<PAGE>
As filed with the Securities and Exchange Commission on December 9, 1996
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
JAVA GROUP, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 11-2987370
(State or other jurisdiction (I.R.S. employer
of incorporation or organization) identification no.)
404-999 CANADA PLACE
VANCOUVER, BRITISH COLUMBIA, CANADA V6C 3E2
(Address of principal executive offices) (Zip Code)
CONSULTING AGREEMENT DATED AS OF NOVEMBER 25, 1996
BETWEEN THE REGISTRANT AND SANDRA DOEL
FINANCIAL PUBLICATION RELATIONS AGREEMENT DATED DECEMBER 2, 1996
BETWEEN THE REGISTRATION AND I.W. MILLER & CO., INC.
CONSULTING AGREEMENT DATED AS OF NOVEMBER 29, 1996 BETWEEN THE
REGISTRANT AND NIMBUS TRES SOCIEDAD ANONIMA
(Full title of the plans)
ROBERT P. GILLINGHAM
JAVA GROUP, INC.
404-999 CANADA PLACE
VANCOUVER, BRITISH COLUMBIA, CANADA V6C 3E2
(Name and address of agent for service)
(604) 641-1362
Telephone number, including area code, of agent for service
COPY TO:
Eric W. Nodiff, Esq.
Dornbush Mensch Mandelstam & Schaeffer, LLP
747 Third Avenue
New York, New York 10017
(212) 759-3300
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=======================================================================================
Proposed Proposed
Maximum Maximum Amount of
Title of Securities to Amount to be Price Aggregate Registration
be registered Registered Per Share* Offering Price* Fee
- ---------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value
$.0001 per share 550,000 shares $.56 $308,000 $106.20
=======================================================================================
</TABLE>
<PAGE>
* Estimated solely for purposes of calculating the registration fee. Calculated
in accordance with Rule 457(c) under the Securities Act of 1933 based upon the
price of Common Stock of Java Group, Inc. on the OTC Bulletin Board on December
3, 1996.
-2-
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission are incorporated herein by reference:
(a) The Registration Statement on Form 10-SB of Java Group,
Inc. (the "Company"), filed August 16, 1996 (File No. 0-28888),
as amended by Amendment No. 1 filed on or about October 16, 1996
and Amendment No. 2 filed on or about November 8, 1996, which
became effective on October 15, 1996. The Registration Statement
contains a description of the Company's Common Stock.
(b) All other reports of the Company filed pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934
since the end of the fiscal year ended July 31, 1995.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 prior
to the filing of a post-effective amendment indicating that all securities
offered hereby have been sold or deregistering all such securities then unsold,
shall be deemed to be incorporated by reference into this Registration Statement
and to be a part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
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<PAGE>
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Section 145 of the Delaware General Corporation Law, subject to
various exceptions and limitations, the Company may indemnify its directors or
officers if such director or officer is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (including an action by
or in the right of the Company by reason of the fact that he is or was a
director or officer of the Company, or is or was serving at the request of the
Company as a director or officer of another corporation) against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Company, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful, except, in the case of an action by or in the right of the
Company to procure a judgment in its favor, as to any matter which such person
shall have been adjudged to be liable for negligence or misconduct in the
performance of his duty. The Company shall indemnify its directors or officers
to the extent that they have been successful on the merits or otherwise in
defense of any such action, suit or proceeding, or in the defense of any claim,
issue or matter therein, against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection therewith. In addition, Delaware
law permits a corporation to limit or eliminate the liability of a director to
the corporation and its shareholders for negligent breaches of such directors'
fiduciary duties in certain circumstances.
Article Tenth of the Amended and Restated Certificate of Incorporation
of the Company provides that the Company shall indemnify its directors and
officers to the fullest extent permitted by Section 145 of the General
Corporation Law of the State of Delaware, as the same may be amended and
supplemented, or by any successor thereto, indemnify any and all persons whom it
shall have power to indemnify under said section from and against any and all of
the expenses, liabilities or other matters referred to in or covered by said
section. Such right to indemnification shall continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a person. The
indemnification provided for herein shall not be deemed exclusive of any other
rights of which those seeking indemnification may be
-4-
<PAGE>
entitled under any By-Law, agreement, vote of stockholders or disinterested
directors or otherwise.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933, may be permitted to directors, officers or persons
controlling the Company pursuant to the foregoing provisions, the Company has
been informed that, in the opinion of the Securities and Exchange Commission,
such indemnification is against public policy as expressed in the Securities Act
of 1933 and is therefore unenforceable. Furthermore, the Company has given
certain undertakings with respect to indemnification in connection with this
Registration Statement.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.01 - The Company's Amended and Restated Certificate of
Incorporation (Incorporated herein by reference to Exhibit
2(a) to the Company's Registration Statement on Form 10-SB
(File No. 0-28888).
4.02 - Consulting Agreement dated as of November 25, 1996 between
the Company and Sandra Doel
4.03 - Financial Public Relations Agreement dated December 2, 1996
between the Company and I.W. Miller & Co., Inc.
4.04 - Consulting Agreement dated November 29, 1996 between the
Registrant and Nimbus Tres Sociedad Anonima
5.01 - Opinion of Dornbush Mensch Mandelstam & Schaeffer, LLP.
23.01 - Consent of Dornbush Mensch Mandelstam & Schaeffer, LLP
(included in Exhibit 5).
23.02 - Consent of Elliott Tulk Pryce Anderson.
24.01 - Power of Attorney (included in signature page).
Item 9. Undertakings.
(a) The undersigned Company hereby undertakes:
-5-
<PAGE>
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement to include any
additional or changed material information on the plan of distribution.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be treated as a
new registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To file a post-effective amendment to remove from registration
any of the securities being registered hereunder which remain unsold at the end
of the offering.
(b) The undersigned Company hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Company's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under
Securities Act of 1933 may be permitted to directors, officers, and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise, the
Company has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than payment by the Company of expenses paid or
incurred by a director, officer or controlling person of the Company in the
successful defense of any action, suit, or proceeding) is asserted by such
director, officer, or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
-6-
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Vancouver, Province of British Columbia, Canada, on
the 6th day of December, 1996.
JAVA GROUP, INC.
By: /s/ Robert P. Gillingham
---------------------------
Robert P. Gillingham,
President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Robert P. Gillingham his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
or all amendments (including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorney-in-fact and agent full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and agent
or his substitute may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
/s/ Robert P. Gillingham President (Principal December 6, 1996
- ------------------------- Executive Officer and
Robert P. Gillingham Principal Financial
Officer) and Director
/s/ Ray Suutari Director December 6, 1996
- -------------------------
Ray Suutari
/s/ Greg Lampert Director December 6, 1996
- -------------------------
Greg Lampert
<PAGE>
Exhibit 4.02
CONSULTING AGREEMENT
This agreement is made as of November 25, 1996 by and between Java Group, Inc.,
a Delaware Corporation (the "Company") and Sandra Doel, an individual (the
"Consultant").
RECITALS:
A. The Company is a Public company which desires to expose its business plan
to the investment community and to build the value of the Company for the
benefit of its shareholders; and
B. The Consultant is a financial advisor involved in a variety of businesses,
with particular emphasis in Financial Public Relations and publishing for
Public companies; and
C. The Company recognizes the experience and knowledge of the Consultant in
matters relating to Financial Public Relations and publishing; and
D. The Company further recognizes that it is in the best interests of the
Company to engage the consulting services of the Consultant; and
E. The Company desires to retain the valuable services and counsel of the
Consultant, and the Consultant desires to render such services to the
Company upon the terms set forth in this Agreement.
Now, Therefore, in consideration of the mutual promises and covenants set
forth below, 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. RECITALS: The Recitals to this agreement are hereby incorporated into this
agreement as though full restated herein.
2. ENGAGEMENT: The Company hereby engages the Consultant, and the Consultant
accepts engagement by the Company, upon the terms and conditions set for in
this Agreement.
3. TERM: the term of this Agreement shall begin on the date hereof and shall
continue until November 25, 1997.
<PAGE>
4. CONSULTING SERVICES COMPENSATION: The Company shall pay to the Consultant
for services under this Agreement, Two Hundred Thousand (200,000) Common
shares to Java Group, Inc., which shares shall be immediately registered
under a S-8 short form Registration Statement with the Securities and
Exchange Commission, by the Company, at the Company's expense.
5. DUTIES: From time to time, as reasonably requested by the Company, the
Consultant shall provide financial public relations advice and services to
the Company.
6. NATURE OF ENGAGEMENT: The Consultant is being engaged by the Company as an
independent contractor. Nothing in this Agreement shall be construed so as
to create an employer-employee relationship between the parties.
7. EXPENSES: Upon receipt of requests from the Consultant for reimbursement,
the Company shall reimburse the Consultant for all reasonable and necessary
expenses the Consultant incurs, prior to and after the date of this
Agreement in performing his duties in connection with this Agreement. The
Consultant shall be required to receive authorization from the Company
prior to incurring any such expenses in excess of $1,000.
8. NOTICES: Any notice, report or demand required, permitted or desired under
this Agreement shall be sufficient if in writing and delivered by certified
mail, return receipt requested, Federal Express (or similar courier),
telegram or receipted hand delivery, at the following addresses (or such
other addresses designated by proper notice):
To the Company: Java Group Inc.
#404 - 999 Canada Place
Vancouver, B.C. V6C 3E2
To the Consultant: Sandra Doel
12701 Barkley Street
Overland Park, KS 66209
Any notice otherwise delivered shall be deemed given when actually received by
recipient.
9. MISCELLANEOUS:
A) Governing Law: This Agreement shall be governed by, interpreted and
enforced in accordance with the laws of the State of Delaware.
B) Waiver: The waiver by any party hereto of a breach of any provision
of this agreement shall not operate as a waiver of any other breach of
any provision of this Agreement by any party.
-2-
<PAGE>
C) Entire Agreement: This instrument contains the entire agreement of
the parties concerning engagement and may not be changed or modified
except by written agreement duly executed by the parties hereto.
D) Successors and Assigns: This Agreement shall insure to the benefit of
and be binding upon the parties hereto and their respective
successors, heirs, personal representatives and assigns.
E) Day(s): Reference in this Agreement to "day" or "days" refers to
calendar days, but if a referenced date falls on a Saturday, Sunday or
federal holiday, it will be deemed to fall on the next calendar day
that is not a Saturday, Sunday or federal holiday.
F) Confidentiality: Except as may otherwise by required by law, the
provisions of this Agreement shall remain strictly confidential. To
the extent permitted by law, the Board of Directors of the Company
shall ensure that no person other than members of the Board of
Directors of the Company and appropriate officers of the Company,
their legal counsel or accountants, are made aware of the terms of
this Agreement. In addition, neither the Company nor the Consultant
shall, either directly or indirectly through their respective
officers, directors, employees, shareholders, partners, joint
ventures, agents, consultants, contractor, affiliates or any other
person, disclose, communicate, disseminate or otherwise breach the
confidentiality of all or any provision of this Agreement, without the
expressed written consent of both parties to this Agreement.
G) Specific Performance: Strict compliance shall be required with each
and every provision of this Agreement. The parties hereto agree that
breach of this Agreement shall result in irreparable damage, and that
specific performance of these obligations may be obtained.
H) Additional Documents: The Company agrees to execute such other
documents and agreements to effect the purpose of this Agreement, as
the Consultant may request from time to time.
I) Assignment: The obligations of the parties under this Agreement shall
not be assigned without the written consent of the parties.
Notwithstanding any provision of this Agreement to the contrary,
however, the Consultant shall be entitled to provide that any funds
payable or stock issuable to them
-3-
<PAGE>
pursuant to this Agreement shall instead be paid or issued to another
person.
J) Counterparts: This Agreement may be executed in counterparts, all the
counterparts will be considered as part of one agreement binding on
all parties to this Agreement.
K) Facsimile Signature: The parties may execute this Agreement by
facsimile, which signature(s) shall be deemed an original and binding
upon such party.
L) Severability: If any term, provision or condition of this Agreement
or the application thereof to any party or circumstance shall, at any
time or to any extent, be invalid or unenforceable, the remainder of
this Agreement, or the application of such term, provision or
condition to the parties or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby,
and each term, condition and provision of their Agreement shall be
valid and enforceable to the fullest extent of the law.
M) Dispute Procedures: Any dispute, controversy or claims arising out
of, or in connection with this Agreement shall be settled by binding
arbitration in accordance with the rules of the American Arbitration
Association then in effect. The arbitration shall be conducted on an
expedient basis by an independent arbitrator selected by the American
Arbitration Association. The arbitration shall be subject to, and the
arbitrator shall have the powers and rights afforded by, the rules of
the American Arbitration Association. The decision of such
arbitrator, including any award of attorney's fees and costs, may be
entered into any court with jurisdiction.
N) Board of Directors: Except as expressly provided otherwise in this
Agreement, reference to actions, determinations or similar occurrences
by the Company shall mean the action, decision or determination of its
Board of Directors.
O) Authority: The Company hereby represents and warrants that the person
executing this Agreement on its behalf is duly authorized to do so
that the execution of this Agreement has been duly approved by the
Board of Directors of the Company, and that this Agreement is binding
upon the Company. The Company hereby agrees to provide such
documentation evidencing such authorization and approval as the
Consultant may reasonably request including, without
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<PAGE>
limitation, written consents of the Board of Directors of the Company.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
Java Group, Inc.
By: /s/ Robert Gillingham
----------------------
Robert Gillingham, Java Group, Inc.
/s/ Sandra Doel
----------------
Sandra Doel, an Individual
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<PAGE>
Exhibit 4.03
FINANCIAL PUBLIC RELATIONS AGREEMENT
This Financial Public Relations Agreement (the "Agreement") is made and
entered into effective on the 2nd day of December, 1996, between The Java Group,
Inc., a Delaware corporation (the "Company"), having offices at 404-999 Canada
Place, Vancouver, British Columbia, Canada, V6C 3E2 and I.W. Miller & Co., Inc.,
a California corporation (the "Consultant"), having offices at 49 San Marino,
Irvine, California, USA, 92714, based on the following:
PREMISES
A. The Company is a publicly-held corporation with its securities currently
traded on the NASDAQ Bulletin Board market. The Company is seeking to
expand its investor base and the number of market professionals who are
aware of the Company's activities.
B. Consultant is established in the securities industry and has experience in
providing advice and support for publicly-held companies.
C. The Company desires to retain the services of Consultant, and Consultant
desires to offer such services, on the terms and conditions set forth in
this Agreement.
NOW, THEREFORE, based on the foregoing premises and in consideration of the
mutual covenants of the parties and benefits to be derived therefrom, it is
hereby agreed as follows:
AGREEMENT
1. ENGAGEMENT OF CONSULTANT: The Company hereby engages Consultant to provide
services to the Company under the terms of this Agreement, including, but
not limited to, the analysis of the business and proposed business of the
Company by equity participants; the presentation of the Company to market
professionals, including broker-dealers, mutual funds, and other
institutional investors; providing the Company advice concerning
shareholder relations and the preparation and dissemination of information
to the Company's shareholders; assisting in long-term financial planning,
including borrowings, equity financing and other opportunities; providing
advice concerning the existing and future capital structure of the Company;
and providing other financial assistance to the extent required by the
Company. Notwithstanding the foregoing, Consultant shall not act as an
agent of the Company and shall not contact
<PAGE>
the holders of the securities of the Company in connection with the
exercise or conversation of currently issued and outstanding warrants,
options, or convertible securities.
2. MARKETING: The Java Group, Inc., shall furnish to Consultant disclosure
and filing materials, financial statements, business plans, promotional
materials, annual reports and press releases. In addition, Company agrees
to distribute due diligence packages in ample quantities to potential
investors as well as to the brokerage community. Consultant may relay on,
and assume the accuracy of the due diligence package and/or research
reports. Consultant may disseminate through the use of media and
advertisement the contents of the due diligence package and any research
reports in order to attract potential investors as well as the brokerage
community. Company acknowledges that Consultant is engaged in other
business activities and will continue such activities during the term of
this Agreement. Consultant shall not be restricted from engaging in other
business activities during the term of this Agreement.
3. ADVERTISING: Advertising is defined as the cost associated with lead
generation programs arranged by the Consultant for the Company. These
programs are designed to create investor awareness for the Company.
4. COMPENSATION TO CONSULTANT: For the services provided to the Company, the
Consultant is to receive 200,000 JVGI common shares. The shares are
payable upon execution of this contract. The Consultant is to pay for all
agreed upon advertising expenses (up to 50,000 JVGI common shares).
5. TERM: This Agreement shall commence on the date hereof and will terminate
on the earliest of the following:
a. 6 months from the date of this Agreement
b. This Agreement can be renewed after 6 months and extended for a
mutually agreed upon period of time.
c. Upon termination for cause by Company upon 30 days written
notice. Cause shall be determined solely as to the following:
violation of any rule or regulation of any regulatory agency; any
other neglect, act or omission detrimental to the conduct of
Company business; material breach of the Agreement or any
unauthorized disclosure of any of the secrets or confidential
information or Company; dishonesty related to independent
contractor status.
-2-
<PAGE>
6. CONFIDENTIALITY: Consultant acknowledges that it may receive confidential
and proprietary information of the Company in connection with the services
provided under the terms of this Agreement. The Consultant agrees to keep
all such information confidential and to take prudent steps to assure that
its officers, directors, and employees maintain the confidentiality of such
information, including obtaining agreements similar to the provisions of
this paragraph from such officers, directors, and employees, and to not use
such confidential information, except for the direct benefit of the
Company. Consultant shall not disclose such confidential information and
shall take reasonable steps to prevent the disclosure by its officers,
directors, and employees, without the prior written consent of the Company.
7. REIMBURSEMENT OF COSTS: Consultant shall be reimbursed by the Company for
all reasonable and necessary out-of-pocket third-party expenses incurred by
Consultant in connection with the performance of its obligations under the
terms of this Agreement. All third-party expenses are to be mutually
agreed upon in advance.
8. INDEPENDENT CONSULTANT: The Company and Consultant hereby acknowledge that
Consultant is an independent contractor. Consultant shall not hold itself
out as, nor shall it take any action from which others might infer that it
is, a partner or agent of or a joint venturer with the Company. Consultant
shall have no authority to act on behalf of or bind the Company and shall
take no action which purports to bind the Company.
9. ENTIRE AGREEMENT: This Agreement is and shall be considered to be the only
agreement or understanding between the parties hereto with respect to the
engagement of Consultant by the Company. All negotiations, commitments,
and understandings acceptable to both parties have been incorporated
herein. No letter, telegram, or communication passing between the two
parties hereto covering any matter during this contract period, or any
plans or periods thereafter, shall be deemed as part of this Agreement; and
shall not have the effect of modifying or adding to this Agreement unless
it is distinctly stated is such letter, telegram, or communication that it
is to constitute a part of this Agreement and is to be attached as an
amendment to this Agreement and is signed by the parties to this Agreement.
10. GOVERNING LAW: This Agreement shall be governed by and interpreted in
accordance with the laws of the State of California.
-3-
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
/s/ Rob Gillingham
- ----------------------
Rob Gillingham December 2, 1996
President and CEO
The Java Group, Inc.
/s/ Ira W. Miller
- ----------------------
Ira W. Miller December 2, 1996
President
I.W. Miller & Co., Inc.
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<PAGE>
Exhibit 4.04
CONSULTING AGREEMENT
This agreement is made as of November 29, 1996 by and between Java Group, Inc.,
a Delaware Corporation (the "Company") and Nimbus Tres Sociedad Aninima, a Costa
Rican Corporation (the "Consultant").
RECITALS:
A. The Company is a Public company which desires to expose its business plan
to the European investment community and to build the value of the Company
for the benefit of its shareholders; and
B. The Consultant is a financial advisor involved in a variety of businesses,
with particular emphasis in Financial Public Relations and publishing for
Public companies; and
C. The Company recognizes the experience and knowledge of the Consultant in
matters relating to Financial Public Relations and publishing; and
D. The Company further recognizes that it is in the best interests of the
Company to engage the consulting services of the Consultant; and
E. The Company desires to retain the valuable services and counsel of the
Consultant, and the Consultant desires to render such services to the
Company upon the terms set forth in this Agreement.
Now, Therefore, in consideration of the mutual promises and covenants set
forth below, 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. RECITALS: The Recitals to this agreement are hereby incorporated into this
agreement as though full restated herein.
2. ENGAGEMENT: The Company hereby engages the Consultant, and the Consultant
accepts engagement by the Company, upon the terms and conditions set for
in this Agreement.
<PAGE>
3. TERM: the term of this Agreement shall begin on the date hereof and shall
continue for one year.
4. CONSULTING SERVICES COMPENSATION: The Company shall pay to the Consultant
for services under this Agreement, One Hundred Fifty Thousand (150,000)
Common shares to Java Group, Inc., which shares shall be immediately
registered under a S-8 short form Registration Statement with the
Securities and Exchange Commission, by the Company, at the Company's
expense.
5. DUTIES: From time to time, as reasonably requested by the Company, the
Consultant shall provide financial public relations advice and services to
the Company.
6. NATURE OF ENGAGEMENT: The Consultant is being engaged by the Company as an
independent contractor. Nothing in this Agreement shall be construed so as
to create an employer-employee relationship between the parties.
7. EXPENSES: Upon receipt of requests from the Consultant for reimbursement,
the Company shall reimburse the Consultant for all reasonable and necessary
expenses the Consultant incurs, prior to and after the date of this
Agreement in performing his duties in connection with this Agreement. The
Consultant shall be required to receive authorization from the Company
prior to incurring any such expenses in excess of $1,000.
8. NOTICES: Any notice, report or demand required, permitted or desired under
this Agreement shall be sufficient if in writing and delivered by certified
mail, return receipt requested, Federal Express (or similar courier),
telegram or receipted hand delivery, at the following addresses (or such
other addresses designated by proper notice):
To the Company: Java Group Inc.
#404 - 999 Canada Place
Vancouver, B.C. V6C 3E2
To the Consultant: Nimbus Tres Sociedad Anonima
#166 De Padera
Urb. San Antonio
Cartago, Costa Rica
Any notice otherwise delivered shall be deemed given when actually received by
recipient.
-2-
<PAGE>
9. MISCELLANEOUS:
A) Governing Law: This Agreement shall be governed by, interpreted and
enforced in accordance with the laws of the State of Delaware.
B) Waiver: The waiver by any party hereto of a breach of any provision
of this agreement shall not operate as a waiver of any other breach of
any provision of this Agreement by any party.
C) Entire Agreement: This instrument contains the entire agreement of
the parties concerning engagement and may not be changed or modified
except by written agreement duly executed by the parties hereto.
D) Successors and Assigns: This Agreement shall insure to the benefit of
and be binding upon the parties hereto and their respective
successors, heirs, personal representatives and assigns.
E) Day(s): Reference in this Agreement to "day" or "days" refers to
calendar days, but if a referenced date falls on a Saturday, Sunday or
federal holiday, it will be deemed to fall on the next calendar day
that is not a Saturday, Sunday or federal holiday.
F) Confidentiality: Except as may otherwise by required by law, the
provisions of this Agreement shall remain strictly confidential. To
the extent permitted by law, the Board of Directors of the Company
shall ensure that no person other than members of the Board of
Directors of the Company and appropriate officers of the Company,
their legal counsel or accountants, are made aware of the terms of
this Agreement. In addition, neither the Company nor the Consultant
shall, either directly or indirectly through their respective
officers, directors, employees, shareholders, partners, joint
ventures, agents, consultants, contractor, affiliates or any other
person, disclose, communicate, disseminate or otherwise breach the
confidentiality of all or any provision of this Agreement, without the
expressed written consent of both parties to this Agreement.
G) Specific Performance: Strict compliance shall be required with each
and every provision of this Agreement. The parties hereto agree that
breach of this Agreement shall result in irreparable damage,
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<PAGE>
and that specific performance of these obligations may be obtained.
H) Additional Documents: The Company agrees to execute such other
documents and agreements to effect the purpose of this Agreement, as
the Consultant may request from time to time.
I) Assignment: The obligations of the parties under this Agreement shall
not be assigned without the written consent of the parties.
Notwithstanding any provision of this Agreement to the contrary,
however, the Consultant shall be entitled to provide that any funds
payable or stock issuable to them pursuant to this Agreement shall
instead be paid or issued to another person.
J) Counterparts: This Agreement may be executed in counterparts, all the
counterparts will be considered as part of one agreement binding on
all parties to this Agreement.
K) Facsimile Signature: The parties may execute this Agreement by
facsimile, which signature(s) shall be deemed an original and binding
upon such party.
L) Severability: If any term, provision or condition of this Agreement
or the application thereof to any party or circumstance shall, at any
time or to any extent, be invalid or unenforceable, the remainder of
this Agreement, or the application of such term, provision or
condition to the parties or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby,
and each term, condition and provision of their Agreement shall be
valid and enforceable to the fullest extent of the law.
M) Dispute Procedures: Any dispute, controversy or claims arising out
of, or in connection with this Agreement shall be settled by binding
arbitration in accordance with the rules of the American Arbitration
Association then in effect. The arbitration shall be conducted on an
expedient basis by an independent arbitrator selected by the American
Arbitration Association. The arbitration shall be subject to, and the
arbitrator shall have the powers and rights afforded by, the rules of
the American Arbitration Association. The decision of such
arbitrator, including any award of attorney's
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<PAGE>
fees and costs, may be entered into any court with jurisdiction.
N) Board of Directors: Except as expressly provided otherwise in this
Agreement, reference to actions, determinations or similar occurrences
by the Company shall mean the action, decision or determination of its
Board of Directors.
O) Authority: The Company hereby represents and warrants that the person
executing this Agreement on its behalf is duly authorized to do so
that the execution of this Agreement has been duly approved by the
Board of Directors of the Company, and that this Agreement is binding
upon the Company. The Company hereby agrees to provide such
documentation evidencing such authorization and approval as the
Consultant may reasonably request including, without limitation,
written consents of the Board of Directors of the Company.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
JAVA GROUP, INC.
By: /s/ Robert Gillingham
----------------------
Robert Gillingham, President
NIMBUS TRES SOCIEDAD ANONIMA
By: /s/ Jorge Castro Olmos
-----------------------
Jorge Castro Olmos
President
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<PAGE>
Exhibit 5.01
[Letterhead of Dornbush Mensch Mandelstam & Schaeffer, LLP]
December 9, 1996
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Java Group, Inc.
Registration Statement on Form S-8
Gentlemen:
We have been requested by Java Group, Inc., a Delaware corporation (the
"Company"), to furnish you with our opinion as to the matters hereinafter set
forth in connection with the above-captioned registration statement (the
"Registration Statement") covering an aggregate of 550,000 shares (the "Shares")
of the Company's common stock issuable pursuant to the agreements listed on the
cover page of the Registration Statement (the "Plans").
In connection with this opinion, we have examined the Registration
Statement and the Company's Amended and Restated Certificate of Incorporation
and By-laws, the Plans, copies of the records of corporate proceedings of the
Company, and such other documents as we have deemed necessary to enable us to
render the opinion hereinafter expressed.
Based upon and subject to the foregoing, we are of the opinion that the
Shares, when issued in accordance with the Plans, will be legally issued, fully
paid and non-assessable.
We render no opinion as to the laws of any jurisdiction other than the
internal laws of the State of New York and the internal corporate law of the
State of Delaware.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement and to the reference to our name under the caption "Legal
Opinions" in the prospectus included in the Registration Statement.
Very truly yours,
DORNBUSH MENSCH MANDELSTAM & SCHAEFFER, LLP
<PAGE>
Exhibit 23.02
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement
on Form S-8 pertaining to an aggregate of 550,000 shares of Common Stock of Java
Group, Inc. issuable pursuant to the agreements listed on the cover page of such
Registration Statement and of our reports dated October 8, 1996, September 30,
1996 and November 3, 1995, with respect to the financial statements and
schedules of Java Group, Inc. included in its Registration Statement on Form
10-SB filed with the Securities and Exchange Commission.
ELLIOTT TULK PRYCE ANDERSON
Vancouver, British Columbia, Canada
December 9, 1996
