Exhibit 10.1
SEPARATION
AGREEMENT
This Separation Agreement
(hereinafter referred to as this “Agreement”) is made
by Domino’s Pizza LLC, a Michigan limited liability company
(the “Company”) with Harry J. Silverman (the
“Executive”), as of the 22 nd day of December, 2005.
RECITALS
|
|
1.
|
The Executive
has decided to retire from his positions with the Company and its
Affiliates (as hereinafter defined), effective December 31,
2005.
|
|
|
2.
|
This Agreement
sets forth the terms upon which the Executive will cease to be
employed by the Company and its Affiliates.
|
AGREEMENT
NOW, THEREFORE, in consideration of
the covenants and agreements herein contained, the parties agree as
follows:
|
|
1.
|
Resignation
Date . The Executive
hereby resigns from all positions with the Company and its
Affiliates, effective December 31, 2005 (the “Effective
Date”). The Executive agrees that he is not authorized to act
for or on behalf of the Company or any Affiliate, or represent the
Company or any Affiliate, in any manner from and after the
Effective Date.
|
|
|
2.
|
Prior
Agreements. Effective as
of the Effective Date, the letter agreement, dated
December 14, 2004, between the Company and the Executive,
providing for the Executive’s engagement as a consultant to
the Company, and all other employment agreements and arrangements
between the Company and the Executive shall be terminated and have
no further force or effect, excluding only any existing agreement
between the Executive and the Company concerning confidentiality,
non-competition or the like and the Executive’s rights and
obligations, if any, and those of the Company with respect to the
Company’s securities, all of which shall remain in full force
and effect. As of the Effective Date and for all periods
thereafter, the terms and conditions of this Agreement shall set
forth and govern the rights and obligations between the Company and
the Executive.
|
- 1 -
|
|
3.
|
Cash
Payments . The Company
shall pay to the Executive $155,000 on June 30, 2006, and
$25,833.33 on the last day of each month for the period beginning
July 31, 2006 and running through the Final Payment Date (as
hereinafter defined), subject to applicable federal, state and
local taxes. In the event of the death of the Executive before the
Final Payment Date, the balance of such payments shall be paid to
Executive’s estate. For purposes of this Agreement, the
“Final Payment Date” means December 31, 2006, or,
if earlier, the date payments cease pursuant to Section 5.7
hereof.
|
|
|
4.
|
No Other
Compensation and Benefits . The Executive shall not be entitled to any
compensation or benefits or to participate in any employee benefit
plans, programs or arrangements of the Company or any Affiliate
after the Effective Date, except as otherwise provided herein or
pursuant to the terms of any employee benefit plan, program or
arrangement in which the Executive participates or as required by
law. In the event that the Executive elects continuation of health
coverage pursuant to Section 601 through 608 of the Employee
Retirement Income Security Act of 1974, as amended
(“COBRA”), at the conclusion of his employment,
however, the Company shall pay to the Executive an amount equal to
the monthly COBRA premiums for the period beginning January 1,
2006 and running through the Final Payment Date, subject to
applicable federal, state and local taxes, provided that the
Executive remains eligible for such continuation under COBRA, such
amount to be paid as follows: The monthly COBRA premiums for the
first six (6) months of such period shall be aggregated and
paid to the Executive on June 30, 2006 and the monthly
premiums for the remainder of such period shall be paid on the last
day of each month.
|
|
|
5.
|
Confidential
Information; Return of Property; Intellectual Property; and
Restricted Activities .
The Executive hereby represents and warrants to and agrees with the
Company as follows:
|
5.1 Confidential Information
. The Executive acknowledges that as an employee of the Company he
has had access to and may be in possession of Confidential
Information (as hereinafter defined). The Executive shall continue
to comply with the policies and procedures of the Company and its
Affiliates for protecting Confidential Information from and after
the Effective Date and shall never use or disclose to any Person
(except as required by applicable law) any Confidential Information
obtained by the Executive incident to his employment or other
association with the Company and its Affiliates.
5.2 Return of Property .
Promptly after the Effective Date, the Executive shall surrender to
the Company all property of the Company and its Affiliates then in
his possession and all property made available to him in connection
with his employment by the Company and its Affiliates, including,
without limitation, 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.
- 2 -
5.3 Intellectual Property .
The Executive acknowledges that all Intellectual Property is solely
the property of the Company and its Affiliates. The Executive
represents that he has fully disclosed all Intellectual Property to
the Company, and has assigned to the Company (or as otherwise
directed by the Company) his full right, title and interest in and
to all Intellectual Property.
5.4 Agreement Not to Compete With
the Company . During the 24-month period following the
Effective Date (the “Non-Competition Period”), the
Executive shall 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 being conducted or
being planned to be conducted by the Company or any of its
Affiliates at or prior to the Effective Date, 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 Effective Date
(a “Competitive Business,” defined below). For purposes
of this Agreement, “Competitive Business” means:
(i) any company or other entity engaged as a “quick
service restaurant” (“QSR”) which offers pizza
for sale; (ii) any QSR which is then contemplating entering
into the pizza business or adding pizza to its menu; (iii) any
entity which on the Effective Date 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 5.4.
5.5 Agreement Not to Solicit
Employees, Franchisees and Vendors . During the Non-Competition
Period, the Executive shall not, directly or indirectly,
(i) recruit, solicit or hire or otherwise seek to induce any
employees of the Company or any of its Affiliates to terminate
their employment or violate any agreement with or duty to the
Company or any of its Affiliates; or (ii) solicit or encourage
any franchisee or vendor of the Company or of any of its 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 its Affiliates.
5.6 Agreement Not to Make
Disparaging Comments . The Executive shall not, at any time,
make a
|
