EXHIBIT 10.1
STOCK PURCHASE AGREEMENT AND SHARE EXCHANGE
dated April 27, 2005
by and among
ALLIANCE TOWERS, INC.
a Florida Corporation
XXXXXX X. XXXXXXXX
its CEO
XXXXXXX XXXXX
its CFO
ENCLAVES GROUP, INC.
a Delaware Corporation
and
HOMES FOR AMERICA HOLDINGS, INC.
a Nevada corporation
STOCK PURCHASE AGREEMENT AND SHARE EXCHANGE
THIS STOCK PURCHASE AGREEMENT AND SHARE EXCHANGE dated the 27th day
of April, 2005 (this "Agreement"), by and among ALLIANCE TOWERS, INC., a Florida
corporation with its principal place of business located at 0000 Xxxxx Xxxx
Xxxxx Xxxxxxx, Xxxxx X, Xxxxx, Xxxxxxx 00000 ("Alliance"); XXXXXX X. XXXXXXXX,
Chief Executive Officer of Alliance ("Xxxxxxxx"); XXXXXXX XXXXX, Chief Financial
Officer of Alliance ("Xxxxx"); ENCLAVES GROUP, INC., a Delaware corporation with
its principal place of business located at 000 Xxxxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxx, Xxx Xxxx 00000 ("Enclaves"); and HOMES FOR AMERICA HOLDINGS, INC., a
Nevada corporation with its principal place of business located at Xxx Xxxxx
Xxxxx, Xxxxxxx, Xxx Xxxx 00000 ("Homes Holdings").
PREMISES
A. This Agreement provides for the acquisition of Enclaves whereby
Enclaves shall become a wholly owned subsidiary of Alliance and in connection
therewith, the issuance of an amount of shares equal, after conversion of
preferred stock, to ninety five (95 %) percent of the fully diluted outstanding
shares of Alliance, subject to approval of additional authorized shares, to the
Enclaves shareholders or their assignees.
B. The boards of directors of Enclaves and Alliance have determined,
subject to the terms and conditions set forth in this Agreement, that the
transaction contemplated hereby is desirable and in the best interests of their
stockholders, respectively. This Agreement is being entered into for the purpose
of setting forth the terms and conditions of the proposed acquisition.
AGREEMENT
NOW, THEREFORE, on the stated premises and for and in consideration
of the mutual covenants and agreements hereinafter set forth and the mutual
benefits to the parties to be derived here from, it is hereby agreed as follows:
ARTICLE I
REPRESENTATIONS, COVENANTS, AND WARRANTIES OF
ALLIANCE TOWERS, INC., ITS OFFICERS, AND SHAREHOLDERS
Alliance, Xxxxxxxx, and Xxxxx each represents and warrants as
follows:
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SECTION 1.1 ORGANIZATION. Alliance is a corporation duly organized,
validly existing, and in good standing under the laws of Florida and has the
corporate power and is duly authorized, qualified, franchised and licensed under
all applicable laws, regulations, ordinances, and orders of public authorities
to own all of its properties and assets and to carry on its business in all
material respects as it is now being conducted, including qualification to do
business as a foreign corporation in the jurisdiction in which the character and
location of the assets owned by it or the nature of the business transacted by
it requires qualification. Included in the Schedules attached hereto
(hereinafter defined) are complete and correct copies of the articles of
incorporation, bylaws, and amendments thereto as in effect on the date hereof.
The execution and delivery of this Agreement does not and the consummation of
the transactions contemplated by this Agreement in accordance with the terms
hereof will not violate any provision of Alliance's articles of incorporation or
bylaws or any agreement or instrument binding upon Alliance or its properties,
inventory, interest in properties and assets, real and personal (collectively,
the "Assets"), if any. Alliance has full power, authority and legal right and
has taken all action required by law, its articles of incorporation, its bylaws
or otherwise to authorize the execution and delivery of this Agreement.
SECTION 1.2 CAPITALIZATION. The authorized capitalization of
Alliance consists of Five Billion (5,000,000,000) common shares, $0.01 par value
per share, and Ten Million (10,000,000) Preferred Shares. As of the date hereof,
Alliance has 2,181,063,230 common shares issued and outstanding. All issued and
outstanding shares of Alliance are legally issued, fully paid and non-assessable
and were not issued in violation of the preemptive or other rights of any
person. Except for the Convertible Debenture described in Section 1.4 (c) (i)
below, Alliance has no other securities, warrants, or options authorized or
issued.
SECTION 1.3 SUBSIDIARIES. Alliance has no subsidiaries.
SECTION 1.4 TAX MATTERS; BOOKS AND RECORDS.
(a) The books and records, financial and others, of Alliance
are in all material respects complete and correct and
have been maintained in accordance with generally
accepted accounting practices consistently applied
(without change since 2003); and
(b) Alliance has no liabilities with respect to the payment
of any federal, state, county, or local taxes (including
any deficiencies, interest or penalties) and has filed
or submitted any and all tax returns or reports due as
of the Effective Date, and has filed (or obtained an
extension for) the tax returns and reports due on March
15, 2005.
(c) On the Closing Date Alliance will have extinguished all
liabilities other than the following retained
liabilities (the "Retained Liabilities"):
(i) CORNELL CAPITAL PARTNERS, LP: that certain 5 %
Convertible Debenture due May 2007 (the
"Convertible Debenture") in the original amount of
$490,000, in the current aggregate amount of
$375,000, but without any remaining security
interest in the Assets of Alliance;
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(ii) HJ AND ASSOCIATES, LLC, the Alliance auditors:
$ 16,376.57, representing unpaid fees to complete
all of the work required to audit the books and
records of Alliance and issue an independent
auditor's report for the calendar year ending
December 31, 2004; and
(iii) XXXXXXXXXXX & XXXXXXXX XXXXXXXXX XXXXXX LLP:
$78,207.97, representing legal fees for
representation of Alliance as legal counsel.
Prior to the Closing Date Alliance will provide evidence
to Enclaves of the release, payment, or satisfaction of
any all such other liabilities and, for the liabilities
retained, the instruments and accounts forming the basis
of the liabilities, including without limitation any
material contract.
SECTION 1.5 LITIGATION AND PROCEEDINGS. There are no actions, suits,
proceedings, or investigations pending or threatened by or against or affecting
Alliance, the Assets, or any properties of Alliance, at law or in equity, before
any court or other governmental agency or instrumentality, domestic or foreign
or before any arbitrator of any kind that would have a material adverse affect
on the business, operations, financial condition or income of Alliance. Alliance
is not in default with respect to any judgment, order, writ, injunction, decree,
award, rule or regulation of any court, arbitrator or governmental agency or
instrumentality or of any circumstances which, after reasonable investigation,
would result in the discovery of such a default.
SECTION 1.6 INFORMATION. The information concerning Alliance as set
forth in this Agreement and in the attached Schedules is complete and accurate
in all material respects and does not contain any untrue statement of a material
fact or omit to state a material fact required to make the statements made in
light of the circumstances under which they were made, not misleading.
SECTION 1.7 CONTRACTS. On the Closing Date:
(a) There are no material contracts, agreements, franchises,
license agreements, or other commitments to which
Alliance is a party or by which it or any of its Assets
(if any) are bound; provided that for the purposes of
this Agreement materiality shall mean any instrument or
obligation which in aggregate represents a minimum of $
1,000 in liability; provided further that whether
material or otherwise, in aggregate, such liabilities do
not exceed $ 10,000;
(b) Alliance is not a party to any contract, agreement,
commitment or instrument or subject to any charter or
other corporate restriction or any judgment, order,
writ, injunction, decree or award materially and
adversely affects, or in the future may (as far as
Alliance can now foresee) materially and adversely
affect Alliance; and
(c) Alliance is not a party to any oral or written: (i)
contract for the employment of any officer or employee;
(ii) profit sharing, bonus, deferred compensation, stock
option, severance pay, pension benefit or retirement
plan, agreement or arrangement covered by Title IV of
the Employee Retirement Income Security Act, as amended;
(iii) (other than the Convertible Debenture) agreement,
contract, or indenture relating to the borrowing of
money; (iv) guaranty of any obligation for the borrowing
of money or otherwise, excluding endorsements made for
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collection and other guaranties, of obligations, which,
in the aggregate exceeds $ 1,000; (v) consulting or
other contract with an unexpired term of more than one
year or providing for payments in excess of $ 1,000 in
the aggregate; (vi) collective bargaining agreement; and
(vii) contract, agreement, or other commitment involving
payments by it for more than $ 1,000 in the aggregate.
Alliance has disclosed in its books and records provided
to Enclaves any such material contract, now released,
paid, or satisfied since its last 10-KSB filing.
SECTION 1.8 COMPLIANCE WITH LAWS AND REGULATIONS. To the best of
our knowledge and belief, Alliance has complied with all applicable statutes and
regulations of any federal, state, or other governmental entity or agency
thereof, except to the extent that noncompliance would not materially and
adversely affect the Assets or condition of Alliance or would not result in
Alliance incurring material liability.
SECTION 1.9 APPROVAL OF AGREEMENT. The directors of Alliance have
authorized the execution and delivery of this Agreement by Alliance and have
approved the transactions contemplated hereby.
SECTION 1.10 MATERIAL TRANSACTIONS OR AFFILIATIONS. Except as
set forth in Alliance's Form 10-KSB for the year ended December 31, 2004, there
are no material contracts, agreements, or arrangements between Alliance and any
person, who was at the time of such contract, agreement, or arrangement an
officer, director, or person owning of record, or known to beneficially own ten
percent (10 %) or more of the issued and outstanding common shares of Alliance
and which is to be performed in whole or in part after the date hereof. Alliance
has no commitment, whether written or oral, to lend any funds to, borrow any
money from, or enter into material transactions with any such affiliated person.
Alliance will terminate any such contracts, agreements, or arrangements on or
before the Closing Date.
SECTION 1.11 NO CONFLICT WITH OTHER INSTRUMENTS. The execution of
this Agreement and the consummation of the transactions contemplated by this
Agreement will not result in the breach of any term or provision of, or
constitute an event of default under, any material indenture, mortgage, deed of
trust, or other material contract, agreement, or instrument to which Alliance is
a party or to which it is subject.
SECTION 1.12 GOVERNMENTAL AUTHORIZATIONS. Except for compliance with
federal and state securities and corporation laws, as hereinafter provided, no
authorization, approval, consent, or order of, or registration, declaration, or
filing with, any court or other governmental body is required in connection with
the execution and delivery by Alliance of this Agreement and the consummation of
the transactions contemplated hereby.
SECTION 1.13 EXCHANGE ACT REGISTRATION. As of the Effective Date,
(a) the Alliance common shares are registered under Section 12 (g) of the
Securities Exchange Act of 1934 (the "Exchange Act"), and (b) Alliance is
current in its reporting requirements of the Exchange Act.
SECTION 1.14 FINANCIAL STATEMENTS. Complete and accurate copies of
the unaudited consolidated balance sheet, consolidated statements of operations,
statements of stockholders' equity and statements of cash flows (together with
any supplementary information thereto) of Alliance, at, as of, and for the three
month period ending March 31, 2005, have been provided to Enclaves and attached
with the Schedules (the "Alliance Financial Statements"). The Alliance Financial
Statements fairly present, in all material respects, the consolidated financial
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position of Alliance, as of and for the respective dates thereof, and the
consolidated results of its operations and its cash flows for the respective
periods then ended (subject to normal year-end audit adjustments and to any
other adjustments described therein) in conformity with GAAP during the periods
involved (except as may be indicated therein or in the notes thereto and the
Alliance Financial Statements do not contain the footnotes required by GAAP).
Since December 31, 2003, Alliance has not made any change in the accounting
practices or policies applied in the preparation of its financial statements,
except as may be required by GAAP. On the Closing Date Alliance shall arrange
for its auditors, HJ Associates, LLC, to deliver to Enclaves a satisfactory
letter substantially in the form attached with the Schedules and to make
available to the auditors of Enclaves the statements and work papers of HJ
Associates, LLC, for the periods reviewed by those auditors.
SECTION 1.15 SEC FILINGS.
(a) Except as disclosed in the Schedules, since January 1,
2003, Alliance has timely filed all forms, reports,
statements and documents required to be filed by it with
the Securities and Exchange Commission ("SEC"), required
to be filed by it pursuant to the federal securities
laws and the SEC rules and regulations promulgated
thereunder (collectively, the "Alliance SEC Documents").
Each of the Alliance SEC Documents was prepared in
accordance, and complied as of its respective filing
date in all material respects, with the requirements of
the Exchange Act or the Securities Act of 1933, as
amended (the "Securities Act"), as applicable, and the
rules and regulations promulgated thereunder, and, at
the time of filing (or if amended or superceded by a
subsequent filing, then on the date of such subsequent
filing), none of the Alliance SEC Documents (including
all exhibits and schedules thereto and documents
incorporated by reference therein) contained any untrue
statement of a material fact or omitted to state a
material fact required to be stated therein or necessary
in order to make the statements therein, in light of the
circumstances under which they were made, not
misleading.
(b) The financial statements (including the notes thereto)
of Alliance included in the Alliance SEC Documents
complied as to form in all material respects with the
then applicable accounting requirements and the
published rules and regulations of the SEC with respect
thereto, were prepared in accordance with Alliance's
books and records and in accordance with GAAP applied on
a consistent basis during the periods involved (except
as may have been indicated in the notes thereto) and
fairly present the financial position of Alliance as at
the dates thereof and the results of its operations,
stockholders' equity and cash flows for the period then
ended.
ARTICLE II
REPRESENTATIONS, COVENANTS, AND WARRANTIES
OF ENCLAVES GROUP, INC. AND HOMES FOR AMERICA HOLDINGS, INC.
Enclaves and Homes Holdings each represents and warrants as follows:
SECTION 2.1 ORGANIZATION. Enclaves is a corporation duly organized,
validly existing, and in good standing under the laws of the State of Delaware
and has the corporate power and is duly authorized, qualified, franchised, and
licensed under all applicable laws, regulations, ordinances, and orders of
public authorities to own all of its properties and assets and to carry on its
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business in all material respects as it is now being conducted, including
qualification to do business as a foreign entity in the country or states in
which the character and location of the assets owned by it or the nature of the
business transacted by it requires qualification. Included in the attached
Schedules (as hereinafter defined) are complete and correct copies of the
certificate of incorporation, bylaws, and amendments thereto as in effect on the
date hereof. The execution and delivery of this Agreement does not and the
consummation of the transactions contemplated by this Agreement in accordance
with the terms hereof will not, violate any provision of the certificate of
incorporation or bylaws of Enclaves. Enclaves has full power, authority, and
legal right and has taken all action required by law, its certificate of
incorporation, bylaws, or otherwise to authorize the execution and delivery of
this Agreement.
SECTION 2.2 CAPITALIZATION. The authorized capitalization of
Enclaves consists of 90,000,000 shares of common stock, $.001 par value (the
"Common Stock"), and 10,000,000 shares of preferred stock, $.001 par value (the
"Preferred Stock"). As of the date hereof, there are 10,000 shares of Common
Stock and 1,000,000 shares of Preferred Stock issued and outstanding to its two
stockholders (the "Enclaves Shareholders"). All issued and outstanding shares of
Enclaves stock have been legally issued, fully paid, are non-assessable and not
issued in violation of the preemptive rights of any other person. Enclaves has
no other securities, warrants, or options authorized or issued other than as
described on the Schedules.
SECTION 2.3 SUBSIDIARIES. Enclaves has three (3) subsidiaries: (i)
Enclaves of Live Oak LLC, a Texas limited liability company holding title to its
development project in Mesquite, Texas; (ii) Enclaves of Eagle Nest LLC, a
Florida limited liability company, holding title to its development project in
North Fort Myers, Florida; and (iii) Enclaves of Spring Magnolia LLC, a Texas
limited liability company organized to take title to a development project in
Fort Worth, Texas.
SECTION 2.4 TAX MATTERS; BOOKS & RECORDS
(a) The books and records, financial and others, of Enclaves
are in all material respects complete and correct and
have been maintained in accordance with good business
accounting practices.
(b) Enclaves has no liabilities with respect to the payment
of any federal, state, county, local, or other taxes
(including any deficiencies, interest or penalties).
(c) Enclaves shall remain responsible for all its debts
incurred prior to the Closing Date.
SECTION 2.5 INFORMATION. The information concerning Enclaves as set
forth in this Agreement and in the attached Schedules is complete and accurate
in all material respects and does not contain any untrue statement of a material
fact or omit to state a material fact required to make the statements made, in
light of the circumstances under which they were made, not misleading.
SECTION 2.6 TITLE AND RELATED MATTERS. Except for a security
interest in all of its properties, inventory, interests in properties and
assets, real and personal (collectively, the "Assets"), now owned or later
acquired, granted to its debenture holders in connection with the issuance of
its secured convertible debentures as shown in the Schedules, Enclaves has good
and marketable title to and is the sole and exclusive owner of all of its
Assets, free and clear of all other liens, pledges, charges, or encumbrances.
Except as set forth in the Schedules attached hereto, Enclaves owns free and
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clear of any liens, claims, encumbrances, royalty interests, or other
restrictions or limitations of any nature whatsoever and all procedures,
techniques, marketing plans, business plans, methods of management, or other
information utilized in connection with business of Enclaves. Except as set
forth in the attached Schedules, no third party has any right to, and Enclaves
has not received any notice of infringement of or conflict with asserted rights
of others with respect to any product, technology, data, trade secrets,
know-how, proprietary techniques, trademarks, service marks, trade names, or
copyrights which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling, or finding, would have a materially adverse affect on the
business, operations, financial conditions, or income of Enclaves or any
material portion of its properties, assets, or rights.
SECTION 2.7 LITIGATION AND PROCEEDINGS. There are no actions, suits,
or proceedings pending or, to the knowledge of Enclaves, threatened by, against,
or affecting Enclaves, at law or in equity, before any court or other
governmental agency or instrumentality, domestic or foreign, or before any
arbitrator of any kind that would have a material adverse effect on the
business, operations, financial condition, income, or business prospects of
Enclaves. Enclaves does not have any knowledge of any default on its part with
respect to any judgment, order, writ, injunction, decree, award, rule, or
regulation of any court, arbitrator or governmental agency or instrumentality.
SECTION 2.8 NO CONFLICT WITH OTHER INSTRUMENTS. Except as disclosed
by the Schedules, the execution of this Agreement and the consummation of the
transactions contemplated by this Agreement will not result in the breach of any
term or provision of, or constitute an event of default under, any material
indenture, mortgage, deed of trust, or other material contract, agreement, or
instrument to which Enclaves is a party or to which any of its properties or
operations are subject.
SECTION 2.9 MATERIAL CONTRACT DEFAULTS. To the best knowledge and
belief of Enclaves, it is not in default in any material respect under the terms
of any outstanding contract, agreement, lease, or other commitment which is
material to the business, operations, properties, assets, or condition of
Enclaves, and there is no event of default in any material respect under any
such contract, agreement, lease, or other commitment in respect of which
Enclaves has not taken adequate steps to prevent such a default from occurring.
SECTION 2.10 GOVERNMENTAL AUTHORIZATIONS. To the best knowledge of
Enclaves, Enclaves has all licenses, franchises, permits, and other governmental
authorizations that are legally required to enable it to conduct its business
operations in all material respects as conducted on the date hereof. Except for
compliance with federal and state securities or corporation laws, no
authorization, approval, consent, or order of, or registration, declaration or
filing with, any court or other governmental body is required in connection with
the execution and delivery by Enclaves of the transactions contemplated hereby.
SECTION 2.11 COMPLIANCE WITH LAWS AND REGULATIONS. To the best
knowledge and belief of Enclaves, Enclaves has complied with all applicable
statutes and regulations of any federal, state, or other governmental entity or
agency thereof, except to the extent that noncompliance would not materially and
adversely affect the business, operations, properties, assets, or condition of
Enclaves or would not result in Enclaves incurring any material liability.
SECTION 2.12 INSURANCE. All of the insurable properties of Enclaves
are insured for the benefit of Enclaves under valid and enforceable policy or
policies containing substantially equivalent coverage and will be outstanding
and in full force at the Closing Date.
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SECTION 2.13 APPROVAL OF AGREEMENT. The directors of Enclaves have
authorized the execution and delivery of this Agreement by Enclaves and have
approved the transactions contemplated hereby.
SECTION 2.14 MATERIAL TRANSACTIONS OR AFFILIATIONS. Except as set
forth in the Schedules, as of the Closing Date, there will exist no material
contract, agreement, or arrangement between Enclaves and any person who was at
the time of such contract, agreement, or arrangement an officer, director or
person owning of record, or known by Enclaves to own beneficially, ten percent
(10%) or more of the issued and outstanding Common Shares of Enclaves and which
is to be performed in whole or in part after the date hereof. Enclaves has no
commitment, whether written or oral, to lend any funds to, borrow any money
from, or enter into any other material transactions with, any such affiliated
person.
SECTION 2.15 FILINGS. Enclaves covenants that it will assist
Alliance in the preparation of all filings required by the Exchange Act in a
timely manner, including but not limited to, (i) the filing of a Form 8-K within
four (4) business days after the Effective Date of this Agreement, the filing of
a Form 8-K within four (4) business days of the Closing, and (iii) the filing of
an amended 8-K, and the delivery of the audited financial statements for
Enclaves in sufficient time to allow for the filing of the amended 8-K, with the
mandatory audited and pro forma financial statements within seventy one (71)
days after the Form 8-K for Closing is filed.
SECTION 2.16 INVESTMENT INTENT. Each of the Enclaves Shareholders is
entering into the share exchange contemplated by this Agreement for its own
account and not with a view to any distribution of the Alliance Shares acquired
by it, and it has no present arrangement to sell any of its Alliance Shares to
or through any Person, provided that this representation shall not be construed
as an undertaking to hold any Alliance Common Shares for any minimum or other
specific term, and each of the Enclaves Shareholders reserves the right to
dispose of its Alliance Common Shares at any time in accordance with applicable
law.
SECTION 2.17 SOPHISTICATION. Each of the Enclaves Shareholders is a
sophisticated investor, as described in Rule 506(b)(2)(ii) under the Securities
Act, and has such experience in business and financial matters that it is
capable of evaluating the merits and risks of an investment in the Alliance
Common Shares. The Enclaves Shareholders each acknowledge that an investment in
the Alliance Common Shares is speculative and involves a high degree of risk.
SECTION 2.18 ACCESS TO INFORMATION. Each of the Enclaves
Shareholders has received or had access to all documents, records, and other
information pertaining to its investment in the Alliance Shares that it has
requested, including documents filed by Alliance under the Exchange Act, and has
been given the opportunity to meet or have telephonic discussions with the
representatives of Alliance, to ask questions of them, to receive answers
concerning the terms and conditions of this investment and to obtain information
that Alliance possesses or can acquire without unreasonable effort or expense
that is necessary to verify the accuracy of the information provided to the
Enclaves Shareholders.
SECTION 2.19 MANNER OF SALE. At no time were the Enclaves
Shareholders presented with or solicited by or through any leaflet, public
promotional meeting, television advertisement, or any other form of general
solicitation or advertising relating to Alliance or any investment in the
Alliance Common Shares.
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ARTICLE III
EXCHANGE PROCEDURE AND OTHER CONSIDERATION
SECTION 3.1 SHARE EXCHANGE / DELIVERY OF ENCLAVES SECURITIES.
(a) On the Closing Date, in exchange for the Alliance
securities described in Section 3.2 below, the holders of all of the Enclaves
Common Shares shall deliver to Alliance certificates or other documents
evidencing all of the issued and outstanding Enclaves Common Stock, each duly
endorsed in blank or with executed power attached thereto in transferable form.
On the Closing Date, all previously issued and outstanding Common Stock of
Enclaves shall be transferred to Alliance, so that after the transfer described
in Section 3.1 (b) below Enclaves shall become a wholly owned subsidiary of
Alliance.
(b) As of the Closing Date, the Enclaves Shareholders
holding Enclaves Preferred Stock shall deliver to Alliance certificates or other
documents evidencing all of the issued and outstanding Enclaves Preferred Stock,
each duly endorsed in blank or with executed power attached thereto in
transferable form, in exchange for the right to receive an equivalent number of
shares of a new series of preferred stock of Alliance, with terms, rights, and
privileges substantially the same in all material respects to the Preferred
Stock of Enclaves, which series shall be established as soon as practicable
following Closing.
SECTION 3.2 ISSUANCE OF ALLIANCE SECURITIES.
(a) On the Closing Date, in exchange for all of the Enclaves
Common Stock tendered pursuant to Section 3.1 (a), Alliance shall issue to the
Enclaves common stockholders a total of Alliance common shares and preferred
shares equal, after conversion of the preferred shares, to Ninety Five (95 %)
percent of the fully diluted outstanding common shares of Alliance, as follows:
(i) 2,818,936,770 shares of Alliance common shares (equaling
the balance of the authorized and unissued common stock
of Alliance), to be issued to Homes for America
Holdings, Inc., Xxx Xxxxx Xxxxx, Xxxxxxx, Xxx Xxxx
00000; and
(ii) Six Million (6,000,000) shares of Alliance preferred
shares to be designated "Series A Convertible Stock", to
be issued to Homes for America Holdings, Inc., Xxx Xxxxx
Xxxxx, Xxxxxxx, Xxx Xxxx 00000.
(b) On or before the Closing Date Alliance shall cause its
articles of incorporation to be amended by filing a Certificate of Designations,
Preferences and Other Rights and Qualifications of Convertible Preferred Stock
in the form attached hereto as an Exhibit, establishing the conversion rights
and other rights and privileges of Alliance preferred stock to conform to the
issuance described in Section 3.2 (a) above. The parties understand that:
(i) before any conversion of the Series A Convertible Stock
may be effective, shareholder consent to increase the
maximum authorized common stock of Alliance is required;
and
(ii) conversion of the entire class of Series A Convertible
Stock into common stock of Alliance, when effective,
would result in the issuance to Enclaves Shareholders in
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aggregate of an additional 38,621,264,600 shares of
Alliance common stock.
(c) Such shares are restricted in accordance with Rule 144
of the Securities Act.
SECTION 3.3 ADDITIONAL CONSIDERATION. On the Closing Date Alliance
shall arrange for existing Alliance shareholders to pledge 531,975,923 shares of
outstanding Alliance common stock to be subject to and secure Alliance against
any and all claims, losses, liabilities, or damages arising from a material
breach or deficiency in any of the representations, warranties, or covenants
made in Article I for a period of twelve (12) months after the Closing Date. The
pledged stock shall be endorsed in blank and held under the Escrow Agreement by
and between Alliance, Enclaves, the pledgor(s), and Xxxxxxxxxxx & Xxxxxxxx
Xxxxxxxxx Xxxxxx LLP as escrow agent, substantially in the form attached with
the Schedules.
SECTION 3.4 EVENTS PRIOR TO CLOSING. Upon execution hereof or as
soon thereafter as practicable, management of Alliance and Enclaves shall
execute, acknowledge, and deliver (or shall cause to be executed, acknowledged,
and delivered) any and all certificates, opinions, financial statements,
schedules, agreements, resolutions, rulings, or other instruments required by
this Agreement to be so delivered, together with such other items as may be
reasonably requested by the parties hereto and their respective legal counsel in
order to effectuate or evidence the transactions contemplated hereby, subject
only to the conditions to Closing referenced herein below.
SECTION 3.5 CLOSING. The closing ("Closing") of the transactions
contemplated by this Agreement shall occur no later than three (3) business days
following the satisfaction or waiver of all conditions to closing (the "Closing
Date"). On the Closing Date Alliance shall grant the Enclaves designees access
to and immediate possession of the books and records (including passwords for
any and all accounts and electronic copies of the accounts, books, and records)
of Alliance, at the office of Alliance counsel, Xxxxxxxxxxx & Xxxxxxxx Xxxxxxxxx
Xxxxxx LLP, or such other location as mutually agreed by the parties.
SECTION 3.6 TERMINATION.
(a) This Agreement may be terminated by the board of either
Alliance or Enclaves, respectively, at any time prior to
the Closing Date if:
(i) there shall be any action or proceeding before any
court or any governmental body which shall seek to
restrain, prohibit or invalidate the transactions
contemplated by this Agreement and which, in the
judgment of such board of directors, made in good
faith and based on the advice of its legal
counsel, makes it inadvisable to proceed with the
exchange contemplated by this Agreement; or
(ii) any of the transactions contemplated hereby are
disapproved by any regulatory authority whose
approval is required to consummate such
transactions.
In the event of termination pursuant to this paragraph
(a) of this Section 3.6, no obligation, right, or
liability shall arise hereunder and each party shall
bear all of the expenses incurred by it in connection
with the negotiation, drafting and execution of this
Agreement and the transactions herein contemplated.
(b) This Agreement may be terminated at any time prior to
the Closing Date by action of the board of directors of
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Alliance if Enclaves shall fail to comply in any
material respect with any of its covenants or agreements
contained in this Agreement or if any of the
representations or warranties of Enclaves contained
herein shall be inaccurate in any material respect,
which noncompliance or inaccuracy is not cured after
twenty (20) days written notice thereof is given to
Enclaves. If this Agreement is terminated pursuant to
this paragraph (b) of this Section 3.6, this Agreement
shall be of no further force or effect and no
obligation, right or liability shall arise hereunder.
(c) This Agreement may be terminated at any time prior to
the Closing Date by action of the board of directors of
Enclaves if Alliance shall fail to comply in any
material respect with any of its covenants or agreements
contained in this Agreement or if any of the
representations or warranties of Alliance contained
herein shall be inaccurate in any material respect,
which noncompliance or inaccuracy is not cured after
twenty (20) days written notice thereof is given to
Alliance. If this Agreement is terminated pursuant to
this paragraph (c) of this Section 3.6, this Agreement
shall be of no further force or effect and no
obligation, right or liability shall arise hereunder.
In the event of termination pursuant to paragraph (b) and (c) of
this Section 3.6, the breaching party shall bear all of the expenses incurred by
the other party in connection with the negotiation, drafting and execution of
this Agreement and the transactions herein contemplated.
SECTION 3.6 DIRECTORS OF ALLIANCE. On the Effective Date the Board
of Directors of Alliance has three positions and the current Directors of
Alliance are Xx. Xxxxxxxx and Xx. Xxxxx. On or before the Closing Date: (i) each
of the Directors of Alliance shall resign from that office effective immediately
before Closing; and (ii) the Board of Directors shall have appointed as
Directors to fill the three (3) vacancies, effective immediately upon Closing,
the designees of Enclaves, those being: (a) Xx. Xxxxxx X. XxxXxxxxxx; (b) Xx.
Xxxxxx X. Xxxx; and (c) Xx. Xxxxxx X. Xxxxx. Alliance makes no representations
or covenants regarding the requirement for filing a Schedule 14f-1 in connection
with the appointment by the Alliance Board of Directors of the designees of
Enclaves and Enclaves agrees to indemnify and hold harmless, Alliance, its
officers, directors, employees, agents, and counsel and Bottom Line Advisors,
Inc. from any and all liability for failure to file such Schedule 14f-1.
SECTION 3.7 OFFICERS OF ALLIANCE. On or before the Closing Date Xx.
Xxxxxxxx and Xx. Xxxxx will resign from all offices with Alliance effective as
of the Closing.
ARTICLE IV
SPECIAL COVENANTS
SECTION 4.1 ACCESS TO PROPERTIES AND RECORDS. Prior to closing,
Alliance and Enclaves will each afford to the officers and authorized
representatives of the other full access to the properties, books, and records
of each other, in order that each may have full opportunity to make such
reasonable investigation as it shall desire to make of the affairs of the other
and each will furnish the other with such additional financial and operating
data and other information as to the business and properties of each other, as
the other shall from time to time reasonably request.
SECTION 4.2 RESTRICTED SECURITIES. The securities held by Alliance
and Enclaves shareholders which on the Effective Date are "restricted
securities," as that term is defined in Rule 144 promulgated pursuant to the
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Securities Act, will remain as "restricted securities". Alliance is under no
obligation to register such shares under the Securities Act, or otherwise. The
stockholders of Alliance and Enclaves holding restricted securities of Alliance
and Enclaves as of the date of this Agreement and their respective heirs,
administrators, personal representatives, successors, and assigns, are intended
third party beneficiaries of the provisions set forth herein. The covenants set
forth in this Section 4.2 shall survive the Closing and the consummation of the
transactions herein contemplated.
SECTION 4.3 RELIANCE ON EXEMPTIONS FOR EXCHANGE. The consummation of
this Agreement, including the issuance of the Alliance Common Shares and
Alliance Preferred Shares to the Shareholders of Enclaves as contemplated
hereby, constitutes the offer and sale of securities under the Securities Act,
and applicable state statutes. Such transaction shall be consummated in reliance
on exemptions from the registration and prospectus delivery requirements of such
statutes which depend, inter alia, upon the circumstances under which the
Enclaves Shareholders acquire such securities.
SECTION 4.4 THIRD PARTY CONSENTS. Alliance and Enclaves agree to
cooperate with each other in order to obtain any required third party consents
to this Agreement and the transactions herein contemplated.
SECTION 4.5 ACTIONS PRIOR AND SUBSEQUENT TO CLOSING.
(a) From and after the date of this Agreement until the Closing
Date, except as permitted or contemplated by this Agreement, Alliance and
Enclaves will each use its best efforts to:
(i) maintain and keep its properties in states of good
repair and condition as at present, except for depreciation
due to ordinary wear and tear and damage due to casualty;
(ii) maintain in full force and effect insurance comparable
in amount and in scope of coverage to that now maintained by
it; and
(iii) perform in all material respects all of its
obligations under material contracts, leases and instruments
relating to or affecting its assets, properties and
business.
(b) From and after the date of this Agreement until the Closing
Date, except as contemplated by this Agreement, Alliance will not, without the
prior consent of Enclaves:
(i) except as otherwise specifically set forth herein,
make any change in its articles of incorporation or bylaws;
(ii) declare or pay any dividend on its outstanding Common
Shares, except as may otherwise be required by law, or
effect any stock split or otherwise change its
capitalization, except as provided herein;
(iii) incur any obligation, liability, or debt or enter into
or amend any employment, severance, or agreements or
arrangements with any directors or officers; and
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(iv) grant, confer, or award any options, warrants,
conversion rights, or other rights not existing on the date
hereof to acquire any Common Shares or Preferred Shares; or
(v) purchase or redeem any Common Shares.
ARTICLE V
CONDITIONS PRECEDENT TO OBLIGATIONS OF ENCLAVES
The obligations of Enclaves under this Agreement are subject to the
satisfaction, at or before the Closing Date, of the following conditions:
SECTION 5.1 ACCURACY OF REPRESENTATIONS. The representations and
warranties made by Alliance in this Agreement were true when made and shall be
true at the Closing Date with the same force and effect as if such
representations and warranties were made at and as of the Closing Date (except
for changes therein permitted by this Agreement), and Alliance shall have
performed or complied with all covenants and conditions required by this
Agreement to be performed or complied with by Alliance prior to or at the
Closing.
SECTION 5.2 DIRECTOR APPROVAL AND APPOINTMENT. The members of the
Board of Directors of Alliance shall have resigned effective on or before the
Closing and shall have caused the designees of Enclaves to have been duly
appointed to the Board of Directors effective as of the Closing, as described in
Section 3.6 above.
SECTION 5.3 SEC FILINGS. Alliance shall have prepared and filed any
and all SEC filings and reports required to be filed before Closing, except for
the filing of a Schedule 14f-1 for the appointments described in Section 3.6
above.
SECTION 5.4 OFFICER'S CERTIFICATE. The Officers of Alliance will
sign this Agreement which will attest to: (a) the representations and warranties
of Alliance set forth in this Agreement and in all Exhibits, Schedules, and
other documents furnished in connection herewith are in all material respects
true and correct as if made on the Effective Date; (b) Alliance has performed
all covenants, satisfied all conditions, and complied with all other terms and
provisions of this Agreement to be performed, satisfied, or complied with by it
as of the Effective Date; (c) since such date and other than as previously
disclosed to Enclaves, Alliance has not entered into any material transaction
other than transactions; and (d) no litigation, proceeding, investigation, or
inquiry is pending or, to the best knowledge of Alliance, threatened, which
might result in an action to enjoin or prevent the consummation of the
transactions contemplated by this Agreement or, to the extent not disclosed in
the Alliance Schedules, by or against Alliance which might result in any
material adverse change in any of the assets, properties, business or operations
of Alliance.
SECTION 5.5 FINANCIAL CONDITION. Xx. Xxxxxxxx and Xx. Xxxxx by
signing this Agreement each represents and warrants that the financial condition
of Alliance is materially the same as its books and records state at the time of
Closing. On and as the Closing Date Xx. Xxxxxxxx and Xx. Xxxxx shall certify the
Alliance Financial Statements and deliver the original auditor's letter
described in Section 1.14 above.
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SECTION 5.6 NO MATERIAL ADVERSE CHANGE. Prior to the Closing Date,
there shall not have occurred any material adverse change in the financial
condition, business or operations of nor shall any event have occurred which,
with the lapse of time or the giving of notice, may cause or create any material
adverse change in the financial condition, business or operations of Alliance.
SECTION 5.7 OTHER ITEMS. Enclaves shall have received such further
documents, certificates, or instruments relating to the transactions
contemplated hereby as Enclaves may reasonably request.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF ALLIANCE
The obligations of Enclaves under this Agreement are subject to the
satisfaction, at or before the Closing date (unless otherwise indicated herein),
of the following conditions:
SECTION 6.1 ACCURACY OF REPRESENTATIONS. The representations and
warranties made by Enclaves in this Agreement were true when made and shall be
true as of the Closing Date (except for changes therein permitted by this
Agreement) with the same force and effect as if such representations and
warranties were made at and as of the Closing Date, and Enclaves shall have
performed and complied with all covenants and conditions required by this
Agreement to be performed or complied with by Enclaves prior to or at the
Closing.
SECTION 6.2 DIRECTOR APPROVAL. The Board of Directors of Enclaves
shall have approved this Agreement and the transactions contemplated herein.
SECTION 6.3 OFFICER'S CERTIFICATE. Alliance shall be furnished with
a certificate dated the Closing Date and signed by a duly authorized executive
officer of Enclaves to the effect that: (a) the representations and warranties
of Enclaves set forth in this Agreement and in all Exhibits, Schedules, and
other documents furnished in connection herewith are in all material respects
true and correct as if made on the Effective Date; and (b) Enclaves had
performed all covenants, satisfied all conditions, and complied with all other
terms and provisions of this Agreement to be performed, satisfied or complied
with by it as of the Effective Date.
SECTION 6.4 SHAREHOLDERS' CONSENT. This Agreement and the share
exchange contemplated by its Article III above shall be expressly consented to
by an authorized representative of each of the Enclaves Shareholders, as
evidenced by the subscription to a counterpart of this Agreement.
SECTION 6.5 NO MATERIAL ADVERSE CHANGE. Prior to the Closing Date,
there shall not have occurred any material adverse change in the financial
condition, business or operations of nor shall any event have occurred which,
with the lapse of time or the giving of notice, may cause or create any material
adverse change in the financial condition, business, or operations of Enclaves.
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ARTICLE VII
MISCELLANEOUS
SECTION 7.1 BROKERS AND FINDERS. Each party hereto hereby represents
and warrants that it is under no obligation, express or implied, to pay certain
finders in connection with the bringing of the parties together in the
negotiation, execution, or consummation of this Agreement. The parties each
agree to indemnify the other against any claim by any third person for any
commission, brokerage or finder's fee or other payment with respect to this
Agreement or the transactions contemplated hereby based on any alleged agreement
or understanding between the indemnifying party and such third person, whether
express or implied from the actions of the indemnifying party.
SECTION 7.2 GOVERNING LAW. This Agreement shall be construed and
interpreted in accordance with the laws of the State of Delaware, United States
of America (without reference to its conflicts of law rules).
SECTION 7.3 NOTICES. Any notices or other communications required or
permitted hereunder shall be sufficiently given if personally delivered to it or
sent by registered mail or certified mail, postage prepaid, or by prepaid
telegram addressed as follows:
If to Alliance Towers, Inc.: 0000 Xxxxx Xxxxx Xxxxxxx
Xxxxx X
Xxxxx, Xxxxxxx 00000
with a copy to: Xxxxxxxxxxx & Xxxxxxxx Xxxxxxxxx
Xxxxxx LLP
Miami Center - 20th Floor
000 Xxxxx Xxxxxxxx Xxxx.
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
If to Enclaves Group, Inc.: 000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxx Xxxx 00000
Attention: CEO
with a copy to: Xxxxxx Xxxxxxxx Frome Xxxxxxxxxx &
Wolosky, LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
or such other addresses as shall be furnished in writing by any party in the
manner for giving notices hereunder, and any such notice or communication shall
be deemed to have been given as of the date so delivered, mailed or telegraphed.
SECTION 7.4 ATTORNEYS' FEES. In the event that any party institutes
any action or suit to enforce this Agreement or to secure relief from any
default hereunder or breach hereof, the breaching party or parties shall
reimburse the non-breaching party or parties for all costs, including reasonable
16
attorneys' fees, incurred in connection therewith and in enforcing or collecting
any judgment rendered therein.
SECTION 7.5 CONFIDENTIALITY. Each party hereto agrees with the other
party that, unless and until the transactions contemplated by this Agreement
have been consummated, they and their representatives will hold in strict
confidence all data and information obtained with respect to another party or
any subsidiary thereof from any representative, officer, director or employee,
or from any books or records or from personal inspection, of such other party,
and shall not use such data or information or disclose the same to others,
except: (i) to the extent such data is a matter of public knowledge or is
required by law to be published; and (ii) to the extent that such data or
information must be used or disclosed in order to consummate the transactions
contemplated by this Agreement.
SECTION 7.6 SCHEDULES; KNOWLEDGE. Each party is presumed to have
full knowledge of all information set forth in the other party's schedules
delivered pursuant to this Agreement.
SECTION 7.7 THIRD PARTY BENEFICIARIES. This contract is solely
between Alliance and Enclaves and except as specifically provided, no director,
officer, stockholder, employee, agent, independent contractor or any other
person or entity shall be deemed to be a third party beneficiary of this
Agreement.
SECTION 7.8 ENTIRE AGREEMENT. This Agreement represents the entire
agreement between the parties relating to the subject matter hereof. This
Agreement alone fully and completely expresses the agreement of the parties
relating to the subject matter hereof. There are no other courses of dealing,
understanding, agreements, representations or warranties, written or oral,
except as set forth herein. This Agreement may not be amended or modified,
except by a written agreement signed by all parties hereto.
SECTION 7.9 SURVIVAL; TERMINATION. The representations, warranties,
and covenants of the respective parties shall survive the Closing Date and the
consummation of the transactions herein contemplated for 18 months.
SECTION 7.10 COUNTERPARTS. This Agreement may be executed in
multiple counterparts, each of which shall be deemed an original and all of
which taken together shall be but a single instrument.
SECTION 7.11 AMENDMENT OR WAIVER. Every right and remedy provided
herein shall be cumulative with every other right and remedy, whether conferred
herein, at law, or in equity, and may be enforced concurrently herewith, and no
waiver by any party of the performance of any obligation by the other shall be
construed as a waiver of the same or any other default then, theretofore, or
thereafter occurring or existing. At any time prior to the Closing Date, this
Agreement may be amended by a writing signed by all parties hereto, with respect
to any of the terms contained herein, and any term or condition of this
Agreement may be waived or the time for performance hereof may be extended by a
writing signed by the party or parties for whose benefit the provision is
intended.
SECTION 7.12 EXPENSES. Each party herein shall bear all of their
respective costs and expenses incurred in connection with the negotiation of
this Agreement and in the consummation of the transactions provided for herein
and the preparation thereof.
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SECTION 7.13 HEADINGS; CONTEXT. The headings of the sections and
paragraphs contained in this Agreement are for convenience of reference only and
do not form a part hereof and in no way modify, interpret or construe the
meaning of this Agreement.
SECTION 7.14 BENEFIT. This Agreement shall be binding upon and shall
inure only to the benefit of the parties hereto, and their permitted assigns
hereunder. This Agreement shall not be assigned by any party without the prior
written consent of the other party.
SECTION 7.15 PUBLIC ANNOUNCEMENTS. Except as may be required by law,
neither party shall make any public announcement or filing with respect to the
transactions provided for herein without the prior consent of the other party
hereto.
SECTION 7.16 SEVERABILITY. In the event that any particular
provision or provisions of this Agreement or the other agreements contained
herein shall for any reason hereafter be determined to be unenforceable, or in
violation of any law, governmental order or regulation, such unenforceability or
violation shall not affect the remaining provisions of such agreements, which
shall continue in full force and effect and be binding upon the respective
parties hereto.
SECTION 7.17 FAILURE OF CONDITIONS; TERMINATION. In the event of any
of the conditions specified in this Agreement shall not be fulfilled on or
before the Closing Date, either of the parties have the right either to proceed
or, upon prompt written notice to the other, to terminate and rescind this
Agreement. In such event, the party that has failed to fulfill the conditions
specified in this Agreement will liable for the other parties' legal fees. The
election to proceed shall not affect the right of such electing party reasonably
to require the other party to continue to use its efforts to fulfill the unmet
conditions.
SECTION 7.18 NO STRICT CONSTRUCTION. The language of this Agreement
shall be construed as a whole, according to its fair meaning and intendment, and
not strictly for or against either party hereto, regardless of who drafted or
was principally responsible for drafting the Agreement or terms or conditions
hereof.
SECTION 7.19 EXECUTION KNOWING AND VOLUNTARY. In executing this
Agreement, the parties severally acknowledge and represent that each: (a) has
fully and carefully read and considered this Agreement; (b) has been or has had
the opportunity to be fully apprized by its attorneys of the legal effect and
meaning of this document and all terms and conditions hereof; and (c) is
executing this Agreement voluntarily, free from any influence, coercion or
duress of any kind.
SECTION 7.20 AMENDMENT. At any time after the Closing Date, this
Agreement may be amended by a writing signed by both parties, with respect to
any of the terms contained herein, and any term or condition of this Agreement
may be waived or the time for performance hereof may be extended by a writing
signed by the party or parties for whose benefit the provision is intended.
Amendments and modifications to this Agreement may be made effective upon the
exchange of counterparts by facsimile transmission or electronic transfer of
PDF-format facsimiles, which the parties may rely upon as deemed original
documents.
SECTION 7.21 EFFECTIVE DATE. The date on which this Agreement has
been executed and ratified by both parties being the last date subscribed below,
and such date shall be referred to as and shall constitute the "Effective Date"
of this Agreement.
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IN WITNESS WHEREOF, the corporate parties hereto have caused this
Agreement to be executed by their respective officers, hereunto duly authorized,
and entered into as of the date first above written.
ATTEST: ALLIANCE TOWERS, INC.
Quincy Queen By: /s/ Xxx Xxxxxxxx
------------------------------ --------------------
Quincy Queen for Xxxxxxxx Xxx Xxxxxxxx
Its: Chief Executive Officer
Date: 4/27/05
Date: 4/27/05 /s/ Xxx Xxxxxxxx
----------------------------------
XXX XXXXXXXX
INDIVIDUALLY AND AS CEO OF
ALLIANCE TOWERS, INC.
Date: 4/27/05 /s/ Xxxxxxx Xxxxx
----------------------------------
XXXXXXX XXXXX
INDIVIDUALLY AND AS CFO OF
ALLIANCE TOWERS INC
ATTEST: ENCLAVES GROUP, INC
By: /s/ Xxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxx
--------------------- -----------------------
Xxx X. Xxxxxx Xxxxxx X. Xxxxx
Its: Assistant Secretary Its: Chief Executive Officer
Date: April 26, 2005
ATTEST: HOMES FOR AMERICA HOLDINGS, INC.
By: ______________________________ By: /s/ Xxxxx Xxxxxxxxx
--------------------------
R. Xxxxx Xxxxxxxxx
Its: Assistant Secretary Its: Vice President
Date: ___________________________
Attachments:
Schedules of Alliance
Schedules of Enclaves
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CONSENT OF ENCLAVES SHAREHOLDERS
Each of the two shareholders of Enclaves Group, Inc., acting by an
authorized representative, hereby represents to the parties that it has reviewed
and approved the transaction contemplated by the above Agreement, including
without limitation the surrender and share exchange of the shareholder's
securities in Enclaves Group, Inc. for replacement securities issued by Alliance
Towers, Inc. (or its successor by subsequent merger) as described in Article III
above.
HOMES FOR AMERICA HOLDINGS, INC.
By: /s/ Xxxxx Xxxxxxxxx
----------------------------------
R. Xxxxx Xxxxxxxxx
Its: Vice President
CORNELL CAPITAL PARTNERS, LP
By: Yorkville Advisors, LLC
Its: General Partner
By: /s/ Xxxx Xxxxxx
-----------------------------------
Xxxx Xxxxxx
Its: Portfolio Manager
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