EX-10.18




	




Exhibit 10.18 



AMENDMENT NO.
5
TO
EMPLOYMENT AGREEMENT OF WILLIAM F. WHITMAN, JR.



     
        This
Amendment No. 5 is made this 15th day of December,  2003, by and among THE MIDDLEBY
CORPORATION,  a Delaware corporation,  MIDDLEBY MARSHALL INC., a Delaware corporation,
(collectively the “Employer”) and WILLIAM F. WHITMAN, JR. (“Whitman”). 



RECITALS 



A.         Employer and Whitman are
parties to that certain Employment Agreement dated as of January 1, 1995, and as amended
from time to time thereafter (the “Employment Agreement”). 



B.         Employer and Whitman wish
to amend the Employment Agreement to make certain changes to Whitman’s compensation. 



AGREEMENT 



     
        NOW
THEREFORE the parties agree as follows: 



1.                     Section 4(b)
of the Employment Agreement is hereby amended to read as follows: 










	 	
“(b)
     Incentive  Compensation.  Whitman  shall be eligible to  participate  in the
 Management  Incentive  Plan  adopted by the  Employer in 2001  subject to all terms and
           conditions  thereof.  Under such Plan, if the Employer attains certain
 pre-established  EBITDA goals  (attainment of such goals to be determined after taking
into account any            incentive  compensation to be paid to Whitman and any other
participating  Employees under the Plan), Whitman shall be entitled to receive (in
addition to his base salary) for            the fiscal year ending December 31, 2002 and
for each fiscal year  thereafter,  an amount equal to (i) $310,000 (for fiscal 2002),
 $360,000 (for fiscal 2003) or $400,000 (for            each fiscal year after 2003),
 plus (ii) an additional  $25,000 for each $120,000 by which the  Employer’s  actual
EBITDA for such fiscal year exceeds the EBITDA goal for such            fiscal year.  The
EBITDA goals are set forth on Exhibit A hereto.  Effective  with respect to bonuses
 payable under the  Management  Incentive Plan for fiscal years ending on            and
after  December 31, 2003,  the maximum bonus  payable to Whitman  under the  Management
 Incentive  Plan shall be increased to $2,400,000  and the Employer will modify the
           Management Incentive Plan accordingly.”






	


2.                     Section 4 of
the Employment Agreement is hereby amended by adding the following new subsections to the
end thereof. 










	 	
“(g)
     2003 Bonuses.  The Employer agrees to accelerate the payment of approximately  90%
of Whitman’s  projected bonus for 2003 to be paid no later than December 31, 2003,
           rather than in 2004 as is normally the case.  Payment of the bonus is further
 conditioned  upon attainment of the  pre-approved  performance  goals for 2003,
 prorated to the            date of payment.  In  addition,  in light of the  Employer’s
 financial  success  during  2003,  the Employer  agrees to pay to Whitman a bonus,  in
addition to any  incentive            compensation  to which Whitman may become entitled
under the Management  Incentive Plan for 2003, in the amount of $430,000,  such amount to
be paid to Whitman in cash, in one            lump sum, on or about,  not later than
December 31, 2003.  Notwithstanding  anything  contained herein or in the Management
 Incentive Plan to the contrary,  the amount of the            additional  bonus payable
 pursuant to  immediately  foregoing  sentence shall be excluded from the  calculation of
EBITDA under the Management  Incentive Plan for purposes of            determining
bonuses thereunder and the Employer will modify the Management Incentive Plan accordingly.






	


 























	 	
(h)
      Stock  Options.  On October 23,  2003,  Whitman was granted a fully vested stock
 option with  respect to 120,000  shares of TMC common  stock,  under the 1998 Stock
           Incentive Plan. All options granted to Whitman prior to December 15, 2003,
 shall be amended,  and the form of option  agreement used for the grant of any option to
Whitman on            or after such date shall be revised,  to remove any  limitations on
vesting of such  option(s) in the event of a change in control on account of the
provisions of sections 280G            or 4999 of the Internal Revenue Code of 1986, as
amended (or any successor or replacement  sections  thereto) (the “Code”).  TMC agrees to
amend the 1998 Stock Incentive Plan,            enter into one or more stock option
agreements with the Whitman, and modify any other plans or agreements as is necessary to
comply with the terms of this Section 4(h).”






	


3. Section 6(e)(i) of the
Employment Agreement is hereby amended to read as follows: 










	 	
“(i)
     Whitman shall be entitled to receive (A) on the date of such  termination  an amount
equal to two (2) times his annual base salary in effect at such date;  and (B) a
           payment equal to two times the amount of his incentive  compensation  under
the  Management  Incentive  Plan with respect to the fiscal year  immediately  prior to
the year in            which the termination occurs, payable in a single lump sum payment
to Whitman,  provided,  however, that the amount payable pursuant to clauses (A) and (B)
shall be limited to            the largest amount (if any) which, when added to all other
payments made to Whitman and described in Section  280G(b)(2) of the Code does not
constitute a “parachute  payment”            within the meaning of Section  280G(b)(2)
 thereof.  The  limitations  on the payments  made  pursuant to clauses (A) and (B) shall
in no way limit any other  payments made to            Whitman which may be described in
Section 280(G)(b)(2) of the Code and shall in no way limit the Employer’s obligation
under Section 6(h) hereof.”






	


4.                     Section 6(g)
of the Employment Agreement is hereby amended by adding the following to the end thereof: 










	 	
“For
purposes of this subsection and provided that Whitman’s employment is not terminated
under subsection 6(a) hereof,  incentive  compensation under the Management Incentive
           Plan for any year shall be deemed to have accrued as of the date of
 termination  if and to the extent that incentive  compensation  under the Management
 Incentive Plan would            have been  payable to Whitman if he had been  employed
on the last day of such fiscal  year and shall be (i) pro rated  based on the number of
days that  Whitman was  employed            during the fiscal year and (ii) payable in
the following fiscal year, on the earlier of April 1 or at the same time as incentive
 compensation  under the Management  Incentive            Plan for such year is paid to
those employees who are still employed by the Employer.”






	


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5.     Section 6 of the Employment
Agreement is hereby amended by adding to the end thereof a new subsection (h) to read as
follows: 





     
        “(h)
     Parachute Payments. 










	 	     
        (i)
To the extent that any amount payable to Whitman (hereunder or otherwise) along or
together with other compensation constitutes a “parachute payment” within the
meaning of section 280G(b)(2) of the Code that would result in some or all of the
compensation owed being characterized as “excess parachute payments” (as
defined by section 280G(b)(1) of the Code), and would, therefore, be subject to an excise
tax under section 4999 of the Code (the “Excise Tax”), the Employer shall pay
to Whitman, at the time specified below, that additional amount (the “Gross-Up
Payment) necessary to reimburse Whitman for the amount of any (i) Excise Tax, (ii)
federal, state and local income and employment taxes (including additional Excise Tax)
payable with respect to the Gross-Up Payment, and (iii) interest, penalties or additions
to tax payable by the Whitman with respect to the Excise Tax or the Gross-Up Payment. For
purposes of determining the amount of the Gross-Up Payment, Whitman shall be deemed to
pay federal income taxes at the highest marginal rates of taxation applicable to
individuals as are in effect in the calendar year in which the Gross-Up Payment is to be
made and state and local income taxes at the highest marginal rates of taxation
applicable to individuals as are in effect in the state and locality of the Whitman’s
residence, and/or any other state or locality that may be applicable, in the calendar
year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal
income taxes that can be obtained from deduction of such state and local taxes, taking
into account any limitations applicable to individuals subject to federal income tax at
the highest marginal rates.






	 	     
        (ii)
The Gross-Up Payments provided for in Section 6(h)(i) above shall be made upon the
earlier of (i) the payment to Whitman of compensation in the nature of a parachute
payment or (ii) the imposition upon Whitman or payment by Whitman of any Excise Tax.






	 	     
        (iii)
If it is established pursuant to a final determination of a court or an Internal Revenue
Service proceeding that the Excise Tax is less than the amount taken into account under
Section 6(h)(i) above, Whitman shall repay to the Employer within thirty (30) days of
Whitman’s receipt of notice of such final determination the portion of the Gross-Up
Payment attributable to such reduction (plus the portion of the Gross-Up Payment
attributable to the Excise Tax and federal, state and local income and employment taxes
imposed on the Gross-Up Payment being repaid by the Whitman, if such repayment results in
a reduction in Excise Tax or a federal, state and local income tax deduction). If it is
established pursuant to a final determination of a court or an Internal Revenue Service
proceeding that the Excise Tax Exceeds the amount taken into account under Section
6(h)(i) above (including by reason of any payment the existence or amount of which cannot
be determined at the time of the Gross-Up Payment), the Employer shall make any
additional Gross-Up Payment in respect of such excess within thirty (30) days of the
Employer’s receipt of notice of such final determination.






	


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        (iv)
     Notwithstanding  anything  contained herein or in the Management  Incentive Plan to
the contrary,  the amount of any payments made pursuant to this Section             6(h)
shall be excluded from the calculation of EBITDA under the Management Incentive Plan for
purposes of determining bonuses thereunder.”






	


6.                          The
Employer agrees to modify any and all agreements, plans and contracts as may be necessary
to effectuate the terms of this Amendment. 



7.          The effective date of
this Amendment No. 5 is October 23, 2003. 



8. Except as above amended, the
Employment Agreement shall remain in full force and effect.  



     
        IN
WITNESS WHEREOF the parties hereto have executed this instrument as of the day
and year first above stated. 









	THE
      MIDDLEBY CORPORATION

      AND

      MIDDLEBY MARSHALL INC. 

      	      	WILLIAM
      F. WHITMAN, JR.
	    

             		
	By: /s/ Selim
      A. Bassoul

             ——————————————
      

             President and Chief Executive
      Officer

      		/s/ William
      F. Whitman, Jr.

      ——————————————
      






	


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