EXHIBIT 10.6
DOMINO'S PIZZA, INC.
SENIOR EXECUTIVE DEFERRED BONUS PLAN
(EFFECTIVE DECEMBER 21, 1998)
1. PURPOSE AND EFFECTIVE DATE
The purpose of this Plan is to set forth the terms and conditions under
which certain senior executives will become entitled to an amount of deferred
bonus (the "Deferred Bonus Amount") in consideration for their past service to
the Company. This Plan is effective December 21, 1998. The Plan is intended to
be "a plan which is unfunded and is maintained by an employer primarily for the
purpose of providing deferred compensation for a select group of management or
highly compensated employees" within the meaning of sections 201(2), 301(a)(3),
401(a)(1) and 4021(b)(6) of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), and shall be administered in a manner consistent with that
intent.
2. DEFINITIONS
(a) "Beneficiary" means the person (which may include trusts and is not
limited to one person) designated by the Participant, in such manner as
prescribed by the Plan Administrator, who shall be entitled to receive payment
of the Participant's Deferred Bonus Account in the event of the Participant's
death. If no such designation is made, or if the designated person predeceases
the Participant, payment shall be made to the Participant's estate.
(b) "Change of Control" has the meaning set forth in the Stockholders
Agreement.
(c) "Code" means the Internal Revenue Code of 1986 as amended from time to
time.
(d) "Committee" means the Compensation Committee of the Board of Directors
of the Company or if no such committee has been designated, the Board.
(e) "Company" means Domino's Pizza, Inc.
(f) "Deferred Bonus Account" means the account described in Section 3.
(g) "Effective Date" means December 21, 1998.
(h) "Participant" means each of the following senior executives of the
Company: Pat Kelly; Stuart Mathis; Gary McCausland; Harry Silverman; and
Michael Soignet.
(i) "Plan" means the Domino's Pizza, Inc. Senior Executive Deferred Bonus
Plan as set forth herein and as from time to time amended.
(j) "Plan Administrator" means the Committee.
(k) "Qualified Public Offering" has the meaning set forth in the
Stockholders Agreement.
(l) "Senior Management Option Agreements" means the Class A Option
Agreements, Class L Option Agreements and Preferred Option Agreement, as
applicable, dated as of December 21, 1998 between TISM, Inc. and each of the
Participants.
(m) "Stockholders Agreement" means the Stockholders Agreement dated as of
December 21, 1998 among TISM, Inc. and its stockholders.
Other terms are defined as provided throughout this Plan.
3. DEFERRED BONUS ACCOUNT
The Company shall establish on its books a Deferred Bonus Account for each
Participant as of the Effective Date. The amount credited to each such Account
shall be the amount set forth on Schedule A hereto which shall be fully vested
as of the Effective Date, and shall not be adjusted for interest or otherwise,
except to reflect distributions made to a Participant or his or her Beneficiary.
4. DISTRIBUTIONS
The amount credited to a Participant's Deferred Bonus Account shall become
payable to the Participant (or the Participant's Beneficiary, in the event of
death) upon the earliest of the following to occur after the date hereof (each,
a "Payment Date"):
(a) Change of Control. A Change of Control.
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(b) Qualified Public Offering. A Qualified Public Offering.
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(c) Fixed Period. Ten years and one hundred and eighty (180) days after
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the date hereof.
(d) Cancellation or Forfeiture of Options. An exercise by TISM or such
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Participant of the call options or put options pursuant to Section 5 of the
Senior Management Option
Agreements between TISM and such Participant or the cancellation or forfeiture
of the Options in accordance with Section 5 of the Senior Management Option
Agreements.
5. FORM OF PAYMENT; TIMING
The Company shall pay, or cause one or more of its affiliates to pay, the
amount due to a Participant or Beneficiary hereunder in cash in a single lump
sum payment as soon as administratably practicable following a Payment Date with
respect to the Participant, which in no case shall be more than 30 days
following the Payment Date. The Participant's Deferred Bonus Account will be
reduced by the amount of the payment (including any amount under Section 9
below).
6. ADMINISTRATION OF THE PLAN
This Plan shall be administered by the Committee, which shall have full
discretion to administer and interpret the Plan in accordance with its terms in
all respects.
7. NATURE OF CLAIM FOR PAYMENTS
Except as herein provided, the Company shall not be required to set aside
or segregate any assets of any kind to meet any of its obligations hereunder,
and all obligations of the Company hereunder shall be reflected by book entries
only. The Participant shall have no rights on account of this Plan in or to any
specific assets of the Company. Any rights that the Participant may have on
account of this Plan shall be those of a general, unsecured creditor of the
Company.
8. RIGHTS ARE NON-ASSIGNABLE
Other than by will or the laws of descent and distribution, neither the
Participant nor any Beneficiary nor any other person shall have any right to
assign or otherwise alienate the right to receive payments hereunder, in whole
or in part, which payments are expressly agreed to be non-assignable and non-
transferable, whether voluntarily or involuntarily.
9. TAXES
If the Company is required to withhold taxes from payments under the Plan
pursuant to federal, state or local law, the amounts payable to Participants
shall be reduced by the tax so withheld.
10. TERMINATION; AMENDMENTS
The Plan shall continue in effect until terminated by action of the
Company's Board of Directors. Upon termination of the Plan, no individual not a
Participant as of the date of
termination shall become a Participant thereafter. If, at the time of
termination, there is any Participant or Beneficiary of a Participant who is or
will be entitled to a payment hereunder, the Plan Administrator shall elect
either (a) to make payments to such Participants or beneficiaries in the normal
course as if the Plan had continued in effect, or (b) to pay to such
Participants or beneficiaries the balance in the Participant's Deferred Bonus
Account in a single lump-sum payment.
The Committee and Participants entitled to a majority of the aggregate
Deferred Bonus Accounts may at any time and from time to time amend the Plan in
any manner; provided that, subject to Section 12, without the consent of a
Participant, no such action shall materially and adversely affect the rights of
such Participant with respect to any rights to payment of amounts credited to
such Participant's Deferred Account, including by reducing the amounts
previously credited to the Deferred Bonus Account of such Participant or
otherwise.
11. EMPLOYMENT RIGHTS
Nothing in this Plan shall give any Participant any right to be employed or
to continue employment by the Company.
12. CHANGE IN OR INTERPRETATION OF LAW
In the event of any change in or interpretation of law which, in the
opinion of counsel acceptable to the Plan Administrator, would cause the Plan to
be other than an unfunded plan maintained primarily for the purpose of providing
deferred compensation for a select group of management or highly compensated
employees (such an unfunded plan being hereinafter referred to as an "exempt
plan") and to be subject to the funding requirements of Title I of ERISA, the
Plan Administrator may terminate the participation of such Participants as may
be necessary to preserve or restore the Plan's status as an exempt plan and may
accelerate payment of their Deferred Bonus Accounts or take such other action as
may be necessary to preserve or restore such status.
13. GOVERNING LAW
The validity, construction and effect of the Plan and any rules and
regulations relating to the Plan shall be determined in accordance with the laws
of the State of Michigan.
14. SUCCESSORS
This Plan shall inure to the benefit of and be binding upon the Participant
and the Company and their respective personal or legal representatives,
executors, administrators, and successors, including successors to all or
substantially all of the stock, business and/or assets, of the Company.
15. CONSENT TO JURISDICTION
Each party to this Agreement, by its execution hereof, (x) hereby
irrevocably submits to the exclusive jurisdiction of the state courts of the
State of Michigan sitting in the County of Washtenaw or the United States
District Court for the Eastern District of Michigan for the purpose of any
action, claim, cause of action or suit (in contract, tort or otherwise),
inquiry, proceeding or investigation arising out of or based upon this Agreement
or relating to the subject matter hereof, (y) hereby waives to the extent not
prohibited by applicable law, and agrees not to assert, and agrees not to allow
any of its subsidiaries to assert, by way of motion, as a defense or otherwise,
in any such action, any claim that it is not subject personally to the
jurisdiction of the above-named courts, that its property is exempt or immune
from attachment or execution, that any such proceeding brought in one of the
above-named courts is improper, or that this Agreement or the subject matter
hereof or thereof may not be enforced in or by such court and (z) hereby agrees
not to commence or maintain any action, claim, cause of action or suit (in
contract, tort or otherwise), inquiry, proceeding or investigation arising out
of or based upon this Agreement or relating to the subject matter hereof or
thereof other than before one of the above-named courts nor to make any motion
or take any other action seeking or intending to cause the transfer or removal
of any such action, claim, cause of action or suit (in contract, tort or
otherwise), inquiry, proceeding or investigation to any court other than one of
the above-named courts whether on the grounds of inconvenient forum or
otherwise. Notwithstanding the foregoing, to the extent that any party hereto is
or becomes a party in any litigation in connection with which it may assert
indemnification rights set forth in this agreement, the court in which such
litigation is being heard shall be deemed to be included in clause (x) above.
Each party hereto 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 the Stockholders Agreement is reasonably calculated to give actual
notice.
16. WAIVER OF JURY TRIAL
TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH CANNOT BE WAIVED, EACH
PARTICIPANT HERETO HEREBY WAIVES AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER
AS PLAINTIFF, DEFENDANT OR OTHERWISE) ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN
RESPECT OF ANY ISSUE OR ACTION, CLAIM, CAUSE OF ACTION OR SUIT (IN CONTRACT,
TORT OR OTHERWISE), INQUIRY, PROCEEDING OR INVESTIGATION ARISING OUT OF OR BASED
UPON THIS AGREEMENT OR THE SUBJECT MATTER HEREOF OR IN ANY WAY CONNECTED WITH OR
RELATED OR INCIDENTAL TO THE TRANSACTIONS CONTEMPLATED HEREBY, IN EACH CASE
WHETHER NOW EXISTING OR HEREAFTER ARISING. THE COMPANY AND EACH PARTICIPANT
ACKNOWLEDGES THAT IT HAS BEEN INFORMED THAT THIS SECTION 16 CONSTITUTES A
MATERIAL INDUCEMENT UPON WHICH THEY ARE RELYING AND WILL RELY IN ENTERING INTO
THIS AGREEMENT. THE COMPANY AND EACH
PARTICIPANT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 16 WITH
ANY COURT AS WRITTEN EVIDENCE OF CONSENT TO THE WAIVER OF THE RIGHT TO TRIAL BY
JURY.
17. ATTORNEYS FEES
In the event of a dispute by the Company, the Participant or others as to
the validity or enforceability of, or liability under, any provision of this
Plan, the Company shall reimburse the Participant for all legal fees and
expenses incurred by him or her in connection with such dispute to the extent
the Participant shall prevail in such dispute.
DOMINO'S PIZZA, INC.
By: /s/ Thomas S. Monaghan
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Name: Thomas S. Monaghan
Title: President
Date: 12/21/1998
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SCHEDULE A
DEFERRED BONUS ACCOUNT CREDITS
Name of Participant Deferred Bonus Amount
- ------------------- ---------------------
Pat Kelly $750,000
SCHEDULE A
DEFERRED BONUS ACCOUNT CREDITS
Name of Participant Deferred Bonus Amount
- ------------------- ---------------------
Stuart Mathis $725,000
SCHEDULE A
DEFERRED BONUS ACCOUNT CREDITS
Name of Participant Deferred Bonus Amount
- ------------------- ---------------------
Gary McCausland $550,000
SCHEDULE A
DEFERRED BONUS ACCOUNT CREDITS
Name of Participant Deferred Bonus Amount
- ------------------- ---------------------
Harry Silverman $500,000
SCHEDULE A
DEFERRED BONUS ACCOUNT CREDITS
Name of Participant Deferred Bonus Amount
- ------------------- ---------------------
Michael Soignet $500,000