AMENDMENT TO
EMPLOYMENT AGREEMENT
THIS AMENDMENT (“Amendment”) to the
Employment Agreement (“Employment Agreement”) by and
between The Middleby Corporation (the “Company”) and
Timothy J. FitzGerald (the “Employee”) dated as of
March 7, 2005, is entered into by the Company and the Employee on,
and to be effective as of, December 31,
2008. Capitalized terms used but not otherwise defined
herein shall have the respective meanings ascribed to such terms in
the Employment Agreement.
WITNESSETH
WHEREAS, the parties hereto desire to amend the
Employment Agreement on the terms set forth herein, including
amendments to allow the Employment Agreement to comply with, or be
exempt from, the requirements of Section 409A of the Internal
Revenue Code of 1986, as amended (the
“Code”).
NOW, THEREFORE, in consideration of the
foregoing, and of the representations, warranties, covenants and
agreements contained in the Employment Agreement and herein, and
for other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged and accepted, the parties hereto
hereby agree as follows:
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A new Section
16 of the Employment Agreement is added to the end
thereof:
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“16. 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).
