EXHIBIT 10.1
STOCK PURCHASE AGREEMENT AND SHARE EXCHANGE
dated April 27, 2005
by and among
ALLIANCE TOWERS, INC.
a Florida Corporation
ROBERT C. SANDBURG
its CEO
MICHAEL DELIN
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
5401 South Dale
Mabry Highway, Suite B, Tampa, Florida 33611 ("Alliance"); ROBERT
C. SANDBURG,
Chief Executive Officer of Alliance ("Sandburg"); MICHAEL DELIN,
Chief Financial
Officer of Alliance ("Delin"); ENCLAVES GROUP, INC., a Delaware
corporation with
its principal place of business located at 537 Riverdale
Avenue, Suite 817,
Yonkers, New York 10705 ("Enclaves"); and HOMES FOR AMERICA
HOLDINGS, INC., a
Nevada corporation with its principal place of business located
at One Odell
Plaza, Yonkers, New York 10701 ("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, Sandburg, and Delin 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) KIRKPATRICK & LOCKHART
NICHOLSON GRAHAM 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 resp
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