REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated as of the 14th day of March, 2006
(this "Agreement") by and among CAL-BAY INTERNATIONAL, INC. a Nevada
corporation (the "Corporation"), PROFESSIONAL TRADERS FUND, LLC and
PROFESSIONAL OFFSHORE OPPORTUNITY FUND LIMITED (together the "Investor").
W I T N E S S E T H :
WHEREAS, the Investor owns or has the right to purchase or otherwise acquire
shares of the Common Stock (as hereinafter defined) of the Corporation; and
WHEREAS, the Corporation and the Investor deem it to be in their
respective best interest to set forth the rights of the Investor in connection
with the registration of such Common Stock under applicable securities laws;and
WHEREAS, the execution and delivery of this Agreement is a condition to
the loan to be made by the Investor to the Corporation on the date hereof;
NOW, THEREFORE, in consideration of the premises and mutual covenants and
obligations hereinafter set forth, the Corporation and the Investor hereby
agree as follows:
Section 1. Definitions.
As used in this Agreement the following terms shall have thefollowing meanings:
(a) "Commission" means the Securities and Exchange Commission or any other
Federal agency at the time administering the Securities Act.
(b) "Common Stock" means the common stock of the Corporation.
(c) "Exchange Act" means the Securities Exchange Act of 1934 or any
successor Federal statute, and the rules and regulations of the Commission
promulgated thereunder, all as the same shall be in effect from time to time.
(d) "Investor" means Professional Traders Fund, LLC and Professional
Offshore Opportunity Fund Limited and each additional person who shallexecute a
counterpart signature page hereto, and includes any successor to,or assignee or
transferee of, any such person who or which agrees in writing to be treated as
an Investor hereunder and to be bound by the terms and comply with all
applicable provisions hereof.
(e) "Notes" means the Senior Secured Convertible Promissory Notes in the
aggregate principal amount of $1,626,458.33 dated the date hereof issued by the
Corporation to each Investor.
(f) "Other Shares" means at any time those shares of Common Stock which do
not constitute Primary Shares or Registrable Shares.
(g) "Primary Shares" means at any time the authorized but unissued sharesof
Common Stock held by the Corporation in its treasury.
(h) "Registrable Shares" means shares of Common Stock now or hereafter held
by the Investor, whether acquired pursuant to or in connection with the
Warrants,the Notes or any other agreements in connection with this transaction.
As to any particular Registrable Shares, once issued, such Registrable Shares
shall cease to be Registrable Shares when (i) they have been registered under
the Securities Act, the registration statement in connection therewith has been
declared effective and they have been disposed of pursuant to such effective
registration statement, (ii) they are eligible to be sold or distributed
pursuant to Rule 144 within any consecutive three month period (including,
without limitation, Rule 144(k)) without volume limitations, or (iii) they
shall have ceased to be outstanding.
(i) "Rule 144" means Rule 144 promulgated under the Securities Act or any
successor rule thereto.
(j) "Securities Act" means the Securities Act of 1933 or any successor
Federal statute,and the rules and regulations of the Commission thereunder,all
as the same shall be in effect from time to time.
(k) "Warrants" shall mean the Warrants dated the date hereof issued by the
Corporation in favor of the Investor.
Section 2. Registration.
(a) Required Registration. Not later than April 14, 2006 (the "Filing
Deadline"), the Corporation shall file a registration statement under the
Securities Act and under any applicable state securities laws to effect the
registration of the Registrable Shares under the Securities Act and such laws
and shall cause such registration to become effective no later than July 14,
2006 (the "Registration Deadline"). For each thirty (30) day period after the
Filing Deadline during which no required filing has been made and for each
thirty (30) day period after the Registration Deadline during which any
Registrable Shares remain uncovered by an effective registration statement, the
Corporation shall be obligated to pay to the Investor, and shall pay to the
Investor on the thirtieth day of each such period,a cash fee equal to 2% of the
aggregate principal amount outstanding under the Notes.
(b) Piggyback Registration. Without limiting the provisions of Section 2(a)
hereof, if the Corporation at any time proposes for any reason to register
Primary Shares, Registrable Shares or Other Shares under the Securities Act
(other than on Form S-4 or Form S-8 promulgated under the Securities Act or any
successor forms thereto), it shall give written notice to the Investor of its
intention so to register such Primary Shares,Registrable Shares or Other Shares
at least 30 days before the initial filing of such registration statement and,
upon the written request, delivered to the Corporation within 20 days after
delivery of any such notice by the Corporation, of the Investor to include in
such registration Registrable Shares (which request shall specify the number of
Registrable Shares proposed to be included in such registration and shall state
that such Investor desire to sell such Registrable Shares in the public
securities markets), the Corporation shall cause all such Registrable Shares to
be included in such registration on the same terms and conditions as the
securities otherwise being sold in such registration; provided, however,that if
the managing underwriter advises the Corporation that the inclusion of all
Registrable Shares requested to be included in such registration would
interfere with the successful marketing (including pricing) of the Primary
Shares, Registrable Shares or Other Shares proposed to be registered by the
Corporation, then the number of Primary Shares, Registrable Shares and Other
Shares proposed to be included in such registration shall be included in the
following order:
(c) if the Corporation proposes to register Primary Shares, or Primary
Shares and Other Shares:
(i) First, the Primary Shares; and
(ii) Second,the Registrable Shares and Other Shares requested to be included
in such registration (or, if necessary,such Registrable Shares and Other Shares
pro rata among the holders thereof based upon the number of Registrable Shares
and Other Shares requested to be registered by each such holder); or
(d) if the Corporation proposes to register Other Shares pursuant to a
request for registration by the holders of such Other Shares (other than
pursuant to Section 2 hereof):
(i) First,the Other Shares held by the parties demanding such registration;
and
(ii) Second, the Registrable Shares and Other Shares (other than shares
registered pursuant to Section 2(b)(1) hereof)requested to be registered by the
holders hereof (or, if necessary, pro rata among the holders thereof based on
the number of Registrable Shares and Other Shares requested to be registered by
such holders).
Section 3. Preparation and Filing.
If and whenever the Corporation is under anobligation pursuant to theprovisions
of this Agreement to effect the registration of any Registrable Shares, the
Corporation shall as expeditiously as practicable:
(a) prepare and file with the Commission a registration statement with
respect to such Registrable Shares and use its best efforts to cause such
registration statement to become effective and, upon the request of the holders
of a majority of the Registrable Shares being registered thereunder, keep such
registration statement effective for a period of up to one hundred twenty (120)
days or until the distribution contemplated in the registration statement has
been completed; provided, however, that (i) such 120-day period shall be
extended for a period of time equal to the period the holders of Registrable
Shares refrain from selling any securities included in such registration at the
request of an underwriter of Common Stock (or other securities) of the Company;
and (ii) in the case of any registration of Registrable Securities on Form S-3
which are intended to be offered on a continuous or delayed basis, such 120-day
period shall be extended, if necessary, to keep the registration statement
effective until all such Registrable Shares are sold, provided that Rule 415,or
any successor rule under the Securities Act,permits an offering on a continuous
or delayed basis; and provided further that applicable rules under the
Securities Act governing the obligation to file a post-effective amendment
permit (in lieu of filing a post-effective amendment which (I) includes any
prospectus required by Section 10(a)(3) of the Securities Act or (II) reflects
facts or events representing a material or fundamental change in theinformation
set forth in the registration statement) the incorporation by reference, in the
registration statement, of information required to be included in (I) and (II)
above to be contained in periodic reports filed pursuant to Section 13 or
15(d) of the Exchange Act.
(b) prepare and file with the Commission such amendments and supplements to
such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered bysuch
registration statement.
(c) furnish, at least five business days before filing a registration
statement that registers such Registrable Shares, a prospectus relating thereto
or any amendments or supplements relating to such a registration statement or
prospectus, to one counsel selected by the Investor (the "Investor's Counsel"),
copies of all such documents proposed to be filed(it being understood that such
five-business-day period need not apply to successive drafts of the same
document proposed to be filed so long as such successive drafts are supplied to
the Investor's Counsel in advance of the proposed filing by a period of time
that is customary and reasonable under the circumstances);
(d) notify in writing the Investor's Counsel promptly (i) of the receipt by
the Corporation of any notification with respect to any comments by the
Commission with respect to such registration statement or prospectus or any
amendment or supplement thereto or any request by the Commission for the
amending or supplementing thereof or for additional information with respect
thereto,(ii) of the receipt by the Corporation of any notification with respect
to the issuance by the Commission of any stop ordersuspending the effectiveness
of such registration statement or prospectus or any amendment or supplement
thereto or the initiation or threatening of any proceeding for that purpose and
(iii) of the receipt by the Corporation of any notification with respect to the
suspension of the qualification of such Registrable Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purposes;
(e) use its best efforts to register or qualify such Registrable Shares
under such other securities or blue sky laws of such jurisdictions as the
Investors reasonably request and do any and all other acts and things which may
be reasonably necessary or advisable to enable the Investors to consummate the
disposition in such jurisdictions of the Registrable Shares owned by the
Investors; provided, however, that the Corporation will not be required to
qualify generally to do business, subject itself to general taxation or consent
to general service of process in any jurisdiction where it would not otherwise
be required to do so but for this paragraph (e) or to provide any material
undertaking or make any changes in its By-laws or Certificate of Incorporation
which the Board of Directors determines to be contrary to the best interests of
the Corporation or to modify any of its contractual relationships thenexisting;
(f) furnish to the Investors holding such Registrable Shares such number of
copies of a summary prospectus, if any, or other prospectus, including a
preliminary prospectus, in conformity with the requirements of the Securities
Act, and such other documents as such Investors may reasonably request in order
to facilitate the public sale or other disposition of such Registrable Shares;
(g) without limiting subsection (e) above, use its best efforts to cause
such Registrable Shares to be registered with or approved by such other
governmental agencies or authorities as may be necessary by virtue of the
business and operations of the Corporation to enable the Investors holding such
Registrable Shares to consummate the disposition of such Registrable Shares;
(h) notify the Investors holding such Registrable Shares on a timely basis
at any time when a prospectus relating to such Registrable Shares is requiredto
be delivered under the Securities Act withinthe appropriate period mentioned in
subparagraph (a) of this Section 3,of the happening of any event as a result of
which the prospectus included in such registration statement,as then in effect,
includes an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing and, at the request
of the Investors, prepare and furnish to such Investors a reasonable number of
copies of a supplement to or an amendment of such prospectus as may benecessary
so that, as thereafter delivered to the offerees of such shares,such prospectus
shall not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing;
(i) subject to the execution of confidentiality agreements in form and
substance satisfactory to the Corporation,make available upon reasonable notice
and during normal business hours, for inspection by the Investors holding such
Registrable Shares,any underwriter participating in any disposition pursuant to
such registration statement and any attorney,accountant or other agent retained
by the Investors or underwriter (collectively, the "Inspectors"), all pertinent
financial and other records,pertinent corporate documents and properties of the
Corporation (collectively, the "Records"), as shall be reasonably necessary to
enable them to exercise their due diligence responsibility, and cause the
Corporation's officers, directors and employees to supply all information
(together with the Records, the "Information") reasonably requested by any such
Inspector in connection with such registration statement. Any of the
Information which the Corporation determines in good faith to be confidential
and of which determination the Inspectors are so notified, shall not be
disclosed by the Inspectors unless (i) the disclosure of such Information is
necessary to avoid or correct a misstatement or an omission in the registration
statement, (ii) the release of such Information is ordered pursuant to a
subpoena or other order from a court of competent jurisdiction or (iii) such
Information has been made generally available to the public;the Investors agree
that they will,upon learning that disclosure of such information is sought in a
court of competent jurisdiction, give notice to the Corporation and allow the
Corporation, at the Corporation's expense, to undertake appropriate action to
prevent disclosure of the Information deemed confidential;
(j) use its best efforts to obtain from its independent certified public
accountants "cold comfort" letters addressed to the Corporation and any selling
shareholders in customary form and at customary times and covering matters of
the type customarily covered by cold comfort benefits;
(k) use its best efforts to obtain from its counsel an opinion or opinions
in customary form addressed to the Corporation and any selling shareholders;
(l) in the event of any underwritten public offering,enter into and perform
its obligations under an underwriting agreement, in usual and customary form,
with the managing underwriter of such offering. Each holder of Registrable
Shares participating in such underwriting shall also enter into and perform its
obligations under such an agreement
(m) provide a transfer agent and registrar(which may be the same entity and
which may be the Corporation)for such Registrable Shares and a CUSIP number for
all such Registrable Shares, in each case not later than the effective date of
such registration;
(n) issue to any underwriter towhich the Investors holding such Registrable
Shares may sell shares in such offering certificates evidencing such
Registrable Shares;
(o) list such Registrable Shares on any national securities exchange on
which any shares of the Common Stock are listed or, if the Common Stock is not
listed on a national securities exchange, use its best efforts to qualify such
Registrable Shares for inclusion on the automated quotation system of the
National Association of Securities Dealers, Inc. (the "NASD"), or such other
national securities exchange as the holders of a majority of such Registrable
Shares shall reasonably request;
(p) otherwise use its best efforts to comply with all applicable rules and
regulations of the Commission and make available to its security holders, as
soon as reasonably practicable, earnings statements (which need not be audited)
covering a period of 12 months beginning within three months afterthe effective
date of the registration statement, which earnings statements shall satisfy the
provisions of Section 11 (a) of the Securities Act; and
(q) subject to all the other provisions of this Agreement, use its best
efforts to take all other steps accessory to effect the registration of such
Registrable Shares contemplated hereby.
Each holder of the Registrable Shares, upon receipt of any notice from the
Corporation of any event of the kind described to Section 3(h) hereof, shall
forthwith discontinue disposition of the Registrable Shares pursuant to the
registration statement covering such Registrable Shares until such holders'
receipt of the copies of the supplemented or amended prospectus contemplated by
Section 3(h) hereof, and, if so directed by the Corporation, such holder shall
deliver to the Corporation all copies, other than permanent file copies then in
such holder's possession, of the prospectus covering such Registrable Shares at
the time of receipt of such notice.
Section 4. Expenses
All expenses (other than underwriting discounts and commissions relating to the
Registrable Shares, as provided in the last sentence of this Section 4)incurred
by the Corporation in complying with Section 3, including, without limitation,
all registration and filing fees(including all expenses incident to filing with
the NASD), fees and expenses of complying with securities and blue sky laws,
printing expenses, fees and expenses of the Corporation's counsel and
accountants shall be paid by the Corporation; provided, however, that all
underwriting discounts and selling commissions applicable to the Registrable
Shares and Other Shares shall be borne by the holders selling such Registrable
Shares and Other Shares, in proportion to the number of Registrable Shares and
Other Shares sold by each such holder.
Section 5. Indemnification.
(a) In connection with any registration of any Registrable Shares under the
Securities Act pursuant to this Agreement, the Corporation shall indemnify and
hold harmless the holders of Registrable Shares, each underwriter,broker or any
other person acting on behalf of the holders of Registrable Shares and each
other person, if any, who controls any of the foregoing persons within the
meaning of the Securities Act against any losses,claims,damages or liabilities,
joint or several (or actions in respect thereof), to which any of the foregoing
persons may become subject under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or allegedly untruestatement
of a material fact contained in the registration statement under which such
Registrable Shares were registered under the Securities Act,the Exchange Act or
any preliminary prospectus or final prospectus contained therein or otherwise
filed with the Commission, any amendment or supplement thereto or any document
incident to registration or qualification of any Registrable Shares, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading or, with respect to any prospectus,necessary to make the
statements therein in light of the circumstances under which they were made not
misleading, or any violation by the Corporation of the Securities Act or state
securities or blue sky laws applicable to the Corporation and relating toaction
or inaction required of the Corporation in connection with such registration or
qualification under such state securities or blue sky laws; and shall reimburse
the holders of Registrable Shares, such underwriter, such broker or such other
person acting on behalf of the holders of Registrable Shares and each such
controlling person for any legal or other expenses reasonably incurred byany of
them in connection with investigating or defending any such loss, claim,damage,
liability or action; provided, however, that the Corporation shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action (including any legal or other expenses incurred) arises out
of or is based upon an untrue statement or allegedly untrue statement or
omission or alleged omission made in said registration statement, preliminary
prospectus, final prospectus, amendment supplement or document incident to
registration or qualification of any Registrable Shares in reliance upon and in
conformity with written information furnished to the Corporation through an
instrument duly executed by the holders of Registrable Shares or their counsel
or underwriter specifically for use in the preparation thereof; provided
further, however, that the foregoing indemnity agreement is subject to the
condition that, insofar as it relates to any untrue statement, omission or
alleged omission made in any preliminary prospectus but eliminated or remedied
in the final prospectus (filed pursuant to Rule 424 of the Securities Act),
such indemnity agreement shall not inure to the benefit of any Investor,
underwriter, broker or other person acting on behalf of holders of the
Restricted Shares from whom the person asserting any loss, claim, damage,
liability or expense purchased the Restricted Shares which are the subject
thereof, if a copy of such final prospectus had been made available to such
person and such Investor, underwriter, broker or other person acting on behalf
of holders of the Registrable Shares and such final prospectus was not
delivered to such person with or prior to the written confirmation of the sale
of such Registrable Shares to such person.
(b) In connection with any registration of Registrable Shares under the
Securities Act pursuant to this Agreement, each holder of Registrable Shares
shall severally and not jointly indemnify and hold harmless (in the same manner
and to the same extent as set forth in the preceding paragraph of this Section
5) the Corporation, each director of the Corporation, each officer of the
Corporation who shall sign such registration statement, each underwriter,broker
or other person acting on behalf of the holders of Registrable Shares and each
person who controls any of the foregoing persons within the meaning of the
Securities Act with respect to any statement or omission from such registration
statement, any preliminary prospectus or final prospectus contained therein or
otherwise filed with the Commission, any amendment or supplement thereto or any
document incident to registration or qualification of any Registrable Shares,if
such statement or omission was made in reliance upon and in conformity with
written information furnished to the Corporation or such underwriter
specifically for use in connection with the preparation of such registration
statement, preliminary prospectus, final prospectus, amendment, supplement or
document; provided, however, that the maximum amount of liability in respect of
such indemnification shall be limited,in the case of each Seller of Registrable
Shares, to an amount equal to the net proceeds actually received by such Seller
from the sale of Registrable Shares effected pursuant to such registration.
(c) Promptly after receipt by an indemnified party of notice of the
commencement of any action involving a claim referred to in the preceding
paragraphs of this Section 5, such indemnified party will,if a claim in respect
thereof is made against an indemnifying party,give written notice to the latter
of the commencement of such action. The failure of any indemnified party to
notify an indemnifying party of any such action shall not (unless such failure
shall have a material adverse effect on the indemnifying party) relieve the
indemnified party on account of this Section 5. In case any such action is
brought against an indemnified party,the indemnifying party will be entitled to
participate in and to assume the defense thereof, jointly with any other
indemnifying party similarly notified to the extent that it may wish, with
counsel reasonably satisfactory to such indemnified party,and after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be responsible for any
legal or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof; provided, however, that if any indemnified
party shall have reasonably concluded that there may be one or more legal or
equitable defenses available to such indemnified party which are additional to
or conflict with those available to the indemnifying party, or that such claim
or litigation involves or could have an effect upon matters beyond the scope of
the indemnity agreement provided in this Section 5,the indemnifying party shall
not have the right to assume the defense of such action on behalf of such
indemnified party (but shall have the right to participate therein with counsel
of its choice) and such indemnifying party shall reimburse such indemnified
party and any person controlling such indemnified party for that portion of the
fees and expenses of any counsel retained by the indemnified party which is
reasonably related to the matters covered by the indemnity agreement providedin
this Section 5. If the indemnifying party is not entitled to,or elects not to,
assume the defense of a claim, it will not be obligated to pay the fees and
expenses of more than one counsel with respect to such claim.
(d) If the indemnification provided for in this Section 5 is held by acourt
of competent jurisdiction to be unavailable to an indemnified partywith respect
to any loss, claim, damage, liability or action referred to herein, then the
indemnifying party, in lieu of indemnifying such indemnified party hereunder,
shall contribute to the amounts paid or payable by such indemnified party as a
result of such loss, claim, damage,liability or action in such proportion as is
appropriate to reflect the relative fault of the indemnifying party on the one
hand and of the indemnified party on the other in connection with thestatements
or omissions which resulted in such loss, claim, damage, liability or action as
well as any other relevant equitable considerations. The relative fault of the
indemnifying party and of the indemnified party shall bedetermined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the indemnifying party or by the indemnified
party and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. In no event shall
contribution obligations of this Section 5(b) exceed the net profits from the
offering received by such holder after deducting underwriting fees, discounts
and commissions. No person guilty of fraudulent misrepresentation shall be
entitled to contribution from any person.
Section 6. Underwriting Agreement.
Notwithstanding the provisions of Sections 2, 3, 4 and 5,to the extent that the
Investor shall enter into an underwriting or similar agreement, which agreement
contains provisions covering one or more issues addressed in such Sections, the
provisions contained in such agreement addressing such issue or issues shall
control; provided, however, that any such agreement to which the Corporation is
not a party shall not be binding upon the Xxxxxxxxxxx.Xx holder may participate
in any underwritten registration hereunder unless such holder(a) agrees to such
holder's securities on the basis provided in any underwriting arrangements and
(b) completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably and customarily required
under the terms of such underwriting arrangements.
Section 7. Information by Holder.
The Investor shall furnish to the Corporation such writteninformation regarding
the Investors and the distribution proposed by the Investor as the Corporation
may reasonably request in writing and as shall be reasonably required in
connection with any registration, qualification or compliance referred to in
this Agreement.
Section 8. Exchange Act Compliance.
With a view to making available to the Investors the benefits of Rule 144
promulgated under the Act and any other rule or regulation of theCommission may
at any time permit an Investor to sell securities of the Corporation to the
public without registration or pursuant to a registration on Form S-3, the
Company agrees,on and after becoming subject to reporting obligations under the
federal securities laws, to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144, at all times after ninety (90) days after
the effective date of the first registration statement filed by the Corporation
for the offering of its securities to the general public;
(b) file with the Commission in a timely manner all reports and other
documents required of the Corporation under the Securities Act and the Exchange
Act; and
(c) furnish to any Investor, so long as the Investor owns any Registrable
Shares, forthwith upon request (i) a written statement by the Corporation that
it has complied with the reporting requirements of Rule 144 (at any time after
ninety (90) days after the effective date of the first registration statement
filed by the Corporation), the Securities Act and the Exchange Act (at any time
after it has become subject to such reporting requirements),or thatit qualifies
as a registrant whose securities may be resold pursuant to Form S-3(at any time
after it so qualifies),(ii)a copy of the most recent annual or quarterly report
of the Corporation and such other reports and documents so filed by the
Corporation, and (iii) such other information as may be reasonably requested in
availing any Investor of any rule or regulation of the Commission which permits
the selling of any such securitieswithout registration or pursuant tosuch form.
Section 9. No Conflict of Rights
The Corporation shall not, after the date hereof, grant any registration rights
which conflict with or impair the registration rights granted hereby. In the
event the Corporation grants to any person any registration rights that are
superior in scope or substance to the registration rights granted to the
Investor, such superior rights shall be simultaneously granted to such holders.
Section 10. Termination.
This Agreement shall terminate and be of no further force or effect when there
shall no longer be any Registrable Shares outstanding; provided that Sections 4
and 5 shall survive any termination of this Agreement.
Section 11. Successors and Assigns.
This Agreement shall bind and inure to the benefit of the Corporation and the
Investors and, subject to Section 12, the respective successors and assigns of
the Corporation and the Investors.
Section 12. Assignment.
Each Investor may assign its rights hereunder to any purchaser or transferee of
Registrable Shares; provided, however, that such purchaser or transferee shall,
as a condition to the effectiveness of such assignment,be required to execute a
counterpart to this Agreement agreeing to be treated as an Investor whereupon
such purchaser or transferee shall have the benefits of,and shall be subject to
the restrictions contained in,this Agreement as if such purchaser or transferee
was originally included in the definition of an Investor herein and had
originally been a party hereto
Section 13. Entire Agreement
This Agreement and the other writings referred to herein or therein ordelivered
pursuant hereto or thereto, contain the entire agreement among the Investor and
the Corporation with respect to the subject matter hereof and supersede all
prior and contemporaneous arrangements or understandings with respect thereto.
Section 14. Notices.
All notices, requests, consents and other communications hereunder to any party
shall be deemed to be sufficient if contained in a written instrument delivered
in person or sent by telecopy, nationally-recognized overnight courier or first
class registered or certified mail return receipt requested, postage prepaid,
addressed to such party at the address set forth below or such other address as
may hereafter be designated in writing by such party to the other parties:
(i) if to the Corporation, to:
Cal-Bay International, Inc.
0000 Xxxxxxx Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxx, CEO
Facsimile Number: 000-000-0000
(ii) if to the Investor, to:
Professional Traders Fund, LLC
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxx Xxxx 00000
Telephone: 000-000-0000
Fax: 000-000-0000
Attention: Xxxxxx Xxxxxx
and
Professional Offshore Opportunity Fund Limited
Professional Traders Management, LLC
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxx Xxxx 00000
Telephone: 000-000-0000
Fax: 000-000-0000
Attention: Xxxxxx Xxxxxx
All such notices, requests,consents and other communications shall be deemed to
have been delivered (a)in the case of personal delivery or deliveryby telecopy,
on the date of such delivery, (b) in the case of dispatch by
nationally-recognized overnight courier,on the next business day following such
dispatch and (c) in the case of mailing, on the third business day after the
posting thereof.
Section 15. Modifications; Amendments; Waivers.
The terms and provisions of this Agreement may not be modified or
amended, nor may any provision be waived,except pursuant to a writing signed by
the Corporation and the holders of at least a majority of theRegistrable Shares
then outstanding.
Section 16. Counterparts.
This Agreement may be executed in any number of counterparts, and each
such counterpart hereof shall be deemed to be an original instrument, but all
such counterparts together shall constitute but one agreement.
Section 17. Headings.
The headings of the various sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed to be a part
of this Agreement.
Section 18. Governing Law.
This Agreement shall be governed by andconstrued in accordance with the
laws of the State of New York applicable to contracts made and to be performed
wholly therein.
IN WITNESS WHEREOF, the undersigned have executed and delivered this
Agreement as of the date first set forth above.
CAL-BAY INTERNATIONAL, INC.
By: \S\Xxxxx X Xxxxxx
Name: Xxxxx X Xxxxxx
Title: President,
Cal Bay International, Inc.
PROFESSIONAL TRADERS FUND, LLC
By:____________________________
Name:
Title:
PROFESSIONALOFFSHOREOPPORTUNITY
FUND LIMITED
By:____________________________
Name:
Title:
