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Exhibit 10.1
EMPLOYMENT AGREEMENT
This Employment Agreement is made as of July 10, 2000, by Domino's Pizza
LLC, a Michigan corporation (the "Company") with Patricia A. Wilmot (the
"Executive").
RECITALS
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1. The Executive has experience and expertise required by the Company and
its Affiliates.
2. Subject to the terms and conditions hereinafter set forth, the Company
therefore wishes to employ the Executive as its Executive Vice
President - PeopleFirst and the Executive wishes to accept such
employment.
AGREEMENT
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NOW, THEREFORE, for valid consideration received, the parties agree as
follows:
1. Employment. Subject to the terms and conditions set forth in this
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Agreement, the Company offers and the Executive accepts employment
hereunder effective as of the date first set forth above (the
"Effective Date").
2. Term.
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2.1 Initial Term. Subject to earlier termination as hereafter
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provided, the Executive shall be employed hereunder for an original
term, commencing on the Effective Date and ending on December 31,
2002, which term may be renewed thereafter by mutual agreement. The
term of the Executive's employment under this Agreement, including any
renewals, is referred to as the "Term."
2.2 Renewal Terms. At least six (6) months prior to the end of the
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initial term or any renewal term, the Company and the Executive shall
determine if this Agreement will be renewed on the expiration date of
the then current term, for a period of at least one year. In the event
the Company chooses not to renew, the Executive will be terminated and
will receive the benefits set forth in Section 5.4 below. In the event
the Executive chooses not to renew, the Executive will be deemed to
have provided notice under section 5.6 below.
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3. Capacity and Performance.
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3.1 Offices. During the Term, the Executive shall serve the Company
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in the office of Executive Vice President - PeopleFirst. The
Executive shall have such other powers, duties and responsibilities
consistent with the Executive's position as Executive Vice President -
PeopleFirst 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
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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
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be approved in advance by the CEO.
4. Compensation and Benefits. During the Term, as compensation for all
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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
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pay the Executive a base salary at the rate of Two Hundred Forty
Thousand Dollars ($240,000) 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").
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4.2 Bonus.
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(a) Formula Bonus. Commencing in 2000, subject to Section 5
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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 100% 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
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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 15% of Base Salary.
(c) Pro-Ration. Anything to the contrary in this Agreement
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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
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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
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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,
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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
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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
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CEO authorizing the Executive to join a particular airline club, the
Company shall pay or reimburse the Executive for dues for not less
than two nor more than four airline clubs, provided such club
memberships serve a direct business purpose and subject to such
reasonable substantiation and documentation requirements as to cost
and purpose as may be specified by the CEO from time to time.
4.7 Physicals. The Company shall annually pay for or reimburse the
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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
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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
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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
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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
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not yet been paid and, at the times the Company pays its executives
bonuses in accordance with its general payroll policies, an amount
equal to that portion of any Bonus earned but unpaid during the fiscal
year of such retirement or death (prorated in accordance with Section
4.2).
5.2 Disability.
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5.2.1 The Company may terminate the Executive's employment
hereunder, upon notice to the Executive, in the event that the
Executive becomes disabled during 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 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
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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
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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
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
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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
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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
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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
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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 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
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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
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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
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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
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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
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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
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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 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.
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7.1 Confidentiality. The Executive acknowledges that the Company and
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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.
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7.2 Return of Documents. All documents, records, tapes and other
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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
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shall promptly and fully disclose all Intellectual Property to the
Company. The Executive hereby assigns to the Company (or as otherwise
directed by the Company) the Executive's full right, title and
interest in and to all Intellectual Property. The Executive shall
execute any and all applications for domestic and foreign patents,
copyrights or other proprietary rights and to do such other acts
(including without limitation the execution and delivery of
instruments of further assurance or confirmation) requested by the
Company or its Affiliates to assign the Intellectual Property to the
Company and to permit the Company and its Affiliates to enforce any
patents, copyrights or other proprietary rights to the Intellectual
Property. The Executive will not charge the Company or its Affiliates
for time spent in complying with these obligations. All copyrightable
works that the Executive creates shall be considered "Work For Hire"
under applicable laws.
8. Restricted Activities.
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8.1 Agreement Not to Compete With the Company. During the
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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.
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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.
9. Enforcement of Covenants. The Executive acknowledges that she has
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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
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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
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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
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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.
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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
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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.
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11.3 ERISA. "ERISA" means the federal Employee Retirement Income
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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
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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
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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
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shall be reduced by any tax or other amounts required to be withheld
by the Company under applicable law.
13. Miscellaneous.
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13.1 Assignment. Neither the Company nor the Executive may assign
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this Agreement or any interest herein, by operation of law or
otherwise, without the prior written consent of the other; provided,
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however, that the Company may assign its rights and obligations under
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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
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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
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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
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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
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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: Patricia A. Wilmot at
_________________________________________, and (ii) in the case of the
Company, to the attention of Mr. David A. Brandon, CEO, at 30 Frank
Lloyd Wright Drive, Ann Arbor, Michigan 48106, 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 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
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<PAGE>
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.
IN WITNESS WHEREOF, this Agreement has been executed by the Company, by its
duly authorized representative, and by the Executive, as of the date first above
written.
THE COMPANY: DOMINO'S PIZZA LLC.
By: /s/ David A. Brandon
-------------------------------------
Name: David A. Brandon
Title: Chairman -- CEO
THE EXECUTIVE:
/s/ Patricia A. Wilmot
---------------------------------------
Name: Patricia A. Wilmot
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<PAGE>
EXHIBIT 3.2
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(None, unless additional information is set forth below.)
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