Exhibit 4.5
STOCK OPTION
AGREEMENT
The Middleby Corporation (the
“Company”), desiring to afford an opportunity to the
Grantee named below to purchase certain shares of the
Company’s common stock, $.01 par value (“Common
Stock”), in order to provide the Grantee an added incentive
as an employee of the Company, hereby grants to Grantee, pursuant
to the terms of The Middleby Corporation 1998 Stock Option Plan
(the “Plan”), a non-qualified option
(“Option”) to purchase the number of such shares
specified below, during the term ending at 5 o’clock p.m.
(prevailing local time at the Company’s principal offices) on
the expiration date of this Option specified below, at the Option
exercise price specified below, subject to and upon the following
terms and conditions:
1.
Identifying Provisions. As used in this
Option, the following terms shall have the following respective
meanings:
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(a) Grantee:
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(b) Date of grant:
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(c) Number of shares optioned:
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(d) Option exercise price per share:
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(e) Expiration Date:
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2.
Timing of Purchases. Subject to the other
terms of this Agreement regarding the exercisability of this
Option, this Option may be exercised in accordance with the
following schedule:
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This Option shall be
Exercisable
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With Respect to the
Following
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Shall be Exercisable
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Cumulative Number of
Shares
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Immediately
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Any exercise shall be accompanied by
a written notice to the Company specifying the number of shares as
to which the Option is being exercised. Notation of any
partial exercise shall be made by the Company on a schedule
attached hereto.
3.
Exercise: Payment For and Delivery of Stock.
Grantee shall
acquire shares pursuant to this Option by delivering to the Company
a written notice of exercise, specifying the number of shares as to
which Grantee desires to exercise this Option and the date on
which
Grantee desires to complete the
transaction. Grantee shall pay to the Company the full
purchase price of the shares to be acquired hereunder, in cash, on
or before the date specified for completion of the purchase.
Alternatively, such payment may be made in whole or in part in
shares of the same class of stock as that then subject to the
Option, delivered in lieu of cash concurrently with such exercise,
the shares so delivered to be valued on the basis of the fair
market value of stock, provided that the Company is not then
prohibited from purchasing or acquiring shares of such
stock.
No shares shall be issued hereunder
until full payment has been made to the Company. If the
Company is required to withhold federal income taxes on account of
any present or future income or employment tax imposed in
connection with Grantee’s exercise of this Option, Grantee
shall be required to pay all such withholding in cash as a
condition to the receipt of shares. If the Grantee, however,
fails to tender payment for such withholding, the Company may
withheld from the Grantee sufficient shares or fractional shares
having a fair market value equal to such amount.
4.
Restrictions on Exercise. The following additional provisions shall apply
to the exercise of this Option:
g)
If the employment of a Grantee who
is not disabled within the meaning of Section 422(c)(6) of the
Internal Revenue Code of 1986, as amended (the “Code”)
(a “Disabled Grantee”) is terminated for any reason
other than death, any portion of this Option that is outstanding
and exercisable by the Grantee at the time of such termination
shall be exercisable, in accordance with the provisions of this
Agreement, by such Grantee at any time prior to the expiration date
of this Option or within three months after the date of such
termination of employment, whichever is the shorter
period;
h)
If the employment of a Grantee who
is a Disabled Grantee is terminated by reason of such Disability,
any portion of this Option that is outstanding and exercisable by
the Grantee at the time of such termination shall be exercisable,
in accordance with the provisions of this Agreement, by such
Grantee at any time prior to the expiration date of this Option or
within one year after the date of such termination of employment,
whichever is the shorter period; and
i)
Following the death of a Grantee
during employment, any portion of this Option that is outstanding
and exercisable by the Grantee at the time of his or her death
shall be exercisable, in accordance with the provisions of this
Agreement, by the person or persons entitled to do so under the
will of the Grantee, or, if the Grantee shall fail to make
testamentary disposition of this Option or shall die intestate, by
the legal representative of the Grantee at any time prior to the
expiration date of this Option or within one year after the date of
death, whichever is the shorter period.
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Whether a Grantee is disabled within
the meaning of Section 422(c)(6) of the Code shall be determined in
each case, in its discretion, by the board of directors stock
option committee (the “Committee”), and any such
determination by the Committee shall be final and
binding.
5.
Nontransferability. The Grantee may not transfer the Option except
by will or the laws of descent and distribution, and during the
lifetime of the Grantee, the Option will be exerciseable only by
the Grantee or his guardian or legal representative. However,
subject to the approval of the Board, the Option may be
transferable as permitted under the Exchange Act, as long as such
transfers are made to one or more of the following: family members,
including children of the Grantee, the spouse of the Grantee, or
grandchildren of the Grantee, trusts for such family members or
charit
