Exhibit 10.1
THE MIDDLEBY CORPORATION
1998 STOCK INCENTIVE PLAN
NON-QUALIFIED STOCK OPTION AGREEMENT
The Middleby Corporation (the "Company"), desiring to afford an
opportunity to the Grantee named below to purchase certain shares of the
Company's common stock, $.01 par value ("Common Stock"), in order to provide
the Grantee an added incentive as an employee of the Company, hereby grants to
Grantee, pursuant to the terms of The Middleby Corporation 1998 Stock Option
Plan (the "Plan"), a non-qualified option ("Option") to purchase the number of
such shares specified below, during the term ending at 5 o'clock p.m.
(prevailing local time at the Company's principal offices) on the expiration
date of this Option specified below, at the Option exercise price specified
below, subject to and upon the following terms and conditions:
1. Identifying Provisions. As used in this Option, the following
terms shall have the following respective meanings:
(a) Grantee: __________________________
(b) Date of grant: __________________________
(c) Number of shares optioned: __________________________
(d) Option exercise price per share: __________________________
(e) Expiration Date: __________________________
2. Timing of Purchases. Subject to the other terms of this
Agreement regarding the exercisability of this Option, this Option may be
exercised in accordance with the following schedule:
This Option shall be Exercisable
With Respect to the Following
Shall be Exercisable Cumulative Number of Shares
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___, 2006 ___ Shares of Common Stock shall
to ___, 2015 be exercisable IF the closing
price of the MiddlebyCorporation
common stock averages $___ per
share or higher over any
consecutive period of 45 business
days or greater between the dates
of ___, 2005 and ___, 2009.
___ Shares of Common Stock shall
___, 2007 be exercisable IF the closing
to ___, 2015 price of the Middleby Corporation
common stock averages $___ per
share or higher over any
consecutive period of 45 business
days or greater between the dates
of ___, 2006 and ___, 2009.
___, 2008 ___ Shares of Common Stock shall
to ___, 2015 be exercisable IF the closing
price of the Middleby Corporation
common stock averages $___ per
share or higher over any
consecutive period of 45 business
days or greater between the dates
of ___, 2007 and ___, 2009.
___, 2009* ___ Shares of Common Stock shall
to ___, 2015 be exercisable IF the closing
price of the Middleby Corporation
common stock averages $___ per
share or higher over any
consecutive period of 45 business
days or greater between the dates
of ___, 2008 and ___, 2009
* If the options fail to vest before ___, 2009 in accordance with the
criteria indicated above, such options shall be deemed to be expired.
Any exercise shall be accompanied by a written notice to the Company
specifying the number of shares as to which the Option is being exercised.
Notation of any partial exercise shall be made by the Company on a schedule
attached hereto.
3. Exercise: Payment For and Delivery of Stock. Grantee shall
acquire shares pursuant to this Option by delivering to the Company a written
notice of exercise, specifying the number of shares as to which Grantee desires
to exercise this Option and the date on which Grantee desires to complete the
transaction. Grantee shall pay to the Company the full purchase price of the
shares to be acquired hereunder, in cash, on or before the date specified for
completion of the purchase. Alternatively, such payment may be made in whole or
in part in any of the following manner:
a) With shares of the same class of stock as that then subject to
the Option, delivered in lieu of cash concurrently with such
exercise, the shares so delivered to be valued on the basis of
the fair market value of stock, provided that the Company is
not then prohibited from purchasing or acquiring shares of such
stock and the shares of stock were not obtained within the six
months prior through the exercise of a stock option previously
granted by the Middleby Corporation.
No shares shall be issued hereunder until full payment has been made to the
Company. If the Company is required to withhold federal income taxes on account
of any present or future income or employment tax imposed in connection with
Grantee's exercise of this Option, Grantee shall be required to pay all such
withholding in cash as a condition to the receipt of shares. If the Grantee,
however, fails to tender payment for such withholding, the Company may withheld
from the Grantee sufficient shares or fractional shares having a fair market
value equal to such amount.
4. Restrictions on Exercise. The following additional provisions
shall apply to the exercise of this Option:
a) If the employment of a Grantee who is not disabled within the
meaning of Section 422(c)(6) of the Internal Revenue Code of
1986, as amended (the "Code") (a "Disabled Grantee") is
terminated for any reason other than death, any portion of this
Option that is outstanding and exercisable by the Grantee at
the time of such termination shall be exercisable, in
accordance with the provisions of this Agreement, by such
Grantee at any time prior to the expiration date of this Option
or within three months after the date of such termination of
employment, whichever is the shorter period;
b) If the employment of a Grantee who is a Disabled Grantee is
terminated by reason of such Disability, any portion of this
Option that is outstanding and exercisable by the Grantee at
the time of such termination shall be exercisable, in
accordance with the provisions of this Agreement, by such
Grantee at any time prior to the expiration date of this Option
or within one year after the date of such termination of
employment, whichever is the shorter period; and
c) Following the death of a Grantee during employment, any portion
of this Option that is outstanding and exercisable by the
Grantee at the time of his or her death shall be exercisable,
in accordance with the provisions of this Agreement, by the
person or persons entitled to do so under the will of the
Grantee, or, if the Grantee shall fail to make testamentary
disposition of this Option or shall die intestate, by the legal
representative of the Grantee at any time prior to the
expiration date of this Option or within one year after the
date of death, whichever is the shorter period.
Whether a Grantee is disabled within the meaning of Section 422(c)(6) of the
Code shall be determined in each case, in its discretion, by the board of
directors stock option committee (the "Committee"), and any such determination
by the Committee shall be final and binding.
5. Nontransferability. The Grantee may not transfer the Option
except by will or the laws of descent and distribution, and during the lifetime
of the Grantee, the Option will be exerciseable only by the Grantee or his
guardian or legal representative. However, subject to the approval of the
Board, the Option may be transferable as permitted under the Exchange Act, as
long as such transfers are made to one or more of the following: family
members, including children of the Grantee, the spouse of the Grantee, or
grandchildren of the Grantee, trusts for such family members or charities
("Transferees"), and provided that such transfer is a bona fide gift and
accordingly, the Grantee receives no consideration for the transfer, and that
the Option transferred continues to be subject to the same terms and conditions
that were applicable to the Option immediately prior to the transfer. In the
event of such a transfer, the Transferee may not subsequently transfer the
Option. However, the designation of a beneficiary will not constitute a
transfer. The Option may not be exercised to any extent by anyone after the
expiration of its term. The Company assumes no responsibility and is under not
obligation to notify a Transferee of early termination of the Option on account
of the Grantees complete termination of employment, directorship and/or
consultancy.
6. Changes in Capital Structure. If the outstanding shares of
Common Stock of the Company are increased or decreased or changed into or
exchanged for a different number or kind of shares or other securities of the
Company or of another corporation by reason of any reorganization, merger,
consolidation, plan of exchange, recapitalization, reclassification, stock
split, combination of shares, or dividend payable in shares, appropriate
adjustment shall be made by the Committee to the end that the Grantee's
proportionate interest derived under this Option is maintained as before the
occurrence of such event. The Committee may also require that any securities
issued in respect of or exchange for shares issued hereunder that are subject
to restrictions be subject to similar restrictions. Notwithstanding the
foregoing, the Committee shall have no obligation to effect any adjustment that
would or might result in the issuance of fractional shares, and any fractional
shares resulting from any adjustment may be disregarded or provided for in any
manner determined by the Committee. Any such adjustments made by the Committee
shall be conclusive.
If any such adjustment provided for in this Paragraph 6 requires the
approval of stockholders of the Company in order to enable the Company to
adjust the Option, then no such adjustment shall be made without the required
stockholder approval.
7. Acceleration of Vesting and Exercise Upon Certain Transactions.
In anticipation of (a) the dissolution or liquidation of the Company; or (b) a
reorganization, merger or consolidation of the Company as a result of which the
outstanding securities of the class then subject to this Option are changed
into or exchanged for cash or property or securities not of the Company's
issue, or upon a sale of substantially all the property of the Company to, or
the acquisition of stock representing more than fifty percent (50%) of the
voting power of the stock of the Company then outstanding by another
corporation or persons unrelated to the Company or one hundred percent (100%)
of the voting power of the stock of the Company then outstanding to persons
related to the Company, the Company may require that this Option be terminated
as of a date certain. If the Option is to terminate pursuant to the foregoing
sentence, the Grantee shall have the right, at time designated by the Company
prior to the consummation of the transaction causing such termination, to
exercise the unexercised portions of this Option, including the portions
thereof that would, but for this Paragraph 7, not yet be exercisable.
The Company is authorized by Grantee to collect from Grantee any
additional income, employment or excise taxes, which the Company may incur on
account of this provision.
8. Rights in Shares Before Issuance and Delivery. Grantee, or his
executor, administrator or legatee if he is deceased, shall have no rights as a
stockholder with respect to any stock covered by this Option until the date of
issuance of the stock certificate to him for such stock after receipt of the
consideration in full set forth herein, or as may be approved by the Company.
No adjustments shall be made for dividends, whether ordinary or extraordinary,
whether in cash, securities, or other property, for distributions in which the
record date is prior to the date for which the stock certificate is issued.
9. Requirements of Law. The certificate or certificates
representing the shares of the Common Stock to be issued or delivered upon
exercise of this Option may bear a legend evidencing the foregoing and other
legends required by any applicable securities laws. Furthermore, nothing herein
shall require the Company to issue any stock upon exercise of this Option if
the issuance would, in the opinion of counsel for the Company, constitute a
violation of the Securities Act of 1933, as amended, the Delaware securities
laws, or any other applicable rule or regulation then in effect.
10. Disposition of Shares--Restrictions. If so required by the
Company, no stock shall be acquired upon exercise of this Option unless and
until the Optionee has properly executed a valid stock transfer restriction
agreement, provided by the Company.
11. No Right to Continued Service. This Option shall not confer upon
the Grantee any right with respect to continued employment with the Company or
any subsidiary, nor shall it alter, modify, limit or interfere with any right
or privilege of the Company or any subsidiary under any employment contract
heretofore or hereinafter executed with the Grantee, including the right to
terminate the Grantee's employment at any time for or without cause, to change
the Grantee's level of compensation, or to change the Grantee's
responsibilities or position.
12. The Middleby Corporation 1998 Stock Incentive Plan. Grantee
hereby acknowledges receipt of a copy of the Plan and agrees to be bound by all
terms and provisions thereof and as the same shall have been amended from time
to time in accordance with the terms thereof, provided that no such amendment
shall deprive the Grantee, without his consent, of this Option or any of his
rights hereunder. Grantee acknowledges and agrees that such provisions are
acceptable to him for all purposes. Grantee further acknowledges and agrees
that in the event of any conflict herewith, the provisions of the Plan shall
govern and control, and this Agreement or the applicable provision hereof shall
automatically be deemed modified to have conformed at all times.
13. Notices. Any notice to be given to the Committee shall be
addressed to the Committee in care of the Company at its principal office, and
any notice to be given to the Grantee shall be addressed to him at the address
given beneath his signature hereto or at such other address as the Grantee may
hereafter designate in writing to the Company. Any such notice shall be deemed
duly given when enclosed in a properly sealed envelope or wrapper addressed as
aforesaid, registered or certified, and deposited, postage and registry or
certification fee prepaid, in a post office or branch post office regularly
maintained by the United States Postal Service.
14. Miscellaneous. This Agreement and the Plan constitute the entire
agreement and understanding between the Company and the Grantee and may not be
changed, modified or amended by oral statements to the contrary, but only by
written document signed by both parties hereto. The titles to each paragraph
herein are for convenience only and are not to be used in the construction or
interpretation of this document. This Agreement shall be binding on and inure
to the benefit of the parties hereto, and their respective heirs, legatees,
successors and assigns. This Agreement shall be construed in accordance with
the laws of the State of Illinois.
This document constitutes an offer by the Company to enter into an
Agreement under the terms and conditions herein set forth. Said offer will
expire and terminate without further notice at 5 o'clock p.m. (prevailing local
time at the Company's principal office) on __________________, unless sooner
accepted by the Grantee by delivering a copy of this Agreement, executed by the
Grantee, to the Company on or before said time and date.
IN WITNESS THEREOF, the Company has granted this Option on the date of
grant specified above.
[Signature page follows.]
ACCEPTED: THE MIDDLEBY CORPORATION
_________________________________ By:_________________________________
Grantee: Its: __________________________
Address: c/o The Middleby Corporation
1400 Toastmaster Drive
Elgin, Il 60120
Attn: [Grantee]
Date: __________________________ Date: ______________________________
NOTATIONS AS TO PARTIAL EXERCISE
Number of Balance of
Date of Purchased Shares on Authorized Notation
Exercise Shares Option Signature Date
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