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EXHIBIT 10.4
CORPORATE RELATIONS AGREEMENT
THIS CORPORATE RELATIONS GROUP, INC. (the "Agreement") is entered into
on this 24th day of May, 1999, between Corporate Relations Group, Inc., a
Florida corporation ("CRG"), and Aqua Clara Bottling & Distribution, a Florida
corporation ("Client").
WHEREAS, CRG is in the business of planning, developing and
implementing advertising, marketing and promotional campaigns for corporations
and other business entities ("Advertising and Promotional Services");
WHEREAS, the Client desires to retain CRG to provide the Advertising
and Promotional Services, and CRG desires to provide such Advertising and
Promotional Services to Client, pursuant to the terms, conditions and
provisions contained in this Agreement;
NOW, THEREFORE, in consideration of the mutual promises contained
herein and other good and valuable consideration the receipt and sufficiency of
which are hereby acknowledged, the parties hereto, intending to be legally
bound hereby, agree as follows:
1. ADVERTISING AND PROMOTIONAL SERVICES. Subject to Client's
compliance with each of the representations, warranties and covenants and
agreements made by Client in this Agreement, CRG agrees to provide to Client
the Advertising and Promotional Services identified on Exhibit A which is
attached hereto and incorporated herein by reference, for the period commencing
on the latter of (the "Effective Date") the date that this Agreement is
executed and delivered by Client or the date that CRG receives payment of its
fees as herein provided and expiring on the 365th day following the effective
date of this Agreement (the "Term").
2. OBLIGATIONS AND RESPONSIBILITIES OF CLIENT. As of the date hereof
and during the Term of this Agreement, Client agrees as follows.
1. REPRESENTATION AND WARRANTIES.
Client represents and warrants to CRG that:
(1) ORGANIZATION. Client is a corporation duly organized,
validly existing and in good standing under the laws of the State of its
incorporation and it is duly qualified to do business as a foreign corporation
in each jurisdiction in which it owns or leases property or engages in
business.
(2) FORMAL ACTION. Client has the corporate power and
authority to execute and deliver this Agreement and to perform each of its
obligations hereunder and this Agreement has been duly approved by Client's
Board of Directors.
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(3) VALID AND BINDING AGREEMENT. This Agreement has been duly
executed and delivered by Client and is the valid and binding obligation of
Client enforceable against it in accordance with its terms.
(4) NO VIOLATION. The execution, delivery and performance of
this Agreement does not and will not violate any provisions of the charter or
bylaws of Client or any agreement to which Client is a party or any applicable
law or regulation or order or decree of any court, arbitrator or agency of
government and no action of, or filing with, any governmental or public body or
authority is required in connection with the execution, delivery or performance
of this Agreement.
(5) LITIGATION. No action, suit or proceeding is pending
against or affecting the Client or any of its properties before any court,
arbitrator or governmental body or administrative agency and none of the
persons owning beneficially or of record more than 10% of the outstanding
capital stock of the Client or any of the directors or officers of Client is a
party to any action, suit or proceeding before any federal or state court,
arbitrator or governmental body or administrative agency (other than routine
traffic violations) and no such person has been a party to any such proceedings
for more than the past five years.
(6) ACCURACY OF INFORMATION. The information furnished by
Client to CRG regarding the business, operations, financial condition,
including financial statements, business plans and biographical information
regarding the Client's directors and officers (collectively referred to as the
"Information Package") is complete and accurate in all material respects and
does not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made
not misleading.
2. COVENANTS AND AGREEMENTS.
Client covenants and agrees to comply with the following covenants:
(1) CLIENT CERTIFICATION. Client acknowledges that it is
responsible for the accuracy and completeness of the Information Package and
for all other information furnished to CRG and for the accuracy and
completeness of the contents of all materials prepared by CRG for and on behalf
of Client. The Client hereby designates the individuals listed on Exhibit B
attached hereto and incorporated herein by reference as the duly authorized
representatives of Client for purposes of certifying to CRG the accuracy of all
documents, advertisements or other materials prepared by CRG for and on behalf
of Client. The Client agrees to promptly advise CRG in writing of any
condition, event, circumstance or act that would constitute a material adverse
change in the business, properties, financial condition or business prospects
of the Client or which would make any of the information contained in the
Information Package or in any report, advertorial or other document prepared by
CRG for and on behalf of Client misleading in any material respect. Client
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hereby agrees that CRG and its directors, officers, agents and employees may
rely on the Information Package and on all other information furnished by
Client, and on each and every certification provided by an authorized
representative of Client, until CRG is advised in writing by an authorized
representative of Client that the information previously furnished to CRG is
inaccurate or incomplete in any material respect. Client acknowledges that CRG
shall have no obligation to provide services hereunder until it has received a
written certificate from an authorized representative of Client as follows: CRG
shall prepare proofs and/or tapes of the agreed upon materials and information,
as set for dissemination, for the Client's review and approval and Client shall
sign and return such materials marking all corrections and changes that the
Client believes appropriate. Client acknowledges that CRG will make oral
representations based on the information furnished hereunder and the Client
authorizes such representations.
(2) BOOKS AND RECORDS. Client shall maintain true and complete
books, records and accounts in which true and correct entries shall be made of
its transactions in accordance with generally accepted accounting principles
consistently applied ("GAAP").
(3) FINANCIAL AND OTHER INFORMATION. Client agrees to furnish
to CRG the following information:
(i) ANNUAL FINANCIAL STATEMENTS. As soon as practicable,
and in any event within 90 days after the close of the Client's fiscal year,
annual financial statements including a balance sheet, an income statement, a
statement of cash flows, and a statement of stockholder's equity, and all notes
thereto prepared in accordance with GAAP and audited by an independent
certified public accountant.
(ii) QUARTERLY FINANCIAL STATEMENTS. As soon as
practicable, and in any event within 45 days after the end of each fiscal
quarter, quarterly financial statements, including a balance sheet, a quarterly
and year-to-date income statement, a statement of cash flows, and a statement
of stockholder's equity, prepared by Client in accordance with GAAP and
certified by the chief financial officer and chief executive officer of Client
as fairly presenting, subject to normal year-end audit adjustments, the
Client's financial position as of and for the periods indicated.
(4) CRG RELIANCE ON CLIENTS'S FULL DISCLOSURE. Client will
provide, or cause to be provided, to CRG all financial and other information
requested by CRG for the purpose of rendering its services pursuant to this
Agreement. Client recognizes and confirms that CRG will use such information in
performing the services contemplated by this Agreement without independently
verifying such information and that CRG does not assume any responsibility for
the accuracy or completeness of such information. The persons executing this
Agreement on behalf of Client certify that there is no fact known to them which
materially adversely affects or may (so far as the Client's senior management
can now reasonably foresee) materially adversely affect the business,
properties, condition (financial or other) or operations (present or
prospective) of the Client which has not been set forth in written form
delivered by Client to CRG. The persons executing this
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Agreement on behalf of Client agree to keep CRG promptly informed of any facts
hereafter know to Client which materially adversely affects or may (so far as
the Client's senior management can now reasonably foresee) materially adversely
affect the business, properties, condition (financial or other) or operations
(present or prospective) of Client.
(5) LEGAL REPRESENTATION. Client acknowledges and agrees that
it has been and will continue to be, represented by legal counsel experienced
in corporate and securities laws and Client acknowledges that it has been
advised as to the obligations imposed on it pursuant to such laws and
understands that it will have the obligation and responsibility to see that all
such laws are complied with at all times during the Term of this Agreement.
3. COMPENSATION. In consideration of the Advertising and Promotional
Services to be performed by CRG hereunder, Client hereby agrees to compensate
CRG in the manner and in the amount specified in Exhibit C which is attached
hereto and incorporated herein by reference thereto. In addition to the
compensation to be paid to CRG as provided in Exhibit C, Client shall reimburse
CRG promptly after a written request therefor accompanied by appropriate
documentation, for all reasonable out-of-pocket expenses (including reasonable
fees and disbursements of CRG's counsel, if any) incurred in connection with
providing services hereunder or to the extent provided in Exhibit C.
4. INDEMNITY. Client acknowledges that it is responsible for the
accuracy of the Information Package and all other information provided to CRG
and for the contents of all materials, advertorials and other information
prepared by CRG for an on behalf of Client as provided herein and Client agrees
to indemnify CRG in accordance with the Indemnification Agreement set forth in
Exhibit D, which is attached hereto and incorporated herein by reference.
5. RELATIONSHIP OF THE PARTIES. This Agreement provides for the
providing of marketing, promotional and advertising services by CRG to Client
and the provisions herein for compliance with financial covenants, delivery of
financial statements, and similar provisions are intended solely for the
benefit of CRG to provide it with information on which it may rely in providing
services hereunder and nothing contained in this Agreement shall be construed
as permitting or obligating CRG to act as a financial or business advisor or
consultant to Client, as permitting or obligating CRG to participate in the
management of client's business, as creating or imposing any fiduciary
obligation on the part of CRG with respect to the provisions of services
hereunder and CRG shall have no such duty or obligation to client, as providing
or counseling Client as to the compliance by Client with any federal or state
securities or other laws effecting the services to be provided hereunder, or as
creating any joint venture, agency, or other relationship between the parties
other than as explicitly and specifically stated in this Agreement. The Client
acknowledges that it has had the opportunity to obtain the advice of
experienced counsel of its own choosing in connection with the negotiation and
execution of this Agreement, the provision of services hereunder and with
respect to all matters contained herein, including, without limitation, the
provisions of Section 4 hereof.
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6. SURVIVAL OF CERTAIN PROVISIONS. The Client's obligations to pay
the fees and expenses of CRG pursuant to Section 3 of this Agreement and to
comply with the indemnification provisions pursuant to Section 4 shall remain
operative and in full force and effect regardless of any termination of this
Agreement and shall be binding upon, and shall inure to the benefit of, CRG
and, in the case of the indemnity agreement, the persons, agents, employees,
officers, directors and controlling persons referred to in the Indemnification
Agreement, and their respective successors and assigns and heirs, and no other
person shall acquire or have any right under or by virtue of this Agreement.
All amounts paid or required to be paid under Sections 3 and 4 of this
Agreement shall be fully earned on the Effective Date of this Agreement
notwithstanding prior termination of this Agreement.
7. TERMINATION. CRG shall have the right in its sole and absolute
discretion to terminate its obligations hereunder and to immediately cease
providing Advertising and Promotional Services pursuant to this Agreement if
CRG, in the exercise of its reasonable judgment, believes that the
representations and warranties made by Client hereunder are inaccurate in any
material respect or if Client breaches any of its covenants and agreements
contained herein or if any federal or state governmental agency or
instrumentality institutes an investigation or suit against Client or
pertaining to the services hereunder.
8. NON-SOLICITATION COVENANT. Client agrees that it will not directly
or indirectly during the term of this Agreement or for three years following
the termination or expiration of this Agreement, either voluntarily or
involuntarily, for any reason whatsoever, recruit or hire or attempt to recruit
or hire any employee of CRG or of any of its affiliates or subsidiaries, or
otherwise induce any such employees to leave the employment of CRG or of any of
its affiliates or subsidiaries or to become an employee of or otherwise be
associated with Client or any affiliate or subsidiary of Client. Client
acknowledges that CRG and its affiliates and subsidiaries have invested a
significant amount of time, energy and expertise in the training of their
employees to be able to provide Advertising and Promotional Services and Client
therefore agrees that this covenant is reasonable and agrees that the breach of
such covenant is very likely to result in irreparable injury to CRG, which is
unlikely to be adequately compensated by damages. Accordingly, in the event of
a breach or threatened breach by Client of this Section 8, CRG shall be
entitled to an injunction restraining Client and any affiliate, subsidiary or
director or officer thereof from recruiting, or hiring or attempting to recruit
or hire any employee of CRG or of any affiliate or subsidiary of CRG. Nothing
herein shall be construed as prohibiting CRG from pursuing any other remedies
available to CRG for such breach or threatened breach, including recovery of
damages from Client. The undertakings herein shall survive the termination or
cancellation of the Agreement for three years.
9. MISCELLANEOUS.
A. GOVERNING LAW. This Agreement shall be governed by the laws of
the State of Florida applicable to contracts executed and performed in the
Circuit Court, Orange County, in the State of Florida (without regard to the
principles of conflicts of laws).
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B. ENTIRE AGREEMENT. This Agreement and the Exhibits hereto
embody the entire agreement of the parties with respect to its subject matter.
There are no restrictions, promises, representations, warranties, covenants, or
undertakings other than those expressly set forth or referred to herein. This
Agreement supersedes all prior agreements and understandings between the
parties with respect to its subject matter.
C. AMENDMENTS TO BE IN WRITING. This Agreement may be amended
only in a writing signed by all of the parties.
D. NO WAIVERS BY COURSE OF DEALING; LIMITED EFFECT OF WAIVERS. No
waiver shall be effective against any party unless it is in a writing signed by
that party. No course of dealing and no delay on the part of CRG in exercising
its rights shall operate as a waiver of that right or otherwise prejudice CRG.
CRG's failure to insist upon the strict performance of any provision of this
Agreement, or to exercise any right or remedy available to CRG, shall not
constitute a waiver by CRG of such provision. No specific waiver by CRG of any
specific breach of any provision of this Agreement shall operate as a general
waiver of the provision or of any other breach of the provision. Client shall
have no right to cure any breach except as specifically provided herein.
E. COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
F. CUMULATION OF RIGHTS AND REMEDIES. No right or remedy of CRG
under this Agreement is intended to preclude any other right or remedy and
every right and remedy shall coexist with every other right and remedy now or
hereafter existing, whether by contract, at law, or in equity.
G. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the parties and their successors and assigns.
Client shall not have any right to assign any of its rights or delegate any of
its obligations or responsibilities under this Agreement except as expressly
stated herein.
H. PAYMENT OF FEES AND EXPENSES ON ENFORCING AGREEMENT. In the
event of any dispute between the parties arising out of or related to this
Agreement or the interpretation thereof, at the trial level or appellate level,
the prevailing party shall be entitled to recover from the non-prevailing party
all costs and expenses, including reasonable fees and disbursements of counsel
which may be incurred in connection with such proceeding, without limitation,
including any costs and expenses of experts, witnesses, depositions and other
costs.
I. NOTICES. Any notice or other communication required or
permitted to be given hereunder shall be in writing, and shall be delivered to
the parties at the addresses set forth below (or to such other addresses as the
parties may specify by due notice to the others). Notices
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or other communications shall be effective when received at the recipient's
location (or when delivered to that location if receipt is refused). Notices or
other communications given by facsimile transmission shall be presumed received
at the time indicated in the recipient's automatic acknowledgment. Notices or
other communications given by Federal Express or other recognized overnight
courier service shall be presumed received on the following business day.
Notices or other communications given by certified mail, return receipt
requested, postage prepaid, shall be presumed received 3 business days after
the date of mailing.
Client: Aqua Clara Bottling & Distribution
1315 Cleveland Street
Clearwater, FL 33755
Attn: E. J. Mersis, Chairman, CEO
Fax: 813-446-3999
Company: Corporate Relations Group, Inc.
1947 Lee Road
Winter Park, FL 32789
Attn: Kevin Price, President
Fax: (407) 628-0807
J. HEADINGS. The headings in this Agreement are intended solely
for convenience of reference. They shall be given no effect in the construction
or interpretation of this Agreement.
K. SEVERABILITY. The invalidity or unenforceability of any
provision of this Agreement shall not impair the validity or enforceability of
any other provision.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
Attest: Client: Aqua Clara Bottling & Distribution
By: By: /s/ John C. Plunkett
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Secretary John C. Plunkett, President
[Corporate Seal] /s/ E.J. Mersis
----------------------------------
E.J. Mersis, Chairman, CEO
Attest: Company: Corporate Relations Group
By: By: /s/ Kevin Price
------------------------------ ----------------------------------
Secretary Kevin Price, President
[Corporate Seal]
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EXHIBIT A
ADVERTISING AND PROMOTIONAL SERVICES
The services to be provided are as follows:
A. GROWTH INDUSTRY REPORT - A minimum of four-page, two-color
follow-up mail pieces designed for additional informational
purposes, that is mailed to respondents, in addition to those
brokers requesting said information. A total of 10,000 will be
printed to satisfy CRG's responsibility to the Client. Any
additional Growth Industry Reports needed or requested by the
Client will be at the Client's expense.
B. THE LEAD DISTRIBUTION PROGRAM - CRG will contact retail brokers,
market makers and/or money managers and will arrange a meeting
between representative of the Client and interested retail brokers,
market makers, and money managers, which will include a show and
tell from the top management of the "Client" in disseminating
information to these interested parties. The aforementioned may be
accomplished by a Road Show.
This process will begin immediately upon CRG receiving the payment
as stipulated in Exhibit "C".
C. OTHER ADVERTISING AND PROMOTIONAL SERVICES.
1. Public relations exposure to newsletter writers, trade and
financial publications. The Client shall be totally responsible
for all travel expenses for the purpose of due diligence of the
Client by financial newsletter writers and/or brokers. The
Client will have total pre-approval rights on these trips. Road
Show(s) - Locations to be determined. Client will cover all
expenses of Road Show(s). Client will have prior approval of
those expenses. CRG will be responsible for CRG's own travel
expenses to support the show.
2. Preparation of a Broker Bullet Sheet to be sent to every broker
who indicates an interest in the Client.
3. Lead Tracking Summary maintained for all response leads
generated and provided to the "Client" monthly.
4. Press releases - Up to four (4) press releases - the first Press
Release shall announce the hiring of CRG by the "Client"; with
three Press Releases remaining which may be extended at the
option of the "Client", at the Client's expense, at a rate of
$1,000.00 per Press Release. Should the
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Client chose to publish their own Press Release, CRG shall be
mentioned as the Client's Public Relations firm.
5. CRG will distribute at its cost the due diligence packages to
all inquiring brokers only. The Client shall supply the
necessary materials for this package, if an Arrow Marketing
Contract is not entered into. In the event an Arrow Marketing
Contract is not entered into, the Client will provide CRG with
300 packages or in the alternative provide a master to CRG and
CRG will then charge the Client for the cost of reproduction.
6. CRG targets a minimum of 3% return of qualified investor leads
specifically generated for the Client.
D. PERFORMANCE BY CLIENT.
1. Client is required to do a Standard & Poor's listing at the
Client's expense.
2. Client is required to provide CRG with all S& P listings on
their attorney's stationary.
3. Client will provide its shareholder's with audited financials on
a yearly basis and unaudited financials on a quarterly basis.
4. Client agrees to send CRG, DTC sheets on a weekly basis.
5. Client agrees to provide CRG with a complete shareholders list
on a semi-annual basis.
6. Client will use its reasonable best efforts to register or
qualify any shares of common stock of Client under the
securities or blue sky laws of such jurisdictions as any broker
or market maker may reasonably request and do any and all other
acts and things which may be reasonably necessary or advisable
to enable such broker or market maker to consummate the
disposition in such jurisdictions of shares of common stock of
Client, provided that the Client will not be required to (1)
qualify generally to do business in any jurisdiction where it
would not otherwise be required to qualify but for this Section
and (2) subject itself to taxation in any such jurisdiction or
(3) consent to general service of process in any such
jurisdiction.
7. Client will deliver 15 cases of Aqua Clara water monthly to CRG
at no cost to CRG.
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The parties hereto by signing this Exhibit in the space provided below
signify their agreement regarding the service to be provided by CRG under the
Agreement.
Client: Aqua Clara Bottling & Distribution
By: /s/ John C. Plunkett
----------------------------------------
John C. Plunkett, President
By: /s/ E.J. Mersis
----------------------------------------
E.J. Mersis, Chairman, CEO
Company: Corporate Relations Group, Inc.
By: /s/ Kevin Price
----------------------------------------
Kevin Price, President
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EXHIBIT B
Client hereby designates the following person or persons to act on its behalf
for the purposes set forth in Section 2.B.(1) of the Agreement.
- ------------------------------------ --------------------------------------
DIRECTOR (PLEASE SIGN) DIRECTOR (PLEASE PRINT)
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PRESIDENT (PLEASE SIGN) PRESIDENT (PLEASE PRINT)
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VICE PRESIDENT (PLEASE SIGN) VICE PRESIDENT (PLEASE PRINT)
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EXHIBIT C
COMPENSATION
1. Client agrees to issue CRG 300,000 shares of restricted Common Stock
in Client (the "Shares"), which Shares shall be duly and validly issued, fully
paid and nonassessable and shall not be issued in violation of any preemptive
right of any stockholders of client. The Shares shall be issued in compliance
with the exemption from the registration requirements of the Securities Act of
1933 (the "Act") provided by Section 4(2) of the Act and/or pursuant to Rules
505 or 506 of the General Rules and Regulation under the Securities Act of
1933.
2. If compensation is paid in shares, concurrently with the issuance of
the Shares, Client will execute and deliver the Registration Rights Agreement
attached hereto as Exhibit F under which the Client agrees to register the
Shares for sale in compliance with the Act as therein provided and to comply
with all conditions necessary or required to enable the Shares to be sold
pursuant to Rule 144 of the General Rules and Regulation under the Securities
Act of 1933.
3. Should the Company affect payment of this contract by the tender of
free-trading Client shares belonging to individuals, the Client assures and
guarantees CRG that the Client will not reimburse the individuals for shares
given CRG.
4. The Shares, if any, to be issued to CRG shall be approved for issuance
in accordance with the rules and regulations of any stock exchange on which the
Shares are listed for trading or by the NASDAQ if the shares are listed for
trading thereon and shall be issued in compliance with all appropriate federal
or state governmental rules and regulations.
5. Client acknowledges that the consideration to be paid to CRG shall be
fully earned on the date that CRG commences providing services under the
Agreement regardless of whether the Agreement is terminated as provided in the
Agreement prior to completion of all services.
6. Client agrees to pay or reimburse CRG for all expenses arising out of
or related to the provision of services by CRG under the Agreement to the
extent provided in the Agreement and/or in Exhibit A thereto.
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7. "Options" mean the Options issuable, in certain circumstances, pursuant to
the Agreement which are exercisable for Common Stock.
Client shall issue options to CRG as outlined below.
Amount Price Duration
------ ----- --------
0 shares at $______ One (1) year from the date of this Agreement
-----
0 shares at $______ Two (2) years from the date of this Agreement
-----
0 shares at $______ Three (3) years from the date of this Agreement
-----
0 shares at $______ Four (4) years from the date of this Agreement
-----
0 shares at $______ Five (5) years from the date of this Agreement.
-----
The parties hereto by signing this Exhibit in the space provided below
signify their agreement to the compensation provisions contained herein.
Client: Aqua Clara Bottling & Distribution
By: /s/ John C. Plunkett
----------------------------------------
John C. Plunkett, President
By: /s/ E.J. Mersis
----------------------------------------
E.J. Mersis, Chairman, CEO
Company: Corporate Relations Group, Inc.
By: /s/ Kevin Price
----------------------------------------
Kevin Price, President
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EXHIBIT D
INDEMNIFICATION
This Indemnification Agreement constitutes part of the Corporate
Relations Agreement (the Agreement) dated the 24th day of May, 1999, between
Client (as defined in the Agreement) and CRG.
Client acknowledges and agrees that if, in connection with the services
or matters that are the subject of or arise out of such Agreement, CRG becomes
involved (whether or not as a named party) in any action, claim or legal
proceeding (including any governmental inquiry or investigation), Client agrees
to reimburse CRG for its reasonable legal fees, disbursements of counsel and
other expenses (including the cost of investigation and preparation) as they
are incurred by CRG. Client also agrees to indemnify and hold CRG harmless
against any losses, claims, damages or liabilities, joint or several, as
incurred, to which CRG may become subject in connection with the services or
matters which are the subject of or arise out of the Agreement; provided,
however, that Client shall not be liable under the foregoing indemnity in
respect of any loss, claim, damage or liability to the extent that a court
having jurisdiction shall have determined by a final judgment that such loss,
claim, damage or liability is a consequence of intentional fraudulent acts
committed by CRG without the knowledge and/or consent of Client. In the event
that the foregoing indemnity is unavailable by operation of law, then Client
shall contribute to amounts paid or payable by CRG in respect of such losses,
claims, damages and liabilities in the proportion that Client's interest bears
to CRG's interest in the matters contemplated by the Agreement. If, however,
the allocation provided by the immediately preceding sentence is not permitted
by applicable law, or otherwise, then Client shall contribute to such amount
paid or payable by CRG in such proportion as is appropriate to reflect not only
such relative interests but also the relative fault of Client on the one hand
and CRG on the other hand in connection with the matters as to which such
losses, claims, damages or liabilities relate and other equitable
considerations.
Promptly after CRG's receipt of notice of the commencement of any action
or of any claim, CRG will, if a claim in respect thereof is to be made against
Client under this Indemnity Agreement, notify Client of the commencement
thereof. In case any such action or claim is brought against CRG, Client will
be entitled to participate therein and, to the extent that Client may wish, to
assume the defense thereof, with counsel satisfactory to CRG. After notice from
Client to CRG of Client's election to so assume the defense thereof, Client
will not be liable to CRG for indemnification as provided in the preceding
paragraph for any legal fees, disbursements of counsel or other expenses
subsequently incurred by CRG in connection with the defense thereof other than
reasonable costs of investigation; provided that CRG shall have the right to
employ separate counsel if, in the reasonable judgment of CRG's counsel, it is
advisable for CRG to be represented by separate counsel or if in the reasonable
judgment of CRG's counsel, Client is not vigorously and actively
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defending against any such claim or claims, and in either such event the
reasonable legal fees and disbursements of such separate counsel shall be paid
by Client.
The foregoing agreements shall apply to any modification of the
Agreement, shall remain in full force and effect following the completion or
termination of CRG's engagement under the Agreement and shall be in addition to
any rights that CRG may have at common law or otherwise. The agreements in this
Indemnification Agreement shall extend to and inure to the benefit of each
person, if any, who may be deemed to control CRG, be controlled by CRG or be
under common control with CRG and to CRG's, and to each such other person's
respective affiliates, directors, officers, employees and agents. This
Indemnification Agreement shall be binding on any successor of Client.
Client represents that the Indemnification Agreement contained herein is
the legal, valid, binding and enforceable obligation of Client, enforceable
against Client according to its terms.
This Indemnification Agreement shall be governed by, and construed in
accordance with, the laws of the State of Florida without regard to principles
of conflicts of law, and the forum for resolution of legal and interpretative
issues shall be the Federal District courts in the State of Florida.
The parties hereto by signing this Exhibit in the space provided below
signify their agreement to the indemnification provisions contained herein.
Client: Aqua Clara Bottling & Distribution
By: /s/ John C. Plunkett
-----------------------------------
John C. Plunkett, President
By: /s/ E.J. Mersis
-----------------------------------
E.J. Mersis, Chairman, CEO
Company: Corporate Relations Group, Inc.
By: /s/ Kevin Price
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Kevin Price, President
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EXHIBIT E
ABATEMENT CLAUSE
The parties to this contract understand and agree that Client is under a
federal mandate to become fully reporting and approved for listing by the
Securities and Exchange commission by a time certain or be delisted from the
Electronic Bulletin Board.
The Client and CRG understand and agree that should the Company be
delisted from the Bulletin Board such an event would unduly interfere with
CRG's ability to fulfill its contractual obligations.
WHEREFORE, the Client and CRG hereby agree that should the Client be
delisted from the Electronic Bulletin Board for any reason, CRG's obligations
under this contract shall be abated until such time as the Client is relisted
and resume trading on the Electronic Bulletin Board.
Should the Client fail to gain relisting within one hundred twenty (120)
days of being delisted, CRG may treat that even as a material breach of this
contract. In such event, CRG may declare the contract void through breach and
retain whatever payments have been made as liquidated damages.
Client: Aqua Clara Bottling & Distribution
By: /s/ John C. Plunkett
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John C. Plunkett, President
By: /s/ E.J. Mersis
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E.J. Mersis, Chairman, CEO
Company: Corporate Relations Group, Inc.
By: /s/ Kevin Price
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Kevin Price, President
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EXHIBIT F
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Registration Agreement") is
made and entered into as of May 24th, 1999 by and between Corporate Relations
Group, Inc., a Florida corporation (CRG), and Aqua Clara Bottling &
Distribution, a Florida corporation (the Client).
WHEREAS, CRG concurrently with the execution of this Registration
Agreement is acquiring shares of the Client's common stock, par value $_____
per share ("Common Stock") and/or options to purchase shares of Common Stock;
and
WHEREAS, as a condition to such acquisition, the parties are willing to
enter into the agreements contained herein.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
and intending to be legally bound hereby, the parties hereto agree as follows:
Section 1. Definitions
"Affiliate" means, with respect to any Person, any other Person
which, directly or indirectly, controls, is controlled by or is under common
control with such Person.
"Agreement" means the Public Relations and Advertising Agreement
dated as of the date of this Registration Agreement between CRG and Client.
"Client" is defined in the Preamble to this Registration Agreement.
"Common Stock" is defined in the Recitals to this Registration
Agreement.
"CRG" is defined in the Preamble to this Registration Agreement.
"Holder" is defined in Section 2.1 hereof.
"Lock-Up Period" is defined in Section 2.1 hereof.
"Options" mean the Options issuable, in certain circumstances,
pursuant to the Agreement, which are exercisable for Common Stock.
"Other Holders" is defined in Section 4.3 hereof.
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"Permitted Transfer" is defined in Section 2.2 hereof.
"Person" means an individual, a partnership, a joint venture, a
corporation, a trust, an unincorporated organization and government or any
department or agency thereof.
"Piggyback Notice" is defined in Section 4.1 hereof.
"Piggyback Registration" is defined in Section 4.1 hereof.
"Registrable Securities" means (i) the Common Stock issued to CRG
pursuant to the Agreement, (ii) any Common Stock issued to CRG pursuant to the
exercise of Options, and (iii) any securities issued or issuable with respect
to the Common Stock referred to in clauses (i) or (ii) by way of replacement,
share dividend, share split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization.
"Registration Agreement" is defined in the Preamble to this
Registration Agreement.
"Registration Expenses" is defined in Section 6.1 hereof.
"Restricted Securities" is defined in Section 2.1 hereof.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, or
any similar federal law then in force.
"Transfer" is defined in Section 2.1 hereof.
Section 2. Restrictions on Transfer
2.1 Lock-Up Period. Without the express prior written consent of
the Client, CRG agrees that, except as set forth in Section 2.2 below, it will
not, directly or indirectly, offer, sell, contract to sell or otherwise dispose
of (or announce any offer, sale, contract of sale or other disposition of)
("Transfer") any Registrable Securities or Options (collectively, "Restricted
Securities") prior to the first anniversary following the date of this
Registration Agreement.
2.2 Permitted Transfers. The restrictions contained in this Section
2 will not apply with respect to any of the following transactions (each, a
"Permitted Transfer"):
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2.2.1 a natural person may Transfer Restricted Securities to
his or her spouse, siblings, parents or any natural or adopted children or
other descendants or to any personal trust in which such family members or such
transferee retains the entire beneficial interest;
2.2.2 CRG may (A) Transfer Restricted Securities to one or
more other entities that are wholly owned and controlled, legally and
beneficially, by CRG or an Affiliate, or (B) Transfer Restricted Securities by
distributing such Restricted Securities in a liquidation, winding up or
otherwise without consideration to the equity owners of such corporation,
partnership or business entity or to any other corporation, partnership or
business entity that is wholly owned by such equity owners; or (C) Transfer
Restricted Securities to a director, officer or key employee of CRG or an
Affiliate;
2.2.3 a transferee acquiring Restricted Securities in a
Permitted Transfer may Transfer Restricted Securities on his or her death or
mental incapacity to such Person's estate, executor, administrator or personal
representative or to such Person's beneficiaries pursuant to a devise or
bequest or by the laws of descent and distribution; or
2.2.4 CRG or any transferee acquiring Restricted Securities
in a Permitted Transfer may Transfer Restricted Securities pursuant to an
effective Registration Statement as provided herein or pursuant to an exemption
from the registration requirements of the Securities Act.
If any Person Transfers Restricted Securities as described in this Section 2.2,
such Restricted Securities shall remain subject to this Registration Agreement
and, as a condition of the validity of such Transfer, the transferee shall be
required to execute and deliver a counterpart of this Registration Agreement.
Thereafter, such transferee shall be deemed to be a Holder for purposes of this
Registration Agreement.
2.3 Rights of Subsequent Holder. Subject to the foregoing
restrictions, the Client and CRG hereby agree that any subsequent holder of
Registrable Securities shall be entitled to all benefits hereunder as a holder
of such securities.
Section 3. Demands for Registration.
3.1 Demand Period. From the date hereof, until the date which is
four years from the date hereof (the "Demand Period"), subject to the terms and
conditions set forth herein, CRG and the Permitted Transferees will have in the
aggregate three opportunities, in addition to other rights enumerated in this
Registration Agreement, to request registration under the Securities Act of all
or part of its Registrable Securities (a "Demand Registration"). The Holders of
50% or more of the Registrable Securities shall have the right to exercise the
registration rights under this Section 3.
3.2 Demand Procedure.
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3.2.1 Subject to Sections 3.2.2 and 3.2.4 below, during the
Demand Period any Holder or combination of Holders (the "Demanding
Shareholders") owning 50% or more of the Registrable Securities may deliver to
the Client a written request (a "Demand Registration Request") that the Client
register any or all of such Demanding Shareholders' Registrable Shares.
3.2.2 Holders, in the aggregate, may only make one Demand
Registration Request in each six-month period during the Demand Period (the
"Interim Demand Periods"). The Client shall only be required to file one
registration statement (as distinguished from supplements or pre-effective or
post-effective amendments thereto) in response to each Demand Registration
Request.
3.2.3 A Demand Registration Request from Demanding
Shareholders shall (i) set forth the number of Registrable Securities intended
to be sold pursuant to the Demand Registration Request (ii) disclose whether
all or any portion of a distribution pursuant to such registration will be
sought by means of an underwriting, and (iii) identify any managing underwriter
or managing underwriters proposed for the underwritten portion, if any, of such
registration.
3.2.4 If during any Interim Demand Period, the Client
receives a Demand Registration Request from Demanding Shareholders for the
registration of Registrable Securities having an aggregate market value of
$100,000 or greater, as determined according to the closing price of the Common
Stock on the NASDAQ National Market, on the Bulletin Board or in the Pink
Sheets on the date of such Demand Registration Request, then the Client shall,
subject to the limitations in Sections 3.2.5 and 3.2.6 hereof, (i) use its
reasonable best efforts to prepare and file within 30 days of receipt of the
Demand registration request with the SEC a registration statement under the
Securities Act with respect to all the Registrable Securities that the
Demanding Shareholders requested to be registered in the Demand Registration
Request, (ii) use its reasonable best efforts to cause such registration
statement to become effective within 75 days of receipt of the Demand
Registration Request, and (iii) if such registration can be accomplished by
means of a registration statement on Form S-3, keep such registration statement
effective until such time as the Demanding Shareholders shall have sold or
otherwise disposed of all of their Registrable Securities included in the
registration. If such registration cannot be accomplished by means of a
registration statement on Form S-3, the Client shall use its reasonable best
efforts to keep such registration statement effective for at least 180 days.
3.2.5 It is anticipated that the registration contemplated
under this Section 3 will be accomplished by means of the filing of a Form S-3,
and that registration on such form will allow for different means of
distribution, including sales by means of an underwriting as well as sales into
the open market. If the Demanding Shareholders desire to distribute all or part
of the Registrable Securities covered by their request by means of an
underwriting, they shall so advise the Client in writing in their initial
Demand Registration Request as described in Section 3.2.3 above. A
determination of whether all or part of the distribution will be by means of an
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underwriting shall be made by Demanding Shareholders holding a majority of the
Registrable Securities to be included in the registration. If all or part of
the distribution is to be by means of an underwriting, all subsequent decisions
concerning the underwriting which are to be made by the Demanding Shareholders
pursuant to the terms of this Registration Agreement, which shall include the
selection of the underwriter or underwriters to be engaged and the
representative, if any, of the underwriters so engaged, shall be made by the
Demanding Shareholders who hold a majority of the Registrable Securities to be
included in the underwriting, subject to approval by the Board of Directors of
the Client.
3.2.6 Upon the receipt by the Client of a Demand Registration
Request in accordance with Section 3.2.4 hereof, the Client shall, within ten
days following receipt of such Demand Registration Request, give written notice
of such request to all Holders. The Client shall include in such notice
information concerning whether all, part or none of the distribution is
expected to be made by means of an underwriting, and, if more than one means of
distribution is contemplated, may require Holders to notify the Client of the
means of distribution of their Registrable Securities to be included in the
registration. If any Holder who is not a Demanding Shareholder desires to sell
any Registrable Securities owned by such Holder, such Holder may elect to have
all or any portion of its Registrable Securities included in the registration
statement by notifying the Client in writing (a "Supplemental Demand
Registration Request") within 20 days of receiving notice of the Demand
Registration Request from the Client. The right of any Holder to include all or
any portion of its Registrable Securities in an underwriting shall be
conditioned upon the Client's having received a timely written request for such
inclusion by way of a Demand Registration Request or Supplemental Demand
Registration Request (which right shall be further conditioned to the extent
provided in this Registration Agreement). All Holders proposing to distribute
their Registrable Securities through an underwriting shall enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting.
3.2.7 Notwithstanding any other provision of this Section 3,
if an underwriter advises the Client in writing that marketing factors require
a limitation on the number of shares to be underwritten, then the number of
shares of Registrable Securities that may be included in the underwriting shall
be allocated among the Holders in proportion (as nearly as practicable) to the
respective amounts of Registrable Securities each Holder owns (or in such other
proportion as they shall mutually agree). Registrable Securities excluded or
withdrawn from the underwriting in accordance with this Section 3.2.7 shall be
withdrawn from the registration.
3.3 Priority on Request Registration. The Client will not include
in any Demand Registration any securities which are not Registrable Securities
without the prior written consent of the Holders of a majority of the shares
of Registrable Securities included in such registration. If a Demand
Registration is an underwritten offering and the managing underwriters advise
the Client in writing that in their opinion the number of Registrable
Securities and, if permitted hereunder, other securities requested to be
included in such offering exceeds the number of securities that can be sold in
an orderly manner in such offering within a price range acceptable to the
Holders of a majority of the shares of Registrable Securities initially
requesting
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registration, the Client will include in such registration prior to the
inclusion of any securities which are not Registrable Securities the number of
shares of Registrable Securities requested to be included that in the opinion
of such underwriters can be sold in an orderly manner within such acceptable
price range, pro rata among the respective Holders thereof on the basis of the
number of shares of Registrable Securities owned by each such Holder.
Section 4. Piggyback Registrations
4.1 Right to Piggyback. If the Client proposes to undertake an
offering of shares of Common Stock for its account or for the account of other
stockholders and the registration form to be used for such offering may be used
for the registration of Registrable Securities (a "Piggyback Registration"),
each such time the Client will give prompt written notice to all Holders of
Registrable Securities of its intention to effect such a registration (each, a
"Piggyback Notice") and, subject to Sections 4.3 and 4.4 hereof, the Client
will use its best efforts to cause to be included in such registration all
Registrable Securities with respect to which the Client has received written
requests for inclusion therein within 20 days after the date of sending the
Piggyback Notice.
4.2 Priority on Primary Registrations. If a Piggyback Registration
is an underwritten primary registration on behalf of the Client, and the
managing underwriters advise the Client in writing that in their opinion the
number of securities requested to be included in such registration exceeds the
number that can be sold in an orderly manner within a price range acceptable to
the Client, the Client will include in such registration (a) first, the
securities the Client proposes to sell and (b) second, the Registrable
Securities requested to be included in such registration and any other
securities requested to be included in such registration that are held by
Persons other than the Holders of Registrable Securities pursuant to
registration rights, pro rata among the holders of Registrable Securities and
the holders of such other securities requesting such registration on the basis
of the number of shares of such securities owned by each such holder.
4.3 Priority on Secondary. If a Piggyback Registration is an
underwritten secondary registration on behalf of holders of the Client's
securities other than the Holders of Registrable Securities (the "Other
Holders"), and the managing underwriters advise the Client in writing that in
their opinion the number of securities requested to be included in such
registration exceeds the number that can be sold in an orderly manner in such
offering within a price range acceptable to the Other Holders requesting such
registration, the Client will include in such registration (a) first, the
securities requested to be included therein by the Other Holders requesting
such registration and (b) second, the Registrable Securities requested to be
included in such registration hereunder, pro rata among the Holders of
Registrable Securities requesting such registration on the basis of the number
of shares of such securities owned by each such Holder.
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4.4 Selection of Underwriters. In the case of an underwritten
Piggyback Registration, the Client will have the right to select the investment
banker(s) and manager(s) to administer the offering.
Section 5. Registration Procedures Section. Whenever the Holders of
Registrable Securities have requested that any Registrable Securities be sold
pursuant to this Registration Agreement, the Client will use its reasonable
best efforts to effect the registration and the sale of such Registrable
Securities in accordance with the intended method of disposition thereof, and
pursuant thereto the Client will as expeditiously as possible:
5.1.1 Registration Statement. Prepare and file with the SEC a
registration statement with respect to such Registrable Securities and use its
reasonable best efforts to cause such registration statement to become
effective.
5.1.2 Amendments and Supplements. Promptly prepare and file
with the SEC such amendments and supplements to such registration statement and
the prospectus used in connection therewith as may be necessary to keep such
registration statement effective for the period required by the intended method
of disposition and the terms of this Registration Agreement and comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the sellers thereof set
forth in such registration statement.
5.1.3 Provision of Copies. Promptly furnish to each seller of
Registrable Securities the number of copies of such registration statement,
each amendment and supplement thereto, the prospectus included in such
registration statement (including each preliminary prospectus) and such other
documents as such seller may reasonably request in order to facilitate the
disposition of the Registrable Securities owned by such seller.
5.1.4 Blue Sky Laws. Use its reasonable best efforts to
register or qualify such Registrable Securities under the securities or blue
sky laws of such jurisdictions as any seller reasonably requests and do any and
all other acts and things which may be reasonably necessary or advisable to
enable such seller to consummate the disposition in such jurisdictions of the
Registrable Securities owned by such seller, provided, that the Client will not
be required to (a) qualify generally to do business in any jurisdiction where
it would not otherwise be required to qualify but for this Section 5.1.4, (b)
subject itself to taxation in any such jurisdiction or (c) consent to general
service of process in any such jurisdiction.
5.1.5 Anti-fraud Rules. Promptly notify each seller of such
Registrable Securities when a prospectus relating thereto is required to be
delivered under the Securities Act, of the happening of any event as a result
of which the prospectus included in such registration statement contains an
untrue statement of a material fact or omits any material fact necessary to
make the statements therein not misleading, and in such event, at the request
of any such seller, the Client will promptly prepare a supplement or amendment
to such prospectus so that, as
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thereafter delivered to the purchasers of such Registrable Securities, such
prospectus will not contain an untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein not
misleading, provided, that the Client will not take any action which causes the
prospectus included in such registration statement to contain an untrue
statement of material fact or omit any material fact necessary to make the
statements therein not misleading, except as permitted by Section 5.5.
5.1.6 Securities Exchange Listings. Use its reasonable best
efforts to cause all such Registrable Securities to be listed on each
securities exchange on which securities of the same class issued by the Client
are then listed and use its reasonable best efforts to qualify such Registrable
Securities for trading on each system on which securities of the same class
issued by the Client are then qualified.
5.1.7 Underwriting Agreements. Enter into such customary
agreements (including underwriting agreements in customary form) and take all
such other actions as the holders of a majority of the shares of Registrable
Securities being sold or the underwriters, if any, reasonably request in order
to expedite or facilitate the disposition of such Registrable Securities.
5.1.8 Due Diligence. Make available for inspection by any
underwriter participating in any disposition pursuant to such registration
statement and any attorney, accountant or other agent retained by any such
underwriter, all financial and other records, pertinent corporate documents and
properties of the Client, and cause the Client's officers, directors, employees
and independent accountants to supply all information reasonably requested by
any such underwriter, attorney, accountant or agent in connection with such
registration statement.
5.1.9 Earning Statement. Otherwise use its best efforts to
comply with all applicable rules and regulations of the SEC, and make available
to its security holders, as soon as reasonably practicable, an earning
statement covering the period of at least twelve months beginning with the
first day of the Client's first full calendar quarter after the effective date
of the registration statement, which earning statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder.
5.1.10 Deemed Underwriters or Controlling Persons. Permit any
Holder of Registrable Securities which Holder, in such Holder's reasonable
judgment, might be deemed to be an underwriter or a controlling person of the
Client, to participate in the preparation of such registration or comparable
statement and to require the insertion therein of material in form and
substance satisfactory to such Holder and to the Client and furnished to the
Client in writing, which in the reasonable judgment of such Holder and its
counsel should be included.
5.1.11 Management Availability. In connection with
underwritten offerings, make available appropriate management personnel for
participation in the preparation
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and drafting of such registration or comparable statement, for due diligence
meetings and for "road show" meetings.
5.1.12 Stop Orders. Promptly notify Holders of the
Registrable Securities of the threat of issuance by the SEC of any stop order
suspending the effectiveness of the registration statement or the initiation of
any proceeding for that purpose, and make every reasonable effort to prevent
the entry of any order suspending the effectiveness of the registration
statement. In the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any Registrable Securities included in such registration statement for sale in
any jurisdiction, the Client will use its reasonable best efforts promptly to
obtain the withdrawal of such order.
5.1.13 Opinions. At each closing of an underwritten offering,
request opinions of counsel to the Client and updates thereof (which opinions
and updates shall be reasonably satisfactory to the underwriters of the
Registrable Securities being sold) addressed to the underwriters covering the
matters customarily covered in opinions requested in underwritten offerings and
such other matters as may be reasonably requested by such Holders or their
counsel.
5.1.14 Comfort Letter. Obtain a cold comfort letter and
related bring down letters from the Client's independent public accountants
addressed to the selling Holders of Registrable Securities in customary form
and covering such matters of the type customarily covered by cold comfort
letters as the Holders of a majority of the Registrable Securities being sold
reasonably request.
5.2 Further Information. The Client may require each Holder of
Registrable Securities to furnish to the Client in writing such information
regarding the proposed distribution by such Holder of such Registrable
Securities as the Client may from time to time reasonably request.
5.3 Notice to Suspend Offers and Sales. Each Investor severally
agrees that, upon receipt of any notice from the Client of the happening of any
event of the kind described in Sections 5.1.5 or 5.1.12 hereof, such Investor
will forthwith discontinue disposition of shares of Common Stock pursuant to a
registration hereunder until receipt of the copies of an appropriate supplement
or amendment to the prospectus under Section 5.1.5 or until the withdrawal of
such order under Section 5.1.12.
5.4 Reference to Holders. If any such registration or comparable
statement refers to any Holder by name or otherwise as the holder of any
securities of the Client and if, in the Holder's reasonable judgment, such
Holder is or might be deemed to be a controlling person of the Client, such
Holder shall have the right to require (a) the insertion therein of language in
form and substance satisfactory to such Holder and the Client and presented to
the Client in writing, to the effect that the holding by such Holder of such
securities is not to be construed as a recommendation by such Holder of the
investment quality of the Client's securities covered
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thereby and that such holding does not imply that such Holder will assist in
meeting any future financial requirements of the Client, or (b) in the event
that such reference to such Holder by name or otherwise is not required by the
Securities Act or any similar Federal statute then in force, the deletion of
the reference to such Holder; provided that with respect to this clause (b)
such Holder shall furnish to the Client an opinion of counsel to such effect,
which opinion and counsel shall be reasonably satisfactory to the Client.
5.5 Client's Ability to Postpone. Notwithstanding anything to the
contrary contained herein, the Client shall have the right twice in any twelve
month period to postpone the filing of any registration statement under
Sections 3 or 4 hereof or any amendment or supplement thereto for a reasonable
period of time (all such postponements not exceeding 90 days in the aggregate
in any twelve month period) if the Client furnishes the Holders of Registrable
Securities a certificate signed by the Chairman of the Board of Directors or
the President of the Client stating that, in its good faith judgment, the
Client's Board of Directors (or the executive committee thereof) has determined
that effecting the registration at such time would materially and adversely
affect a material financing, acquisition, disposition of assets or stock,
merger or other comparable transaction, or would require the Client to make
public disclosure of information the public disclosure of which would have a
material adverse effect upon the Client.
Section 6. Registration Expenses Section.
6.1 Expenses Borne by Client. Except as specifically otherwise
provided in Section 6.2 hereof, the Client will be responsible for payment of
all expenses incident to any registration hereunder, including, without
limitation, all registration and filing fees, fees and expenses of compliance
with securities or blue sky laws, printing expenses, messenger and delivery
expenses, road show expenses, advertising expenses and fees and disbursements
of counsel for the Client and all independent certified public accountants and
other Persons retained by the Client in connection with such registration (all
such expenses borne by the Client being herein called the "Registration
Expenses").
6.2 Expenses Borne by Selling Securityholders. The selling
securityholders will be responsible for payment of their own legal fees (if
they retain legal counsel separate from that of the Client), underwriting fees
and brokerage discounts, commissions and other sales expenses incident to any
registration hereunder, with any such expenses which are common to the selling
securityholders divided among such securityholders (including the Client and
holders of the Client's securities other than Registrable Securities, to the
extent that securities are being registered on behalf of such Persons) pro rata
on the basis of the number of shares being registered on behalf of each such
securityholder, or as such securityholders may otherwise agree.
Section 7. Indemnification Section.
7.1 Indemnification by Client. The Client agrees to indemnify, to
the fullest extent permitted by law, each Holder of Registrable Securities and
each Person who controls
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(within the meaning of the Securities Act) such Holder against all losses,
claims, damages, liabilities and expenses in connection with defending against
any such losses, claims, damages and liabilities or in connection with any
investigation or inquiry, in each case caused by or based on any untrue or
alleged untrue statement of material fact contained in any registration
statement, prospectus or preliminary prospectus or any amendment thereof or
supplement thereto or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading or arise out of any violation by the Client of any rules or
regulation promulgated under the Securities Act applicable to the Client and
relating to action or inaction required of the Client in connection with such
registration, except insofar as the same are (i) contained in any information
furnished in writing to the Client by such Holder expressly for use therein,
(ii) caused by such Holder's failure to deliver a copy of the registration
statement or prospectus or any amendments or supplements thereto, or (iii)
caused by such Holder's failure to discontinue disposition of shares after
receiving notice from the Client pursuant to Section 5.3 hereof. In connection
with an underwritten offering, the Client will indemnify such underwriters,
their officers and directors and each Person who controls (within the meaning
of the Securities Act) such underwriters at least to the same extent as
provided above with respect to the indemnification of the Holders of
Registrable Securities.
7.2 Indemnification by Holder. In connection with any registration
statement in which a Holder of Registrable Securities is participating, each
such Holder will furnish to the Client in writing such information as the
Client reasonably requests for use in connection with any such registration
statement or prospectus and, to the extent permitted by law, will indemnify the
Client, its directors and officers and each Person who controls (within the
meaning of the Securities Act) the Client against any losses, claims, damages,
liabilities and expenses resulting from any untrue or alleged untrue statement
of material fact contained in the registration statement, prospectus or
preliminary prospectus or any amendment thereof or supplement thereto or any
omission or alleged omission of a material fact required to be stated therein
or necessary to make the statements therein not misleading, but only to the
extent that such untrue statement or omission is contained in any information
so furnished in writing by such Holder expressly for use in connection with
such registration; provided that the obligation to indemnify will be individual
to each Holder and will be limited to the net amount of proceeds received by
such Holder from the sale of Registrable Securities pursuant to such
registration statement. In connection with an underwritten offering, each such
Holder will indemnify such underwriters, their officers and directors and each
Person who controls (within the meaning of the Securities Act) such
underwriters at least to the same extent as provided above with respect to the
indemnification of the Client.
7.3 Assumption of Defense by Indemnifying Party. Any Person
entitled to indemnification hereunder will (a) give prompt written notice to
the indemnifying party of any claim with respect to which it seeks
indemnification and (b) unless in such indemnified party's reasonable judgment
a conflict of interest between such indemnified and indemnifying parties may
exist with respect to such claim, permit such indemnifying party to assume the
defense of such claim with counsel reasonably satisfactory to the indemnified
party. If such defense is assumed,
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the indemnifying party will not be subject to any liability for any settlement
made by the indemnified party without its consent (but such consent will not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim will not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable
judgment of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to
such claim.
7.4 Binding Effect. The indemnification provided for under this
Registration Agreement will remain in full force and effect regardless of any
investigation made by or on behalf of the indemnified party or any officer,
director or controlling Person of such indemnified party and will survive the
transfer of securities. The Client also agrees to make such provisions, as are
reasonably requested by any indemnified party, for contribution to such party
in the event the Client's indemnification is unavailable for any reason. Each
Holder of Registrable Securities also agrees to make such provisions, as are
reasonably requested by any indemnified party, for contribution to such party
in the event such Holder's indemnification is unavailable for any reason.
Section 8. Participation in Underwritten Registrations. No Person may
participate in any registration hereunder which is underwritten unless such
Person (a) agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements and (b) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements.
Section 9. Miscellaneous.
9.1 No Inconsistent Agreements. The Client will not hereafter enter
into any agreement with respect to its securities which violates the rights
granted to the Holders of Registrable Securities in this Registration
Agreement.
9.2 Remedies. Any Person having rights under any provision of this
Registration Agreement will be entitled to enforce such rights specifically to
recover damages caused by reason of any breach of any provision of this
Registration Agreement and to exercise all other rights granted by law. The
parties hereto agree and acknowledge that money damages may not be an adequate
remedy for any breach of the provisions of this Registration Agreement and that
any party may in its sole discretion apply to any court of law or equity of
competent jurisdiction (without posting any bond or other security) for
specific performance and for other injunctive relief in order to enforce or
prevent violation of the provisions of this Registration Agreement.
9.3 Term. Except for the provisions of Section 7 or as specifically
otherwise provided herein, the provisions of this Registration Agreement shall
apply until such time as all
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Registrable Securities have ceased to be Registrable Securities hereunder but
in no event later than three years from the date of this Registration
Agreement.
9.4 Amendments and Waivers. Except as otherwise specifically
provided herein, this Registration Agreement may be amended or waived only upon
the prior written consent of the Client and of the Holders of a majority of the
then outstanding shares of Registrable Securities.
9.5 Successors and Assigns. Subject to Section 2 hereof, all
covenants and agreements in this Registration Agreement by or on behalf of any
of the parties hereto will bind and inure to the benefit of (i) the respective
successors and assigns of the parties hereto whether so expressed or not and
(ii) the persons referred to in clause (iv) of the definition of Registrable
Securities. In addition, whether or not any express assignment has been made
but subject in any case to Section 2 hereof, the provisions of this
Registration Agreement which are for the benefit of CRG or Holders of
Registrable Securities are also for the benefit of, and enforceable by, any
subsequent holder of such securities so long as such securities continue to be
restricted securities, as that term is defined in Securities Act Rule 144.
9.6 Severability. Whenever possible, each provision of this
Registration Agreement will be interpreted in such manner as to be effective
and valid under applicable law, but if any provision of this Registration
Agreement is held to be prohibited by or invalid under applicable law, such
provision will be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of this Registration Agreement.
9.7 Counterparts. This Registration Agreement may be executed
simultaneously in multiple counterparts, any one of which need not contain the
signatures of more than one party, but all such counterparts taken together
will constitute one and the same Registration Agreement.
9.8 Descriptive Headings. The descriptive headings of this
Registration Agreement are inserted for convenience only and do not constitute
a part of this Registration Agreement.
9.9 Governing Law. All questions concerning the construction,
validity and interpretation of this Registration Agreement will be governed by
and construed in accordance with the domestic laws of the State of Florida,
without giving effect to any choice of law or conflict of law provision or rule
(whether of the State of Florida or any other jurisdiction) that would cause
the application of the laws of any jurisdiction other than the State of
Florida.
9.10 Entire Agreement. This Registration Agreement is intended by
the parties as a final expression of their agreement and intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto with respect of the subject matter contained
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herein. This Registration Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
9.11 Notices. All notices, demands or other communications to be
given or delivered under or by reason of the provisions of this Registration
Agreement shall be in writing and shall be deemed to have been given when
delivered personally to the recipient, sent to the recipient by facsimile
transmission, sent to the recipient by reputable express courier service
(charges prepaid) or three business days after being mailed to the recipient by
certified or registered mail, return receipt requested and postage prepaid.
Such notices, demands and other communications will be sent to each Holder at
the address indicated on the records of the Client and to the Client at the
address set forth in the Agreement or to such other address or to the attention
of such other person as the recipient party has specified by prior written
notice to the sending party.
9.12 Confidentiality. The Client shall hold in strict confidence
and shall not disclose information with respect to sales of Common Stock by any
Holder, including the fact of such sales, the amount of such sales and the
timing of such sales, except as such information shall become public without
violation of this Section 9.12, as may be required by applicable law, rules or
regulations or with the express written consent of such Investor.
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Agreement as of the date first above written.
Client: Aqua Clara Bottling & Distribution
By: /s/ John C. Plunkett
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John C. Plunkett, President
By: /s/ E.J. Mersis
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E.J. Mersis, Chairman, CEO
Company: Corporate Relations Group, Inc.
By: /s/ Kevin Price
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Kevin Price, President
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