As filed with the Securities and Exchange Commission on March 18, 1997
Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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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)
FINANCIAL PUBLICATION RELATIONS AGREEMENT DATED FEBRUARY 24, 1997
BETWEEN THE REGISTRATION AND PAUL CUGNO
(Full title of the plan)
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>
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Proposed Proposed
Maximum Maximum Amount of
Title of Securities to Amount to be Price Aggregate Registration
be registered Registered Per Share* Offering Price* Fee
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<S> <C> <C> <C> <C>
Common Stock, par value
$.0001 per share 50,000 shares $.37 $18,500 $6.00
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</TABLE>
* 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 March 11,
1997.
<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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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
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<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 - Financial Public Relations Agreement dated February 24,
1997 between the Company and Paul Cugno.
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:
(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.
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<PAGE>
(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.
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<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 11th day of March, 1997.
JAVA GROUP, INC.
By: /s/ Robert P. Gillingham
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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 March 11, 1997
- ------------------------- President (Principal
Robert P. Gillingham Executive Officer and
Principal Financial
Officer) and Director
/s/ Ray Suutari Director March 11, 1997
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Ray Suutari
/s/ Greg Lampert Director March 11, 1997
- -------------------------
Greg Lampert
Exhibit 4.02
FINANCIAL PUBLIC RELATIONS AGREEMENT
This Financial Public Relations Agreement (the "Agreement") is made and
entered into effective on the 24th day of February, 1997, between The Java
Group, Inc., a Delaware corporation (the "Company"), having offices at 404-999
Canada Place, Vancouver, British Columbia, Canada, V6C 3E2 and Paul Cugno,
located at 243 Antoine, Villeray, Beaconsfield, Quebec, H9W 6E9.
Premises
A. The Company is a publicly-held corporation with its securities currently
traded on the NASDAQ Bulletin Board market.
B. Consultant is established in the securities industry and has experience in
providing advice and support for publicly-held companies. More
specifically, the Consultant has found market professionals both in Europe
and Canada who he has introduced to the Company's activities.
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. Travelling expenses incurred with development of
these investors is to be covered by stock issued in the Company.
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
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<PAGE>
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 the contents of the due diligence package and
any research reports in order to attract market professionals. 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. Compensation to Consultant: For the services provided to the Company, the
Consultant is to receive 50,000 JVGI common shares. The shares are payable
upon execution of this contract. The Consultant is to pay for all agreed
upon travelling expenses from the issue of shares.
4. 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.
5. 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.
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6. 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.
7. 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.
8. Governing Law: This Agreement shall be governed by and
interpreted in accordance with the laws of the Province of
British Columbia.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
/s/ Rob Gillingham
- -----------------------------
Rob Gillingham February 24, 1997
President and CEO
The Java Group, Inc.
/s/ Paul Cugno
- -----------------------------
Paul Cugno February 24, 1997
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Exhibit 5.01
[Letterhead of Dornbush Mensch Mandelstam & Schaeffer, LLP]
March 17, 1997
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 50,000 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
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 50,000 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
March 11, 1997
