Exhibit 10.3
ENCLAVES GROUP, INC.
AMENDED AND RESTATED PLACEMENT AGENT AGREEMENT
Dated as of: November __, 2005
Newbridge Securities Corporation
1451 Cypress Creek Road, Suite 204
Fort Lauderdale, Florida 33309
Ladies and Gentlemen:
The undersigned,
Enclaves Group, Inc. (f/k/a Alliance Towers, Inc.), a
Delaware
corporation (the "Company"),
hereby agrees with Newbridge
Securities
Corporation
(the
"PLACEMENT
AGENT"),
and Cornell Capital
Partners,
LP (the
"Investor") as follows:
1.
OFFERING.
On or about
December 28,
2004,
Enclaves
Group,
Inc.
("ENCLAVES"),
a Delaware corporation,
entered into that certain Standby Equity
Distribution Agreement and other related documents,
instruments and agreements,
including
without
limitation
the Placement
Agent
Agreement
(the
"ENCLAVES
PLACEMENT
AGREEMENT") with the Investor and the Placement
Agent.
Enclaves was
subsequently
acquired by the Company (f/k/a
Alliance
Towers,
Inc., a Florida
corporation)
on
April
27,
2005
(the
"ACQUISITION").
The
Company
assumed
obligations of Enclaves to the Investor
under the Standby
Equity
Distribution
Agreement
dated
December
28, 2004
pursuant to that
certain
Assignment
and
Assumption
Agreement
dated July 1, 2005 (the
"ASSUMPTION
AGREEMENT")
by and
among the Company,
Enclaves and the Investor.
This
Agreement
shall amend and
restate the
Placement
Agent
Agreement
dated
December 28, 2004.
The Company
hereby engages the Placement
Agent to act as its exclusive
placement
agent in
connection with the Amended and Restated Standby Equity
Distribution
Agreement
dated the date hereof between the Company and the Investor (the
"STANDBY
EQUITY
DISTRIBUTION AGREEMENT"),
pursuant to which the Company shall issue and sell to
the
Investor,
from time to time,
and the
Investor
shall
purchase
from the
Company (the
"OFFERING")
up to Forty Six Million
Dollars
($46,000,000)
(the
"COMMITMENT
AMOUNT") of the Company's
common stock, par value $0.001 per share
(the "COMMON
STOCK"),
at price per share equal to the Purchase
Price, as that
term is defined in the Standby
Equity
Distribution
Agreement.
The
Placement
Agent
services
shall
consist of
reviewing
the terms of the
Standby
Equity
Distribution Agreement and advising the Company with respect to
those terms.
This Amended and Restated
Placement
Agent
Agreement
shall amend and
restate the Enclaves Placement Agreement.
All capitalized terms used herein and
not otherwise
defined herein shall have the same meaning ascribed to them as in
the Standby Equity Distribution Agreement.
The Investor will be granted certain
registration
rights with respect to the Common Stock as more fully set forth in
the Registration Rights Agreement between the Company and the
Investor dated the
date hereof (the "REGISTRATION RIGHTS AGREEMENT").
The documents to be executed
and delivered in connection with the Offering,
including,
but not limited,
to
the Company's
latest
Quarterly
Report on Form 10-QSB as filed with the United
States Securities and Exchange
Commission,
this Agreement,
the Standby Equity
Distribution
Agreement,
and the Registration
Rights Agreement are referred to
sometimes
hereinafter
collectively as the "OFFERING
MATERIALS." The Company's
Common Stock
purchased by the Investor
under the Standby
Equity
Distribution
Agreement
is
sometimes
referred
to
hereinafter
as
the
"Securities."
The
Placement Agent shall not be obligated to sell any Securities.
2. COMPENSATION.
A.
Upon the
execution
of this
Agreement,
the Company
shall
issue to the
Placement
Agent or its
designee
shares of the
Company's
Common Stock in an amount equal to Ten Thousand Dollars ($10,000)
divided by the
volume weighted
average price of the Common Stock, as quoted by Bloomberg,
LP,
on the date hereof (the "PLACEMENT
AGENT'S SHARES").
The Placement Agent shall
be entitled to
"piggy-back"
registration
rights with respect to the Placement
Agent's
Shares,
which shall be triggered
upon
registration
of any shares of
Common Stock by the Company pursuant to the Registration
Rights Agreement dated
the date hereof.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PLACEMENT
AGENT.
A.
The
Placement
Agent
represents,
warrants
and
covenants as follows:
(i)
The Placement
Agent has the necessary power
to enter into this
Agreement and to consummate
the
transactions
contemplated
hereby.
(ii)
The
execution and delivery by the Placement
Agent of this Agreement and the
consummation of the
transactions
contemplated
herein
will
not
result
in any
violation
of,
or be in
conflict
with,
or
constitute a default
under,
any agreement or instrument to which the Placement
Agent is a party or by which the Placement Agent or its properties
are bound, or
any judgment, decree, order or, to the Placement Agent's knowledge,
any statute,
rule or regulation
applicable
to the
Placement
Agent.
This
Agreement
when
executed and delivered by the Placement Agent, will constitute the
legal,
valid
and binding
obligations of the Placement Agent,
enforceable in accordance with
their respective terms, except to the extent that (a) the
enforceability
hereof
or thereof may be limited by bankruptcy, insolvency,
reorganization,
moratorium
or
similar
laws
from
time to time in
effect
and
affecting
the
rights of
creditors
generally,
(b) the
enforceability
hereof or
thereof is subject to
general
principles of equity, or (c) the
indemnification
provisions hereof or
thereof may be held to be in violation of public policy.
(iii)
Upon
receipt
and
execution
of
this
Agreement, the Placement Agent will promptly forward copies of this
Agreement to
the Company or its counsel and the Investor or its counsel.
(iv)
The Placement
Agent will not
intentionally
take any action that it reasonably
believes would cause the Offering to violate
the provisions of the
Securities Act of 1933, as amended (the "1933 ACT"),
the
Securities
Exchange
Act of 1934 (the "1934
ACT"),
the
respective
rules and
regulations
promulgated
thereunder (the "RULES AND REGULATIONS") or applicable
"Blue Sky" laws of any state or jurisdiction.
2
(v)
The
Placement
Agent
is a
member
of
the
National
Association
of
Securities
Dealers,
Inc.,
and
is a
broker-dealer
registered
as such
under
the 1934 Act and under
the
securities
laws of the
states in which the
Securities
will be offered or sold by the Placement
Agent
unless an exemption
for such state
registration
is available to the Placement
Agent.
The
Placement
Agent
is in
material
compliance
with the
rules
and
regulations
applicable to the Placement
Agent
generally and applicable to the
Placement Agent's participation in the Offering.
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
A.
The Company represents and warrants as follows:
(i)
The execution,
delivery and
performance of
each of this
Agreement,
the Standby
Equity
Distribution
Agreement,
and the
Registration Rights Agreement has been or will be duly and validly
authorized by
the
Company
and is, or with
respect to this
Agreement,
the
Standby
Equity
Distribution
Agreement,
and the Registration Rights Agreement will be, a valid
and
binding
agreement
of the
Company,
enforceable
in
accordance
with its
respective
terms,
except to the extent that (a) the
enforceability
hereof or
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or
similar laws from time to time in effect and
affecting
the rights of creditors
generally,
(b) the
enforceability
hereof or
thereof
is
subject
to general
principles of equity or (c) the indemnification provisions hereof
or thereof may
be held to be in
violation
of
public
policy.
The
Securities
to be
issued
pursuant to the
transactions
contemplated
by this
Agreement
and the Standby
Equity
Distribution
Agreement have been duly
authorized
and, when issued and
paid for in accordance
with this Agreement and the Standby Equity
Distribution
Agreement will be valid and binding
obligations of the Company,
enforceable in
accordance
with
their
respective
terms,
except to the
extent
that (1) the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization,
moratorium
or similar laws from time to time in effect and affecting the
rights
of creditors generally, and (2) the enforceability thereof is
subject to general
principles
of
equity.
All
corporate
action
required
to be
taken
for the
authorization,
issuance
and sale of the
Securities
has been duly and validly
taken by the Company.
(ii)
The
Company has a duly
authorized,
issued
and
outstanding
capitalization
as set forth herein and in the Standby
Equity
Distribution
Agreement.
The
Company
is
not a
party
to
or
bound
by
any
instrument, agreement or other arrangement providing for it to
issue any capital
stock, rights, warrants, options or other securities, except for
this Agreement,
the
agreements
described
herein
and
as
described
in
the
Standby
Equity
Distribution
Agreement and the
agreements
described
therein.
All issued and
outstanding
securities of the Company,
have been duly
authorized
and validly
issued and are fully paid and non-assessable; the holders thereof
have no rights
of rescission or preemptive
rights with respect
thereto and are not subject to
personal liability solely by reason of being security holders;
and none of such
securities
were issued in violation of the preemptive
rights of any holders of
any security of the Company.
(iii)
The Common Stock to be issued in
accordance
with this Agreement and the Standby Equity Distribution Agreement
have been duly
authorized and, when issued and paid for in accordance with this
Agreement,
the
Standby
Equity
Distribution
Agreement
and
the
certificates/instruments
3
representing
such
Common
Stock
will
be
validly
issued,
fully-paid
and
non-assessable;
the holders
thereof will not be subject to personal
liability
solely by reason of being such holders;
such Securities are not and will not be
subject to the preemptive rights of any holder of any security of
the Company.
(iv)
The
Company has good and
marketable
title
to,
or valid
and
enforceable
leasehold
estates
in,
all
items of real and
personal
property
necessary
to
conduct
its
business
(including,
without
limitation, any real or personal property stated in the Offering
Materials to be
owned or leased by the
Company),
free and
clear of all
liens,
encumbrances,
claims, security interests and defects of any material nature
whatsoever,
other
than those set forth in the Offering
Materials
and liens for taxes not yet due
and payable.
(v)
There
is
no
litigation
or
governmental
proceeding
pending
or,
to the
best of the
Company's
knowledge,
threatened
against,
or involving the properties or business of the Company,
except as set
forth in the Offering Materials.
(vi)
The
Company is duly
organized
and validly
exists
as a
corporation
in good
standing
under
the
laws of the
State
of
Delaware.
Except as set forth in the Offering
Materials,
the Company does not
own or control,
directly or indirectly,
an interest in any other
corporation,
partnership,
trust, joint venture or other business entity. The Company is duly
qualified
or licensed
and in good
standing as a foreign
corporation
in each
jurisdiction
in
which
the
character
of
its
operations
requires
such
qualification or licensing and where failure to so qualify would
have a material
adverse effect on the Company. The Company has all requisite
corporate power and
authority,
and all material and necessary
authorizations,
approvals,
orders,
licenses,
certificates
and
permits
of and from all
governmental
regulatory
officials
and bodies
(domestic
and
foreign) to conduct its
businesses
(and
proposed
business) as described in the Offering
Materials.
Any disclosures in
the Offering
Materials
concerning the effects of foreign,
federal,
state and
local
regulation
on the
Company's
businesses
as currently
conducted and as
contemplated
are correct in all
material
respects
and do not omit to state a
material fact.
The Company has all corporate
power and authority to enter into
this Agreement,
the Standby Equity
Distribution
Agreement,
the
Registration
Rights
Agreement,
and to carry out the provisions
and
conditions
hereof and
thereof,
and all consents,
authorizations,
approvals
and orders
required in
connection herewith and therewith have been obtained. No consent,
authorization
or order of, and no filing with, any court,
government
agency or other body is
required by the Company for the
issuance of the
Securities
or
execution
and
delivery
of the
Offering
Materials
except for
applicable
federal and state
securities
laws.
The
Company,
since
its
inception,
has not
incurred
any
liability
arising
under
or as a
result
of
the
application
of
any of the
provisions of the 1933 Act, the 1934 Act or the Rules and
Regulations.
(vii)
There has been no material adverse change in
the
condition or prospects of the
Company,
financial or
otherwise,
from the
latest dates as of which such
condition
or
prospects,
respectively,
are set
forth in the Offering Materials,
and the outstanding debt, the property and the
business of the Company
conform in all
material
respects to the
descriptions
thereof contained in the Offering Materials.
(viii)
Except
as
set
forth
in
the
Offering
Materials,
the
Company is not in breach of, or in default
under,
any term or
provision of any material indenture,
mortgage, deed of trust, lease, note, loan
4
or any other
material
agreement or instrument
evidencing
an
obligation
for
borrowed money,
or any other material
agreement or instrument to which it is a
party or by
which it or any of its
properties
may be bound or
affected.
The
Company is not in
violation
of any
provision
of its charter or by-laws or in
violation of any franchise,
license, permit,
judgment,
decree or order, or in
violation of any material statute, rule or regulation. Neither the
execution and
delivery of the Offering
Materials nor the issuance and sale or delivery of the
Securities,
nor the consummation of any of the transactions contemplated in the
Offering
Materials
nor the
compliance
by the
Company
with
the
terms
and
provisions hereof or thereof,
has conflicted with or will conflict with, or has
resulted in or will result in a breach of, any of the terms and
provisions
of,
or has
constituted or will
constitute a default
under,
or has resulted in or
will result in the creation or
imposition
of any lien,
charge or
encumbrance
upon any
property
or assets of the
Company
or
pursuant
to the terms of any
indenture,
mortgage,
deed of
trust,
note,
loan or any
other
agreement
or
instrument
evidencing an obligation for borrowed
money, or any other agreement
or
instrument to which the Company may be bound or to which any of the
property
or assets of the Company is subject except (a) where such default,
lien, charge
or encumbrance
would not have a material
adverse effect on the Company and (b)
as
described
in the
Offering
Materials;
nor will such action
result in any
violation
of the
provisions
of the
charter or the by-laws of the Company or,
assuming
the
due
performance
by
the
Placement
Agent
of
i
