As filed with the Securities and Exchange Commission on August 23, 2004
REGISTRATION NO. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Domino’s Pizza, Inc.
(Exact Name of Registrant as Specified in Its Charter)
| Delaware | 38-2511577 | |
| (State or Other Jurisdiction of Incorporation) | (I.R.S. Employer Identification No.) |
30 Frank Lloyd Wright Drive, Ann Arbor, Michigan 48106
(Address of Principal Executive Offices)
2004 Employee Stock Payroll Deduction Plan
(Full Titles of the Plans)
David A. Brandon
Chairman and Chief Executive Officer
30 Frank Lloyd Wright Drive
Ann Arbor, Michigan 48106
(Name, Address and Telephone Number of Agent for Service)
Copies of all communications, including communications sent to agent for service, should be sent to:
| Jane D. Goldstein, Esq. R. Newcomb Stillwell, Esq. Ropes & Gray LLP One International Place Boston, Massachusetts 02110 Telephone: (617) 951-7000 Telecopy: (617) 951-7050 |
Elisa D. Garcia C., Esq. Domino’s Pizza LLC Executive Vice President & General Counsel 30 Frank Lloyd Wright Drive Ann Arbor, Michigan 48106 Telephone: (734) 930-3030 Telecopy: (734) 747-6210 | |
CALCULATION OF REGISTRATION FEE
| Title of securities to be registered |
Amount to be registered |
Proposed maximum offering price per share (1) |
Proposed maximum aggregate offering price |
Amount of registration fee | ||||
| Common Stock, par value $.01 per share |
1,000,000 shares | $13.45 | $13,450,000 | $1,704.12 | ||||
| (1) | The offering price for the shares of $13.45 per share has been estimated solely for the purpose of determining the registration fee pursuant to Rule 457(h) of the Securities Act of 1933 on the basis of the average high and low prices of Domino’s Pizza Inc. Common Stock, par value $.01 per share, reported on the New York Stock Exchange on August 17, 2004. |
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
| Item 3. | Incorporation of Documents by Reference. |
The Registrant hereby incorporates the following documents herein by reference:
(a) The Registrant’s latest prospectus filed pursuant to Rule 424(b) under the Securities Act of 1933, as filed with the Securities and Exchange Commission (the “Commission”) on July 14, 2004.
(b) Not applicable.
(c) The capital stock of the Registrant to be registered on the New York Stock Exchange, Inc. is the Registrant’s Common Stock, par value $.01 per share (the “Common Stock”). The description of the Common Stock is set forth in the information provided under “Description of capital stock, certificate of incorporation and by-laws” in the prospectus, which forms a part of the Registration Statement on Form S-1 (File Number 333-114442) filed under the Securities Act of 1933 with the Securities and Exchange Commission on April 13, 2004 (as amended from time to time, the “S-1 Registration Statement”), which information is incorporated herein by reference.
All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the filing of a post-effective amendment that indicates that all securities offered have been sold or that deregisters all securities then remaining unsold, are incorporated herein by reference from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement contained herein, or in any other subsequently filed document which also is incorporated or deemed to be incorporated by reference herein, modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement.
| Item 4. | Description of Securities. |
Not applicable.
| Item 5. | Interests of Named Experts and Counsel. |
Not applicable.
| Item 6. | Indemnification of Directors and Officers. |
The Registrant is incorporated under the laws of the State of Delaware. Section 102(b)(7) of the Delaware General Corporation Law permits a corporation to include in its certificate of incorporation a provision eliminating or limiting the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided, however, that such provision shall not eliminate or limit the liability of a director (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law, which relates to unlawful payment of dividends and unlawful stock purchases and redemptions, or (iv) for any transaction from which the director derived an improper personal benefit.
Section 145 of the Delaware General Corporation Law provides that a corporation may indemnify any persons who were, are or are threatened to be made, parties to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of such corporation), by reason of the fact that such person is or was an officer, director, employee or agent of such corporation, or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise. The indemnity may include expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the corporation’s best interests and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his conduct was unlawful.
Section 145 of the Delaware General Corporation Law further authorizes a corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or enterprise, against any liability asserted against him and incurred by him in any such capacity, arising out of his status as such, whether or not the corporation would otherwise have the power to indemnify him under Section 145 of the Delaware General Corporation Law.
The Registrant’s restated certificate of incorporation provides that its directors shall not be liable to it or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent that the exculpation from liabilities is not permitted under the Delaware General Corporation Law as in effect at the time such
liability is determined. In addition, the Registrant’s restated certificate of incorporation provides that it shall indemnify its directors to the full extent permitted by the laws of the State of Delaware.
All of the Registrant’s directors and officers will be covered by insurance policies maintained by the Registrant against specified liabilities for actions taken in their capacities as such, including liabilities under the Securities Act of 1933, as amended. In addition, prior to the consummation of this offering, we will enter into indemnification agreements with each of our directors and executive officers that provide for indemnification and expense advancement to the fullest extent permitted under the Delaware General Corporation Law.
| Item 7. | Exemption from Registration Claimed. |
Not Applicable.
| Item 8. | Exhibits. |
| 4.1 | Form of Second Restated Certificate of Incorporation of Domino’s Pizza, Inc. (Incorporated by reference to Exhibit 3.1 to the S-1 Registration Statement.) | |
| 4.2 | Form of Amended and Restated By-laws of Domino’s Pizza, Inc. (Incorporated by reference to Exhibit 3.2 to the S-1 Registration Statement.) | |
| 4.3 | Execution copy of Indenture dated June 25, 2003 by and among Domino’s, Inc., Domino’s Franchise Holding Co., Domino’s Pizza LLC, Domino’s Pizza PMC, Inc., Domino’s Pizza International, Inc., Domino’s Pizza International Payroll Services, Inc., Domino’s Pizza—Government Services Division, Inc. and Domino’s Pizza NS Co. and BNY Midwest Trust Company, as trustee. (Incorporated by reference to Exhibit 4.4 to the Domino’s, Inc. registration statement on Form S-4 filed with the Commission on December 5, 2003 (Reg. No. 333-107774).) | |
| 4.4 | 2004 Employee Stock Payroll Deduction Plan, filed herewith. | |
| 5.1 | Opinion of Ropes & Gray LLP, filed herewith. | |
| 23.1 | Consent of PricewaterhouseCoopers LLP regarding Domino’s Pizza, Inc., filed herewith. | |
| 23.2 | Consent of Ropes & Gray LLP (included in the opinion filed as Exhibit 5.1). | |
| 24.1 | Power of attorney pursuant to which amendments to this registration statement may be filed (included on the signature page of this Registration Statement). | |
| Item 9. | Undertakings. |
The undersigned registrant hereby undertakes:
| 1. | To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
(i) To include any prospectus required by section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement.
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement.
| 2. | That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
| 3. | To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
Signatures
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized in the Township of Ann Arbor, State of Michigan, on the 23rd day of August, 2004.
| DOMINO’S PIZZA, INC. | ||
| By: |
/s/ HARRY J. SILVERMAN | |
| Name: |
Harry J. Silverman | |
| Title: |
Executive Vice President | |
Power of attorney
KNOW ALL PERSONS BY THESE PRESENTS that each individual whose signature appears below constitutes and appoints David A. Brandon and Harry J. Silverman, and each of them, his or her true and lawful attorneys-in-fact and agents with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments, including post-effective amendments, to this registration statement, and to file the same, with all exhibits thereto and all documents in connection therewith, making such changes in this registration statement as such person or persons so acting deems appropriate, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or his, her or their substitute or substitutes, may lawfully do or cause to be done or by virtue hereof.
* * * * *
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
| Signature |
Title |
Date | ||
|
/s/ DAVID A. BRANDON David A. Brandon |
Chairman of the Board, Chief Executive Officer (Principal Executive Officer) and Director | August 23, 2004 | ||
|
/s/ HARRY J. SILVERMAN Harry J. Silverman |
Executive Vice President and Chief Financial Officer (Principal Financial and Accounting Officer) | August 23, 2004 | ||
|
/s/ ANDREW B. BALSON Andrew B. Balson |
Director | August 23, 2004 | ||
|
Dennis F. Hightower |
Director | August 23, 2004 | ||
|
/s/ MARK E. NUNNELLY Mark E. Nunnelly |
Director | August 23, 2004 | ||
|
Robert M. Rosenberg |
Director | August 23, 2004 | ||
EXHIBIT 4.4
DOMINO’S PIZZA, INC.
EMPLOYEE STOCK PAYROLL DEDUCTION PLAN
SECTION 1. PURPOSE OF PLAN
The Domino’s Pizza, Inc. Employee Stock Payroll Deduction Plan (the “Plan”) is intended to provide a method by which eligible employees of Domino’s Pizza, Inc. (“Domino’s”) and such of its Subsidiaries and affiliates as the Board of Directors of Domino’s (the “Board”) may from time to time designate (Domino’s and such Subsidiaries and affiliates being hereinafter referred to as the “Company”) may use voluntary, systematic payroll deductions to purchase shares of common stock, $.01 par value of Domino’s (such common stock being hereafter referred to as “Stock”) and thereby acquire an interest in the future of Domino’s. For purposes of the Plan, a “Subsidiary” is any corporation that would be treated as a subsidiary of Domino’s under Section 424(f) of the Internal Revenue Code of 1986, as amended (the “Code”). The Plan is intended to qualify under Section 423 of the Code and shall be construed accordingly, although Domino’s makes no undertaking or representation to maintain such qualification. In addition, the Plan authorizes the grant of options under a non-423 Plan which do not qualify under Section 423 of the Code pursuant to rules, procedures or sub-plans adopted by the Board (or its designate) designed to achieve desired tax or other objectives (the “Non-423 Plan”). If an affiliate is not a Subsidiary, grants to its employees shall be made under the Non-423 Plan.
SECTION 2. OPTIONS TO PURCHASE STOCK
Under the Plan, there is available an aggregate of not more than 1,000,000 shares of Stock (subject to adjustment as provided in Section 18) for sale pursuant to the exercise of options (“Options”) granted under the Plan to employees of the Company (“Employees”) who meet the eligibility requirements set forth in Section 3 hereof (“Eligible Employees”). The Stock to be delivered upon exercise of Options under the Plan may be either shares of authorized but unissued Stock or shares of reacquired Stock, as the Board may determine.
SECTION 3. ELIGIBLE EMPLOYEES
Subject to the exceptions and limitations set forth below, all Employees whose customary employment for the Company is more than twenty (20) hours per week are eligible to participate in the Plan (except those Employees in such category the exclusion of whom is not permitted under applicable law).
(a) Any Employee who immediately after the grant of an Option would own (or pursuant to Section 423(b)(3) of the Code would be deemed to own) stock possessing 5% or more of the total combined voting power or value of all classes of stock of the employer corporation or of its parent or subsidiary corporations, as defined in Section 424 of the Code, will not be eligible to receive an Option to purchase Stock pursuant to the Plan.
(b) No Employee will be granted an Option under the Plan that would permit his or her rights to purchase shares of stock under all employee stock purchase plans of the employer corporation and parent and subsidiary corporations to accrue at a rate which exceeds $25,000 in fair market value of such stock (determined at the time the Option is granted) for each calendar year during which any such Option granted to such Employee is outstanding at any time, as provided in Section 423 of the Code.
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SECTION 4. METHOD OF PARTICIPATION
The period from January 1 to December 31 of each year will be termed an “Option Period”; provided, that the first Option Period shall commence September 1, 2004 and will end on December 31, 2004 (the “First Option Period”). Each person who is an Eligible Employee on November 1 of the calendar year immediately preceding the first day of an Option Period may elect to participate in the Plan for the next succeeding Option Period by executing and delivering, by such deadline prior thereto as the Board may specify, such enrollment forms or materials, including a payroll deduction authorization in accordance with Section 5, as the Board may determine; provided that, each person who is an Eligible Employee on July 1, 2004 may elect to participate in the First Option Period.
An Eligible Employee who elects to participate in the Plan for an Option Period in accordance with the foregoing will thereby become a participant (“Participant”) on the first day of the Option Period and will remain a Participant until his or her participation is terminated as provided in the Plan.
SECTION 5. PAYROLL DEDUCTION
Each payroll deduction authorization will request withholding at a rate (in whole percentages) of not less than 1% nor more than 15% of Compensation per payroll period to be accomplished by means of payroll deductions over each Exercise Period (as defined in Section 8 below) with respect to payroll dates within the Exercise Period. For purposes of the Plan, “Compensation” shall include and be limited to the same items of compensation (determined without regard to the limitations imposed under Section 401(a)(17) of the Code) as are included in the measure of compensation used to determine the amount of salary reduction contributions under the Company’s 401(k) plan; provided, that if the Company maintains more than one 401(k) plan, “Compensation” shall be determined by reference to the 401(k) plan specified by the Board; and further provided, that if the Company maintains no 401(k) plan, “Compensation” shall mean base pay plus cash bonuses, commissions, overtime and other cash remuneration. A Participant may not change the withholding rate of his or her payroll deduction authorization during an Option Period, except that the Participant may withdraw from the Plan pursuant to Section 9 by notice to the Company at the time and in the manner as described therein. The payroll deduction authorization in effect on the last day of an Option Period shall continue apply to the next succeeding Option Period, unless the Participant elects, in accordance with procedures established by the Company, to change or revoke his or her payroll deduction authorization with respect to such Period. All amounts withheld in accordance with a Participant’s payroll deduction authorization will be credited to a withholding account maintained in the Participant’s name on the books of the Company. Amounts credited to the withholding account shall not be required to be set aside in trust or otherwise segregated from the Company’s general assets, and shall not bear interest.
SECTION 6. GRANT OF OPTIONS
Subject to Section 3(b), each person who is a Participant on the first day of an Option Period will be granted, as of such day and for such Period, an Option entitling the Participant to purchase up to the aggregate maximum number of shares of Stock for which the Option may be exercised in the Exercise Periods contained within such Option Period, as determined pursuant to Section 8 below. In the event the number of shares of Stock reserved for issuance under the Plan is insufficient, the Board shall adjust downward the maximum number of shares of Stock available for purchase under each Option. Option grants under this Section 6 shall be automatic and need not be separately documented.
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SECTION 7. PURCHASE PRICE
The purchase price of Stock issued pursuant to the exercise of an Option will be 85% of the fair market value of the Stock on the date on which the Option is deemed exercised under Section 8(a). Fair market value for any day will mean the Closing Price of the Stock for such day; provided, that if such day is not a trading day, fair market value shall mean the Closing Price of the Stock for the next preceding day which is a trading day. The “Closing Price” of the Stock on any trading day will be the last sale price, regular way, with respect to such Stock, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, with respect to such Stock, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the New York Stock Exchange; or, if such Stock is not listed or admitted to trading on the New York Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which such Stock is listed or admitted to trading; or, if such Stock is not listed or admitted to trading, the last quoted price with respect to such Stock, or, if not so quoted, the average of the high bid and low asked prices in the over-the-counter market with respect to such Stock, as reported by the National Association of Securities Dealers, Inc. Automated Quotation System or such other similar system then in use; or, if on any such date such Stock is not quoted by any such organization, the average of the closing bid and asked prices with respect to such Stock, as furnished by a professional market maker making a market in such Stock selected by the Board in good faith; or, if no such market maker is available, the fair market value of such Stock as of such day as determined in good faith by the Board.
SECTION 8. EXERCISE OF OPTIONS
(a) Each Option Period shall consist of twelve (12) consecutive Exercise Periods of one-month duration, except that the first Option Period shall commence on September 1, 2004 and shall consist of four Exercise Periods. Each Exercise Period, unless abbreviated pursuant to Section 19 below, shall begin on the first day of a calendar month and shall end on the last day of such calendar month, except that the first Exercise Period of the first Option Period shall commence on the first day of that Option Period and shall end on the last day of the calendar month in which such Option Period commenced. On the last day of an Exercise Period, the Participant will be deemed to have exercised each Option previously awarded and then outstanding for the lesser of (i) the maximum number of shares of Stock then available to be purchased under such Option, and (ii) the number of shares of Stock determined by dividing the balance credited to the Participant’s withholding account on the last day of the Exercise Period and allocable to such Option by the Option purchase price per share of the Stock determined under Section 7.
(b) For each Option, the maximum number of shares of Stock available to be purchased in any Option Period shall not exceed $25,000 divided by the fair market value of a share of Stock on the first day of an Option Period. For this purpose, fair market value of a Share of Stock will have the same meaning as provided in Section 7.
(c) It is a condition of participation in the Plan that a Participant agrees that all Stock purchased pursuant to the Plan will be held in the Participant’s name in a brokerage account designated by the Company until the later of the date on which (1) the Participant sells the shares following the end of the twelve month holding period (as determined under Section 10) or (2) the Participant terminates employment with the Company.
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(d) Notwithstanding anything herein to the contrary, Domino’s obligation to issue and deliver shares of Stock under the Plan will be subject to the approval required of any governmental authority in connection with the authorization, issuance, sale or transfer of said shares, to any requirements of any national securities exchange applicable thereto, and to compliance by Domino’s with other applicable legal requirements in effect from time to time.
SECTION 9. CANCELLATION AND WITHDRAWAL
A Participant who holds an Option under the Plan may at any time prior to exercise thereof cancel all (but not less than all) of his or her remaining Option or terminate his or her participation in the Plan in the form and manner specified by the Company and with such prior notice as the Company may require. Upon such cancellation or termination, the balance in the Participant’s withholding account will be retained in the Participant’s account and applied to the deemed exercise of the Option at the end of the Exercise Period.
A Participant who makes a hardship withdrawal from a Company savings plan qualifying under Section 401(k) of the Code (a “401(k) Plan”) will be deemed to have terminated his or her payroll deduction authorization as of the date of such hardship withdrawal, will cease to be a Participant as of such date, and will be deemed to have canceled his or her Option effective as of such date. No further amounts will be withheld from the Participant’s compensation under the Plan after such date. Amounts credited to the Participant’s account shall be retained under the Plan and applied to the deemed exercise of the Participant’s Option under the Plan at the end of the Exercise Period as provided in Section 8. An Employee who has made a hardship withdrawal from a 401(k) Plan will not be permitted to participate in the Plan until the first Option Period that begins six months after the date of his or her hardship withdrawal.
SECTION 10. RESTRICTION ON TRANSFER OF STOCK
Participants shall not be permitted to sell, assign, transfer, pledge, hypothecate, give or otherwise dispose of, by operation of law or otherwise (collectively “transfer”), Stock received pursuant to the exercise of an Option, or any interest therein, for a period specified by the Board. Unless otherwise specified by the Board, the period shall be one (1) year from the date of exercise of such Option, except transfers that occur by will or the laws of descent and distribution. The Board may specify a different (or no) restriction period for grants made to employees under the Non-423 Plan.
SECTION 11. LEGEND
Any certificates representing Stock received pursuant to the exercise of an Option shall bear a legend substantially in the following form:
| THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS UPON TRANSFER SET FORTH IN AN EMPLOYEE STOCK PAYROLL DEDUCTION PLAN. THE CORPORATION WILL FURNISH A COPY OF SUCH PLAN TO THE HOLDER OF THIS CERTIFICATE UPON WRITTEN REQUEST AND WITHOUT CHARGE. |
If Stock is held in book-entry form, the Company may take such steps as it deems necessary or appropriate to record and manifest the restrictions applicable to such Stock.
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SECTION 12. EFFECT OF PROHIBITED TRANSFER
The Company shall not be required (a) to transfer on its books any Stock which has been sold or transferred in violation of any of the provisions set forth in this Plan, or (b) to treat as owner of such Stock or to pay dividends to any transferee to whom any such Stock shall have been so sold or transferred.
SECTION 13. TAXES.
Payroll deductions are made on an after-tax basis. If the Company determines that the grant of, or lapse of restrictions, on Stock purchases under the Plan could result in employment tax liability, the Company, as a condition of granting such shares, will make such provision as it deems necessary to provide for the remittance by the Participant of employment taxes required to be paid in connection with such grant, purchase or disposition of shares.
SECTION 14. TERMINATION OF EMPLOYMENT
Except as otherwise provided in Section 11, upon the termination of a Participant’s employment with the Company for any reason, he or she will cease to be a Participant, any Option held by him or her under the Plan will be deemed canceled, the balance of his or her withholding account will be retained under the Plan and applied to the deemed exercise of the Participant’s Option and the shares purchased thereby will be held as described in Section 8(c), and he or she will have no further rights under the Plan.
| SECTION | 15. DEATH OF PARTICIPANT |
A Participant may elect that if death should occur during an Option Period the balance, if any, of the Participant’s withholding account at the time of death will be applied at the end of the Exercise Period in which the death occurs to the deemed exercise of the Participant’s Option and the shares thereby purchased under the Option will be delivered to the Participant’s beneficiary or beneficiaries. For this purpose, a Participant’s beneficiary(ies) for purposes of the Plan shall be (i) such person or persons as are treated as the Participant’s beneficiary(ies) for purposes of the Company group life insurance plan applicable to the Participant, or (ii) in the absence of any beneficiary determined under clause (i), the Participant’s estate.
SECTION 16. EQUAL RIGHTS; PARTICIPANT’S RIGHTS NOT TRANSFERABLE
All Participants granted Options under the Plan with respect to any Option Period will have the same rights and privileges, except for differences that may be mandated by local law and that are consistent with Code Section 423(b)(5); provided, however, that Participants participating in the Non-423 Plan by means of rules, procedures or sub-plans adopted pursuant to Section 22 need not have the same rights and privileges as Participants participating in the Section 423 Plan. Each Participant’s rights and privileges under any Option granted under the Plan will be exercisable during the Participant’s lifetime only by him or her and except as provided at Section 15 above may not be sold, pledged, assigned, or transferred in any manner. In the event any Participant violates or attempts to violate the terms of this Section, any Options held by him or her may be terminated by the Company and, upon return to the Participant of the balance of his or her withholding account, all of the Participant’s rights under the Plan will terminate.
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SECTION 17. EMPLOYMENT RIGHTS
Nothing contained in the provisions of the Plan will be construed as giving to any Employee any right of employment or as interfering with the right of the Company to discharge any Employee at any time.
SECTION 18. CHANGE IN CAPITALIZATION
In the event of any change in the outstanding Stock of Domino’s by reason of a stock dividend, split-up, recapitalization, merger, consolidation, reorganization, or other capital change, the aggregate number and type of shares available under the Plan, the number and type of shares under Options granted but not exercised, the maximum number and type of shares purchasable under an Option, and the Option price will be appropriately adjusted.
SECTION 19. ADMINISTRATION OF PLAN
The Plan will be administered by the Board, which will have the right to determine any matters which may arise regarding the interpretation and application of the provisions of the Plan and to make, administer, and interpret such rules and regulations as it deems necessary or advisable. References in the Plan to the Board shall include the Board’s delegates to the extent of any delegation by the Board to such delegates of administrative responsibilities hereunder.
SECTION 20. AMENDMENT AND TERMINATION OF PLAN
Domino’s reserves the right at any time to amend the Plan in any manner it may deem advisable, by vote of the Board; provided, that any amendment that would be treated as the adoption of a new plan for purposes of Section 423 of the Code will have no effect unless approved by the shareholders of Domino’s within twelve months before or after its adoption.
The Plan may be suspended or terminated at any time by the Board. In connection therewith, the Board may either cancel outstanding Options or continue them and provide that they will be exercisable either at the end of each remaining Exercise Period as determined under Section 8 above or on such earlier date as the Board may specify (in which case such earlier date shall be treated as the last day of the applicable Option Period and Exercise Period).
SECTION 21. APPROVAL OF SHAREHOLDERS
The Plan and the exercisability of Options granted hereunder will be subject to the approval of the shareholders of Domino’s obtained within twelve months before or after the date the Plan is adopted by the Board.
SECTION 22. ADDITIONAL PROVISIONS TO COMPLY WITH LOCAL LAW
The Board may from time to time establish one or more sub-plans under the Plan for purposes of satisfying applicable laws of state and local domestic United States and non-United States jurisdictions. The Board shall establish such sub-plans by adopting supplements to this Plan containing such additional terms and conditions not otherwise inconsistent with the Plan as the Board shall deem necessary or desirable. To the extent inconsistent with the requirements of Code Section 423, such sub-plans and/or supplements shall be considered part of the Non-423 Plan, and the options granted thereunder shall not be considered to comply with Section 423. All supplements adopted by the Board shall be deemed to be part of the Plan and the Company shall not be required to provide copies of any supplement to Participants in any jurisdiction that is not the subject of such supplement.
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Exhibit 5.1
August 23, 2004
Domino’s Pizza, Inc.
30 Frank Lloyd Wright Drive
Ann Arbor, Michigan 48106
Ladies and Gentlemen:
This opinion is furnished to you in connection with a registration statement on Form S-8 (the “Registration Statement”), filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), on or about the date hereof for the registration of 1,000,000 shares of Common Stock, $.01 par value (the “Shares”), of Domino’s Pizza, Inc., a Delaware corporation (the “Company”). The Shares are issuable under the Company’s Employee Stock Payroll Deduction Plan (the “Plan”).
We are familiar with the actions taken by the Company in connection with the Plan. For purposes of our opinion, we have examined and relied upon such documents, records, certificates and other instruments as we have deemed necessary.
The opinions expressed below are limited to the Delaware General Corporation Law, including the applicable provisions of the Delaware Constitution and the reported cases interpreting those laws.
Based upon and subject to the foregoing, we are of the opinion that, when the Shares have been issued and sold and consideration received therefor by the Company in accordance with the terms of the Plan, the Shares will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving this consent we do not thereby admit that we are included in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission.
It is understood that this opinion is to be used only in connection with the offer and sale of Shares while the Registration Statement is in effect.
Very truly yours,
/s/ Ropes & Gray LLP
Ropes & Gray LLP
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our reportdated January 30, 2004, except as to Note 13 and the effect of a two-for-three stock split which are May 11, 2004, relating to the financial statements and our report dated January 30, 2004, relating to the financial statement schedule of Domino’s Pizza, Inc., included in the Domino’s Pizza, Inc. Registration Statement on Form S-1 (No. 333-114442-01).
/s/ PricewaterhouseCoopers LLP
Detroit, Michigan
August 19, 2004