Exhibit 9
PRODUCT DEVELOPMENT, CONSULTING AND BROKERAGE AGREEMENT MADE AND ENTERED IN
MONTREAL AS OF THE 30TH DAY OF MAY 2001
BY AND BETWEEN:
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, in the City of St. Leonard, Province of Quebec, H1R 1A5,
herein duly represented by Mr. Peter Deros, its representative, duly
authorized for these purposes as he so declares,
HEREINAFTER REFERRED TO AS "DONINI"
-----------------------------------
AND:
9078-1881 QUEBEC INC.,
operating under the name and style of NANNI MARKETAL, body politic duly
constituted according to Law, having its Head Office and principal
place of business at 2507 Charland Street, Suite 200, Montreal, Quebec,
H1Z 1C4, herein duly represented by Mr. Phillip Nanni, its
representative, duly authorized for these purposes as he so declares,
HEREINAFTER CALLED "NANNI"
--------------------------
WHEREAS NANNI is in the brokerage, consulting and food product development
business within the food industry;
WHEREAS NANNI has developed a pizza dough formula for a self-rising frozen
fully-topped or non-topped pizza product for DONINI and has assisted DONINI in
developing certain other products;
WHEREAS pursuant to the terms of a letter dated March 23rd, 2000 and accepted by
NANNI on March 27th, 2000, the parties undertook to enter into an agreement in
respect of product development, consulting and brokerage services to be rendered
by NANNI to DONINI;
WHEREAS in furtherance of the obligations outlined in the letter of March 23rd,
2000, DONINI hereby retains the services of NANNI for the purposes specified
herein, the whole under the terms and conditions outlined more fully below;
Page 1
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the Premises
and the mutual covenants herein contained, the parties hereto covenant and agree
with each other as follows:
1. The preamble to the present Agreement shall form an integral part
hereof as if it were recited at length herein for all legal purposes.
2. DONINI, on a non-exclusive basis, hereby engages the services of NANNI
within the territory of Canada, the United States of America, South
America, Europe and the Far East (herein referred to as the
"Territory") for the purposes of the consultation, the development and
brokerage of certain products developed by NANNI and listed more fully
in Schedule "A" annexed hereto ("Products") and of any new products
that may be developed by NANNI during the term hereof with the
cooperation of and/or for the benefit of DONINI, its subsidiaries and
affiliates, within the market sectors enumerated in Schedule "B"
annexed hereto. In respect of the development of any new products by
NANNI as stipulated above during the term hereof, the parties shall
amend Schedule "A" to include such new products and such products shall
form part of the Products and be subject to the terms hereof. In the
event that during the term hereof DONINI shall market or sell the
Products through a division or subsidiary, DONINI shall cause such
entity to use the services of NANNI as provided herein.
3. NANNI shall provide to DONINI (or to such other entity as DONINI shall
stipulate) the services of Mr. Phillip Nanni, who shall provide
consulting services to DONINI in respect of the Products and develop,
either independently or together with DONINI, its subsidiaries,
nominees and employees, the Products in accordance with and to the
satisfaction of DONINI's specifications and requirements, or those of
its subsidiaries.
NANNI hereby acknowledges that DONINI and its subsidiaries have
developed their own formulas, recipes and products, which formulas,
recipes and products are and shall remain the exclusive property of
DONINI or its subsidiaries, as the case may be.
4. In addition, NANNI shall actively and diligently act as master broker
for DONINI in respect of the Products within the Territory with a view
to acquiring new clients for DONINI, maintaining a satisfactory
relationship with such clients and with other brokers and sub-brokers
as permitted herein, and ensuring a proper production, distribution,
purchasing and invoicing network in respect of the sale of the
Products. The parties hereby agree that all billable sales of the
Products listed in Schedule "A" generated by DONINI, its subsidiaries,
outside agents and vendors must be processed through NANNI.
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Within the scope of its duties, NANNI may, with the approval of DONINI,
acting reasonably or pursuant to any business reason, work with
existing and other brokers (including sub-brokers) within a specific
territory or market and shall make and advise DONINI of all
arrangements made with such brokers in respect of the commission
payable by DONINI. In such circumstances, NANNI shall be solely
responsible for the payment of the commission payable to all other
brokers and the commission payable by DONINI to NANNI shall not exceed
five percent (5%) of the net sale price of the Products as defined
hereinbelow. In addition, within the scope of its duties, NANNI may use
the services of sub-brokers who are specifically approved by DONINI in
writing and in advance and NANNI shall be solely responsible for their
remuneration, to the complete exoneration of DONINI.
5. Save and except where the present agreement is terminated as provided
herein, the term of this agreement shall be for the period commencing
on the date of signature of the present agreement and terminating on
May 31st, 2004, and shall be renewed thereafter for successive periods
of twelve (12) months each unless either party has advised the other by
written notice at least thirty (30) days prior to the expiry of the
then current term, that it wishes to terminate the Agreement upon the
expiry date.
In the event that NANNI defaults in its obligations hereunder, this
agreement may be terminated by DONINI upon written notice to NANNI.
NANNI shall be deemed to be in default where, among other things, it
fails to perform any of its duties hereunder as required, where it
fails or neglects to deal with DONINI, its subsidiaries, affiliates and
clients, suppliers, manufacturers, distributors and employees, and with
other brokers and sub-brokers, in good faith or in a business-like
manner (with a view to fostering the interests of DONINI, its
subsidiaries and affiliates and the Products), where it breaches any
obligation of confidentiality and non-disclosure, where it becomes
bankrupt or insolvent within the meaning of the Bankruptcy and
Insolvency Act or any other similar legislation, where it makes an
assignment of its property for the benefit of its creditors or avails
itself of any legislation or process for the arrangement of its debts
and obligations with its creditors, where it assigns, transfers, sells,
hypothecates or otherwise alienates this Agreement or any of the rights
or obligations ensuing therefrom to any person or entity without the
prior written express consent of DONINI, where it loses or abandons its
status as a corporation within the meaning of any applicable
legislation, where there is a change of control, either directly or
indirectly, without the prior written consent of DONINI, where a
liquidator, administrator, trustee or other person or entity is
appointed for the sale, liquidation, administration or management of
its affairs or where its assets are seized, attached or become subject
for sale by bailiff or other similar proceedings and such seizure,
attachment or sale is not dismissed in a timely fashion.
In the event that DONINI shall default in its obligations hereunder,
this agreement may be terminated by NANNI upon written notice to
DONINI. DONINI shall be deemed to be in default where it fails to
perform any of its duties hereunder as required, or where it becomes
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bankrupt or insolvent within the meaning of the Bankruptcy and
Insolvency Act, or any other similar legislation, where it makes an
assignment of its property for the benefit of its creditors or avails
itself of any legislation or process for the arrangement of its debts
and obligations with its creditors, where it loses or abandons its
status as a corporation within the meaning of any applicable
legislation, where a liquidator, trustee or other person or entity is
appointed for the sale or liquidation of all or a substantial part of
its assets and such appointment is not rescinded or quashed.
In addition to the above, NANNI shall have the option to terminate the
present Agreement if within six (6) months of the date hereof, DONINI
fails to become an actively trading company on the Over-the-Counter
Bulletin Board or NASDAQ.
6. In consideration of NANNI's services as outlined more fully above, the
following compensation shall be remitted to NANNI and such other
individuals specified below:
6.1 On or before August 30th, 2001, one hundred thousand (100,000)
shares of common stock of Donini, Inc., a New Jersey
corporation, hereto intervening for these purposes, as fully
paid and non-assessable. The parties hereby agree that in the
event that this agreement shall terminate for any reason, the
provisions of this paragraph 6.1 shall survive the
termination.
6.2 Ninety-one (91) days following the effective trading date upon
which the stock of Donini, Inc. begins trading on the
Over-the-Counter Bulletin Board or Nasdaq (herein referred to
as the "effective date"), a non-recurring three (3) year
option to purchase an additional one hundred and fifty
thousand (150,000) shares of common stock of Donini, Inc. at a
price equal to seventy-five percent (75%) of the average
closing price of the common stock of Donini, Inc. on the
Over-the-Counter bulletin board or Nasdaq on the five (5)
trading days immediately following the first ninety (90) days
of trading of the stock, which option may be exercised at any
time within thirty-six (36) months following the granting of
the option. The parties hereby agree that in the event that
this agreement shall terminate for any reason, the option
granted in this paragraph 6.2 shall survive the termination
and continue for the term provided in this paragraph;
6.3 Twelve (12) months following the granting of the option
stipulated in sub-paragraph 6.2 hereof, a non-recurring two
(2) year option to purchase an additional fifty thousand
(50,000) shares of common stock of Donini, Inc. at a price
equal to seventy-five percent (75%) of the average trading
price during the five (5) day period immediately following the
granting of the option described in this sub-paragraph 6.3,
which option may be exercised at any time within twenty-four
(24) months following the granting of the option. The parties
hereby agree that in the event that the Agreement is
terminated for any reason, the option granted in paragraph 6.3
of this Agreement shall survive the termination of the
Agreement and continue for the term provided in this
paragraph;
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6.4 Twenty-four (24) months following the granting of the option
described in sub-paragraph 6.2, a non-recurring two (2) year
option to purchase an additional fifty thousand (50,000)
shares of common stock of Donini, Inc. at a price equal to
seventy-five percent (75%) of the average trading price during
the five (5) day period immediately following the granting of
the option described in this sub-paragraph 6.4, which option
may be exercised at any time within twenty-four (24) months
following the granting of the option. The parties hereby agree
that in the event that the Agreement is terminated for any
reason, the option granted in paragraph 6.4 of this Agreement
shall survive the termination of the Agreement and continue
for the term provided in this paragraph;
6.5 Ninety-one (91) days following the effective date, a
non-recurring three (3) year option to purchase seventy-five
thousand (75,000) shares of common stock of Donini, Inc. to be
granted to Mr. Jean Gadoua, businessman, in consideration of
consulting services rendered by Mr. Gadoua to NANNI,
exercisable at a price equal to seventy-five percent (75%) of
the average closing price of the common stock of Donini, Inc.
on the Over-the-Counter bulletin board of Nasdaq on the five
(5) trading days immediately following the first ninety (90)
days of trading of the stock, which option may be exercised at
any time within thirty-six (36) months following the granting
of the option. The parties hereby agree that in the event that
this agreement shall terminate for any reason, the option
granted in this paragraph 6.5 shall survive the termination
and continue for the term provided in this paragraph;
6.6 Ninety-one (91) days following the effective date, a
non-recurring three (3) year option to purchase twenty-five
thousand (25,000) shares of common stock of Donini, Inc. to be
granted to Mrs. Manon Robillard, businesswoman, in
consideration of consulting services rendered by Mrs.
Robillard to NANNI, exercisable at a price equal to
seventy-five percent (75%) of the average closing price of the
common stock of Donini, Inc. on the Over-the-Counter bulletin
board of Nasdaq on the five (5) trading days immediately
following the first ninety (90) days of trading of the stock,
which option may be exercised at any time within thirty-six
(36) months following the granting of the option. The parties
hereby agree that in the event that this agreement shall
terminate for any reason, the option granted in this paragraph
6.6 shall survive the termination and continue for the term
provided in this paragraph;
6.7 A brokerage commission to NANNI from DONINI or its
subsidiaries, as the case may be, equal to five percent (5%)
of regional, national and international accounts based on the
net sale price of the Products sold to customers (i.e., net of
any applicable taxes and the costs of any programs offered to
clients such as rebates, volume or advertising allowances or
other similar inducements) introduced by NANNI to DONINI or
where NANNI has actively rendered services as a master broker.
Page 5
All commissions, fees, remuneration or amounts owing to any
other brokers or sub-brokers chosen by NANNI and approved by
DONINI shall be payable by NANNI from and be inclusive of the
five percent (5%) commission payable to NANNI herein.
All commissions, fees, remuneration or amounts owing to any
other broker or sub-brokers chosen by DONINI shall be payable
by DONINI and DONINI shall ensure that all other brokers and
sub-brokers shall process all orders and sales through NANNI
in order that NANNI may ensure a sufficient and reasonably
acceptable production and distribution flow of the Products.
In the event that the Products are sold pursuant to the
efforts of a third party broker, sub-broker or other person
without any involvement or effort on the part of NANNI, NANNI
shall receive a total commission equal to one percent (1%) of
the net sale price of such Products. In the event that the
Products are sold pursuant to the efforts of a broker or
sub-broker or other person chosen by DONINI with the
involvement of NANNI, NANNI shall receive a total commission
equal to two percent (2%) of the net sale price of such
Products.
The parties hereby acknowledge and agree that all commissions
payable by DONINI in respect of the sale of any Products shall
never exceed five percent (5%) of the net sale price of the
Products and that the commission payable to NANNI shall not be
less than the percentage set forth above according to the
different scenarios of the sale of the Products, unless the
parties shall otherwise agree;
6.8 The parties hereby agree that NANNI shall receive no
commission pursuant to subparagraph 6.7 hereof in respect of
sales and distribution of any product to existing clients of
DONINI and/or its subsidiaries and affiliates, and of existing
32 DONINI franchisee or licensee locations or any market
serviced by DONINI, its subsidiaries or affiliates as of the
date hereof save and except for a total commission of two
percent (2%) of the net sale price on the sale of any Products
developed by NANNI, as NANNI shall continue to ensure that the
production and distribution flow of such Products is adequate
and that the said Products are delivered as required. In
respect of any new DONINI franchise or licensee or any other
brand name concept and/or location owned and/or operated by
DONINI, its subsidiaries or affiliates after the date hereof,
NANNI shall receive a commission of five percent (5%) of the
net sale price (as defined in this agreement) of the Products
developed by NANNI and the parties hereby confirm that such
sales shall be processed through NANNI;
6.9 All commissions owing hereunder shall be paid to NANNI within
five (5) business days after receipt of the Products by the
clients introduced to it by NANNI. All orders and clients
obtained by NANNI shall be submitted to DONINI, its
subsidiaries and / or affiliates, as the case may be, who
Page 6
shall review the orders, the conditions attached thereto
and/or the creditworthiness of the clients from time to time,
and may accept or refuse any order or client at their
discretion. All orders of the Products shall be submitted by
clients in the manner described in Schedule "C" annexed hereto
and payment of the commission shall be as provided therein
unless the parties shall otherwise agree.
6.10 In the event that DONINI, its subsidiaries and/or affiliates
determine that a client or order is considered doubtful or
where a client becomes delinquent at any time, and DONINI so
advises NANNI prior to accepting such order, the parties shall
agree to such terms and conditions as may be acceptable,
including such conditions providing for the payment of
commissions by DONINI to NANNI only at such time as DONINI
shall have received and confirmed payment for the order(s) in
question;
6.11 For the purposes of the issuance of the common stock pursuant
to sub-paragraph 6.1 and the options granted pursuant to
sub-paragraphs 6.2, 6.3, 6.4, 6.5 and 6.6 hereof, Donini, Inc.
hereby intervenes into the present Agreement and undertakes to
issue the stock and grant to the individuals or entities
stipulated the options to acquire shares of its common stock.
All options granted and any shares so issued shall be subject
to all applicable federal and state securities legislation,
regulation and policy, including all rules regarding the
disposition of shares by insiders.
7. The development of all Products enumerated in Schedule "A" annexed
hereto and the development of any new products during the term of this
Agreement, shall be conducted by NANNI in the premises of DONINI, its
subsidiaries or affiliates or at such premises recommended by NANNI and
approved by DONINI and/or its subsidiaries and affiliates, as
applicable. DONINI, its subsidiaries and/or affiliates, as the case may
be, shall assume the cost of such ingredients and products recommended
by NANNI and supplied by DONINI and/or its subsidiaries and affiliates,
and shall further provide at its own cost, if required by NANNI, the
assistance of such officers, directors or personnel of DONINI, its
subsidiaries and affiliates, subject to availability.
8. NANNI shall be entitled to make recommendations to DONINI and its
subsidiaries in respect of decisions affecting the location where the
Products and any new products developed during the term hereof will be
manufactured and assembled.
9. NANNI shall not divulge, submit, reveal or otherwise use any recipes,
formulas, confidential information, client lists, contacts, sales
lists, trade secrets or processes formulated for DONINI and/or its
subsidiaries or otherwise disclosed to it by DONINI, its subsidiaries,
their agents, employees and officers other than for the benefit of
DONINI, its successors, parent, shareholders, subsidiaries and
affiliated companies. DONINI and/or its designated subsidiaries shall
become the exclusive owners of all recipes and formulas developed by
Page 7
NANNI concurrently with the effective date on which Donini, Inc. begins
trading on the Over-the-Counter Bulletin Board or Nasdaq and the
delivery to NANNI of the stock and option and to its consultants, of
the options stipulated in paragraph 6 hereof. In addition, DONINI shall
and its subsidiaries and affiliates shall become the exclusive owners
of any new recipes, products or formulas developed by NANNI during the
term hereof as developed, with the cooperation of and/or for the
benefit of DONINI, its subsidiaries and affiliates. For the purposes of
this provision, Donini, Inc. hereby intervenes and undertakes to
deliver the stock and options as provided in this Agreement. NANNI
shall not disclose the contents of this Agreement to any third party
whatsoever without the prior written consent of DONINI, its successors,
shareholders, subsidiaries and/or parent corporation as the case may
be.
10. This Agreement is personal to NANNI. NANNI shall not transfer,
hypothecate, sell, assign or otherwise alienate this Agreement or any
of the rights ensuing thereform without the express prior written
consent of DONINI, its successor or assigns. Any violation of this
provision shall constitute a default under this Agreement resulting in
its immediate termination. Any change of control of NANNI shall
constitute an assignment hereunder.
11. In the event that Mr. Phillip Nanni resigns, becomes unable to perform
his duties to DONINI or ceases to act for any reason as an officer,
director, employee or shareholder of NANNI, NANNI shall be in default
in respect of its obligations to provide product development and
consulting services to DONINI hereunder.
12. The present agreement cancels, supersedes and replaces all previous
agreements, understandings, instruments and contracts that may exist
between the parties, whether verbal or written.
13. The present Agreement shall enure and be binding upon the parties
hereto, their legal representatives, successors and permitted assigns.
14. The parties hereto do hereby declare that at their request, the present
Agreement has been drafted and executed in the English language, and
that they further request that all further communications relating
thereto may be sent to them in the English language; QUE les parties
aux presentes declarent qu'a leur demande, le present document a ete
redige en langue anglaise et aussi a leur demande, que toutes autres
communications relativement a ce document puissent etre redigees dans
la langue anglaise.
15. All shares so issued shall be subject to all applicable federal and
state securities legislation, regulation and policy, including all
rules regarding the disposition of shares by insiders.
Page 8
16. NANNI shall not disclose the contents of this agreement to any third
party whatsoever without the prior written consent of DONINI, its
successors, shareholders, subsidiaries and/or parent corporation as the
case may be.
17. This Agreement and the rights ensuing therefrom are personal to NANNI.
NANNI shall not transfer, hypothecate, sell, assign or otherwise
alienate this Agreement or any of the rights ensuing thereform without
the express prior written consent of DONINI, its successor or assigns.
Any violation of this provision shall constitute a default under this
Agreement resulting in its immediate termination. Any change of control
of NANNI shall constitute an assignment hereunder.
18. The present Agreement shall enure and be binding upon the parties
hereto, their legal representatives, successors and permitted assigns.
IN WITNESS WHEREOF THE PARTIES AND INTERVENANT HAVE SIGNED AT MONTREAL AS OF THE
DATE INDICATED HEREINABOVE.
PIZZA DONINI INC.
Per: /s/ PETER DERSO /s/ SUSAN BORODAY
------------------------- -------------------------
PETER DEROS Witness
duly authorized for these purposes
9078-1881 QUEBEC INC.
(operating under the name and style
of NANNI MARKETAL)
Per: /s/ PHILLIP NANNI /s/ MARY PEHLIVANIAN
------------------------- -------------------------
PHILLIP NANNI Witness
duly authorized for these purposes
DONINI, INC. (Intervenant)
Per: /s/ PETER DEROS /s/ SUSAN BORODAY
------------------------- -------------------------
PETER DEROS Witness
duly authorized solely for the
purposes stated in subparagraphs
6.1, 6.2, 6.3, 6.4, 6.5, 6.6 and 9 hereof
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SCHEDULE "A"
PRODUCTS DEVELOPED OR TO BE DEVELOPED BY NANNI
PURSUANT TO PRODUCT DEVELOPMENT, CONSULTING AND
BROKERAGE AGREEMENT
--------------------------------------------------------------------------------
1. Frozen Pizza Shells - Regular and Self-Rising;
2. Refrigerated and/or Frozen Raw Dressed Self-Rising Pizza (single or
multi-serve);
3. Refrigerated, Par-baked Crust, Deli-Counter Dressed Pizza (single or
multi-serve);
4. Frozen, Par-Baked Dressed Pizza (single or multi-serve);
5. Frozen Pizza Pockets (regular or microwave oven);
6. Microwavable Frozen Dressed Pizza (single or multi serve);
7. Pizza and Pasta Sauces.
8. Raw Dough Balls
The parties hereby specifically exclude any and all products developed by
DONINI, its subsidiaries and/or affiliates from the application of this
Agreement including, but not limited to the products enumerated in items 7 and 8
above, and such new products as may be developed by DONINI, its subsidiaries
and/or affiliates from time to time, without the assistance of NANNI.
Page 10
SCHEDULE "B"
MARKETS SECTORS TO BE DEVELOPED BY NANNI
--------------------------------------------------------------------------------
Retail Sector
-------------
- Supermarkets
- Convenience Stores
- Movie and Video Rental Stores
Food Service Sector
-------------------
- Restaurant Chains
- Travel catering industry (airline, railway, overland and sea)
- Government Tender Business
(armed forces, health services, prisons)
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SCHEDULE "C"
------------
FLOW OF ORDERS AND PAYMENT
--------------------------
(to be provided by NANNI)
-------------------------
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EXTRACT OF A RESOLUTION OF THE DIRECTORS OF THE COMPANY, PIZZA DONINI INC.
--------------------------------------------------------------------------
ADOPTED ON THE 20th DAY OF MARCH 2001
-------------------------------------
IT WAS RESOLVED;
----------------
"THAT Mr. Peter Deros, a representative of the Company, be duly
authorized for and on behalf of the Company, to enter into a Product
Development, Consulting and Brokerage Agreement by and between Pizza Donini Inc.
and 9078-1881 Quebec Inc. (operating under the name and style of Nanni
Marketal), the whole in accordance with the terms and conditions of a draft
agreement submitted to the directors for their approval.
THAT said representative be duly authorized for and on behalf of the
Company, to sign any and all documents necessary in order to give full effect to
the foregoing."
CERTIFIED TRUE EXTRACT
/s/ PETER DEROS
-------------------------
SECRETARY
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EXTRACT OF A RESOLUTION OF THE DIRECTORS OF THE COMPANY, 9078-1881 QUEBEC INC.
------------------------------------------------------------------------------
ADOPTED ON THE 20th DAY OF MARCH 2001
-------------------------------------
IT WAS RESOLVED;
----------------
"THAT Mr. Phillip Nanni, a representative of the Company, be duly
authorized for and on behalf of the Company, to enter into a Product
Development, Consulting and Brokerage Agreement by and between Pizza Donini Inc.
and 9078-1881 Quebec Inc. (operating under the name and style of Nanni
Marketal), the whole in accordance with the terms and conditions of a draft
agreement submitted to the directors for their approval.
THAT said representative be duly authorized for and on behalf of the
Company, to sign any and all documents necessary in order to give full effect to
the foregoing."
CERTIFIED TRUE EXTRACT
/s/ MARCEL CHARBONNEAU
-------------------------
SECRETARY
Page 14
EXTRACT OF A RESOLUTION OF THE DIRECTORS OF THE CORPORATION, DONINI, INC.
-------------------------------------------------------------------------
ADOPTED ON THE 20th DAY OF MARCH 2001
-------------------------------------
IT WAS RESOLVED;
----------------
"THAT Mr. Peter Deros, a representative of the Corporation, be duly
authorized for and on behalf of the Corporation, to enter into a Product
Development, Consulting and Brokerage Agreement by and between Pizza Donini Inc.
and 9078-1881 Quebec Inc. (operating under the name and style of Nanni
Marketal), the whole in accordance with the terms and conditions of a draft
agreement submitted to the directors for their approval.
THAT 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/ CATHERINE PANTOULIS
-------------------------
SECRETARY
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