s-8.htm
 
As filed with the Securities and Exchange Commission on August 11, 2011
 
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)
 
Delaware
(State or other jurisdiction of incorporation or organization)
  
36-3352497
(I.R.S. Employer Identification No.)

1400 Toastmaster Drive, Elgin, Illinois
(Address Of Principal Executive Offices)
  
60120
(Zip Code)
 
2011 Long-Term Incentive Plan
(Full title of the plan)
 
Timothy J. FitzGerald
Vice President and Chief Financial Officer
The Middleby Corporation
1400 Toastmaster Drive, Elgin, Illinois 60120
 (Name and address of agent for service)
 
(847) 741-3300
(Telephone number, including area code, of agent for service)
 
With a copy to:
Shilpi Gupta
Skadden, Arps, Slate, Meagher & Flom LLP
155 N. Wacker Drive
Chicago, IL 60606
(312) 407-0700

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company.  See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.  (Check one):

 
Large accelerated filer x
  
Accelerated filer  o
       
 
Non-accelerated filer  o
  
Smaller reporting company  o
 
(Do not check if a smaller reporting company)
    
 
CALCULATION OF REGISTRATION FEE
 
Title of securities to be registered
  
Amount to be registered
  
Proposed
maximum offering
price per share
  
Proposed maximum
aggregate offering
price
  
Amount of
registration fee
Common Stock, $.01 par value per share
  
550,000(1)
  
$72.08 (2)
  
$39,644,000 (2)
  
$4,602.67

 
 
(1)
The amount to be registered also includes any additional shares and rights that may be subject to issuance in accordance with anti-dilution provisions of the 2011 Long-Term Incentive Plan.
     
 
(2)
Estimated solely for the purpose of calculating the registration fee and, pursuant to Rules 457(c) and (h) under the Securities Act of 1933, based upon the average of the high and low sale prices of the Common Stock, $.01 par value per share (the “Common Stock”), of The Middleby Corporation (the “Company”), reported on the Nasdaq Stock Market on August 8, 2011.

 
 
 

PART I
 
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
 
Item 1.
  
Plan Information.*
     
Item 2.
  
Registrant Information and Employee Plan Annual Information.*
________________________________
* The documents containing the information specified in Part I of Form S-8 will be sent or given to employees as specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the “Securities Act”). Such documents need not be filed with the Securities and Exchange Commission (the “Commission”) either as part of this registration statement or as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities Act. These documents and the documents incorporated by reference in this registration statement pursuant to Item 3 of Part II of this registration statement, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3.
  
Incorporation of Documents by Reference.

The following documents heretofore filed with the Commission by The Middleby Corporation (the “Company”) (File No. 1-9973) are incorporated by reference into this registration statement:

 
(a)
the Company’s Annual Report on Form 10-K for the fiscal year ended January 1, 2011;
     
 
(b)
the Company’s Quarterly Reports on Form 10-Q for the fiscal quarters ended April 2, 2011 and July 2, 2011;
     
 
(c)
the Company’s Current Report on Form 8-K, filed with the Commission on May 17, 2011 ; and
     
 
(d)
the description of the Company’s Common Stock, par value $0.01 per share (the “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.

All documents filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, after the date of this registration statement and prior to the filing of a post-effective amendment to this registration statement which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into this registration statement and to be a part hereof from the respective dates of filing of such documents (such documents, and the documents enumerated above, are hereinafter referred to as “Incorporated Documents”).

Any statement contained in an Incorporated Document 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 Incorporated Document 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.  
 

 
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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.

 
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Item 8.
  
Exhibits.

Exhibit
Number
  
Description
     
4.1
  
Restated Certificate of Incorporation of The Middleby Corporation (effective as of May 13, 2005, incorporated by reference to the Company’s Form 8-K, Exhibit 3.1, dated April 29, 2005, filed on May 17, 2005).
     
4.2
  
Certificate of Amendment to the Company’s Restated Certificate of Incorporation (incorporated by reference to the Company’s Form 8-K, filed on May 3, 2007).
     
4.3
  
Second Amended and Restated Bylaws of The Middleby Corporation (effective as of December 31, 2007, incorporated by reference to the Company’s Form 8-K, Exhibit 3.1, dated December 31, 2007, filed on January 4, 2008).
     
4.4
  
Specimen Common Stock certificate (incorporated by reference to Exhibit 7 to the Company’s Registration Statement on Form 8-A filed with the Commission on July 1, 1998).
     
5.1
  
Opinion of Skadden, Arps, Slate, Meagher & Flom LLP.
     
23.1
  
Consent of Deloitte & Touche LLP.
     
23.2
  
Consent of Skadden, Arps, Slate, Meagher & Flom LLP, included in Exhibit 5.1.
     
24.1
  
Powers of attorney (included on the signature pages to this registration statement).


Item 9.
  
Undertakings.
 
 
(a)
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 Securities Act of 1933;
         
     
(ii)
To reflect in the prospectus any facts or events arising after the effective date of the 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 the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
         
     
 (iii)
To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
         
 
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the registration statement is on Form S–8 (§ 239.16b of this chapter), and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the
 
 
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Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m or 78o(d)) that are incorporated by reference in the registration statement.
         
   
(2)
That, for the purpose of determining any liability under the Securities Act of 1933, 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.
         
 
(b)
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) 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.
         
 
(c)
Insofar as indemnification for liabilities arising under the Securities Act of 1933 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 Securities and Exchange Commission such indemnification is against public policy as expressed in the 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 Act and will be governed by the final adjudication of such issue.
 
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SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the registrant 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, state of Illinois, on this 11th day of August, 2011.

   
THE MIDDLEBY CORPORATION.
     
   
By:
  
/s/ Timothy J. FitzGerald
       
Name: Timothy J. FitzGerald
       
Title:   Vice President and Chief Financial Officer

KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears immediately below constitutes and appoints Timothy J. FitzGerald and Martin M. Lindsay, and each or any one of them, his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including 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 attorney-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, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on August 11, 2011.

Signature
 
  
Title
 

/s/ Selim A. Bassoul
  
Chairman of the Board of Directors,
Selim A. Bassoul
  
President and Chief Executive Officer (Principal Executive Officer)

/s/ Timothy J. FitzGerald
  
Vice President and Chief Financial
Timothy J. FitzGerald
  
Officer (Principal Financial and Accounting Officer)

 
/s/ Robert B. Lamb
    
Robert B. Lamb
  
Director

/s/ Ryan Levenson
    
Ryan Levenson
  
Director

/s/ John R. Miller III
    
John R. Miller III
  
Director

/s/ Gordon O’Brien
    
Gordon O’Brien
  
Director
 
 
 
 

/s/ Philip G. Putnam
    
Philip G. Putnam
  
Director

/s/ Sabin C. Streeter
    
Sabin C. Streeter
  
Director



 
 
 


EXHIBIT INDEX

Exhibit
Number
  
Description
     
4.1
  
Restated Certificate of Incorporation of The Middleby Corporation (effective as of May 13, 2005, incorporated by reference to the Company’s Form 8-K, Exhibit 3.1, dated April 29, 2005, filed on May 17, 2005).
     
4.2
  
Certificate of Amendment to the Company’s Restated Certificate of Incorporation (incorporated by reference to the Company’s Form 8-K, filed on May 3, 2007).
     
4.3
  
Second Amended and Restated Bylaws of The Middleby Corporation (effective as of December 31, 2007, incorporated by reference to the Company’s Form 8-K, Exhibit 3.1, dated December 31, 2007, filed on January 4, 2008).
     
4.4
  
Specimen Common Stock certificate (incorporated by reference to Exhibit 7 to the Company’s Registration Statement on Form 8-A filed with the Commission on July 1, 1998).
     
5.1
  
Opinion of Skadden, Arps, Slate, Meagher & Flom LLP.
     
23.1
  
Consent of Deloitte & Touche LLP.
     
23.2
  
Consent of Skadden, Arps, Slate, Meagher & Flom LLP, included in Exhibit 5.1.
     
24.1
  
Powers of attorney (included on the signature pages to this registration statement).