EXHIBIT 10.12
EMPLOYMENT AGREEMENT
This Employment Agreement is made as of December 14, 1999, by Domino's
Pizza, Inc., a Michigan corporation (the "Company") with Xxxx Xxxxxxx (the
"Executive").
RECITALS
1. The Executive has experience and expertise required by the Company
and its Affiliates.
2. Subject to the terms and conditions hereinafter set forth, the
Company therefore wishes to employ the Executive as its Executive Vice President
of Distribution and the Executive wishes to accept such employment.
AGREEMENT
NOW, THEREFORE, for valid consideration received, the parties agree as
follows:
1. Employment. Subject to the terms and conditions set forth in this
Agreement, the Company offers and the Executive accepts employment hereunder
effective as of the date first set forth above (the "Effective Date").
2. Term. Subject to earlier termination as hereafter provided, the
Executive shall be employed hereunder for an original term commencing on the
Effective Date and ending on December 31, 2002, 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 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").
3.2 Performance. During the Term, the Executive shall be
employed by the Company on a full-time basis and shall perform and discharge,
faithfully, diligently and to the best of his ability, his duties and
responsibilities hereunder. During the Term, the Executive shall devote his full
business time exclusively to the advancement of the business and interests of
the Company and its Affiliates and to the discharge of his duties and
responsibilities hereunder. The Executive shall not engage in any other business
activity or serve in any industry, trade, professional, governmental, political,
charitable or academic position during the Term of this Agreement, except for
such directorships or other positions which he currently holds and has disclosed
to the CEO in Exhibit 3.2 hereof and except as otherwise may be approved in
advance by the CEO.
4. Compensation and Benefits. During the Term, as compensation for
all services performed by the Executive under this Agreement and subject to
performance of the Executive's duties and obligations to the Company and its
Affiliates, pursuant to this Agreement or otherwise, the Executive shall receive
the following:
4.1 Base Salary.
(a) Through December 31, 1999. From the Effective Date of
this Agreement through December 31, 1999, the Company shall pay the Executive a
base salary at the rate of Two Hundred Forty-Two Thousand Six Hundred
Thirty-Seven Dollars ($242,637) per year, payable in accordance with the payroll
practices of the Company for its executives (the "1999 Base Salary"), and
(b) Commencing January 1, 2000. Commencing January 1, 2000,
the Company shall pay the Executive a base salary at the rate of Two Hundred
Eighty-Five Thousand Dollars ($285,000) per year, payable in accordance with the
payroll practices of the Company for its executives and subject to such
increases as the Board of Directors of the Company (the "Board") in its sole
discretion may determine from time to time (the "Base Salary").
4.2 Bonus.
(a) Formula Bonus. Commencing in 2000, subject to Section 5
hereof, the Company shall pay the Executive a bonus in each fiscal year that he
is an employee (the "Bonus") within 75 days of the end of the fiscal year in
which such Bonus is earned. The amount of the Bonus shall be determined by the
Board based on the Company's achievement of pre-established annual targets (each
annual target being referred to as "Target"), which shall be based upon the
Company's EBITDA. The term "EBITDA" shall mean earnings before interest, taxes,
depreciation, amortization, Leadership Team bonuses, and loss or gain on sale or
disposal of assets outside of the ordinary course of business (including sales
of stores), all as reflected on the Company's financial statements as regularly
and consistently prepared. No Bonus shall be paid unless 90% of Target is
exceeded in the applicable fiscal year. The Executive shall receive a bonus of
one-tenth of one percent (0.1%) of his Base Salary for every one-hundredth of
one percent (0.01%) (rounded to the nearest hundredth) in excess of 90% of
Target that is achieved in the applicable fiscal year. By way of example only,
if 100% of Target is achieved, Executive would receive a Bonus under this
Section 4.2(a) equal to 100% of Executive's Base Salary.
(b) Discretionary Bonus Commencing in 2000, 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.
(c) Pro-Ration Anything to the contrary in this Agreement
notwithstanding, 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.
4.3 Vacations. During the Term, the Executive shall be entitled
to four weeks of vacation per calendar year, to be taken at such times and
intervals as shall be determined by the Executive, subject to the reasonable
business needs of the Company. The Executive may not accumulate or carry over
from one calendar year to another any unused, accrued vacation time. The
Executive shall not be entitled to compensation for vacation time not taken.
4.4 Other Benefits. During the Term and subject to any
contribution therefor required of executives of the Company generally, the
Executive shall be entitled to participate in all employee benefit plans,
including without limitation any 401(k) plan, from time to time adopted by the
Board and in effect for executives of the Company generally (except to the
extent such plans are in a category of benefit otherwise provided the Executive
hereunder). Such participation shall be subject to (i) the terms of the
applicable plan documents and (ii) generally applicable policies of the Company.
The Company may alter, modify, add to or delete any aspects of its employee
benefit plans at any time as the Board, in its sole judgment, determines to be
appropriate.
4.5 Business Expenses. The Company shall pay or reimburse the
Executive for all reasonable business expenses, including without limitation the
cost of first class air travel and dues for industry-related association
memberships, incurred or paid by the Executive in the performance of his duties
and responsibilities hereunder, subject to (i) any expense policy of the Company
set by the Board from time to time, and (ii) such reasonable substantiation and
documentation requirements as may be specified by the Board or CEO from time to
time.
4.6 Airline Clubs. Upon receiving the prior written approval of
the CEO authorizing the Executive to join a particular airline club, the Company
shall pay or reimburse the Executive for dues for not less than two nor more
than four airline clubs, provided such club memberships serve a direct business
purpose and subject to such reasonable substantiation and documentation
requirements as to cost and purpose as may be specified by the CEO from time to
time.
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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 his estate) any Base Salary earned but unpaid
through the date of such retirement or death, any Bonus for the fiscal year
preceding the year in which such retirement or death occurs that was earned but
has not yet been paid and, at the times the Company pays its executives bonuses
in accordance with its general payroll policies, an amount equal to that portion
of any Bonus earned but unpaid during the fiscal year of such retirement or
death (prorated in accordance with Section 4.2).
5.2 Disability.
5.2.1 The Company may terminate the Executive's employment
hereunder, upon notice to the Executive, in the event that the Executive becomes
disabled during his employment hereunder through any illness, injury, accident
or condition of either a physical or psychological nature and, as a result, is
unable to perform substantially all of his duties and responsibilities hereunder
for an aggregate of 120 days during any period of 365 consecutive calendar days.
5.2.2 The Board may designate another employee to act in the
Executive's place during any period of the Executive's disability.
Notwithstanding any such designation, the Executive shall continue to receive
the Base Salary in accordance with Section 4.1 and to receive benefits in
accordance with Section 4.5, to the extent permitted by the then current terms
of the applicable benefit plans, until the Executive becomes eligible for
disability income benefits under any disability income plan maintained by the
Company, or until the termination of his employment, whichever shall first
occur. Upon becoming so eligible, or upon such termination, whichever shall
first occur, the Company shall pay to the Executive any Base Salary earned but
unpaid through the date of such eligibility or termination and any Bonus for the
fiscal year preceding the year of such eligibility or termination that was
earned but unpaid. At the times the Company pays its executives bonuses
generally, the Company shall pay the Executive an amount equal to that portion
of any Bonus earned but unpaid during the fiscal year of such eligibility or
termination (prorated in accordance with Section 4.2). During the 18-month
period from the date of such eligibility or termination, the Company shall pay
the Executive, at its regular pay periods, an amount equal to the difference
between the Base Salary and the amounts of disability income benefits that the
Executive receives pursuant to the above-referenced disability income plan in
respect of such period.
5.2.3 Except as provided in Section 5.2.2, while receiving
disability income payments under any disability income plan maintained by the
Company, the Executive shall not be entitled to receive any Base Salary under
Section 4.1 or Bonus payments under Section 4.2 but shall continue to
participate in benefit plans of the Company in accordance with Section 4.4 and
the terms of such plans, until the termination of his employment. During the
18-month period from the date of eligibility or termination, whichever shall
first occur, the Company shall contribute to the cost of the Executive's
participation in group medical plans of the Company, provided that the Executive
is entitled to continue such participation under applicable law and plan terms.
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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)
Executive's willful failure to perform (other than by reason of disability), or
gross negligence in the performance of his duties to the Company or any of its
Affiliates and the continuation of such failure or negligence for a period of
ten (10) days after notice to the Executive; (ii) the Executive's willful
failure to perform (other than by reason of disability) any lawful and
reasonable directive of the CEO; (iii) the commission of fraud, embezzlement or
theft by the Executive with respect to the Company or any of its Affiliates; or
(iv) the conviction of the Executive of, or plea by the Executive of nolo
contendere to, any felony or any other crime involving dishonesty or moral
turpitude. Anything to the contrary in this Agreement notwithstanding, upon the
giving of notice of termination of the Executive's employment hereunder for
Cause, the Company and its Affiliates shall have no further obligation or
liability to the Executive hereunder, other than for Base Salary earned but
unpaid through the date of termination. Without limiting the generality of the
foregoing, the Executive shall not be entitled to receive any Bonus amounts
which have not been paid prior to the date of termination.
5.4 By the Company Other Than for Cause. The Company may
terminate the Executive's employment hereunder other than for Cause at any time
upon notice to the Executive. In the event of such termination, the Company
shall pay the Executive: (i) Base Salary earned but unpaid through the date of
termination, plus (ii) monthly severance payments, each in an amount equal to
the Executive's monthly base compensation in effect at the time of such
termination (i.e., 1/12th of the Base Salary) throughout the remainder of the
Term, provided should termination occur during the original Term or during any
one-year automatic extension thereof, the Term shall be deemed to expire at the
end of such original Term or at the end of the current extension year, as
applicable, plus (iii) any unpaid portion of any Bonus for the fiscal year
preceding the year in which such termination occurs that was earned but has not
been paid, plus (iv) at the times the Company pays its executives bonuses
generally, an amount equal to that portion of any Bonus earned but unpaid during
the fiscal year of such termination (prorated in accordance with Section 4.2).
5.5 By the Executive for Good Reason. The Executive may
terminate his employment hereunder for Good Reason, upon notice to the Company
setting forth in reasonable detail the nature of such Good Reason. The following
shall constitute "Good Reason" for termination by the Executive: (i) any
material diminution in the nature and scope of the Executive's responsibilities,
duties, authority or title; (ii) material failure of the Company to provide the
Executive the Base Salary and benefits in accordance with the terms of Section 4
hereof; or (iii) relocation of the Executive's office to a location outside a
50-mile radius of the Company's current headquarters in Ann Arbor, Michigan. In
the event of termination in accordance with this Section 5.5, then the Company
shall pay the Executive the amounts specified in Section 5.4.
5.6 By the Executive Other Than for Good Reason. The Executive
may terminate his employment hereunder at any time upon 90 days written notice
to the Company. In the event of termination of the Executive's employment
pursuant to this Section 5.6, the CEO or the Board may elect to waive the period
of notice, or any portion thereof. The Company will pay the Executive his Base
Salary for the notice period, except to the extent so waived by the Board. Upon
the giving of notice of termination of the Executive's employment hereunder
pursuant to this Section 5.6, the Company and its Affiliates shall have no
further obligation or liability to the Executive, other than (i) payment to the
Executive of his Base Salary for the period (or portion of such period)
indicated above, (ii) continuation of the provision of the benefits set forth in
Section 4.4 for the period (or portion of such period) indicated above, and
(iii) any 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.
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5.7 Post-Agreement Employment. In the event the Executive
remains in the employ of the Company or any of its Affiliates following
termination of this Agreement, by the expiration of the Term or otherwise, then
such employment shall be at will.
6. Effect of Termination of Employment. The provisions of this
Section 6 shall apply in the event of termination of Executive's employment,
whether due to the expiration of the Term, pursuant to Section 5, or otherwise.
6.1 Payment in Full. Payment by the Company or its Affiliates of
any Base Salary, Bonus or other specified amounts that are due to the Executive
under the applicable termination provision of Section 5 shall constitute the
entire obligation of the Company and its Affiliates to the Executive, except
that nothing in this Section 6.1 is intended or shall be construed to affect the
rights and obligations of the Company or its Affiliates, on the one hand, and
the Executive, on the other, with respect to any option plans, option
agreements, subscription agreements, stockholders agreements or other agreements
to the extent said rights or obligations therein survive termination of
employment.
6.2 Termination of Benefits. If Executive is terminated by the
Company without Cause, or terminates his employment with the Company for Good
Reason, and provided that Executive elects continuation of health coverage
pursuant to Section 601 through 608 of the Employee Retirement Income Security
Act of 1974, as amended ("COBRA"), Company shall pay Executive an amount equal
to his monthly COBRA premiums for a period equal to the period remaining in the
Term after termination; provided further, such payment will cease upon
Executive's entitlement to other health insurance without charge. Except for
medical insurance coverage continued pursuant to Section 5.2 hereof, all other
benefits shall terminate pursuant to the terms of the applicable benefit plans
based on the date of termination of the Executive's employment without regard to
any continuation of Base Salary or other payments to the Executive following
termination of his employment.
6.3 Survival of Certain Provisions. Provisions of this Agreement
shall survive any termination of employment if so provided herein or if
necessary to accomplish the purpose of other surviving provisions, including,
without limitation, the obligations of the Executive under Sections 7 and 8
hereof. The obligation of the Company to make payments to or on behalf of the
Executive under Sections 5.2, 5.4 or 5.5 hereof is expressly conditioned upon
the Executive's continued full performance of his obligations under Sections 7
and 8 hereof. The Executive recognizes that, except as expressly provided in
Section 5.2, 5.4 or 5.5, no compensation is earned after the termination of his
employment.
7. Confidential Information; Intellectual Property.
7.1 Confidentiality. The Executive acknowledges that the Company
and its Affiliates continually develop Confidential Information (as that term is
defined in Section 11.2, below); that the Executive may develop Confidential
Information for the Company or its Affiliates and that the Executive may learn
of Confidential Information during the course of his employment. The Executive
will comply with the policies and procedures of the Company and its Affiliates
for protecting Confidential Information and shall never use or disclose to any
Person (except as required by applicable law or for the proper performance of
his duties and responsibilities to the Company) any Confidential Information
obtained by the Executive incident to his employment or other association with
the Company and its Affiliates. The Executive understands that this restriction
shall continue to apply after his employment terminates, regardless of the
reason for such termination.
7.2 Return of Documents. All documents, records, tapes and other
media of every kind and description relating to the business, present or
otherwise, of the Company and its Affiliates and any copies, in whole or in
part, thereof (the "Documents"), whether or not prepared by the Executive, shall
be the sole and exclusive property of the Company and its Affiliates. The
Executive shall safeguard all Documents and shall surrender to the Company and
its Affiliates at the time his employment terminates, or at such earlier time or
times as the Board or CEO designee may specify, all Documents then in the
Executive's possession or control.
7.3 Assignment of Rights to Intellectual Property. The Executive
shall promptly and fully disclose all Intellectual Property to the Company. The
Executive hereby assigns to the Company (or as otherwise directed by the
Company) the Executive's full right, title and interest in and to all
Intellectual Property. The Executive shall execute any and all applications for
domestic and foreign patents, copyrights or other proprietary rights and to do
such other acts
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(including without limitation the execution and delivery of
instruments of further assurance or confirmation) requested by the Company or
its Affiliates to assign the Intellectual Property to the Company and to permit
the Company and its Affiliates to enforce any patents, copyrights or other
proprietary rights to the Intellectual Property. The Executive will not charge
the Company or its Affiliates for time spent in complying with these
obligations. All copyrightable works that the Executive creates shall be
considered "Work For Hire" under applicable laws.
8. Restricted Activities.
8.1 Agreement Not to Compete With the Company. During the
Executive's employment hereunder and for a period of 24 months following the
date of termination thereof (the "Non-Competition Period"), the Executive will
not, directly or indirectly, own, manage, operate, control or participate in any
manner in the ownership, management, operation or control of, or be connected as
an officer, employee, partner, director, principal, member, manager, consultant,
agent or otherwise with, or have any financial interest in, or aid or assist
anyone else in the conduct of, any business, venture or activity which in any
material respect competes with the following enumerated business activities to
the extent then being conducted or being planned to be conducted by the Company
or its Affiliates or being conducted or known by the Executive to being planned
to be conducted by the Company or by any of its Affiliates, at or prior to the
date on which the Executive's employment under this Agreement is terminated (the
"Date of Termination"), in the United States or any other geographic area where
such business is being conducted or being planned to be conducted at or prior to
the Date of Termination (a "Competitive Business", defined below). For purposes
of this Agreement, "Competitive Business" shall be defined as: (i) any company
or other entity engaged as a "quick service restaurant" ("QSR") which offers
pizza for sale; (ii) any "quick service restaurant" which is then contemplating
entering into the pizza business or adding pizza to its menu; (iii) any entity
which at the time of Executive's termination of employment with the Company,
offers, as a primary product or service, products or services then being offered
by the Company or which the Company is actively contemplating offering; and (iv)
any entity under common control with an entity included in (i), (ii) or (iii),
above. Notwithstanding the foregoing, ownership of not more than 5% of any class
of equity security of any publicly traded corporation shall not, of itself,
constitute a violation of this Section 8.1.
8.2 Agreement Not to Solicit Employees or Customers of the
Company. During his employment and during the Non-Competition Period the
Executive will not, directly or indirectly, (i) recruit or hire or otherwise
seek to induce any employees of the Company or any of the Company's Affiliates
to terminate their employment or violate any agreement with or duty to the
Company or any of the Company's Affiliates; or (ii) solicit or encourage any
franchisee or vendor of the Company or of any of the Company's Affiliates to
terminate or diminish its relationship with any of them or to violate any
agreement with any of them, or, in the case of a franchisee, to conduct with any
Person any business or activity that such franchisee conducts or could conduct
with the Company or any of the Company's Affiliates.
9. 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 it being extended over too great a time, too large a geographic
area or too great a range of activities, such provision shall be deemed to be
modified to permit its enforcement to the maximum extent permitted by law.
10. Conflicting Agreements. The Executive hereby represents and
warrants that the execution of this Agreement and the performance of his
obligations hereunder will not breach or be in conflict with any other agreement
to which or by which the Executive is a party or is bound and that the Executive
is not now subject to any covenants against competition or solicitation or
similar covenants or other obligations that would affect the performance of his
obligations hereunder. The Executive will not disclose to or use on behalf of
the Company or any of its Affiliates any proprietary information of a third
party without such party's consent.
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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 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.
13. Waiver, Release and Termination of Prior Agreement. Effective upon
the execution of this Agreement, Executive hereby waives any and all rights and
benefits to which he was entitled under a prior Severance Agreement with the
Company dated August 4, 1998 (the "Prior Agreement"), releases the Company and
its Affiliates from any and all obligations under the Prior Agreement, and
agrees that such Prior Agreement is terminated and of no force or effect.
14. Miscellaneous.
14.1 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.
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14.2 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.
14.3 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.
14.4 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: Xxxx Xxxxxxx, at 9540 Penniman, Xxxxxxxx, Xxxxxxxx 00000, and
(ii) in the case of the Company, to the attention of Xx. Xxxxx X. Xxxxxxx, CEO,
at 30 Xxxxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxx 00000, or to such other
address as either party may specify by notice to the other actually received.
14.5 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.
14.6 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 instruments.
14.7 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.
14.8 Consent to Jurisdiction. Each of the Company and the
Executive by its or his execution hereof, (i) hereby irrevocably submits to the
jurisdiction of the state courts of the State of Michigan for the purpose of any
claim or action arising out of or based upon this Agreement or relating to the
subject matter hereof and (ii) hereby waives, to the extent not prohibited by
applicable law, and agrees not to assert by way of motion, as a defense or
otherwise, in any such claim or action, any claim that it or he is not subject
personally to the jurisdiction of the above-named courts, that its or his
property is exempt or immune from attachment or execution, that any such
proceeding brought in the above-named courts is improper, or that this Agreement
or the subject matter hereof may not be enforced in or by such court. Each of
the Company and the Executive hereby consents to service of process in any such
proceeding in any manner permitted by Michigan law, and agrees that service of
process by registered or certified mail, return receipt requested, at its
address specified pursuant to Section 13.4 hereof is reasonably calculated to
give actual notice.
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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/
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: CEO
THE EXECUTIVE: /s/
---------------------------------------------
Name: Xxxx Xxxxxxx
-9-
EXHIBIT 3.2
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