EXHIBIT 10.34
EMPLOYMENT AGREEMENT
This Employment Agreement is made as of July 10, 2001, by Domino's
Pizza LLC, a Michigan corporation (the "Company") with Xxx Xxxxxxx (the
"Executive").
RECITALS
1. The Executive has experience and expertise required by the
Company and its Affiliates.
2. Subject to the terms and conditions hereinafter set forth, the
Company therefore wishes to employ the Executive as its
Executive Vice President - Build the Brand and the Executive
wishes to accept such employment.
AGREEMENT
NOW, THEREFORE, for valid consideration received, the parties agree as
follows:
1. Employment. Subject to the terms and conditions set forth in
this Agreement, the Company offers and the Executive accepts
employment hereunder effective as of the date first set forth
above (the "Effective Date").
2. Term. Subject to earlier termination as hereafter provided,
the Executive shall be employed hereunder for an original
term, commencing on the Effective Date and ending on July 10,
2004, which term shall be automatically extended thereafter
for successive terms of one year each, unless either party
provides notice to the other at least 30 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 referred to as the "Term."
3. Capacity and Performance.
3.1 Offices. During the Term, the Executive shall serve the
Company in the office of Executive Vice President - Build the
Brand. The Executive shall have such other powers, duties and
responsibilities consistent with the Executive's position as
Executive Vice President - Build the Brand as may from time to
time be prescribed by the Chief Executive Officer of the
Company ("CEO").
3.2 Performance. During the Term, the Executive shall be
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, 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 CEO in Exhibit 3.2 hereof and except as
otherwise may be approved in advance by the CEO.
4. Compensation and Benefits. During the Term, as compensation
for all services performed 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, the Executive shall receive the
following:
4.1 Base Salary. Commencing on the date hereof, the
Company shall pay the Executive a base salary at the
rate of Two Hundred Eighty-five Thousand Dollars
($285,000) per year, payable in accordance with the
payroll practices of the Company for its executives
and subject to such increases as the Board of
Directors of the Company (the "Board") in its sole
discretion may determine from time to time (the "Base
Salary").
4.2 Bonus.
(a) Formula Bonus. Commencing in 2001, subject to
Section 5 hereof, the Company shall pay the Executive
a bonus in each fiscal year that he is an employee
(the "Bonus") within 75 days of the end of the fiscal
year in which such Bonus is earned. The amount of the
Bonus shall be determined by the Board based on the
Company's achievement of pre-established annual
targets (each annual target being referred to as
"Target"), which shall be based upon the Company's
EBITDA. The term "EBITDA" shall mean earnings before
interest, taxes, depreciation, amortization,
Leadership Team bonuses, and loss or gain on sale or
disposal of assets outside of the ordinary course of
business (including sales of stores), all as
reflected on the Company's financial statements as
regularly and consistently prepared. No Bonus shall
be paid unless 90% of Target is exceeded in the
applicable fiscal year. The Executive shall receive a
bonus of one tenth of one percent (0.1%) of his Base
Salary for every one-hundredth of one percent (0.01%)
(rounded to the nearest hundredth) in excess of 90%
of Target that is achieved in the applicable fiscal
year. By way of example only, if 100% of Target is
achieved, Executive would receive a Bonus under this
Section 4.2(a) equal to 100% of Executive's Base
Salary.
(b) Discretionary Bonus Commencing in 2001, the
Executive shall also be eligible for an annual
discretionary bonus, the amount of which is
determined in the sole discretion of the CEO based on
subjective and objective criteria established by the
CEO, of up to 25% of Base Salary.
-2-
(c) Pro-Ration Anything to the contrary in this
Agreement notwithstanding, any Bonus payable to the
Executive in this Agreement for any period of service
less than a full year 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.
4.3 Vacations. During the Term, the Executive shall be
entitled to four weeks of vacation per calendar year, 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.
4.4 Other Benefits. During the Term and subject to any
contribution therefor required of executives of the Company
generally, 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 generally (except to the
extent such plans are in a category of benefit otherwise
provided the Executive hereunder). Such participation shall be
subject to (i) the terms of the applicable plan documents and
(ii) generally applicable policies of the Company. The Company
may alter, modify, add to or delete any aspects of its
employee benefit plans at any time as the Board, in its sole
judgment, determines to be appropriate.
4.5 Business Expenses. The Company shall pay or reimburse the
Executive for all reasonable business expenses, including
without limitation the cost of first class air travel and dues
for industry-related association memberships, incurred or paid
by the Executive in the performance of his duties and
responsibilities hereunder, subject to (i) any expense policy
of the Company set by the Board from time to time, and (ii)
such reasonable substantiation and documentation requirements
as may be specified by the Board or CEO from time to time.
4.6 Airline Clubs. Upon receiving the prior written approval
of the CEO authorizing the Executive to join a particular
airline club, the Company shall pay or reimburse the Executive
for dues for not less than two nor more than four airline
clubs, provided such club memberships serve a direct business
purpose and subject to such reasonable substantiation and
documentation requirements as to cost and purpose as may be
specified by the CEO from time to time.
4.7 Physicals. The Company shall annually pay for or reimburse
the Executive for the cost of a physical examination and
health evaluation performed by a licensed
-3-
medical doctor, subject to such reasonable substantiation and
documentation requirements as to cost as may be specified by
the Board or CEO from time to time.
5. Termination of Employment and Severance Benefits.
Notwithstanding the 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 or death during the Term, the Executive's
employment hereunder shall immediately and automatically
terminate. In the event of the Executive's retirement after
the age of 65 with the prior consent of the Board or death
during the Term, 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 (prorated in accordance with Section 4.2).
5.2 Disability.
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 120
days during any period of 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 the
applicable benefit plans, until the Executive becomes
eligible for disability income benefits under any
disability income plan maintained by the Company, 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. At the times
the Company pays its executives bonuses generally,
the Company shall
-4-
pay the Executive an amount equal to that portion of
any Bonus earned but unpaid during the fiscal year of
such eligibility or termination (prorated in
accordance with Section 4.2). During the 18-month
period from the date of such eligibility or
termination, 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.
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, 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 in accordance with
Section 4.4 and the terms of such plans, until the
termination of his employment. During the 18-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,
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
Executive's 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) 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 continuation of such
failure or negligence for a period of ten (10) days after
notice to the Executive; (ii) the Executive's willful failure
to perform (other than by reason of disability) any lawful and
reasonable directive of the CEO; (iii) the commission of
fraud, embezzlement or theft by the Executive with respect to
the Company or any of its Affiliates; or (iv) 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. Anything to the contrary in
this
-5-
Agreement notwithstanding, upon the giving of notice of
termination of the Executive's employment hereunder for Cause,
the Company and its Affiliates 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 the Executive's employment hereunder other than for
Cause at any time upon notice to the Executive. In the event
of such termination, the Company shall pay the Executive: (i)
Base Salary earned but unpaid through the date of termination,
plus (ii) 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 Base Salary)
throughout the remainder of the Term, provided should
termination occur during the original Term or during any
one-year automatic extension thereof, the Term shall be deemed
to expire at the end of such original Term or at the end of
the current extension year, as applicable, 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 (prorated in accordance with Section 4.2).
5.5 By the Executive for Good Reason. The Executive may
terminate 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) any
material diminution in the nature and scope of the Executive's
responsibilities, duties, authority or title; (ii) material
failure of the Company to provide the Executive the Base
Salary and benefits in accordance with the terms of Section 4
hereof; or (iii) relocation of the Executive's office to a
location 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 terminate his employment hereunder at any time upon 90
days written notice to the Company. In the event of
termination of the Executive's employment pursuant to this
Section 5.6, the CEO or 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 and its Affiliates
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, (ii) continuation of the provision of the benefits set
forth in Section 4.4 for the period (or portion of such
period) indicated above, and (iii) any
-6-
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.
5.7 Post-Agreement Employment. In the event the Executive
remains in the employ of the Company or any of its Affiliates
following termination of this Agreement, by the expiration of
the Term or otherwise, then such employment shall be at will.
6. Effect of Termination of Employment. The provisions of this
Section 6 shall apply in the event of termination of
Executive's employment, whether due to the expiration of the
Term, pursuant to Section 5, or otherwise.
6.1 Payment in Full. Payment by the Company or its Affiliates
of any Base Salary, Bonus or other specified amounts that are
due to 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
or 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 therein
survive termination of employment.
6.2 Termination of Benefits. If Executive is terminated by the
Company without Cause, or terminates his employment with the
Company for Good Reason, and provided that Executive elects
continuation of health coverage pursuant to Section 601
through 608 of the Employee Retirement Income Security Act of
1974, as amended ("COBRA"), Company shall pay Executive an
amount equal to his monthly COBRA premiums for a period equal
to the period remaining in the Term after termination;
provided further, such payment will cease upon Executive's
entitlement to other health insurance without charge. Except
for medical insurance coverage continued pursuant to Section
5.2 hereof, all other 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.
6.3 Survival of Certain Provisions. Provisions of this
Agreement shall survive any termination of employment if so
provided herein or if necessary 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 his 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 the
termination of his employment.
-7-
7. Confidential Information; Intellectual Property.
7.1 Confidentiality. The Executive acknowledges that the
Company and its Affiliates continually develop Confidential
Information (as that term is defined in Section 11.2, below);
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 his
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) any Confidential Information obtained by the
Executive incident to his employment or other association with
the Company and 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 media of every kind and description relating to the
business, present or otherwise, of the Company and its
Affiliates and any copies, in whole or in part, thereof (the
"Documents"), whether or not prepared by the Executive, 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 and its Affiliates at the time
his employment terminates, or at such earlier time or times as
the Board or CEO designee may specify, all Documents then in
the Executive's possession or control.
7.3 Assignment of Rights to Intellectual Property. The
Executive shall promptly and fully disclose all Intellectual
Property to the Company. The Executive hereby assigns 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 shall 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
or its Affiliates to assign the Intellectual Property to the
Company and to permit the Company and its Affiliates to
enforce any patents, copyrights or other proprietary rights to
the Intellectual Property. The Executive will not charge the
Company or its Affiliates for time spent in complying with
these obligations. All copyrightable works that the Executive
creates shall be considered "Work For Hire" under applicable
laws.
-8-
8. Restricted Activities.
8.1 Agreement Not to Compete With the Company. During the
Executive's employment hereunder and for a period of 24 months
following the date of termination thereof (the
"Non-Competition Period"), the Executive will not, directly or
indirectly, own, manage, 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, member, manager, 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 in any material respect competes with the
following enumerated business activities to the extent then
being conducted or being planned to be conducted by the
Company or its Affiliates or being conducted or known by the
Executive to being planned to be conducted by the Company or
by any of its Affiliates, at or prior to the date on which the
Executive's employment under this Agreement is terminated (the
"Date of Termination"), in the United States or any other
geographic area where such business is being conducted or
being planned to be conducted at or prior to the Date of
Termination (a "Competitive Business", defined below). For
purposes of this Agreement, "Competitive Business" shall be
defined as: (i) any company or other entity engaged as a
"quick service restaurant" ("QSR") which offers pizza for
sale; (ii) any "quick service restaurant" which is then
contemplating entering into the pizza business or adding pizza
to its menu; (iii) any entity which at the time of Executive's
termination of employment with the Company, offers, as a
primary product or service, products or services then being
offered by the Company or which the Company is actively
contemplating offering; and (iv) any entity under common
control with an entity included in (i), (ii) or (iii), above.
Notwithstanding the foregoing, ownership of not more than 5%
of any class of equity security of any publicly traded
corporation shall not, of itself, constitute a violation of
this Section 8.1.
8.2 Agreement Not to Solicit Employees or Customers of the
Company. During his employment and during the Non-Competition
Period the Executive will not, directly or indirectly, (i)
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 (ii) 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-
9. Enforcement of Covenants. The Executive acknowledges that he
has carefully read and considered all the terms and conditions
of this Agreement, including without limitation the restraints
imposed upon his 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 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 it 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 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 within quotation marks shall have the meanings provided
in this Section 11 or as specifically defined elsewhere in
this Agreement. For purposes of this Agreement, the following
definitions apply:
11.1 Affiliates. "Affiliates" shall mean TISM, Inc., Domino's,
Inc. 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 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 interest 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
-10-
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 to 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 Security Act of 1974 and 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.
11.4 Intellectual Property. "Intellectual Property" means
inventions, discoveries, developments, methods, processes,
compositions, works, concepts, recipes and ideas (whether or
not patentable or copyrightable or constituting trade secrets
or trademarks 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 activities or
any prospective activity of the Company or any of its
Affiliates.
11.5 Person. "Person" means an individual, a corporation, an
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 shall be reduced by any tax or other amounts
required to be withheld by the Company under applicable law.
-11-
13. Miscellaneous.
13.1 Assignment. Neither the Company nor the Executive may
assign 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 may assign its
rights and obligations under this Agreement without the
consent of the Executive in the event that the Company 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" 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 and the Executive, and their
respective successors, executors, administrators,
representatives, 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.
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.
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 (i) in the case of the
Executive, to: Xxx Xxxxxxx at 0000 Xxxxxxxxx Xxxxxx, Xxxxxx,
XX 00000, and (ii) in the case of the Company, to the
attention of Xx. Xxxxx X. Xxxxxxx, CEO, at 30 Xxxxx Xxxxx
Xxxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxx 00000, or to such other
address as either party may specify by notice to the other
actually received.
-12-
13.5 Entire Agreement. This Agreement constitutes the entire
agreement between the parties and supersedes any and all prior
communications, agreements and understandings, written or
oral, between the Executive and the Company, or any of its
predecessors, with respect to the terms and conditions of the
Executive's employment.
13.6 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.
13.7 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.
13.8 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.
-13-
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: DOMINO'S PIZZA LLC.
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Chairman and Chief Executive Officer
THE EXECUTIVE: /s/ Xxx Xxxxxxx
--------------------------------------------
Name: Xxx Xxxxxxx
-14-
EXHIBIT 3.2
-----------
(None, unless additional information is set forth below.)
-15-
