Ex-10
Sequence 2
Description: Ex-10(A)
CONFIDENTIAL
THE MIDDLEBY CORPORATION
EMPLOYMENT AGREEMENT
The Middleby Corporation ("Middleby") and Xxxxx X. Xxxxxxx ("Employee") enter
into this employment agreement on this 1st day of June 2000. In recognition of
the Employee's past and continued service to The Middleby Corporation, Xxxxxxxx
agrees to provide the Employee with one year of base salary severance and one
year of normal employer provided health insurance in the event of the Employee's
involuntary termination of employment from Middleby for any reason other than
Cause. Cause shall mean personal dishonesty, gross negligence, willful
misconduct, breach of fiduciary duty involving personal profit, substance abuse,
or commission of a felony.
This one-year base salary severance and health insurance guarantee to the
Employee will also be in effect in the event of a Change in Control of Middleby
and shall be considered a liability of the successor owner of Middleby. In the
event of a Change in Control of Middleby, Employee shall have the right at any
time within the six-month period immediately following the Change in Control to
terminate his employment by providing written notice to Middleby or its
Successor. Upon providing such notice of termination Employee shall be entitled
to receive one-year base salary severance and one year of normal employer
provided health insurance. For purposes of this agreement a Change in Control
shall mean any twenty-five percent increase in the proportionate share of the
total outstanding securities of Middleby held by any person or group which agree
to act together for the purpose of acquiring, holding, voting, or disposing of
the voting securities.
This agreement expires two years from the above date.
Agreed: /s/ Xxxxx X. Xxxxxxx Xxxxx X. Xxxxxxx, Chief Operating Officer
---------------------------
For Middleby: /s/ Xxxxx X. Xxxxx Xxxxx X. Xxxxx, President and CEO
---------------------
Ex-10
Sequence 3
Description: Ex-10(B)
CONFIDENTIAL
THE MIDDLEBY CORPORATION
EMPLOYMENT AGREEMENT
The Middleby Corporation ("Middleby") and Xxxxx X. Xxxxx ("Employee") enter into
this employment agreement on this 1st day of June 2000. In recognition of the
Employee's past and continued service to The Middleby Corporation, Xxxxxxxx
agrees to provide the Employee with one year of base salary severance and one
year of normal employer provided health insurance in the event of the Employee's
involuntary termination of employment from Middleby for any reason other than
Cause. Cause shall mean personal dishonesty, gross negligence, willful
misconduct, breach of fiduciary duty involving personal profit, substance abuse,
or commission of a felony.
This one-year base salary severance and health insurance guarantee to the
Employee will also be in effect in the event of a Change in Control of Middleby
and shall be considered a liability of the successor owner of Middleby. In the
event of a Change in Control of Middleby, Employee shall have the right at any
time within the six-month period immediately following the Change in Control to
terminate his employment by providing written notice to Middleby or its
Successor. Upon providing such notice of termination Employee shall be entitled
to receive one-year base salary severance and one year of normal employer
provided health insurance. For purposes of this agreement a Change in Control
shall mean any twenty-five percent increase in the proportionate share of the
total outstanding securities of Middleby held by any person or group which agree
to act together for the purpose of acquiring, holding, voting, or disposing of
the voting securities.
This agreement expires two years from the above date.
Agreed: /s/ Xxxxx X. Xxxxx Xxxxx X. Xxxxx, VP and Chief Financial Officer
------------------------
For Middleby: /s/ Xxxxx X. Xxxxx Xxxxx X. Xxxxx, President and CEO
---------------------
Ex-10
Sequence 4
Description: Ex-10(C)
12/01/00
AMENDMENT NO. 2 TO
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
OF XXXXX X. XXXXX
This Amendment No. 2 is made and entered into as of this 4th day of
December, 2000 by and among THE MIDDLEBY CORPORATION, a Delaware corporation
("TMC"), MIDDLEBY MARSHALL INC., a Delaware corporation ("MMI"), (TMC and MMI
collectively, the "Employer") and XXXXX X. XXXXX ("Xxxxx").
R E C I T A L
Employer and Xxxxx are parties to that certain Xxxxxxx and Restated
Employment Agreement dated as of January 1, 1995 (the "1995 Agreement") as
amended by Amendment No. 1 dated as of January 1, 1998 ("Amendment No. 1"). The
1995 Agreement as amended by Amendment No. 1 is sometimes referred to
hereinbelow as the "Employment Agreement". The parties now wish to amend the
Employment Agreement to provide for Xxxxx'x retirement as provided hereinbelow.
A G R E E M E N T
NOW THEREFORE the parties agree as follows:
1. Section 2 of Amendment No. 1 is hereby deleted, and the last sentence
of Section 4(a) of the 1995 Agreement is hereby amended to read as
follows:
The Expiration Date means December 31, 2000.
2. The following Sections of the 1995 Agreement are hereby deleted
effective January 1, 2001:
2, 3, 4(b), 4(c), 4(d), 4(f), 4(g)
3. Subsection 6(a) of the 1995 Agreement is hereby amended to read as
follows:
6. Retirement
(a) Annual Benefit Employer shall pay to Xxxxx an annual
retirement benefit of $177,908 payable in equal monthly installments
on or before the last business day of each and every month. The first
such installment shall be
due and payable on or before the last business day of January 2001. In
addition, in January of 2002 and of each year thereafter Employer
shall adjust upward or downward the amount of the annual retirement
benefit payable during such year by a percentage equal to the
percentage change in the Consumer Price Index For All Urban Consumers
for the twelve-month period ended the previous November. However, in
no event shall any adjustment reduce the annual benefit to an amount
less than the annual benefit for 2001. The annual retirement benefit
shall be paid to Xxxxx for his life, provided however that in the
event of his death prior to age 75, such annual retirement benefit,
reduced by 50%, shall be paid to Xxxxx'x spouse until the first to
occur of (i) her death, or (ii) the date on which Xxxxx would have
attained age 75. The annual retirement benefit shall be prorated on a
daily basis for partial years.
4. The first sentence of Subsection 6(b) of the 1995 Agreement is hereby
amended to read as follows:
(b) Health and Medical Benefits. In addition to the benefits
referred to in Subsection 6(a) hereof, commencing January 1, 2001
Employer shall maintain in full force and effect for the continued
benefit of Xxxxx and his spouse all health and medical plan and
programs which 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.
5. In addition to all other compensation payable to Xxxxx for the year
2000, including but not limited to the compensation payable under
Section 3 of the 1995 Agreement as amended by Amendment No. 1,
Employer shall pay Xxxxx (a) a supplemental bonus of $200,000 on or
before December 31, 2000, and (b) the sum of $177,908 payable in equal
monthly installments of $14,826 during calendar year 2001.
6. Section 5 of Amendment No. 1 is hereby deleted, and Subsection 10(g)
of the 1995 Agreement is hereby amended to read as follows:
(g) 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
when received, or if sooner,
(a) two business days after date of mailing by
registered or certified mail, or (b) one business day after
the date of delivery to a recognized overnight courier, in
either case addressed to the respective parties as follows:
2
If to Employer: The Middleby Corporation
0000 Xxxxxxxxxxx Xxxxx
Xxxxx, Xxxxxxxx 00000
Attn: Xx. Xxxxxxx X. Xxxxxxx, Xx.
Chairman of the Board
If to Xxxxx: Xxxxx X. Xxxxx
0 Xxxxx Xxxx Xxxxx
Xxxxx Xxxxxxxxxx, XX 00000
7. The provisions of Section 7 of the 1995 Agreement shall apply to
Xxxxx, and Xxxxx shall comply with the provisions of Section 7 of the
1995 Agreement, as if Xxxxx had voluntarily terminated his employment
on December 30, 2000 (i.e., prior to the Expiration Date) and such
termination were not under the circumstances described in Subsection
4(c) or 4(d) of the 1995 Agreement.
8. (a) Xxxxx shall perform consulting services reasonably requested by
Employer (the "Services"). The Services shall include, but shall not
be limited to, consultation necessary or desirable for the smooth
transition of duties to the new Chief Executive Officer of Employer,
including, without limitation, consultation concerning (a) relations
between Employer and its customers, employees and suppliers, and (b)
other matters specified by Employer. In performing the Services, Xxxxx
shall report to the Chairman of the Board and the Chief Executive
Officer of Employer.
(b) Employer shall pay or reimburse Xxxxx for (a) Xxxxx'x dues for
calendar year 2001 for Medinah Country Club and Collegon River
Plantation, (b) Xxxxx'x AYCO fees for calendar year 2001 up to $5,000,
and (c) if Xxxxx is admitted to the 2001 World Presidents Organization
Prague University, all expenses incurred by Xxxxx in connection
therewith up to $30,000 less any amounts paid therefor by Employer in
calendar year 2000.
(c) Xxxxx shall not take any action against the best interests of
Employer, and Xxxxx shall abide by all laws, rules and regulations
that apply to the performance of the Services.
(d) The parties agree that after December 30, 2000 Xxxxx shall be an
independent contractor and not an employee of Employer. Xxxxx shall
bear and be legally responsible to pay 100% of all employment taxes
with respect to the compensation payable under this Agreement after
December 30, 2000. After December 30, 2000 Xxxxx shall not have the
power or right to legally bind Employer, and Employer shall not have
the power or right to direct the manner in which Xxxxx performs the
Services. If and when Employer requests in writing, Xxxxx shall
provide Employer with necessary documentation to support Xxxxx'x
independent contractor status under all applicable laws.
3
9. The Employment Agreement as amended hereby shall remain in full force
and effect.
IN WITNESS WHEREOF, the parties have executed this instrument as of the day
and year first above written.
THE MIDDLEBY CORPORATION /s/ Xxxxx X. Xxxxx
---------------------
XXXXX X. XXXXX
and
MIDDLEBY MARSHALL INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Xxxxxxx X. Xxxxxxx, Xx.
Chairman of the Board
4
Ex-10
Sequence 5
Description Ex-10(D)
Amendment No. 2 to
Amended and Restated Employment Agreement
of Xxxxxxx X. Xxxxxxx, Xx.
This Amendment No. 2 is made as of January 1, 2001 by and among THE
MIDDLEBY CORPORATION, a Delaware corporation, MIDDLEBY MARSHALL INC., a Delaware
corporation (collectively the "Employer") and XXXXXXX X. XXXXXXX, XX.
("Xxxxxxx").
RECITAL
Employer and Xxxxxxx are parties to that certain Xxxxxxx and Restated
Employment Agreement dated as of January 1, 1995 (the "1995 Agreement") as
amended by Amendment No. 1 dated January 1, 1998 (as so amended, the "Employment
Agreement") and wish to amend and extend the Employment Agreement as provided
hereinbelow.
AGREEMENT
NOW THEREFORE the parties agree as follows:
1. Section 2 of the 1995 Agreement, as amended by Amendment No. 1, is hereby
further amended by deleting the date "December 31, 2003" and substituting
therefor the date "December 31, 2005".
2. Section 4(a) of the 1995 Agreement, as amended by Amendment No. 1, is
hereby amended by adding immediately after the second sentence (added by
Amendment No. 1) the following sentence:
Commencing December 1, 2000 Xxxxxxx'x base salary shall be at a rate
not less than $514,815 per annum.
3. Except as above amended and extended, the Employment Agreement shall remain
in full force and effect.
IN WITNESS WHEREOF the parties hereto have executed this instrument as of
the day and year first above stated.
THE MIDDLEBY CORPORATION
and
MIDDLEBY MARSHALL INC.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
President and Chief
Executive Officer
/s/ Xxxxxxx X. Xxxxxxx, Xx.
------------------------------------------
XXXXXXX X. XXXXXXX, XX.
Ex - 4
Sequence 6
Description: Ex-4(E)
Interoffice Memo
Date: 02/21/00
To: Xxxxx Xxxxxxx
CC: WFW
From: Xxxxx X. Xxxxx
--------------------------------------------------------------------------------
Xxxxx,
Below outlines the content of the special executive compensation program that is
offered to you.
1. The term of this program is 3 years. Expiring with the end of fiscal year
2002.
2. The company will purchase for you, at the current market prices, 100,000
shares of TMC common stock.
3. The company will loan you the funds necessary to make the above purchase,
secured by the stock and personally payable by you to the company subject
to the provisions outlined below.
4. This stock will be owned by you, but held by the company.
5. This stock will be unrestricted, however sale of the stock is subject to
rule 144 as you are an officer of the company and considered an insider.
6. Interest on your loan will be calculated at the higher of, the rates paid
to those employees participating in the deferred compensation plan, or, the
minimum IRS rate allowed by law.
7. Any sale of the stock will be for your account and subject to taxes paid
which will be your responsibility.
8. The amount of your loan, plus interest, will be retired by the company
(special bonus) if your performance meets or exceeds the Performa "
Earnings before taxes" listed below:
Confidential
A: For fiscal year 2000, Earnings Before Taxes, for the corporation, must
equal or exceed $ .88 per share.
B: For fiscal year 2001, Earnings Before Taxes, for the corporation, must
equal or exceed $ 1.20 per share.
C: For fiscal year 2002, Earnings Before Taxes, for the corporation, must
equal or exceed $ 1.50 per share
9. Your "special bonus" will be calculated and paid as follows:
a. If you meet or exceed your performance goals in a given year, the
company will retire, 1/3 of the remaining balance of the principal and
interest of your loan in year one, 50% of the remaining balance of
your loan in year two, and the remaining balance of your loan in year
three.
b. If you did not meet your objective, but your cumulative actual
performance equaled or exceeded the cumulative objective, the company
will retire the remaining balance of the principal and interest of
your loan according to the schedule in "a" above. If you fail to meet
either of these objectives, no payment will be made.
10. If you leave the company, voluntarily, for any reason, the balance of the
loan becomes due and immediately payable.
11. If you leave the company due to termination (except for cause), the balance
of the loan must be repaid in 24 months.
12. If during the term of the loan, Xxxxxxx X. Xxxxxxx sells 20% or more of his
personal stock holdings in the company, your loan will be forgiven.
Example:
Performance objective: Actual performance:
Year 2000 -- EBT= $ 1.00/share Actual performance = $ 1.10/share
Year 2001 -- EBT= $ 1.25/share Actual Performance = $ 1.20/share
Year 2002 - EBT= $ 1.50/share Actual Performance = $ 1.50/share
Confidential
Stock price at purchase $ 4.50/share ----- Loan value = $ 450,000.00
Interest rate 5%
January 2001 Loan balance = $ 450,000+ interest ($ 22,500) = Total $ 472,500
As Actual performance exceeded objective, bonus payment = $ 157,500
January 2002 Loan balance = $ 315,000 + interest ($ 15,750)= Total $ 330,750
Actual performance did not meet objectives, however cumulative actual equaled
cumulative objective, bonus payment = $ 165,375
January 2003 Loan balance = $ 165,375+ interest ($ 8,268)= Total Actual exceeded
objective, bonus payment = $ 173,643
Agreed /s/ Xxxxx Xxxxxxx Dated 2/21/00
------------------------------------ -------------------
Xxxxx Xxxxxxx
For the Company /s/ Xxxxx X. Xxxxx Dated 2/21/00
--------------------------- -------------------
Xxxxx X. Xxxxx - President/CEO
