Exhibit 10.2
THE MIDDLEBY CORPORATION
1998 STOCK INCENTIVE PLAN
RESTRICTED STOCK AGREEMENT
This RESTRICTED STOCK AGREEMENT (this "Agreement"), dated as of the ___ day
of _______, 2005, is entered into by and between The Middleby Corporation, a
Delaware corporation (the "Company"), Middleby Marshall Inc., a Delaware
Corporation ("MMI") (together, the "Employer"), and _____________ (the "Grantee"
and, together with the Company, the "Parties").
RECITALS
A. Pursuant to the Company's 1998 Stock Incentive Plan (the "Plan"),
the Board of Directors of the Company (the "Board"), as the administrator of the
Plan, has determined to grant to the Grantee restricted shares of the Company's
common stock, par value $0.01 per share (the "Common Stock"), on the terms and
conditions set forth herein, and hereby grants such restricted shares.
B. Such grant is made in satisfaction of certain obligations of the
Employer under Section ___ of the employment agreement between the Company, MMI,
and the Grantee, dated _______, 2005, (the "Employment Agreement").
Any capitalized terms not defined herein shall have their respective
meanings set forth in the Plan.
NOW, THEREFORE, the Parties hereto agree as follows:
1. Grant of Restricted Stock. The Grantee is entitled to __________
shares of Common Stock pursuant to the terms and conditions of this Agreement
(the "Restricted Stock") granted as of _______, 2005, (the "Date of Grant"),
subject to the restrictions set forth below and the terms of this Agreement. The
Grantee shall not be required to pay any cash consideration in exchange for the
Restricted Shares.
2. Restrictions and Restricted Period.
(a) Restrictions. Shares of Restricted Stock granted hereunder may
not be sold, assigned, transferred, pledged, hypothecated or otherwise disposed
of and shall be subject to a risk of forfeiture as described in Section 4 below
until the lapse of the Restricted Period (as defined below).
(b) Restricted Period. The restrictions set forth above shall lapse
and the shares of Restricted Stock shall become vested and transferable
(provided, that such transfer is otherwise in accordance with federal and state
securities laws) as to: _____ of the shares of Restricted Stock on December 31,
2005; _____ shares of the Restricted Stock on December 31, 2006; _____ shares of
the Restricted Stock on December 31, 2007; _____ shares of the Restricted Stock
on December 31, 2008; _____ shares of the Restricted Stock on December 31, 2009,
provided in each case that the Grantee is employed by the Employer on such date
(the "Restricted Period").
3. Rights of a Stockholder. From and after the Date of Grant and for so
long as the Restricted Stock is held by or for the benefit of the Grantee, the
Grantee shall have all the rights of a stockholder of the Company with respect
to the Restricted Stock, including, but not limited to, the right to receive
dividends and the right to vote such shares. If there is any stock dividend,
stock split or other change in character or amount of the Restricted Stock, then
in such event, any and all new, substituted or additional securities to which
Grantee is entitled by reason of the Restricted Stock shall be immediately
subject to the Restrictions with the same force and effect as the Restricted
Stock subject to such Restrictions immediately before such event.
4. Cessation of Employment.
(a) Forfeiture. If the Grantee's employment with the Employer is
terminated for any reason other than those set forth in Section 4(b) of this
Agreement, then any portion of the Restricted Stock for which the Restricted
Period has not lapsed shall be forfeited to the Company without payment of any
consideration by the Company, and neither the Grantee nor any of his successors,
heirs, assigns, or personal representatives shall thereafter have any further
rights or interests in such shares of Restricted Stock.
(b) Accelerated Vesting. If the Grantee's employment is terminated by
the Employer for reasons other than "Cause" (as defined in the Employment
Agreement) or the Grantee terminates his employment within the six-month period
immediately following a "Change in Control" (as defined in the Employment
Agreement), by providing written notice of such termination to the Employer, the
Restricted Stock shall immediately vest in full.
5. Certificates. Restricted Stock granted herein may be evidenced in such
manner as the Board shall determine. If certificates representing Restricted
Stock are registered in the name of the Grantee, then the Company may retain
physical possession of the certificate until the Restricted Period has lapsed.
6. Legends. The Company may require, as a condition of the issuance and
delivery of certificates evidencing Restricted Stock pursuant to the terms
hereof, that the certificates bear the legend as set forth immediately below, in
addition to any other legends required under federal and state securities laws
or as otherwise determined by the Board. All certificates representing any of
the shares of Restricted Stock subject to the provisions of this Agreement shall
have endorsed thereon the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN RESTRICTIONS UPON TRANSFER HELD BY THE ISSUER OR ITS
ASSIGNEES(S)AS SET FORTH IN AN AGREEMENT BETWEEN THE COMPANY
AND THE HOLDER OF THE SHARES, A COPY OF WHICH IS ON FILE AT
THE PRINCIPAL OFFICE OF THE COMPANY.
Such legend shall not be removed until such shares vest pursuant to the terms
hereof.
7. Taxes. The Grantee shall pay to the Employer promptly upon request, at
the time the Grantee recognizes taxable income in respect to the shares of
Restricted Stock, an amount equal to the federal, state and/or local taxes the
Company determines it is required to withhold under applicable tax laws with
respect to the shares of Restricted Stock. In lieu of collecting payment from
the Grantee, the Employer may, in its discretion, distribute vested shares of
Common Stock net of the number of whole shares of Common Stock the fair market
value of which is equal to the minimum amount of federal, state and local taxes
required to be withheld under applicable tax laws. The Grantee understands that
he (and not the Company) shall be responsible for any tax liability that may
arise as a result of the transactions contemplated by this Agreement.
8. Miscellaneous.
(a) Restrictions on Transfer. Shares of Restricted Stock may not be
transferred or otherwise disposed of by the Grantee, including by way of sale,
assignment, transfer, pledge, hypothecation or otherwise, except as permitted by
the Committee, or by will or the laws of descent and distribution.
(b) Compliance with Law and Regulations. The award and any obligation
of the Employer hereunder shall be subject to all applicable federal, state and
local laws, rules and regulations and to such approvals by any government or
regulatory agency as may be required. Any purported transfer or sale of the
shares of Common Stock shall be subject to restrictions on transfer imposed by
any applicable state and federal securities laws. Any transferee shall hold such
shares of Common Stock subject to all the provisions hereof and shall
acknowledge the same by signing a copy of this Agreement.
(c) Invalid Transfers. No purported sale, assignment, mortgage,
hypothecation, transfer, pledge, encumbrance, gift, transfer in trust (voting or
other) or other disposition of, or creation of a security interest in or lien
on, any of the shares of Restricted Stock by any holder thereof in violation of
the provisions of this Restricted Stock Agreement shall be valid, and the
Company will not transfer any of said shares of Restricted Stock on its books or
otherwise nor will any of said shares of Restricted Stock be entitled to vote,
nor will any dividends be paid thereon, unless and until there has been full
compliance with said provisions to the satisfaction of the Company. The
foregoing restrictions are in addition to and not in lieu of any other remedies,
legal or equitable, available to enforce said provisions.
(d) Incorporation of Plan. This Agreement is made under the
provisions of the Plan (which is incorporated herein by reference) and shall be
interpreted in a manner consistent with it. To the extent that this Agreement is
silent with respect to, or in any way inconsistent with, the terms of the Plan,
the provisions of the Plan shall govern and this Restricted Stock Agreement
shall be deemed to be modified accordingly.
(e) Notices. Any notices required or permitted hereunder shall be
addressed to the Employer, at its principal offices, or to the Grantee at the
address then on record with the Employer, as the case may be, and deposited,
postage prepaid, in the United States mail. Either party may, by notice to the
other given in the manner aforesaid, change his or its address for future
notices.
(f) Successor. This Agreement shall bind and inure to the benefit of
the Employer, its successors and assigns, and the Grantee and his or her
personal representatives and beneficiaries.
(g) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware. The Board shall have final
authority to interpret and construe the Plan and this Agreement and to make any
and all determinations under them, and its decision shall be binding and
conclusive upon the Grantee and his personal and legal representatives in
respect of any questions arising under the Plan or this Agreement.
(h) Amendment. This Agreement may be amended or modified by the
Employer at any time; provided that notice is provided to the Grantee in
accordance with Section 8(e); and provided further that no amendment or
modification that is adverse to the rights of the Grantee as provided by this
Agreement shall be effective unless set forth in a writing signed by the parties
hereto.
IN WITNESS WHEREOF, the Parties have executed this Agreement on the
day and year first above written.
THE MIDDLEBY CORPORATION
By
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Name:
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Title:
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MIDDLEBY MARSHALL INC.
By
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Name:
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Title:
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The undersigned hereby accepts and agrees to all the terms and provisions of the
foregoing Agreement.
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[Grantee]
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Address