As filed with the Securities and Exchange Commission on October 23, 1996.
Registration Number 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
N.U. PIZZA HOLDING CORPORATION
NEVADA 95-365327
------ ---------
STATE OF INCORPORATION IRS EMPLOYEE IDENTIFICATION NUMBER
STOCK COMPENSATION PLAN
-----------------------
(Full title of Plan)
Ronald J. Gelet
722 Genevieve Street, Suite G
Solana Beach, CA 92075
(619) 259-6322
---------------------------------------------------------
(Name, Address and Telephone Number of Agent for Service)
- -------------------------------------------------------------------------------
APPROXIMATE DATE OF PROPOSED COMMENCEMENT OF SALES
PURSUANT TO THE PLAN:
From Time to Time after this Registration Statement becomes Effective
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS AMOUNT TO BE MAXIMUM AGGREGATE REGISTRATION
OF SECURITIES TO BE REGISTERED OFFERING OFFERING PRICE FEE(1)
REGISTERED PRICE PER
SHARE
- ---------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 3,000,000 $0.25 $ 750,000 $260
No Par Value shares
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee on the
based upon the average bid and asked price of the Common Stock on the OTC
Electronic Bulletin Board on September 16, 1996.
<PAGE>
THIS DOCUMENT CONSTITUTES PART OF A PROSPECTUS
COVERING SECURITIES THAT HAVE BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933
3,000,000 Shares
N.U. PIZZA HOLDING CORPORATION
Common Stock
This Prospectus relates to 3,000,000 shares of common stock, $.001 par
value (the "Common Stock"), of N.U. Pizza Holding Corporation, a Nevada
corporation (the "Company"), issuable pursuant to Consulting Agreements
described herein.
The delivery of this Prospectus at any time does not imply that the
information contained herein is correct as of any time subsequent to the date
hereof. No person has been authorized to give any information or to make any
representation other than as contained herein in connection with the offer
contained in this Prospectus, and, if given or made, such information or
representation must not be relied upon.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
The date of this Prospectus is September 20, 1996.
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<PAGE>
DESCRIPTION OF AGREEMENT
In September 1996, The Company entered into a separate Consulting
Agreements (the "Agreements"), with George Furla, Peter Benz and Seth Kaplan
pursuant to which the Company has agreed to issue 1,000,000 shares to each
consultant for a total of 3,000,000 shares (the "Shares") of the Company's
Common Stock in payment for consulting services to the Company concerning
management, marketing, strategic planning, corporate organization and structure,
financial matters, expansion of services, acquisitions and business
opportunities in connection with the Company's food product business.
REGISTRATION OF THE SHARES
Pursuant to each of the Agreements, the Company has agreed to register the
Shares on a Registration Statement on Form S-8 under the Securities Act of 1933,
as amended, in connection with their original issuance to the consultants. This
Prospectus relates to a Registration Statement on Form S-8 which was filed with
the Securities and Exchange Commission on the date hereof and which became
effective as of such filing.
RESALE OF THE SHARES
The Agreements do not impose any restrictions on the resale of the Shares.
However, if a recipient of Shares is or becomes an "affiliate" of the Company,
as such term is defined in Rule 144 promulgated under the Securities Act, at any
such time, such person will be subject to the limitations on the amount of
securities which may be sold imposed under Rule 144(e)(1). Rule 144(e)(1)
generally provides that the number of shares of Common Stock which may be sold
in any three month period may not exceed the greater of (i) 1% of the
outstanding Common Stock as shown by the most recent published report of the
Company or (ii) the average weekly reported volume of trading in the Common
Stock, as reported through NASDAQ, for the four weeks preceding the filing of a
notice of proposed sale of the Common Stock, if required under Rule 144(b) under
the Securities Act, or preceding the date of receipt of the order to execute the
transaction by the broker or the date of execution directly with a market maker.
Additional information regarding the Agreements not set forth in this
Prospectus may be obtained obtained from the Company at 15415 Cabrito Avenue,
Suite A, Van Nuys, CA 91406.
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
At the time of issuance of the Shares, each of the consultants recognized
ordinary income for federal income tax purposes in an amount equal to the then
fair market value of the Shares received by such consultant. Each consultant
will recognize gain or loss on the subsequent sale of the Shares in an amount
equal to the difference between the amount realized and the tax basis of such
Shares, which will
2
<PAGE>
equal the amount included in the consultant's income by reason of the issuance
of the Shares. Provided such Shares are held as a capital asset, such gain or
loss will be long-term or short-term capital gain or loss depending upon whether
the Shares have been held for more than one year.
The Agreement is not subject to any of the provisions of the Employee
Retirement Income Security Act of 1974, and is not qualified under Section
401(a) of the Code.
This discussion is only a summary of certain significant federal income
tax consequences and each consultant should consult an independent tax adviser
as to all of the federal and state income tax consequences relating to the
receipt or sale of the Shares.
CERTAIN INFORMATION
The documents incorporated by reference in Item 3 of Part II of the Form
S-8, and any other documents required to be delivered pursuant to Rule 428(b),
promulgated under the Securities Act, are available from the Company, without
charge, upon written or oral request. Requests for documents should be directed
to the President of the Company. The documents incorporated by reference in Item
3 of Part II of the Form S-8 are also incorporated in this Prospectus by
reference thereto.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INFORMATION INCORPORATED BY REFERENCE.
The Registrant is subject to the informational and reporting requirements
of Sections 13(a), 13(C), 14 and 15(d) of the Securities and Exchange Act of
1934, as amended (the "Exchange Act"), and in accordance therewith files
reports, proxy statements and other information with the Securities and Exchange
Commission. The following documents, which are on file with the Securities and
Exchange Commission, are incorporated in this Registration Statement by
reference:
(a) the Registrant's: (i) latest annual report filed pursuant to
Section 13(a) or 15(d) of the Exchange Act; (ii) the latest prospectus filed
pursuant to Rule 4524(b) under the Securities and Exchange Act of 1933, as
amended (the "Act"), which contains, either directly or by incorporation by
reference, audited financial statements for the Registrant's latest fiscal year
for which such statements have been filed,; or (iii) the Registrant's effective
registration statement on Form S-18, if any, filed under the Exchange Act
containing audited financial statements for the Registrant's latest fiscal year.
3
<PAGE>
(b) All other reports filed pursuant to Section 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by the annual reports
or the prospectus referred to in (a) above.
(c) The Registrant's definitive proxy statement or the information
statement, if any, filed pursuant to Section 14 of the Exchange Act in
connection with the latest annual meeting of its stockholders, and any
definitive proxy or information statements so filed in connection with any
subsequent special meeting of its stockholders.
(d) The description of the Common Stock which are contained in
registration statements filed under the Exchange Act, including any amendment or
report filed for the purpose of updating such description.
(e) Information as to stock options, including the amount
outstanding, exercises, prices and expiration dates, included in the
Registrant's definitive proxy statement, described in (c) above and which will
be included in the future either in the Registrant's proxy statements, annual
reports or appendices to the prospectus.
All documents filed by the Registrant pursuant to Section 13(a), 14 and
15(d) of the Exchange Act prior to the filing of a post-effective amendment
which indicates that all shares offered hereby have been sold or which
deregisters all shares then remaining unsold, shall be deemed to be incorporated
in this Registration Statement by reference and to be a part hereof from the
date of filing of such documents.
Item 4. DESCRIPTION OF SECURITIES
The authorized capital common stock of the Company consists of 50,000,000
shares of Common Stock, $.001 par value. Holders of the Common Stock do not have
preemptive rights to purchase additional shares of Common Stock or other
subscription fights. The Common Stock carries no conversion rights and is not
subject to redemption or to any sinking fund provisions. All shares of Common
Stock are entitled to share equally in dividends from sources legally available
therefor when, as and if declared by the Board of Directors and, upon
liquidation or dissolution of the Company, whether voluntary or involuntary, to
share equally in the assets of the Company available for distribution to
stockholders. All outstanding shares of Common Stock are validly authorized and
issued, fully paid and nonassessable, and all shares to be sold and issued as
contemplated hereby, will be validly authorized and issued, fully paid and
nonassessable. The Board of Directors is authorized to issue additional shares
of Common Stock, not to exceed the amount authorized by the Company's
Certificate of Incorporation, on such terms and conditions and for such
consideration as the Board may deem appropriate without further stockholder
action. The above description concerning the Common Stock of the Company does
not purport to be complete. Reference is made to the Company's Certificate of
Incorporation and Bylaws which are available for inspection upon proper notice
at the Company's offices, as well as to the applicable statutes of the State of
Florida for a more complete description concerning the rights and liabilities of
stockholders. Each holder
4
<PAGE>
of Common Stock is entitled to one vote per share on all matters on which such
stockholders are entitled to vote. Since the shares of Common Stock do not have
cumulative voting rights, the holders of more than 50 percent of the shares
voting for the election of directors can elect all the directors if they choose
to do so and, in such event, the holders of the remaining shares will not be
able to elect any person to the Board of Directors.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
No such interests.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
As permitted by the Nevada Corporation Law, under the Company's
Certificate of Incorporation and By-Laws, the Company shall to the fullest
extent permitted by Nevada Law, as the same shall be added and supplemented,
indemnify any and all persons whom it shall have power to indemnify under said
Section from and against any and all of the expenses, liabilities or other
matters referred to in or covered by said Section, and the indemnification
provided for therein shall not be deemed exclusive of any other right to which
any person may be entitled under any By-Law, resolution of shareholders,
resolution of directors, agreement or otherwise, as permitted by said Article,
as to action in any capacity in which he served at the request of the Company.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or persons controlling the
Company pursuant to the foregoing provisions, the Company has been informed
that, in the opinion of the Securities and Exchange Commission, such
indemnification is against public policy as expressed in the Act and is
therefore unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Company of expenses incurred or
paid by a director, officer or controlling person of the Company in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person, in connection with securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question as to whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable
Item 8. EXHIBITS
5
<PAGE>
The Exhibit Index immediately preceding the exhibits is attached hereto
and incorporated herein by reference.
Item 9. UNDERTAKINGS
1. The Registrant hereby undertakes:
(a) to file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the registration statement;
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
PROVIDED, HOWEVER, that paragraphs (i) and (ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(b) That, for the purpose of determining any liability under the Securities Act
of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of the
offering.
2. The Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act
(and, where applicable, each filing of an employee benefit plan's annual report
pursuant to Section
6
<PAGE>
15(d) of the Exchange Act) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be in the initial bona fide offering thereof.
7
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of San Diego, California this 15th day of September,
1996.
N.U. PIZZA HOLDING CORPORATION
BY: /s/ RONALD J. GELET
---------------------------
Ronald J. Gelet, President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
/s/ RONALD J. GELET Director 9/15/96
- ---------------------- Chief Financial Officer
Ronald J. Gelet
8
<PAGE>
EXHIBIT INDEX
3.1 Certificate of Incorporation of the Company (incorporated herein by
reference to Form 10-K under the Securities Exchange Act of 1934
filed with the Commission in November 1994., file number 0-19522).
3.2 By-Laws of the Company (incorporated herein by reference to Form 10K
under the Securities Exchange Act of 1934 filed with the Commission
in November 1994, file number 0-19522.)
4.1 Consulting Agreement with George Furla
4.2 Consulting Agreement with Peter Benz
4.3 Consulting Agreement with Seth Kaplan
5.3 Opinion of Eric P. Littman, P.A.
24.1 Consent of Eric P. Littman, P.A. (contained in 5.3)
24.2 Consent of Block & Handelman, CPA.
9
EXHIBIT 4.1
CONSULTING AGREEMENT
This Consulting Agreement (the "Consulting Agreement") made as of
September 15, 1996, by and between George Furla, 12166 W. Olympic Boulevard, Los
Angeles, CA 90064 ("Consultant") and N.U. Pizza Holding Corporation with offices
at 3443 Tripp Court, San Diego, CA 93121 (the "Company")
WITNESSETH
WHEREAS, the Company is engaged in the business of operating pizza
restaurants and franchises and wishes to expand its business by acquiring other
companies; and
WHEREAS, the Company requires and will continue to require consulting
services relating management, strategic planning and marketing in connection
with its business; and
WHEREAS, Consultant can provide the Company with strategic planning and
marketing consulting services and is desirous of performing such services for
the Company; and
WHEREAS, the Company wishes to induce Consultant to provide these
consulting services to the Company.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
stated, it is agreed as follows:
1. APPOINTMENT.
The Company hereby engages Consultant and Consultant agrees to render
services to the Company as a consultant upon the terms and conditions
hereinafter set forth.
2. TERM.
The term of this Consulting Agreement began as of the date of this
Agreement, and shall terminate on December 31, 1996, unless earlier terminated
in accordance with paragraph 8 herein or extended as agreed to between the
parties.
3. SERVICES.
During the term of this Agreement, Consultant shall provide advice to,
undertake for and consult with the Company concerning management, marketing,
1
<PAGE>
consulting, strategic planning, corporate organization and structure, financial
matters in connection with the operation of the businesses of the Company,
expansion of services, acquisitions and business opportunities, and shall review
and advise the Company regarding its overall progress, needs and condition.
Consultant agrees to provide on a timely basis the following enumerated services
plus any additional services contemplated thereby:
(a) The implementation of short-range and long-term strategic
planning to fully develop and enhance the Company's assets,
resources, products and services;
(b) The implementation of a marketing program to enable the Company
to broaden the markets for its services and promote the image of the
Company and its products and services;
(c) Advise the Company relative to the recruitment and employment of
key executives consistent with the expansion of operations of the
Company;
(d) The identification, evaluation, structuring, negotiating and
closing of joint ventures, strategic alliances, business
acquisitions and advice with regard to the ongoing managing and
operating of such acquisitions upon consummation thereof; and
(e) Advice and recommendations regarding corporate financing
including the structure, terms and content of bank loans,
institutional loans, private debt funding, mezzanine financing,
blind pool financing and other preferred and common stock equity
private or public financing.
4. DUTIES OF THE COMPANY.
The Company shall provide Consultant, on a regular and timely basis, with
all approved data and information about it, its subsidiaries, its management,
its products and services and its operations as shall be reasonably requested by
Consultant, and shall advise Consultant of any facts which would affect the
accuracy of any data and information previously supplied pursuant to this
paragraph. The Company shall promptly supply Consultant with full and complete
copies of all financial reports, all filings with all federal and state
securities agencies; with full and complete copies of all stockholder reports;
with all data and information supplied by any financial analyst, and with all
brochures or other sales materials relating to its products or services.
2
<PAGE>
5. COMPENSATION.
The Company will immediately grant Consultant the option to purchase
1,000,000 shares of the Company's Common Stock valued at $0.20 per share, which
option shall expire on December 31, 1996 at 5:00 P.M. P.S.T. The number of
shares herein are subject to the anti-dilution provisions of the corresponding
warrant which is being issued in conjunction with this Agreement. Consultant in
providing the foregoing services, shall not be responsible for any out-of-pocket
costs, including, without limitation, travel, lodging, telephone, postage and
Federal Express charges.
6. REPRESENTATION AND INDEMNIFICATION.
The Company shall be deemed to have been made a continuing representation
of the accuracy of any and all facts, material information and data which it
supplies to Consultant and acknowledges its awareness that Consultant will rely
on such continuing representation in disseminating such information and
otherwise performing its advisory functions. Consultant in the absence of notice
in writing from the Company, will rely on the continuing accuracy of material,
information and data supplied by the Company. Consultant represents that he has
knowledge of and is experienced in providing the aforementioned services.
7. MISCELLANEOUS.
TERMINATION: This Agreement may be terminated by either Party upon written
notice to the other Party for any reason which shall be effective five (5)
business days from the date of such notice. This Agreement shall be terminated
immediately upon written notice for material breach of this Agreement.
MODIFICATION: This Consulting Agreement sets forth the entire
understanding of the Parties with respect to the subject matter hereof. This
Consulting Agreement may be amended only in a writing signed by both Parties.
NOTICES: Any notice required or permitted to be given hereunder shall be
in writing and shall be mailed or otherwise delivered in person or by facsimile
transmission at the address of such Party set forth above or to such other
address or facsimile telephone number as the Party shall have furnished in
writing to the other Party.
WAIVER: Any waiver by either Party of a breach of any provision of this
Consulting Agreement shall not operate as or be construed to be a waiver of any
other breach of that provision or of any breach of any other provision of this
Consulting Agreement. The failure of a Party to insist upon strict adherence to
any term of this
3
<PAGE>
Consulting Agreement on one or more occasions will not be considered a waiver or
deprive that Party of the right thereafter to insist upon adherence to that term
of any other term of this Consulting Agreement.
ASSIGNMENT: Neither this Consulting Agreement nor the Option granted in
paragraph 5 may be transferred or assigned.
SEVERABILITY: If any provision of this Consulting Agreement is invalid,
illegal, or unenforceable, the balance of this Consulting Agreement shall remain
in effect, and if any provision is inapplicable to any person or circumstance,
it shall nevertheless remain applicable to all other persons and circumstances.
DISAGREEMENTS: Any dispute or other disagreement arising from or out of
this Consulting Agreement shall be submitted to arbitration under the rules of
the American Arbitration Association and the decision of the arbiter(s) shall be
enforceable in any court having jurisdiction thereof. Arbitration shall occur
only in Miami, Florida. The interpretation and the enforcement of this Agreement
shall be governed by Florida law as applied to residents of the State of Florida
relating to contracts executed in and to be performed solely within the State of
Florida. In the event any dispute is arbitrated, the prevailing party (as
determined by the arbiter(s)) shall be entitled to recover that party's
reasonable attorney's fees incurred (as determined by the arbiter(s)).
IN WITNESS WHEREOF, this Consulting Agreement has been executed by the
Parties as of the date first above written.
N.U. PIZZA HOLDING CONSULTANT
CORPORATION
/s/ RONALD J. GELET /s/ GEORGE FURLA
- --------------------- ---------------------
Ronald J. Gelet, George Furla
President
4
EXHIBIT 4.2
CONSULTING AGREEMENT
This Consulting Agreement (the "Consulting Agreement") made as of
September 15, 1996, by and between Peter Benz, 534 Virginia, San Mateo, CA 94402
("Consultant") and N.U. Pizza Holding Corporation with offices at 3443 Tripp
Court, San Diego, CA 93121 (the "Company").
WITNESSETH
WHEREAS, the Company is engaged in the business of operating pizza
restaurants and franchises and wishes to expand its business by acquiring other
companies; and
WHEREAS, the Company requires and will continue to require consulting
services relating to management, strategic planning and marketing in connection
with its business; and
WHEREAS, Consultant can provide the Company with strategic planning and
marketing consulting services and is desirous of performing such services for
the Company; and
WHEREAS, the Company wishes to induce Consultant to provide these
consulting services to the Company.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
stated, it is agreed as follows:
1. APPOINTMENT.
The Company hereby engages Consultant and Consultant agrees to render
services to the Company as a consultant upon the terms and conditions
hereinafter set forth.
2. TERM.
The term of this Consulting Agreement began as of the date of this
Agreement, and shall terminate on December 31, 1996, unless earlier terminated
in accordance with paragraph 8 herein or extended as agreed to between the
parties.
3. SERVICES.
During the term of this Agreement, Consultant shall provide advice to,
undertake for and consult with the Company concerning management, marketing,
1
<PAGE>
consulting, strategic planning, corporate organization and structure, financial
matters in connection with the operation of the businesses of the Company,
expansion of services, acquisitions and business opportunities, and shall review
and advise the Company regarding its overall progress, needs and condition.
Consultant agrees to provide on a timely basis the following enumerated services
plus any additional services contemplated thereby:
(a) The implementation of short-range and long-term strategic
planning to fully develop and enhance the Company's assets,
resources, products and services;
(b) The implementation of a marketing program to enable the Company
to broaden the markets for its services and promote the image of the
Company and its products and services;
(c) Advise the Company relative to the recruitment and employment of
key executives consistent with the expansion of operations of the
Company;
(d) The identification, evaluation, structuring, negotiating and
closing of joint ventures, strategic alliances, business
acquisitions and advice with regard to the ongoing managing and
operating of such acquisitions upon consummation thereof; and
(e) Advice and recommendations regarding corporate financing
including the structure, terms and content of bank loans,
institutional loans, private debt funding, mezzanine financing,
blind pool financing and other preferred and common stock equity
private or public financing.
4. DUTIES OF THE COMPANY.
The Company shall provide Consultant, on a regular and timely basis, with
all approved data and information about it, its subsidiaries, its management,
its products and services and its operations as shall be reasonably requested by
Consultant, and shall advise Consultant of any facts which would affect the
accuracy of any data and information previously supplied pursuant to this
paragraph. The Company shall promptly supply Consultant with full and complete
copies of all financial reports, all filings with all federal and state
securities agencies; with full and complete copies of all stockholder reports;
with all data and information supplied by any financial analyst, and with all
brochures or other sales materials relating to its products or services.
2
<PAGE>
5. COMPENSATION.
The Company will immediately grant Consultant the option to purchase
1,000,000 shares of the Company's Common Stock valued at $0.20 per share, which
option shall expire on December 31, 1996 at 5:00 P.M. P.S.T. The number of
shares herein are subject to the anti-dilution provisions of the corresponding
warrant which is being issued in conjunction with this Agreement. Consultant in
providing the foregoing services, shall not be responsible for any out-of-pocket
costs, including, without limitation, travel, lodging, telephone, postage and
Federal Express charges.
6. REPRESENTATION AND INDEMNIFICATION.
The Company shall be deemed to have been made a continuing representation
of the accuracy of any and all facts, material information and data which it
supplies to Consultant and acknowledges its awareness that Consultant will rely
on such continuing representation in disseminating such information and
otherwise performing its advisory functions. Consultant in the absence of notice
in writing from the Company, will rely on the continuing accuracy of material,
information and data supplied by the Company. Consultant represents that he has
knowledge of and is experienced in providing the aforementioned services.
7. MISCELLANEOUS.
TERMINATION: This Agreement may be terminated by either Party upon written
notice to the other Party for any reason which shall be effective five (5)
business days from the date of such notice. This Agreement shall be terminated
immediately upon written notice for material breach of this Agreement.
MODIFICATION: This Consulting Agreement sets forth the entire
understanding of the Parties with respect to the subject matter hereof. This
Consulting Agreement may be amended only in a writing signed by both Parties.
NOTICES: Any notice required or permitted to be given hereunder shall be
in writing and shall be mailed or otherwise delivered in person or by facsimile
transmission at the address of such Party set forth above or to such other
address or facsimile telephone number as the Party shall have furnished in
writing to the other Party.
WAIVER: Any waiver by either Party of a breach of any provision of this
Consulting Agreement shall not operate as or be construed to be a waiver of any
other breach of that provision or of any breach of any other provision of this
Consulting Agreement. The failure of a Party to insist upon strict adherence to
any term of this
3
<PAGE>
Consulting Agreement on one or more occasions will not be considered a waiver or
deprive that Party of the right thereafter to insist upon adherence to that term
of any other term of this Consulting Agreement.
ASSIGNMENT: Neither this Consulting Agreement nor the Option granted in
paragraph 5 may be transferred or assigned.
SEVERABILITY: If any provision of this Consulting Agreement is invalid,
illegal, or unenforceable, the balance of this Consulting Agreement shall remain
in effect, and if any provision is inapplicable to any person or circumstance,
it shall nevertheless remain applicable to all other persons and circumstances.
DISAGREEMENTS: Any dispute or other disagreement arising from or out of
this Consulting Agreement shall be submitted to arbitration under the rules of
the American Arbitration Association and the decision of the arbiter(s) shall be
enforceable in any court having jurisdiction thereof. Arbitration shall occur
only in Miami, Florida. The interpretation and the enforcement of this Agreement
shall be governed by Florida law as applied to residents of the State of Florida
relating to contracts executed in and to be performed solely within the State of
Florida. In the event any dispute is arbitrated, the prevailing party (as
determined by the arbiter(s)) shall be entitled to recover that party's
reasonable attorney's fees incurred (as determined by the arbiter(s)).
IN WITNESS WHEREOF, this Consulting Agreement has been executed by the
Parties as of the date first above written.
N.U. PIZZA HOLDING CONSULTANT
CORPORATION
/s/ RONALD J. GELET /s/ PETER BENZ
- --------------------- ---------------------
Ronald J. Gelet, Peter Benz
President
4
EXHIBIT 4.3
CONSULTING AGREEMENT
This Consulting Agreement (the "Consulting Agreement") made as of
September 15, 1996, by and between Seth Kaplan, 534 Virginia, San Mateo, CA
94402 ("Consultant") and N.U. Pizza Holding Corporation with offices at 3443
Tripp Court, San Diego, CA 93121 (the "Company")
WITNESSETH
WHEREAS, the Company is engaged in the business of operating pizza
restaurants and franchises and wishes to expand its business by acquiring other
companies; and
WHEREAS, the Company requires and will continue to require consulting
services relating management, strategic planning and marketing in connection
with its business; and
WHEREAS, Consultant can provide the Company with strategic planning and
marketing consulting services and is desirous of performing such services for
the Company; and
WHEREAS, the Company wishes to induce Consultant to provide these
consulting services to the Company.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
stated, it is agreed as follows:
1. APPOINTMENT.
The Company hereby engages Consultant and Consultant agrees to render
services to the Company as a consultant upon the terms and conditions
hereinafter set forth.
2. TERM.
The term of this Consulting Agreement began as of the date of this
Agreement, and shall terminate on December 31, 1996, unless earlier terminated
in accordance with paragraph 8 herein or extended as agreed to between the
parties.
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3. SERVICES.
During the term of this Agreement, Consultant shall provide advice to,
undertake for and consult with the Company concerning management, marketing,
consulting, strategic planning, corporate organization and structure, financial
matters in connection with the operation of the businesses of the Company,
expansion of services, acquisitions and business opportunities, and shall review
and advise the Company regarding its overall progress, needs and condition.
Consultant agrees to provide on a timely basis the following enumerated services
plus any additional services contemplated thereby:
(a) The implementation of short-range and long-term strategic
planning to fully develop and enhance the Company's assets,
resources, products and services;
(b) The implementation of a marketing program to enable the Company
to broaden the markets for its services and promote the image of the
Company and its products and services;
(c) Advise the Company relative to the recruitment and employment of
key executives consistent with the expansion of operations of the
Company;
(d) The identification, evaluation, structuring, negotiating and
closing of joint ventures, strategic alliances, business
acquisitions and advice with regard to the ongoing managing and
operating of such acquisitions upon consummation thereof; and
(e) Advice and recommendations regarding corporate financing
including the structure, terms and content of bank loans,
institutional loans, private debt funding, mezzanine financing,
blind pool financing and other preferred and common stock equity
private or public financing.
4. DUTIES OF THE COMPANY.
The Company shall provide Consultant, on a regular and timely basis, with
all approved data and information about it, its subsidiaries, its management,
its products and services and its operations as shall be reasonably requested by
Consultant, and shall advise Consultant of any facts which would affect the
accuracy of any data and information previously supplied pursuant to this
paragraph. The Company shall promptly supply Consultant with full and complete
copies of all financial reports, all filings with all federal and state
securities agencies; with full and complete copies of all stockholder reports;
with all data and information supplied by any financial analyst, and with all
brochures or other sales materials relating to its products or services.
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5. COMPENSATION.
The Company will immediately grant Consultant the option to purchase
1,000,000 shares of the Company's Common Stock valued at $0.25 per share, which
option shall expire on December 31, 1996 at 5:00 P.M. P.S.T. The number of
shares herein are subject to the anti-dilution provisions of the corresponding
warrant which is being issued in conjunction with this Agreement. Consultant in
providing the foregoing services, shall not be responsible for any out-of-pocket
costs, including, without limitation, travel, lodging, telephone, postage and
Federal Express charges.
6. REPRESENTATION AND INDEMNIFICATION.
The Company shall be deemed to have been made a continuing representation
of the accuracy of any and all facts, material information and data which it
supplies to Consultant and acknowledges its awareness that Consultant will rely
on such continuing representation in disseminating such information and
otherwise performing its advisory functions. Consultant in the absence of notice
in writing from the Company, will rely on the continuing accuracy of material,
information and data supplied by the Company. Consultant represents that he has
knowledge of and is experienced in providing the aforementioned services.
7. MISCELLANEOUS.
TERMINATION: This Agreement may be terminated by either Party upon written
notice to the other Party for any reason which shall be effective five (5)
business days from the date of such notice. This Agreement shall be terminated
immediately upon written notice for material breach of this Agreement.
MODIFICATION: This Consulting Agreement sets forth the entire
understanding of the Parties with respect to the subject matter hereof. This
Consulting Agreement may be amended only in a writing signed by both Parties.
NOTICES: Any notice required or permitted to be given hereunder shall be
in writing and shall be mailed or otherwise delivered in person or by facsimile
transmission at the address of such Party set forth above or to such other
address or facsimile telephone number as the Party shall have furnished in
writing to the other Party.
WAIVER: Any waiver by either Party of a breach of any provision of this
Consulting Agreement shall not operate as or be construed to be a waiver of any
other breach of that provision or of any breach of any other provision of this
Consulting Agreement. The failure of a Party to insist upon strict adherence to
any term of this Consulting Agreement on one or more occasions will not be
considered a waiver or
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deprive that Party of the right thereafter to insist upon adherence to that term
of any other term of this Consulting Agreement.
ASSIGNMENT: Neither this Consulting Agreement nor the Option granted in
paragraph 5 may be transferred or assigned.
SEVERABILITY: If any provision of this Consulting Agreement is invalid,
illegal, or unenforceable, the balance of this Consulting Agreement shall remain
in effect, and if any provision is inapplicable to any person or circumstance,
it shall nevertheless remain applicable to all other persons and circumstances.
DISAGREEMENTS: Any dispute or other disagreement arising from or out of
this Consulting Agreement shall be submitted to arbitration under the rules of
the American Arbitration Association and the decision of the arbiter(s) shall be
enforceable in any court having jurisdiction thereof. Arbitration shall occur
only in Miami, Florida. The interpretation and the enforcement of this Agreement
shall be governed by Florida law as applied to residents of the State of Florida
relating to contracts executed in and to be performed solely within the State of
Florida. In the event any dispute is arbitrated, the prevailing party (as
determined by the arbiter(s)) shall be entitled to recover that party's
reasonable attorney's fees incurred (as determined by the arbiter(s)).
IN WITNESS WHEREOF, this Consulting Agreement has been executed by the
Parties as of the date first above written.
N.U. PIZZA HOLDING CONSULTANT
CORPORATION
/s/ RONALD J. GELET /s/ SETH KAPLAN
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Ronald J. Gelet Seth Kaplan
President
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EXHIBIT 5.3
October 21, 1996
N.U. Pizza Holding Corporation
15414 Cabrito Avenue
Suite A
Van Nuys, CA 91406
Gentlemen:
At your request, we have examined the Registration Statement on Form S-8 to be
filed by you with the Securities and Exchange Commission on or about October 22,
1996. In connection with the registration under the Securities Act of 1933, as
amended, of 3,000,000 shares of the Company's Common Stock, $0.001 par value
(exclusive of any securities associated therewith, the "Stock") to be issued by
the Company in connection with said registration statement. As your counsel, we
have examined the proceedings relating to and action taken by you in connection
with the registration statement. Based upon that examination, it is our opinion
that the 3,500,000 shares of the Stock that may be issued pursuant to the
Registration Statement, when issued and sold in the manner provide in the
Registration Statement, will be validly issued, fully-paid and non-assessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to all references to us in the Registration
Statement and any amendments thereto. In providing this consent, we do not
thereby admit that we are within the category of persons whose consent is
required under Section 7 of the Securities Act of 1933, or the rules and
regulations of the Commission thereunder.
Very truly yours,
/S/ ERIC P. LITTMAN
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Eric P. Littman
EPL/ic
BENNETT BLOCK ACCOUNTANCY CORPORATION
[LETTERHEAD]
September 19, 1996
Board of Directors
N.U. Pizza Holding Corporation
15414 Cabrito Avenue, Suite A
Van Nays, CA 91406
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, I hereby consent to the incorporation by
reference in this registration statement of my report on the consolidated
financial statements and financial statements schedule in included in the annual
report on Form 10-K of N.U. Pizza Holding Corporation and Subsidiaries for the
year ended June 30, 1996, and references to my firm included in this S-8
Registration S
/S/ BENNETT BLOCK ACCOUNTANCY CORPORATION
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Bennett BLock Accountancy Corporation
