EXHIBIT 10.38
EMPLOYMENT AGREEMENT
This Employment Agreement is made as of January 1, 2002, by Domino's
Pizza LLC, a Michigan corporation (the "Company") with Xxxxxxx X. Xxxxxxx (the
"Executive").
RECITALS
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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 of Distribution and the Executive
wishes to accept such employment.
AGREEMENT
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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. This Agreement shall commence on the date hereof and
shall remain in effect for an indefinite time until terminated
by either party as set forth in Section 5 hereof.
3. Capacity and Performance.
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3.1 Offices. During the Term, the Executive shall serve
the Company in the office of Executive Vice President of
Distribution. The Executive shall have such other powers,
duties and responsibilities consistent with the Executive's
position as Executive Vice President of Distribution as may
from time to time be prescribed by the Chief Executive Officer
of the Company ("CEO").
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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/her ability, his/her duties and responsibilities
hereunder. During the Term, the Executive shall devote his/her
full business time exclusively to the advancement of the
business and interests of the Company and its Affiliates and
to the discharge of his/her 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/she 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. 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 or the
Compensation Committee (the "Board") in its sole
discretion may determine from time to time (the "Base
Salary").
4.2 Bonus.
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(a) Formula Bonus. Subject to Section 5 hereof,
the Executive shall be paid an annual bonus in each
fiscal year that he/she is an employee (the "Bonus").
The Executive shall have a Bonus target of 100% of
Base Salary (the "Target") which shall be based upon
the Company's achievement of annual targets as
recommended by the CEO and approved by the Board. No
Bonus shall be paid unless 90% of the Target is
exceeded in the applicable fiscal year. The Executive
shall receive one-tenth of one percent (0.1%) of
his/her Base Salary for every one hundredth of one
percent (0.01%) (rounded to the nearest hundredth) in
excess of 90% of the Target that is achieved in the
applicable fiscal year. By way of example only, if
100% of the Target is achieved, Executive is entitled
to a Bonus under this Section 4.2(a) equal to 100% of
Executive's Base Salary.
(b) Discretionary Bonus 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.
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(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/her 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.
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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 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
Executive's 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.
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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/her 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/her duties
and responsibilities hereunder for an aggregate of
120 days during any period of 365 consecutive
calendar days.
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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/her 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 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/her 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.
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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/her 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/her 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/her 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 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.
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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) for
a period of twelve (12) months ("Severance Term"), 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 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 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/her 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/her 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 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.
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6. Effect of Termination of Employment. The provisions of this
Section 6 shall apply in the event of termination of
Executive's employment, 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 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 the monthly COBRA premiums for the Severance
Term; 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
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/her 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.
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7. Confidential Information; Intellectual Property.
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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/her
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/her duties and responsibilities to
the Company) any Confidential Information obtained by the
Executive incident to his/her employment or other association
with the Company and its Affiliates. The Executive understands
that this restriction shall continue to apply after 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
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.
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8. Restricted Activities.
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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 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.
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9. Enforcement of Covenants. The Executive acknowledges that
he/she has carefully read and considered all the terms and
conditions of this Agreement, including without limitation the
restraints imposed upon his/her 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/she 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/her 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/her
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.
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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 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.
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13. Miscellaneous.
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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: ____________________ at ____________________,
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.
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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 evidenced by the 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/she is not subject personally
to the jurisdiction of the above-named courts, that its or
his/her 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: DOMINO'S PIZZA LLC
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Chief Executive Officer
THE EXECUTIVE: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
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EXHIBIT 3.2
-----------
(None, unless additional information is set forth below.)
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