EXHIBIT 10.1
EMPLOYMENT AGREEMENT
This Employment Agreement is made as of April 1, 2000, by Domino's
Pizza, Inc., a Michigan corporation (the "Company") with Xxxxx X. Xxxxxx C. (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 and General Counsel 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
of two years, commencing on the Effective Date and ending on
the second anniversary hereof, 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 and General
Counsel. The Executive shall have such other powers, duties
and responsibilities consistent with the Executive's position
as Executive Vice President and General Counsel 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 her
ability, her duties and responsibilities hereunder. During the
Term, the Executive shall devote her full business time
exclusively to the advancement
of the business and interests of the Company and its
Affiliates and to the discharge of 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 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. Commencing on the date hereof, the
Company shall pay the Executive a base salary at the
rate of Two Hundred Twenty-Five Thousand Dollars
($225,000) 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 2000, subject to
Section 5 hereof, the Company shall pay the Executive
a bonus in each fiscal year that she 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 five one-hundredths of one percent (0.05%)
of her 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
50% of Target is achieved, Executive would receive a
Bonus under this Section 4.2(a) equal to 50% of
Executive's Base Salary.
(b) Discretionary Bonus. Commencing in 2000, the
Executive shall also be eligible for an annual
discretionary bonus, the amount of which is
determined
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in the sole discretion of the CEO based on subjective
and objective criteria established by the CEO, of up
to 15% of Base Salary.
(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 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.
4.8 Nonqualified Plan. The Executive agrees that the
Company may amend its nonqualified deferred compensation plan
to exclude the Executive from receiving benefits based upon
any deferral matching credit or formula.
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 her
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 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 her 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 her employment, whichever
shall first occur. Upon becoming so eligible, or upon
such termination, whichever shall first occur, the
Company
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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 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.
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 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 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 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
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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.
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 her 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 her 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 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
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and its Affiliates shall have no further obligation or
liability to the Executive, other than (i) payment to the
Executive of 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.
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 her 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 her 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 her 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
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5.5 hereof is expressly conditioned upon the Executive's
continued full performance of 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 the termination of her employment.
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 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 her duties and responsibilities to the
Company) any Confidential Information obtained by the
Executive incident to her employment or other association with
the Company and its Affiliates. The Executive understands that
this restriction shall continue to apply after her 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
her 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.
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. The restrictions of this Section 8.1 shall
not be applicable to the Executive acting as legal counsel or
otherwise providing legal services for a Competitive Business
during the Non-Competition Period.
8.2 Agreement Not to Solicit Employees or Customers of
the Company. During her 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 she
has carefully read and considered all the terms and conditions
of this Agreement, including without limitation the restraints
imposed upon 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
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 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 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.
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
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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.
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: Xxxxx X. Xxxxxx C. 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 by its or her 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 she is not subject personally to
the jurisdiction of the above-named courts, that its or 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, INC.
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Chairman -- CEO
THE EXECUTIVE: /s/ Xxxxx X. Xxxxxx C.
------------------------------------
Name: Xxxxx X. Xxxxxx C.
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EXHIBIT 3.2
(None, unless additional information is set forth below.)
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