MEMORANDUM OF AGREEMENT OF PURCHASE AND SALE ENTERED INTO IN THE CITY AND
DISTRICT OF MONTREAL, PROVINCE OF QUEBEC, AS OF THE 29TH DAY OF JANUARY, 2001.
BY AND BETWEEN:
PETER DEROS
Businessman, residing and domiciled at 8220 Birnam, apt. 2, Montreal,
Quebec, H3N 2T9
(HEREINAFTER REFERRED TO AS "PETER")
AND:
DEMACO M.C.S. INC.
Body corporate duly incorporated according to law, having its head
office and principal place of business at 4555 des Grandes Prairies
Blvd, Suite 30, St-Leonard, Quebec, H1R 1A5, herein represented by Mr.
Peter Deros, its president, duly authorized as he so declares
(HEREINAFTER REFERRED TO AS "DEMACO")
AND:
LES ALIMENTS JOE ET RAY LTEE
Body corporate duly incorporated according to law, having an office at
8100 19th Avenue, Montreal, Quebec, H1Z 4J8, herein represented by Mr.
Joe Antonacci, its president, duly authorized as he so declares
(HEREINAFTER REFERRED TO AS "JOE ET RAY")
AND:
99408 CANADA LTD.
Body corporate having its head office and principal place of business
at 300 Leo Pariseau, Suite 2000, Montreal, Quebec, H2W 2N1, herein
represented by Miss France Lapierre, its representative, duly
authorized as she so declares
(HEREINAFTER REFERRED TO AS "99408")
AND:
THEO KALAITZIS
Businessman, residing and domiciled at 12 Garland, Dollard-des-Ormeaux,
Quebec, H9G 2B6
(HEREINAFTER REFERRED TO AS "THEO")
1
AND:
MICHAEL MORRIS
Businessman, residing and domiciled at Balom House, 3rd Floor, P.O. Box
N3026, Nassau Bahamas
(HEREINAFTER REFERRED TO AS "MICHAEL")
AND:
164634 CANADA INC.
Body corporate duly incorporated according to law, having an office at
8100 19th Avenue, Montreal, Quebec, H1Z 4J8, herein represented by Mr.
Joe Antonacci, its president, duly authorized as he so declares
(HEREINAFTER REFERRED TO AS "164634")
AND:
DOMENICO RAMACIERI
Businessman, residing and domiciled at 345 Barton, Town of Mount Royal,
Quebec, H3P 1N2
(HEREINAFTER REFERRED TO AS "DOMENICO")
AND:
JEAN-LOUIS MONDOU
Businessman, residing and domiciled at 4608 Ile Ste-Marie, Carignan,
Quebec, J3L 4R7
(HEREINAFTER REFERRED TO AS "JEAN-LOUIS")
AND:
YOLANDA MARTUCCI
Businesswoman, residing and domiciled at 6901 des Roseraies Blvd, apt.
602, Anjou, Quebec, H1M 3N5
(HEREINAFTER REFERRED TO AS "YOLANDA")
AND:
2
ABDELKRIM FILADI
Businessman, residing and domiciled at 6530 36th Avenue, Montreal,
Quebec, H1T 2Z7
(HEREINAFTER REFERRED TO AS "ABDELKRIM")
AND:
CHARLES OLIVIER TREMBLAY
Businessman, residing and domiciled at
(HEREINAFTER REFERRED TO AS "CHARLES")
AND:
LIONEL OBERMAN
Businessman, residing and domiciled at 438 95th Avenue, Chomedey,
Laval, Quebec, H7W 3T9
(HEREINAFTER REFERRED TO AS "LIONEL")
AND:
SARKIS TSAOUSSIAN
Businessman, residing and domiciled at 561 Carleton, Chomedey, Laval,
Quebec, H7W 4R1
(HEREINAFTER REFERRED TO AS "SARKIS")
AND:
FRANK ANANIA
Businessman, residing and domiciled at 8918 Albert Chamberland,
Montreal, Quebec, H1E 5W5
(HEREINAFTER REFERRED TO AS "FRANK")
AND:
DINA DARIOTIS
Businessman, residing and domiciled at 2465 Robitaille, St-Laurent,
Quebec, H4K 1K3
(HEREINAFTER REFERRED TO AS "DINA")
THE SAID PETER, DEMACO, JOE ET RAY, 99408, THEO, MICHAEL, 164634,
DOMENICO, JEAN-LOUIS, YOLANDA, ABDELKRIM, CHARLES, LIONEL, SARKIS,
3
FRANK AND DINA, HEREINAFTER SOMETIMES REFERRED TO COLLECTIVELY AS THE
"VENDORS"
AND:
PRS SUB VI, INC.
A corporation duly incorporated in accordance with the laws of New
Jersey, U.S.A., having its registered office at 425 Eagle Rock Avenue,
Roseland, New Jersey, herein represented by John Frohling, its
President, duly authorized as he so declares
(HEREINAFTER REFERRED TO AS THE "PURCHASER")
AND:
PIZZA DONINI INC.
Body politic duly constituted according to Law, having its Head Office
and principal place of business at 4555 des Grandes Prairies Blvd,
Suite 30, St-Leonard, Quebec, herein duly represented by Mr. Peter
Deros, its president, duly authorized for these purposes,
(HEREINAFTER REFERRED TO AS THE "COMPANY")
WHEREAS the VENDORS are the owners of a total of ONE THOUSAND (1,000) Class "A"
common shares and TWO HUNDRED NINETY-FIVE (295) Class "B" common shares in the
capital stock of PIZZA DONINI INC. (hereinafter referred to as the "COMPANY"),
being all of the issued and outstanding shares of the COMPANY, the whole as
appears more fully hereinbelow:
SHAREHOLDER NO AND CLASS OF SHARES
Peter 160 Class A and 35 Class B
Demaco 680 Class A
Joe et Ray 160 Class A and 40 Class B
99408 83 Class B
Theo 10 Class B
Michael 7 Class B
164634 10 Class B
Domenico 10 Class B
Jean-Louis 50 Class B
Yolanda 10 Class B
Abdelkrim 5 Class B
Charles 10 Class B
Lionel 10 Class B
Sarkis 5 Class B
Frank 5 Class B
Dina 5 Class B
4
WHEREAS by Option Agreement dated September 8, 2000, the VENDORS granted to
Konstantino Makropoulos an option to purchase, on or before January 31, 2001, as
defined more fully herein, all of their shares in the capital stock of the
COMPANY, subject to the terms and conditions set out in the said Option
Agreement;
WHEREAS by way of Agreement dated January 22, 2001, the PURCHASER acquired from
Konstantino Makropoulos the right to acquire the VENDORS' shares in the COMPANY
pursuant to the terms thereof;
WHEREAS simultaneously with the execution of the present Agreement, the
PURCHASER exercises its option to acquire the shares of the VENDORS in the
COMPANY, the VENDORS hereby waiving notice, subject to the terms and conditions
hereinafter set out;
THIS AGREEMENT WITNESSETH THAT IN CONSIDERATION OF THE COVENANTS, AGREEMENTS,
WARRANTIES AND PAYMENTS HEREIN SET OUT AND PROVIDED FOR, THE PARTIES HERETO
HEREBY RESPECTIVELY COVENANT AND AGREE AS FOLLOWS:
ARTICLE 1
1.1 DEFINED TERMS:
1.1.1 "COMPANY" means PIZZA DONINI INC., a corporation incorporated
under the Canada Business Corporations Act, on the 29th day of
May 1987;
1.1.2 "Closing Date" means on or about the 29th day of January 2001;
1.1.3 "Purchase Price" shall have the meaning attributed thereto in
Article 2;
1.1.4 "Shares" shall have the meaning attributed thereto in Article
2.
1.2 DIVISION, HEADINGS, INDEX:
The division of this Agreement into Articles, Sections and
Paragraphs and the insertion of headings and any index provided are for
convenience of reference only and shall not affect the construction or
interpretation thereof.
1.3 GENDER AND NUMBER:
Unless the context otherwise requires, words importing the
singular include the plural and vice versa, and words importing gender include
all genders.
5
1.4 SUCCESSORS AND ASSIGNS:
This Agreement shall be binding upon and shall enure to the
benefit of the parties hereto and their respective heirs, legal representatives,
successors and assigns.
ARTICLE 2
PURCHASE AND SELL
2.1 Subject to the terms and conditions hereof, each of the
VENDORS hereby sells, assigns and makes over to the PURCHASER all of the issued
and outstanding shares held by him or her in the capital stock of the COMPANY,
all of which are owned by the VENDORS as indicated more fully hereinbelow, which
shares consist of a total of ONE THOUSAND (1,000) Class "A" common shares and
TWO HUNDRED NINETY-FIVE (295) Class "B" common shares (hereinafter referred to
as the "Shares"):
SHAREHOLDER NO AND CLASS OF SHARES
Peter 160 Class A and 35 Class B
Demaco 680 Class A
Joe et Ray 160 Class A and 40 Class B
99408 83 Class B
Theo 10 Class B
Michael 7 Class B
164634 10 Class B
Domenico 10 Class B
Jean-Louis 50 Class B
Yolanda 10 Class B
Abdelkrim 5 Class B
Charles 10 Class B
Lionel 10 Class B
Sarkis 5 Class B
Frank 5 Class B
Dina 5 Class B
2.2 PURCHASE PRICE, PAYMENT AND DELIVERY
OF SHARE CERTIFICATES:
The aggregate consideration for the sale by each of the
VENDORS of the Shares and all of their right, title and interest in and to the
COMPANY to the PURCHASER is the sum of ONE THOUSAND TWO HUNDRED AND NINETY-FIVE
DOLLARS ($1,295.00), or ONE DOLLAR ($1.00) per share, which each of the VENDORS
acknowledge having received, the VENDORS hereby delivering to the PURCHASER all
of the share certificates representing the Shares.
6
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
3.1 BY THE VENDORS:
Each of the VENDORS represents and warrants to the PURCHASER
in respect only of the shares issued in his or her name and not in respect of
the shares issued to any other VENDOR named herein, and acknowledges that the
PURCHASER is relying on the covenants, representations and warranties of each of
the VENDORS in connection with the purchase by the PURCHASER of their portion of
the Shares:
3.1.1 Each of the VENDORS has the capacity and power to execute this
Agreement and all other documents relating thereto and to
perform his or her obligations hereunder and thereunder;
3.1.2 Save and except for Michael, each of the VENDORS is not a
non-resident of Canada within the meaning of the Income Tax
Act (Canada);
3.1.3 Each of the VENDORS is the legal and beneficial owner of the
shares of the COMPANY listed next to his or her name in
paragraph 2.1 of this Agreement, all of which they are selling
to the PURCHASER;
3.1.4 All of the Shares are owned by the VENDORS as indicated above,
as beneficial owners of record, with good and marketable title
thereto, free and clear of all mortgages, liens, charges,
security interest, adverse claims, pledges, encumbrances and
demands whatsoever;
3.1.5 No person, firm or corporation has any agreement or option or
any right or privilege, whether by law, pre-emptive or
contractual, capable of becoming an agreement or option for
the purchase from any of the VENDORS any of the Shares.
3.2 BY THE COMPANY:
The COMPANY represents and warrants to the PURCHASER and
acknowledges that the PURCHASER is relying on the said covenants,
representations and warranties in connection with the purchase by the PURCHASER
of the Shares:
3.2.1 The COMPANY is duly incorporated and validly existing under
the Canada Business Corporations Act and is in good standing
under the Laws of Quebec and of Canada;
7
3.2.2 The COMPANY has issued a total of ONE THOUSAND (1,000) Class
"A" common voting shares and TWO HUNDRED NINETY-FIVE (295)
Class "B" common non-voting shares and there are no other
shares, rights, warrants or options issued or granted by the
COMPANY;
3.3 BY THE PURCHASER:
The PURCHASER represents and warrants to each of the VENDORS
and acknowledges that the VENDORS are relying upon such representations and
warranties in connection with the sale of the Shares:
3.3.1 The PURCHASER is duly incorporated and in good standing in
accordance with the laws of its jurisdiction and has full
power and authority to enter into this Agreement for the
purchase of the Shares, and has obtained such corporate or
other authorizations required in order to complete the
purchase of the Shares;
3.3.2 The PURCHASER has made such investigation and incidental
reviews of the COMPANY and documents, as it has deemed
necessary in order to inform itself adequately and is familiar
and satisfied with the operations and affairs of the COMPANY;
3.3.3 Concurrently with the execution of the present Agreement, the
PURCHASER shall fulfill all of the conditions stipulated in
favour of the VENDORS in Article 4 of the present Agreement.
3.4 All of the PURCHASER'S, VENDORS' and COMPANY's warranties and
representations as contained and described in this Agreement shall survive the
closing of the transactions herein contemplated.
ARTICLE 4
CONDITIONS
4.1 VENDORS' CONDITIONS:
The VENDORS' obligation to complete the sale of the Shares
hereunder is subject to the satisfaction of or compliance by the PURCHASER of
each of the following conditions:
4.1.1 The PURCHASER's representations and warranties made in and
pursuant to this Agreement are and shall be true and correct
in every respect as of the date hereof and there is nor shall
be no omitted or undisclosed fact which would adversely
influence or deter any of the VENDORS, acting reasonably, from
selling the Shares;
8
4.1.2 The PURCHASER is current with all applicable registration and
reporting requirements under U.S. securities laws and
regulations as of the date hereof;
4.1.3 The PURCHASER hereby assumes, as of the date hereof, to the
complete exoneration of the COMPANY by way of separate
instrument or agreement, an aggregate of ONE MILLION
THIRTY-FOUR THOUSAND TWO HUNDRED SEVENTY-SIX DOLLARS
($1,034,276.00) of the long term debt of the COMPANY, under
such terms and conditions as have been agreed between the
PURCHASER and the holders of such long term debt;
4.1.4 The PURCHASER shall cause the COMPANY to confirm and maintain,
as of the date hereof, the employment of Mr. Peter Deros as
President and Secretary-Treasurer of the COMPANY pursuant to
the terms of his current employment agreement, which agreement
shall be subject to review and modification on June 30th,
2001;
4.1.5 The PURCHASER hereby indemnifies and holds Peter harmless, and
undertakes to cause the COMPANY to indemnify and hold Peter
harmless, from any and all obligations or liabilities incurred
or that he may have incurred as a result of his position as
director and officer of the COMPANY;
4.1.6 The PURCHASER hereby assumes, as of the date hereof, to the
complete exoneration of the COMPANY, any and all obligations
arising from the terms of that certain Convertible Subordinate
Debenture issued by the COMPANY to Bartholemew International
Investments, in the principal amount of FIVE HUNDRED THOUSAND
DOLLARS U.S. ($500,000.00 U.S.), under such terms and
conditions as have been agreed between the PURCHASER and the
holder of the said Debenture;
4.1.7 The PURCHASER hereby assumes, as of the date hereof, to the
complete exoneration of the COMPANY, all of the rights and
obligations of the COMPANY arising from that certain
Consulting Agreement dated February 14, 2000, by and between
TT Byrne Capital Investment Inc. and the COMPANY, including
the obligation to issue to TT Byrne Capital Investment Inc.
any remuneration thereunder, under such terms and conditions
as have been agreed between the PURCHASER and TT Byrne Capital
Investment Inc.;
4.1.8 All of the shares and securities of the PURCHASER shall be
registered pursuant to Section 3(a) (10) of the SECURITIES ACT
OF 1933, U.S., (or pursuant to such other applicable federal
and state securities laws) with the Securities and Exchange
Commission of the United States of America on or before March
31st, 2001 and the PURCHASER's securities shall be trading on
the Over-the-Counter Bulletin Board of NASDAQ on or before
June 30th, 2001. Until such time as the securities shall have
been registered as provided herein and are trading on the
Over-the-Counter Bulletin Board of NASDAQ, the Shares shall be
9
remitted to and retained by Me Catherine Pantoulis as Escrow
Agent in accordance with the terms and conditions of the Trust
Agreement annexed hereto as Schedule A. In the event that
either of the conditions stipulated in this provision are not
fulfilled, the VENDORS shall be entitled, at their discretion,
to cancel the present sale upon written notice to the
PURCHASER and the COMPANY to that effect, and the parties
shall have no further claim or recourse against each other in
the event of the cancellation of the sale pursuant to the
terms hereof.
4.2 PURCHASER'S CONDITIONS:
4.2.1 The representations and warranties of each of the VENDORS made
in and pursuant to this Agreement shall be true and correct in
every respect and there is and shall be no omitted or
undisclosed fact which would adversely influence or deter the
PURCHASER, acting reasonably, from completing the purchase of
the Shares;
4.2.2 The PURCHASER shall fulfill all of the obligations and
undertakings provided in subparagraphs 4.1.2, 4.1.3, 4.1.4,
4.1.5, 4.1.6 and 4.1.7 as provided therein;
4.2.3 The COMPANY shall confirm the grant to Konstantino Makropoulos
of an exclusive option to acquire the master franchise rights
for the "Pizza Donini" concept for the territory of New Jersey
(hereinafter the "Territory") for a period of one (1) year
from the date hereof, the whole subject to the terms and
conditions of the COMPANY's Master Franchise Agreement.
Konstantino Makropoulos shall be entitled to sell "Pizza
Donini" franchises within the Territory to qualified
franchisees upon payment of such fees, royalties and other
amounts as are established by the COMPANY and Konstantino
Makropoulos and upon the condition that any prospective
franchisee and its principals enter into such agreements as
are currently required of franchisees of the "Pizza Donini"
system. The option granted shall be assignable by Konstantino
Makropoulos to any corporation or entity controlled at all
times by him. Any other assignment or operation of law or
otherwise that would result in the option being granted to a
person, corporation or entity not consisting of Konstantino
Makropoulos or a corporation or entity controlled by him shall
be subject to the prior written approval of the COMPANY, which
approval may be withheld;
4.2.4 The COMPANY shall remit to the PURCHASER audited financial
statements for the past two (2) fiscal years prior to February
9th, 2001.
10
ARTICLE 5
INDEMNIFICATION
5.1 Each of the VENDORS covenants and agrees to indemnify and save
harmless the PURCHASER from and against any claims, demands, actions, causes of
action, damages, loss, costs, liability, including the cost of legal
representation which may be made or brought against the PURCHASER and/or which
it may suffer or incur as a result of or in respect of or arising out of:
5.1.1 the non-fulfillment of such VENDORS' covenants or agreements
under this Agreement or ancillary documents, the parties
hereby acknowledging that the PURCHASER shall only be entitled
to claim hereunder against that person or entity having
breached the covenants and agreements continued herein, and
the breach by one VENDOR shall not constitute a breach by all
of the VENDORS;
5.1.2 any incorrectness in or breach of such VENDOR's
representations or warranties contained herein, the parties
hereby acknowledging that the PURCHASER shall only be entitled
to make a claim pursuant to this paragraph against that person
or entity having made an incorrect representation or warranty
hereunder, and any breach hereunder by one VENDOR shall not
constitute a breach by all of the VENDORS.
ARTICLE 6
MUTUAL RELEASE AND DISCHARGE
6.1 Save and except for any obligations arising out of the present
Agreement, the COMPANY, hereto intervening, inter alia, for such purpose and the
PURCHASER hereby forgive, release and discharge the VENDORS completely and
unconditionally from all claims, demands, obligations, causes of action and/or
other liabilities of whatever nature relating to the VENDORS' participation and
association in the COMPANY and this whether for the past, present or future and
the VENDORS forgive, release and discharge the COMPANY and/or the PURCHASER
completely and unconditionally from and against all claims, obligations, causes
of action and/or other liabilities whatsoever which in Law they had, have or may
pretend to have against any one or more of the COMPANY and the PURCHASER.
6.2 Furthermore, the PURCHASER hereby indemnifies and holds Peter
harmless from any and all obligations or liabilities incurred or that he may
have incurred as a result of his position as director and officer of the
COMPANY.
11
ARTICLE 7
NOTICES
7.1 All notices, requests, demands and other communications
pursuant to this Agreement shall be in writing and shall be deemed to have been
duly given if delivered by registered mail or by messenger, bailiff or any other
expedient method to the intended party at the address indicated hereinabove, or
at such other address as any party may advise the COMPANY in writing and such
notice shall be deemed to be received on the fifth (5th) day following its
mailing, where the postal service is in full operation during such entire time,
or on the actual date of service or delivery, where the notice is sent by
messenger, bailiff or other method of personal delivery.
ARTICLE 8
GENERAL MATTERS
8.1 PROPER LAW OF AGREEMENT:
The present Agreement shall be governed by and interpreted in
accordance with the Laws of the Province of Quebec and the Laws of Canada, when
applicable.
8.2 LEGAL COUNSEL:
The parties hereby acknowledge that they have been advised to
seek independent legal counsel in respect of their rights hereunder and further
acknowledge that they have either sought such advice or declined to do so.
8.3 TIME OF ESSENCE:
Time shall be of the essence in this Agreement.
8.4 FURTHER ASSURANCES AND AGREEMENTS:
The parties hereto agree to promptly do, make, execute,
deliver or cause to be done, made, executed or delivered all such further acts,
documents and things as the other party hereto may reasonably require for the
purpose of giving effect to this Agreement, whether before of after the Closing
Date, including the preparation and signature of such further agreements,
transfers, confirmations or undertakings as may be required in law or otherwise
8.5 COUNTERPARTS:
This Agreement and any document or instrument ensuing
therefrom may be executed in two (2) or more counterparts and all such
counterparts shall together constitute a single agreement, document or
12
instrument which shall be legally binding upon all of the parties herein or
therein.
8.6 INVALIDITY PROVISIONS:
That should any provisions (or parts thereof) of this
Agreement be held illegal or unenforceable, it or they shall be considered
separate and severable from the Agreement and its remaining provisions shall
remain in full force and binding on the parties.
8.7 LANGUAGE:
The parties hereto have requested and are satisfied that this
Agreement be drawn in the English language. Les parties aux presentes ont
demande que ce contrat soit redige en anglais et elles s'en declarent
satisfaites.
IN WITNESS WHEREOF, THE PARTIES HERETO HAVE EXECUTED THIS AGREEMENT AT THE PLACE
AS OF THE DATE FIRST HEREINABOVE MENTIONED.
VENDORS:
/s/ PETER DEROS
- --------------------------------------------
PETER DEROS
DEMACO M.C.S. INC.
PER: /s/ PETER DEROS
--------------------------------------
PETER DEROS
DULY AUTHORIZED FOR THESE PURPOSES
LES ALIMENTS JOE ET RAY LTEE
PER: /s/ JOE ANTONACCI
--------------------------------------
JOE ANTONACCI
DULY AUTHORIZED FOR THESE PURPOSES
99408 CANADA LTD.
PER: /s/ FRANCE LAPIERRE
--------------------------------------
FRANCE LAPIERRE
DULY AUTHORIZED FOR THESE PURPOSES
13
/s/ THEO KALAITZIS
- --------------------------------------------
THEO KALAITZIS
/s/ MICHAEL MORRIS
- --------------------------------------------
MICHAEL MORRIS
164634 CANADA INC.
PER: /s/ JOE ANTONACCI
--------------------------------------
JOE ANTONACCI
DULY AUTHORIZED FOR THESE PURPOSES
/s/ DOMENICO RAMACIERI
- --------------------------------------------
DOMENICO RAMACIERI
/s/ JEAN-LOUIS MONDOU
- --------------------------------------------
JEAN-LOUIS MONDOU
/s/ YOLANDA MARTUCCI
- --------------------------------------------
YOLANDA MARTUCCI
/s/ ABDELKRIM FILADI
- --------------------------------------------
ABDELKRIM FILADI
/s/ CHARLES OLIVIER TREMBLAY
- --------------------------------------------
CHARLES OLIVIER TREMBLAY
/s/ LIONEL OBERMAN
- --------------------------------------------
LIONEL OBERMAN
14
/s/ SARKIS TSAOUSSIAN
- --------------------------------------------
SARKIS TSAOUSSIAN
/s/ FRANK ANANIA
- --------------------------------------------
FRANK ANANIA
/s/ DINA DARIOTIS
- --------------------------------------------
DINA DARIOTIS
PURCHASER:
PRS SUB VI, INC.
PER: /s/ JOHN FROHLING
---------------------------------------
JOHN FROHLING
DULY AUTHORIZED FOR THESE PURPOSES
COMPANY:
PIZZA DONINI INC.
PER: /s/ PETER DEROS
---------------------------------------
PETER DEROS
DULY AUTHORIZED FOR THESE PURPOSES
15
SCHEDULE "A"
ESCROW AGREEMENT ENTERED INTO IN THE CITY AND DISTRICT OF MONTREAL, PROVINCE OF
QUEBEC, ON THE 29TH DAY OF JANUARY 2001.
BY AND BETWEEN:
PETER DEROS
Businessman, residing and domiciled at 8220 Birnam, apt. 2, Montreal,
Quebec, H3N 2T9
(HEREINAFTER REFERRED TO AS "PETER")
AND:
DEMACO M.C.S. INC.
Body corporate duly incorporated according to law, having its head
office and principal place of business at 4555 des Grandes Prairies
Blvd, Suite 30, St-Leonard, Quebec, H1R 1A5, herein represented by Mr.
Peter Deros, its president, duly authorized as he so declares
(HEREINAFTER REFERRED TO AS "DEMACO")
AND:
LES ALIMENTS JOE ET RAY LTEE
Body corporate duly incorporated according to law, having an office at
8100 19th Avenue, Montreal, Quebec, H1Z 4J8, herein represented by Mr.
Joe Antonacci, its president, duly authorized as he so declares
(HEREINAFTER REFERRED TO AS "JOE ET RAY")
AND:
99408 CANADA LTD.
Body corporate having its head office and principal place of business
at 300 Leo Pariseau, Suite 2000, Montreal, Quebec, H2W 2N1, herein
represented by Miss France Lapierre, its representative, duly
authorized as she so declares
(HEREINAFTER REFERRED TO AS "99408")
AND:
16
THEO KALAITZIS
Businessman, residing and domiciled at 12 Garland, Dollard-des-Ormeaux,
Quebec, H9G 2B6
(HEREINAFTER REFERRED TO AS "THEO")
AND:
MICHAEL MORRIS
Businessman, residing and domiciled at Balom House, 3rd Floor, P.O. Box
N3026, Nassau Bahamas
(HEREINAFTER REFERRED TO AS "MICHAEL")
AND:
164634 CANADA INC.
Body corporate duly incorporated according to law, having an office at
8100 19th Avenue, Montreal, Quebec, H1Z 4J8, herein represented by Mr.
Joe Antonacci, its president, duly authorized as he so declares
(HEREINAFTER REFERRED TO AS "164634")
AND:
DOMENICO RAMACIERI
Businessman, residing and domiciled at 345 Barton, Town of Mount Royal,
Quebec, H3P 1N2
(HEREINAFTER REFERRED TO AS "DOMENICO")
AND:
JEAN-LOUIS MONDOU
Businessman, residing and domiciled at 4608 Ile Ste-Marie, Carignan,
Quebec, J3L 4R7
(HEREINAFTER REFERRED TO AS "JEAN-LOUIS")
AND:
YOLANDA MARTUCCI
Businesswoman, residing and domiciled at 6901 des Roseraies Blvd, apt.
602, Anjou, Quebec, H1M 3N5
(HEREINAFTER REFERRED TO AS "YOLANDA")
17
AND:
ABDELKRIM FILADI
Businessman, residing and domiciled at 6530 36th Avenue, Montreal,
Quebec, H1T 2Z7
(HEREINAFTER REFERRED TO AS "ABDELKRIM")
AND:
CHARLES OLIVIER TREMBLAY
Businessman, residing and domiciled at
(HEREINAFTER REFERRED TO AS "CHARLES")
AND:
LIONEL OBERMAN
Businessman, residing and domiciled at 438 95th Avenue, Chomedey,
Laval, Quebec, H7W 3T9
(HEREINAFTER REFERRED TO AS "LIONEL")
AND:
SARKIS TSAOUSSIAN
Businessman, residing and domiciled at 561 Carleton, Chomedey, Laval,
Quebec, H7W 4R1
(HEREINAFTER REFERRED TO AS "SARKIS")
AND:
FRANK ANANIA
Businessman, residing and domiciled at 8918 Albert Chamberland,
Montreal, Quebec, H1E 5W5
(HEREINAFTER REFERRED TO AS "FRANK")
AND:
DINA DARIOTIS
Businessman, residing and domiciled at 2465 Robitaille, St-Laurent,
Quebec, H4K 1K3
(HEREINAFTER REFERRED TO AS "DINA")
18
THE SAID PETER, DEMACO, JOE ET RAY, 99408, THEO, MICHAEL, 164634,
DOMENICO, JEAN-LOUIS, YOLANDA, ABDELKRIM, CHARLES, LIONEL, SARKIS,
FRANK AND DINA, HEREINAFTER SOMETIMES REFERRED TO COLLECTIVELY AS THE
"VENDORS"
PRS SUB VI, INC.
A New Jersey corporation, duly incorporated and existing according to
Law, having its registered office business at 425 Eagle Rock Avenue,
Roseland, New Jersey, U.S.A., 07068, herein represented by John
Frohling, its President, duly authorized for these purposes,
(HEREINAFTER REFERRED TO AS THE "PURCHASER")
- -AND-
PIZZA DONINI INC.
Body politic duly constituted according to Law, having it head office
and principal place of business at 4555 des Grandes Prairies Blvd.,
Suite 30, St-Leonard, Quebec, herein duly represented by Mr. Peter
Deros duly authorized for these purposes,
(HEREINAFTER REFERRED TO AS "COMPANY")
- -AND-
ME CATHERINE PANTOULIS,
Advocate of 300 Leo Pariseau, Suite 2000, Montreal, Quebec, H2W 2N1
(HEREINAFTER REFERRED TO AS "TRUSTEE")
WHO DECLARED AND AGREED AS FOLLOWS:
DECLARATIONS
1. By Memorandum of Agreement of Purchase and Sale (hereinafter the "Sale
Agreement") executed under private signature this day, the PURCHASER
acquired from the VENDORS all of their shares in PIZZA DONINI INC.
(hereinafter called the "COMPANY");
2. The PURCHASER has undertaken to cause its securities to be registered
pursuant to Section 3(a) (10) of the SECURITIES ACT OF 1933, U.S., (or
pursuant to such other applicable federal and state securities laws)
with the Securities and Exchange Commission of the United States of
America on or before March 31st, 2001 and has further undertaken to
cause its securities to be trading on the Over-the-Counter Bulletin
Board of NASDAQ on or before June 30th, 2001.
19
3. As it appears from said Sale Agreement, the shares of the VENDORS are
to be held in escrow by the Trustee until such time as the conditions
outlined in the Sale Agreement have been fulfilled by the PURCHASER;
4. The Trustee has accepted for the purposes of this Escrow Agreement to
act in accordance with the following trust stipulations.
ESCROW AGREEMENT
5. DELIVERY OF DOCUMENTS:
5.1 In order to guarantee the fulfillment of the PURCHASER'S
undertakings towards the VENDORS, the VENDORS shall deliver
into the hands of the Trustee, who shall acknowledge receipt
thereof the following documents:
5.1.1 The following share certificate, endorsed in blank:
- 2 share certificates in the name of Peter Deros, bearing
nos.: 8 and , for 160 Class "A" common and 35 Class "B"
common shares, respectively;
- 2 share certificates in the name of Demaco M.C.S. Inc.,
bearing nos.: 12 and 13 for 501 and 179 Class "A" common
shares, respectively;
- share certificate in the name of 164634 Canada Inc.,
bearing no: 2, for 10 Class "B" common shares;
- Share certificate in the name of Domenico Ramacieri,
bearing no: 3 for 10 Class "B" common shares;
- 3 share certificates in the name of Jean-Louis Mondou,
bearing nos.: 4, 7 and 14 for 10, 20 and 20 Class "B"
common shares, respectively;
- Share certificate in the name of Yolanda Martucci, bearing
no: 6 for 10 Class "B" common shares;
- Share certificate in the name of Theodore Kalaitzis,
bearing no: 15 for 10 Class "B" common shares;
- Share certificate in the name of Michael Morris, bearing
no: 16 for 7 Class "B" common shares;
- Share certificatein the name of Abdelkrim Filali, bearing
no: 17 for 5 Class "B" common shares;
- Share certificate in the name of Charles Olivier Tremblay,
bearing no: 19 for 10 Class "B" common shares;
- Share certificate in the name of 99408 Canada Ltd.,
bearing no: 20 for 83 Class "B" common shares;
- Share certificate in the name of Les Aliments Joe et Ray
Ltee, bearing no: 21 for 160 Class "A" common shares;
- Share certificate in the name of Les Aliments Joe et Ray
Ltee, bearing no: 22 for 40 Class "B" common shares;
- Share certificate in the name of Lionel Oberman, bearing
no: 24 for 10 Class "B" common shares;
20
- Share certificate in the name of Sarkis Tsaoussian,
bearing no: 25 for 5 Class "B" common shares;
- Share certificate in the name of Frank Anania, bearing no:
26 for 5 Class "B" common shares;
- Share certificate in the name of Dina Dariotis, bearing
no: 27 for 5 Class "B" common shares;
5.1.2 The Shareholder Register, the Securities Register and the
Share Transfer Register of the COMPANY;
5.1.3 The By-Laws of the COMPANY;
5.2 The share certificates and other corporate documents referred
to hereinabove in paragraphs 5.1.1 to 5.1.3, of the COMPANY
are to remain under the control of the Trustee until the
PURCHASER shall have fulfilled all undertakings stipulated in
the Sale Agreement;
RIGHTS OF THE PARTIES PRIOR TO DEFAULT
6.1 Prior to default the Trustee shall act only as custodian of
the delivered documents having the seizin thereof. She shall
hold the documents and prevent any share transfer by the
PURCHASER unless by written consent of the VENDORS. She shall
refuse all sales or alienation and all transfers or pledges;
6.2 Prior to default the voting rights attached to the shares
shall belong to the PURCHASER;
RIGHTS AND OBLIGATIONS OF THE PARTIES FOLLOWING DEFAULT
7.1 If the PURCHASER is in default and the VENDORS or any one of
them should wish to exercise their rights hereunder, then they
must notify the Trustee to this effect in writing and the
Trustee shall have the obligation to inform, by registered
mail, the PURCHASER and the COMPANY herein of said default.
The VENDORS, or those who have so requested, shall thereafter
require that the Trustee remit the share certificates and
other documents held by her to the VENDOR in question who
shall have full responsibility therefor vis-a-vis the Trustee,
having taken back the right of ownership of the sold shares,
unless he should choose to exercise any other recourse under
the law or the Sale Agreement. The VENDOR in question shall
thereafter exercise all the responsibilities of the Trustee
without any recourse by the PURCHASER or the COMPANY against
the Trustee.
21
TERM OF THE TRUST
8.1 Upon receipt of proof that the conditions outlined in the Sale
Agreement have been fulfilled, the Trustee shall deliver over
to the PURCHASER the documents which have been held by her.
The Trustee shall not, however, be obliged to make such
delivery unless her fees and expenses have been paid by the
parties or by one of them and that either a discharge of its
obligations has been granted by the parties herein or, in the
case where one of them refuses to grant discharge, the other
parties shall have supplied sufficient warranty that the
Trustee will be held harmless as regards any claims by the
party which refuses to grant discharge.
DISPOSITIONS CONCERNING THE TRUST
9.1 The Trustee shall carry out with reasonable diligence any
actions which she judges necessary in order to carry into
effect the terms of the present Trust Agreement and in so
doing, she shall not be held responsible towards the parties
as regards her decisions or the validity of any action or
documents signed by her in good faith;
9.2 The VENDORS, PURCHASER and COMPANY shall solidarily indemnify
and hold harmless the Trustee from and against any and all
liabilities, losses, damages, penalties, claims, actions,
suits, costs, expenses and disbursements of whatever kind and
nature (collectively the "Losses") which may at any time be
imposed on, incurred by or asserted against the Trustee,
whether groundless or otherwise, arising from or out of any
act, omission or error of the Trustee made in good faith in
the conduct of her duties hereunder, provided that the said
parties shall not be required to indemnify the Trustee against
Losses arising out of and from the gross negligence or wilful
misconduct of the Trustee. This provision shall survive the
resignation or removal of the Trustee or the termination of
this Agreement;
9.3 Except as otherwise provided, the Trustee is authorized and
directed to disregard in her sole discretion any and all
notices and warnings that may be given to her by any of the
parties or by any other person. She shall, however, obey the
order, judgment or decree of any court of competent
jurisdiction and she is authorized to comply with and obey any
such orders, judgments or decrees and in case of such
compliance, she shall not be liable by reason of it to any of
the parties or to any other person, even if any such order,
judgment or decree be reversed, modified, annulled, set aside
or vacated;
9.4 The Trustee may resign at any time without cause by written
notice to this effect forwarded to the other parties. Upon
receipt of such notice, the parties shall appoint a new
Trustee to act in virtue of these presents and they shall
notify the Trustee of this appointment. The Trustee shall then
transfer the shares to the new Trustee and deliver to him or
her all corporate documents in her possession;
9.5 Should the parties be in default to appoint a new Trustee and
to make this appointment known to the new Trustee within a
delay of fifteen (15) days of the notice of the Trustee's
22
intention to resign, the Trustee may, in her sole discretion,
designate her replacement by notarial deed which includes
acceptance of this position by the replacement Trustee, or
make a motion to a court of competent jurisdiction at the
expense of the parties in order to obtain such appointment.
ELECTION OF DOMICILE
10.1 As regards the execution of their respective undertakings, the
parties elect domicile at the address designated for each,
subject to their right to elect domicile elsewhere in Quebec
by means of a written notice to this effect served upon the
other parties. Should service be impossible at an elected
domicile, the parties elect domicile at the office of the
Prothonotary, Superior Court, District of Montreal, where all
proceedings should be taken;
LANGUAGE CLAUSE
11.1 That the parties herein have specifically requested that the
present Agreement be drawn up in the English language; que les
parties aux presentes ont specifiquement requis que la
presente Convention soit redigee en langue anglaise.
IN WITNESS WHEREOF, THE PARTIES HEREIN HAVE SIGNED AT THE PLACE AND ON THE DATE
FIRST HEREINABOVE MENTIONED.
/s/ PETER DEROS
- ---------------------------------------
PETER DEROS
DEMACO M.C.S. INC.
PER: /s/ PETER DEROS
-----------------------------------
PETER DEROS
DULY AUTHORIZED FOR THESE PURPOSES
LES ALIMENTS JOE ET RAY LTEE
PER: /s/ JOE ANTONACCI
-----------------------------------
JOE ANTONACCI
DULY AUTHORIZED FOR THESE PURPOSES
23
99408 CANADA LTD.
PER: /s/ FRANCE LAPIERRE
-----------------------------------
FRANCE LAPIERRE
DULY AUTHORIZED FOR THESE PURPOSES
/s/ THEO KALAITZIS
- ----------------------------------------
THEO KALAITZIS
/s/ MICHAEL MORRIS
- ----------------------------------------
MICHAEL MORRIS
164634 CANADA INC.
PER: /s/ JOE ANTONACCI
-----------------------------------
JOE ANTONACCI
DULY AUTHORIZED FOR THESE PURPOSES
/s/ DOMENICO RAMACIERI
- ----------------------------------------
DOMENICO RAMACIERI
/s/ JEAN-LOUIS MONDOU
- ----------------------------------------
JEAN-LOUIS MONDOU
/s/ YOLANDA MARTUCCI
- ----------------------------------------
YOLANDA MARTUCCI
/s/ ABDELKRIM FILADI
- ----------------------------------------
ABDELKRIM FILADI
/s/ CHARLES OLIVIER TREMBLAY
- ----------------------------------------
CHARLES OLIVIER TREMBLAY
/s/ LIONEL OBERMAN
- ----------------------------------------
LIONEL OBERMAN
24
/s/ SARKIS TSAOUSSIAN
- ----------------------------------------
SARKIS TSAOUSSIAN
/s/ FRANK ANANIA
- ----------------------------------------
FRANK ANANIA
/s/ DINA DARIOTIS
- ----------------------------------------
DINA DARIOTIS
PRS SUB VI, INC.
PER: /s/ JOHN FROHLING
-----------------------------------
JOHN FROHLING
DULY AUTHORIZED FOR THESE PURPOSES
PIZZA DONINI INC.
PER: /s/ PETER DEROS
-----------------------------------
PETER DEROS
DULY AUTHORIZED FOR THESE PURPOSES
/s/ ME CATHERINE PANTOULIS
- ----------------------------------------
ME CATHERINE PANTOULIS
TRUSTEE
25
EXTRACT OF RESOLUTIONS OF THE BOARD OF DIRECTORS OF THE COMPANY, DEMACO M.C.S.
INC. HELD AT THE HEAD OFFICE OF THE COMPANY ON THE 29TH DAY OF JANUARY 2001
"IT IS HEREBY RESOLVED:
THAT Mr. Peter Deros, a representative of the Corporation, be duly
authorized for and on behalf of the Corporation, to enter into an Memorandum of
Agreement of Purchase and Sale, by and between Peter Deros, Demaco M.C.S. Inc.,
Les Aliments Joe et Ray Ltee, 99408 Canada Inc., Theo Kalaitzis, Michael Morris,
164634 Canada Inc., Domenico Ramacieri, Jean-Louis Mondou, Yolanda Martucci,
Abdelkrim Filadi, Charles Olivier Tremblay, Lionel Oberman, Sarkis Tsaoussian,
Frank Anania and Dina Dariotis as Vendors, PRS Sub VI, Inc. as Purchaser, and
Pizza Donini Inc. as the company.
THAT the said representative be duly authorized for and on behalf of
the Corporation, to sign any and all documents necessary in order to give full
effect to the foregoing."
CERTIFIED TRUE EXTRACT
/s/ LINDA PELLEGRINO
------------------------------------
Linda Pellegrino, Secretary
26
EXTRACT OF RESOLUTIONS OF THE BOARD OF DIRECTORS OF THE COMPANY, LES ALIMENTS
JOE ET RAY LTEE HELD AT THE HEAD OFFICE OF THE COMPANY ON THE 29TH DAY OF
JANUARY 2001
"IT IS HEREBY RESOLVED:
THAT Mr. Joe Antonacci, a representative of the Corporation, be duly
authorized for and on behalf of the Corporation, to enter into an Memorandum of
Agreement of Purchase and Sale, by and between Peter Deros, Demaco M.C.S. Inc.,
Les Aliments Joe et Ray Ltee, 99408 Canada Inc., Theo Kalaitzis, Michael Morris,
164634 Canada Inc., Domenico Ramacieri, Jean-Louis Mondou, Yolanda Martucci,
Abdelkrim Filadi, Charles Olivier Tremblay, Lionel Oberman, Sarkis Tsaoussian,
Frank Anania and Dina Dariotis as Vendors, PRS Sub VI, Inc. as Purchaser, and
Pizza Donini Inc. as the company.
THAT the said representative be duly authorized for and on behalf of
the Corporation, to sign any and all documents necessary in order to give full
effect to the foregoing."
CERTIFIED TRUE EXTRACT
/s/ LINDA PELLEGRINO
------------------------------------
Linda Pellegrino, Secretary
27
EXTRACT OF RESOLUTIONS OF THE BOARD OF DIRECTORS OF THE COMPANY, 99408 CANADA
LTD. HELD AT THE HEAD OFFICE OF THE COMPANY ON THE 29TH DAY OF JANUARY 2001
"IT IS HEREBY RESOLVED:
THAT Miss France Lapierre, a representative of the Corporation, be duly
authorized for and on behalf of the Corporation, to enter into an Memorandum of
Agreement of Purchase and Sale, by and between Peter Deros, Demaco M.C.S. Inc.,
Les Aliments Joe et Ray Ltee, 99408 Canada Inc., Theo Kalaitzis, Michael Morris,
164634 Canada Inc., Domenico Ramacieri, Jean-Louis Mondou, Yolanda Martucci,
Abdelkrim Filadi, Charles Olivier Tremblay, Lionel Oberman, Sarkis Tsaoussian,
Frank Anania and Dina Dariotis as Vendors, PRS Sub VI, Inc. as Purchaser, and
Pizza Donini Inc. as the company.
THAT the said representative be duly authorized for and on behalf of
the Corporation, to sign any and all documents necessary in order to give full
effect to the foregoing."
CERTIFIED TRUE EXTRACT
/s/ LINDA PELLEGRINO
------------------------------------
Linda Pellegrino, Secretary
28
EXTRACT OF RESOLUTIONS OF THE BOARD OF DIRECTORS OF THE COMPANY, 164634 CANADA
INC. HELD AT THE HEAD OFFICE OF THE COMPANY ON THE 29TH DAY OF JANUARY 2001
"IT IS HEREBY RESOLVED:
THAT Mr. Joe Antonacci, a representative of the Corporation, be duly
authorized for and on behalf of the Corporation, to enter into an Memorandum of
Agreement of Purchase and Sale, by and between Peter Deros, Demaco M.C.S. Inc.,
Les Aliments Joe et Ray Ltee, 99408 Canada Inc., Theo Kalaitzis, Michael Morris,
164634 Canada Inc., Domenico Ramacieri, Jean-Louis Mondou, Yolanda Martucci,
Abdelkrim Filadi, Charles Olivier Tremblay, Lionel Oberman, Sarkis Tsaoussian,
Frank Anania and Dina Dariotis as Vendors, PRS Sub VI, Inc. as Purchaser, and
Pizza Donini Inc. as the company.
THAT the said representative be duly authorized for and on behalf of
the Corporation, to sign any and all documents necessary in order to give full
effect to the foregoing."
CERTIFIED TRUE EXTRACT
/s/ LINDA PELLEGRINO
------------------------------------
Linda Pellegrino, Secretary
29
EXTRACT OF RESOLUTIONS OF THE BOARD OF DIRECTORS OF THE CORPORATION, PIZZA
DONINI INC., HELD AT THE HEAD OFFICE OF THE CORPORATION ON THE 29TH DAY OF
JANUARY 2001
"IT IS HEREBY RESOLVED:
THAT Mr. Peter Deros, a representative of the Corporation, be duly
authorized for and on behalf of the Corporation, to enter into an Memorandum of
Agreement of Purchase and Sale, by and between Peter Deros, Demaco M.C.S. Inc.,
Les Aliments Joe et Ray Ltee, 99408 Canada Inc., Theo Kalaitzis, Michael Morris,
164634 Canada Inc., Domenico Ramacieri, Jean-Louis Mondou, Yolanda Martucci,
Abdelkrim Filadi, Charles Olivier Tremblay, Lionel Oberman, Sarkis Tsaoussian,
Frank Anania and Dina Dariotis as Vendors, PRS Sub VI, Inc. as Purchaser, and
Pizza Donini Inc. as the company.
THAT the said representative be duly authorized for and on behalf of
the Corporation, to sign any and all documents necessary in order to give full
effect to the foregoing."
CERTIFIED TRUE EXTRACT
/s/ LINDA PELLEGRINO
------------------------------------
Linda Pellegrino, Secretary
30
EXTRACT OF RESOLUTIONS OF THE BOARD OF DIRECTORS OF THE CORPORATION, PRS SUB VI,
INC., HELD AT THE HEAD OFFICE OF THE CORPORATION ON THE 29TH DAY OF JANUARY 2001
"IT IS HEREBY RESOLVED:
THAT Mr. John Frohling, the President of the Corporation, be duly
authorized for and on behalf of the Corporation, to enter into an Memorandum of
Agreement of Purchase and Sale, by and between Peter Deros, Demaco M.C.S. Inc.,
Les Aliments Joe et Ray Ltee, 99408 Canada Inc., Theo Kalaitzis, Michael Morris,
164634 Canada Inc., Domenico Ramacieri, Jean-Louis Mondou, Yolanda Martucci,
Abdelkrim Filadi, Charles Olivier Tremblay, Lionel Oberman, Sarkis Tsaoussian,
Frank Anania and Dina Dariotis as Vendors, the Corporation as Purchaser, and
Pizza Donini Inc. as the company.
THAT the said representative be duly authorized for and on behalf of
the Corporation, to sign any and all documents necessary in order to give full
effect to the foregoing."
CERTIFIED TRUE EXTRACT
/s/ LINDA PELLEGRINO
------------------------------------
Linda Pellegrino, Secretary
31