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)
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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
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of the Placement Agent Agreement that have not been modified by this Amendment
shall remain in full force and effect.
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
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Charles G. Masters, Chief Executive Officer
CYTATION CORPORATION
/s/ Charles G. Masters
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Charles G. Masters, Chief Executive Officer
MIDTOWN PARTNERS & CO., LLC
/s/ Bruce Jordan
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Bruce Jordan, President
[Signature Page to First Amendment to Placement Agent Agreement]
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
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.
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.
(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 the Securities Act.
(d) The Company shall have paid, or made arrangements satisfactory to the
Agent for the payment of, all such expenses as required by Section VIII below.
(e) The Placement Agent and the Company shall have finalized and agreed to
the form of the warrant agreement and registration rights agreement referred to
in Section VIII below.
SECTION VI
(a) The term of this Agreement shall commence on the date first written
above and shall expire the earlier of one (1) year after the date the Company
(1) provides the Placement Agent with requested due diligence materials and (2)
the Company and the Placement Agent mutually agree that information documents
(including, but not limited to: a business plan; executive summary; three-year
historical income statement, statement of cash flows, and balance sheet;
five-year projected financial statements; use of proceeds statement; investor
presentation; valuation analysis), to be provided and approved by the Company,
are ready for presentation to the Placement Agent's network of potential
financing sources or the closing of the Offering, unless terminated in
accordance with the provisions set forth below, or extended by the mutual
written consent of the parties hereto (the "Term"). This Agreement may be
terminated only:
(1) By the Placement Agent for any reason at any time upon thirty (30)
days' prior written notice; or
(2) By the Placement Agent upon default in the payment of any amounts due
to the Placement Agent pursuant to this Agreement, if such default continues for
more than fifteen (15) days following receipt by the Company from the Placement
Agent of written notice of such default and demand for payment.
(a) In the event of termination, the Placement Agent shall be immediately paid
in full on all items of compensation and expenses (including any amounts
deferred) payable to the Placement Agent pursuant hereto, as of the date of
termination.
(b) The Placement Agent Fee or Financing Fee shall become due and payable to
PLACEMENT AGENT upon the date that the Company receives the proceeds of the
financing from the party providing the financing. A Placement Agent Fee shall
also be payable with respect to any Qualified Offering or any subsequent
Qualified Financing accepted and received by Company within twelve (12) months
after the termination or expiration of this Agreement, by any party or source of
funding introduced or facilitated by PLACEMENT AGENT to Company; or
(3) By the Company or the Placement Agent for any reason at any time upon
fifteen (15) days' prior written notice after the completion of the initial
Term; or
(4) By mutual agreement of the parties.
SECTION VII
If at any time during the twelve (12) months following the termination of this
Agreement the Company conducts a Qualified Offering, the Placement Agent shall
(1) be entitled to act as a placement agent in such Qualified Offering and
receive commissions and fees for subscriptions received or solicited by the
Placement Agent for the Company's securities pursuant to the terms and
conditions of this Agreement, and (2) be entitled to the compensation and fees
as set forth in Section VIII of this Agreement for any Qualified Financing
received by the Company. Any compensation or fees paid pursuant to Section VIII
below shall relate only to the securities initially issued by the Company and
not the underlying securities, unless otherwise agreed to by the Company.
"Qualified Offering" shall mean any securities issued by the Company, other
than: (1) the Units, the Warrants, the Shares or the common shares underlying
the Warrants issued pursuant to the terms and conditions of the Offering; (2)
common shares, options or other rights to purchase common shares issued or
granted to employees, officers, directors and consultants of the Company
pursuant to one or more employee stock plans or agreements approved by the
Company's board of directors; (3) securities of the Company issued or issuable
to financial institutions or lessors in connection with real estate leases,
commercial credit arrangements, equipment financings or similar transactions
approved by the Company's board of directors, including, but not limited to,
equipment leases or bank lines of credit; (4) securities issued as a dividend or
distribution on, or in connection with a split of or recapitalization of, any of
the capital stock of the Company; (5) securities issued by the Company pursuant
to strategic partnership, joint venture or other similar arrangements approved
by the Company's board of directors where the primary purpose of the arrangement
is not to raise capital; (6) securities of the Company issued pursuant to a
registration statement filed by the Company under the Securities Act; (7)
securities issued by the Company pursuant to an acquisition of another
corporation or other entity by the Corporation by merger, purchase of all or
substantially all of the capital stock or assets, or other reorganization; or
(8) securities of the Company issued pursuant to currently outstanding options,
warrants or other rights to acquire securities of the Company.
"Qualified Financing" shall mean an investment from a person after the
termination of this Agreement that directly results from the Placement Agent's
performance of the Services hereunder during the Term of this Agreement (for the
avoidance of doubt this shall mean any solicitation of a potential investor or
an introduction of a potential investor to the Company by the Placement Agent
related to the Offering during the Term of this Agreement). The Placement Agent
agrees to provide to the Company within ten (10) days after the termination of
this Agreement (the "Delivery Deadline") a list of all persons solicited on
behalf of the Company or introduced to the Company by the Placement Agent
related to the Offering (the "Solicitation List") to assist the parties in
making a later determination as to whether a Qualified Financing has occurred.
If the Solicitation List is not provided to the Company prior to the expiration
of the Delivery Deadline, the Company's obligation to pay any commissions or
fees related to a Qualified Financing pursuant to this Section VII shall
immediately terminate. For purposes of this Agreement, receipt of Qualified
Financing shall be deemed to be received by the Company on the date that a
definitive agreement regarding the Qualified Financing is executed by the
Company and the party providing such financing. The compensation or fees shall
become payable to the Placement Agent upon the date that the Company receives
the proceeds of the Qualified Financing.
Notwithstanding anything to the contrary, if the Company conducts a Qualified
Offering during the twelve (12) months following the termination of this
Agreement, it shall not be obligated to accept any subscriptions received by the
Placement Agent or any Qualified Financing by virtue of this Section VII and the
Company reserves the right to accept or reject any such subscriptions or
Qualified Financing in whole or in part.
SECTION VIII
In consideration for the performance of the Services hereunder, the Company
hereby agrees to pay to the Placement Agent such fees ("The Placement Agent Fee
or the Financing Fee") as outlined below:
(a) If the Placement Agent receives subscriptions for Financing as a part of
the Offering (the "Placement Agent Investors"), the Company shall:
1) Pay to the Placement Agent in US dollars via wire from the
attorney's escrow at closing an amount equal to ten percent (10%) of
the principal amount of the Financing purchased by the Placement Agent
Investors (the "Financing Fee"), and pay to the Placement Agent ten
percent (10%) on the execution of any Warrants purchased by the
Investors.
2) On each closing date of a Financing on which aggregate
consideration is paid or becomes payable to the Company for its Equity
Securities, the Company shall issue to the Placement Agent or its
permitted assigns warrants (the "Warrants") to purchase such number of
shares of the common stock of the Company equal to ten percent (10%)
of the aggregate number of shares of common stock of the Company
issued and issuable by the Company under and in connection with the
Financings. The Company shall grant to the Placement Agent all Series
of Warrants equal to ten percent (10%) of the number of Warrants
issued to the Placement Agent Investors. The number of shares of
common stock issuable upon exercise of the Warrants shall include all
shares of common stock issuable under the Securities, including,
without limitation, shares issuable upon conversion or exercise of the
Securities. The Warrants shall provide for cashless exercise (even if
the Purchasers do not have such right) and have terms and conditions
identical to the Securities purchased by the Purchasers, including,
without limitation, anti-dilution and full ratchet provisions to take
into account any issuance of additional shares of common stock as a
result of an adjustment to the Securities or the shares of common
stock underlying the Securities. The Warrants shall be exercisable
after the date of issuance and shall expire five years after the date
of issuance, unless otherwise extended by the Company. The Warrants
shall include anti-dilution protection, including protection against
issuances of securities at prices (or with exercise prices, in the
case of warrants, options or rights) below the exercise price of the
Warrants. The Warrants shall not be callable or redeemable. The
Warrants shall also include one demand registration right exercisable
following the first anniversary of the closing, and piggyback
registration rights. The Warrants shall be transferable within MIDTOWN
PARTNERS, at the Placement Agent's discretion.
3) An escrow with a third party agent approved by the parties hereto
will be used for each closing to which the Placement Agent shall be a
party. All consideration due the Placement Agent shall be paid to the
Placement Agent directly there from.
4) Cause its affiliates to, pay to the Placement Agent all
compensation described in this Section VIII with respect to all
Securities sold to a purchaser or purchasers at any time prior to the
expiration of twelve (12) months after the expiration of this
Agreement (the "Tail Period") if (i) such purchaser or purchasers were
identified to the Company by the Placement Agent during the Term
authorized, (ii) the Placement Agent advised the Company with respect
to such purchaser or purchasers during the Term authorized or (iii)
the Company or the Placement Agent had discussions with such purchaser
or purchasers during the Term authorized.
5) The Company agrees to pay two percent (2%) of the principal
amount of the Debentures purchased by the Placement Agent Investors
(the "Non-accountable Fee") which will be used to pay Placement Agent
expenses including fees such as entertainment expenses, travel, etc.
The Company also agrees to pay for the legal and due diligence fees
outlined in the attached term sheet and such fees shall not exceed
$25,000.
(b) It is acknowledged and agreed that the Company shall bear all costs and
expenses incident to the issuance, offer, sale and delivery of the Financing.
These costs and expenses will include but are not limited to state "Blue Sky"
fees, legal fees, printing costs, travel costs, mailing, couriers, personal
background checks, and other expenses incidental to the advancement and
completion of the Offering. Full payment of Placement Agent's expenses shall be
made in same day funds at the Closing or, if the Offering is terminated for any
reason, within ten (10) days of receipt by the Company of a written request from
the Placement Agent for reimbursement of expenses, including documentation
therefore satisfactory to the Company.
(c) Subject to the other requirements set forth in this Agreement, the
Placement Agent may introduce investors to the Offering directly or through
other NASD member broker-dealers. If the Placement Agent utilizes any
intermediaries, the Placement Agent shall be the Company's point of contact, not
the intermediary, and the Placement Agent, not the Company, shall be responsible
for any compensation arrangement with the intermediary. The Company's sole
compensation arrangement, responsibility and obligation are with the Placement
Agent. The Placement Agent will disclose the identity and compensation
arrangements with all of its intermediaries in order to allow the Company to
adequately disclose such arrangements, where necessary.
SECTION IX
The Company agrees to indemnify the Placement Agent and hold it harmless against
any losses, claims, damages or liabilities incurred by the Placement Agent, in
connection with, or relating in any manner, directly or indirectly, to the
Placement Agent rendering the Services in accordance with the Agreement, unless
it is determined by a court of competent jurisdiction that such losses, claims,
damages or liabilities arose out of the Placement Agent's breach of this
Agreement, sole negligence, gross negligence, willful misconduct, dishonesty,
fraud or violation of any applicable law. Additionally, the Company agrees to
reimburse the Placement Agent immediately for any and all expenses, including,
without limitation, attorney fees, incurred by the Placement Agent in connection
with investigating, preparing to defend or defending, or otherwise being
involved in, any lawsuits, claims or other proceedings arising out of or in
connection with or relating in any manner, directly or indirectly, to the
rendering of any Services by the Placement Agent in accordance with the
Agreement (as defendant, nonparty, or in any other capacity other than as a
plaintiff, including, without limitation, as a party in an interpleader action);
provided, however, that in the event a determination is made by a court of
competent jurisdiction that the losses, claims, damages or liability arose
primarily out of the Placement Agent's breach of this Agreement, sole
negligence, gross negligence, willful misconduct, dishonesty, fraud or any
violation of any applicable law, the Placement Agent will remit to the Company
any amounts for which it had been reimbursed under this paragraph. The Company
further agrees that the indemnification and reimbursement commitments set forth
in this paragraph shall extend to any controlling person, strategic alliance,
partner, member, shareholder, director, officer, employee, agent or
subcontractor of the Placement Agent and their heirs, legal representatives,
successors and assigns. The provisions set forth in this Section IX shall
survive any termination of this Agreement.
SECTION X
All notices, demands or other communications given hereunder shall be in writing
and shall be deemed to have been duly given when delivered in person or
transmitted by facsimile transmission or the fifth calendar day after being
mailed by registered or certified mail, return receipt requested, postage
prepaid, to the addresses herein above first mentioned or to such other address
as any party hereto shall designate to the other for such purpose manner herein
set forth.
SECTION XI
GOVERNING LAW. The subject matter of this Agreement shall be governed by and
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construed in accordance with the laws of the State of Florida (without reference
to its choice of law principles), and to the exclusion of the law of any other
forum, without regard to the jurisdiction in which any action or special
proceeding may be instituted. EACH PARTY HERETO AGREES TO SUBMIT TO THE
PERSONAL JURISDICTION AND VENUE OF THE STATE AND/OR FEDERAL COURTS LOCATED IN
PALM BEACH COUNTY, FLORIDA FOR RESOLUTION OF ALL DISPUTES ARISING OUT OF, IN
CONNECTION WITH, OR BY REASON OF THE INTERPRETATION, CONSTRUCTION, AND
ENFORCEMENT OF THIS AGREEMENT, AND HEREBY WAIVES THE CLAIM OR DEFENSE THEREIN
THAT SUCH COURTS CONSTITUTE AN INCONVENIENT FORUM. AS A MATERIAL INDUCEMENT FOR
THIS AGREEMENT, EACH PARTY SPECIFICALLY WAIVES THE RIGHT TO TRIAL BY JURY OF ANY
ISSUES SO TRIABLE. If it becomes necessary for any party to institute legal
action to enforce the terms and conditions of this Agreement, the prevailing
party may be awarded reasonable attorneys fees, expenses and costs.
CONFIDENTIALITY. The Placement Agent may acquire certain non-public information
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respecting the business of the Company in connection with the performance of
services hereunder, including information, which is reasonably understood to be
proprietary or confidential in nature (collectively, "Confidential
Information"). The Placement Agent hereby agrees that all Confidential
Information shall be kept strictly confidential by the Placement Agent and its
affiliates, members, partners, shareholders, managers, directors, officers,
employees, advisors, agents, and controlling persons (collectively,
"Representatives"), except that Confidential Information or portions thereof may
be disclosed to Representatives who need to know such information for the
purpose of enabling the Placement Agent to perform services hereunder (it being
understood that prior to such disclosure, such Representative will be informed
by the Placement Agent of the confidential nature of such Confidential
Information and shall agree to be bound by this Agreement). The Placement Agent
shall be responsible for any breach of this provision by any of its
Representatives. For purposes hereof, Confidential Information shall not
include any information which (i) at the time of disclosure or thereafter is or
becomes generally known by the public (other than as a result of its disclosure
by the Placement Agent or its Representatives), (ii) was or becomes available to
the Placement Agent on a non-confidential basis from a person who is not subject
to a confidentiality agreement concerning that information, or (iii) is required
by law to be disclosed by the Placement Agent (provided that if such disclosure
is required by order of a court or administrative agency, the Placement Agent
shall notify the Company as soon as possible so that the Company may seek a
protective order).
ASSIGNMENTS AND BINDING EFFECT. This Agreement shall be binding on and inure to
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the benefit of the parties hereto and their respective successors and permitted
assigns. The rights and obligations of the parties under this Agreement may not
be assigned or delegated without the prior written consent of both parties, and
any purported assignment without such written consent shall be null and void.
MODIFICATION AND WAIVER. Only an instrument in writing executed by the parties
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hereto may amend this Agreement. The failure of any party to insist upon strict
performance of any of the provisions of this Agreement shall not be construed as
a waiver of any subsequent default of the same or similar nature, or any other
nature.
CONSTRUCTION. The captions used in this Agreement are provided for convenience
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only and shall not affect the meaning or interpretation of any provision of this
Agreement.
FACSIMILE SIGNATURES. Facsimile transmission of any signed original document,
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and re-transmission of any signed facsimile transmission, shall be the same as
delivery of an original. At the request of either party, the parties shall
confirm facsimile transmitted signatures by signing an original document. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original and all of which taken together shall constitute one and the
same agreement.
SEVERABILITY. If any provision of this Agreement shall be invalid or
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unenforceable in any respect for any reason, the validity and enforceability of
any such provision in any other respect, and of the remaining provisions of this
Agreement, shall not be in any way impaired.
EXCLUSIVE. Midtown acknowledges and agrees that it is being granted exclusive
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rights with respect to the Services to be provided to the Company and the
Company is not free to engage other parties to provide services similar to those
being provided by Midtown hereunder without the prior written consent of
Midtown.
NON-CIRCUMVENTION. The Company hereby irrevocably agrees not to circumvent,
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avoid, bypass, or obviate, directly or indirectly, the intent of this Agreement.
The Company agrees not to accept any business opportunity from any third party
to whom PLACEMENT AGENT introduces to the Company without the consent of
PLACEMENT AGENT, unless for each business opportunity accepted by the Company
from a third party introduced by PLACEMENT AGENT, the Company remits a term
sheet and then a contract which defines a mutually agreeable compensation
structure for PLACEMENT AGENT.
SURVIVABILITY. Neither the termination of this Agreement nor the completion of
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any services to be provided by the Placement Agent hereunder, shall affect the
provisions of this Agreement that shall remain operative and in full force and
effect.
ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and
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understanding of the parties hereto with respect to the subject matter of this
Agreement and supersedes all prior understandings and agreements, whether
written or oral, among the parties with respect to such subject matter.
If the foregoing correctly sets forth the understanding between the Placement
Agent and the Company, please so indicate in the space provided below for that
purpose. The undersigned parties hereto have caused this Agreement to be duly
executed by their authorized representatives, pursuant to corporate board
approval and intend to be legally bound.
DEERVALLEY ACQUISITIONS CORP. MIDTOWN PARTNERS & CO., LLC.
By: By:
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Charles G. Masters, CEO Bruce Jordan, President