AMENDED AND
RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this
"AGREEMENT"), dated as of January 1, 1995 by and among The
Middleby Corporation, a Delaware corporation ("TMC"), Middleby
Marshall Inc., a Delaware corporation (the "COMPANY"),
(collectively the "EMPLOYER"), and William F. Whitman Jr.
("WHITMAN") amends and restates in its entirety the Employment
Agreement dated as of March 10, 1978 among the parties hereto
(or their respective predecessors), as modified and clarified as
of such date, and as amended by the Amendment to Employment
Agreement dated December 19, 1983, the Supplement to Employment
Agreement dated May 16, 1984, the Amendment to Employment
Agreement of William F. Whitman, Jr. dated as of January 1, 1991,
the Amendment to Employment Agreement of William F. Whitman, Jr.
dated June 17, 1993, and the Amendment to Employment Agreement of
William F. Whitman, Jr. dated December 23, 1994 (as so amended,
modified, clarified and supplemented, the "ORIGINAL AGREEMENT").
R E C I T A L:
The Employer desires to continue the employment of
Whitman as Chairman of the Board of Directors of TMC and Chairman
of the Board of Directors of the Company; Whitman desires to
continue to serve the Employer in such capacities, all of the
terms and conditions hereinafter provided.
NOW, THEREFORE, the parties hereto hereby amend and
restate the Original Agreement in its entirety as follows:
1. EMPLOYMENT. The Employer agrees to employ Whitman
and Whitman agrees to be employed by the Employer subject to the
terms and provisions of the Agreement.
2. TERM. The employment of Whitman by Employer as
provided in Section 1 will be for a period commencing on
January 1, 1995 and ending on December 31, 2000, unless sooner
terminated as hereinafter provided.
3. DUTIES. Whitman shall serve as Chairman of the
Board of Directors of TMC and shall have such powers and duties
as may be from time to time prescribed by the Board of Directors
of TMC, provided that the nature of Whitman's powers and duties
so prescribed shall not be inconsistent with Whitman's position
and duties hereunder. Whitman shall also serve as Chairman of
the Board of Directors of the Company reporting only to the Board
of Directors of the Company and shall have the powers and duties
as may from time to time be prescribed by the Board of Directors
of the Company. Whitman shall devote such portion of his time as
shall be necessary to manage the business and affairs of Employer
and shall use his best efforts to advance the best interests of
Employer, provided, however, that Whitman shall be permitted to
invest in real estate and engage in other outside business
activities which are not related to or competitive with the
business and affairs of Employer for which he may receive
compensation, and provided further that such activities do not
unreasonably interfere with the performance of his duties and
obligations hereunder. If elected as such, Whitman shall serve as
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a member of the Executive Committee of the Board of Directors
of TMC and the Company. The Employer shall indemnify Whitman to
the fullest extent permitted by the General Corporation Law of
the State of Delaware, as amended from time to time for all
amounts (including, without limitation, judgments, fines,
settlement payments, expenses and attorneys' fees) incurred or
paid by Whitman in connection with any threatened, pending or
completed action, suit, investigation or proceeding, whether
civil, criminal, administrative or investigative, arising out of
or relating to the performance by Whitman of services for, or the
acting by Whitman as a director, officer or employee of TMC, the
Company, any subsidiary of TMC or the Company or any other person
or enterprise at TMC's or the Company's request. The Company and
TMC shall each use their best efforts to obtain and maintaining
full force and effect during the term of this Agreement
Directors' and Officers' Liability Insurance Policies providing
full and adequate protection to Whitman, for all his capacities,
provided that the Boards of Directors of TMC and the Company
shall have no obligation to purchase such insurance if, in their
opinion, coverage is available only on unreasonable terms.
4. COMPENSATION DURING EMPLOYMENT; RELATED MATTERS.
(a) BASE SALARY. Commencing January 1, 1995, the
Employer shall pay to Whitman a base salary at a rate per annum
not less than $350,000, payable in equal semimonthly installments
during the period of Whitman's employment hereunder. The Boards
of Directors of Employer at least annually will review Whitman's base
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salary and other compensation during the period of his
employment hereunder with a view to the increase thereof based
upon his performance, inflation, then prevailing industry salary
scales and other relevant factors. Any increase in base salary
or other compensation shall in no way limit or reduce any other
obligation of TMC or the Company hereunder and, once established
at an increased specified rate, Whitman's base salary hereunder
shall not thereafter be reduced.
(b) BONUSES. Employer shall establish a bonus pool to
which shall be credited each year beginning January 1, 1995, an
amount equal to 6% of the operating profits of Employer
calculated prior to tax, interest, corporate office and other
allocation charges. Whitman shall be entitled to a distribution
of one-half of such bonus pool subject to the terms and
conditions of the bonus pool program. In addition, Whitman shall
be entitled to a one-half participation in any other bonus or
similar program established by Employer. All such payments shall
be separate from and in addition to the base salary paid under
subsection 4(a).
(c) EXPENSE REIMBURSEMENT. Employer shall reimburse
Whitman for those reasonable, proper and necessary expenses
incurred by him in connection with the business of Employer for
which he submits itemized statements in reasonable detail.
(d) PARTICIPATION IN BENEFIT PLANS. Whitman shall be
entitled to participate in or receive benefits under any pension
plan, profit sharing plan, stock option plan, stock purchase plan
or arrangement, health-and-accident plan, or any other employee
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benefit plan or arrangements made available in the future by TMC
or the Company, or any of their respective subsidiaries, to its
executives and key management employees. Nothing paid to Whitman
under any such plan or arrangement (or under any such plan or
arrangement presently in effect, other than under the bonus pool
program referred to in subsection 4(b) above) shall be deemed or
treated as a payment to Whitman hereunder.
(e) VACATION. Whitman shall be entitled to paid
vacation days in each calendar year determined by the Employer
from time to time, but not less than six weeks in any calendar
year, prorated in any calendar year during Whitman is employed
hereunder for less than an entire year in accordance with the
number of days in such year during which he is so employed.
Whitman shall also be entitled to all paid holidays given by
Employer to their senior executive officers.
(f) MINIMUM SPECIFIED BENEFITS. Notwithstanding
Whitman's participation in any benefit plans under subsection
4(d), Whitman shall be entitled to the minimum specified benefits
listed in Exhibit A hereto during the term of this Agreement and
for a period of one year after termination hereof.
5. REGISTRATION RIGHTS.
(a) DEMAND RIGHTS. Upon the written request of
Whitman at any time, but no more than once during the term of
this Agreement, (which request shall specify the number of shares
of TMC common stock owned by Whitman and which he intends to sell
or dispose of (collectively "TMC SHARES") and terms and
conditions of
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sale or disposal), TMC shall as promptly as is
reasonably possible, prepare, file and use its best efforts to
cause to become effective a registration statement under the
Securities Act of 1933, as amended (the "ACT"), or any similar
statute then in effect, with respect to the TMC Shares and TMC
shall take whatever action may be necessary to permit such sale
or other disposition of the TMC Shares.
(b) INCIDENTAL RIGHTS. If TMC at any time proposes to
file a registration statement covering proposed sales for cash of
any of its equity securities under the Act or any similar federal
statute then in effect, it will give written notice to Whitman
and at the written request of Whitman within twenty days of
receipt of such notice, which request cannot be made more than
twice during the term of this Agreement (which written requests
shall specify the number of TMC Shares intended to be sold or
disposed of and terms and conditions of sale or disposal), TMC
shall use its best efforts to cause such TMC Shares to be
included in the registration statement and take whatever action
is necessary to permit such sale or other disposition.
(c) GENERAL. TMC shall keep effective and maintain
any registration specified in the two immediately preceding
Subsections for a period not exceeding six months as Whitman may
request and from time to time during such period shall amend or
supplement the prospectus used in connection therewith to the
extent necessary to comply with applicable law. TMC shall
furnish Whitman with as many copies of any prospectus (and of any
amended or supplemental
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prospectus) in connection with any such
registration as he may reasonably request and TMC shall, when
requested by Whitman, take any action necessary to permit the
offering of TMC Shares under the securities laws of such states
as he may designate.
(d) EXPENSES. All expenses, disbursements and fees in
connection with any action required to be taken under this
Section 5 shall be borne by TMC and shall not be borne by
Whitman.
(e) LEGAL OPINION. At the time when any registration
statement under the Act pursuant to this Section 5 becomes
effective and at the time of each post effective amendment, TMC
will furnish to Whitman an opinion of counsel reasonably
satisfactory to Whitman to the effect that to the best of the
knowledge of such counsel, (i) no stop order suspending the
effectiveness of the registration statement has been issued and
no proceedings for that purpose have been instituted or are
pending or contemplated under the Act, (ii) the registration
statement and the prospectus as of the effective date of the
registration statement or amendment, as the case may be, appeared
on their face to be appropriately responsive in all material
respects to the requirements of the Act and the applicable rules
and regulations of the Securities and Exchange Commission
thereunder (iii) such counsel have no reason to believe that the
registration statement or the prospectus, as of the effective
date of the registration amendment, as the case may be, contained
any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make
the statements therein not
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misleading, and (iv) the TMC Shares
offered thereunder have been duly authorized and upon issuance
will be fully paid and nonassessable, and it is understood that
counsel need not express any opinion or belief as to the
financial statements or financial data contained in the
registration statement or prospectus and need assume no
responsibility for the accuracy, completeness or fairness of the
statements contained in the registration statement and prospectus
and need assume no responsibility for the accuracy, completeness
or fairness of the statements contained in the registration
statement and prospectus (or any amendment or supplement thereto)
except for those made in the prospectus under the captions
setting forth descriptions of the common stock of TMC and any
underwriting agreement to which the TMC is a party insofar as
they relate to the provisions of statements therein described.
(f) INDEMNIFICATION. TMC hereby agrees to indemnify
Whitman against all losses, claims, damages, liabilities and
expenses and actions (under the Act, common law or otherwise)
caused by any untrue statement or alleged untrue statement of a
material fact contained in any such registration statement or
prospectus (and as amended or supplemented if TMC furnished any
amendments or supplements thereto) or any preliminary prospectus
or caused by any omission or alleged omission to state therein a
material fact required to be stated therein necessary to make the
statements therein not is leading, except insofar as such losses,
claims, damages, liabilities or expenses are caused by any untrue
statement or omission contained in information furnished in
writing
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to TMC by Whitman expressly for use therein. If the
offering pursuant to any such registration statement is made
through underwriters, TMC agrees to enter into an underwriting
agreement in customary form with such underwriters and to
indemnify such underwriters and each person who controls such
underwriters within the meaning of the Act or any similar federal
statute then in effect to the same extent as herein before
provided and as appropriate with respect to the indemnification
of Whitman. In connection with any registration statement in
which Whitman is participating, Whitman will furnish to TMC in
writing such information as shall reasonably be required by
Whitman for use in any such registration statement or prospectus
and Whitman will indemnify TMC, its directors and officers, each
underwriter and each person, if any, who controls TMC or any
underwriter within the meaning of the Act, against any losses,
claims, damages, liabilities and expenses and actions in respect
thereof (under the Act or common law or otherwise) resulting from
any untrue statement or alleged untrue statement of a material
fact or any omission or alleged omission of a material fact
required to be stated in the registration statement or prospectus
and necessary to take the statements therein not misleading, but
only to the extent that such untrue statement or omission is
contained in information so furnished in writing by Whitman
expressly for use therein.
6. TERMINATION.
(a) Whitman's employment hereunder may be terminated
(unless a notice of dispute is given as below provided) upon not
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less than 60 days' written notice by the Boards of Directors of
TMC and the Company to Whitman in the event that Whitman
hereafter (i) shall willfully fail to comply with any of the
material terms of this Agreement, (ii) shall willfully fail to
perform his duties hereunder, or (iii) shall willfully engage, in
his capacity as an executive officer of the Employer, in gross
misconduct injurious to either TMC or the Company, and a vote to
such effect shall have been adopted by not less than a majority
of the directors then in office of TMC or the Company (whichever
is applicable), after reasonable notice to Whitman and an
opportunity for him to be heard before such Board. For purposes
of this Subsection 6(a) no act, or failure to act, on Whitman's
part shall be considered "WILLFUL" unless done, or omitted to be
done, by him not in good faith and without reasonable belief that
his action or omission was in the interest of TMC or the Company.
(b) Whitman's employment hereunder may be terminated
(unless a notice of dispute is given as provided below) upon not
less than 60 days' written notice by the Boards of Directors of
the Employer to Whitman in the event that (i) the Boards shall
have received a written statement from a reputable independent
physician to the effect that Whitman shall have become so
incapacitated as to be unable to resume within the ensuing 12
months his employment hereunder by reason of physical or mental
illness, or (ii) Whitman shall not have substantially performed
his duties hereunder for six consecutive months (exclusive of any
vacation permitted under subsection 4(e) hereof) by reason of any
such physical or mental
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illness; and in the event Whitman's
employment hereunder is terminated pursuant to this Subsection
6(b), commencing with the effective date of such termination, the
Employer shall pay and provide the benefits described in Section
7 below.
(c) If, within thirty days after any notice of
termination is given as provided above, Whitman informs the
Employer in writing that a dispute exists concerning such
termination, such termination shall not occur until the date on
which such dispute is finally resolved, either by mutual written
agreement of the parties, by a binding and final arbitration
award or by a final judgment, order or decree of a court of
competent jurisdiction (the time for appeal therefrom having
expired and no appeal having been perfected). During the
pendency of any dispute pursuant to a notice given pursuant to
this Subsection 6(c), the Employer will continue to pay and
provide to or for Whitman all of the compensation and benefits
provided for during the term of this Agreement, except that,
until such dispute is finally resolved as provided above,
Whitman's base salary shall be paid at the rate of 75% of his
base salary in effect immediately prior to the date of the notice
of termination. If there is a final determination to the effect
that the Employer did not have a proper basis for such
termination, the Employer shall promptly pay or provide to
Whitman the total amount by which his base salary payments were
reduced pursuant to the preceding sentence.
(d) In the event the Employer breaches any of the
provisions of this Agreement in any material respect and such
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breach shall continue after 30 days notice thereof from Whitman,
such breach shall constitute a constructive termination of
Whitman's employment by the Employer in a manner not permitted by
this Agreement, and Whitman may (but shall not be required to)
terminate his employment hereunder. Should Whitman elect to
terminate his employment hereunder upon any such constructive
termination by the Employer, Whitman shall be entitled to receive
on the date of such termination an amount equal to two (2) times
his annual base salary in effect at the date of such breach and
in addition the Employer shall commence to pay and provide the
benefits described in Section 7 below. Should Whitman elect not
to terminate his employment hereunder upon any such constructive
termination by the Employer, Whitman shall be entitled to
continue in the employ of the Employer subject to all of the
terms and provisions of this Agreement for a period of two years
from the date of such breach or until the expiration of the term
hereof, if later.
(e) Notwithstanding anything to the contrary contained
in this Agreement, the Board of Directors of the Employer may
terminate Whitman's active employment under this Agreement,
without cause, by giving at least 90 days written notice thereof
to Whitman. In the event of such termination:
(i) Whitman shall be entitled to receive (A) on
the date of such termination an amount equal to two (2) times his
annual base salary in effect at such date; and (B) bonuses as
specified in Subsection 4(b) through the two (2) year period
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commencing on the date of such termination (Any bonus due with
respect to a period of less than a full fiscal year shall be
payable promptly following determination of the operating profits
(before taxes, interest and charges) for such fiscal year in an
amount equal to the bonus calculated as provided in Subsection
4(b) multiplied by a fraction, the numerator of which is the
number of days from the commencement date of such fiscal year to
the Termination Date, and the denominator of which is 365); and
(ii) commencing on the date of such termination,
Whitman shall be entitled to receive the benefits described in
Section 7 below.
(f) In the event that the proportionate share of the
total outstanding voting securities of TMC held by any person
other than Whitman, or held by any group of two or more persons
who agree to act together for the purpose of acquiring, holding,
voting or disposing of the voting securities of TMC and Whitman
is not a member of such group, shall increase after the date
hereof by twenty-five (25) percentage points or more, then at any
time during the two (2) year period immediately following such
increase, Whitman shall have the right, upon written notice to
Employer, to terminate his employment and, upon such termination,
shall be entitled to receive from Employer (i) any and all
accrued but unpaid base salary and other compensation through the
date of termination, (ii) any and all benefits under Subsection
4(b) hereof accrued but unpaid to the date of termination, (iii)
the benefits described in Section 7 hereof, (iv) for a period of
one year
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beginning on the date of termination, all health and
medical benefits which Employer was providing to Whitman
immediately prior to such termination, and (v) as severance pay,
an amount equal to two years of base salary as in effect
immediately prior to such termination, such amount to be payable
in equal monthly installments during the two (2) year period
beginning on the date of termination. Upon such termination, the
provisions of Sections 9, 10 and 11 shall continue in full force
and effect; provided, however, that Whitman shall be bound by the
covenants set forth in Subsection 10(a) as if Employer had
elected to pay the base compensation specified in such Subsection
10(a); provided further that Employer shall not be obligated to
pay such base compensation or any other amount except as provided
above in this Subsection 6(f). This Subsection 6(f) shall apply
upon the occurrence of the events described herein without regard
to Subsection 6(g) hereof.
EXAMPLE: On January 1, 1995, Individual A, a person
other than Whitman, owns 2.42% of the total outstanding voting
securities of TMC. Thereafter Individual A commences a series of
open market purchases, and on March 3, 1996 for the first time
his holdings exceed 27.42% of the total outstanding voting
securities of TMC. Whitman may terminate his employment with
Employer at any time from March 3, 1996 through March 3, 1998,
and upon such termination shall be entitled to those amounts set
forth in this Section 6(f).
(g) Whitman may elect to terminate his active
employment under this Agreement by giving at least 90 days
written notice to
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the Company. Whitman's compensation and other
benefits hereunder shall cease as of the date specified in such
notice, and Whitman shall be entitled to receive from Employer
(i) any and all accrued but unpaid base salary and other
compensation through the date of termination, (ii) any and all
benefits under Subsection 4(b) hereof accrued but unpaid to the
date of termination, and (iii) the benefits described in Section
7 hereof, and the provisions of Sections 9, 10 and 11 shall
continue in full force and effect. This Subsection 6(g) shall
not apply to any termination to which Subsection 6(d) or 6(f)
applies.
7. RETIREMENT.
(a) MONTHLY BENEFITS.
In addition to Whitman's participation in any pension
plan referred to in Subsection 4(d) hereof, the Employer will
after termination of Whitman's employment with the Employer for
any reason or for no reason, pay to Whitman or his designee
retirement benefits (calculated as provided below) in equal
monthly installments commencing on the first day of the month
following the effective date of such termination of employment.
Each monthly installment of retirement benefits shall be in an
amount equal to one-twelfth (1/12) of seventy-five percent (75%)
of Whitman's Total Compensation in effect during the last year of
his employment with the Employer.
In addition, on each anniversary of the date of the
first payment of retirement benefits pursuant to this Subsection
7(a), the Employer shall increase the amount of such retirement
benefits
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payable on and after such anniversary date by a
percentage equal to the percentage increase in the Consumer Price
Index For All Urban Consumers for the twelve (12) month period
then ended. Any such retirement benefits will be reduced,
commencing March 1, 2005, by the amount per month which Whitman
is entitled to receive under the Salaried Retirement Plan of the
Company which was terminated in 1982. Retirement benefits paid
pursuant to this Subsection 7(a) shall be paid to Whitman for his
life, provided, however, that in the event of his death prior to
age seventy-five (75), such retirement benefits shall be paid (or
shall continue, as the case may be) to such beneficiary or
beneficiaries as Whitman shall designate (or in the event of
default of such designation, to his estate) until the first day
of the month in which Whitman would have attained age seventy-
five (75).
For purposes hereof, "Total Compensation" for any year
of employment with the Employer shall mean the sum of (i)
Whitman's base salary from the Employer or any Affiliate in
effect during such year (without regard to any reduction pursuant
to Subsection 6(c) above), plus (ii) the annualized amount of
director's fees payable to Whitman by the Employer or any
Affiliate during such year for services rendered by him. For
purposes hereof, "Affiliate" shall mean (x) Asbury Associates,
Inc., and (y) any other direct or indirect majority- or wholly-
owned subsidiary of the Employer.
(b) HEALTH AND MEDICAL BENEFITS. In addition to the
benefits referred to in Subsection 7(a) hereof, the Employer,
after
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termination of Whitman's employment with the Employer for
any reason or for no reason, shall maintain in full force and
effect for the continued benefit of Whitman and his spouse all
health and medical plans and programs which the Employer
maintains for its senior executives and their families, provided
that such participation is permitted under the general provisions
of such plans and programs, and provided further that the
benefits under such plans and programs shall be secondary to any
governmentally provided benefits. In the event that Whitman's or
his spouse's participation in any such plan or program is barred
or otherwise not permitted, the Employer shall provide health and
medical benefits to Whitman and his spouse substantially similar
to those from which he or she was barred or in which he or she
was otherwise not permitted to participate. The Employer shall
provide such benefits to Whitman and his spouse for their
respective lives. The Employer may self-insure such benefits or
may purchase individual policies or plans to provide such
benefits. If, while eligible for benefits under this Subsection
7(b), Whitman becomes employed by any person and becomes eligible
for health and medical benefits under such employer's health
plan, the Employer shall be relieved, during the period of such
employment and to the extent of the benefits for which Whitman
and his spouse are eligible under such employer's plan, of the
obligation to provide the health and medical benefits described
in this Subsection 7(b). Nothing in this Subsection 7(b) shall
be construed to give Whitman the right
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to continued employment which is not expressly set forth
in this Agreement.
(c) In order to fund and secure the obligations of the
Employer under this Section 7, the Employer agrees at Whitman's
request to purchase within sixty (60) days after the end of each
year of his employment an annuity (from such insurance company as
Whitman may approve) in an amount necessary to fund Employer's
obligations under this Section 7.
8. DISPUTES. If Whitman or the Employer shall
dispute any termination of Whitman's employment hereunder or if
any dispute concerning any payment hereunder shall exist,
(a) either party shall have the right (but not the
obligation), in addition to all other rights and remedies
provided by law, to compel arbitration of the dispute in the City
of New York under the rules of the American Arbitration
Association by giving written notice of arbitration to the other
party within thirty days after notice of such dispute has been
received by the party to whom given, and
(b) if such dispute (whether or not submitted to
arbitration pursuant to subsection (a) above) results in a
determination that (i) the Employer did not have the right to
terminate Whitman's employment under the provisions of this
Agreement, (ii) Whitman did have the right to terminate his
employment under the provisions of this Agreement, or (iii) the
position taken by Whitman concerning payments to Whitman is
correct, as the case may be, the Employer shall promptly pay, or if
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theretofore paid by Whitman, shall promptly reimburse Whitman
for, all costs and expenses (including counsel fees) reasonably
incurred by Whitman in connection with such dispute.
9. PROTECTION OF CONFIDENTIAL INFORMATION
(a) COVENANT. Whitman acknowledges that his
employment by the Employer will, throughout the term of this
Agreement, bring him into close contact with many confidential
affairs of the Employer, including information about costs,
profits, markets, sales, products, key personnel, pricing
policies, operational methods, technical processes and other
business affairs and methods and other information not readily
available to the public and plans for future developments.
Whitman further acknowledges that the business of Employer is or
may hereafter be conducted throughout the world (the
"Territory"), that its products are marketed throughout the
Territory, that Employer competes in nearly all of its business
activities with other organizations which are or could be located
in nearly any part of the Territory and that the nature of the
services and position of Whitman are such that he is capable of
competing with Employer from nearly any location in the
Territory. In recognition of the foregoing, Whitman covenants
and agrees:
(i) That he will keep secret all confidential
matters of Employer and not disclose them to anyone outside of
the Employer, either during or after the term of this Agreement
except with the Employer's prior written consent; and
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(ii) That he will deliver promptly to Employer on
termination of this Agreement, or at any time Employer may so
request, all confidential memoranda, notes, records, reports and
other confidential documents (and all copies thereof) relating to
the Employer's business, which he may then possess or have under
his control.
(b) SPECIFIC REMEDIES. If Whitman commits a breach of
any of the provisions of Subsection 9(a), Employer shall have (i)
the right and remedy to have such provisions specifically
enforced by any court having equity jurisdiction, it being
acknowledged and agreed that any such breach will not provide an
adequate remedy to Employer, and (ii) the right and remedy to
require Whitman to account for and pay over to Employer all
compensation, profits, monies, accruals, increments or other
benefits (collectively "Benefits") derived or received by Whitman
as the result of any transactions constituting a breach of any of
the provisions of Subsection 9(a), and Whitman hereby agrees to
account for and pay over such Benefits to Employer.
10. RESTRICTION ON COMPETITION.
(a) COVENANT. In recognition of the considerations
described in Subsection 9(a), Whitman covenants and agrees that
(i) during the term of this Agreement and (ii) in the event the
Employer elects to pay Whitman the base compensation specified in
subsection 4(a) for a period of one year following termination of
this Agreement and the Employer is not in default of its
obligations under this Agreement, for a period of one year
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thereafter, he will not knowingly act or conduct himself to the
material detriment of the Employer in a manner which he has
reason to believe is inimical or contrary to the best interest of
the Employer through competition in the Territory materially
detrimental to the Employer. Notwithstanding the above, Whitman
shall not be restricted in any way from investments in real
estate. No breach of the condition of this Subsection 10(a)
other than a knowing, deliberate and material breach shall be
determined to have occurred unless and until Whitman shall have
received written notice from the Employer's Boards of Directors
to refrain from engaging in the conduct alleged to constitute
such breach, specifying the conduct so alleged and unless Whitman
shall thereafter and notwithstanding such notice have continued
to engage in such conduct after a reasonable opportunity to
refrain from
so doing.
(b) REMEDIES. In the event of the violation by Whitman
of any of the covenants of Subsections 9(a) or 10(a), such
violation shall be deemed to be "cause" for termination pursuant
to the terms of Subsection 6(a) hereof, and, in addition, the
Employer shall have the right and remedy to have the provisions
of Subsection 10(a) specifically enforced, it being acknowledged
and agreed that any such violation or threatened violation will
cause irreparable injury to the Employer and that money damages
will not provide an adequate remedy to the Employer.
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11. INDEPENDENCE, SEVERABILITY AND NON-EXCLUSIVITY.
Each of the rights and remedies enumerated in
Subsections 9(b) and 10(b) shall be independent of the other and
shall be in addition to and not in lieu of any other rights and
remedies available to the Employer under the law or in equity.
If any of the covenants contained in Subsections 9(b) or 10(b),
or any part of any of them, is hereafter construed to be invalid
or unenforceable, the same shall not affect the remainder of the
covenant or covenants or rights or remedies which shall be given
full effect without regard to the invalid options. The parties
intend to and do hereby confer jurisdiction to enforce the
covenants contained in Subsections 9(a) and 10(a) upon the courts
of any state of the United States and any other governmental
jurisdiction within the geographical scope of such covenants. If
any of the covenants contained in Subsections 9(a) or 10(a) is
held to be unenforceable because of the duration of such
provision or the area covered thereby, the parties agree that the
court making such determination shall have the power to reduce
the duration and/or area of such provision and in its reduced
form said provision shall then be enforceable. No such holding
of unenforceability in one jurisdiction shall bar or in any way
affect the Employer's right to the relief provided above in the
courts of any other state or jurisdiction within the geographical
scope of such covenants as to breaches of such covenants in such
other respective states or jurisdiction, such covenants being,
for this purpose, severable into diverse and independent
covenants.
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12. SUCCESSORS. TMC and the Company will require any
successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the
business and/or assets of TMC or the Company, by agreement in
form and substance satisfactory to Whitman, to expressly assume
and agree to perform this Agreement in the same manner and to the
same extent that TMC or the Company would be required to perform
it if no such succession had taken place. As used in this
Agreement, "EMPLOYER" shall mean TMC and the Company as
hereinbefore defined and any successors to their business and/or
assets as aforesaid which executes and delivers the agreement
provided for in this Section 12 or which otherwise becomes bound
by all the terms and provisions of this Agreement by operation of
law.
This Agreement and all rights of Whitman hereunder
shall inure to the benefit of and be enforceable by Whitman's
personal or legal representatives, executors, administrators,
administrators, successors, heirs, distributees, devisees and
legatees. If Whitman should die while any amount would still be
payable to him hereunder if he had continued to live, all such
amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to Whitman's estate.
13. PROCEEDING UNDER THE BANKRUPTCY ACT. In the event
either TMC or the Company is forced (or voluntarily places
itself) into a proceeding under the Bankruptcy Act, Whitman shall
be entitled to prove a claim for any unpaid portion of his base
salary under Subsection 4(a) through the expiration of the term
hereof
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and, if such claim is not discharged in full in such
proceeding, such claim shall survive any discharge of TMC or the
Company under any such proceeding.
14. NOTICES. All notices, requests, demands and other
communications made or given in connection with this Agreement
shall be in writing and shall be deemed to have been duly given
(a) if delivered, at the time delivered or (b) if mailed, at the
time mailed at any general or branch United States Post Office
enclosed in a registered or certified post-paid envelope
addressed to the address of the respective parties as follows:
TO TMC: 1400 Toastmaster Drive
Elgin, Illinois 60120
Attention: President
To the Company: 1400 Toastmaster Drive
Elgin, Illinois 60120
Attention: President
To Whitman: Capricorn Estate
231 Cleft Road
Mill Neck, New York 11765
or to such other address as the party to whom notice is to be
given may have previously furnished to the other party in writing
in the manner set forth above, provided that notices of changes
of address shall only be effective upon receipt.
15. MODIFICATIONS AND WAIVERS. No provision of this
Agreement may be modified or discharged unless such modification
or discharge is authorized by the Boards of TMC and the Company
and is agreed to in writing and signed by Whitman. No waiver by
either party hereto of any breach by the other party hereto of
any condition or Provision of this Agreement to be Performed by
such
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other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any prior
or subsequent time.
16. ENTIRE AGREEMENT. This Agreement supersedes all
prior agreements between the parties hereto relating to the
subject matter hereof, and constitutes the entire agreement of
the parties hereto relating to the subject matter hereof.
However, nothing in this Agreement is intended or shall be
interpreted to reduce the rate or eliminate any portion of
Whitman's compensation or benefits in effect under the Original
Agreement immediately prior to the date hereof.
17. LAW GOVERNING. Except as otherwise explicitly
noted, the validity, interpretation, construction, performance
and enforcement of this agreement shall be governed by the laws
of the State of Illinois.
18. INVALIDITY. The invalidity or unenforceability of
any term or terms of this agreement shall not invalidate, make
unenforceable or otherwise affect any other term of this
Agreement which shall remain in full force and effect.
19. HEADINGS. The headings contained herein are for
reference only and shall not affect the meaning or interpretation
of this Agreement.
20. JOINT AND SEVERAL. The liability hereunder of TMC
and the Company shall be joint and several.
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IN WITNESS WHEREOF, the parties hereto have executed
this Agreement on the day and year set forth above.
THE MIDDLEBY CORPORATION
By /s/ David P. Riley
-----------------------------
President
MIDDLEBY MARSHALL INC.
By /s/ David P. Riley
-----------------------------
President
/s/ William F. Whitman, Jr.
-----------------------------
WILLIAM F. WHITMAN, JR.
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EXHIBIT A
1. The use of a current model automobile comparable in
quality and features to that historically provided to Whitman,
the costs of acquisition, maintenance, use and insurance of which
shall be borne by the Employer.
2. The initiation fees, dues and expenses of Whitman's
membership in two country clubs and such luncheon clubs as he may
determine are necessary or appropriate in connection with his
employment hereunder.
3. The costs of a term insurance policy on Whitman's
life, payable to such beneficiary or beneficiaries as Whitman may
designate, in an amount equal to two times Whitman's base salary.
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