Table of Contents
| QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
| TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
| (State or Other Jurisdiction of Incorporation or Organization) |
(I.R.S. Employer Identification No.) | |
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(Address of Principal Executive Offices) |
(Zip Code) | |
| Title of Each Class |
Trading Symbol |
Name of Each Exchange on Which Registered | ||
Domino’s Pizza, Inc. |
Rule 405 of
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Accelerated filer | ☐ | ||||
Non-accelerated filer |
☐ | Smaller reporting company | ||||
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Emerging growth company |
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Page No. |
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PART I. |
FINANCIAL INFORMATION |
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Item 1. |
3 |
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3 |
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4 |
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5 |
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6 |
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7 |
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Item 2. |
16 |
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Item 3. |
27 |
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Item 4. |
27 |
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PART II. |
OTHER INFORMATION |
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Item 1. |
28 |
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Item 1A. |
28 |
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Item 2. |
28 |
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Item 3. |
29 |
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Item 4. |
29 |
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Item 5. |
29 |
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Item 6. |
29 |
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30 |
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| (In thousands) | June 20, 2021 |
January 3, 2021 (1) |
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Assets |
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Current assets: |
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Cash and cash equivalents |
$ | $ | ||||||
Restricted cash and cash equivalents |
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Accounts receivable, net |
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Inventories |
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Prepaid expenses and other |
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Advertising fund assets, restricted |
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Total current assets |
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Property, plant and equipment: |
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Land and buildings |
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Leasehold and other improvements |
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Equipment |
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Construction in progress |
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Accumulated depreciation and amortization |
( |
) | ( |
) | ||||
Property, plant and equipment, net |
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Other assets: |
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Operating lease right-of-use |
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Goodwill |
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Capitalized software, net |
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Investments (Note 6) |
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Other assets |
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Deferred income taxes |
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Total other assets |
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Total assets |
$ | $ | ||||||
Liabilities and stockholders’ deficit |
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Current liabilities: |
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Current portion of long-term debt |
$ | $ | ||||||
Accounts payable |
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Operating lease liabilities |
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Insurance reserves |
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Dividends payable |
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Advertising fund liabilities |
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Other accrued liabilities |
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Total current liabilities |
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Long-term liabilities: |
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Long-term debt, less current portion |
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Operating lease liabilities |
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Insurance reserves |
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Other accrued liabilities |
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Deferred income taxes |
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Total long-term liabilities |
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Stockholders’ deficit: |
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Common stock |
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Additional paid-in capital |
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Retained deficit |
( |
) | ( |
) | ||||
Accumulated other comprehensive loss |
( |
) | ( |
) | ||||
Total stockholders’ deficit |
( |
) | ( |
) | ||||
Total liabilities and stockholders’ deficit |
$ | $ | ||||||
| (1) | The balance sheet at January 3, 2021 has been derived from the audited consolidated financial statements at that date but does not include all of the information and footnotes required by accounting principles generally accepted in the United States for complete financial statements. |
Fiscal Quarter Ended |
Two Fiscal Quarters Ended |
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June 20, |
June 14, |
June 20, |
June 14, |
|||||||||||||
| (In thousands, except per share data) | 2021 |
2020 |
2021 |
2020 |
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Revenues: |
||||||||||||||||
U.S. Company-owned stores |
$ | $ | $ | $ | ||||||||||||
U.S. franchise royalties and fees |
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Supply chain |
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International franchise royalties and fees |
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U.S. franchise advertising |
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Total revenues |
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Cost of sales: |
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U.S. Company-owned stores |
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Supply chain |
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Total cost of sales |
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Operating margin |
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General and administrative |
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U.S. franchise advertising |
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Income from operations |
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Other income |
— | — | — | |||||||||||||
Interest income |
||||||||||||||||
Interest expense |
( |
) | ( |
) | ( |
) | ( |
) | ||||||||
Income before provision for income taxes |
||||||||||||||||
Provision for income taxes |
||||||||||||||||
Net income |
$ | $ | $ | $ | ||||||||||||
Earnings per share: |
||||||||||||||||
Common stock - basic |
$ | $ | $ | $ | ||||||||||||
Common stock - diluted |
||||||||||||||||
Fiscal Quarter Ended |
Two Fiscal Quarters Ended |
|||||||||||||||
June 20, |
June 14, |
June 20, |
June 14, |
|||||||||||||
| (In thousands) | 2021 |
2020 |
2021 |
2020 |
||||||||||||
Net income |
$ | $ | $ | $ | ||||||||||||
Currency translation adjustment |
( |
) | ||||||||||||||
Comprehensive income |
$ | $ | $ | $ | ||||||||||||
Two Fiscal Quarters Ended |
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June 20, |
June 14, |
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| (In thousands) | 2021 |
2020 |
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Cash flows from operating activities: |
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Net income |
$ | $ | ||||||
Adjustments to reconcile net income to net cash provided by operating activities: |
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Depreciation and amortization |
||||||||
Loss on sale/disposal of assets |
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Amortization of debt issuance costs |
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Provision for deferred income taxes |
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Non-cash equity-based compensation expense |
||||||||
Excess tax benefits from equity-based compensation |
( |
) | ( |
) | ||||
Provision for losses on accounts and notes receivable |
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Unrealized gain on investments |
( |
) | — | |||||
Changes in operating assets and liabilities |
( |
) | ( |
) | ||||
Changes in advertising fund assets and liabilities, restricted |
( |
) | ||||||
Net cash provided by operating activities |
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Cash flows from investing activities: |
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Capital expenditures |
( |
) | ( |
) | ||||
Purchase of investments (Note 6) |
( |
) | ( |
) | ||||
Other |
( |
) | ||||||
Net cash used in investing activities |
( |
) | ( |
) | ||||
Cash flows from financing activities: |
||||||||
Proceeds from issuance of long-term debt |
||||||||
Repayments of long-term debt and finance lease obligations |
( |
) | ( |
) | ||||
Proceeds from exercise of stock options |
||||||||
Purchases of common stock |
( |
) | ( |
) | ||||
Tax payments for restricted stock upon vesting |
( |
) | ( |
) | ||||
Payments of common stock dividends and equivalents |
( |
) | ( |
) | ||||
Cash paid for financing costs |
( |
) | — | |||||
Other |
( |
) | — | |||||
Net cash used in financing activities |
( |
) | ( |
) | ||||
Effect of exchange rate changes on cash |
( |
) | ||||||
Change in cash and cash equivalents, restricted cash and cash equivalents |
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Cash and cash equivalents, beginning of period |
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Restricted cash and cash equivalents, beginning of period |
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Cash and cash equivalents included in advertising fund assets, restricted, beginning of period |
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Cash and cash equivalents, restricted cash and cash equivalents and cash and cash equivalents included in advertising fund assets, restricted, beginning of period |
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Cash and cash equivalents, end of period |
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Restricted cash and cash equivalents, end of period |
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Cash and cash equivalents included in advertising fund assets, restricted, end of period |
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Cash and cash equivalents, restricted cash and cash equivalents and cash and cash equivalents included in advertising fund assets, restricted, end of period |
$ | $ | ||||||
Fiscal Quarters Ended June 20, 2021 and June 14, 2020 |
||||||||||||||||||||||||
U.S. Stores |
Supply Chain |
International Franchise |
Intersegment Revenues |
Other |
Total |
|||||||||||||||||||
Revenues |
||||||||||||||||||||||||
2021 |
$ | $ | $ | $ | ( |
) | $ | — | $ | |||||||||||||||
2020 |
( |
) | — | |||||||||||||||||||||
Segment Income |
||||||||||||||||||||||||
2021 |
$ | $ | $ | N/A | $ | ( |
) | $ | ||||||||||||||||
2020 |
N/A | ( |
) | |||||||||||||||||||||
Two Fiscal Quarters Ended June 20, 2021 and June 14, 2020 |
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U.S. Stores |
Supply Chain |
International Franchise |
Intersegment Revenues |
Other |
Total |
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Revenues |
||||||||||||||||||||||||
2021 |
$ | $ | $ | $ | ( |
) | $ | — | $ | |||||||||||||||
2020 |
( |
) | — | |||||||||||||||||||||
Segment Income |
||||||||||||||||||||||||
2021 |
$ | $ | $ | N/A | $ | ( |
) | $ | ||||||||||||||||
2020 |
N/A | ( |
) | |||||||||||||||||||||
Fiscal Quarter Ended |
Two Fiscal Quarters Ended |
|||||||||||||||
June 20, 2021 |
June 14, 2020 |
June 20, 2021 |
June 14 ,202 0 |
|||||||||||||
Total Segment Income |
$ | $ | $ | $ | ||||||||||||
Depreciation and amortization |
( |
) | ( |
) | ( |
) | ( |
) | ||||||||
Loss on sale/disposal of assets |
( |
) | ( |
) | ( |
) | ( |
) | ||||||||
Non-cash equity-based compensation expense |
( |
) | ( |
) | ( |
) | ( |
) | ||||||||
Recapitalization-related expenses |
( |
) | — | ( |
) | — | ||||||||||
Income from operations |
||||||||||||||||
Other income |
— | — | — | |||||||||||||
Interest income |
||||||||||||||||
Interest expense |
( |
) | ( |
) | ( |
) | ( |
) | ||||||||
Income before provision for income taxes |
$ | $ | $ | $ | ||||||||||||
Fiscal Quarter Ended |
Two Fiscal Quarters Ended |
|||||||||||||||
June 20, 2021 |
June 14, 2020 |
June 20, 2021 |
June 14, 2020 |
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Net income available to common stockholders - basic and diluted |
$ | $ | $ | $ | ||||||||||||
Basic weighted average number of shares |
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Earnings per share – basic |
$ | $ | $ | $ | ||||||||||||
Diluted weighted average number of shares |
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Earnings per share – diluted |
$ | $ | $ | $ | ||||||||||||
Common Stock |
Additional Paid-in Capital |
Retained Deficit |
Accumulated Other Comprehensive Loss |
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Shares |
Amount |
|||||||||||||||||||
Balance at March 28, 2021 |
$ | $ | $ | ( |
) | $ | ( |
) | ||||||||||||
Net income |
— | — | — | — | ||||||||||||||||
Dividends declared on common stock and equivalents ($ |
— | — | — | ( |
) | — | ||||||||||||||
Issuance and cancellation of stock awards, net |
— | — | — | — | ||||||||||||||||
Tax payments for restricted stock upon vesting |
( |
) | — | ( |
) | — | — | |||||||||||||
Purchases of common stock |
( |
) | ( |
) | ( |
) | ( |
) | — | |||||||||||
Exercise of stock options |
— | — | ||||||||||||||||||
Non-cash equity-based compensation expense |
— | — | — | — | ||||||||||||||||
Other |
— | — | ( |
) | — | — | ||||||||||||||
Currency translation adjustment |
— | — | — | — | ||||||||||||||||
Balance at June 20, 2021 |
$ | $ | $ | ( |
) | $ | ( |
) | ||||||||||||
Accumulated |
||||||||||||||||||||
Common Stock |
Additional |
Other |
||||||||||||||||||
Paid-in |
Retained |
Comprehensive |
||||||||||||||||||
Shares |
Amount |
Capital |
Deficit |
Loss |
||||||||||||||||
Balance at January 3, 2021 |
$ | $ | $ | ( |
) | $ | ( |
) | ||||||||||||
Net income |
— | — | — | — | ||||||||||||||||
Dividends declared on common stock and equivalents ($ |
— | — | — | ( |
) | — | ||||||||||||||
Issuance and cancellation of stock awards, net |
( |
) | — | — | — | — | ||||||||||||||
Tax payments for restricted stock upon vesting |
( |
) | — | ( |
) | — | — | |||||||||||||
Purchases of common stock |
( |
) | ( |
) | ( |
) | ( |
) | — | |||||||||||
Exercise of stock options |
— | — | ||||||||||||||||||
Non-cash equity-based compensation expense |
— | — | — | — | ||||||||||||||||
Other |
— | — | ( |
) | — | — | ||||||||||||||
Currency translation adjustment |
— | — | — | — | ||||||||||||||||
Balance at June 20, 2021 |
$ | $ | $ | ( |
) | $ | ( |
) | ||||||||||||
Accumulated |
||||||||||||||||||||
Common Stock |
Additional |
Other |
||||||||||||||||||
Paid-in |
Retained |
Comprehensive |
||||||||||||||||||
Shares |
Amount |
Capital |
Deficit |
Loss |
||||||||||||||||
Balance at March 22, 2020 |
$ | $ | $ | ( |
) | $ | ( |
) | ||||||||||||
Net income |
— | — | — | — | ||||||||||||||||
Dividends declared on common stock and equivalents ($ |
— | — | — | ( |
) | — | ||||||||||||||
Issuance and cancellation of stock awards, net |
— | — | — | — | ||||||||||||||||
Tax payments for restricted stock upon vesting |
( |
) | — | ( |
) | — | — | |||||||||||||
Exercise of stock options |
— | — | ||||||||||||||||||
Non-cash equity-based compensation expense |
— | — | — | — | ||||||||||||||||
Currency translation adjustment |
— | — | — | — | ||||||||||||||||
Balance at June 14, 2020 |
$ | $ | $ | ( |
) | $ | ( |
) | ||||||||||||
Accumulated |
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Common Stock |
Additional |
Other |
||||||||||||||||||
Paid-in |
Retained |
Comprehensive |
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Shares |
Amount |
Capital |
Deficit |
Loss |
||||||||||||||||
Balance at December 29, 2019 |
$ | $ | $ | ( |
) | $ | ( |
) | ||||||||||||
Net income |
— | — | — | — | ||||||||||||||||
Dividends declared on common stock and equivalents ($ |
— | — | — | ( |
) | — | ||||||||||||||
Issuance and cancellation of stock awards, net |
— | — | — | — | ||||||||||||||||
Tax payments for restricted stock upon vesting |
( |
) | — | ( |
) | — | — | |||||||||||||
Purchases of common stock |
( |
) | ( |
) | ( |
) | ( |
) | — |
|||||||||||
Exercise of stock options |
— | — | ||||||||||||||||||
Non-cash equity-based compensation expense |
— | — | — | — | ||||||||||||||||
Adoption of credit losses standard |
— |
— |
— |
— |
||||||||||||||||
Currency translation adjustment |
— | — | — | — | ( |
) | ||||||||||||||
Balance at June 14, 2020 |
$ | $ | $ | ( |
) | $ | ( |
) | ||||||||||||
At June 20, 2021 |
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Fair Value Estimated Using |
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Carrying |
Level 1 |
Level 2 |
Level 3 |
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Amount |
Inputs |
Inputs |
Inputs |
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| Cash equivalents |
$ | $ | $ | — | $ | — | ||||||||||
| Restricted cash equivalents |
— | — | ||||||||||||||
| Investments in marketable securities |
— | — | ||||||||||||||
| Advertising fund cash equivalents, restricted |
— | — | ||||||||||||||
| Investments |
— | — | ||||||||||||||
At January 3, 2021 |
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Fair Value Estimated Using |
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Carrying |
Level 1 |
Level 2 |
Level 3 |
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Amount |
Inputs |
Inputs |
Inputs |
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| Cash equivalents |
$ | $ | $ | — | $ | — | ||||||||||
| Restricted cash equivalents |
— | — | ||||||||||||||
| Investments in marketable securities |
— | — | ||||||||||||||
| Advertising fund cash equivalents, restricted |
— | — | ||||||||||||||
| Investments |
— | — | ||||||||||||||
Two Fiscal Quarters of 2021 |
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Carrying Amount |
Carrying Amount |
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January 3, |
Unrealized |
June 20, |
||||||||||||||
2021 |
Purchases |
Gain |
2021 |
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| Investments |
$ | $ | $ | $ | ||||||||||||
June 20, 2021 |
January 3, 2021 |
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Principal Amount |
Fair Value |
Principal Amount |
Fair Value |
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| 2015 Ten-Year Fixed Rate Notes |
$ | $ | $ | $ | ||||||||||||
| 2017 Five-Year Fixed Rate Notes |
— | — | ||||||||||||||
| 2017 Ten-Year Fixed Rate Notes |
||||||||||||||||
| 2017 Five-Year Floating Rate Notes |
— | — | ||||||||||||||
| 2018 7.5-Year Fixed Rate Notes |
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| 2018 9.25-Year Fixed Rate Notes |
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| 2019 Ten-Year Fixed Rate Notes |
||||||||||||||||
| 2021 7.5-Year Fixed Rate Notes |
— | — | ||||||||||||||
| 2021 Ten-Year Fixed Rate Notes |
— | — | ||||||||||||||
Two Fiscal Quarters Ended |
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June 20, |
June 14, |
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2021 |
2020 |
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| Deferred franchise fees and deferred development fees at beginning of period |
$ | $ | ||||||
| Revenue recognized during the period |
( |
) | ( |
) | ||||
| New deferrals due to cash received and other |
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|
|
|
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| Deferred franchise fees and deferred development fees at end of period |
$ | $ | ||||||
| |
|
|
|
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Fiscal Quarter Ended |
Two Fiscal Quarters Ended |
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June 20, 2021 |
June 14, 2020 |
June 20, 2021 |
June 14, 2020 |
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| Operating lease cost |
$ | $ | $ | $ | ||||||||||||
| Finance lease cost: |
||||||||||||||||
| Amortization of right-of-use |
||||||||||||||||
| Interest on lease liabilities |
||||||||||||||||
| |
|
|
|
|
|
|
|
|||||||||
| Total finance lease cost |
$ | $ | $ | $ | ||||||||||||
| |
|
|
|
|
|
|
|
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June 20, 2021 |
January 3, 2021 |
|||||||
| Land and buildings |
$ | $ | ||||||
| Accumulated depreciation and amortization |
( |
) | ( |
) | ||||
| |
|
|
|
|||||
| Finance lease assets, net |
$ | $ | ||||||
| |
|
|
|
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| |
|
|
|
|
|
|
|
|
| Current portion of long-term debt |
$ | $ | ||||||
| Long-term debt, less current portion |
||||||||
| |
|
|
|
|||||
| Total principal payable on finance leases |
$ | $ | ||||||
| |
|
|
|
|||||
June 20, 2021 |
January 3, 2021 |
|||||||||||||||
Operating Leases |
Finance Leases |
Operating Leases |
Finance Leases |
|||||||||||||
| Weighted average remaining lease term |
||||||||||||||||
| Weighted average discount rate |
% | % | % | % | ||||||||||||
Fiscal Quarter Ended |
Two Fiscal Quarters Ended |
|||||||||||||||
June 20, 2021 |
June 14, 2020 |
June 20, 2021 |
June 14, 2020 |
|||||||||||||
| Cash paid for amounts included in the measurement of lease liabilities: |
||||||||||||||||
| Operating cash flows from operating leases |
$ | $ | $ | $ | ||||||||||||
| Operating cash flows from finance leases |
||||||||||||||||
| Financing cash flows from finance leases |
||||||||||||||||
| Right-of-use |
||||||||||||||||
| Operating leases |
||||||||||||||||
| Finance leases |
||||||||||||||||
Operating Leases |
Finance Leases |
|||||||
| 2021 |
$ | $ | ||||||
| 2022 |
||||||||
| 2023 |
||||||||
| 2024 |
||||||||
| 2025 |
||||||||
| Thereafter |
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| |
|
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|
|||||
| Total future minimum rental commitments |
||||||||
| Less – amounts representing interest |
( |
) | ( |
) | ||||
| |
|
|
|
|||||
| Total lease liabilities |
$ | $ | ||||||
| |
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|
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• |
Global retail sales, excluding foreign currency impact (which includes total retail sales at Company-owned and franchised stores worldwide), increased 17.1% as compared to 2020. U.S. retail sales increased 7.4% and international retail sales, excluding foreign currency impact, increased 29.5% as compared to 2020. |
• |
Same store sales increased 3.5% in our U.S. stores and increased 13.9% in our international stores. |
• |
Revenues increased 12.2%. |
• |
Income from operations increased 16.7%. |
• |
Net income decreased 1.7%. |
• |
Diluted earnings per share increased 2.3%. |
• |
Global retail sales, excluding foreign currency impact, increased 15.6% as compared to 2020. U.S. retail sales increased 11.1% and international retail sales, excluding foreign currency impact, increased 20.6% as compared to 2020. |
• |
Same store sales increased 8.1% in our U.S. stores and increased 12.8% in our international stores. |
• |
Revenues increased 12.4%. |
• |
Income from operations increased 18.2%. |
• |
Net income decreased 2.5%. |
• |
Diluted earnings per share increased 0.2%. |
Second Quarter of 2021 |
Second Quarter of 2020 |
Two Fiscal Quarters of 2021 |
Two Fiscal Quarters of 2020 |
|||||||||||||
| U.S. stores |
+7.4 | % | +19.9 | % | +11.1 | % | +12.4 | % | ||||||||
| International stores (excluding foreign currency impact) |
+29.5 | % | (3.4 | )% | +20.6 | % | +1.8 | % | ||||||||
| |
|
|
|
|
|
|
|
|||||||||
| Total (excluding foreign currency impact) |
+17.1 | % | +8.1 | % | +15.6 | % | +7.0 | % | ||||||||
Second Quarter of 2021 |
Second Quarter of 2020 |
Two Fiscal Quarters of 2021 |
Two Fiscal Quarters of 2020 |
|||||||||||||
| U.S. Company-owned stores |
(2.6 | )% | +16.9 | % | +1.6 | % | +10.4 | % | ||||||||
| U.S. franchise stores |
+3.9 | % | +16.0 | % | +8.5 | % | +8.7 | % | ||||||||
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|||||||||
| U.S. stores |
+3.5 | % | +16.1 | % | +8.1 | % | +8.8 | % | ||||||||
| International stores (excluding foreign currency impact) |
+13.9 | % | +1.3 | % | +12.8 | % | +1.4 | % | ||||||||
U.S. Company- owned Stores |
U.S. Franchise Stores |
Total U.S. Stores |
International Stores |
Total |
||||||||||||||||
| Store count at March 28, 2021 |
364 | 6,027 | 6,391 | 11,428 | 17,819 | |||||||||||||||
| Openings |
2 | 37 | 39 | 217 | 256 | |||||||||||||||
| Closings (1) |
— | (4 | ) | (4 | ) | (14 | ) | (18 | ) | |||||||||||
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|||||||||||
| Store count at June 20, 2021 |
366 | 6,060 | 6,426 | 11,631 | 18,057 | |||||||||||||||
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|||||||||||
| Second quarter 2021 net store growth |
2 | 33 | 35 | 203 | 238 | |||||||||||||||
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|
|||||||||||
| Trailing four quarters net store growth |
20 | 211 | 231 | 653 | 884 | |||||||||||||||
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|||||||||||
| (1) | Temporary store closures are not treated as store closures and affected stores are included in the ending store count. Based on information reported to us by our master franchisees, we estimate that as of June 20, 2021, there were fewer than 175 international stores temporarily closed. |
Second Quarter of 2021 |
Second Quarter of 2020 |
Two Fiscal Quarters of 2021 |
Two Fiscal Quarters of 2020 |
|||||||||||||||||||||||||||||
| U.S. Company-owned stores |
$ | 116.6 | $ | 114.2 | $ | 229.3 | $ | 216.6 | ||||||||||||||||||||||||
| U.S. franchise royalties and fees |
126.8 | 113.1 | 251.3 | 217.8 | ||||||||||||||||||||||||||||
| Supply chain |
603.0 | 539.1 | 1,171.3 | 1,051.8 | ||||||||||||||||||||||||||||
| International franchise royalties and fees |
69.7 | 48.1 | 136.5 | 105.6 | ||||||||||||||||||||||||||||
| U.S. franchise advertising |
116.3 | 105.4 | 227.7 | 201.3 | ||||||||||||||||||||||||||||
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|
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|
|||||||||||||||||
| Total revenues |
1,032.5 | 100.0 | % | 920.0 | 100.0 | % | 2,016.2 | 100.0 | % | 1,793.1 | 100.0 | % | ||||||||||||||||||||
| U.S. Company-owned stores |
88.0 | 87.8 | 173.8 | 167.2 | ||||||||||||||||||||||||||||
| Supply chain |
536.8 | 475.1 | 1,045.6 | 928.7 | ||||||||||||||||||||||||||||
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
| Total cost of sales |
624.8 | 60.5 | % | 562.9 | 61.2 | % | 1,219.3 | 60.5 | % | 1,095.9 | 61.1 | % | ||||||||||||||||||||
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
| Operating margin |
407.7 | 39.5 | % | 357.1 | 38.8 | % | 796.8 | 39.5 | % | 697.2 | 38.9 | % | ||||||||||||||||||||
| |
|
|
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|
|
|
|||||||||||||||||
| General and administrative |
100.4 | 9.7 | % | 88.1 | 9.5 | % | 191.7 | 9.5 | % | 176.6 | 9.9 | % | ||||||||||||||||||||
| U.S. franchise advertising |
116.3 | 11.3 | % | 105.4 | 11.5 | % | 227.7 | 11.3 | % | 201.3 | 11.2 | % | ||||||||||||||||||||
| |
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|
|
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|
|
|||||||||||||||||
| Income from operations |
190.9 | 18.5 | % | 163.6 | 17.8 | % | 377.4 | 18.7 | % | 319.4 | 17.8 | % | ||||||||||||||||||||
| Other income |
— | 0.0 | % | — | 0.0 | % | 2.5 | 0.1 | % | — | 0.0 | % | ||||||||||||||||||||
| Interest expense, net |
(45.8 | ) | (4.4 | )% | (39.1 | ) | (4.3 | )% | (85.2 | ) | (4.2 | )% | (77.6 | ) | (4.3 | )% | ||||||||||||||||
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
| Income before provision for income taxes |
145.1 | 14.1 | % | 124.5 | 13.5 | % | 294.7 | 14.6 | % | 241.8 | 13.5 | % | ||||||||||||||||||||
| Provision for income taxes |
28.5 | 2.8 | % | 5.8 | 0.6 | % | 60.4 | 3.0 | % | 1.5 | 0.1 | % | ||||||||||||||||||||
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
| Net income |
$ | 116.6 | 11.3 | % | $ | 118.7 | 12.9 | % | $ | 234.4 | 11.6 | % | $ | 240.3 | 13.4 | % | ||||||||||||||||
| |
|
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|
|||||||||||||||||
Second Quarter of 2021 |
Second Quarter of 2020 |
Two Fiscal Quarters of 2021 |
Two Fiscal Quarters of 2020 |
|||||||||||||||||||||||||||||
| U.S. Company-owned stores |
$ | 116.6 | 11.3 | % | $ | 114.2 | 12.4 | % | $ | 229.3 | 11.3 | % | $ | 216.6 | 12.1 | % | ||||||||||||||||
| U.S. franchise royalties and fees |
126.8 | 12.3 | % | 113.1 | 12.3 | % | 251.3 | 12.5 | % | 217.8 | 12.1 | % | ||||||||||||||||||||
| Supply chain |
603.0 | 58.4 | % | 539.1 | 58.6 | % | 1,171.3 | 58.1 | % | 1,051.8 | 58.7 | % | ||||||||||||||||||||
| International franchise royalties and fees |
69.7 | 6.7 | % | 48.1 | 5.2 | % | 136.5 | 6.8 | % | 105.6 | 5.9 | % | ||||||||||||||||||||
| U.S. franchise advertising |
116.3 | 11.3 | % | 105.4 | 11.5 | % | 227.7 | 11.3 | % | 201.3 | 11.2 | % | ||||||||||||||||||||
| |
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|||||||||||||||||
| Total revenues |
$ | 1,032.5 | 100.0 | % | $ | 920.0 | 100.0 | % | $ | 2,016.2 | 100.0 | % | $ | 1,793.1 | 100.0 | % | ||||||||||||||||
| |
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|
|
|||||||||||||||||
Second Quarter of 2021 |
Second Quarter of 2020 |
Two Fiscal Quarters of 2021 |
Two Fiscal Quarters of 2020 |
|||||||||||||||||||||||||||||
| U.S. Company-owned stores |
$ | 116.6 | 32.4 | % | $ | 114.2 | 34.3 | % | $ | 229.3 | 32.4 | % | $ | 216.6 | 34.1 | % | ||||||||||||||||
| U.S. franchise royalties and fees |
126.8 | 35.3 | % | 113.1 | 34.0 | % | 251.3 | 35.5 | % | 217.8 | 34.2 | % | ||||||||||||||||||||
| U.S. franchise advertising |
116.3 | 32.3 | % | 105.4 | 31.7 | % | 227.7 | 32.1 | % | 201.3 | 31.7 | % | ||||||||||||||||||||
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|
|||||||||||||||||
| U.S. stores |
$ | 359.8 | 100.0 | % | $ | 332.8 | 100.0 | % | $ | 708.4 | 100.0 | % | $ | 635.7 | 100.0 | % | ||||||||||||||||
| |
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|
|
|||||||||||||||||
Second Quarter of 2021 |
Second Quarter of 2020 |
Two Fiscal Quarters of 2021 |
Two Fiscal Quarters of 2020 |
|||||||||||||||||||||||||||||
| Consolidated revenues |
$ | 1,032.5 | 100.0 | % | $ | 920.0 | 100.0 | % | $ | 2,016.2 | 100.0 | % | $ | 1,793.1 | 100.0 | % | ||||||||||||||||
| Consolidated cost of sales |
624.8 | 60.5 | % | 562.9 | 61.2 | % | 1,219.3 | 60.5 | % | 1,095.9 | 61.1 | % | ||||||||||||||||||||
| |
|
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|
|
|
|
|
|
|
|||||||||||||||||
| Consolidated operating margin |
$ | 407.7 | 39.5 | % | $ | 357.1 | 38.8 | % | $ | 796.8 | 39.5 | % | $ | 697.2 | 38.9 | % | ||||||||||||||||
| |
|
|
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|
|
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|
|
|||||||||||||||||
Second Quarter of 2021 |
Second Quarter of 2020 |
Two Fiscal Quarters of 2021 |
Two Fiscal Quarters of 2020 |
|||||||||||||||||||||||||||||
| Revenues |
$ | 116.6 | 100.0 | % | $ | 114.2 | 100.0 | % | $ | 229.3 | 100.0 | % | $ | 216.6 | 100.0 | % | ||||||||||||||||
| Cost of sales |
88.0 | 75.5 | % | 87.8 | 76.9 | % | 173.8 | 75.8 | % | 167.2 | 77.2 | % | ||||||||||||||||||||
| |
|
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|
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|
|
|
|
|
|
|
|||||||||||||||||
| Store operating margin |
$ | 28.6 | 24.5 | % | $ | 26.4 | 23.1 | % | $ | 55.6 | 24.2 | % | $ | 49.3 | 22.8 | % | ||||||||||||||||
| |
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|
|||||||||||||||||
| • | Food costs increased 1.8 percentage points to 27.5% in the second quarter of 2021, due to higher food prices. Food costs increased 0.6 percentage points to 27.3% in the two fiscal quarters of 2021, due to higher food prices, partially offset by the leveraging of higher same store sales. |
| • | Labor costs decreased 4.5 percentage points to 27.4% in the second quarter of 2021, and decreased 2.6 percentage points to 27.9% in the two fiscal quarters of 2021, due primarily to additional bonus pay incurred during the second quarter of 2020 for frontline team members during the COVID-19 pandemic. |
| • | Insurance costs increased 0.6 percentage points to 3.9% in the second quarter of 2021, and increased 0.3 percentage points to 3.6% in the two fiscal quarters of 2021. |
| • | Occupancy costs increased 0.5 percentage points to 7.4% in the second quarter of 2021, and increased 0.3 percentage points to 7.7% in the two fiscal quarters of 2021, due primarily to higher rent expense. |
Second Quarter of 2021 |
Second Quarter of 2020 |
Two Fiscal Quarters of 2021 |
Two Fiscal Quarters of 2020 |
|||||||||||||||||||||||||||||
| Revenues |
$ | 603.0 | 100.0 | % | $ | 539.1 | 100.0 | % | $ | 1,171.3 | 100.0 | % | $ | 1,051.8 | 100.0 | % | ||||||||||||||||
| Cost of sales |
536.8 | 89.0 | % | 475.1 | 88.1 | % | 1,045.6 | 89.3 | % | 928.7 | 88.3 | % | ||||||||||||||||||||
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
| Supply chain operating margin |
$ | 66.2 | 11.0 | % | $ | 64.0 | 11.9 | % | $ | 125.7 | 10.7 | % | $ | 123.2 | 11.7 | % | ||||||||||||||||
| |
|
|
|
|
|
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|
|
|
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|
|
|||||||||||||||||
Second Quarter of 2021 |
Second Quarter of 2020 |
Two Fiscal Quarters of 2021 |
Two Fiscal Quarters of 2020 |
|||||||||||||
| U.S. Stores |
$ | 111.8 | $ | 102.9 | $ | 219.3 | $ | 191.2 | ||||||||
| Supply Chain |
58.6 | 56.9 | 111.1 | 108.3 | ||||||||||||
| International Franchise |
56.4 | 36.4 | 110.8 | 79.9 | ||||||||||||
| Other |
(9.6 | ) | (12.6 | ) | (15.7 | ) | (20.7 | ) | ||||||||
| (In millions) | Two Fiscal Quarters of 2021 |
Two Fiscal Quarters of 2020 |
||||||
| Cash Flows Provided By (Used In) |
||||||||
| Net cash provided by operating activities |
$ | 295.4 | $ | 211.8 | ||||
| Net cash used in investing activities |
(72.9 | ) | (74.2 | ) | ||||
| Net cash used in financing activities |
(101.2 | ) | (50.9 | ) | ||||
| Exchange rate changes |
0.3 | (0.3 | ) | |||||
| |
|
|
|
|||||
| Change in cash and cash equivalents, restricted cash and cash equivalents |
$ | 121.6 | $ | 86.4 | ||||
| |
|
|
|
|||||
| Period |
Total Number of Shares Purchased (1) |
Average Price Paid Per Share |
Total Number of Shares Purchased as Part of Publicly Announced Program (2) |
Maximum Approximate Dollar Value of Shares that May Yet Be Purchased Under the Program (in thousands) |
||||||||||||
| Period #4 (March 29, 2021 to April 25, 2021) |
1,017 | $ | 373.78 | — | $ | 1,000,000 | ||||||||||
| Period #5 (April 26, 2021 to May 23, 2021) |
2,013,806 | (2) | 434.73 | (3) | 2,012,596 | (2) | — | |||||||||
| Period #6 (May 24, 2021 to June 20, 2021) |
945 | 427.25 | — | — | ||||||||||||
| |
|
|
|
|
|
|
|
|||||||||
| Total |
2,015,768 | $ | 412.96 | 2,012,596 | $ | — | ||||||||||
| |
|
|
|
|
|
|
|
|||||||||
| (1) | 3,172 shares in the second quarter of 2021 were purchased as part of the Company’s employee stock payroll deduction plan. During the second quarter, the shares were purchased at an average price of $412.96. |
| (2) | On February 24, 2021, the Company’s Board of Directors authorized a new share repurchase program to repurchase up to $1.0 billion of the Company’s common stock. |
| (3) | The average price paid per share of $434.73 for Period #5 (April 26, 2021 to May 23, 2021) excludes the average price paid per share for shares purchased under the ASR Agreement. Because the total number of shares ultimately delivered was not determined until the end of the applicable purchase period in the third quarter of 2021, the average purchase price per share was not determinable until July 21, 2021, subsequent to the end of the second quarter. |
| DOMINO’S PIZZA, INC. (Registrant) | ||
| Date: July 22, 2021 | /s/ Richard E. Allison, Jr. | |
| Richard E. Allison, Jr. | ||
| Chief Executive Officer (Principal Executive Officer and Principal Financial Officer) | ||
Exhibit 10.1
Name: [●]
No. of Options: [●]
Grant Price: [●]
Grant Date: [●]
Expiration Date: [●]
Grant Type: [●]
DOMINO’S PIZZA, INC.
2004 EQUITY INCENTIVE PLAN
NON-QUALIFIED STOCK OPTION AGREEMENT
Domino’s Pizza, Inc., a Delaware corporation (the “Company”), hereby grants this non-qualified stock option (the “Stock Option”) to the above named individual (the “Participant”), pursuant to the Company’s 2004 Equity Incentive Plan (as from time to time in effect, the “Plan”). Under the Stock Option, the Participant may purchase, from the Company during the period commencing on the Grant Date set forth above, and expiring on the Expiration Date set forth above (“Expiration Date”), the aggregate number of shares set forth above (the “Shares”) of the Common Stock of the Company at the price per Share set forth above (the “Grant Price”), all in accordance with and subject to the following terms and conditions:
1. Vesting. The term “vest” as used herein with respect to the Stock Option or any portion thereof means to become exercisable and the term “vested” with respect to the Stock Option (or any portion thereof) means that the Stock Option (or portion thereof) is then exercisable. Unless earlier terminated, forfeited, relinquished or expired, the Stock Option will vest as provided for in Exhibit A hereto.
2. Exercise of Stock Option. Each election to exercise the Stock Option shall be made, in the manner prescribed by the Company, with the third party stock plan administrator appointed by the Company, by the Participant or the Participant’s executor, administrator, or legally appointed representative (in the event of the Participant’s incapacity) or the person or persons to whom the Stock Option is transferred by will or the applicable laws of descent and distribution (collectively, the “Option Holder”) and received by the third party stock plan administrator, accompanied by this Agreement and payment in full as provided in the Plan. The purchase price shall be paid to the third party stock plan administrator appointed by the Company by either (i) delivery of cash or check; (ii) wire transfer; or (iii) through a broker-assisted cashless exercise program implemented in connection with the Plan. In the event that the Stock Option is exercised by an Option Holder other than the Participant, the Company will be under no obligation to deliver Shares hereunder unless and until it is satisfied as to the authority of the Option Holder to exercise the Stock Option. Subject to such earlier exercise periods as are set forth in Exhibit A, the latest date on which the Stock Option or any portion thereof may be exercised is the Expiration Date and, if not exercised by such date, the Stock Option or any remaining portion thereof will thereupon immediately terminate.
3. Restrictions on Transfer of Shares. If at the time the Stock Option is exercised the Company or any of its stockholders is a party to any agreement restricting the transfer of any outstanding shares of the Company’s Common Stock, the Administrator may provide that the Stock Option may be exercised only if the Shares so acquired are made subject to the transfer restrictions set forth in that agreement (or if more than one such agreement is then in effect, the agreement or agreements specified by the Administrator).
4. Withholding; Agreement to Provide Security. The Company will not deliver Shares being purchased upon any exercise of the Stock Option unless it has received payment in a form acceptable to the Company for all applicable withholding taxes (or the Participant makes other arrangements satisfactory to the Company for the payment of such taxes).
5. Nontransferability of Stock Option. The Stock Option is not transferable by the Participant otherwise than by will or the laws of descent and distribution, and is exercisable during the Participant’s lifetime only by the Participant (or in the event of the Participant’s incapacity, the person or persons legally appointed to act on the Participant’s behalf).
6. Provisions of the Plan. The Stock Option is subject to the provisions of the Plan, which are incorporated herein by reference. A copy of the Plan as in effect on the date of the grant of the Stock Option is available from the Company. By exercising all or any part of the Stock Option, the Participant agrees to be bound by the terms of the Plan and this Agreement. All initially capitalized terms used herein will have the meaning specified in the Plan, unless another meaning is specified herein.
7. Non-Statutory Option. The Stock Option evidenced by this Agreement is intended to be, and is hereby designated, a non-statutory option, that is, an option that does not qualify as an incentive stock option as defined in section 422 of the Internal Revenue Code of 1986, as amended from time to time (the “Code”).
8. Governing Law. The Stock Option is governed by, and subject to, the laws of the State of Delaware, as provided in the Plan. For purposes of litigating any dispute that arises under this Agreement or the Plan, the parties hereby submit to and consent to the jurisdiction of the State of Delaware, agree that such litigation shall be conducted in the courts of Delaware, or the federal courts for the United States for the District of Delaware, where this grant is made and/or to be performed.
9. Electronic Delivery. The Company may, in its sole discretion, decide to deliver any documents related to the Stock Option and participation in the Plan or future options that may be granted under the Plan by electronic means or to request the Participant’s consent to participate in the Plan by electronic means. The Participant hereby consents to receive such documents by electronic delivery and, if requested, to agree to participate in the Plan through an on-line or electronic system established and maintained by the Company or another third party designated by the Company.
10. Severability. The provisions of this Agreement are severable and if any one or more provisions are determined to be illegal or otherwise unenforceable, in whole or in part, the remaining provisions shall nevertheless be binding and enforceable.
IN WITNESS WHEREOF, the Company has caused this instrument to be executed by its duly authorized officer.
| DOMINO’S PIZZA, INC. | ||
|
| ||
| Name: | Richard E. Allison, Jr. | |
| Title: | Chief Executive Officer | |
| Dated: | ||
| Acknowledged and Agreed: | ||
| By: |
| |
| [●] | ||
A-2-
Exhibit 10.2
| Name: | [●] | |
| Target Number of PSUs subject to Award: | [●] | |
| Date of Grant: | [●] |
DOMINO’S PIZZA, INC.
2004 EQUITY INCENTIVE PLAN
PERFORMANCE-BASED RESTRICTED STOCK UNIT AWARD AGREEMENT
This agreement (including any exhibits hereto, this “Agreement”) evidences an award (this “Award”) of performance-based restricted stock units (the “PSUs”) granted by Domino’s Pizza, Inc. (the “Company”) to the undersigned (the “Participant”) pursuant and subject to the terms and conditions of the Domino’s Pizza, Inc. 2004 Equity Incentive Plan (as amended from time to time, the “Plan”), which is incorporated herein by reference. Except as otherwise defined herein, all capitalized terms used herein have the same meaning as in the Plan.
1. PSU Award. The Company grants to the Participant on the date set forth above (the “Date of Grant”) this Award consisting of the target number of PSUs set forth above (the “Target Award”) and giving the Participant the conditional right to receive, on the terms and conditions provided herein and in the Plan, one share of Stock with respect to each resulting PSU earned pursuant to this Award, in each case, subject to adjustment pursuant to Section 7 of the Plan in respect of transactions occurring after the date hereof.
2. Calculation of PSUs Earned. The percentage of the Target Award that may be earned by the Participant, together with the vesting conditions applicable thereto, will be determined in accordance with Exhibit A hereto.
3. Delivery of Shares; Settlement of Award.
The Company shall, as soon as practicable and in all events no later than thirty (30) days following the applicable Settlement Date (but not later than [●] if the Settlement Date is the Determination Date (as defined in Exhibit A hereto)), transfer to the Participant (or, in the event of the Participant’s death, to the person to whom this Award has passed by will or the laws of descent and distribution) the number of shares of Stock that equal the earned and vested portion of this Award; it being understood that if the Settlement Date is the date of consummation of a Covered Transaction (as defined in the Plan), the Company shall transfer such shares of Stock immediately prior to the consummation of such Covered Transaction. No shares of Stock will be transferred pursuant to this Award unless and until all legal requirements applicable to the issuance or transfer of such shares have been satisfied. “Settlement Date” means the date on or following and by reference to which any earned and vested PSUs subject to this Award are to be settled, if at all, in whole or in part, through the delivery of shares of Stock. Other than in the event of a Covered Transaction, the Settlement Date shall be the Determination Date; in the event of a Covered Transaction, the Settlement Date shall be the date of consummation of the Covered Transaction.
4. Forfeiture; Recovery of Compensation.
The Administrator may cancel, rescind, withhold or otherwise limit or restrict this Award at any time if the Participant is not in compliance with all applicable provisions of this Agreement and the Plan. By accepting this Award, the Participant expressly acknowledges and agrees that his or her rights under this Award, and those of any permitted transferee of this Award, including the right to any shares of Stock acquired under this Award or proceeds from the disposition thereof, are subject to any applicable clawback or incentive compensation recovery policy of the Company as may be in effect from time to time. Nothing in the preceding sentence shall be construed as limiting the general application of Section 10 of this Agreement.
5. Dividends; Other Rights.
This Award shall not be interpreted to bestow upon the Participant any equity interest or ownership in the Company or any Affiliate prior to the date on which the Company delivers shares of Stock (if any) to the Participant. The Participant is not entitled to vote any shares of Stock by reason of the granting of this Award, and the Participant shall have the rights of a shareholder only as to those shares of Stock, if any, that are actually delivered under this Award. Notwithstanding the foregoing, upon the delivery of any shares of Stock in respect of any earned and vested PSUs subject hereto, the Participant shall be entitled to a cash payment by the Company in an amount equal to the amount that the Participant would have received, if any, as a regular cash dividend had the Participant held such shares of Stock from the Date of Grant to the date such shares of Stock are delivered hereunder, less all applicable taxes and withholding obligations. Any such payment shall be paid, if at all, without interest on the date such shares of Stock are delivered hereunder.
6. Certain Tax Matters.
The Participant expressly acknowledges that because this Award consists of an unfunded and unsecured promise by the Company to deliver Stock in the future, subject to the terms hereof, it is not possible to make a so-called “83(b) election” with respect to this Award. This Award is intended to be exempt from Section 409A as a “short term deferral” arrangement and shall be construed by the Administrator accordingly. Notwithstanding the preceding, neither the Company, nor any Affiliate, nor the Administrator, nor any person acting on behalf of any of them, shall be liable to the Participant or any other person by reason of any acceleration of income, or any tax or additional tax, asserted (A) by reason of any failure of this Award or any portion thereof to satisfy the requirements for exemption from, or compliance with, Section 409A or (B) by reason of Section 4999 of the Code. All references to “Section 409A” in this Agreement shall be references to Section 409A of the Code, the Treasury Regulations promulgated thereunder and such other guidance as determined by the Company in its sole discretion.
7. Withholding. The Participant shall pay to the Company, or make provision satisfactory to the Company for payment of, any taxes required by law to be withheld in connection with the vesting and/or settlement of the PSUs (including, without limitation, any amount that is treated as “wages” for FICA/FUTA or Medicare tax purposes on a current basis rather than when
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distributed). The Administrator may, in its sole discretion, require that a portion of the shares of Stock that would have otherwise been delivered to the Participant upon vesting and settlement of the PSUs be sold by the Participant or retained by the Company to satisfy any applicable federal, state or local income, employment or other tax withholding and payment obligations, or in the case of any such taxes due upon vesting and prior to delivery of shares of Stock hereunder that the number of shares subject to this Award may be reduced to satisfy such tax withholding and payment obligations (but, with respect to any amounts constituting deferred compensation subject to Section 409A, as determined by the Company in its sole discretion, not in excess of amounts permitted to be accelerated by Section 409A including Treasury Regulation Section 1.409A-3(j)(4)(vi)). The Company and its Affiliates may, to the extent permitted by law, deduct any unsatisfied tax obligations from any payment of any kind otherwise due to the Participant.
8. Transfer of Award.
This Award may not be transferred except as expressly permitted under Section 6(a)(4) of the Plan.
9. Effect on Employment.
This Agreement is not a contract of employment between the Company (or any Subsidiary) and the Participant. The Participant retains the right to terminate his or her employment with the Company (or one of its Subsidiaries, as applicable), and the Company (and its Subsidiaries as applicable) retains the right to terminate or modify the terms of the Participant’s employment, subject to any rights retained by either party under the Participant’s employment agreement, if Participant has an employment agreement, and no loss of rights, contingent or otherwise, under this Agreement upon termination of employment shall be claimed by the Participant as an element of damages in any dispute over such termination of employment.
10. Provisions of the Plan.
This Agreement is subject in its entirety to the provisions of the Plan, which are incorporated herein by reference. A copy of the Plan as in effect on the Date of Grant has been furnished to the Participant. By accepting all or any part of this Award, the Participant agrees to be bound by the terms of the Plan and this Agreement. In the event of any conflict between the terms of this Agreement and the Plan, the terms of the Plan shall control (except as otherwise expressly provided herein).
11. Acknowledgements.
The Participant acknowledges and agrees that (i) this Agreement may be executed in two or more counterparts, each of which shall be an original and all of which together shall constitute one and the same instrument, (ii) this agreement may be executed and exchanged using facsimile, portable document format (PDF) or electronic signature, which, in each case, shall constitute an original signature for all purposes hereunder and (iii) such signature by the Company will be binding against the Company and will create a legally binding agreement when this Agreement is countersigned by the Participant.
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[Signature page follows.]
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IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by its duly authorized officer.
| DOMINO’S PIZZA, INC. | ||
| By: |
| |
| Name: | Richard E. Allison, Jr. | |
| Title: | Chief Executive Officer | |
| Dated: | ||
| Acknowledged and Agreed: | ||
| By: |
| |
| [●] | ||
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Exhibit 10.3
| Name: | [●] | |
| Number of RSUs subject to Award: | [●] | |
| Date of Grant: | [●] |
DOMINO’S PIZZA, INC.
2004 EQUITY INCENTIVE PLAN
RESTRICTED STOCK UNIT AWARD AGREEMENT
This agreement (including any exhibits hereto, this “Agreement”) evidences an award (this “Award”) of restricted stock units (the “RSUs”) granted by Domino’s Pizza, Inc. (the “Company”) to the undersigned (the “Participant”) pursuant and subject to the terms and conditions of the Domino’s Pizza, Inc. 2004 Equity Incentive Plan (as amended from time to time, the “Plan”), which is incorporated herein by reference. Except as otherwise defined herein, all capitalized terms used herein have the same meaning as in the Plan.
1. RSU Award. The Company grants to the Participant on the date set forth above (the “Date of Grant”) the number of restricted stock units (the “Restricted Stock Units”) set forth above giving the Participant the conditional right to receive, without payment and pursuant to and subject to the terms and conditions set forth in this Agreement and in the Plan, one share of Stock with respect to each resulting Restricted Stock Unit that becomes vested pursuant to this Award, subject to adjustment pursuant to Section 7 of the Plan in respect of transactions occurring after the date hereof.
2. Vesting Conditions. The RSUs shall vest as provided for in Exhibit A hereto.
3. Delivery of Shares; Settlement of Award.
| (a) | In General. The Company shall, as soon as practicable and in all events no later than thirty (30) days following the applicable Settlement Date, transfer to the Participant (or, in the event of the Participant’s death, to the person to whom this Award has passed by will or the laws of descent and distribution) the number of shares of Stock that equals the vested portion of this Award. No shares of Stock will be transferred pursuant to this Award unless and until all legal requirements applicable to the issuance or transfer of such shares have been satisfied. |
| (b) | Settlement Date. For purposes of this Agreement, “Settlement Date” means the date on or following and by reference to which any vested RSUs subject to this Award are to be settled, if at all, in whole or in part, through the delivery of shares of Stock, as set forth below: |
| (i) | Other than in the event of a Qualified Retirement or Covered Transaction (as defined in the Plan), the Settlement Date for the First RSU Tranche (as defined in Exhibit A) shall be the First Scheduled Vesting Date (as defined in Exhibit A), the Settlement Date for the Second RSU Tranche (as |
| defined in Exhibit A) shall be the Second Scheduled Vesting Date (as defined in Exhibit A), and the Settlement Date for the Third RSU Tranche (as defined in Exhibit A) shall be the Third Scheduled Vesting Date (as defined in Exhibit A). |
| (ii) | In the event of a Qualified Retirement (as defined in Exhibit A), the Settlement Date for any RSUs that become vested in connection therewith shall be the date of the Qualified Retirement. |
| (iii) | In the event of a Covered Transaction, the Settlement Date shall be the date of consummation of the Covered Transaction, with the Company transferring shares of Stock underlying the RSUs immediately prior to the consummation of such Covered Transaction; provided that if the Covered Transaction does not meet the requirements for a “change in control event,” as that term is defined in Treasury Regulations § 1.409A–3(i)(5)(i), the Settlement Date for any portion of this Award that is subject to, and not exempt from, the applicable requirements of Section 409A (the “409A Award Portion”) shall be the Scheduled Vesting Date (as defined in Exhibit A) applicable to the 409A Award Portion. |
| (iv) | Notwithstanding anything to the contrary in this Agreement, if the Participant is determined to be a “specified employee” within the meaning of Section 409A and the Treasury regulations thereunder, as determined by the Company, at the time of the Participant’s “separation from service” within the meaning of Section 409A and the Treasury regulations thereunder (after giving effect to the presumptions contained therein), then to the extent necessary to prevent any accelerated or additional tax under Section 409A, the settlement and delivery of any shares of Stock hereunder upon such separation from service will be delayed until the earlier of: (a) the date that is six months and one day following the Participant’s separation from service and (b) the Participant’s death. |
4. Forfeiture; Recovery of Compensation.
The Administrator may cancel, rescind, withhold or otherwise limit or restrict this Award at any time if the Participant is not in compliance with all applicable provisions of this Agreement and the Plan. By accepting this Award, the Participant expressly acknowledges and agrees that his or her rights under this Award, and those of any permitted transferee of this Award, including the right to any shares of Stock acquired under this Award or proceeds from the disposition thereof, are subject to any applicable clawback or incentive compensation recovery policy of the Company as may be in effect from time to time. Nothing in the preceding sentence shall be construed as limiting the general application of Section 10 of this Agreement.
5. Dividends; Other Rights.
This Award shall not be interpreted to bestow upon the Participant any equity interest or ownership in the Company or any Affiliate prior to the date on which the Company delivers
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shares of Stock (if any) to the Participant. The Participant is not entitled to vote any shares of Stock by reason of the granting of this Award, and the Participant shall have the rights of a shareholder only as to those shares of Stock, if any, that are actually delivered under this Award. Notwithstanding the foregoing, upon the delivery of any shares of Stock in respect of any vested RSUs subject hereto, the Participant shall be entitled to a cash payment by the Company in an amount equal to the amount that the Participant would have received, if any, as a regular cash dividend had the Participant held such shares of Stock from the Date of Grant to the date such shares of Stock are delivered hereunder, less all applicable taxes and withholding obligations. Any such payment shall be paid, if at all, without interest on the date such shares of Stock are delivered hereunder.
6. Certain Tax Matters.
The Participant expressly acknowledges that because this Award consists of an unfunded and unsecured promise by the Company to deliver Stock in the future, subject to the terms hereof, it is not possible to make a so-called “83(b) election” with respect to this Award. This Award is intended to be exempt from, or comply with, Section 409A and shall be construed by the Administrator accordingly. Notwithstanding the preceding, neither the Company, nor any Affiliate, nor the Administrator, nor any person acting on behalf of any of them, shall be liable to the Participant by reason of any acceleration of income, or any tax or additional tax, asserted (A) by reason of any failure of this Award or any portion thereof to satisfy the requirements for exemption from, or compliance with, Section 409A or (B) by reason of Section 4999 of the Code. All references to “Section 409A” in this Agreement shall be references to Section 409A of the Code, the Treasury Regulations promulgated thereunder and such other guidance as determined by the Company in its sole discretion.
7. Withholding. The Participant shall pay to the Company, or make provision satisfactory to the Company for payment of, any taxes required by law to be withheld in connection with the vesting and/or settlement of the RSUs (including, without limitation, any amount that is treated as “wages” for FICA/FUTA or Medicare tax purposes on a current basis rather than when distributed). The Administrator may, in its sole discretion, require that a portion of the shares of Stock that would have otherwise been delivered to the Participant upon vesting and settlement of the RSUs be sold by the Participant or retained by the Company to satisfy any applicable federal, state or local income, employment or other tax withholding and payment obligations, or in the case of any such taxes due upon vesting and prior to delivery of shares of Stock hereunder that the number of shares subject to this Award may be reduced to satisfy such tax withholding and payment obligations (but, with respect to any amounts constituting deferred compensation subject to Section 409A, as determined by the Company in its sole discretion, not in excess of amounts permitted to be accelerated by Section 409A including Treasury Regulation Section 1.409A-3(j)(4)(vi)). The Company and its Affiliates may, to the extent permitted by law, deduct any unsatisfied tax obligations from any payment of any kind otherwise due to the Participant.
8. Transfer of Award.
This Award may not be transferred except as expressly permitted under Section 6(a)(4) of the Plan.
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9. Effect on Employment.
This Agreement is not a contract of employment between the Company (or any Subsidiary) and the Participant. The Participant retains the right to terminate his or her employment with the Company (or one of its Subsidiaries, as applicable), and the Company (and its Subsidiaries as applicable) retains the right to terminate or modify the terms of the Participant’s employment, subject to any rights retained by either party under the Participant’s employment agreement, if Participant has an employment agreement, and no loss of rights, contingent or otherwise, under this Agreement upon termination of employment shall be claimed by the Participant as an element of damages in any dispute over such termination of employment.
10. Provisions of the Plan.
This Agreement is subject in its entirety to the provisions of the Plan, which are incorporated herein by reference. A copy of the Plan as in effect on the Date of Grant has been furnished to the Participant. By accepting all or any part of this Award, the Participant agrees to be bound by the terms of the Plan and this Agreement. In the event of any conflict between the terms of this Agreement and the Plan, the terms of the Plan shall control (except as otherwise expressly provided herein).
11. Acknowledgements.
The Participant acknowledges and agrees that (i) this Agreement may be executed in two or more counterparts, each of which shall be an original and all of which together shall constitute one and the same instrument, (ii) this agreement may be executed and exchanged using facsimile, portable document format (PDF) or electronic signature, which, in each case, shall constitute an original signature for all purposes hereunder and (iii) such signature by the Company will be binding against the Company and will create a legally binding agreement when this Agreement is countersigned by the Participant.
[Signature page follows.]
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IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by its duly authorized officer.
| DOMINO’S PIZZA, INC. | ||
| By: |
| |
| Name: | Richard E. Allison, Jr. | |
| Title: | Chief Executive Officer | |
| Dated: |
| Acknowledged and Agreed: | ||
| By: |
| |
Exhibit 10.9
SEPARATION AGREEMENT AND GENERAL RELEASE
This Separation Agreement and General Release (“Agreement”) is entered into between Stuart A. Levy (“Employee”) and Domino’s Pizza LLC (“Company”). Employee and the Company are “the parties” to this Agreement.
BACKGROUND FACTS:
Employee has been employed by the Company as its Executive Vice President, Chief Financial Officer and previously executed an Employment Agreement with the Company effective as of August 20, 2020 (the “Employment Agreement”). Capitalized terms used but not otherwise defined herein shall have the respective meanings set forth in the Employment Agreement.
The parties desire to document certain understandings regarding Employee’s resignation from the Company.
LEGAL OBLIGATIONS:
Pursuant to Section 6.3 of the Employment Agreement and in consideration of the mutual promises in the Employment Agreement and this Agreement, and other good and valuable consideration, the parties agree to be legally bound by the following promises and acknowledgements:
1. Separation Date and Immediate Cessation of Title and Signing Authority: Employee’s resignation as the Company’s Executive Vice President, Chief Financial Officer shall become effective at 11:59 p.m. ET on May 19, 2021. Effective at 11:59 p.m. ET on May 19, 2021, Employee’s title as Executive Vice President, Chief Financial Officer and signing authority on behalf of the Company by virtue of his position as Executive Vice President, Chief Financial Officer shall be rescinded. Notwithstanding the foregoing, Employee shall remain an employee of the Company as a special advisor until August 31, 2021. Employee’s employment relationship with the Company shall thereafter terminate effective at 11:59 p.m. ET on August 31, 2021 (“Separation Date”). Effective on the Separation Date, Employee will no longer report to work and will cease performing any work-related duties.
2. Payment and Benefits to Employee: Based upon the agreement of the parties, the Company shall pay Employee: (i) promptly following the Separation Date and in all events within 30 days thereof (or at such earlier time as may be required by applicable law), any Base Salary earned but unpaid through the Separation Date, plus (ii) payments for a period to end 12 months after the Separation Date, of which (a) the first payment shall be made on the date that is 6 months from the Separation Date and in an amount equal to 6 times the Employee’s monthly base compensation in effect at the time of the Separation Date (but such rate shall not be less than the base compensation rate as of the date Employee executes this Agreement) (“Base Salary”) and (b) the balance of the payments shall be paid in accordance with the Company’s then current payroll practices (currently biweekly payments) over the next 6 months through the date that is 12 months from the date of termination, each such payment in an amount equal to the Base Salary in effect at the time of such termination dependent on payroll practices of the Company (i.e., 1/12th of the Base Salary, 1/24th of the Base Salary, 1/26th of Base Salary, etc.), plus (iii) promptly following the Separation Date and in all events within 30 days thereof, any unpaid portion of any Bonus for the fiscal year preceding the year in which such separation occurs that was earned but has not been paid, plus (iv) at the times the Company pays its executives bonuses generally, but no later than 2 1/2 months after the end of the fiscal year in which the Bonus is earned, an amount equal to that portion of any Bonus earned but unpaid during the fiscal year of such separation (prorated in accordance with Section 4.2 of the Employment Agreement), plus (v) vested, outstanding equity grants under the Stock Plan, in accordance with the terms thereof and any applicable award agreements. Additionally, if
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Employee elects continuation of health coverage pursuant to Section 601 through 608 of the Employee Retirement Income Security Act of 1974, as amended (“COBRA”), the Company shall also pay Employee on a monthly basis an amount equal to the monthly COBRA premiums payable by Employee for up to 12 months following the Separation Date, provided that such payment will cease upon Employee’s entitlement to other health insurance without charge. Employee agrees to notify the Company if s/he becomes entitled to other health insurance without charge during the 12-month period following the Separation Date.
3. Release of Claims: Employee acknowledges that the consideration set forth in the Employment Agreement and this Agreement represents full and final payment of all claims by Employee against the Company, and is in excess of what Employee would otherwise be entitled by virtue of her/his employment. By signing this Agreement, Employee completely and forever releases the Company and any past, present, or future direct or indirect owners, shareholders, directors, officers, employees, attorneys, agents, insurers, partners, employee benefit plans, predecessors and successors in interest, beneficiaries, executors, administrators, personal representatives, heirs, parents, subsidiaries, successors, and assigns of the Company and any other persons, firms, corporations, or entities with which the Company has been, is now, or may hereafter be affiliated (collectively, the “Released Parties”), from any and all known or unknown claims, demands, grievances, or lawsuits arising out of or in any way relating to any event, matter, or occurrence existing or occurring before Employee signs this Agreement including, but not limited to, claims that involve or arise from the employment relationship between Employee and the Company, or the termination of that relationship.
This general release includes, but is not limited to, claims, demands, grievances, or lawsuits that arise under any of the following: Title VII of the Civil Rights Act of 1964; 42 U.S.C. § 1981; the Age Discrimination in Employment Act of 1967; the Pregnancy Discrimination Act; the Employee Retirement Income Security Act; the Americans with Disabilities Act; the Family and Medical Leave Act; the Equal Pay Act; the Genetic Information Non-Discrimination Act; the Worker Adjustment and Retraining Notification Act; the Sarbanes-Oxley Act; the Health Insurance Portability and Accountability Act; the Fair Credit Reporting Act; the False Claims Act; the Occupational Safety and Health Act; the Uniformed Services Employment and Reemployment Rights Act; any amendments to the foregoing laws; any other federal, state, local, or foreign constitution, statute, ordinance, or regulation; or any other theory of recovery including, but not limited to, claims of discrimination, harassment, or retaliation of any kind, wrongful discharge, breach of contract, breach of the covenant of good faith and fair dealing, unfair business practices, wage and hour claims of any kind, whether for non-payment, late payment, overtime, misclassification, rest breaks, meal periods, bonuses, reimbursements, deductions, and/or penalties, tort claims of any kind, whether for intentional or negligent infliction of emotional distress, personal injury, defamation, and/or invasion of privacy, and any other common law legal or equitable claims.
This release includes any and all of Employee’s claims against the Released Parties that exist as of Employee’s execution of this Agreement, even if the facts and/or legal theories supporting those claims are unknown to Employee at this time. This release binds Employee as well as her/his marital community, heirs, and assigns. Excluded from this release are any claims or rights which cannot be waived by law, including Employee’s right to seek unemployment compensation benefits.
Within 21 days of the Separation Date, Employee will execute the Additional Release of Claims attached hereto as Attachment A and return it to the Company representative identified below:
Domino’s Pizza LLC
Attention: Kevin Morris, Executive Vice President, General Counsel & Corporate Secretary
30 Frank Lloyd Wright Drive
Ann Arbor, Michigan 48105
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Employee understands and agrees that her/his right to receive and retain any of the payments otherwise payable pursuant to or described in the Employment Agreement or this Agreement or any of the benefits that may be provided in respect of or related to her/his termination of employment to which s/he is not currently entitled is expressly conditioned upon the Additional Release of Claims becoming fully effective and Employee fulfilling her/his obligations under the Employment Agreement including, but not limited to, the post-employment obligations in Sections 7 and 8 of the Employment Agreement. If the Additional Release of Claims does not become fully effective in accordance with its terms or Employee fails to fulfill her/his obligations under the Employment Agreement, Employee shall not be entitled to any amounts set forth in the Employment Agreement or this Agreement or any other benefits in respect of or related to her/his termination of employment to which s/he is not currently entitled.
4. Right to Participate in Governmental Agency Proceedings: NOTHING IN THIS AGREEMENT IS INTENDED TO LIMIT OR IMPAIR IN ANY WAY EMPLOYEE’S RIGHT TO FILE A CHARGE OR COMPLAINT WITH ANY GOVERNMENTAL AGENCY INCLUDING, BUT NOT LIMITED TO, THE U.S. SECURITIES AND EXCHANGE COMMISSION (“SEC”), NATIONAL LABOR RELATIONS BOARD (“NLRB”), U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (“EEOC”), OR COMPARABLE STATE AND LOCAL AGENCIES, OR EMPLOYEE’S RIGHT TO PARTICIPATE IN ANY INVESTIGATION CONDUCTED BY ANY GOVERNMENTAL AGENCY AND TO RECOVER ANY APPROPRIATE RELIEF IN ANY SUCH ACTION. However, the parties agree that appropriate relief may not include remedies that personally benefit Employee and which s/he has released and waived under this Agreement, including all legal relief, equitable relief, statutory relief, reinstatement, back pay, front pay, and all other damages, benefits, remedies, or relief to which Employee may be entitled as a result of the filing or prosecution of any such charge or complaint against the Released Parties by Employee, or any resulting civil proceeding or lawsuit brought on behalf of Employee and which arises out of any matters that are released or waived by this Agreement. Employee expressly assigns to the Company any such remedies that personally benefit her/him. This Agreement shall not preclude Employee from bringing a charge or complaint to challenge the validity or enforceability of this Agreement under the Age Discrimination in Employment Act of 1967, as amended by the Older Workers Benefit Protection Act. NOTHING IN THIS AGREEMENT PROHIBITS EMPLOYEE’S ACCEPTANCE OF A WHISTLEBLOWER AWARD FROM THE SEC PURSUANT TO § 21F OF THE FEDERAL SECURITIES EXCHANGE ACT.
5. Ownership of Rights and Claims: Employee represents and warrants that: (a) no other person or entity has any interest in the claims, obligations, or damages referred to in this Agreement; (b) s/he has the sole right and exclusive authority to execute this Agreement and receive the consideration set forth herein; and (c) s/he has not sold, assigned, transferred, conveyed, or otherwise disposed of the right to pursue any claims referred to in this Agreement or damages associated with any such claims.
6. Beneficiaries: The parties agree that the rights and benefits to the Company created by this Agreement are intended to apply to any past, present, or future owners, shareholders, directors, officers, employees, attorneys, agents, partners, predecessors and successors in interest, beneficiaries, executors, administrators, personal representatives, heirs, successors, and assigns of the Company and any other persons, firms, corporations, or entities with which the Company has been, is now, or may hereafter be affiliated.
7. Acknowledgements Concerning Compensation/Leave/On-the-Job Injury: Employee acknowledges and agrees that the consideration set forth in the Employment Agreement and this Agreement shall constitute the total amount owed by the Company to Employee and that s/he has: (a) been paid by the Company for all hours s/he has worked for the Company; (b) received all amounts due
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from the Company through the date Employee executes this Agreement including, but not limited to, compensation, wages, payments, bonuses, benefits, pay in lieu of notice, salary continuation or severance, reimbursements, or any other remuneration of whatever kind arising from or relating to the employment relationship with the Company, or the termination of that relationship, except for the payments and benefits expressly provided for under this Agreement; (c) received any leave (paid or unpaid) and accommodations to which s/he was entitled through the date Employee executes this Agreement; and (d) not suffered any on-the-job injury or occupational illness while working for the Company for which s/he has not already filed a claim. Employee confirms that s/he has no pending legal proceeding(s) against any of the Released Parties.
8. Confirmation: Employee is not aware, to the best of her/his knowledge, of any conduct on Employee’s part or on the part of another past or present employee of the Company that violated the law or otherwise exposed the Company to any liability, whether criminal or civil, whether to any government, individual, or other entity. Further, Employee acknowledges that s/he is not aware of any material violations by the Company and/or its employees, officers, directors, and agents of any constitution, statute, ordinance, regulation, or other rules that have not been addressed by the Company through appropriate compliance and/or corrective action.
9. Non-Disclosure of Agreement: Employee agrees that s/he has and will hold in strict confidence the negotiations resulting in, contents, and terms of this Agreement, except: (a) as required by law; (b) to secure advice from a legal or tax advisor; (c) to her/his spouse; or (d) in a legal action to enforce the terms of this Agreement. Employee further agrees that s/he has and will use every effort to prevent disclosure of the negotiations resulting in, contents, and terms of this Agreement by any of the persons referred to in (b) and (c) of this Paragraph. Employee agrees that the contents of this Paragraph are material terms of the Agreement. NOTHING IN THIS PARAGRAPH IS INTENDED TO LIMIT OR IMPAIR IN ANY WAY EMPLOYEE’S RIGHT TO PROVIDE INFORMATION TO ANY GOVERNMENTAL AGENCY INCLUDING, BUT NOT LIMITED TO, THE SEC, NLRB, EEOC, OR COMPARABLE STATE AND LOCAL AGENCIES.
10. Non-Disparagement: Employee agrees that s/he has not and will not publicly make comments or statements that are disparaging of the Released Parties, Domino’s franchisees, or the Domino’s brand. A disparaging comment or statement is any communication, oral or written (including any online, social media, or digital communications), which may cause or tend to cause the recipient of the communication to question the business condition, reputation, integrity, competence, fairness, or good character of the person or entity to whom the communication relates. Employee further agrees that s/he has not and will not communicate with, give interviews, and/or provide statements to any member of the press or media including, without limitation, any print, broadcast, or electronic media, concerning any aspect of Employee’s relationship or experiences with the Company or of the Company’s business. This Paragraph shall not apply to communications required by law or that are otherwise privileged as a matter of law. Further, if any members of the Company’s Leadership Team (comprised of those officers of the Company with a title of Executive Vice President and above) and/or Board of Directors publicly makes a disparaging statement about Employee to a third party (provided, however, that nothing in this Paragraph shall impair or interfere with the Company’s ability to engage in business-related intra-corporate communications or to communicate with its shareholders, investors, auditors, and/or legal advisors), it shall not violate this Paragraph for Employee to respond in kind to such statement by a statement of fact that is true and accurate and limited to the specific scope of the statement made about Employee. At least 7 calendar days before issuing the statement, Employee must provide the Company with a written draft of the statement and obtain the Company’s approval, and such approval will not be
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unreasonably withheld. NOTHING IN THIS PARAGRAPH IS INTENDED TO INTERFERE WITH OR RESTRICT THE ABILITY OF EMPLOYEE OR THE RELEASED PARTIES TO COMMUNICATE WITH ANY GOVERNMENTAL AGENCY INCLUDING ANY WITH WHICH A CHARGE OR COMPLAINT HAS BEEN FILED OR TO DEFEND THEMSELVES AGAINST ANY LEGAL CLAIMS.
11. Violation of the Agreement: Employee understands that any violation or breach of a material term of this Agreement by her/him shall give rise to a claim against her/him by the Company and/or the Released Parties for a refund of the consideration paid pursuant to the Employment Agreement and this Agreement and shall forever release and discharge these entities from the performance of any obligations arising from the Employment Agreement and this Agreement but shall not release Employee from performance of her/his obligations under the Employment Agreement and this Agreement. Provided, however, that if Company contends that a violation or breach of a material term of this Agreement has occurred or will occur, then Company shall provide express written notice to Employee and 7 calendar days to cure such violation or breach, if it can be cured. The parties agree that Employee’s violations or breaches of this Agreement that cannot be cured include, but are not limited to, those under Paragraphs 9 and 10. If the actual or threatened violation can be and is timely cured, then no violation or breach shall be deemed to have occurred under this Paragraph.
12. Assistance and Cooperation: Upon request by the Company, Employee agrees to personally provide reasonable assistance and cooperation to the Company in activities related to any past, present, or future lawsuits, claims, or other matters involving the Company. The Company will reimburse Employee for any reasonable out-of-pocket costs and expenses incurred in connection with providing such assistance and cooperation.
13. No External Representations or Agreements: With the exception of the Employment Agreement that Employee previously executed with the Company, this Agreement constitutes the sole and entire agreement between the parties regarding the subject matter addressed herein, and supersedes any and all understandings and agreements that may have been reached earlier on this subject matter. Employee understands and agrees that her/his obligations under the Employment Agreement including, but not limited to, the post-employment obligations in Sections 7 and 8 of the Employment Agreement, remain in effect except as specifically modified herein. There are no understandings, representations, or agreements other than those set forth in this Agreement and the Employment Agreement. No provision of this Agreement shall be amended, waived, or modified except in writing signed by the parties that specifically refers to this Agreement.
14. Choice of Law: This Agreement shall be governed in all respects, whether as to validity, construction, capacity, performance, or otherwise, by the laws of the State of Michigan, without regard to choice of law principles, and except as preempted by federal law.
15. Limited Admissibility of the Agreement: The parties agree that this Agreement may not be introduced in any proceeding, except to establish conclusively the settlement and release of the claims it encompasses or to otherwise ensure rights created by this Agreement. This Agreement is not to be interpreted as an admission of any liability or other obligation to Employee.
16. Severability: If any provision of this Agreement is held by a court, arbitrator, or other adjudicative body of competent jurisdiction to be invalid, void, or unenforceable for whatever reason, the remaining provisions of this Agreement shall nevertheless continue in full force and effect without being impaired in any manner whatsoever.
17. Attorneys’ Fees and Costs: In any proceeding or action to enforce this Agreement or to recover damages arising out of its breach, the prevailing party shall be awarded its reasonable attorneys’ fees and costs.
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18. Employee Acknowledgements: Employee, by her/his execution of this Agreement, acknowledges and agrees that the following statements are true:
| (a) | S/he has carefully read this entire Agreement and has had any and all questions regarding its meaning answered to her/his satisfaction; |
| (b) | The Agreement is written in language that s/he understands. |
| (c) | S/he is hereby advised to seek independent legal advice and/or counsel of her/his own choosing prior to the execution of this Agreement; |
| (d) | S/he fully understands that this Agreement is a waiver of any and all claims, known and unknown, that s/he may have against the Released Parties; |
| (e) | S/he willingly waives any and all claims in exchange for the promises of the Company in the Employment Agreement and this Agreement, which s/he acknowledges constitute valuable consideration that s/he is not otherwise entitled to receive; |
| (f) | S/he enters into this Agreement knowingly and voluntarily and is under no coercion or duress whatsoever in considering or agreeing to the provisions of this Agreement; and |
| (g) | S/he understands that this Agreement is a contract and that either party may enforce it. |
19. Periods for Considering and Revoking the Agreement: Employee acknowledges that s/he has been given at least 21 days to consider this Agreement. Employee agrees that, if s/he signs and returns this Agreement to the Company representative identified below before the end of the above 21-day period, her/his signature is intended to waive her/his right to consider the Agreement for 21 days. This proposed Agreement shall be deemed withdrawn if Employee fails to sign and return it to the Company representative identified below within 21 days of her/his receipt of the Agreement. The parties agree that Employee may revoke this Agreement at any time within 7 days after signing the Agreement by written notice delivered by certified mail to the Company representative identified below. The parties acknowledge and agree that this Agreement will become effective and enforceable once Employee signs and returns it to the Company representative identified below within 21 days of her/his receipt of the Agreement and following the expiration without exercise of the 7-day revocation period.
Domino’s Pizza LLC
Attention: Kevin Morris, Executive Vice President, General Counsel & Corporate Secretary
30 Frank Lloyd Wright Drive
Ann Arbor, Michigan 48105
20. Approval/Enforcement/Copies: Employee agrees to cooperate with the Company in seeking and obtaining approval of this Agreement from any governmental agency, court, arbitrator, or other adjudicative body. This Agreement shall be deemed drafted equally by the parties. The language of all parts of this Agreement shall be construed as a whole, according to its fair meaning, and any presumption or other principle that the language herein is to be construed against any party shall not apply. This Agreement may be executed in counterparts or by electronic means such as facsimile or electronic portable document format (pdf), and copies of the Agreement shall be considered as enforceable as if they were the original.
21. Headings Irrelevant: The headings in this Agreement are intended as a convenience to the reader and are not intended to convey any legal meaning.
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EMPLOYEE ACKNOWLEDGES THAT S/HE HAS CAREFULLY READ THIS ENTIRE AGREEMENT CAREFULLY. EMPLOYEE IS HEREBY ADVISED BY THE COMPANY TO CONSULT AN ATTORNEY PRIOR TO EXECUTING THIS AGREEMENT, AND FULLY UNDERSTANDS THAT BY SIGNING BELOW, S/HE IS GIVING UP CERTAIN RIGHTS WHICH S/HE MAY HAVE TO SUE OR ASSERT A CLAIM AGAINST ANY OF THE RELEASED PARTIES AS DESCRIBED HEREIN AND THE OTHER PROVISIONS HEREOF. EMPLOYEE ACKNOWLEDGES THAT S/HE HAS NOT BEEN FORCED OR PRESSURED IN ANY MANNER WHATSOEVER TO SIGN THIS AGREEMENT AND S/HE AGREES TO ALL OF ITS TERMS VOLUNTARILY.
| DOMINO’S PIZZA LLC | ||||||||
| Employee: | /s/ Stuart A. Levy |
By: | /s/ Richard E. Allison, Jr. | |||||
| Date: | June 4, 2021 |
Its: | CEO | |||||
| Date: | June 8, 2021 | |||||||
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ATTACHMENT A
Additional Release of Claims (“Additional Release”)
As explained in Paragraph 2 of the Separation Agreement and General Release (“Agreement”), this Additional Release is for Employee to release and waive any and all claims that may have arisen since the Effective Date of the Agreement. This Additional Release is intended to supplement, but not to replace, the Agreement.
Release of Claims: Employee acknowledges that the consideration set forth in the Employment Agreement and the Agreement represents full and final payment of all claims by Employee against the Company, and is in excess of what Employee would otherwise be entitled by virtue of her/his employment. By signing this Additional Release, Employee completely and forever releases the Company and any past, present, or future direct or indirect owners, shareholders, directors, officers, employees, attorneys, agents, insurers, partners, employee benefit plans, predecessors and successors in interest, beneficiaries, executors, administrators, personal representatives, heirs, parents, subsidiaries, successors, and assigns of the Company and any other persons, firms, corporations, or entities with which the Company has been, is now, or may hereafter be affiliated (collectively, the “Released Parties”), from any and all known or unknown claims, demands, grievances, or lawsuits arising out of or in any way relating to any event, matter, or occurrence existing or occurring before Employee signs this Additional Release including, but not limited to, claims that involve or arise from the employment relationship between Employee and the Company, or the termination of that relationship.
This general release includes, but is not limited to, claims, demands, grievances, or lawsuits that arise under any of the following: Title VII of the Civil Rights Act of 1964; 42 U.S.C. § 1981; the Age Discrimination in Employment Act of 1967; the Pregnancy Discrimination Act; the Employee Retirement Income Security Act; the Americans with Disabilities Act; the Family and Medical Leave Act; the Equal Pay Act; the Genetic Information Non-Discrimination Act; the Worker Adjustment and Retraining Notification Act; the Sarbanes-Oxley Act; the Health Insurance Portability and Accountability Act; the Fair Credit Reporting Act; the False Claims Act; the Occupational Safety and Health Act; the Uniformed Services Employment and Reemployment Rights Act; any amendments to the foregoing laws; any other federal, state, local, or foreign constitution, statute, ordinance, or regulation; or any other theory of recovery including, but not limited to, claims of discrimination, harassment, or retaliation of any kind, wrongful discharge, breach of contract, breach of the covenant of good faith and fair dealing, unfair business practices, wage and hour claims of any kind, whether for non-payment, late payment, overtime, misclassification, rest breaks, meal periods, bonuses, reimbursements, deductions, and/or penalties, tort claims of any kind, whether for intentional or negligent infliction of emotional distress, personal injury, defamation, and/or invasion of privacy, and any other common law legal or equitable claims.
This release includes any and all Employee’s claims against the Released Parties that exist as of Employee’s execution of this Additional Release, even if the facts and/or legal theories supporting those claims are unknown to Employee at this time. This release binds Employee as well as her/his marital community, heirs, and assigns. Excluded from this release are any claims or rights which cannot be waived by law, including Employee’s right to seek unemployment compensation benefits.
Acknowledgements Concerning Compensation/Leave/On-the-Job Injury: Employee acknowledges and agrees that the consideration set forth in the Employment Agreement and the Agreement shall constitute the total amount owed by the Company to Employee and that s/he has: (a) been paid by the Company for all hours s/he has worked for the Company; (b) received all amounts due from the Company through the Separation Date including, but not limited to, compensation, wages, payments, bonuses, benefits, pay in lieu of notice, salary continuation or severance, reimbursements, or any other
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remuneration of whatever kind arising from or relating to the employment relationship with the Company, or the termination of that relationship, except for the payments and benefits expressly provided for under the Agreement; (c) received any leave (paid or unpaid) and accommodations to which s/he was entitled through the Separation Date; and (d) not suffered any on-the-job injury or occupational illness while working for the Company for which s/he has not already filed a claim. Employee confirms that s/he has no pending legal proceeding(s) against any of the Released Parties.
Employee Acknowledgements: Employee, by her/his execution of this Additional Release, acknowledges and agrees that the following statements are true:
| (a) | S/he has carefully read this entire Additional Release and has had any and all questions regarding its meaning answered to her/his satisfaction; |
| (b) | The Additional Release is written in language that s/he understands. |
| (c) | S/he is hereby advised to seek independent legal advice and/or counsel of her/his own choosing prior to the execution of this Additional Release; |
| (d) | S/he fully understands that this Additional Release is a waiver of any and all claims, known and unknown, that s/he may have against the Released Parties; |
| (e) | S/he willingly waives any and all claims in exchange for the promises of the Company in the Employment Agreement and the Agreement, which s/he acknowledges constitute valuable consideration that s/he is not otherwise entitled to receive; |
| (g) | S/he enters into this Additional Release knowingly and voluntarily and is under no coercion or duress whatsoever in considering or agreeing to the provisions of this Additional Release; and |
| (g) | S/he understands that this Additional Release is a contract and that either party may enforce it. |
23. Periods for Considering and Revoking the Additional Release: Employee acknowledges that s/he has been given at least 21 days to consider this Additional Release. Employee agrees that, if s/he signs and returns this Additional Release to the Company representative identified below before the end of the above 21-day period, her/his signature is intended to waive her/his right to consider the Additional Release for 21 days. This proposed Additional Release shall be deemed withdrawn if Employee fails to sign and return it to the Company representative identified below within 21 days of her/his receipt of the Additional Release. The parties agree that Employee may revoke this Additional Release at any time within 7 days after signing the Additional Release by written notice delivered by certified mail to the Company representative identified below. The parties acknowledge and agree that this Additional Release will become effective and enforceable once Employee signs and returns it to the Company representative identified below within 21 days of her/his receipt of the Additional Release and following the expiration without exercise of the 7-day revocation period.
Domino’s Pizza LLC
Attention: Kevin Morris, Executive Vice President, General Counsel & Corporate Secretary
30 Frank Lloyd Wright Drive
Ann Arbor, Michigan 48105
EMPLOYEE ACKNOWLEDGES THAT S/HE HAS CAREFULLY READ THIS ENTIRE ADDITIONAL RELEASE CAREFULLY. EMPLOYEE IS HEREBY ADVISED BY THE COMPANY TO CONSULT AN ATTORNEY PRIOR TO EXECUTING THIS ADDITIONAL RELEASE, AND FULLY UNDERSTANDS THAT BY SIGNING BELOW, S/HE IS
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GIVING UP CERTAIN RIGHTS WHICH S/HE MAY HAVE TO SUE OR ASSERT A CLAIM AGAINST ANY OF THE RELEASED PARTIES AS DESCRIBED HEREIN AND THE OTHER PROVISIONS HEREOF. EMPLOYEE ACKNOWLEDGES THAT S/HE HAS NOT BEEN FORCED OR PRESSURED IN ANY MANNER WHATSOEVER TO SIGN THIS ADDITIONAL RELEASE AND S/HE AGREES TO ALL OF ITS TERMS VOLUNTARILY.
| DOMINO’S PIZZA LLC | ||||||||
| Employee: |
|
By: |
| |||||
| Date: |
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Its: |
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| Date: |
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EXHIBIT 31.1
CERTIFICATION OF CHIEF EXECUTIVE OFFICER OF DOMINO’S PIZZA, INC.
I, Richard E. Allison, Jr., certify that:
| 1. | I have reviewed this quarterly report on Form 10-Q of Domino’s Pizza, Inc.; |
| 2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
| 3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; |
| 4. | The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
| a) | Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
| b) | Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
| c) | Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
| d) | Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and |
| 5. | The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions): |
| a) | All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and |
| b) | Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting. |
| July 22, 2021 |
/s/ Richard E. Allison, Jr. | |||||
| Date | Richard E. Allison, Jr. | |||||
| Chief Executive Officer | ||||||
| (Principal Executive Officer and | ||||||
| Principal Financial Officer) |
Exhibit 32.1
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Quarterly Report of Domino’s Pizza, Inc. (the “Company”) on Form 10-Q for the period ended June 20, 2021, as filed with the Securities and Exchange Commission (the “Report”), I, Richard E. Allison, Jr., Chief Executive Officer of the Company, certify, pursuant to 18 U.S.C. § 1350, adopted pursuant to §906 of the Sarbanes-Oxley Act of 2002, that based on my knowledge:
| 1) | the Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and |
| 2) | the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. |
| /s/ Richard E. Allison, Jr. |
| Richard E. Allison, Jr. |
| Chief Executive Officer |
| (Principal Executive Officer and Principal Financial Officer) |
Dated: July 22, 2021
A signed original of this written statement required by Section 906, or other document authenticating, acknowledging, or otherwise adopting the signature that appears in typed form within the electronic version of this written statement required by Section 906, has been provided to Domino’s Pizza, Inc. and will be retained by Domino’s Pizza, Inc. and furnished to the Securities and Exchange Commission or its staff upon request.