Exhibit 10.1
STOCK REPURCHASE
AGREEMENT
This Stock
Repurchase Agreement (this “ Agreement ”) is
made as of the 6 th
day
of February, 2007, by and among Domino’s Pizza, Inc., a
Delaware corporation (the “ Company ”), Bain
Capital Fund VI, L.P., a Delaware limited partnership (“
Fund VI ”), Bain Capital VI Coinvestment Fund, L.P., a
Delaware limited partnership (“ Coinvest ”),
BCIP Associates II, a Delaware general partnership (“ BCIP
II ”), BCIP Trust Associates II, a Delaware general
partnership (“ BCIP Trust II ”), BCIP Associates
II-B, a Delaware general partnership (“ BCIP II-B
”), BCIP Trust Associates II-B, a Delaware general
partnership (“ BCIP Trust II-B ”), BCIP
Associates II-C, a Delaware general partnership (“ BCIP
II-C ”), BCIP Repurchased Holdings (“ BCIP
RH ”), BCIP Trust Repurchased Holdings (“ BCIP
Trust RH ”), PEP Investment PTY Ltd., a New South Wales
limited company (“ PEP ”), Brookside Capital
Partners Fund, L.P., a Delaware limited partnership (“
Brookside ” and together with Fund VI, Coinvest, BCIP
II, BCIP Trust II, BCIP II-B, BCIP Trust II-B, BCIP II-C, BCIP RH,
BCIP Trust RH, PEP, Brookside, each a “ Seller ”
and collectively, the “ Sellers ”).
WHEREAS, the
Company intends, but has not made any public announcement of such
intention, to conduct a public modified Dutch auction self-tender
offer for up to 13,850,000 shares of its common stock, par value
$0.01 per share (“ Common Stock ”), at prices
ranging from $27.50 to $30.00 per share pursuant to the terms and
conditions set forth in the Offer to Purchase (the “
Tender Offer ”);
WHEREAS, each of
the Sellers owns the number of shares of Common Stock set forth
opposite such Seller’s name on Schedule I hereto and
the Sellers collectively own of record 16,990,038 shares, which
constitutes approximately 27% of the issued and outstanding shares
of Common Stock;
WHEREAS, the
Sellers have informed the Company that they do not intend to tender
any of their shares pursuant to the Tender Offer; and
WHEREAS, each
Seller wishes to transfer to the Company, and the Company wishes to
repurchase from each Seller, in compliance with applicable law,
such Seller’s Pro Rata Shares (as hereinafter defined), if
and only if required to limit the Sellers’ collective
percentage ownership of Common Stock to one-third (1/3) of the
outstanding shares of Common Stock held of record by all
shareholders of the Company following the completion of the Tender
Offer, on the terms and subject to the conditions set forth in this
Agreement;
NOW, THEREFORE,
in consideration of the mutual covenants and agreements herein set
forth, and for good and valuable consideration, the parties hereto
agree as follows:
1. Purchase
and Sale of Shares
(a) Purchase
and Sale of Common Stock . At the Closing (as defined in
Section 1(c) below), and subject to the terms and conditions
hereof, the Sellers will transfer to the
Company, and the
Company will repurchase from the Sellers, all of the Shares (as
defined in Section 1(b) below). Each Seller agrees to
transfer such Seller’s Pro Rata Shares (as defined in
Section 1(b) below). In connection with such transfer,
each Seller will deliver the stock certificates evidencing the
Shares to be sold by such Seller to the Transfer Agent (as provided
in Section 2(a) , below). In exchange for the transfer
of the Shares, the Company will pay each Seller the Purchase Price
(as defined in Section 1(b) below) as calculated for
such Seller.
(b)
Definitions .
“
Allocation Percentage ” for each Seller shall be equal
to the percentage set forth opposite such Seller’s name on
Schedule I .
“ Per
Share Purchase Price ” for the Shares shall be equal to
the price per share of Common Stock paid by the Company for the
shares of Common Stock tendered by the holders of Common Stock in
the Tender Offer.
“ Pro
Rata Shares ” for each Seller shall be equal to such
Seller’s Allocation Percentage multiplied by the number of
Shares (rounded up or down to a whole number of shares as
determined by the Company such that the sum of the Pro Rata Shares
of all Sellers equals the Shares).
“
Purchase Price ” for each Seller shall be equal to the
product of (i) the Per Share Purchase Price multiplied by
(ii) such Seller’s Pro Rata Shares.
“
Shares ” shall mean the number of shares of Common
Stock (rounded to the nearest whole number of shares) equal to
(i) the difference between (x) the sum of the number of
shares of Common Stock owned of record by the Sellers, which sum is
set forth on Schedule I (as such schedule may be amended by
the Sellers in accordance with the terms of this Agreement) and
(y) (A) one-third (1/3) multiplied by (B) the
number of outstanding shares of Common Stock held of record by all
shareholders as of 9:00 a.m. on the business day following a
Triggering Completion of the Tender Offer, which amount of
outstanding shares of Common Stock will be set forth in a
certificate of the Transfer Agent, divided by (ii) two-thirds
(2/3).
“
Transfer Agent ” means the Company’s transfer
agent, American Stock Transfer and Trust Company.
“
Triggering Completion ” shall mean (i) the Tender
Offer has expired, (ii) the Company has received financing
sufficient to acquire the shares of Common Stock tendered pursuant
to the Tender Offer and (iii) the Company has purchased more
than 11,594,529 shares of Common Stock in the Tender Offer in
accordance with the terms thereof.
(c) The
Closing . Subject to the terms and conditions hereof, the
closing of the purchase and sale of the Shares (the “
Closing ”) will take place at the offices of
Ropes & Gray LLP, One International Place, Boston,
Massachusetts 02110, on the eleventh business day following the
expiration date of the Tender Offer, or at such later date or place
as the parties shall mutually agree.
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2. Deliveries
at Closing .
(a)
Sellers’ Deliveries . Each Seller shall transfer or
cause to be transferred to the Transfer Agent on behalf of the
Company the stock certificates representing the Shares, duly
endorsed in blank for transfer (or together with a stock power duly
endorsed in blank for such stock certificate).
(b)
Company’s Deliveries . The Company shall deliver or
cause to be delivered to each Seller: (i) the Purchase Price
for such Seller by check or wire transfer to an account designated
by such Seller, (ii) a copy, certified by the corporate
secretary of the Company, of the Board resolution of the Company
approving this Agreement and the repurchase of the Shares,
(iii) a certificate executed by the Chief Financial Officer of
the Company pursuant to Section 6(a)(iv) hereof and
(iv) if applicable, a stock certificate of the Company issued
in the name of each Seller representing a number of shares of
Common Stock equal to the difference between the number of shares
of Common Stock represented by the stock certificate or
certificates delivered by such Seller in accordance with
Section 2(a) above and the Seller’s Pro Rata
Shares.
3. Company
Representations . In repurchasing the Shares, the Company
acknowledges, represents and warrants to the Sellers
that:
(a)
Organization . The Company is a corporation duly
incorporated, validly existing and in good standing under the laws
of the State of Delaware. The Company has full and adequate right,
power, capacity and authority to enter into, execute, deliver and
perform this Agreement.
(b)
Authorization . This Agreement has been duly authorized by
the Company by vote of the Company’s independent directors,
has been duly executed and delivered by the Company and constitutes
the legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms.
(c)
Brokerage . The Company has not engaged any investment
banker, broker, or finder in connection with the repurchase of the
Shares hereunder and no broker’s or similar fee is payable by
the Company or any of its affiliates in connection with the
repurchase of the Shares hereunder.
(d) No
Violation . The repurchase of the Shares by the Company and the
Tender Offer will not conflict with, result in a breach or
violation of, or constitute a default under, any law applicable to
the Company or any of its subsidiaries or the charter documents of
the Company or any of its subsidiaries or the terms of any
indenture or other agreement or instrument to which the Company or
any of its subsidiaries is a party or bound, or any judgment, order
or decree applicable to the Company or any of its subsidiaries of
any court, regulatory body, administrative agency, governmental
body or arbitrator having jurisdiction over the Company or such
subsidiary.
(e) No
Consent . No consent, approval, authorization or order of any
court or governmental agency or body is required for the
consummation by the Company of the repurchase of the Shares
hereunder.
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(f) No Other
Representations or Warranties . Except for the express
representations and warranties of such Seller contained in this
Agreement, neither any Seller, nor any of its affiliates,
attorneys, accountants or financial and other advisors, has made
any representations or warranties to the Company.
4. Seller
Representations . Each Seller acknowledges, represents and
warrants to the Company, severally as to itself and not jointly or
as to any other Seller, that:
(a)
Organization . Such Seller is a corporation, limited
partnership, general partnership or limited company, as applicable,
validly existing under the laws of its jurisdiction of
organization. Such Seller has full and adequate right, power,
capacity and authority to enter into, execute, deliver and perform
this Agreement.
(b)
Authorization . This Agreement has been duly authorized,
executed and delivered by such Seller and constitutes the legal,
valid and binding obligation of such Seller, enforceable against
such Seller in accordance with its terms.
(c) Ownership
of Shares . Such Seller is the record and beneficial owner of
the shares of the Company’s Common Stock set forth opposite
such Seller’s name on Schedule I , and upon the
Closing will transfer to the Company, good and marketable title to
the Pro Rata Shares owned by such Seller, free and clear of any
liens, claims, security interests, restrictions, options or other
encumbrances of any kind. Such Seller has not granted any option of
any sort with respect to the Pro Rata Shares owned
