EXHIBIT 10.01
AGREEMENT AND PLAN OF MERGER
--------------------------
This AGREEMENT AND PLAN OF MERGER (the "AGREEMENT") is made and entered
---------
into as of July 24, 2006 between CYTATION CORPORATION, a Delaware corporation
with a mailing address of 0000 XXXXXXXXXX XXXX, XXXXX 000, XXXXX, XXXXXXX 00000
("CYTATION"), and DEER VALLEY CORPORATION, a Florida corporation with a mailing
--------
address of 0000 XXXXXXXXXX XXXX, XXXXX 000, XXXXX, XXXXXXX 00000("XXXX VALLEY").
-----------
Cytation and Deer Valley are from time to time herein referred to as the
"CONSTITUENT CORPORATIONS."
-------------------------
RECITALS
--------
WHEREAS, Cytation is a corporation duly organized and existing under the
laws of the State of Delaware.
WHEREAS, Deer Valley is a corporation duly organized and existing under the
laws of the State of Florida.
WHEREAS, the Boards of Directors of the Constituent Corporations deem it
advisable and to the advantage of the Constituent Corporations and their
respective shareholders that Cytation be merged with and into Deer Valley for
the purpose of changing the jurisdiction of incorporation of Cytation from the
State of Delaware to the State of Florida.
WHEREAS, each of the Constituent Corporations has, subject to approval by
its shareholders, adopted the Agreement and Plan of Merger embodied in this
Agreement.
NOW, THEREFORE, 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
----------
1.01 The Merger. Upon the terms and subject to the conditions hereof,
-----------
on the Effective Date (as hereinafter defined), Cytation shall be merged with
and into Deer Valley in accordance with the applicable laws of the States of
Delaware and Florida (the "MERGER"). The separate existence of Cytation shall
------
cease, and Deer Valley shall be the surviving corporation (the "SURVIVING
---------
CORPORATION") and shall be governed by the laws of the State of Florida.
-----------
1.02 Effective Date. The Merger shall become effective on the date and
--------------
at the time of filing of Articles of Merger, in substantially the form annexed
hereto as Exhibit"A", with the Secretary of State of the State of Delaware, and
----------
Articles of Merger in substantially the same form 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
prerequisite to such filings, including, without limitation, the approval of the
shareholders of the Constituent Corporations.
1.03 Articles of Incorporation. On the Effective Date, the Articles of
-------------------------
Incorporation of Deer Valley, as in effect immediately prior to the Effective
Date, shall continue in full force and effect as the Articles of Incorporation
of the Surviving Corporation.
1.04 Bylaws. On the Effective Date, the Bylaws of Deer Valley, as in
------
effect immediately prior to the Effective Date, shall continue in full force and
effect as the bylaws of the Surviving Corporation.
1.05 Directors and Officers. The directors and officers of Deer Valley
----------------------
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 Articles of Incorporation
of the Surviving Corporation or the Bylaws of the Surviving Corporation.
ARTICLE II
Conversion of Shares
--------------------
2.01 Cytation 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
Cytation Common Stock outstanding immediately prior thereto shall be changed and
converted into one fully paid and nonassessable share of the common stock of the
Surviving Corporation.
2.02 Cytation 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 Cytation Series A Preferred Stock outstanding immediately prior
thereto shall be changed and converted into one fully paid and nonassessable
share of the Series A Preferred Stock of the Surviving Corporation.
2.03 Cytation 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 Cytation Series B Preferred Stock outstanding immediately prior
thereto shall be changed and converted into one fully paid and nonassessable
share of the Series B Preferred Stock of the Surviving Corporation.
2.04 Cytation Series C 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 Cytation Series C Preferred Stock outstanding immediately prior
thereto shall be changed and converted into one fully paid and nonassessable
share of the Series C Preferred Stock of the Surviving Corporation.
2.05 Cytation Series D 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 Cytation Series D Preferred Stock outstanding immediately prior
thereto shall be changed and converted into one fully paid and nonassessable
share of the Series D Preferred Stock of the Surviving Corporation.
2.06 Exchange of Certificates. Each person who becomes entitled to
--------------------------
receive common or preferred stock of the Survivor Corporation by virtue of the
Merger shall be entitled to receive from the Surviving Corporation, as promptly
as practicable after the Effective Date, a certificate or certificates
representing the number of shares of Survivor Stock to which such person is
entitled as provided herein.
-2-
ARTICLE III
Effect of the Merger
--------------------
3.01 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 Cytation and Deer Valley; all property of every
description and every interest therein, and all debts and other obligations of
or belonging to or due to each of Cytation and Deer Valley 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 Cytation or
Deer Valley, shall not revert or in any way be impaired by reason of this
Merger; and all of the rights of creditors of Cytation and Deer Valley shall be
preserved unimpaired, and all liens upon the property of Cytation or Deer Valley
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.
3.02 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 Cytation 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 Cytation 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 Cytation
or otherwise to take any and all such action and to execute and deliver any and
all such deeds and other instruments.
ARTICLE IV
Miscellaneous
-------------
4.01 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 Cytation or Deer Valley or both,
notwithstanding the approval of this Agreement by the shareholders of Cytation
and Deer Valley.
4.02 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 Cytation or Deer Valley or both; provided, however, that an amendment
made subsequent to the adoption of this Agreement by the shareholders of either
-3-
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 shareholders of such Constituent Corporation.
4.03 Governing Law. This Agreement shall be governed by and construed
--------------
and enforced in accordance with the laws of the State of Florida and, so far as
applicable, the merger provisions of the Delaware General Corporation Law.
4.04 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.
IN WITNESS WHEREOF, the parties have executed this Agreement effective as
of the day and year first above written.
CYTATION CORPORATION, a Delaware
corporation
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxx, President & CEO
DEER VALLEY CORPORATION, a
Florida corporation
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxx, President & CEO
-4-
