Exhibit (10)(iii)(d)
THE MIDDLEBY CORPORATION
AMENDED AND RESTATED 1989 STOCK INCENTIVE PLAN
INTRODUCTION
This document contains the provisions of The Middleby Corporation 1989 Stock
Incentive Plan, as adopted effective as of February 16, 1989 (the "Effective
Date") and amended on May 16, 1992 and May 16, 1996. The purpose of this Plan is
to provide a means to attract and retain employees of experience and ability and
to furnish additional incentives to them.
ARTICLE I
DEFINITIONS
1.1. "BOARD" means the Company's Board of Directors.
1.2. "CODE" means the Internal Revenue Code of 1986, as amended.
1.3. "COMPANY" means The Middleby Corporation, a Delaware corporation.
1.4. "ELIGIBLE EMPLOYEE" means any executive or key employee of an Employer.
1.5. "EMPLOYER" means the Company or any affiliate or subsidiary of the
Company.
1.6. "FAIR MARKET VALUE" means, as of any date, the closing price of stock
on the national stock exchange on which the Stock is then listed or, if there
was no trading in Stock on that date, the closing price of Stock on that
exchange on the next preceding date on which there was trading in Stock.
1.7. "GRANT" means any award of options, Stock Appreciation Rights or
Restricted Stock (or any combination thereof) made under this Plan to an
Eligible Employee.
1.8. "OPTION" means any stock option granted under this Plan.
1.9. "PLAN" means The Middleby Corporation 1989 Stock Incentive Plan, as set
out in this document and as subsequently amended.
1.10. "RECIPIENT" means an Eligible Employee to whom a Grant has been made.
1.11. "RESTRICTED STOCK" means Stock transferred to a Recipient in a Grant
which is, at the date on which the Grant is made, both (i) not "transferable"
and (ii) "subject to a substantial risk of forfeiture," within the meaning of
Section 83 of the Code.
1.12. "STOCK" means the Company's authorized common stock, par value $.01
per share.
1.13. "STOCK APPRECIATION RIGHT" means a right transferred to a Recipient
under a Grant which entitles him, upon exercise, to receive a payment (in cash,
Stock or a combination of cash and Stock) which is equal to the increase (if
any) in the Fair Market Value of a share of Stock between the date as of which
the Grant was made and the date as of which the right is exercised.
1.14. The masculine gender includes the feminine, and the singular number
includes the plural, unless a different meaning is clearly required by the
context.
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ARTICLE II
STOCK AVAILABLE FOR GRANTS
2.1. 400,000 shares of Stock are available for Grants under the Plan. The
shares available for Grants may include unissued or reacquired shares. If a
Grant expires or is cancelled, any shares which were not issued or fully vested
under the Grant at the time of expiration or cancellation will again be
available for Grants.
2.2. If there is a merger, consolidation, stock dividend, split-up,
combination or exchange of shares, recapitalization or change in capitalization
with respect to Stock, the total number of shares provided for in Section 2.1.
will be adjusted by the Board to accurately reflect that event.
ARTICLE III
MAKING GRANTS
3.1.
(a) The Board may, at any time while the Plan is in effect and there is
Stock available for Grants, make Grants to Eligible Employees.
(b) No Grant may be made after February 16, 2001.
(c) All grants and any exercises of Grants are conditioned upon shareholder
approval of the Plan as described in Section 8.2.
(d) If there is a merger, consolidation, stock dividend, split-up,
combination or exchange of shares, recapitalization or change in capitalization
with respect to Stock, or any other corporate action with respect to Stock
which, in the opinion of the Board, adversely affects the relative value of a
Grant, the number of shares and the exercise price (in the case of an Option) of
any Grant which is outstanding at the time of that event will be adjusted by the
Board to the extent necessary to remedy the adverse effect on the Grant's value.
3.2.
(a) The terms of each Grant will be set out in a written agreement.
(b) Subject to the applicable provisions of Article IV, V or VI, a Grant may
contain any terms and conditions which the Board determines, as long as they are
consistent with the provisions of the Plan. Such terms may, without limitation,
include provisions that Grants shall terminate upon termination of employment in
specified circumstances.
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ARTICLE IV
OPTIONS
4.1.
The terms of each Option must include the following:
(i) The name of the Recipient.
(ii) The number of shares which are subject to the Option.
(iii) The exercise price per share for Stock subject to the option, which
must be at least 100% of the Stock's Fair Market Value on the date the option is
granted.
(iv) The term over which the Option may be exercised.
(v) A requirement that the Option is not transferable by the optionee except
by will or the laws of descent and distribution and that, during his lifetime,
it is exercisable only by him.
(vi) A statement of whether the Option is intended to be an "incentive stock
option" under Section 422 of the Code or a "nonstatutory stock option".
4.2.
An Option which is intended to be an incentive stock option under Section
422 of the Code must contain the following terms:
(i) The exercise price per share must be at least 100% of the Stock's Fair
Market Value on the date the Option is granted.
(ii) The aggregate Fair Market Value (as of the date the Option is granted)
of Stock with respect to which incentive stock options are exercisable for the
first time by the Recipient during any calendar year (under all stock option
plans of the Employers) may not exceed $100,000.
(iii) The term over which the Option may be exercised may never exceed ten
years from the date of grant.
(iv) If the Recipient, at the time the option is granted, owns 10% or more
of the voting stock of an Employer (including Stock which he is deemed to own
under Section 424(d) of the Code), the exercise price must be at least 110% of
the Stock's Fair Market Value as of the Option's date of grant, and the term of
the Option may not be more than five years from the date of grant.
4.3.(a) An Option may be exercised, in whole or part, at any time during its
term, subject to any specific conditions in the Option's terms and any rules
adopted by the Board for the exercise of Options.
(b) A Recipient may pay the exercise price of an Option in cash or, in the
Board's discretion, in shares of Stock owned by him (valued at Fair Market
Value), with a note payable to the Company, or in a combination of cash, notes
and shares of Stock.
(c) The following rules apply to the exercise of Options:
(i) If a Recipient dies, any Option may, to the extent it was exercisable at
his death, be exercised by his estate, within one year after his date of death
or such shorter period as the Option may provide.
(ii) If a Recipient terminates employment because he has become permanently
and totally disabled, he may exercise any Option to the extent it was
exercisable at his termination of employment, but only within one year after his
termination of employment or such shorter period as the Option may provide.
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(iii) If a Recipient terminates employment for any reason other than death
or permanent and total disability, he may exercise any Option to the extent it
was exercisable at his termination of employment, but only within three months
after his termination of employment or such shorter or longer period as the
Option may provide.
(iv) Subparagraph (i), (ii) or (iii) can never operate to make an Option
exercisable beyond the term for which it was granted.
(d) To the extent an Option is not exercised before the expiration of its
term or before the expiration of any shorter exercise period under paragraph
(c), it will be cancelled.
ARTICLE V
STOCK APPRECIATION RIGHTS
5.1.
The terms of each Grant of Stock Appreciation Rights must include the
following:
(i) The name of the Recipient.
(ii) The number of Stock Appreciation Rights which are being granted.
(iii) The term over which the Stock Appreciation Rights may be exercised.
This term may never exceed ten years from the date of grant.
(iv) A description of any events which will cause cancellation of the Stock
Appreciation Rights before the end of the term described in subparagraph (iii).
(v) Whether or not the Stock Appreciation Rights are issued in tandem with
any Option, and if so the manner in which the Recipient's exercise of one
affects his right to exercise the other.
(vi) A requirement that the Stock Appreciation Rights are not transferable
by the Recipient except by will or the laws of descent and distribution and that
during his lifetime such Rights are exercisable only by him.
5.2.
Stock Appreciation Rights which are issued in tandem with an option which
is intended to be an incentive stock option under Section 422 of the Code
must contain the following terms:
(i) They will expire no later than at the expiration of the Option.
(ii) Payment under the Stock Appreciation Rights may not exceed 100% of the
difference between the exercise price of the Option and the Fair Market Value of
Stock on the date the Stock Appreciation Rights are exercised.
(iii) They are transferable only when the Option is transferable, and under
the same conditions.
(iv) They are exercisable only when the Option is exercisable.
(v) They may only be exercised when the Fair Market Value of Stock exceeds
the exercise price of the Option.
5.3.
(a) Stock Appreciation Rights may be exercised at any time during their
term, subject to Section 5.2., to any specific conditions in their terms
and to any rules adopted by the Board for the exercise of Stock Appreciation
Rights.
(b) Determination of the form of payment upon exercise of a Stock
Appreciation Right (cash, Stock or a combination of cash and Stock) is solely in
the discretion of the Board.
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ARTICLE VI
RESTRICTED STOCK
6.1.
The terms of each Grant of Restricted Stock must include the following:
(i) the name of the Recipient.
(ii) the number of shares of Restricted Stock which are being granted.
(iii) whether the Recipient must pay any amount in connection with the Grant
and if so, the amount and terms of that payment. Such amount shall not exceed
10% of the Fair Market Value of the Restricted Stock at the time the Grant is
made, and may be such lesser amount as shall be determined by the Board.
(iv) description of the restrictions applicable to the Grant and the
conditions on which the restriction may be removed.
ARTICLE VII
ADMINISTRATION
7.1.
Subject to Section 3.1(a) hereof, the complete authority to control and
manage the operation and administration of the Plan is placed in the
Board.
7.2.
Subject to Section 3.1(a) hereof, the Board has all authority which is
necessary or appropriate for the operation and administration of the
Plan, including the following:
(a) To make Grants and determine their terms, subject to the provisions of
the Plan.
(b) To interpret the provisions of the Plan.
(c) To adopt any rules, procedures and forms necessary for the operation and
administration of the Plan which are consistent with its provisions.
(d) To determine all questions relating to the eligibility and other rights
of all persons under the Plan.
(e) To keep all records necessary for the operation and administration of
the Plan.
(f) To designate or employ agents and counsel (who may also be employed by
an Employer) to assist in the administration of the Plan.
(g) To cause any shares of Stock acquired by a Recipient through exercise of
a Grant to be recorded on the Company's records in the Recipients' name, and to
cause such shares to be issued to the Recipient or to his brokerage account, as
he elects.
(h) To cause any withholding of tax required in connection with a Grant to
be made.
ARTICLE VIII
AMENDMENT AND TERMINATION
8.1.
The Plan may be amended or terminated at any time by action of the Board.
However, no amendment may, without stockholder approval:
(i) increase the aggregate number of shares available for Grants (except to
reflect an event described in section 2.2); or
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(ii) extend the term of the Plan; or
(iii) change the definition of Eligible Employee for purposes of the Plan;
or
(iv) materially increase the benefits accruing to participants under the
Plan.
8.2.
If the Plan is not, within twelve months of its Effective Date, approved
by a majority of the shares voted at a regular or special meeting of the
Company's stockholders, the Plan will terminate and all Grants made under it
will be cancelled.
8.3.
No amendment or termination of the Plan (other than termination under
Section 8.2.) may adversely modify any person's rights under an Option
unless he consents to the modification in writing.
ARTICLE IX
MISCELLANEOUS
9.1.
The fact that a person receives a Grant will not constitute or be
evidence of a contract of employment or give him any right to continued
employment with the Employer.
9.2.
If any provision of this Plan is held illegal or invalid for any reason,
such illegality or invalidity will not affect the remaining provisions.
Instead, each provision is fully severable and this Plan will be construed and
enforced as if any illegal or invalid provision had never been included.
9.3.
Except as provided in federal law, the provisions of the Plan will be
construed in accordance with the laws of Illinois.
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