Exhibit 10.2
CONFIDENTIALITY AND NON-COMPETITION AGREEMENT
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This CONFIDENTIALITY AND NON-COMPETITION AGREEMENT (referred to
herein
as this "Agreement") is made and entered by
and between __________ ("Employee")
and The Middleby Corporation (the
"Company") as of this ___ day of ______, 2005
(the "Agreement Date").
R E C I T A L S:
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WHEREAS, the Company and Employee acknowledge that they have a
confidential relationship and that, in the
course of employment by the Company,
Employee will acquire, develop, be provided
with and become privy to valuable
confidential, restricted, and proprietary
information pertaining to the Company
and its business; and
WHEREAS, pursuant to the terms of The Middleby Corporation 1998
Stock
Option Plan (the "Plan") and Employee's
Non-Qualified Stock Option Agreement
dated as of ___________________ (the
"Option Agreement"), Employee has been
granted a non-qualified option (the
"Option") to purchase the number of shares
specified in the Option Agreement
conditioned upon entering into this
Agreement.
NOW, THEREFORE, in consideration of Employee's Option, the benefits
to
be gained by the performance thereof, and
for other good and valuable
consideration, the receipt and sufficiency
of which is hereby acknowledged, the
parties hereto, intending to be legally
bound, hereby agree as follows:
1. Confidentiality.
(a) Employee will hold all "Confidential Information" (as
defined
below) in strictest confidence at all times
during and after Employee's
employment, and will not use or disclose
such Confidential Information on
Employee's own behalf, or on the behalf of
any third parties, to any business,
individual, partner, firm, corporation, or
other entity, at any time, other
than as required in performance of
Employee's duties on behalf of the Company
or unless first authorized in writing by an
executive officer of the Company.
In the event that Employee is required by
law to disclose any Confidential
Information, Employee will give the Company
prompt written notice prior to such
disclosure and provide the Company with
reasonable assistance in obtaining an
order to protect the Confidential
Information from public disclosure.
(b) For purposes of this Agreement, "Confidential Information"
shall
mean any confidential or proprietary
information about the Company and/or any
person, firm, company, or other
organization that directly, or indirectly,
through one or more intermediaries,
controls, is controlled by, or is under
common control with, the Company (each, an
"Affiliate," and together,
"Affiliates"), and their joint or
respective products, services or clients,
which is developed by or for the Company or
its Affiliate or which is owned or
used in the course of business by the
Company or its Affiliates, including, but
in no way limited to: (i) information
relating to research, development, patent
and copyright development and licensing
thereof, trade secrets, inventions,
formulas, designs, drawings, specifications
and engineering, laboratory
analysis, production processes, or
equipment; (ii) information related to the
specific or unique marketing techniques,
price lists, pricing policies, sales,
services, costs, business methods,
formulas, product specifications or business
planning of the Company or its Affiliates;
(iii) information relating to the
names of customers of the Company or its
Affiliates and their representatives,
customer services, or the type, quantity
and specifications of products
purchased by or from customers which came
into Employee's knowledge,
possession, or control in connection with
his or her employment; and (iv)
information relating to the specific or
unique computer programs, software,
techniques or equipment of the Company or
its Affiliates. The term
"Confidential Information" does not include
information, materials or devices
which are generally known to the public
(other than as a result of an improper
or unauthorized disclosure by Employee in
violation of the terms hereof) or
information, materials or devices that are
not in any manner competitively
sensitive to the Company or any of its
Affiliates.
2. Non-Competition.
(a) During the "Restricted Period" (as defined below), Employee
will
not engage in "Competitive Activities" (as
defined below) within the "Covered
Area" (as defined below) unless first
authorized in writing by an executive
officer of the Company.
(b) For purposes of this Agreement:
(i) "Restricted Period" means the period during which
Employee is employed with the Company or
its Affiliates and, in the event that
Employee voluntarily terminates employment
prior to the fifth anniversary of
the Agreement Date, a one (1) year period
following such termination.
Notwithstanding the foregoing, the lapse or
expiration of the Restricted Period
shall not extinguish or effect any
obligations or restrictions that may
otherwise be applicable to Employee,
including, but not limited to, with
respect to Confidential Information as
provided under this Agreement.
(ii) "Competitive Activities" means rendering the same
services or substantially the same
services, or being involved in the same
capacity or substantially the same capacity
as Employee was, for the Company or
any of its Affiliates, whether as an
officer, director, employee, consultant,
agent, owner or shareholder (excluding
ownership of less than five percent (5%)
of the stock of a publicly traded company),
in the manufacture, development,
promotion, distribution or sale of any
cooking or warming products or services
which are the same as or competitive with
any products or services of any of
the businesses of the Company or its
Affiliates in which Employee has
participated in any material respect during
Employee's last twelve (12) months
of employment (including any products or
services known to Employee to be in
development or which Employee knew the
Company or its Affiliates had plans to
sell within the succeeding twelve (12)
months) (the "Covered Products").
(iii) "Covered Area" means any state, county, city, town,
province or comparable unit of local
government where the Covered Products are
now or hereafter manufactured, marketed,
distributed or sold by the Company or
any of its Affiliates. Employee expressly
acknowledges that as of the Agreement
Date the products of the Company and its
Affiliates are manufactured, marketed,
distributed and sold in Canada, China,
India, Korea, Mexico, the Philippines,
Spain, Taiwan, the United Kingdom and the
United States.
3. Business Relationship Non-Solicit/Non-Interference. During
the
Restricted Period, Employee will not: (a)
directly or indirectly solicit,
induce or influence (or attempt to solicit,
induce or influence) any clients,
customers, vendors or suppliers of the
Company or its Affiliates with which
Employee was involved as part of Employee's
job responsibilities during
Employee's last twelve (12) months of
employment to divert their business to
any business, individual, partner, firm,
corporation, or other entity that is a
current or prospective competitor of the
Company or its Affiliates (each such
person or entity, a "Competitor of the
Company"), or to terminate his, her or
its relationship with the Company; (b)
interfere with or damage (or attempt to
interfere with or damage) any relationship
and/or agreement between any of the
Company or its Affiliates and known
potential or current clients, customers,
vendors or suppliers of any of the Company
or its Affiliates; or (c) otherwise
intentionally interfere with or damage the
business or accounts of the Company
or its Affiliates.
4. Employee Non-Solicit. During Rest
