UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): February 25, 2005
THE MIDDLEBY CORPORATION
(Exact Name of Registrant as Specified in its Charter)
Delaware 1-9973 36-3352497
(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
1400 Toastmaster Drive, Elgin, Illinois 60120
(Address of Principal Executive Offices) (Zip Code)
(847) 741-3300
(Registrant's telephone number, including area code)
N/A
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of
the following provisions:
|_| Written communications pursuant to Rule 425 under the Securities Act (17
CFR 230.425)
|_| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
|_| Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
|_| Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
Item 1.01 Entry Into a Material Definitive Agreement.
On February 25, 2005, the Board of Directors of The Middleby
Corporation (the "Company") adopted an amended and restated Management
Incentive Compensation Plan, effective as of January 1, 2005 (the "Plan").
The Plan is a cash incentive bonus plan for the Company's
key employees and officers who are selected as participants by the Company's
Compensation Committee (the "Committee"). The current participants of the Plan
are Selim A. Bassoul, Chairman, President and Chief Executive Officer of the
Company and Timothy J. FitzGerald, Vice President and Chief Financial Officer
of the Company. The Company intends that payments to participating employees
under the Plan will qualify as performance-based compensation for purposes of
Section 162(m) of the Internal Revenue Code (the "Code"). The Plan will be
submitted for the approval of the Company's stockholders at the 2005 annual
meeting of stockholders, as required by Section 162(m) of the Code, in order
to ensure that the tax deductibility of payments made under the Plan will not
be limited by such section.
Under the Plan, the payment of bonuses to executives who
qualify as "covered employees," as defined under Section 162(m) of the Code,
is subject to the attainment of pre-established written performance goals
approved by the Committee prior to the 90th day following the commencement of
the Company's fiscal year. The performance goals for the covered employees
will be based on the Company's adjusted earnings before interest, income
taxes, depreciation and amortization ("EBITDA") for the fiscal year. The
payment of bonuses to participants who are not covered employees may also be
based on the EBITDA of any subsidiary, division or segment of the Company. The
Committee has the authority to determine EBIDTA in accordance with generally
accepted accounting principles ("GAAP"). The Committee may also make
appropriate adjustments to EBIDTA goals to reflect the impact of extraordinary
items not reflected in such goals. Extraordinary items include but are not
limited to (a) profit or loss attributable to acquisition or dispositions of
stock or assets, or (b) changes in accounting standards, or (c) the impact of
capital expenditures.
Pursuant to the Plan, each performance period begins on
January 1st and ends on December 31st of the Company's fiscal year. The
maximum payment that may be made to any participating employee under the Plan,
as amended and restated, with respect to any fiscal year is $3,500,000.
Bonuses will be paid after the completion of the Company's year end audit and
after the Committee certifies in writing that the EBITDA goals have been
attained, except that payments under the Plan generally must be made no later
than two and one-half months after the end of the fiscal year in which the
payment was earned. In order to receive a payment under the Plan, a
participant must have been employed by the Company for at least six months and
must have been employed on the last day of the Company's fiscal year. The
Committee has the discretion to elect to pay a pro-rata bonus after the year
end audit to any participating employee who was involuntarily terminated
before the end of the Company's fiscal year. In addition, the Committee may
also elect to pay pro-rata bonuses based upon the achievement of pro-rata
EBITDA goals.
In the event of a "change in control" of the Company (as
defined in the Plan), EBITDA will be calculated after the completion of the
Company's year end audit and will be based on the Company's past practice and
the terms of the Plan. However, if it is impractical for the Company's EBITDA
to be measured after a change in control, then a pro-rata bonus will be paid
to participants based on the EBIDTA achieved prior to the change in control.
A copy of the Plan is filed herewith as Exhibit 10.1. The
description of the Plan in this Current Report on Form 8-K is qualified in its
entirety by reference to the complete copy of the Plan attached hereto as an
exhibit.
ITEM 9.01. Financial Statements and Exhibits.
(c) Exhibits.
Exhibit No. Description
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Exhibit 10.1 Amended and Restated Management Incentive Compensation Plan
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
THE MIDDLEBY CORPORATION
Dated: March 3, 2005 By: /s/ Timothy J. FitzGerald
----------------------------
Timothy J. FitzGerald
Vice President and Chief
Financial Officer
Exhibit No. Description
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Exhibit 10.1 Amended and Restated Management Incentive Compensation Plan