CAL-BAY INTERNATIONAL, INC.
PLACEMENT AGENT AGREEMENT
Dated as of: June 16, 2003.
The undersigned, Cal-Bay International, Inc., (the "COMPANY"), hereby agrees
with Boston First Capital, LLC, an affiliate of Oftring & Company, Inc (the
"PLACEMENTAGENT") and Dutchess Private Equities Fund, L.P., a Delaware Limited
Partnership (the "INVESTOR") as follows:
1. OFFERING. The Company hereby engages the Placement Agent to act as its
exclusive placement agent in connection with the Investment Agreement dated
the date hereof (the "INVESTMENT AGREEMENT") pursuant to which the Company
shall issue and sell to the Investor, from time to time, and the Investor
shall purchase from the Company (the "OFFERING") up to Ten Million Dollars
($10,000,000) of the Company's Common Stock, par value $0.001 per share
(the "COMMON STOCK"), at price per share equal to the Purchase Price, as
that term is defined in the Investment Agreement. Pursuant to the terms
hereof, the Placement Agent shall render consulting services to the Company
with respect to the Investment Agreement and shall be available for
consultation in connection with the advances to be requested by the Company
pursuant to the Investment Agreement. All capitalized terms used herein and
not otherwise defined herein shall have the same meaning ascribed to them
as in the Investment Agreement. The Investor will be granted certain
registration rights with respect to the Common Stock as more fully set
forth in the Registration Rights Agreement between the Company and the
Investor dated the date hereof (the "REGISTRATION RIGHTS AGREEMENT"). The
documents to be executed and delivered in connection with the Offering,
including, but not limited, to this Agreement, the Investment Agreement,
and the Registration Rights Agreement, are referred to sometimes
hereinafter collectively as the "OFFERING MATERIALS." The Company's Common
Stock is sometimes referred to hereinafter as the "SECURITIES." The
Placement Agent shall not be obligated to sell any Securities and this
Offering by the Placement Agent shall be solely on a "best efforts basis."
2. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PLACEMENT AGENT. A. The
Placement Agent represents, warrants and covenants as follows:
(i) The Placement Agent has the necessary power to enter into this
Agreement and to consummate the transactions contemplated hereby.
(ii) The execution and delivery by the Placement Agent of this Agreement
and the consummation of the transactions contemplated herein will not
result in any violation of, or be in conflict with, or constitute a default
under, any agreement or instrument to which the Placement Agent is a party
or by which the Placement Agent or its properties are bound, or any
judgment, decree, order or, to the Placement Agent's knowledge, any
statute, rule or regulation applicable to the Placement Agent. This
Agreement when executed and delivered by the Placement Agent, will
constitute the legal, valid and binding obligations of the Placement Agent,
enforceable in accordance with their respective terms, except to the extent
that (a) the enforceability hereof or thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws from time to time in
effect and affecting the rights of creditors generally, (b) the
enforceability hereof or thereof is subject to general principles of
equity, or (c) the indemnification provisions hereof or thereof may be held
to be in violation of public policy.
1
(iii) Upon receipt and execution of this Agreement the Placement Agent will
promptly forward copies of this Agreement to the Company or its counsel and
the Investor or its counsel.
(iv) The Placement Agent will not take any action that it reasonably
believes would cause the Offering to violate the provisions of the
Securities Act of 1933, as amended (the "1933 ACT"), the Securities
Exchange Act of 1934 (the "1934 ACT"), the respective rules and regulations
promulgated there under (the "RULES AND REGULATIONS") or applicable "Blue
Sky" laws of any state or jurisdiction.
(v) The Placement Agent will use all reasonable efforts to determine (a)
whether the Investor is an Accredited Investor and (b) that any information
furnished by the Investor is true and accurate. The Placement Agent shall
have no obligation to insure that (x) any check, note, draft or other means
of payment for the Common Stock will be honored, paid or enforceable
against the Investor in accordance with its terms, or (y) subject to the
performance of the Placement Agent's obligations and the accuracy of the
Placement Agent's representations and warranties hereunder, (1) the
Offering is exempt from the registration requirements of the 1933 Act or
any applicable state "Blue Sky" law or (2) the Investor is an Accredited
Investor.
(vi) The Placement Agent is a member of the National Association of
Securities Dealers, Inc., and is a broker-dealer registered as such under
the 1934 Act and under the securities laws of the states in which the
Securities will be offered or sold by the Placement Agent unless an
exemption for such state registration is available to the Placement Agent.
The Placement Agent is in compliance with all material rules and
regulations applicable to the Placement Agent generally and applicable to
the Placement Agent's participation in the Offering.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
A. The Company represents and warrants as follows:
(i) The execution, delivery and performance of each of this Agreement, the
Investment Agreement and the Registration Rights Agreement has been or will
be duly and validly authorized by the Company and is, or with respect to
this Agreement, the Investment Agreement and the Registration Rights
Agreement will be, a valid and binding agreement of the Company,
enforceable in accordance with its respective terms, except to the extent
that (a) the enforceability hereof or thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws from time to time in
effect and affecting the rights of creditors generally, (b) the
enforceability hereof or thereof is subject to general principles of equity
or (c) the indemnification provisions hereof or thereof may be held to be
in violation of public policy. The Securities to be issued pursuant to the
transactions contemplated by this Agreement and the Investment Agreement
have been duly authorized and, when issued and paid for in accordance with
(x) this Agreement, the Equity Line of Agreement and the
certificates/instruments representing such Securities, (y) will be valid
and binding obligations of the Company, enforceable in accordance with
their respective terms, except to the extent that (1) the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws from time to time in effect and affecting the
2
rights of creditors generally, and (2) the enforceability thereof is
subject to general principles of equity. All corporate action required to
be taken for the authorization, issuance and sale of the Securities has
been duly and validly taken by the Company.
(ii) The Company has a duly authorized, issued and outstanding
capitalization as set forth herein and in the Investment Agreement. The
Company is not a party to or bound by any instrument, agreement or other
arrangement providing for it to issue any capital stock, rights, warrants,
options or other securities, except for this Agreement, the agreements
described herein and as described in the Investment Agreement, dated the
date hereof and the agreements described therein. All issued and
outstanding securities of the Company, have been duly authorized and
validly issued and are fully paid and non-assessable; the holders thereof
have no rights of rescission or preemptive rights with respect thereto and
are not subject to personal liability solely by reason of being security
holders; and none of such securities were issued in violation of the
preemptive rights of any holders of any security of the Company. As of the
date hereof, the authorized capital stock of the Company consists of
75,000,000 shares of Common Stock, par value $0.001 per share of which
24,985,000 shares of Common Stock are issued and outstanding
(iii) The Common Stock to be issued in accordance with this Agreement and
the Investment Agreement has been duly authorized and when issued and paid
for in accordance with this Agreement, the Investment Agreement and the
certificates/instruments representing such Common Stock, will be validly
issued, fully-paid and non-assessable; the holders thereof will not be
subject to personal liability solely by reason of being such holders; such
Securities are not and will not be subject to the preemptive rights of any
holder of any security of the Company.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE INVESTOR.
A. The Investor represents, warrants and covenants as follows:
(i) The Investor has the necessary power to enter into this Agreement and
to consummate the transactions contemplated hereby.
(ii) The execution and delivery by the Investor of this Agreement and the
consummation of the transactions contemplated herein will not result in any
violation of, or be in conflict with, or constitute a default under, any
agreement or instrument to which the Investor is a party or by which the
Investor or its properties are bound, or any judgment, decree, order or, to
the Investor's knowledge, any statute, rule or regulation applicable to the
Investor. This Agreement when executed and delivered by the Investor, will
constitute the legal, valid and binding obligations of the Investor,
enforceable in accordance with their respective terms, except to the extent
that (a) the enforceability hereof or thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws from time to time in
effect and affecting the rights of creditors generally, (b) the
enforceability hereof or thereof is subject to general principles of
equity, or (c) the indemnification provisions hereof or thereof may be held
to be in violation of public policy.
(iii) The Investor will promptly forward copies of any and all due
diligence questionnaires compiled by the Investor to the Placement Agent.
3
5. CERTAIN COVENANTS AND AGREEMENTS OF THE COMPANY.
The Company covenants and agrees at its expense and without any expense to
the Placement Agent as follows:
A. To advise the Placement Agent of any material adverse change in the
Company's financial condition, prospects or business or of any development
materially affecting the Company or rendering untrue or misleading any
material statement in the Offering Materials occurring at any time as soon
as the Company is either informed or becomes aware thereof.
B. To use its commercially reasonable efforts to cause the Common Stock
issuable in connection with the Equity Line of Credit to be qualified or
registered for sale on terms consistent with those stated in the
Registration Rights Agreement and under the securities laws of such
jurisdictions as the Placement Agent and the Investor shall reasonably
request. Qualification, registration and exemption charges and fees shall
be at the sole cost and expense of the Company.
C. Upon written request, to provide and continue to provide the Placement
Agent and the Investor copies of all quarterly financial statements and
audited annual financial statements prepared by or on behalf of the
Company, other reports prepared by or on behalf of the Company for public
disclosure and all documents delivered to the Company's stockholders.
D. To deliver, during the registration period of the Equity Line Credit
Agreement, to the Placement Agent upon the Placement Agent's request,
(i) within forty five (45) days, a statement of its income for each such
quarterly period, and its balance sheet and a statement of changes in
stockholders' equity as of the end of such quarterly period, all in
reasonable detail, certified by its principal financial or accounting
officer;
(ii) within ninety (90) days after the close of each fiscal year, its
balance sheet as of the close of such fiscal year, together with a
statement of income, a statement of changes in stockholders' equity and a
statement of cash flow for such fiscal year, such balance sheet, statement
of income, statement of changes in stockholders' equity and statement of
cash flow to be in reasonable detail and accompanied by a copy of the
certificate or report thereon of independent auditors if audited financial
statements are prepared; and
(iii) a copy of all documents, reports and information furnished to its
stockholders at the time that such documents, reports and information are
furnished to its stockholders.
E. To comply with the terms of the Offering Materials.
F. To ensure that any transactions between or among the Company, or any of its
officers, directors and affiliates be on terms and conditions that are no
less favorable to the Company, than the terms and conditions that would be
available in an "arm's length" transaction with an independent third party.
6. INDEMNIFICATION.
A. The Company hereby agrees that it will indemnify and hold the Placement
Agent and each officer, director, shareholder, employee or representative
of the Placement Agent and each person controlling, controlled by or under
4
common control with the Placement Agent within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act or the SEC's Rules and
Regulations promulgated there under (the "Rules and Regulations"), harmless
from and against any and all loss, claim, damage, liability, cost or
expense whatsoever (including, but not limited to, any and all reasonable
legal fees and other expenses and disbursements incurred in connection with
investigating, preparing to defend or defending any action, suit or
proceeding, including any inquiry or investigation, commenced or
threatened, or any claim whatsoever or in appearing or preparing for
appearance as a witness in any action, suit or proceeding, including any
inquiry, investigation or pretrial proceeding such as a deposition) to
which the Placement Agent or such indemnified person of the Placement Agent
may become subject under the 1933 Act, the 1934 Act, the Rules and
Regulations, or any other federal or state law or regulation, common law or
otherwise, arising out of or based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in (a) Section 4 of this
Agreement, (b) the Offering Materials (except those written statements
relating to the Placement Agent given by an indemnified person for
inclusion therein), (c) any application or other document or written
communication executed by the Company or based upon written information
furnished by the Company filed in any jurisdiction in order to qualify the
Common Stock under the securities laws thereof, or any state securities
commission or agency; (ii) the omission or alleged omission from documents
described in clauses (a), (b) or (c) above of a material fact required to
be stated therein or necessary to make the statements therein not
misleading; or (iii) the breach of any representation, warranty, covenant
or agreement made by the Company in this Agreement. The Company further
agrees that upon demand by an indemnified person, at any time or from time
to time, it will promptly reimburse such indemnified person for any loss,
claim, damage, liability, cost or expense actually and reasonably paid by
the indemnified person as to which the Company has indemnified such person
pursuant hereto. Notwithstanding the foregoing provisions of this Paragraph
6(A), any such payment or reimbursement by the Company of fees, expenses or
disbursements incurred by an indemnified person in any proceeding in which
a final judgment by a court of competent jurisdiction (after all appeals or
the expiration of time to appeal) is entered against the Placement Agent or
such indemnified person based upon specific finding of fact that the
Placement Agent or such indemnified person's gross negligence or willful
misfeasance will be promptly repaid to the Company.
B. The Placement Agent hereby agrees that it will indemnify and hold the
Company and each officer, director, shareholder, employee or representative
of the Company, and each person controlling, controlled by or under common
control with the Company within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act or the Rules and Regulations, harmless from
and against any and all loss, claim, damage, liability, cost or expense
whatsoever (including, but not limited to, any and all reasonable legal
fees and other expenses and disbursements incurred in connection with
investigating, preparing to defend or defending any action, suit or
proceeding, including any inquiry or investigation, commenced or
threatened, or any claim whatsoever or in appearing or preparing for
appearance as a witness in any action, suit or proceeding, including any
inquiry, investigation or pretrial proceeding such as a deposition) to
which the Company or such indemnified person of the Company may become
subject under the 1933 Act, the 1934 Act, the Rules and Regulations, or any
other federal or state law or regulation, common law or otherwise, arising
out of or based upon (i) the conduct of the Placement Agent or its
officers, employees or representatives in its acting as Placement Agent for
the Offering or (ii) the material breach of any representation, warranty,
covenant or agreement made by the Placement Agent in this Agreement (iii)
any false or misleading information provided to the Company by one of the
Placement Agent's indemnified persons.
5
C. The Investor hereby agrees that it will indemnify and hold the Placement
Agent and each officer, director, shareholder, employee or representative
of the Placement Agent, and each person controlling, controlled by or under
common control with the Placement Agent within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act or the Rules and Regulations,
harmless from and against any and all loss, claim, damage, liability, cost
or expense whatsoever (including, but not limited to, any and all
reasonable legal fees and other expenses and disbursements incurred in
connection with investigating, preparing to defend or defending any action,
suit or proceeding, including any inquiry or investigation, commenced or
threatened, or any claim whatsoever or in appearing or preparing for
appearance as a witness in any action, suit or proceeding, including any
inquiry, investigation or pretrial proceeding such as a deposition) to
which the Placement Agent or such indemnified person of the Placement Agent
may become subject under the 1933 Act, the 1934 Act, the Rules and
Regulations, or any other federal or state law or regulation, common law or
otherwise, arising out of or based upon (i) the conduct of the Investor or
its officers, employees or representatives in its acting as the Investor
for the Offering or (ii) the material breach of any representation,
warranty, covenant or agreement made by the Investor in the Offering
Materials (iii) any false or misleading information provided to the
Placement Agent by one of the Investor's indemnified persons.
D. The Placement Agent hereby agrees that it will indemnify and hold the
Investor and each officer, director, shareholder, employee or
representative of the Investor, and each person controlling, controlled by
or under common control with the Investor within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act or the Rules and Regulations,
harmless from and against any and all loss, claim, damage, liability, cost
or expense whatsoever (including, but not limited to, any and all
reasonable legal fees and other expenses and disbursements incurred in
connection with investigating, preparing to defend or defending any action,
suit or proceeding, including any inquiry or investigation, commenced or
threatened, or any claim whatsoever or in appearing or preparing for
appearance as a witness in any action, suit or proceeding, including any
inquiry, investigation or pretrial proceeding such as a deposition) to
which the Investor or such indemnified person of the Investor may become
subject under the 1933 Act, the 1934 Act, the Rules and Regulations, or any
other federal or state law or regulation, common law or otherwise, arising
out of or based upon (i) the conduct of the Placement Agent or its
officers, employees or representatives in its acting as the Placement Agent
for the Offering or (ii) the material breach of any representation,
warranty, covenant or agreement made by the Placement Agent in this
Agreement (iii) any false or misleading information provided to the
Investor by one of the Placement Agent's indemnified persons.
E. Promptly after receipt by an indemnified party of notice of commencement of
any action covered by Section 6(A), (B), (C) or (D), the party to be
indemnified shall, within five (5) business days, notify the indemnifying
party of the commencement thereof; the omission by one (1) indemnified
party to so notify the indemnifying party shall not relieve the
indemnifying party of its obligation to indemnify any other indemnified
party that has given such notice and shall not relieve the indemnifying
party of any liability outside of this indemnification if not materially
prejudiced thereby. In the event that any action is brought against the
indemnified party, the indemnifying party will be entitled to participate
therein and, to the extent it may desire, to assume and control the defense
thereof with counsel chosen by it which is reasonably acceptable to the
indemnified party. After notice from the indemnifying party to such
6
indemnified party of its election to so assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under such
Section 6(A), (B), (C), or (D) for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof,
but the indemnified party may, at its own expense, participate in such
defense by counsel chosen by it, without, however, impairing the
indemnifying party's control of the defense. Subject to the proviso of this
sentence and notwithstanding any other statement to the contrary contained
herein, the indemnified party or parties shall have the right to choose its
or their own counsel and control the defense of any action, all at the
expense of the indemnifying party if, (i) the employment of such counsel
shall have been authorized in writing by the indemnifying party in
connection with the defense of such action at the expense of the
indemnifying party, or (ii) the indemnifying party shall not have employed
counsel reasonably satisfactory to such indemnified party to have charge of
the defense of such action within a reasonable time after notice of
commencement of the action, or (iii) such indemnified party or parties
shall have reasonably concluded that there may be defenses available to it
or them which are different from or additional to those available to one or
all of the indemnifying parties (in which case the indemnifying parties
shall not have the right to direct the defense of such action on behalf of
the indemnified party or parties), in any of which events such fees and
expenses of one additional counsel shall be borne by the indemnifying
party; provided, however, that the indemnifying party shall not, in
connection with any one action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstance, be liable for the reasonable fees and expenses
of more than one separate firm of attorneys at any time for all such
indemnified parties. No settlement of any action or proceeding against an
indemnified party shall be made without the consent of the indemnifying
party.
F. In order to provide for just and equitable contribution in circumstances in
which the indemnification provided for in Section 6(A) or 7(B) is due in
accordance with its terms but is for any reason held by a court to be
unavailable on grounds of policy or otherwise, the Company and the
Placement Agent shall contribute to the aggregate losses, claims, damages
and liabilities (including legal or other expenses reasonably incurred in
connection with the investigation or defense of same) which the other may
incur in such proportion so that the Placement Agent shall be responsible
for such percent of the aggregate of such losses, claims, damages and
liabilities as shall equal the percentage of the gross proceeds paid to the
Placement Agent and the Company shall be responsible for the balance;
provided, however, that no person guilty of fraudulent misrepresentation
within the meaning of Section 11(f) of the 1933 Act shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 6(F), any person
controlling, controlled by or under common control with the Placement
Agent, or any partner, director, officer, employee, representative or any
agent of any thereof, shall have the same rights to contribution as the
Placement Agent and each person controlling, controlled by or under common
control with the Company within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act and each officer of the Company and each
director of the Company shall have the same rights to contribution as the
Company. Any party entitled to contribution will, promptly after receipt of
notice of commencement of any action, suit or proceeding against such party
in respect of which a claim for contribution may be made against the other
party under this Section 6(D), notify such party from whom contribution may
be sought, but the omission to so notify such party shall not relieve the
party from whom contribution may be sought from any obligation they may
have hereunder or otherwise if the party from whom contribution may be
sought is not materially prejudiced thereby. The indemnity and contribution
agreements contained in this Section 6 shall remain operative and in full
force and effect regardless of any investigation made by or on behalf of
any indemnified person or any termination of this Agreement.
7
7. PAYMENT OF EXPENSES. The Company hereby agrees to bear all of the expenses
in connection with the Offering, including, but not limited to the
following: filing fees, printing and duplicating costs, advertisements,
postage and mailing expenses with respect to the transmission of Offering
Materials, registrar and transfer agent fees, and expenses, fees of the
Company's counsel and accountants, issue and transfer taxes, if any.
8. CONDITIONS OF CLOSING. The Closing shall be held at the offices of the
Investor or its counsel. The obligations of the Placement Agent hereunder
shall be subject to the continuing accuracy of the representations and
warranties of the Company herein as of the date hereof and as of the Date
of Closing (the "Closing Date") with respect to the Company as if it had
been made on and as of such Closing Date; the accuracy on and as of the
Closing Date of the statements of the officers of the Company made pursuant
to the provisions hereof; and the performance by the Company on and as of
the Closing Date of its covenants and obligations hereunder and to the
following further conditions:
A. Upon the effectiveness of a registration statement covering the Investment
Agreement, the Placement Agent shall receive the opinion of Counsel to the
Company, dated as of the date thereof, which opinion shall be in form and
substance reasonably satisfactory to the Investor, their counsel and the
Placement Agent.
B. At or prior to the Closing, the Placement Agent shall have been furnished
such documents, certificates and opinions as it may reasonably require for
the purpose of enabling them to review or pass upon the matters referred to
in this Agreement and the Offering Materials, or in order to evidence the
accuracy, completeness or satisfaction of any of the representations,
warranties or conditions herein contained.
C. At and prior to the Closing, (i) there shall have been no material adverse
change nor development involving a prospective change in the condition or
prospects or the business activities, financial or otherwise, of the
Company from the latest dates as of which such condition is set forth in
the Offering Materials; (ii) there shall have been no transaction, not in
the ordinary course of business except the transactions pursuant to the
Securities Purchase Agreement entered into by the Company which has not
been disclosed in the Offering Materials or to the Placement Agent in
writing; (iii) except as set forth in the Offering Materials, the Company
shall not be in default under any provision of any instrument relating to
any outstanding indebtedness for which a waiver or extension has not been
otherwise received; (iv) except as set forth in the Offering Materials, the
Company shall not have issued any securities (other than those to be issued
as provided in the Offering Materials) or declared or paid any dividend or
made any distribution of its capital stock of any class and there shall not
have been any change in the indebtedness (long or short term) or
liabilities or obligations of the Company (contingent or otherwise) and
trade payable debt; (v) no material amount of the assets of the Company
shall have been pledged or mortgaged, except as indicated in the Offering
Materials; and (v) no action, suit or proceeding, at law or in equity,
against the Company or affecting any of its properties or businesses shall
be pending or threatened before or by any court or federal or state
commission, board or other administrative agency, domestic or foreign,
wherein an unfavorable decision, ruling or finding could materially
adversely affect the businesses, prospects or financial condition or income
of the Company, except as set forth in the Offering Materials. D. At
8
Closing, the Placement Agent shall receive a certificate of the Company
signed by an executive officer and chief financial officer, dated as of the
applicable Closing, to the effect that the conditions set forth in
subparagraph (C) above have been satisfied and that, as of the applicable
closing, the representations and warranties of the Company set forth herein
are true and correct.
10. PLACEMENT AGENT FEE: The Company agrees to pay Boston First Capital, LLC,
("BFC") a registered broker dealer, 1% of the Put Amount on each draw as a
fee.
11. MISCELLANEOUS. A. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all
which shall be deemed to be one and the same instrument. B. Any notice
required or permitted to be given hereunder shall be given in writing and
shall be deemed effective when deposited in the United States mail, postage
prepaid, or when received if personally delivered or faxed (upon
confirmation of receipt received by the sending party), addressed as
follows:
9
If to Placement Agent, to:
Boston First Capital, LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, CEO
Tel: ▇▇▇.▇▇▇.▇▇▇▇
Fax: ▇▇▇.▇▇▇.▇▇▇▇
If to the Company, to:
Cal-Bay International, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Tel: ▇▇▇.▇▇▇.▇▇▇▇
Fax: ▇▇▇.▇▇▇.▇▇▇▇
With a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Attorney at Law
▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Investor:
Dutchess Private Equities fund, LP
▇▇▇ ▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address of which written notice is given to the others.
C. This Agreement shall be governed by and construed in all respects under the
laws of the State of Massachusetts without reference to its conflict of
laws rules or principles. Any suit, action, proceeding or litigation
arising out of or relating to this Agreement shall be brought and
prosecuted in such federal or state court or courts located within the
Commonwealth of Massachusetts as provided by law. The parties hereby
irrevocably and unconditionally consent to the jurisdiction of each such
court or courts located within the Commonwealth of Massachusetts and to
service of process by registered or certified mail, return receipt
requested, or by any other manner provided by applicable law, and hereby
irrevocably and unconditionally waive any right to claim that any suit,
action, proceeding or litigation so commenced has been commenced in an
inconvenient forum.
D. This Agreement and the other agreements referenced herein contain the
entire understanding between the parties hereto and may not be modified or
amended except by a writing duly signed by the party against whom
enforcement of the modification or amendment is sought.
E. If any provision of this Agreement shall be held to be invalid or
unenforceable, such invalidity or unenforceability shall not affect any
other provision of this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
10
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first
written above.
COMPANY:
Cal-Bay International, Inc.
By: /s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Financial Officer, Vice President
PLACEMENT AGENT:
Boston First Capital, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Executive Officer
INVESTOR:
DUTCHESS PRIVATE EQUITIES FUND, L.P.
BY IT'S GENERAL PARTNER DUTCHESS
CAPITAL MANAGEMENT, LLC
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: A Managing Member
11