EXHIBIT 99.1
JAVA GROUP, INC.
PURCHASE OF ASSETS
OF
DNR RESOURCES, INC.
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MARCH 26, 1998
Amended and Restated
Asset Purchase Agreement
AMENDED AND RESTATED
ASSET PURCHASE AGREEMENT
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THIS ASSET PURCHASE AGREEMENT (this "Agreement"), made and entered into
effective the 26th day of March, 1998, by and between JAVA GROUP, INC., a public
Delaware corporation (the "Purchaser"), and DNR RESOURCES, INC., a public
Delaware corporation ("Seller");
WITNESSETH:
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WHEREAS, subject to the terms and conditions contained in this Agreement, Seller
desires to sell, and Purchaser desires to purchase, certain assets specified
herein;
WHEREAS, the parties wish to make certain agreements related to such
purchase and sale and certain other agreements;
NOW THEREFORE, in consideration of the mutual promises and agreements
contained herein, the parties hereto, intending to be legally bound, hereby
agree as follows:
SECTION 1. PURCHASE AND SALE OF ASSETS
1.1 Purchase and Sale. Subject to the terms and conditions contained
herein, Seller hereby sells, assigns, transfers, conveys, and delivers to
Purchaser, and Purchaser hereby purchases from Seller, all of Seller's right,
title, and interest in and to the following of Seller's assets (all of such
assets being referred to herein collectively as the "Assets"):
1.2 Assets. Without limiting the generality of Section 1.1 hereof, the
Assets include the following:
(a) All of Seller's oil and gas properties (both real and personal),
including all well head and operating equipment, operating supplies,
furniture, fixtures, computer software, shop inventory, and leasehold
improvements, including but not limited to those listed on Exhibit "A"
hereto;
(b) All technical data, customer lists and records, customer credit
information, computer printouts, correspondence, documentation relating to
Seller's oil and gas business; and copies of all accounting records,
inventory records, and all other files and records of Seller's oil and gas
business;
(d) All of Seller's good-will, including the right to use the current
name and telephone number of "Belleview Field of DNR" (Seller agrees to
execute any documents required to transfer said name and telephone number
to Purchaser); and
(e) All of Seller's rights under the "Assumed Contracts" (as herein
defined).
Amended and Restated
Asset Purchase Agreeement
SECTION 2. ASSUMPTION OF LIABILITIES
2.1 Limit on Assumed Obligations. Except as expressly provided in Section
2.2, no obligation or liability of Seller or relating to Seller's business or
the Assets, of any nature whatsoever (whether express or implied, fixed or
contingent, liquidated or unliquidated, known or unknown, accrued, due or to
become due), is being assumed by Purchaser, nor shall Purchaser be liable to
pay, perform or discharge any such obligation or liability, nor shall the Assets
be subject to any such obligation or liability. Without limiting the generality
of the foregoing, except as expressly provided in Section 2.2, Purchaser has not
assumed or become liable to pay, perform or discharge, and Seller warrants that
no Asset is subject to:
(a) Any mortgage, security interest, lien or encumbrance of any kind,
other than as expressly assumed pursuant to Section 2.2;
(b) Any obligation or liability arising from the relationship between
Seller and any of its employees or based upon termination of such employees
by Seller, including, without limitation, any severance or vacation pay
obligation of Seller existing at the "Effective Time" (as herein defined)
or arising by reason of the termination of Seller's employees by Seller;
(c) Any obligation or liability of Seller for or relating to taxes of
any nature or description, whenever incurred or accrued, including, without
limitation, any tax liability for any period prior to the Effective Time;
(d) Any obligation, liability or expense arising out of any claim made
or suit brought for personal injury, death, property damage, tortious
injury or damage, breach of fiduciary duty or trust, or errors or
omissions, in any case attributable to a cause of action arising prior to
the Effective Time;
(e) Any obligation or liability arising from a violation or alleged
violation of law, rule or regulation prior to the Effective Time,
including, without limitation, any claim, obligation, liability, loss,
damage or expense, of whatever kind or nature, contingent or otherwise,
known or unknown, incurred or imposed or based upon any provision of
federal, state or local law or regulations or common law applicable to
Seller's business, and arising out of any act or omission of Seller, or
Seller's employees, agents or representatives occurring prior to the
Effective Time;
(f) Any obligation or liability to any shareholder of Seller, however
arising;
(g) Any obligation or liability relating to any act or omission of
Seller under, or breach by Seller of, any Assumed Contract prior to the
Effective Time;
Amended and Restated
Asset Purchase Agreement
(h) Any liability arising from the assignment to Purchaser of any
Assumed Contract without having obtained any required consent to such
assignment; or
(i) Any liability or obligation arising in connection with any
litigation, claim or proceeding to which Seller is or becomes a party.
2.2 Assumed Obligations. Purchaser hereby assumes the following, and only
the following, liabilities and obligations of Seller (the "Assumed
Obligations"):
(a) Seller's obligations arising after, and properly accruable to
periods subsequent to, the Effective Time under the terms of those
contracts, agreements and leases listed on Exhibit "B" hereto (the "Assumed
Contracts"), to the extent, and only to the extent, such obligations and
liabilities are set forth in the copies of the Assumed Contracts delivered
to Purchaser, and
(b) The liabilities, if any, listed on Exhibit "C" hereto.
SECTION 3. PURCHASE PRICE
The purchase price (the "Purchase Price") for the Assets shall be Three
Million (3,000,000) shares of Purchaser's Series A Convertible Preferred Stock
($.0001 par value) ("Preferred Stock") which will at Purchaser's option be
redeemed or converted on or before sixty months after closing. Purchaser shall
make an allocation (the "Allocation") of the Purchase Price among the Assets
within a reasonable period after the Closing Date and promptly notify Seller in
writing thereof. Purchaser and Seller shall use the Allocation in filing Form
8594 with the Internal Revenue Service, as required by Section 1060 of the
Internal Revenue Code of 1986, as amended, and in filing all relevant federal
and state income tax returns. Seller agrees to cooperate with Purchaser to the
extent necessary to comply with any documentation or other requirements that may
arise in conjunction with filing Form 8594.
Each share of Preferred Stock will, at the option of Purchaser, be either
(1) convertible into said number of Purchaser's common stock to equal a fair
market value of $3,000,000 (plus any accrued and unpaid dividends) at the time
of conversion based upon the average prices of such shares during the five
trading days preceding the date of Purchaser's election, or (2) be redeemed
sixty months (60) after closing for cash in the amount of $2,500,000 plus any
accrued and unpaid dividends. Purchaser may convert the Preferred Stock into
shares of Common stock of Purchaser at any time after the date of issue; however
if not converted prior to sixty months (60) after closing, Purchaser will be
obligated to redeem said shares.
Should the Purchaser elect to convert the preferred stock to common stock,
Purchaser will use it's best efforts in insure that it has an amount of common
stock sufficient to accomplish the conversion.
Amended and Restated
Asset Purchase Agreement
SECTION 4. CLOSING.
The closing (the "Closing") of the transactions contemplated hereby will
occur on or before March 31, 1998 which is herein sometimes referred to as the
"Effective Time."
SECTION 5. REPRESENTATION AND WARRANTIES OF SELLER.
Seller hereby represents, warrants, covenants, and agrees to and with
Purchaser as follows:
5.1 Due Organization. Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware. Seller
has the corporate power and authority to own the Assets, to conduct its business
as it is now being conducted, and to enter into and perform its obligations
under this Agreement and all other documents, instruments and agreements
delivered by Seller pursuant hereto (collectively, with this Agreement, the
"Seller Agreements").
5.2 Approval and Effect of Sale. The execution and delivery of the Seller
Agreements by Seller, the sale and delivery of the Assets, and the performance
by Seller of all obligations under the Seller Agreements have been duly
authorized by all necessary corporate action on the part of Seller. The Seller
Agreements have been duly executed and delivered by Seller, and the Seller
Agreements constitute valid and legally binding obligations of Seller,
enforceable against Seller in accordance with their respective terms (subject to
limitations on enforceability under normal equity principles and by applicable
bankruptcy, insolvency, reorganization, moratorium, or other similar laws
affecting the rights of creditors generally), and the consummation of the
transactions contemplated herein and therein will not violate or result in a
default under the terms or provisions of Seller's charter or bylaws. No consent
or approval of any governmental authority is required in connection with the
execution and delivery by Seller of the Seller Agreements or the consummation of
the transactions provided for herein and therein.
5.3 Title of Assets. Seller has, and has conveyed to Purchaser pursuant
hereto, good title to all of the Assets, free and clear of any pledge, lien,
security interest, encumbrance or restriction not listed on Exhibits "B" or "C"
hereto.
5.4 Contracts. A true, correct, and complete copy of each of the Assumed
Contracts is included in the business records located at Seller's business.
Seller has duly performed in all material respects all obligations to be
performed by it under the Assumed Contracts at or prior to the Effective Time
and has received no notice from any other party thereto that it is in default in
any material respect under any of its obligations thereunder. To the best
knowledge of Seller, no other party to any Assumed Contract is in default in any
material respect under any of its obligations thereunder. No condition or state
of facts exists that with notice or the passage of time, or both, would
constitute a default by Seller under any Assumed Contract, and each Assumed
Contract is in full force and effect and enforceable by Seller (and, after
assignment to
Amended and Restated
Asset Purchase Agreement
Purchaser at the Effective Time, by Purchaser) against all other parties thereto
in all material respects.
5.5 Litigation Claims. There is no litigation, action, suit, proceeding
or governmental investigation arising out of the operations of Seller that is
pending or, to the best of Seller's knowledge, threatened, against Seller or
affecting Seller or Seller's business or any of the Assets, at law or in equity,
or before any federal, state, municipal, local, or other governmental authority,
nor does Seller know or have reason to know of any ground for any such
litigation, action, suit, proceeding, or investigation. Seller is not subject to
any order, writ, or decree of any court of other governmental authority arising
out of Seller's business and Seller is not involved in any material controversy
with any of its employees.
5.6 Compliance with Law. Seller is in compliance in all material
respects, and has complied in every material respect, with all laws, regulation,
rules, and decrees of all governmental authorities whatsoever that are
applicable to the conduct of its business.
5.7 Finder's Fee. Seller has done nothing to cause Purchaser to incur any
liability to any party for any brokerage or finder's fee or agent's commission,
or the like, in connection with this Agreement or any transactions provided for
herein.
5.8 Taxes. All tax returns of Seller of every kind, including, without
limitation, returns of all income taxes, real and personal property taxes,
intangibles taxes, withholding taxes, employee compensation taxes and all other
applicable taxes, due to have been filed prior to the Effective Time have been
duly filed in accordance with applicable law. No deficiencies for any taxes have
been asserted or, to the knowledge of Seller, threatened, and no audit of such
returns is currently underway or, to the knowledge of Seller, threatened. There
are no outstanding agreements by Seller for the extension of time for the
assessment of any tax.
5.9 Material Misstatements or Omissions. No representation or warranty
made by Seller in any Seller Agreement, and no written statement or exhibit that
has been furnished to Purchaser pursuant hereto or thereto, contains any untrue
statement of a material fact, or omits to state a material fact necessary to
make the statements contained herein or therein not misleading.
SECTION 6. REPRESENTATION AND WARRANTIES OF PURCHASER
Purchaser hereby represents, warrants, covenants, and agrees to and with
Seller as follows:
6.1 Organization; Good Standing. Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and is qualified as a foreign corporation in all jurisdictions in which
it is required to qualify as a result of the conduct of its business or
ownership of its properties and where the failure to be so qualified could
reasonably be anticipated to have a Material Adverse Effect.
Amended and Restated
Asset Purchase Agreement
6.2. Capitalization. The authorized capital stock of Purchaser as of the
date of this Agreement, consists of 50,000,000 shares of common stock, $.0001
par value per share, of which 7,630,000 shares are issued and outstanding, and
5,000,000 shares of preferred stock, $.0001 par value per share, none of which
will be outstanding. There are no outstanding options, warrants, calls, puts,
commitments and other rights to purchase, or securities or other rights
convertible or exchangeable into, capital stock of Purchaser. All securities
issued or issuable by Purchaser have been paid for and delivered in accordance
with the terms of applicable agreements or instruments, duly authorized and
validly issued and are fully paid and non-assessable; the holders thereof have
no rights of rescission with respect thereto and are not subject to personal
liability by reason of being such holders; none of such securities were issued
in violation of the preemptive rights of any holder of any security of Purchaser
or any similar rights granted by Purchaser or Applicable Law.
6.3. Authority; Enforceability; Non-Contravention. Purchaser has the
corporate power and authority to conduct the business and activities conducted
by it and to own or lease the assets owned or leased by it. Purchaser has the
corporate power and authority to execute and deliver this Agreement and all
other documents required to be executed and delivered hereunder, to consummate
the transactions hereby contemplated, and to take all other actions required to
be taken by such party pursuant to the provisions hereof. This Agreement and all
other documents required to be executed and delivered by Purchaser hereunder
have been duly authorized by all corporate action necessary, as applicable and
constitute the legal, valid and binding obligations of Purchaser. Neither the
execution nor the delivery of this Agreement or any other documents required to
be executed and delivered by Purchaser hereunder or the consummation of the
transactions contemplated hereby (i) conflicts with or constitutes any violation
or breach of the Certificate of Incorporation or the Bylaws of Purchaser; (ii)
constitutes any violation or breach of, or gives any other Person any rights
(including any right of acceleration, termination or cancellation) under, any
Contract or other document or agreement to which Purchaser is a party, the
violation of which, in the aggregate, could reasonably be expected to have a
Material Adverse Effect; (iii) constitutes a violation of any Order or
Applicable Law; or (iv) will result in the creation of any Lien on any of the
assets or properties of Purchaser.
6.4. Compliance with Laws. Except for any violations of Applicable Law
arising from Purchaser's failure to timely file its Annual Report on Form 10-K
for its fiscal year ended June 30, 1997 and Form 10Q for quarters ending March
31, 1997, September 30, 1997, December 31, 1997 (which remain unfiled).
6.5 Liabilities as of Closing. The liabilities of purchaser shall not
exceed $190,000 (except for investor relations debt of $67,360.00 and company
loans of $341,603.00 all of which have been compromised and settled for issuance
of common stock totaling 6,022,400 shares).
6.6 Further Representation. No representation or warranty of Purchaser
contained in this Agreement contains any untrue statement of, or omits to state,
a material fact necessary in order to make the statements made herein, in light
of the circumstances under which they are made, not misleading. Copies of all
documents listed in the Schedules and furnished or given, or to be furnished or
given to Buyer or Buyer's agents are or will be true, complete and genuine.
SECTION 7. FURTHER ASSURANCES.
Each of the parties shall promptly and duly execute, acknowledge and
deliver such Asset Purchase Agreement.
Amended and Restated
Asset Purchase Agreement
assignments, documents, instruments and other assurances, and shall take such
other actions, as may be from time to time reasonably necessary or desirable to
carry out more effectively the provisions of this Agreement and to establish and
protect the rights created or intended to be created in favor of the parties
hereunder.
SECTION 8. SURVIVAL OF REPRESENTATIONS.
All representations, warranties and covenants of Seller contained in this
Agreement shall survive the Closing Date and shall be fully applicable and
effective whether or not Purchaser relies in fact thereon or has knowledge,
acquired either before or after the date hereof and whether from Seller or from
its own investigation, of any fact at variance with, or of any breach of, any
such representation, warranty or covenant.
SECTION 9. INDEMNIFICATION.
9.1 Indemnification by Seller. Seller shall defend, indemnify, and hold
Purchaser wholly harmless from and against any and all liability, loss, cost and
expense whatsoever (including reasonable fees of legal counsel and related
disbursements, whether such fees and disbursements are incurred in connection
with trial or appellate proceedings or otherwise) that may be incurred by
Purchaser as a result of, or arising out of, or attributable to, or based upon:
(a) Seller's failure to perform any of its agreements contained in any
Seller Agreement or Seller's failure to pay any of its liabilities or to
perform any of its obligations other than the Assumed Obligations;
(b) Noncompliance with the Bulk Sales Article of the Uniform
Commercial Code of any applicable jurisdiction;
(c) Any breach of any representation, warranty, covenant or agreement
of Seller set forth herein;
(d) Any claim, obligation, liability, loss, damage or expense, of
whatever kind or nature, contingent or otherwise, known or unknown,
incurred or imposed or based upon any provision of federal, state or local
law or regulations or common law, applicable to Seller's business or any
similar business and arising out of any act or omission of Seller, its
employees, agents or representatives occurring prior to the Closing Date;
or
(e) Any liability arising from the assignment to Purchaser of any
Assumed Contract without having obtained any required consent to such
assignment.
9.2 Manner of Payment of Finally Determined Claims. The amount of any
liability, loss, cost, or expense for which Seller shall be finally determined,
pursuant to the provisions of Section
Amended and Restated
Asset Purchase Agreement
8.3 hereof, to have an obligation to indemnify Purchaser pursuant to this
Section 8, shall be paid to Purchaser in immediately available funds no later
than ten (10) days after such final determination.
9.3 Procedure for Obtaining Indemnification.
(a) In the event that Purchaser shall claim that it is entitled to be
indemnified pursuant to the terms of this Section 8, it shall so notify
Seller in writing of such claim. Such notice shall specify the breach of
representation, warranty or agreement claimed by Purchaser and the
liability, loss, cost or expense incurred by, or imposed upon, Purchaser on
account thereof. If such liability, loss, cost or expense is liquidated in
amount, the notice shall so state and such amount shall be deemed the
amount of the claim of Purchaser. If the amount is not liquidated, the
notice shall so state and, in such event, a claim shall be deemed asserted
against Seller on behalf of Purchaser, but no payment shall be made on
account thereof until the amount of such claim is liquidated and the claim
is finally determined.
(b) If Seller shall not, within twenty (20) days after the receipt of
such notice, advise Purchaser, in writing, that it denies the right of
Purchaser to indemnity in respect to a claim, then the amount of such
claim, at once if said claim is liquidated, or subsequently at such time as
any unliquidated claim has become liquidated, shall be deemed to be finally
determined between the parties hereto.
(c) If Seller shall notify Purchaser that it disputes any claim made
by Purchaser, then the parties hereto shall endeavor to settle and
compromise said claim, or may agree to submit the same to arbitration, and
if unable to agree on any settlement, or compromise or submission to
arbitration, such claim for indemnification shall be settled by appropriate
litigation, and any liability established by reason of such settlement,
compromise, arbitration or litigation shall be deemed to be finally
determined and shall be paid and satisfied in accordance with this Section
8.
(d) Purchaser shall promptly give written notice to Seller of any
claim of a third party that may reasonably be expected to result in a claim
for indemnification hereunder. Seller may elect to settle the claim, and
such settled claim shall be deemed to be finally determined and shall be
paid and satisfied in accordance wit this Section 8. If seller does not
settle the claim, Seller shall then defend such claim at its expense with
counsel selected by Seller and reasonably satisfactory to Purchaser.
Counsel for Seller and Purchaser shall consult and cooperate at all times
in defending against such a claim, but if the proceeding involves claims
against Purchaser in addition to the claim for which indemnification under
this Section 8 is being sought, the defense of those claims shall be within
the sole discretion of Purchaser and its counsel.
SECTION 10. MISCELLANEOUS
Amended and Restated
Asset Purchase Agreement
10.1 Notices. All notices or other communications required or permitted
to be given hereunder shall be, as elected by the person giving such notice,
personally delivered or transmitted by postage prepaid certified mail, to the
parties as follows:
(i) If to Purchaser:
Java Group, Inc.
Rob Gillingham, President
6595 Willingdon
Suite 1402
Burnaby, B.C. V5H4E5
Canada
(604) 412-9812
(ii) If to Seller:
DNR Resources, Inc.
Howard Stern, President
100 W. Cypress Creek Road
5th Floor
Ft. Lauderdale, Florida 33309
with a copy to:
Joel Held
1717 Main Street
Suite 4100
Dallas, Texas 75201
Except as otherwise specified herein, all notices and other communications shall
be deemed to have been duly given on (i) the date of receipt if delivered
personally, or (ii) five (5) days after posting if transmitted by mail. Any
party hereto may change its address for purposes hereof by notice to all other
parties hereto.
10.2 Publicity. Except as required by law, Seller will not make any
announcement of the transactions provided for herein except in a manner
acceptable to Purchaser.
10.3 Expenses. Each party shall pay all fees for legal and accounting
services incurred by such party in connection with the transactions provided for
in this Agreement.
10.4 Binding Effect. This Agreement shall be binding upon, inure to the
benefit of, and be enforceable by, the successors, legal representatives, and
assigns of the parties hereto.
Amended and Restated
Asset Purchase Agreement
10.5 No Third Party Beneficiaries. Nothing in this Agreement, whether
expressed or implied, is intended to confer any rights or remedies under or by
reason of this Agreement on any persons other than the parties to it and their
respective successors and assigns. Nothing herein is intended to relieve or
discharge the obligation or liability of any third person to any party to this
Agreement, nor shall any provision give any third persons any right of
subrogation or action over or against any party to this Agreement.
10.6 Construction. This Agreement shall be deemed to be made in Texas and
shall in all respects be interpreted, construed, and governed by and in
accordance with the laws of the State of Texas. No provision of any Seller
Agreement shall be construed against or interpreted to the disadvantage of any
party hereto or thereto by any court or other governmental or judicial authority
by reason of such party's or its counsel's having or being deemed to have
structured or drafted such provision.
10.7 Headings. The headings and subheadings hereof are inserted for
convenience of reference only and shall not affect the interpretation of this
Agreement.
10.8 Amendment. This Agreement may be amended only in a writing signed by
all of the parties hereto.
10.9 Entire Agreement. This Agreement (together with the Disclosure
Schedule and the Seller Agreements, all of which are hereby incorporated herein
by reference) merge all prior negotiations between the parties and collectively
embody the entire agreement of the parties with respect to the subject matter
hereof.
10.10 Counterparts. This Agreement may be executed simultaneously in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute and be the same instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
under seal on this 16th day of March 1998.
JAVA GROUP, INC.
By: /s/ Rob Gillingham
---------------------------------
Rob Gillingham, President
DNR RESOURCES, INC.
By: /s/ Howard Stern
---------------------------------
Howard Stern
Amended and Restated
Asset Purchase Agreement
EXHIBIT "A"
ASSETS
All of Seller's oil and gas properties (both real and personal), including
all well head and operating equipment, operating supplies, furniture, fixtures,
computer software, shop inventory, and leasehold improvements, including but not
limited to the following:
All Seller's interest in Nacatoch, Fireflood SU3, Bodcaw Fee B.
Bellevue Field; Bossier Paris, Louisiana
This includes 62 operating wells, 41 rework wells, 5 wells to be
drilled; all well head and operating equipment; operating
supplies; accounts receivable; cash flows from operations.
Amended and Restated
Asset Purchase Agreement
EXHIBIT "B"
All uncompleted work and/or service contracts, if any, between Seller and
customers of Seller (work in process). All information and records regarding
same, if any, will be delivered to Purchaser on the effective date.
END OF EXHIBIT "B".
Amended and Restated
Asset Purchase Agreement
EXHIBIT "C"
Loan Number: 001-0320541400-3
In the Amount of: $500,000, executed 2/7/97
Bank One
Robert Gray, Vice President Lending
400 Texas Street
P.O. Box 21116
Shreveport, LA 71154-0001
Amended and Restated
Asset Purchase Agreement