EXHIBIT
10.7
FIRST AMENDMENT TO
PLACEMENT AGENT AGREEMENT
This
FIRST AMENDMENT to the PLACEMENT AGENT
AGREEMENT, dated effective as
of November
8, 2005 (the "AMENDMENT"), is made by and among DEERVALLEY
ACQUISITIONS CORP., a
Florida corporation ("DVA"), MIDTOWN PARTNERS & CO., LLC,
a Florida limited liability company (the "PLACEMENT AGENT"), and CYTATION
CORPORATION, a
Delaware corporation ("CYTATION").
BACKGROUND INFORMATION
DVA
and Placement Agent entered into a Placement Agent Agreement on
November 8, 2005 (the
"PLACEMENT AGENT AGREEMENT"). The parties have agreed to
modify the
provisions of the
Placement Agent Agreement to the extent set forth
herein. All
capitalized
terms not otherwise defined herein shall have the
meanings ascribed
to them in the Placement Agent Agreement.
OPERATIVE PROVISIONS
1.
Amendment to
the Preamble. The Preamble of the Placement Agent
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Agreement is
amended to include
Cytation Corporation, and the amended Preamble
shall read
as follows:
"This agreement
(the "Agreement"), made as of this 8th day of
November, 2005,
by and among DEERVALLEY ACQUISITIONS CORP., a Florida
corporation
maintaining an address at 3400 82nd Way North, St. Petersburg,
Florida 33710 and
CYTATION CORPORATION, a Delaware corporation maintaining
an
address at 4902 Eisenhower Blvd., Suite 185, Tampa, Florida 33634
(together, the
"Company");
and MIDTOWN PARTNERS & CO., LLC, a Florida
limited liability
company maintaining an
address at 7491 Estrella Circle,
Boca
Raton, Florida 33433 (the "Placement
Agent" or "Midtown" or "Midtown
Partners"), confirms
the understanding and agreement
between the Company
and
the Placement Agent as follows:"
2.
Amendment to
Section I, Sentence One. Section I is amended by
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deleting the
present form of
Sentence One in its entirety and by substituting,
in lieu thereof, the following:
"The
Company hereby engages the Placement Agent as the Company's
exclusive placement
agent in connection
with a proposed private placement
in
the United States (the "Offering") of
up to Seven Million Five Hundred
Thousand and No/100 Dollars (US$7,500,000) of the Company's
securities (the
"Financing")."
3.
Amendment to Section VIII(a)(2), Sentence Eight. Section VIII(a)(2)
-----------------------------------------------
is amended by deleting the present form of Sentence Eight in its
entirety and by
substituting, in
lieu thereof, the following:
"The
Warrants shall also include piggyback registration rights."
4.
Ratification of Placement Agent Agreement. The terms and conditions
-----------------------------------------
of the Placement Agent Agreement that
have not been modified by this Amendment
shall remain
in full force and effect.
<PAGE>
IN
WITNESS WHEREOF, this
Amendment has been executed by the parties hereto
as of this day
of January, 2006.
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DEERVALLEY ACUISITIONS
CORP.
/s/ Charles G. Masters
---------------------------------------------
Charles G.
Masters, Chief
Executive Officer
CYTATION
CORPORATION
/s/ Charles G. Masters
---------------------------------------------
Charles G.
Masters, Chief
Executive Officer
MIDTOWN PARTNERS
& CO., LLC
/s/ Bruce Jordan
---------------------------------------------
Bruce Jordan,
President
[Signature Page to First Amendment to Placement Agent
Agreement]
<PAGE>
Midtown Partners
Member NASD & SIPC
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PLACEMENT AGENT AGREEMENT
This agreement (the
"Agreement"), made as of this 8th day of November, 2005, by
and between
DEERVALLEY
ACQUISITIONS
CORP., a Florida corporation, (the
"Company"), with
its principal place of business at 3400 82nd Way
North, St.
Petersburg, FL
33710 and MIDTOWN PARTNERS & CO.,
LLC, (the "Placement Agent",
"Midtown" or "Midtown
Partners"), a Florida limited liability company, with its
principal place of
business at 7491 Estrella Circle, Boca Raton, Florida 33433,
confirms the
understanding and
agreement between the Company and the Placement
Agent as follows:
SECTION I
The Company
hereby engages the Placement Agent as the Company's exclusive
placement agent
in connection with a proposed private
placement in the United
States (the
"Offering")
of up to seven million dollars
(US$7,000,000) of the
Company's securities
(the "Financing"). The Offering will be made to
solely
"accredited investors"
(the "Accredited Investors"), as such term is defined in
Rule 501(a) of Regulation D ("Regulation D") promulgated under the
United States
Securities Act
of 1933, as amended (the "Securities Act"), pursuant to
an
exemption from
registration under
applicable federal and state securities laws
available under
Rule 506 of Regulation D and in accordance
with the terms of
this Agreement.
The terms and conditions of the
Financing shall be similar to
those terms
and provisions as attached in Exhibit
A hereto subject to a final
term Sheet
to be set forth at a later date to be
approved by the Company. The
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Placement Agent hereby accepts such engagement upon the terms and
conditions set
forth in this Agreement. This Agreement shall not give rise to any
commitment or
obligation by the Placement Agent to purchase any of the Financing
or, except as
set forth herein, to find purchasers for the Financing.
The Placement
Agent shall provide the following services (the
"Services"):
(a)
Advise the
Company with regard to the size of the Offering and
the
structure and terms of the Financing in light of the current market
environment;
(b)
Assist the
Company in identifying
and evaluating prospective qualified
Accredited
Investors;
(c)
Approach such
investors on a "best efforts basis" regarding an
investment in
the Company; and
(d)
Work with the Company
to develop a negotiating strategy and assist with
the negotiations
with such potential investors.
In connection
with the Placement Agent providing the Services, the
Company
agrees to keep the Placement Agent up to date and apprised of all
material
business, market
and legal developments related to the Company and its
<PAGE>
operations and
management.
The Placement Agent shall devote such time and
effort, as it deems commercially reasonable under the circumstances
in rendering
the Services.
The Placement Agent shall not provide any work that is
in the
ordinary purview
of a certified public accountant. The
Placement Agent cannot
guarantee results on behalf of the Company, but shall pursue all
avenues that it
deems reasonable through its network of contacts.
SECTION II
The Placement Agent, its affiliates and any person acting on its or
their behalf
hereby represent,
warrant and agree as follows (the "Placement Agent Parties"):
(a)
The Financing offered and sold by the Placement Agent have been and
will
be offered and sold in compliance with all federal and state
securities laws and
regulations governing
the registration and
conduct of broker-dealers, and each
Placement Agent
Party making an offer or sale of
Financing was or will be, at
the time of any such offer or sale, registered
as a broker-dealer pursuant to
Section 15(b)
of the United States
Securities Exchange Act of 1934, as amended
(the "Exchange Act"),
and under the laws of each applicable state of the United
States (unless
exempted from the
respective state's broker-dealer registration
requirements), and in
good standing with the National Association of Securities
Dealers, Inc.
(b)
The Financing offered and sold by the Placement Agent have been and
will
be offered and sold
only to Accredited Investors in accordance with Rule 506 of
Regulation D
and applicable state securities laws; provided, however, the
Company shall make all necessary filings under Rule 503 of
Regulation D and such
similar notice
filings under applicable state securities
laws. The
Placement
Agent Parties represent and warrant that they have reasonable
grounds to believe
and do believe that each person to whom a sale, offer or
solicitation of an
offer to purchase Financing was or will be made was and is an Accredited
Investor. Prior
to the sale of Financing to any such
investor, the Placement
Agent Parties
will obtain an executed subscription agreement
and an executed
investors' rights
agreement in the form agreed upon by the Company and
the
Placement Agent
(the "Subscription Documents").
(c)
In connection with the
offers and sales of the Financing, the Placement
Agent Parties
have not and will not
(1)
Offer or sell, or solicit any offer to
buy, any Financing by any form
of "general
solicitation"
or "general
advertising", as such terms are used in
Regulation D, or in any manner involving a public offering within
the meaning of
Section 4(2) of the Securities Act;
(2)
Use any written material other than the term sheet, that will be
approved by
the Company at a later date, and the Placement
Agent, a copy of
which is attached hereto as Exhibit A, and the Subscription
Documents, and shall
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only rely upon and
communicate information that is publicly available regarding
the Company to any
potential investors (without limiting the foregoing, none of
the Placement Agent Parties is authorized to make any
representation or warranty
to any offeree concerning the Company or an investment in the
Financing); or
(3)
Take any action that would constitute a violation of Regulation M
under
the Exchange Act.
(d)
The Placement
Agent shall cause each
affiliate or each party acting on
its or their behalf
with whom they enter into contractual arrangements relating
to the offer and sale of any Financing to agree, for the benefit of
the Company,
to the same provisions contained in this Agreement.
<PAGE>
SECTION III
During the
Term (as defined below), the Placement
Agent is hereby retained by
the Company
to make limited introductions on a best
efforts basis to provide
financing for the Company in an amount and form to be mutually
determined by the
Company and
the Placement Agent.
SECTION IV
The Company
hereby represents, warrants and agrees as follows:
(a)
This Agreement
has been authorized, executed and delivered by the
Company and, when
executed by the Placement Agent will constitute the valid and
binding agreement
of the Company
enforceable against the Company in accordance
with its terms, except as enforcement thereof may be limited
by bankruptcy,
insolvency or
reorganization,
moratorium or other
similar laws relating to or
affecting creditors'
rights generally or by general equitable principles.
(b)
The offer and sale of
the Financing, the Shares, and the Warrants shall
be exempt from registration under the Securities
Act, and will comply, in all
material respects with
the requirements of Rule 506 of Regulation D promulgated
under the Securities
Act and any applicable state securities laws. No documents
prepared by
the Company in connection with the Offering,
or any amendment or
supplement thereto,
contain any untrue
statement of a material fact or omit to
state any material fact required to be
stated therein or necessary to make the
statements therein,
in light of the circumstances under
which they were made,
not misleading.
(c)
The financial
statements,
audited and unaudited (including the
notes
thereto), included
in the Company's latest annual information form and
subsequent quarterly
reports (the "Financial Statements"),
present fairly the
financial position
of the Company as of
the dates indicated and the results of
operations and
cash flows of the Company for the periods specified. Such
Financial Statements
have been prepared in conformity with
generally accepted
accounting principles
applied on a consistent basis throughout the periods
involved except
as otherwise stated therein.
(d)
No federal,
state or foreign governmental agency has
issued any order
preventing or
suspending
the Offering.
(e)
The Company is a Florida corporation organized, existing and with
active
status under the laws
of Florida, with corporate power and authority under such
laws to own, lease and operate its properties
and conduct its business as now
conducted. The Company
has all power, authority, authorization and approvals as
may be required to enter into this Agreement and each of the
Subscription
Documents, and
to carry out the provisions and
conditions hereof and thereof,
and to issue and sell the Financing, the Shares, and Warrants.
(f)
The Financing, the Shares, the Warrants, and common shares issuable
upon
exercise of
the Warrants (the "Warrant Shares"),
have all been authorized for
issuance and
sale pursuant to the Subscription
Documents, and when issued and
delivered by the
Company against payment therefore in accordance with the terms
of the Subscription Documents, will be validly issued and fully paid and
non-assessable.
<PAGE>
(g)
With the exception of any approvals required by the Securities and
Exchange
Commission
related to
the Offering, no further approval or
authorization of any shareholder of the Company, its Board of
Directors or other
person or group is required for the issuance and sale of the
Financing, the
Shares, the
Warrants or the Warrant Shares.
(h)
Since the latest unaudited financial
statements there has not been any
(A) material
adverse change in the business, properties, assets, rights,
operations, condition
(financial or otherwise) or prospects of the Company, (B)
transaction that is material to the Company, except transactions in
the ordinary
course of business, (C) obligation that is material to
the Company, direct or
contingent, incurred by the Company, except obligations incurred in
the ordinary
course of business,
(D) change that is material to the Company or in the common
shares or outstanding indebtedness of the Company, or (E) dividend or
distribution of
any kind declared, paid, or made in respect of the common
shares.
SECTION V
The parties
agree that the close of the Offering (the "Closing") shall
be
subject to the satisfaction of the following conditions, unless
expressly waived
in writing
by the parties:
(a)
The Offering
shall not be subject to any regulatory or judicial
proceeding questioning
or reviewing its effectiveness for the purpose of
offering the
Financing for sale and issuance.
(b)
The Company
shall deliver a certificate of an officer of the
Company
dated as of the Closing that affirms the accuracy
of the representations and
warranties contained
in Section IV hereof.
(c) The
Agent shall have received an opinion of counsel to
the Company,
dated as of the
Closing, that the Financing offered and sold in compliance with
this Agreement
are not required to be registered under t
