Exhibit 10.1
THE MIDDLEBY
CORPORATION
2007 STOCK INCENTIVE
PLAN
(as amended through May 7,
2009)
Introduction
This document contains the provisions of The
Middleby Corporation 2007 Stock Incentive Plan, as adopted
effective as of March 7, 2007 (the “Effective
Date”), as amended. The purpose of this Plan is to provide a
means to attract and retain employees of experience and ability and
to furnish additional incentives to selected employees to boost
performance.
ARTICLE I
DEFINITIONS
Section 1.1
“Board” means the Company’s Board of
Directors.
Section 1.2
“Code” means the Internal Revenue Code of 1986, as
amended.
Section 1.3
“Company” means The Middleby Corporation, a Delaware
corporation.
Section 1.4
“Eligible Participant” means any employee of an
Employer, any non-employee director of the Company or service
provider, not employed as an employee, providing services to the
Company or an affiliate or subsidiary of the Company.
Section 1.5
“Employer” means the Company or any affiliate or
subsidiary of the Company.
Section 1.6
“Exchange Act” means the Securities Exchange Act of
1934, as amended from time to time, and as now or hereafter
construed, interpreted and applied by regulations, rulings and
cases.
Section 1.7
“Fair Market Value” means, as of the relevant date, the
closing price of Stock on the national stock exchange or automated
quotation system on which the Stock is then listed or, if there was
no trading in Stock on that date, the closing price of Stock on
such exchange or automated quotation system on the next preceding
date on which there was trading in Stock.
Section 1.8
“Grant” means any award of Options, Stock Appreciation
Rights, Restricted Stock or Performance Stock (or any combination
thereof) made under this Plan to an Eligible
Participant.
Section 1.9
“Non-Employee Director” means a member of the Board who
is not an employee of an Employer.
Section 1.10
“Option” means any stock option granted under this
Plan.
Section 1.11
“Performance Stock” means Stock issued pursuant to
Article VII of this Plan.
Section 1.12
“Plan” means The Middleby Corporation 2007 Stock
Incentive Plan, as set out in this document and as subsequently
amended.
Section 1.13
“Recipient” means an Eligible Participant to whom a
Grant has been made.
Section 1.14
“Restricted Stock” means Stock transferred to a
Recipient in a Grant which is, at the date on which the Grant is
made, both (i) not “transferable” and
(ii) “subject to a substantial risk of
forfeiture,” within the meaning of Section 83 of the
Code.
Section 1.15
“Rule 16b-3” means Rule 16b-3, as from time
to time in effect promulgated by the Securities and Exchange
Commission under Section 16 of the Exchange Act, including any
successor to such Rule.
Section 1.16
“Stock” means the Company’s authorized common
stock, par value $.01 per share.
Section 1.17
“Stock Appreciation Right” means a right transferred to
a Recipient under a Grant which entitles the Recipient, upon
exercise, to receive a payment (in cash, Stock or a combination of
cash and Stock) which is equal to the increase (if any) in the Fair
Market Value of a share of Stock between the date as of which the
Grant was made and the date as of which the right is
exercised.
Section 1.18
The masculine gender includes the feminine, and the singular number
includes the plural, unless a different meaning is clearly required
by the context.
ARTICLE II
STOCK AVAILABLE FOR
GRANTS
Section 2.1
A maximum of 900,000 shares of Stock are available for Grants under
the Plan. The Stock available for Grants may include unissued or
reacquired shares. If any shares subject to a Grant are forfeited,
cancelled, exchanged or surrendered or if a Grant otherwise
terminates or expires without a distribution of shares to the
Recipient, the shares of Stock with respect to such Grant shall, to
the extent of any such forfeiture, cancellation, exchange,
surrender, termination or expiration, again be available for Grants
under the Plan. Notwithstanding the foregoing, shares of Stock that
are exchanged by a Recipient or withheld by the Company as full or
partial payment in connection with any Grant under the Plan, as
well as any shares of Stock exchanged by a Recipient or withheld by
the Company or any subsidiary to satisfy the tax withholding
obligations related to any Grant under the Plan, shall not be
available for subsequent Grants under the Plan. Upon the exercise
of any Grant made in tandem with any other Grants, such related
Grants shall be canceled to the extent of the number of shares of
Stock as to which the Grant is exercised and, notwithstanding the
foregoing, such number of shares shall no longer be available for
Grants under the Plan.
Section 2.2
Except as provided in a grant agreement or as otherwise provided in
the Plan, in the event that the Board shall determine that any
dividend or other distribution (whether in the form of cash, Stock,
or other property), recapitalization, Stock split, reverse split,
reorganization, merger, consolidation, spin-off, combination,
repurchase, or share exchange, or other similar corporate
transaction or event, affects the Stock such that an adjustment is
appropriate in order to prevent dilution or enlargement of the
rights of Recipients under the Plan, then the Board shall make such
equitable changes or adjustments as it deems necessary or
appropriate to any or all of (i) the number and kind of shares
of Stock or other property (including cash) that may thereafter be
issued in connection with Grants or the total number of shares of
Stock issuable under the Plan pursuant to Section 2.1,
(ii) the number and kind of shares of Stock or other property
issued or issuable in respect of outstanding Grants, (iii) the
exercise price, grant price or purchase price relating to any
Grant, and (iv) any individual limitations applicable to
Grants; provided that, with respect to incentive stock options, any
adjustment shall be made in accordance with the provisions of
Section 424(h) of the Code and any regulations or
guidance promulgated thereunder; and provided further that no such
adjustment shall cause any Grant hereunder which is or becomes
subject to Section 409A of the Code to fail to comply with the
requirements of such section.
ARTICLE
III
MAKING GRANTS
Section 3.1
(a) The Board may, at any time while the Plan is in effect
and there is Stock available for Grants, make Grants to Eligible
Participants; provided, that, subject to the terms of the Plan, the
selection of Eligible Participants for participation and decisions
concerning the timing, pricing and amount of a Grant shall be made
solely by a committee consisting solely of two or more directors
who are (a) “non-employee directors” under
Rule 16b-3 of the Exchange Act, (b) “outside
directors” under Section 162(m) of the Code and
“independent directors” pursuant to Nasdaq Stock Market
requirements.
The number of shares of Stock
granted in a fiscal year to any single executive officer whose
compensation is likely to be subject to reporting in the Company's
annual proxy statement (an "Executive Officer") shall not exceed
200,000 shares of Stock for any fiscal year in which he serves as
an Executive Officer.
Determinations made in respect of
the limitation set forth in the preceding sentence shall be made in
a manner consistent with Section 162(m) of the Code.
Grants of Options intended to be treated as incentive stock option
may only be made to employees of an Employer and not to
Non-Employee Directors or other service providers. Notwithstanding
any provision of the Plan, to the extent that any Grant would be
subject to Section 409A of the Code, no such Grant may be made
if it would fail to comply with the requirements set forth in
Section 409A of the Code and any regulation or guidance
promulgated thereunder.
(b)
No Grant may be made after the tenth anniversary of the Effective
Date.
(c)
All Grants and any exercises of Grants are conditioned upon
stockholder approval of the Plan as described in
Section 7.2.
Section 3.2
(a) The terms of each Grant will be set out in a written
agreement between the Company and the Recipient.
(b)
Subject to the applicable provisions of Article IV or V, a
Grant may contain any terms and conditions which the Board
determines, as long as they are consistent with the provisions of
the Plan. Such terms may, without limitation, include provisions
that Grants shall terminate upon termination of employment in
specified circumstances.
ARTICLE IV
OPTIONS
Section 4.1
The terms of each Option must include the following:
(a)
The name of the Recipient.
(b)
The number of shares which are subject to the Option.
(c)
The term over which the Option may be exercised.
(d)
A requirement that the Option is not transferable by the Recipient
except by will or the laws of descent and distribution and that,
during his lifetime, it is exercisable only by him. Provided that,
subject to the approval of the Board, an Option may be transferable
as permitted under 17 C.F.R. sec. 240.16b-3 and 5, as long as such
transfers are made to one or more of the following: family members,
including children of the Recipient, the spouse of the Recipient,
or grandchildren of the Recipient, trusts for such family members
or charities (“Transferees”), provided that
(i) such transfer is a bona fide gift and accordingly, the
Recipient receives no consideration for the transfer, (ii) the
Options transferred continue to be subject to the sam
