STOCK REPURCHASE AGREEMENTStock Repurchase Agreement |
|
|
|
You are currently viewing: This Stock Repurchase Agreement involves
DOMINOS INC | Bain Capital Fund VI, L.P | PEP Investment PTY Ltd. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
|
|
|
Search Stock Repurchase Agreement by:
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.
2
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.
3
(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






