or from time to time after the
date hereof, the Company notifies the Stockholder whose shares are registered on
a Registration Statement (a "SELLING STOCKHOLDER") in writing of the existence
of an event or circumstance that is not disclosed in such Registration Statement
and that may have a material effect on the Company or its business (a "POTENTIAL
MATERIAL EVENT"), the Selling Stockholder shall not offer or sell any
Registrable Securities, or engage in any other transaction involving or relating
to the Registrable Securities, from the time of the giving of notice with
respect to a Potential Material Event until the Company notifies the Selling
Stockholder that such Potential Material Event either has been added to the
Registration Statement by amendment or supplement or no longer constitutes a
Potential Material Event; PROVIDED, that the Company may not so suspend the
right of the Selling Stockholder for more than One-Hundred Twenty (120) days
during any twelve (12) month period.
F. REGISTRATION EXPENSES.
(i) All expenses incident to the Company's
performance of, or compliance with, the provisions hereof,
including without limitation, all Commission and securities
exchange or NASD registration and filing fees, fees and
expenses of compliance with securities or "blue sky" laws
(including fees and disbursements of counsel in connection
with "blue sky" qualifications of the Registrable Securities),
printing expenses, messenger and delivery expenses, internal
expenses (including, without limitation, all salaries and
expenses of the Company's officers and employees performing
legal or accounting duties), fees and expenses incurred in
connection with the listing of the securities to be
registered, if any, on each securities exchange on which
similar securities issued by the Company are then listed, fees
and disbursements of counsel for the Company and its
independent certified public accountants (including the
expense of any special audit or "cold comfort" letters
required by, or incident to, such performance), Securities Act
liability insurance (if the Company elects to obtain such
insurance), reasonable fees and expenses of any special
experts retained by the Company in connection with such
registration, fees and expenses of other Persons retained by
the Company in connection with each registration hereunder
(but not including the fees and expense of legal counsel
retained by the Stockholder, or any underwriting fees,
discounts or commissions attributable to the sale of
Registrable Securities) are herein called "Registration
Expenses."
(ii) The Company will pay all Registration Expenses
in connection with each Registration Statement filed pursuant
to SECTION 1
except as otherwise set forth therein. Other than as
specifically provided for in SECTION 1.A hereof, all expenses
to be borne by the Stockholder in connection with any
Registration Statement filed pursuant to SECTION 1 (including,
without limitation, all underwriting fees, discounts or
commissions attributable to such sale of Registrable
Securities) shall be borne by the participating Stockholder.
G. INDEMNIFICATION; CONTRIBUTION.
(i) INDEMNIFICATION BY THE COMPANY. The Company
agrees to indemnify and hold harmless, to the full extent
permitted by law, the Stockholder, its officers, directors and
each Person who controls the Stockholder (within the meaning
of the Securities Act), and any agent or investment adviser
thereof, against all losses, claims, damages, liabilities and
expenses (including reasonable attorneys' fees and costs of
investigation) arising out of or based upon any untrue or
alleged untrue statement of material fact contained in any
Registration Statement, any amendment or supplement thereto,
any Prospectus or preliminary Prospectus or any omission or
alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein
not misleading, except insofar as the same arise out of or are
based upon any such untrue statement or omission based upon
information with respect to the Stockholder furnished in
writing to the Company by or on behalf of the Stockholder
expressly for use therein; PROVIDED that, in the event that
the Prospectus shall have been amended or supplemented and
copies thereof as so amended or supplemented, shall have been
furnished to the Stockholder prior to the confirmation of any
sales of Registrable Securities, such indemnity with respect
to the Prospectus shall not inure to the benefit of the
Stockholder if the Person asserting such loss, claim, damage
or liability and who purchased the Registrable Securities from
the Stockholder did not, at or prior to the confirmation of
the sale of the Registrable Securities to such Person, receive
a copy of the Prospectus as so amended or supplemented and the
untrue statement or omission of a material fact contained in
the Prospectus was corrected in the Prospectus as so amended
or supplemented.
(ii) INDEMNIFICATION BY STOCKHOLDER OF REGISTRABLE
SECURITIES. In connection with any Registration Statement in
which the Stockholder is participating, the Stockholder will
furnish to the Company in writing such information with
respect to the name and address of the Stockholder and such
other information as may be reasonably required for use in
connection with any such Registration Statement or Prospectus
and agrees to indemnity, to the full extent permitted by law,
the Company, its directors and officers and each Person who
controls the Company (within the meaning of the Securities
Act) against any losses, claims, damages, liabilities and
expenses resulting from any untrue statement of a material
fact in the Registration Statement or Prospectus or any
amendment thereof or supplement thereto or necessary to make
the statements therein not misleading, to the extent, but only
to the extent, that such untrue or alleged untrue statement
relates to any information with respect to the Stockholder so
furnished in writing by the Stockholder specifically for
inclusion in any Prospectus or Registration Statement;
PROVIDED, HOWEVER, that the Stockholder shall not be liable in
any such case to the extent that prior to the filing of any
such Registration Statement or Prospectus or amendment thereof
or supplement thereto, the Stockholder has furnished in
writing to the Company information expressly for use in such
Registration Statement or Prospectus or any amendment thereof
or supplement thereto which corrected or made not misleading
information previously furnished to the Company. In no event
shall the liability of the Selling Stockholder hereunder be
greater in amount than the dollar amount of the net proceeds
received by the Selling Stockholder upon the sale of the
Registrable Securities, sold under such Registration Statement
or Prospectus as contemplated herein, giving rise to such
indemnification obligation.
(iii) CONDUCT OF INDEMNIFICATION PROCEEDINGS. Any
Person entitled to indemnification hereunder agrees to give
prompt written notice to the indemnifying party after the
receipt by such Person of any written notice of the
commencement of any action, suit, proceeding or investigation
or threat thereof made in writing for which such Person will
claim indemnification or contribution pursuant to the
provisions hereof and, unless in the judgment of counsel of
such indemnified party a conflict of interest may exist
between such indemnified party and the indemnifying party with
respect to such claim, permit the indemnifying party to assume
the defense of such claim. Whether or not such defense is
assumed by the indemnifying party, the indemnifying party will
not be subject to any liability for any settlement made
without its consent (but such consent will not be unreasonably
withheld). No indemnifying party will consent to entry of any
judgment or enter into any settlement which does not include
as an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of a release from all
liability in respect of such claim or litigation. If the
indemnifying party is not entitled to, or elects not to,
assume the defense of a claim, it will not be obligated to pay
the fees and expenses of more than one counsel (plus such
local counsel, if any, as may be reasonably required in other
jurisdictions) with respect to such claim, unless in the
judgment of any indemnified party a conflict of interest may
exist between such indemnified party and any other of such
indemnified parties with respect to such claim, in which event
the indemnifying party shall be obligated to pay the fees and
expenses of such additional counsel or counsels. For the
purposes of this Section 5(c), the term "conflict of interest"
shall mean that there are one or more legal defenses available
to the indemnified party that are different from or additional
to those available to the indemnifying party or such other
indemnified parties, as applicable, which different or
additional defenses make joint representation inappropriate.
(iv) CONTRIBUTION. If the indemnification from the
indemnifying party provided for in this Section 1.G is
unavailable to an indemnified party hereunder in respect of
any losses, claims, damages, liabilities or expenses referred
to therein, then the indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or expenses in
such proportion as is appropriate to reflect the relative
fault of the indemnifying party and indemnified parties in
connection with the actions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative fault of such
indemnifying party and indemnified parties shall be determined
by reference to, among other things, whether any action in
question, including any untrue or alleged untrue statement of
a material fact, has been made by, or relates to information
supplied by, such indemnifying party or indemnified parties,
and the parties intent, knowledge, access to information and
opportunity to correct or prevent such action. The amount paid
or payable by a party as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be
deemed to include, subject to the limitations set forth in
Section 1.G(iii), any reasonable legal or other fees or
expenses reasonably incurred by such party in connection with
any investigation or proceeding. No Person guilty of
fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation.
(v) If indemnification is available under this
Section 1.G, the indemnifying parties shall indemnity each
indemnified party to the full extent provided in Sections 5(a)
and (b) without regard to the relative fault of said
indemnifying party or indemnified party or any other equitable
consideration provided for in this Section 1.G.
H. LIMITATION TO REGISTRATION REQUIREMENT. Notwithstanding
anything else herein to the contrary, the Company shall not be
obligated to effect any registration of the Registrable Securities or
take any other action (i) in any particular jurisdiction in which the
Company would be required to execute a general consent to service of
process in effecting such registration, qualification or compliance
unless the Company is already subject to service in such jurisdiction
and except as may be required by the Securities Exchange Act, or (ii)
during any period in which the Company suspends the rights of a
subscriber after giving the Subscriber written notification of a
Material Event.
I. TRANSFER OF RIGHTS. The rights to cause the Company to
register Registrable Securities granted pursuant to the provisions
hereof may be transferred or assigned by the Stockholder to a
transferee or assignee; PROVIDED; HOWEVER, that the transferee or
assignee of such rights assumes the obligations of such transferor or
assignor, as the case may be, hereunder.
J. INFORMATION BY STOCKHOLDER. The Stockholder or holders of
Registrable Securities included in any Registration Statement shall
furnish to the Company such information regarding the Stockholder and
the distribution of securities by the Stockholder as the Company may
request in writing.
K. COMPLIANCE. The Stockholder covenants and agrees that the
Stockholder will comply with the prospectus delivery requirements of
the Act as applicable to the Stockholder in connection with sales of
Registrable Securities pursuant to the Registration Statements required
hereunder.
2. AMENDMENT. Except as otherwise provided herein, the provisions
hereof may not be amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given unless the Company has
obtained the written consent of the Stockholder.
3. SUCCESSORS AND ASSIGNS. The terms and conditions of this Agreement
shall inure to the benefit of and be binding upon the respective permitted
successors and assigns of the parties. Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties hereto or
their respective successors and assigns any rights, remedies, obligations or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
4. GOVERNING LAW. This Agreement shall be governed by and construed
under the laws of the State of California, irrespective of its choice of law
principles.
5. COUNTERPARTS. This Agreement may be executed 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.
6. TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
7. NOTICES. Unless otherwise provided, any notice required or permitted
under this Agreement shall be given in writing and shall be deemed effectively
given upon personal delivery to the party to be notified or, if sent by telex,
telecopier or e-mail transmission, upon receipt of the correct answer back, or
upon deposit with the United States Post Office, by registered or certified
mail, or upon deposit with an overnight air courier, in each case postage
prepaid and addressed to the party to be notified at the address indicated for
such party in the records of the Company, or at such other address as such party
may designate by ten (10) days' advance written notice to the other parties.
8. SEVERABILITY. If one or more provisions of this Agreement are held
to be unenforceable under applicable law, such provision shall be excluded from
this Agreement and the balance of this Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
9. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
among the parties hereto pertaining to the subject matter hereof and supersedes
all prior agreements, term sheets, letters, discussions and understandings of
the parties in connection therewith.
10. FURTHER ASSURANCES. Each party to this Agreement shall execute all
instruments and documents and take all actions as may be reasonably required to
effectuate this Agreement, whether before, concurrently with or after the
consummation of the transactions contemplated hereby.
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first above written.
LANDBANK GROUP, INC.
a Delaware corporation
By: /S/ ERIC STOPPENHAGEN
--------------------------------
Name: ERIC STOPPENHAGEN
Its: Interim President
LANDBANK ACQUISITION, LLC
a California limited liability company
By: /S/ DOUG GRAVINK
--------------------------------
Name: DOUG GRAVINK
Its: Manager
EXHIBIT A
SHARES
79,311,256 shares of Common Stock issued to Landbank Acquisition LLC on December
31, 2007.