EXHIBIT 10.21
EMPLOYMENT AGREEMENT
This Employment Agreement is made as of March 31, 1999 by TISM, Inc., a
Michigan corporation (the "Company"), Domino's, Inc., a Delaware corporation and
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Domino's Pizza, Inc., a Michigan corporation (together with Domino's, Inc., the
"Principal Subsidiaries") with Xxxxx X. Xxxxxxx (the "Executive").
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Recitals
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1. The operations of the Company and its Affiliates are a complex matter
requiring direction and leadership in a variety of areas.
2. The Executive has experience and expertise that qualify him to provide
the direction and leadership required by the Company and its Affiliates.
3. Subject to the terms and conditions hereinafter set forth, the Company
therefore wishes to employ the Executive as its Chief Executive Officer and the
Executive wishes to accept such employment.
Agreement
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Now, therefore, the parties hereto hereby agree as follows:
1. Employment. Subject to the terms and conditions set forth in this
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Agreement, the Company hereby offers and the Executive hereby accepts
employment, effective as of March 15, 1999 (the "Effective Date").
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2. Term. Subject to earlier termination as hereafter provided, the
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Executive shall be employed hereunder for an original term commencing on the
Effective Date and ending on December 31, 2003, which term shall be
automatically extended thereafter for successive terms of one year each, unless
either party provides notice to the other at least ninety (90) days prior to the
expiration of the original or any extension term that this Agreement is not to
be extended. The term of the Executive's employment under this Agreement, as
from time to time extended, is hereafter referred to as "the term of this
Agreement" or "the term hereof".
3. Capacity and Performance.
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3.1. Offices. During the term hereof, the Executive shall serve the
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Company in the offices of Chairman and Chief Executive Officer. In such
capacity, the Executive will be responsible for the Company's operations
and financial performance and the coordination of the Company's strategic
direction. In addition, for so long as
the Executive is employed by the Company and without further compensation,
the Executive shall serve as a member of the Company's Board of Directors
(the "Board") and as a director and officer of the Principal Subsidiaries
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and of one or more of the Company's other Affiliates if so elected or
appointed from time to time. The Executive shall be subject to the
direction of the Board and shall have such other powers, duties and
responsibilities consistent with the Executive's position as Chairman and
Chief Executive Officer as may from time to time be prescribed by the
Board.
3.2. Performance. During the term hereof, the Executive shall be
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employed by the Company on a full-time basis and shall perform and
discharge, faithfully, diligently and to the best of his ability, his
duties and responsibilities hereunder. During the term hereof, the
Executive shall devote his full business time exclusively to the
advancement of the business and interests of the Company and its Affiliates
and to the discharge of his duties and responsibilities hereunder. The
Executive shall not engage in any other business activity or serve in any
industry, trade, professional, governmental, political, charitable or
academic position during the term of this Agreement, except for such
directorships or other positions which he currently holds and has disclosed
to the Company on Exhibit 3.2 hereof and except as otherwise may be
approved in advance by the Board, which approval shall not be unreasonably
withheld.
4. Compensation and Benefits. As compensation for all services performed
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by the Executive under this Agreement and subject to performance of the
Executive's duties and obligations to the Company and its Affiliates, pursuant
to this Agreement or otherwise:
4.1. Base Salary. During the term hereof, the Company shall pay the
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Executive a base salary at the rate of $600,000 per year, payable in
accordance with the payroll practices of the Company for its executives and
subject to increase from time to time by the Board in its sole discretion.
Such base salary, as from time to time increased, is hereafter referred to
as the "Base Salary".
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4.2. Bonus Compensation. During the term hereof, the Company shall
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pay the Executive an annual bonus (the "Bonus") the amount of which shall
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be determined by the Board based on the Executive's achievement of
performance objectives for each year, as established by the Board in
consultation with the Executive. The maximum amounts of the Bonus (prior
to any proration) are as follows: for 1999, 150% of Base Salary; for 2000,
160% of Base Salary; for 2001, 170% of Base Salary; for 2002, 180% of Base
Salary; and for 2003, 190% of Base Salary. Whenever any Bonus payable to
the Executive is stated in this Agreement to be prorated for any period of
service less than a full year, such Bonus shall be prorated by multiplying
(x) the amount of the Bonus otherwise payable for the applicable fiscal
year in accordance with this Section 4.2 by (y) a fraction, the denominator
of which shall be 365 and the numerator of which shall be the number of
days during the applicable fiscal year for which the Executive was employed
by the Company. Any compensation paid to the Executive as
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Bonus shall be in addition to the Base Salary, but shall be in lieu of
participation in any other incentive, stock option, stock purchase, profit
sharing, deferred compensation, bonus compensation or severance program
which the Company or one of the Principal Subsidiaries, as applicable, may
adopt or continue from time to time (other than the Executive's purchased
stock and options in accordance with Section 4.3).
4.3. Stock/Options.
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4.3.1. The Executive shall purchase from the Company the shares
(the "Purchased Shares") of the Company's Class A Common Stock and
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Class L Common Stock set forth on Exhibit A-1 hereto at the purchase
price per share set forth therein. The purchase and sale of such
shares will occur on a date to be specified by the Company upon not
less than two weeks notice to the Executive, which date shall be no
later than June 15, 1999, in accordance with a subscription agreement
(the "Subscription Agreement") in the form of Exhibit A-2 hereto. As
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of the Effective Date, the outstanding shares of the Company's Class A
Common Stock and Class L Common Stock (collectively, the "Common
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Stock") and all options to purchase Common Stock are held as set forth
on Exhibit A-3 hereto.
4.3.2. The Company shall grant to the Executive, pursuant to the
Company's stock option plan for management and employees of the
Company and its Affiliates attached hereto as Exhibit A-4, as from
time to time in effect (the "Plan"), options to purchase a total of
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1,512,516 shares of Class A Common Stock at an exercise price of $0.50
per share (the "Options"). One half of the Options shall be granted
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pursuant to the option agreement in the form of Exhibit A-5 hereto and
the other half of the Options shall be granted pursuant to the option
agreement in the form of Exhibit A-6 hereto.
4.3.3. Prior to issuing any shares or options to the Executive,
the Company may require that the Executive provide such
representations regarding the Executive's sophistication and
investment intent and other such matters as the Company may reasonably
request. None of the Company's securities will be registered under
applicable securities laws for the indefinite future and there will be
substantial restrictions on resale imposed by the Company's corporate
charter, the stockholders agreement and applicable law. The Purchased
Shares, the Options and any shares issued upon exercise of the Options
shall be subject to the terms of the stockholders agreement dated as
of December 21, 1998 among the Company and certain of its
stockholders, as from time to time in effect (the "Stockholders
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Agreement"), a copy of which is attached hereto as Exhibit A-7.
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4.3.4. The Company may, by notice to the Executive and without
any
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further action by the Company, cause the immediate forfeiture by the
Executive of all Purchased Shares in the event that the Executive runs
for public office or accepts appointment or election to any
governmental or political position without the prior approval of the
Board at any time during the term of the Executive's employment
hereunder or prior to December 31, 2003, whichever is later; provided,
however, that the Board will grant reasonable exceptions for the
Executive's appointment or election to a governmental or political
position that is unpaid and that, in the reasonable judgment of the
Board, will not materially interfere with the Executive's performance
of his duties hereunder. Upon the giving of such notice, all of the
holder's rights in and to the Purchased Shares shall terminate and the
Company may cancel on its books the certificates representing the
Purchased Shares whether or not such certificates have been returned
to the Company. The Executive agrees to notify the Board prior to
running for public office or accepting any such appointment or
election and, upon receipt of notice from the Company as described
above, agrees to deliver to the Company the certificates representing
the Purchased Shares.
4.4. Vacations. During the term hereof, the Executive shall be
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entitled to four (4) weeks of vacation per annum, to be taken at such times
and intervals as shall be determined by the Executive, subject to the
reasonable business needs of the Company. The Executive may not accumulate
or carry over from one calendar year to another any unused, accrued
vacation time. The Executive shall not be entitled to compensation for
vacation time not taken.
4.5. Other Benefits. During the term hereof and subject to any
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contribution therefor generally required of executives of the Company or
one of the Principal Subsidiaries, as applicable, the Executive shall be
entitled to participate in all employee benefit plans, including without
limitation any 401(k) plan, from time to time adopted by the Board and in
effect for executives of the Company or one of the Principal Subsidiaries,
as applicable, generally (except to the extent such plans are in a category
of benefit otherwise provided the Executive hereunder and in any event
excluding any incentive, stock option, stock purchase, profit sharing,
deferred compensation, bonus compensation or severance programs). Such
participation shall be subject to (i) the terms of the applicable plan
documents and (ii) generally applicable policies of the Company or one of
the Principal Subsidiaries, as applicable. Any of the Company and the
Principal Subsidiaries may alter, modify, add to or delete their employee
benefit plans at any time as the Board, in its sole judgment, determines to
be appropriate.
4.6. Business Expenses. The Company shall pay or reimburse the
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Executive for all reasonable business expenses, including without
limitation the cost of first class air travel, incurred or paid by the
Executive in the performance of his duties and responsibilities hereunder,
subject to (i) any expense policy of the Company or one of the Principal
Subsidiaries, as applicable, set by the Board from time to time, other than
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with respect to first class air travel, and (ii) such reasonable
substantiation and documentation requirements as may be specified by the
Board from time to time.
4.7. Miscellaneous. The Company shall pay or reimburse the Executive
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for the Executive's Young Presidents Organization dues and expenses, not to
exceed $15,000 per year unless approved by the Board. The Company will
provide the Executive with directors and officers insurance and personal
liability protection described on Exhibit B. The Company shall pay or
reimburse the Executive for his reasonable legal fees and expenses incurred
in connection with the review of this Agreement and other agreements
referred to herein in an aggregate amount not to exceed $10,000.
5. Termination of Employment and Severance Benefits. Notwithstanding the
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provisions of Section 2 hereof, the Executive's employment hereunder shall
terminate prior to the expiration of the term of this Agreement under the
following circumstances:
5.1. Retirement or Death. In the event of the Executive's retirement
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or death during the term hereof, the Executive's employment hereunder shall
immediately and automatically terminate. In the event of the Executive's
retirement after the age of sixty-five with the prior consent of the Board
or death during the term hereof, the Company shall pay to the Executive (or
in the case of death, the Executive's designated beneficiary or, if no
beneficiary has been designated by the Executive, to his estate) any Base
Salary earned but unpaid through the date of such retirement or death, any
Bonus for the fiscal year preceding the year in which such retirement or
death occurs that was earned but has not yet been paid and, at the times
the Company pays its executives bonuses in accordance with its general
payroll policies, an amount equal to that portion of any Bonus earned but
unpaid during the fiscal year of such retirement or death (pro-rated in
accordance with Section 4.2).
5.2. Disability.
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5.2.1. The Company may terminate the Executive's employment
hereunder, upon notice to the Executive, in the event that the
Executive becomes disabled during his employment hereunder through any
illness, injury, accident or condition of either a physical or
psychological nature and, as a result, is unable to perform
substantially all of his duties and responsibilities hereunder for an
aggregate of one hundred twenty (120) days during any period of three
hundred and sixty-five (365) consecutive calendar days.
5.2.2. The Board may designate another employee to act in the
Executive's place during any period of the Executive's disability.
Notwithstanding any such designation, the Executive shall continue to
receive the Base Salary in accordance with Section 4.1 and to receive
benefits in accordance with Section 4.5, to the extent permitted by
the then-current terms of
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the applicable benefit plans, until the Executive becomes eligible for
disability income benefits under any disability income plan maintained
by the Company or one of the Principal Subsidiaries, as applicable, or
until the termination of his employment, whichever shall first occur.
Upon becoming so eligible, or upon such termination, whichever shall
first occur, the Company shall pay to the Executive any Base Salary
earned but unpaid through the date of such eligibility or termination
and any Bonus for the fiscal year preceding the year of such
eligibility or termination that was earned but unpaid. During the
eighteen month period from such date, the Company shall pay the
Executive, at its regular pay periods, an amount equal to the
difference between the Base Salary and the amounts of disability
income benefits that the Executive receives pursuant to the above-
referenced disability income plan in respect of such period. At the
times the Company pays its executives bonuses generally, the Company
shall pay the Executive an amount equal to that portion of any Bonus
earned but unpaid during the fiscal year of such eligibility or
termination (pro-rated in accordance with Section 4.2).
5.2.3. Except as provided in Section 5.2.2, while receiving
disability income payments under any disability income plan maintained
by the Company or one of the Principal Subsidiaries, as applicable,
the Executive shall not be entitled to receive any Base Salary under
Section 4.1 or Bonus payments under Section 4.2 but shall continue to
participate in benefit plans of the Company or one of the Principal
Subsidiaries, as applicable, in accordance with Section 4.5 and the
terms of such plans, until the termination of his employment. During
the eighteen-month period from the date of eligibility or termination,
whichever shall first occur, the Company shall contribute to the cost
of the Executive's participation in group medical plans of the Company
or one of the Principal Subsidiaries, as applicable, provided that the
Executive is entitled to continue such participation under applicable
law and plan terms.
5.2.4. If any question shall arise as to whether during any
period the Executive is disabled through any illness, injury, accident
or condition of either a physical or psychological nature so as to be
unable to perform substantially all of his duties and responsibilities
hereunder, the Executive may, and at the request of the Company shall,
submit to a medical examination by a physician selected by the Company
to whom the Executive or his duly appointed guardian, if any, has no
reasonable objection to determine whether the Executive is so disabled
and such determination shall for the purposes of this Agreement be
conclusive of the issue. If such question shall arise and the
Executive shall fail to submit to such medical examination, the
Board's determination of the issue shall be binding on the Executive.
5.3. By the Company for Cause. The Company may terminate the
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Executive's
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employment hereunder for Cause at any time upon notice to the Executive
setting forth in reasonable detail the nature of such Cause. The following
events or conditions shall constitute "Cause" for termination: (i) the
Executive's willful failure to perform (other than by reason of
disability), or gross negligence in the performance of, his duties to the
Company or any of its Affiliates and the continuance of such failure or
negligence for a period of ten (10) days after notice to the Executive,
(ii) the commission of fraud, embezzlement or theft by the Executive with
respect to the Company or any of its Affiliates; or (iii) the conviction of
the Executive of, or plea by the Executive of nolo contendere to, any
felony or any other crime involving dishonesty or moral turpitude. Upon the
giving of notice of termination of the Executive's employment hereunder for
Cause, the Company shall have no further obligation or liability to the
Executive hereunder, other than for Base Salary earned but unpaid through
the date of termination. Without limiting the generality of the foregoing,
the Executive shall not be entitled to receive any Bonus amounts which have
not been paid prior to the date of termination.
5.4. By the Company other than for Cause. The Company may terminate
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the Executive's employment hereunder other than for Cause at any time upon
notice to the Executive. In the event of such termination, then the
Company shall pay the Executive (i) Base Salary earned but unpaid through
the date of termination, plus (ii) twenty-four (24) monthly severance
payments, each in an amount equal to the Executive's monthly base
compensation in effect at the time of such termination (i.e., 1/12th of the
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Base Salary), plus (iii) any unpaid portion of any Bonus for the fiscal
year preceding the year in which such termination occurs that was earned
but has not been paid, plus (iv) at the times the Company pays its
executives bonuses generally, an amount equal to that portion of any Bonus
earned but unpaid during the fiscal year of such termination (pro-rated in
accordance with Section 4.2).
5.5. By the Executive for Good Reason. The Executive may terminate
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his employment hereunder for Good Reason, upon notice to the Company
setting forth in reasonable detail the nature of such Good Reason. The
following shall constitute "Good Reason" for termination by the Executive:
(i) failure of the Company to continue the Executive in the position of
Chairman and Chief Executive Officer; (ii) material diminution in the
nature and scope of the Executive's responsibilities, duties or authority,
including without limitation the failure to continue the Executive as a
member of the board of directors of the Company or either of the Principal
Subsidiaries; provided, however, that the failure to so continue the
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Executive shall not constitute Good Reason if such failure occurs in
connection with the sale or other disposition of the corporation as to
which he has ceased to have board membership; and provided, further, that
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the Company's failure to continue the Executive's appointment or election
as a director or officer of any of its Affiliates (exclusive of the
Principal Subsidiaries) and any diminution of the business of the Company
or any of its Affiliates shall not constitute Good Reason; (iii) material
failure of the Company to provide the
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Executive the Base Salary and benefits in accordance with the terms of
Section 4 hereof; or (iv) relocation of the Executive's office to an area
outside a 50-mile radius of the Company's current headquarters in Ann
Arbor, Michigan. In the event of termination in accordance with this
Section 5.5, then the Company shall pay the Executive the amounts specified
in Section 5.4.
5.6. By the Executive Other than for Good Reason. The Executive may
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terminate his employment hereunder at any time upon ninety (90) days'
notice to the Company. In the event of termination of the Executive
pursuant to this Section 5.6, the Board may elect to waive the period of
notice, or any portion thereof. The Company will pay the Executive his
Base Salary for the notice period, except to the extent so waived by the
Board. Upon the giving of notice of termination of the Executive's
employment hereunder pursuant to this Section 5.6, the Company shall have
no further obligation or liability to the Executive, other than (i) payment
to the Executive of his Base Salary for the period (or portion of such
period) indicated above and (ii) at the times the Company pays its
executives bonuses generally, an amount equal to that portion of any Bonus
earned but unpaid during the fiscal year of such termination (pro-rated in
accordance with Section 4.2).
5.7. Post-Agreement Employment. In the event the Executive remains in
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the employ of the Company or any of its Affiliates following termination of
this Agreement, by the expiration of the term hereof or otherwise, then
such employment shall be at will.
6. Effect of Termination. The provisions of this Section 6 shall apply in
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the event of termination due to the expiration of the term, pursuant to Section
5 or otherwise.
6.1. Payment in Full. Payment by the Company of any Base Salary,
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Bonus or other specified amounts that are due the Executive under the
applicable termination provision of Section 5 shall constitute the entire
obligation of the Company and its Affiliates to the Executive, except that
nothing in this Section 6.1 is intended or shall be construed to affect the
rights and obligations of the Company and its Affiliates, on the one hand,
and the Executive, on the other, with respect to any option plans, option
agreements, subscription agreements, stockholders agreements or other
agreements to the extent said rights or obligations survive termination of
employment under the provision of documents relating thereto.
6.2. Termination of Benefits. Except for medical insurance coverage
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continued pursuant to Sections 5.2 hereof and any right of continuation of
health coverage at the Executive's cost to the extent provided by Sections
601 through 608 of ERISA, benefits shall terminate pursuant to the terms of
the applicable benefit plans based on the date of termination of the
Executive's employment without regard to any continuation of Base Salary or
other payments to the Executive following termination of his employment.
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6.3. Survival of Certain Provisions. Provisions of this Agreement
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shall survive any termination if so provided herein or if necessary or
desirable fully to accomplish the purpose of other surviving provisions,
including, without limitation, the obligations of the Executive under
Sections 7 and 8 hereof. The obligation of the Company to make payments to
or on behalf of the Executive under Sections 5.2, 5.4 or 5.5 hereof is
expressly conditioned upon the Executive's continued full performance of
obligations under Sections 7 and 8 hereof. The Executive recognizes that,
except as expressly provided in Section 5.2, 5.4 or 5.5, no compensation is
earned after termination of employment.
7. Confidential Information; Intellectual Property.
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7.1. Confidentiality. The Executive acknowledges that the Company and
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its Affiliates continually develop Confidential Information; that the
Executive may develop Confidential Information for the Company or its
Affiliates and that the Executive may learn of Confidential Information
during the course of employment. The Executive will comply with the
policies and procedures of the Company and its Affiliates for protecting
Confidential Information and shall never use or disclose to any Person
(except as required by applicable law or for the proper performance of his
duties and responsibilities to the Company and its Affiliates) any
Confidential Information obtained by the Executive incident to his
employment or other association with the Company or any of its Affiliates.
The Executive understands that this restriction shall continue to apply
after his employment terminates, regardless of the reason for such
termination.
7.2. Return of Documents. All documents, records, tapes and other
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media of every kind and description relating to the business, present or
otherwise, of the Company or its Affiliates and any copies, in whole or in
part, thereof (the "Documents"), whether or not prepared by the Executive,
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shall be the sole and exclusive property of the Company and its Affiliates.
The Executive shall safeguard all Documents and shall surrender to the
Company at the time his employment terminates, or at such earlier time or
times as the Board or its designee may specify, all Documents then in the
Executive's possession or control.
7.3. Assignment of Rights to Intellectual Property. The Executive
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shall promptly and fully disclose all Intellectual Property to the Company.
The Executive hereby assigns and agrees to assign to the Company (or as
otherwise directed by the Company) the Executive's full right, title and
interest in and to all Intellectual Property. The Executive agrees to
execute any and all applications for domestic and foreign patents,
copyrights or other proprietary rights and to do such other acts (including
without limitation the execution and delivery of instruments of further
assurance or confirmation) requested by the Company to assign the
Intellectual Property to the Company and to permit the Company to enforce
any patents, copyrights or other
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proprietary rights to the Intellectual Property. The Executive will not
charge the Company for time spent in complying with these obligations. All
copyrightable works that the Executive creates shall be considered "work
made for hire".
8. Restricted Activities.
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8.1. Agreement not to Compete with the Company. The Executive agrees
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that during the Executive's employment hereunder and for a period of
twenty-four months following the date of termination thereof (the "Non-
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Competition Period"), he will not, directly or indirectly, own, manage,
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operate, control or participate in any manner in the ownership, management,
operation or control of, or be connected as an officer, employee, partner,
director, principal, consultant, agent or otherwise with, or have any
financial interest in, or aid or assist anyone else in the conduct of, any
business, venture or activity which competes with, any business, venture or
activity being conducted or actively being planned to be conducted by the
Company or being conducted or known by the Executive to be actively being
planned to be conducted by a group or division of the Company or by any of
its Affiliates, at or prior to the date (the "Date of Termination") on
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which the Executive's employment under this Agreement is terminated, in the
United States or any other geographic area where such business is being
conducted or actively being planned to be conducted at or prior to the Date
of Termination. Notwithstanding the foregoing, ownership of not more than
five percent of any class of equity security of any publicly held
corporation shall not, of itself, constitute a violation of this Section 8.
8.2. Agreement Not to Solicit Employees or Customers of the Company.
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The Executive agrees that during employment and during the Non-Competition
Period he will not, directly or indirectly, (a) recruit or hire or
otherwise seek to induce any employees of the Company or any of the
Company's Affiliates to terminate their employment or violate any agreement
with or duty to the Company or any of the Company's Affiliates, or (b)
solicit or encourage any franchisee or vendor of the Company or of any of
the Company's Affiliates to terminate or diminish its relationship with any
of them or to violate any agreement with any of them, or, in the case of a
franchisee, to conduct with any Person any business or activity that such
franchisee conducts or could conduct with the Company or any of the
Company's Affiliates.
9. Enforcement of Covenants. The Executive acknowledges that he has
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carefully read and considered all the terms and conditions of this Agreement,
including without limitation the restraints imposed upon him pursuant to
Sections 7 and 8 hereof. The Executive agrees that said restraints are
necessary for the reasonable and proper protection of the Company and its
Affiliates and that each and every one of the restraints is reasonable in
respect to subject matter, length of time and geographic area. The Executive
further acknowledges that, were he to breach any of the covenants or agreements
contained in Sections 7 or 8 hereof, the damage to the Company and its
Affiliates could be irreparable. The Executive therefore agrees that the
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Company and its Affiliates, in addition to any other remedies available to it,
shall be entitled to preliminary and permanent injunctive relief against any
breach or threatened breach by the Executive of any of said covenants or
agreements. The parties further agree that in the event that any provision of
Section 7 or 8 hereof shall be determined by any Court of competent jurisdiction
to be unenforceable by reason of its being extended over too great a time, too
large a geographic area or too great a range of activities, such provision shall
be deemed to be modified to permit its enforcement to the maximum extent
permitted by law.
10. Conflicting Agreements. The Executive hereby represents and warrants
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that the execution of this Agreement and the performance of his obligations
hereunder will not breach or be in conflict with any other agreement to which or
by which the Executive is a party or is bound and that the Executive is not now
subject to any covenants against competition or solicitation or similar
covenants or other obligations that would affect the performance of his
obligations hereunder. The Executive will not disclose to or use on behalf of
the Company or any of its Affiliates any proprietary information of a third
party without such party's consent.
11. Definitions. Words or phrases which are initially capitalized or are
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within quotation marks shall have the meanings provided in this Section 11 and
as provided elsewhere herein. For purposes of this Agreement, the following
definitions apply:
11.1. Affiliates. "Affiliates" shall mean the Principal Subsidiaries
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and all other persons and entities controlling, controlled by or under
common control with the Company, where control may be by management
authority or equity interest.
11.2. Confidential Information. "Confidential Information" means any
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and all information of the Company and its Affiliates that is not generally
known by others with whom they compete or do business, or with whom they
plan to compete or do business, and any and all information the disclosure
of which would otherwise be adverse to the interests of the Company or any
of its Affiliates. Confidential Information includes without limitation
such information relating to (i) the products and services sold or offered
by the Company or any of its Affiliates (including without limitation
recipes, production processes and heating technology), (ii) the costs,
sources of supply, financial performance and strategic plans of the Company
and its Affiliates, (iii) the identity of the suppliers of the Company and
its Affiliates and (iv) the people and organizations with whom the Company
and its Affiliates have business relationships and those relationships.
Confidential Information also includes information that the Company or any
of its Affiliates have received belonging to others with any understanding,
express or implied, that it would not be disclosed.
11.3. ERISA. "ERISA" means the federal Employee Retirement Income
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Security Act of 1974 or any successor statute, and the rules and
regulations thereunder, and, in the case of any referenced section thereof,
any successor section thereto, collectively and as from time to time
amended and in effect.
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11.4. Intellectual Property. "Intellectual Property" means inventions,
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discoveries, developments, methods, processes, compositions, works,
concepts, recipes and ideas (whether or not patentable or copyrightable or
constituting trade secrets or trade marks or service marks) conceived,
made, created, developed or reduced to practice by the Executive (whether
alone or with others, whether or not during normal business hours or on or
off Company premises) during the Executive's employment that relate to
either the Business or any prospective activity of the Company or any of
its Affiliates.
11.5. Person. "Person" means an individual, a corporation, an
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association, a partnership, a limited liability company, an estate, a trust
and any other entity or organization.
12. Withholding. All payments made by the Company under this Agreement
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shall be reduced by any tax or other amounts required to be withheld by the
Company under applicable law.
13. Miscellaneous.
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13.1. Assignment. Neither the Company nor the Principal Subsidiaries
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nor the Executive may make any assignment of this Agreement or any interest
herein, by operation of law or otherwise, without the prior written consent
of the other; provided, however, that the Company or any of the Principal
-------- -------
Subsidiaries may assign its rights and obligations under this Agreement
without the consent of the Executive in the event that the Company or such
Principal Subsidiary shall hereafter affect a reorganization, consolidate
with, or merge into, any other Person or transfer all or substantially all
of its properties or assets to any other Person, in which event such other
Person shall be deemed the "Company" or a "Principal Subsidiary" hereunder,
as applicable, for all purposes of this Agreement; provided, further, that
-------- -------
nothing contained herein shall be construed to place any limitation or
restriction on the transfer of the Company's Common Stock in addition to
any restrictions set forth in any stockholder agreement applicable to the
holders of such shares. This Agreement shall inure to the benefit of and
be binding upon the Company, the Principal Subsidiaries and the Executive,
and their respective successors, executors, administrators, heirs and
permitted assigns.
13.2. Severability. If any portion or provision of this Agreement
------------
shall to any extent be declared illegal or unenforceable by a court of
competent jurisdiction, then the application of such provision in such
circumstances shall be deemed modified to permit its enforcement to the
maximum extent permitted by law, and both the application of such portion
or provision in circumstances other than those as to which it is so
declared illegal or unenforceable and the remainder of this Agreement shall
not be affected thereby, and each portion and provision of this Agreement
shall be valid and enforceable to the fullest extent permitted by law.
-12-
13.3. Waiver; Amendment. No waiver of any provision hereof shall be
-----------------
effective unless made in writing and signed by the waiving party. The
failure of either party to require the performance of any term or
obligation of this Agreement, or the waiver by either party of any breach
of this Agreement, shall not prevent any subsequent enforcement of such
term or obligation or be deemed a waiver of any subsequent breach. This
Agreement may be amended or modified only by a written instrument signed by
the Executive and any expressly authorized representative of the Company
and the Principal Subsidiaries.
13.4. Notices. Any and all notices, requests, demands and other
-------
communications provided for by this Agreement shall be in writing and shall
be effective when delivered in person or deposited in the United States
mail, postage prepaid, registered or certified, and addressed (a) in the
case of the Executive, to:
Xx. Xxxxx X. Xxxxxxx
00000 Xxxxxxx Xxxxx Xxxxx
Xxxxxxxx, XX 00000
with a copy to:
Xx. Xxxxx Xxxxxx
Xxxxx Hill P.L.C.
000 Xxxxx Xxx Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxx, XX 00000
or, (b) in the case of the Company, at its principal place of business and
to the attention of Board of Directors, with a copy to: Ropes & Xxxx, Xxx
Xxxxxxxxxxxxx Xxxxx, Xxxxxx, XX 00000-0000, Attention: X. Xxxxxxx
Xxxxxxxxx; or to such other address as either party may specify by notice
to the other actually received.
13.5. Entire Agreement. This Agreement constitutes the entire
----------------
agreement between the parties and supersedes all prior communications,
agreements and understandings, written or oral, with the Company, its
Affiliates or any of their predecessors, with respect to the terms and
conditions of the Executive's employment.
13.6. Headings. The headings and captions in this Agreement are for
--------
convenience only and in no way define or describe the scope or content of
any provision of this Agreement.
13.7. Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be an original and all of which together
shall constitute one and the same instrument.
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13.8. Joint and Several Liability. The Company and the Principal
---------------------------
Subsidiaries shall be jointly and severally liable for all payment
obligations of the Company pursuant to this Agreement.
13.9. Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the domestic substantive laws of the State of
Michigan without giving effect to any choice or conflict of laws provision
or rule that would cause the application of the domestic substantive laws
of any other jurisdiction.
13.10. Consent to Jurisdiction. Each of the Company and the Executive
-----------------------
by its or his execution hereof, (i) hereby irrevocably submits to the
jurisdiction of the state courts of the State of Michigan for the purpose
of any claim or action arising out of or based upon this Agreement or
relating to the subject matter hereof and (ii) hereby waives, to the extent
not prohibited by applicable law, and agrees not to assert by way of
motion, as a defense or otherwise, in any such claim or action, any claim
that it or he is not subject personally to the jurisdiction of the above-
named courts, that its or his property is exempt or immune from attachment
or execution, that any such proceeding brought in the above-named courts is
improper, or that this Agreement or the subject matter hereof may not be
enforced in or by such court. Each of the Company and the Executive hereby
consents to service of process in any such proceeding in any manner
permitted by Michigan law, and agrees that service of process by registered
or certified mail, return receipt requested, at its address specified
pursuant to Section 13.4 hereof is reasonably calculated to give actual
notice.
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IN WITNESS WHEREOF, this Agreement has been executed by the Company, by its
duly authorized representative, and by the Executive, as of the date first above
written.
THE COMPANY: TISM, INC.
By: /s/ TISM, Inc.
---------------------------------
Name:
Title:
PRINCIPAL SUBSIDIARIES: DOMINO'S, INC.
By: /s/ Domino's Inc.
---------------------------------
Name:
Title:
DOMINO'S PIZZA, INC.
By: /s/ Domino's Pizza, Inc.
---------------------------------
Name:
Title:
THE EXECUTIVE: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
