forms-8.htm
As
filed with the Securities and Exchange Commission on November 6,
2009
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM S-8
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
THE
MIDDLEBY CORPORATION
(Exact
name of registrant as specified in its charter)
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Delaware
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36-3352497
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(State
or other jurisdiction
of
incorporation or organization)
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(I.R.S.
Employer
Identification
No.)
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1400
Toastmaster Drive
Elgin,
Illinois 60120
(847)
741-3300
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(
Address, including zip code, and telephone number,
including
area code, of registrant’s principal executive
offices)
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TURBOCHEF
TECHNOLOGIES, INC. 1994 STOCK OPTION PLAN
(
Full title of the Plans)
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Copy
to:
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Timothy
J. FitzGerald
Chief
Financial Officer
The
Middleby Corporation
1400
Toastmaster Drive
Elgin,
Illinois 60120
(847)
741-3300
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Shilpi
Gupta
Skadden,
Arps, Slate,
Meagher
& Flom LLP
155
North Wacker Drive
Chicago,
Illinois 60606
(312)
407-0700
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(Name,
address, including zip code, and telephone number, including area code, of
agent for service)
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CALCULATION
OF REGISTRATION FEE
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Title
of Each Class
of
Securities to
be
Registered
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Amount
to
be
Registered
(1)
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Proposed
Maximum
Aggregate
Offering
Price
(2)
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Amount
of
Registration
Fee
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Common
Stock, par value $0.01 per share
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6,845
shares |
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$390,841
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$27.87
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___________________________________
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(1)
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6,845
shares of common stock, par value $0.01 per share, of The Middleby
Corporation, a Delaware corporation (the “Shares”), are being registered
hereunder. Such number of Shares represents the aggregate number of
Shares subject to outstanding awards or available for issuance pursuant to
the 1994 stock option plan of TurboChef Technologies, Inc. (“TurboChef”),
which plan was assumed by The Middleby Corporation (“Middleby” or the
“Company”) in connection with the merger of TurboChef with and into Chef
Acquisition Corp. (“Merger Sub”), a wholly-owned subsidiary of Middleby,
effective as of January 5, 2009 (the “Merger”). The Shares
consist of outstanding options to purchase approximately 6,845 shares
under the TurboChef Technologies, Inc. 1994 Stock Option Plan with a
weighted average exercise price of $57.10 per share. The number of
Shares subject to outstanding awards or available for issuance under the
plan as of the closing of the Merger and registered hereunder and the
applicable exercise price have been calculated pursuant to the exchange
ratio set forth in the Agreement and Plan of Merger, dated as of August
12, 2008, as amended on November 21, 2008, by and among Middleby,
TurboChef and Chef Acquisition Corp. In the event of a stock
split, stock dividend, or similar transaction involving the Company’s
common stock, the number of Shares registered hereby shall automatically
be increased to cover the additional shares in accordance with
Rule 416(a) under the Securities Act of 1933, as amended (the
“1933 Act”).
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(2)
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Estimated
solely for the purpose of calculating the registration fee pursuant to
Rule 457(h) and (c) of the Securities Act, based upon 6,845
Shares subject to outstanding options with a weighted average exercise
price of $57.10 per share.
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EXPLANATORY
NOTE
The
Company entered into an Agreement and Plan of Merger, (the “Merger Agreement”),
dated as of August 12, 2008, as amended on November 21, 2008, with TurboChef and
Merger Sub. Pursuant to the Merger Agreement, TurboChef merged with
and into Merger Sub. As a result of the merger, each TurboChef stockholder
received 0.0486 shares of the Company’s common stock and $3.67 in cash, without
interest, for each share of TurboChef common stock held.
Pursuant
to the Merger Agreement, the Company assumed the plan set forth on the cover
page hereto (the “Plan”).
The
Company files this Registration Statement on Form S-8 (the “Registration
Statement”) relating to its shares of common stock, par value $0.01 per share,
issuable pursuant to the Plan.
PART I
The
information specified in Item 1 and Item 2 of Part I of this Registration
Statement is omitted from this filing in accordance with the provisions of Rule
428 under the 1933 Act and the introductory note to Part I of the Registration
Statement. The documents containing the information specified in Part I will be
delivered to the participants in the Plan covered by this Registration Statement
as required by Rule 428.
PART II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
ITEM
3. INCORPORATION OF
DOCUMENTS BY REFERENCE
The
following documents filed with the Securities and Exchange Commission (the
“Commission”) by the Company pursuant to the 1933 Act and the Securities
Exchange Act of 1934, as amended (the “1934 Act”), are incorporated herein by
reference.
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A.
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The
Company’s Annual Report on Form 10-K for the fiscal year ended
January 3, 2009, filed with the Commission on March 4,
2009.
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B.
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The
Company’s Quarterly Reports on Form 10-Q for the periods ended April
4, 2009 and July 4, 2009, as filed with the Commission on May 14,
2009 and August 13, 2009,
respectively.
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C.
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The
Company’s Current Reports on Form 8-K, filed with the Commission on
January 6, 2009, January 9, 2009, April 27, 2009, May 1, 2009 and May 13,
2009.
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D.
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The
description of the Company’s common stock contained in Item 1 on Form 8-A
filed with the Commission on September 8, 2005, including any amendment or
report filed for the purpose of updating such
description.
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All
documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Securities Exchange Act, as amended, after the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold are incorporated by reference
in this Registration Statement and are a part hereof from the date of filing
such documents. A report on Form 8-K furnished to the Commission
shall not be incorporated by reference into this Registration
Statement.
Any
statement contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement contained herein or
in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration
Statement.
ITEM
4. DESCRIPTION OF
SECURITIES
Not
applicable.
ITEM
5. INTERESTS OF NAMED
EXPERTS AND COUNSEL
Skadden,
Arps, Slate, Meagher & Flom LLP has issued an opinion regarding the validity
of the shares of Common Stock offered hereby.
ITEM
6. INDEMNIFICATION OF
DIRECTORS AND OFFICERS
As
permitted by Section 102(b)(7) of the Delaware General Corporation Law (the
“DGCL”), the Company's certificate of incorporation provides that a director
shall not be personally liable to the Company or its stockholders for monetary
damages for breach of fiduciary duty as a director, except: (i) for any breach
of the duty of loyalty; (ii) for acts or omissions not in good faith or which
involve intentional misconduct or knowing violations of law; (iii) for liability
under Section 174 of the DGCL (relating to certain unlawful dividends, stock
repurchases or stock redemptions); or (iv) for any transaction from which the
director derived any improper personal benefit. The effect of these provisions
in the Company's certificate of incorporation is to eliminate the rights of the
Company and its stockholders (through stockholders' derivative suits on behalf
of the Company) to recover monetary damages against a director for breach of the
fiduciary duty of care as a director (including breaches resulting from
negligent or grossly negligent behavior) except in certain limited situations.
These provisions do not limit or eliminate the rights of the Company or any
stockholder to seek non-monetary relief such as an injunction or rescission in
the event of a breach of a director's duty of care. These provisions do not
alter the liability of directors under federal securities laws.
The
Company's certificate of incorporation requires the Company to indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding by reason of the
fact that such person is or was a director or officer of the Company against
expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding to the fullest extent permitted by applicable law. The
Company is also required under its certificate of incorporation to advance, to
the maximum extent permitted by law, expenses incurred in connection with any
such action, suit or proceeding so long as the director or officer undertakes to
repay any advanced amounts if it is ultimately determined that he or she is not
entitled to be indemnified.
Under
Section 145 of the DGCL, (i) the Company may indemnify a director or officer in
connection with an action, suit or proceeding (other than in connection with
actions by or in the right of the Company) against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding if such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the Company
and, in the case of any criminal action or proceeding, had no reasonable cause
to believe such person's conduct was unlawful. In addition, under
Section 145 of the DGCL, the Company may indemnify a director or officer in
connection with an action or suit by or in the right of the Company against
expenses (including attorneys' fees) actually and reasonably incurred by such
person in connection with the defense or settlement of such action or suit if
such person acted in good faith and in a manner such person reasonably believed
to be in or not opposed to the best interests of the Company, except that the
Company may not so indemnify the director or officer if the director or officer
is adjudged to be liable to the Company, unless a court determines that, despite
such adjudication but in view of all of the circumstances, the director or
officer is entitled to indemnification of such expenses which such court deems
proper. Under Section 145 of the DGCL, expenses (including attorneys'
fees) incurred by an officer or director in defending any civil, criminal,
administrative or investigative action, suit or proceeding may be paid by the
Company in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or officer to
repay such amount if it shall ultimately be determined that such person is not
entitled to be indemnified by the Company as authorized in Section 145 of the
DGCL. In accordance with DGCL Section 145, such expenses (including
attorneys' fees) incurred by former directors and officers may be so paid upon
such terms and conditions, if any, as the Company deems
appropriate.
The
Company maintains an officers' and directors' liability insurance policy
insuring the Company's officers and directors against certain liabilities and
expenses incurred by them in their capacities as such, and insuring the Company,
under certain circumstances, in the event that indemnification payments are made
by the Company to such officers and directors.
ITEM
7. EXEMPTION FROM
REGISTRATION CLAIMED
Not
applicable.
ITEM
8. EXHIBITS
See
Index to Exhibits on page 8.
ITEM
9. UNDERTAKINGS
The
undersigned Registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To
include any prospectus required by Section 10(a)(3) of the 1933
Act;
(ii) To
reflect in the prospectus any facts or events arising after the effective date
of this Registration Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in this Registration Statement;
(iii) To
include any material information with respect to the plan of distribution not
previously disclosed in this Registration Statement or any material change to
such information in this Registration Statement;
provided , however , that
paragraphs (1)(i) and (1)(ii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section 13 or 15(d) of the
1934 Act that are incorporated by reference in this Registration
Statement.
(2) That,
for the purpose of determining any liability under the 1933 Act each such
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(4) That,
for the purpose of determining liability under the 1933 Act to any
purchaser:
(i) If
the Registrant is relying on Rule 430B:
(A) Each
prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed to
be part of the registration statement as of the date the filed prospectus was
deemed part of and included in the registration statement; and
(B) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as
part of a registration statement in reliance on Rule 430B relating to an
offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of
providing the information required by section 10(a) of the 1933 Act shall be
deemed to be part of and included in the registration statement as of the
earlier of the date such form of prospectus is first used after effectiveness or
the date of the first contract of sale of securities in the offering described
in the prospectus. As provided in Rule 430B, for liability purposes of the
issuer and any person that is at that date an underwriter, such date shall be
deemed to be a new effective date of the registration statement relating to the
securities in the registration statement to which that prospectus relates, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof. Provided, however , that no statement made in a
registration statement or prospectus that is part of the registration statement
or made in a document incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the registration statement
will, as to a purchaser with a time of contract of sale prior to such effective
date, supersede or modify any statement that was made in the registration
statement or prospectus that was part of the registration statement or made in
any such document immediately prior to such effective date; or
(ii) If
the Registrant is subject to Rule 430C, each prospectus filed pursuant to Rule
424(b) as part of a registration statement relating to an offering, other than
registration statements relying on Rule 430B or other than prospectuses filed in
reliance on Rule 430A, shall be deemed to be part of and included in the
registration statement as of the date it is first used after effectiveness.
Provided, however , that no statement made in a registration statement or
prospectus that is part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the registration statement
or prospectus that is part of the registration statement will, as to a purchaser
with a time of contract of sale prior to such first use, supersede or modify any
statement that was made in the registration statement or prospectus that was
part of the registration statement or made in any such document immediately
prior to such date of first use.
(5) That,
for the purpose of determining liability of the Registrant under the 1933 Act to
any purchaser in the initial distribution of the securities:
The undersigned Registrant undertakes
that in a primary offering of securities of the undersigned Registrant pursuant
to this Registration Statement, regardless of the underwriting method used to
sell the securities to the purchaser, if the securities are offered or sold to
such purchaser by means of the following communications, the undersigned
Registrant will be a seller to the purchaser and will be considered to offer or
sell such securities to such purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned Registrant relating to
the offering required to be filed pursuant to Rule 424;
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of the
undersigned Registrant or used or referred to by the undersigned
Registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing
material information about the undersigned Registrant or its securities provided
by or on behalf of the undersigned Registrant; and
(iv) Any
other communication that is an offer in the offering made by the undersigned
Registrant to the purchaser.
The
undersigned Registrant hereby undertakes that, for purposes of determining any
liability under the 1933 Act each filing of the Registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the 1934 Act (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the 1934 Act) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
Insofar
as indemnification for liabilities arising under the 1933 Act may be permitted
to directors, officers and controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been advised that in the
opinion of the Commission such indemnification is against public policy as
expressed in the 1933 Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the 1933 Act
and will be governed by the final adjudication of such issue.
Pursuant
to the requirements of the Securities Act of 1933, as amended (the “Securities
Act”), the Company certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the city of Elgin, Illinois, on this 6th day of
November, 2009.
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The
Middleby Corporation, a Delaware corporation
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By:
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/s/
Timothy J. FitzGerald
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Timothy
J. FitzGerald
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Chief
Financial Officer
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POWER
OF ATTORNEY
KNOW
ALL MEN BY THESE PRESENTS, that each person whose signature appears below,
hereby constitutes and appoints Timothy J. FitzGerald and Martin M. Lindsay, and
each or any one of them, his or her true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for him or her and
in his or her name, place and stead, in any and all capacities, to sign any or
all pre- and post-effective amendments to this Registration Statement, and to
file the same, with all exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he or she might
or could do in person, hereby ratifying and conforming all that said
attorneys-in-fact and agents, and each of them, or the substitute or substitutes
of any or all of them, may lawfully do or cause to be done by virtue
hereof.
Pursuant
to the requirements of the Securities Act, this Registration Statement has been
signed by the following persons in the capacities indicated on November 6,
2009.
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Signature
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Title
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/s/
Selim A. Bassoul
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Chairman
of the Board of Directors, President and Chief Executive Officer
(Principal Executive Officer)
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Selim
A. Bassoul
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/s/
Timothy J. FitzGerald
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Vice
President and Chief Financial Officer (Principal Financial and Accounting
Officer)
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Timothy
J. FitzGerald
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/s/
Robert B. Lamb
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Director
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Robert
B. Lamb
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/s/
Ryan Levenson
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Director
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Ryan
Levenson
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/s/
John R. Miller III
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Director
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John
R. Miller III
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/s/
Gordon O’Brien
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Director
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Gordon
O’Brien
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/s/
Philip G. Putnam
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Director
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Philip
G. Putnam
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/s/
Sabin C. Streeter
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Director
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Sabin
C. Streeter
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INDEX
TO EXHIBITS
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EXHIBIT
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5.1
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Opinion
of Skadden, Arps, Slate, Meagher & Flom LLP
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10.1
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TurboChef
Technologies, Inc. 1994 Stock Option Plan, as amended (incorporated by
reference to Exhibit 4.3 to TurboChef’s Registration Statement on Form
S-8, Registration No. 333-81571, filed with the Commission on June 25,
1999).
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23.1
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Consent
of Skadden, Arps, Slate, Meagher & Flom LLP (included in Exhibit
5.1)
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23.2
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Consent
of Deloitte & Touche LLP
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24.1
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Powers
of Attorney (included on signature page to this Registration
Statement)
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