Attached files
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| 8-K - FORM 8-K - MIDDLEBY CORP | middleby_8k.htm |
Exhibit
10.1
EXECUTION
COPY
AMENDED
AND RESTATED EMPLOYMENT AGREEMENT
THIS
AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this "Agreement") dated as of March
1, 2010 is entered into by and among The Middleby Corporation, a Delaware
corporation (the "Company"), Middleby Marshall Inc., a Delaware corporation
("MMI"), (collectively the "Employer"), and Timothy J. FitzGerald
("Employee").
R
E C I T A L S
The
Employer is a party to an employment agreement with Employee, dated March 7,
2005, (the "Employment Agreement"), the term of which is scheduled to expire on
March 1, 2010.
The
Employer desires to continue and extend the term of employment of Employee as
Vice President and Chief Financial Officer of the Company and as Vice
President and Chief Financial Officer of MMI, and Employee desires to serve the
Employer in such capacities, all on the terms and conditions hereinafter
provided.
NOW,
THEREFORE, in consideration of the mutual covenants contained in this Agreement,
Employee's employment by the Employer, the compensation to be paid Employee
while employed by the Employer, and other good and valuable consideration, the
receipt and sufficiency of which is acknowledged, the parties agree as
follows:
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1.
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Employment.
The Employer agrees to employ Employee and Employee agrees to be employed
by the Employer subject to the terms and provisions of
this Agreement.
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2.
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Term.
The term of this Agreement shall be for a period commencing on March 1,
2010 (the "Effective Date") and ending on March 1, 2013, unless sooner
terminated as provided in Section 5; provided, however, that commencing on March 1, 2013
and each anniversary thereafter, the term of this Agreement shall be
deemed to be automatically extended, upon the same terms and conditions,
for successive periods of one (1) year each, unless Employee or Employer,
as the case may be, provides at least one hundred and eighty (180) days
prior written notice to the other party of an intention not to renew this
Agreement.
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3.
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Duties.
Employee shall serve as Vice President and Chief Financial Officer of the
Company and Vice President and Chief Financial Officer of MMI, or in such
other executive capacities as the Board of Directors of the Company or
MMI, as applicable, may designate and shall have such powers and duties as
may be from time to time prescribed by the Board of Directors of the
Company or MMI, as
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applicable.
Employee shall devote substantially all of his time and effort as
reasonably may be required for him to perform the duties and
responsibilities to be performed by him under the terms of this
Agreement.
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4.
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Compensation.
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(a)
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Base
Salary. The Employer shall pay to Employee a base salary at a rate per
annum of $400,000, payable in accordance with the normal payroll practices
of Employer.
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(b)
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Incentive
Compensation. Employee shall be eligible to participate in, and earn an
annual bonus under, the management incentive programs adopted by the
Employer from time to time, subject to all terms and conditions thereof,
based upon the achievement of performance targets established in the sole
discretion of Employer.
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5.
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Termination.
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(a)
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Employee's
employment hereunder may be terminated by Employer or by Employee at any
time, or by the death of Employee. Such termination shall automatically
terminate all of the Employer's obligations not theretofore accrued under
this Agreement other than as specifically set forth in this Agreement or
in any employee benefit plan, program or arrangement in which Employee
participates. If the Employer terminates Employee's employment under this
Agreement (as hereafter amended or extended) without "Cause," as defined
below, or if employment is terminated due to Employee’s death or
disability, incentive compensation under Employer’s annual incentive
programs for any year shall be deemed to have accrued as of the date of
termination if and to the extent that incentive compensation under such
annual incentive program would have been payable to Employee if he had
been employed on the last day of such fiscal year and shall be (i) pro
rated based on the number of days that Employee was employed during the
fiscal year and (ii) payable in the following fiscal year, on the earlier
of April 1 or at the same time as incentive compensation under the annual
incentive program for such year is paid to those employees who are still
employed by the Employer.
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(b)
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Notwithstanding
anything to the contrary contained in this Agreement, in the event that
(i) the Employer terminates Employee's employment under this Agreement (as
hereafter amended or extended) without "Cause," as defined below, (for
this purpose, not including termination due to Employee’s death or
disability) or (ii) Employee terminates his employment under this
Agreement within the six-month period immediately following a "Change in
Control" (as defined below), by providing written notice of such
termination to the Employer, Employee shall be entitled to an amount equal
to three (3) times the sum of (A) Employee's annual base salary for the
full calendar year immediately
prior
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to
the date of the termination and (B) the greater of (x) the amount of
Employee's incentive compensation under the Management Incentive Plan as
currently in effect and as may be renewed from time to time (the
“Management Incentive Plan”) with respect to the full calendar year
immediately prior to the date of the termination and (y) the average of
Employee's incentive compensation under the Management Incentive Plan for
each of the two calendar years immediately prior to the date of the
termination, payable in one lump sum within thirty (30) days of the date
of termination.
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(c)
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For
purposes of this Section 5, the term "Cause" shall mean gross negligence,
willful misconduct, breach of fiduciary duty involving personal profit,
substance abuse, or commission of a felony.
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(d)
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For
purposes of this Agreement, the term "Change in Control" shall mean an
increase, on or after the date of this Agreement, in ownership to twenty
percent (20%) or more of the outstanding voting securities of the Company
held by any person or group of persons who are acting together for the
purpose of acquiring, holding, voting or disposing of such voting
securities; provided, however, that an increase in ownership to
twenty (20%) or more of the outstanding voting securities of the Company
held by Employee or group of persons which includes Employee who are
acting together for the purpose of acquiring, holding, voting or disposing
of such voting securities shall not constitute a Change in
Control.
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Example
1: On April 16, 2010 individual A owns 2.42% of the total
outstanding voting securities of Company. Thereafter, individual A
commences a series of open market and private purchases, and on January
10, 2011 for the first time his holdings exceed 20% of the outstanding
voting securities of the Company. A Change of Control occurs on
January 10, 2011.
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Example
2: On a date subsequent to this Agreement individual B, who
owned no voting securities of Company prior to the date of this
Agreement, commences a series of open market and private purchases, and on
January 11, 2011 for the first time his holdings exceed 20% of the
outstanding voting securities of the Company. A
Change of Control occurs on January 11, 2011.
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(e)
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Parachute
Payments
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(i)
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To
the extent that any amount payable to Employee (hereunder or otherwise)
alone or together with other compensation constitutes a "parachute
payment" within the meaning of section 280G(b)(2) of the Internal Revenue
Code of 1986, as amended, (the "Code") that would result in some or all of
the compensation owed being characterized as "excess parachute payments"
(as defined by
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section
280G(b)(1) of the Code), and would, therefore, be subject to an excise tax
under section 4999 of the Code (the "Excise Tax"), the Employer shall pay
to Employee, at the time specified below, that additional amount (the
"Gross-Up Payment") necessary to reimburse Employee for the amount of any
(i) Excise Tax, (ii) federal, state and local income and employment taxes
(including additional Excise Tax) payable with respect to the Gross-Up
Payment, and (iii) interest, penalties or additions to tax payable by
Employee with respect to the Excise Tax or the Gross-Up Payment. For
purposes of determining the amount of the Gross-Up Payment, Employee shall
be deemed to pay federal income taxes at the highest marginal rates of
taxation applicable to individuals as are in effect in the calendar year
in which the Gross-Up Payment is to be made and state and local income
taxes at the highest marginal rates of taxation applicable to individuals
as are in effect in the state and locality of Employee's residence, and/or
any other state or locality that may be applicable, in the calendar year
in which the Gross-Up Payment is to be made, net of the maximum reduction
in federal income taxes that can be obtained from deduction of such state
and local taxes, taking into account any limitations applicable to
individuals subject to federal income tax at the highest marginal
rates.
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(ii)
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The
Gross-Up Payments provided for in Section 5(e)(i) above shall be made upon
the earlier of (i) the payment to Employee of compensation in the nature
of a parachute payment or (ii) the imposition upon Employee or payment by
Employee of any Excise Tax.
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(iii)
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If
it is established pursuant to a final determination of a court or an
Internal Revenue Service proceeding that the Excise Tax is less than the
amount taken into account under Section 5(e)(i) above, Employee shall
repay to the Employer within thirty (30) days of Employee's receipt of
notice of such final determination the portion of the Gross-Up Payment
attributable to such reduction (plus the portion of the Gross-Up Payment
attributable to the Excise Tax and federal, state and local income and
employment taxes imposed on the Gross-Up Payment being repaid by Employee,
if such repayment results in a reduction in Excise Tax or a federal, state
and local income tax deduction). If it is established pursuant to a final
determination of a court or an Internal Revenue Service proceeding that
the Excise Tax exceeds the amount taken into account under Section 5(e)(i)
above (including by reason of any payment the existence or amount of which
cannot be determined at the time of the Gross-Up Payment), the Employer
shall make any additional Gross-Up Payment
in
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respect
of such excess within thirty (30) days of the Employer's receipt of notice
of such final determination.
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6.
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Payment.
Payment of all compensation and benefits to Employee hereunder shall be
made in accordance with the relevant policies of the Employer in effect
from time to time and shall be subject to all applicable employment and
withholding taxes.
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7.
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Successors.
This Agreement shall be binding upon, and inure to the benefit of and be
enforceable by, Employer and its successors and assigns. This Agreement
shall inure to the benefit of Employee's heirs, legatees, legal
representatives and assigns, but neither this Agreement nor any right or
interest hereunder shall be assignable by Employee without Employer's
prior written consent.
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8.
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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 certified post-paid envelope addressed to the address
of the respective parties as
follows:
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To
the Company:
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1400
Toastmaster Drive
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Elgin,
Illinois 60120
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Attention: Chief
Executive Officer
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To
MMI:
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1400
Toastmaster Drive
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Elgin,
Illinois 60120
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Attention:
Chief Executive Officer
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To
Employee:
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Timothy
J. FitzGerald
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1400
Toastmaster Drive,
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Elgin,
Illinois 60010
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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.
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9.
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Modifications
and Waivers. This Agreement may be modified or amended only by a written
instrument executed by Employer and Employee. No term or condition of this
Agreement shall be deemed to have been waived nor shall there be any
estoppel to enforce any provision of this Agreement except by written
instrument of the party charged with such waiver or
estoppel.
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10.
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Entire
Agreement. This Agreement supersedes all prior agreements between the
parties hereto relating to the subject matter hereof, including but not
limited to the Employment Agreement, and constitutes the entire agreement
of the parties hereto relating to the subject matter hereof. However,
nothing in this Agreement is
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intended
or shall be interpreted to reduce the rate or eliminate any portion of
Employee's compensation or benefits in effect immediately prior to the
date hereof.
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11.
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Law
Governing. The validity, interpretation, construction, performance and
enforcement of this Agreement shall be governed by the laws of the State
of Illinois without regard to principles of conflicts of
laws.
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12.
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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.
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13.
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Headings.
The headings contained herein are for reference only and shall not affect
the meaning or interpretation of this Agreement.
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14.
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Joint
and Several. The liability hereunder of the Company and MMI shall be joint
and several.
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15.
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Section
409A. It is intended that the payments and benefits under this Agreement
comply with, or as applicable, constitute a short-term deferral or
otherwise be exempt from, the provisions of Section 409A of the Code and
the regulations and other guidance issued thereunder (“Section
409A”). The Company shall administer and interpret this
Agreement in a manner so that such payments and benefits comply with, or
are otherwise exempt from, the provisions of Section 409A. Any
provision that would cause this Agreement to fail to satisfy Section 409A
will have no force and effect until amended to comply therewith (which
amendment may be retroactive to the extent permitted by Section
409A). Notwithstanding anything contained herein to the
contrary, to the extent required in order to avoid accelerated taxation
and/or tax penalties under Section 409A, Employee shall not be considered
to have terminated employment with the Company for purposes of this
Agreement and no payments shall be due to Employee under this Agreement
providing for payment of amounts on termination of employment unless
Employee would be considered to have incurred a “separation from service”
from the Company within the meaning of Section 409A. To the
extent required in order to avoid accelerated taxation and/or tax
penalties under Section 409A, amounts that would otherwise be payable and
benefits that would otherwise be provided pursuant to this Agreement
during the six-month period immediately following Employee’s termination
of employment shall instead be paid on the first business day after the
date that is six months following Employee’s termination of employment (or
upon death, if earlier). In addition, for purposes of this
Agreement, each amount to be paid or benefit to be provided to Employee
pursuant to this Agreement which constitutes deferred compensation subject
to Section 409A shall be construed as a separate identified payment for
purposes of Section 409A.
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With
regard to any provision herein that provides for reimbursement of costs
and expenses or in-kind benefits, except as permitted by Section 409A, (i)
the right to
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reimbursement
or in-kind benefits shall not be subject to liquidation or exchange for
another benefit, (ii) the amount of expenses eligible for reimbursement,
of in-kind benefits, provided during any taxable year shall not affect the
expenses eligible for reimbursement, or in-kind benefits to be provided,
in any other taxable year, and (iii) such payments shall be made on or
before the last day of Employee’s taxable year following the taxable year
in which the expense occurred. Any tax gross-up payment as
provided herein shall be made in any event no later than the end of the
calendar year immediately following the calendar year in which Employee
remits the related taxes, and any reimbursement of expenses incurred due
to a tax audit or litigation shall be made no later than the end of the
calendar year immediately following the calendar year in which the taxes
that are the subject of the audit or litigation are remitted to the taxing
authority, or, if no taxes are to be remitted, the end of the calendar
year following the calendar year in which the audit or litigation is
completed.
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7
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and
year set forth above.
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EMPLOYEE
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THE
MIDDLEBY CORPORATION
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/s/
Timothy J. FitzGerald
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By:
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/s/
Selim A. Bassoul
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Timothy
J. FitzGerald
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MIDDLEBY
MARSHALL INC.
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By:
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/s/
Selim A. Bassoul
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