EXHIBIT 10.5
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement is made as of June 1, 2003
by TISM, Inc., a Michigan corporation (the "Company"), Domino's, Inc., a
Delaware corporation and Domino's Pizza, LLC, a Michigan limited liability
company (together with Domino's, Inc., the "Principal Subsidiaries") with Xxxxx
X. Xxxxxxx (the "Executive").
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. The Company and the Principal Subsidiaries entered into an Employment
Agreement with the Executive dated as of March 31, 1999 (the "Original
Agreement") and, subject to the terms and conditions hereinafter set forth, the
Company wishes to continue to employ the Executive as its Chief Executive
Officer and the Executive wishes to accept such employment.
4. The Company, the Principal Subsidiaries and the Executive desire to
amend and restate the terms and provisions of the Original Agreement.
Agreement
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Now, therefore, the parties hereto hereby agree that the Original Agreement
is hereby amended and restated to read in its entirety as follows:
1. Employment. Subject to the terms and conditions set forth in this
Agreement, the Company hereby offers and the Executive hereby accepts
employment, effective as of January 1, 2003 (the "Effective Date").
2. Term. Subject to earlier termination as hereafter provided, the
Executive shall be employed hereunder for a term commencing on the Effective
Date and ending on December 31, 2008. The term of the Executive's employment
under this Agreement is hereafter referred to as "the term of this Agreement" or
"the term hereof".
3. Capacity and Performance.
3.1. Offices. During the term hereof, the Executive shall serve the
Company in the offices of Chairman and Chief Executive Officer. In such
capacity, the Executive
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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 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
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
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
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".
4.2. Bonus Compensation. During the term hereof, the Company shall
pay the Executive an annual bonus (the "Bonus") the amount of which shall
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 amount of the Bonus (prior to
any proration) is 200% 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 Bonus shall be in
addition to the Base Salary, but shall be in lieu of participation in any
other incentive, stock
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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.
4.3.1. Stock/Options Purchased or Granted Prior to January 1,
2003. Reference is made to the following shares of Company Stock
purchased by the Executive or options to purchase stock granted to the
Executive prior to January 1, 2003:
(a) Purchased Shares. (i) 400,000 shares of Class A-3
Common Stock purchased by the Executive on June 15, 1999 for
$0.50 per share; and (ii) 44,444 shares of Class L Common Stock
purchased by the Executive on June 15, 1999 for $40.50 per share
(collectively, the "Purchased Shares").
(b) Options. (a) Xxxxxxx Basic Class A Option Agreement
dated March 31, 1999 granting the Executive the right to
purchase 756,258 shares of Class A-3 Common Stock for $0.50 per
share; (b) Xxxxxxx 4X Class A Option Agreement dated March 31,
1999 granting the Executive the right to purchase 756,258 shares
of Class A-3 Common Stock for $0.50 per share; and (c) Xxxxxxx
Basic Class A Option Agreement dated January 1, 2002 granting
the Executive the right to purchase 250,000 shares of Class A-3
Common Stock for $3.50 per share (collectively, the "Outstanding
Options").
Each of the above-referenced Purchased Shares shall remain outstanding
and each of the above-referenced Outstanding Options shall continue for
such period or periods and in accordance with such terms as are set out
in the subscription agreement, option agreement or other governing
documents relating to such purchase or grant and shall not be affected
by the terms of this Agreement except as otherwise expressly provided
herein. As of the Effective Date, the outstanding shares of the
Company's Class A Common Stock and Class L Common Stock (collectively,
the "Common Stock") and all options to purchase Common Stock are held
as set forth on Exhibit A-1 hereto.
4.3.2. Recapitalization. As of the date hereof, the Company has
proposed a recapitalization of the Company pursuant to which the
Company and the Principal Subsidiaries will enter into a series of
transactions in which the Company will enter into a new senior secured
credit facility and issue new senior subordinated notes due 2011 in
order to repay all outstanding indebtedness under its existing senior
secured credit facility, repurchase its outstanding senior
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subordinated notes due 2009, redeem its outstanding 11.5% cumulative
preferred stock and pay a dividend on its outstanding common stock (the
"Recapitalization"). The Recapitalization is scheduled to close on or
about June 25, 2003. Upon the consummation of the Recapitalization, the
vesting of all Outstanding Options shall accelerate and any performance
requirements on Outstanding Options shall be deemed satisfied, so that
all Outstanding Options become exercisable in full. If the
Recapitalization is not consummated during the term hereof, all
Outstanding Options shall vest and become exercisable in accordance
with the applicable option agreement or other governing document.
4.3.3. New Stock Awards. Upon the consummation of the
Recapitalization, 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-2, as from time
to time in effect (the "Plan"), options to purchase a total of 440,000
shares of Class A Common Stock at an exercise price per share equal to
the fair market value of the Company's Class A Common Stock on the date
of grant, as determined by the Board (the "New Options"). The New
Options shall be granted pursuant to the option agreement substantially
in the form of Exhibit A-3 hereto.
4.3.4. 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
Outstanding Options, the New Options and any shares issued upon
exercise of the Outstanding Options or the New 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 Agreement"), a copy of which is
attached hereto as Exhibit A-4.
4.4. Vacations. During the term hereof, the Executive shall be
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.
4.5.1. During the term hereof and subject to any contribution
therefor generally required of executives of the Company or one of the
Principal
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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.
4.5.2. Notwithstanding anything set forth in Section 4.5.1,
during the term hereof and subject to any contribution therefor
generally required of executives of the Company or one of the Principal
Subsidiaries, as applicable, Executive and his spouse will be entitled
to participate in the Company's health plan in accordance with the
terms of the applicable plan documents. Following termination of the
Executive's employment for any reason (including the expiration of the
term of this Agreement), other than by the Company for Cause pursuant
to Section 5.3 or by the Executive without Good Reason pursuant to
Section 5.6, the Company will furnish to the Executive during his
lifetime, and to the Executive's spouse during her lifetime, medical
coverage at least equivalent to that being provided by the Company at
the time of termination (the "Health Benefit"). To the extent that the
Company either is unable to provide the Health Benefit through the
Company's medical plan or is unable to provide non-discriminatory group
medical coverage to the Executive equal to the Health Benefit, it will
reimburse the Executive annually for the cost of individual medical
coverage providing the Health Benefit to the Executive and his spouse,
or if such individual coverage is unavailable, the Company will
reimburse the Executive for actual medical expenditures covered by the
Health Benefit. When the Executive and his spouse, as applicable,
become eligible for Medicare, the coverage or reimbursement provided by
the Company will be limited to the cost of supplemental Medicare
insurance to provide the Health Benefit or the reimbursement for
medical expenditures in excess of supplemental Medicare insurance
coverage necessary to provide the Health Benefit, as applicable. For
purposes of this Section, "spouse" shall mean Executive's spouse during
the term hereof and, with respect to benefits to be provided following
termination of the Executive's employment, "spouse" shall mean
Executive's spouse at the time of termination of the Executive's
employment.
4.6. 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, incurred or paid by the
Executive in the performance of his duties and
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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 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.
4.7.1. The Company shall pay or reimburse the Executive for the
Executive's World Presidents Organization/Detroit Presidents
Organization dues and expenses, of approximately $11,000 per year, with
Board approval of any material increase in cost above such amount.
4.7.2. The Company will provide the Executive with directors and
officers insurance and personal liability protection described on
Exhibit B.
4.7.3. The Executive will be permitted personal use of the
Company plane at a usage level and cost to be negotiated with the Board
of Directors from time to time at rates in accordance with Standard
Industrial Fare Level rates stipulated by the U.S. Department of
Transportation or in the Time Sharing Agreement dated December 2, 2002
between Executive and Domino's Pizza, LLC. The use by Executive of the
Company plane may be curtailed or terminated by the Company if the
Board in good faith determines after consultation with the Executive
that the Company's financial performance or condition indicates that it
is advisable to do so.
4.7.4. 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
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 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
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earned but unpaid during the fiscal year of such retirement or death
(pro-rated 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 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 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 and,
solely with respect to benefits provided under Section 4.5.2,
thereafter.
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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 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) 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 Executive does not cure such
failure or negligence within the 25-day period immediately following his
receipt of such written allegations from the Board, (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
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 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
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
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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 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 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 Executive the Base Salary and benefits (including
Company-sponsored fringe 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
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
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
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,
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
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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 continued medical insurance
coverage provided pursuant to Sections 4.5.2 or 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.
6.3. Survival of Certain Provisions. Provisions of this Agreement
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.
7.1. Confidentiality. The Executive acknowledges that the Company and
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
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,
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.
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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 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 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.
8.1. Agreement not to Compete with the Company. The Executive agrees
that during the Executive's employment hereunder and for a period of
twenty-four months following the date of termination thereof (the
"Non-Competition Period"), he 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, 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 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.
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.
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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 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 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
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 and
as provided elsewhere herein. For purposes of this Agreement, the following
definitions apply:
11.1. Affiliates. "Affiliates" shall mean the Principal Subsidiaries
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 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
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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 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.
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 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
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.
13. Miscellaneous.
13.1. Assignment. Neither the Company nor the Principal Subsidiaries
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
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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
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
000 Xxxxxx Xxxxx Xxxxx
Xxx Xxxxx, XX 00000
with a copy to:
Xx. Xxxxxxxx X. Xxxxxx
Xxxxxx Xxxxxxx PLLC
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
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.
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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.
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/ Xxxxx X. Xxxxxxxxx
----------------------------------
Xxxxx X. Xxxxxxxxx
Vice President
PRINCIPAL SUBSIDIARIES: DOMINO'S, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------------------
Xxxxx X. Xxxxxxxxx
Vice President
DOMINO'S PIZZA, LLC
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------------------
Xxxxx X. Xxxxxxxxx
Vice President
THE EXECUTIVE: By: /s/ Xxxxx X. Xxxxxxx
----------------------------------
Xxxxx X. Xxxxxxx
Exhibit 3.2
-----------
XXXXX X. XXXXXXX
----------------
CURRENT ACTIVITIES
------------------
(June 2003)
I. FOR PROFIT CORPORATION BOARDS:
-----------------------------
A. The TJX Companies, Inc. (Director)
X. Xxxxxxx Brothers (Director)
II. NOT-FOR-PROFIT CORPORATION BOARDS:
---------------------------------
A. Institute for Preventative Medicine (Advisory Board)
B. America's Thanksgiving Day Parade Co. (Director)
C. Purple Rose Theater (Director)
D. St. Jude Hospital (Advisory Board)
E. Xxxxx X. Xxxxxxx Foundation (Director)
F. Detroit Renaissance Board (Director)
III. UNIVERSITY OF MICHIGAN INVOLVEMENT:
----------------------------------
A. Regent
B. Business School Visiting Committee
X. Xxxx'x Childrens Hospital - Advisory Board
D. Michigan Urologic Center, Executive Advisory Board (Chairman)
IV. CONSULTING AGREEMENT:
--------------------
X. Xxxxxxxx Communications, Inc.
V. POLITICAL ACTIVITIES:
--------------------
Republican Party
1. Precinct Delegate
2. State Committee Member
Exhibit A-1
-----------
OUTSTANDING COMMON STOCK
400,000 Shares of TISM Class A-3 Common Shares
44,444 Shares of TISM Class L Common Shares
Options to purchase 1,762,516 Class A-3 Common Shares
Exhibit A-2
-----------
OPTION PLAN
Exhibit A-3
-----------
FORM OF OPTION AGREEMENT
Exhibit A-4
-----------
STOCKHOLDERS AGREEMENT
Exhibit B
---------
D&O INSURANCE AND PERSONAL LIABILITY PROTECTION
The Company will provide the Executive with the coverage described in this
Exhibit B or such other coverage as the Company shall from time to time select
that shall be not substantially less favorable to the Executive than the
coverage described herein.
