Exhibit 10.10
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (this "AGREEMENT") is made and entered
into as of April 28, 2005, between Alliance Towers, Inc., a Florida corporation
("ALLIANCE"), and Enclaves Group, Inc., a Delaware corporation ("ENCLAVES").
Alliance and Enclaves are from time to time herein referred to as the
"CONSTITUENT CORPORATIONS."
RECITALS:
A. Alliance is a corporation duly organized and existing under the laws
of the State of Florida and, on the date hereof, has authority to issue
5,000,000,000 shares of common stock, $.001 par value per share (the "ALLIANCE
COMMON STOCK"), all of which are issued and outstanding, and 10,000,000 shares
of preferred stock, $.001 par value per share, of which 6,000,000 shares are
issued and outstanding.
B. Enclaves is a corporation duly organized and existing under the laws
of the State of Delaware and, on the date hereof, has authority to issue
90,000,000 shares of common stock, $.001 par value per share, of which 10,000
shares are issued and outstanding and owned by Alliance, and 10,000,000 shares
of preferred stock, $.001 par value per share, of which 1,000,000 shares are
issued and outstanding and owned by Alliance (collectively, the "ENCLAVES
CAPITAL STOCK").
C. The Boards of Directors of the Constituent Corporations deem it
advisable and to the advantage of the Constituent Corporations and their
respective stockholders that Alliance be merged with and into Enclaves for the
purpose of (i) changing the jurisdiction of incorporation of Alliance from the
State of Florida to the State of Delaware, (ii) changing the name of Alliance
from "Alliance Towers, Inc." to "Enclaves Group, Inc." and (iii) reducing the
authorized and outstanding capital stock of Alliance.
D. Each of the Constituent Corporations has, subject to approval by its
stockholders, adopted the Plan of Merger embodied in this Agreement.
AGREEMENT
In consideration of the terms hereof, the Constituent Corporations do
hereby agree to merge on the terms and conditions herein provided, as follows:
ARTICLE I
THE MERGER
1.1. THE MERGER. Upon the terms and subject to the conditions hereof, on
the Effective Date (as hereinafter defined), Alliance shall be merged with and
into Enclaves in accordance with the applicable laws of the States of Florida
and Delaware (the "MERGER"). The separate existence of Alliance shall cease, and
Enclaves shall be the surviving corporation (the "SURVIVING CORPORATION") and
shall be governed by the laws of the State of Delaware.
1.2. EFFECTIVE DATE. The Merger shall become effective on the date and at
the time of the filing of a Certificate of Merger, in substantially the form
annexed hereto as Xxxxxxxx X-0, with the Secretary of State of the State of
Delaware, and an Articles of Merger, in substantially the form annexed hereto as
Xxxxxxxx X-0, with the Secretary of State of the State of Florida, whichever
later occurs (the "EFFECTIVE DATE"), all after satisfaction of the requirements
of the applicable laws of such States prerequisites to such filings, including,
without limitation, the approval of the stockholders of the Constituent
Corporations.
1.3. CERTIFICATE OF INCORPORATION. On the Effective Date, the Certificate
of Incorporation of Enclaves, as in effect immediately prior to the Effective
Date, shall continue in full force and effect as the Certificate of
Incorporation of the Surviving Corporation.
1.4. BYLAWS. On the Effective Date, the Bylaws of Enclaves, as in effect
immediately prior to the Effective Date, shall continue in full force and effect
as the bylaws of the Surviving Corporation.
1.5. DIRECTORS AND OFFICERS. The directors and officers of Enclaves
immediately prior to the Effective Date shall be the directors and officers of
the Surviving Corporation, until their successors shall have been duly elected
and qualified or until otherwise provided by law, the Certificate of
Incorporation of the Surviving Corporation or the Bylaws of the Surviving
Corporation.
ARTICLE II
CONVERSION OF SHARES
2.1. ALLIANCE COMMON STOCK. Upon the Effective Date, by virtue of the
Merger and without any action on the part of any holder thereof, each share of
Alliance Common Stock outstanding immediately prior thereto shall be changed and
converted into .000068773797 of one fully paid and nonassessable share of the
common stock of the Surviving Corporation, $.001 par value per share (the
"SURVIVOR COMMON STOCK"). No fractional shares of Survivor Common Stock shall be
issued in the Merger. In lieu thereof, the shares of Survivor Common Stock
otherwise issuable to each holder of Alliance Common Stock hereunder shall be
rounded up or down to the nearest whole share of Survivor Common Stock.
2.2. ALLIANCE SERIES A PREFERRED STOCK. Upon the Effective Date, by virtue
of the Merger and without any action on the part of any holder thereof, each
share of Alliance Series A Convertible Preferred Stock, $.001 par value per
share, outstanding immediately prior thereto shall be changed and converted into
one fully paid and nonassessable share of the Series B Convertible Preferred
Stock of the Surviving Corporation, $.001 par value per share (the "SURVIVOR
SERIES B PREFERRED STOCK").
2.3. ALLIANCE SERIES B PREFERRED STOCK. Upon the Effective Date, by virtue
of the Merger and without any action on the part of any holder thereof, each
share of Alliance Series B Convertible Preferred Stock, $.001 par value per
share, outstanding immediately prior thereto shall be changed and converted into
one fully paid and nonassessable share of the Series A Convertible Preferred
Stock of the Surviving Corporation, $.001 par value per share (the "SURVIVOR
2
SERIES A PREFERRED STOCK" and together with the Survivor Common Stock and the
Survivor Series A Preferred Stock, the "SURVIVOR STOCK").
2.4. ENCLAVES CAPITAL STOCK. Upon the Effective Date, by virtue of the
Merger and without any action on the part of the holder thereof, each share of
Enclaves Capital Stock outstanding immediately prior thereto shall be cancelled
and returned to the status of authorized but unissued shares.
2.5. EXCHANGE OF CERTIFICATES. Each person who becomes entitled to receive
Survivor Stock by virtue of the Merger shall be entitled to receive from the
Surviving Corporation, as promptly as practicable after the Effective Time, a
certificate or certificates representing the number of shares of Survivor Stock
to which such person is entitled as provided herein.
ARTICLE III
EFFECT OF MERGER
3.1. RIGHTS, PRIVILEGES, ETC. On the Effective Date of the Merger, the
Surviving Corporation, without further act, deed or other transfer, shall retain
or succeed to, as the case may be, and possess and be vested with all the
rights, privileges, immunities, powers, franchises and authority, of a public as
well as of a private nature, of Alliance and Enclaves; all property of every
description and every interest therein, and all debts and other obligations of
or belonging to or due to each of Alliance and Enclaves on whatever account
shall thereafter be taken and deemed to be held by or transferred to, as the
case may be, or invested in the Surviving Corporation without further act or
deed; title to any real estate, or any interest therein vested in Alliance or
Enclaves, shall not revert or in any way be impaired by reason of the Merger;
and all of the rights of creditors of Alliance and Enclaves shall be preserved
unimpaired, and all liens upon the property of Alliance or Enclaves shall be
preserved unimpaired, and all debts, liabilities, obligations and duties of the
respective corporations shall thenceforth remain with or be attached to, as the
case may be, the Surviving Corporation and may be enforced against it to the
same extent as if all of said debts, liabilities, obligations and duties had
been incurred or contracted by it.
3.2. FURTHER ASSURANCES. From time to time, as and when required by the
Surviving Corporation or by its successors and assigns, there shall be executed
and delivered on behalf of Alliance such deeds and other instruments, and there
shall be taken or caused to be taken by it such further and other action, as
shall be appropriate or necessary in order to vest or perfect in or to conform
of record or otherwise in the Surviving Corporation the title to and possession
of all the property, interest, assets, rights, privileges, immunities, powers,
franchises and authority of Alliance and otherwise to carry out the purposes of
this Agreement, and the officers and directors of the Surviving Corporation are
fully authorized in the name and on behalf of Alliance or otherwise to take any
and all such action and to execute and deliver any and all such deeds and other
instruments.
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ARTICLE IV
GENERAL
4.1. ABANDONMENT. At any time before the Effective Date, this Agreement may
be terminated and the Merger may be abandoned for any reason whatsoever by the
Board of Directors of either Alliance or Enclaves or both, notwithstanding the
approval of this Agreement by the stockholders of Alliance or Enclaves.
4.2. AMENDMENT. At any time prior to the Effective Date, this Agreement may
be amended or modified in writing by the Board of Directors of either Alliance
or Enclaves or both; PROVIDED, HOWEVER, that an amendment made subsequent to the
adoption of this Agreement by the stockholders of either Constituent Corporation
shall not alter or change any of the terms and conditions of this Agreement if
such alteration or change would adversely affect the rights of the stockholders
of such Constituent Corporation.
4.3. GOVERNING LAW. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Delaware and, so far as
applicable, the merger provisions of the Florida Business Corporation Act.
4.4. COUNTERPARTS. In order to facilitate the filing and recording of this
Agreement, the same may be executed in any number of counterparts, each of which
shall be deemed to be an original.
[Signature Page Follows]
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[SIGNATURE PAGE TO AGREEMENT AND PLAN OF MERGER]
IN WITNESS WHEREOF, the parties hereto have entered into and signed this
Agreement as of the date and year first written above.
ALLIANCE TOWERS, INC.
(a Florida corporation)
By: /s/ Xxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: CEO & President
ENCLAVES GROUP, INC.
(a Delaware corporation)
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: CEO & President
APPENDIX A-1
CERTIFICATE OF MERGER
MERGING
ALLIANCE TOWERS, INC.
(a Florida corporation)
INTO
ENCLAVES GROUP, INC.
(a Delaware corporation)
Pursuant to Section 252 of the
Delaware General Corporation Law
The undersigned corporation, organized and existing under and by virtue
of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY as
follows:
(1) The name and state of incorporation of each of the constituent
corporations are Enclaves Group, Inc., a Delaware corporation, and Alliance
Towers, Inc., a Florida corporation;
(2) An agreement of merger has been approved, adopted, certified,
executed and acknowledged by each of the constituent corporations in accordance
with Section 252 of the Delaware General Corporation Law;
(3) The name of the surviving corporation is Enclaves Group, Inc.;
(4) The surviving corporation, Enclaves Group, Inc., will be a Delaware
corporation and its Certificate of Incorporation as currently filed with the
Secretary of State of the State of Delaware shall be the Certificate of
Incorporation of the surviving corporation;
(5) The executed agreement of merger is on file at the principal place
of business of the surviving corporation, Xxx Xxxxx Xxxxx, Xxxxxxx, Xxx Xxxx
00000;
(6) A copy of the agreement of merger will be furnished by the
surviving corporation, on request and without cost, to any current stockholder
of either constituent corporation;
(7) The authorized capital stock of Alliance Towers, Inc., a Florida
corporation, consists of 5,000,000,000 shares of common stock, $.01 par value
per share (the "ALLIANCE COMMON STOCK"), and 10,000,000 shares of preferred
stock, $.01 par value per share; and
(8) This certificate shall become effective at 5:00 p.m. eastern time
on the date it is filed.
[Signature Page Follows]
[SIGNATURE PAGE TO DELAWARE CERTIFICATE OF MERGER]
IN WITNESS WHEREOF, Enclaves Group, Inc. has caused this Certificate of
Merger to be executed by its duly authorized officer this ___ day of May, 2005.
ENCLAVES GROUP, INC.
(a Delaware corporation)
By:
----------------------------------
Name:
Title:
APPENDIX A-2
ARTICLES OF MERGER
(See Attached)
