As filed with the Securities and Exchange Commission on August 25, 2021 | |||||||||||
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) | ||||||||||
The Middleby Corporation 2021 Long-Term Incentive Plan | |||||||||||
(Full title of the plan) | |||||||||||
Bryan E. Mittelman | |||||||||||
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, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act. | |||||||||||
Large accelerated filer x | Accelerated filer ☐ | ||||||||||
Non-accelerated filer ☐ | Smaller reporting company ☐ | ||||||||||
Emerging growth company ☐ |
Title of securities to be registered | Amount to be registered(1) | Proposed maximum offering price per share | Proposed maximum aggregate offering price | Amount of registration fee | |||||||||||||
Common Stock, par value $0.01 per share | 1,350,000(2) | $178.92(3) | $241,542,000.00(3) | $26,352.23(4) | |||||||||||||
(1) | This Registration Statement on Form S-8 (the “Registration Statement”) registers common stock, par value $0.01 per share (the “Common Stock”) of The Middleby Corporation (the “Registrant”) issuable pursuant to the Registrant’s 2021 Long-Term Incentive Plan (the “2021 LTIP”). Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (“Securities Act”), this Registration Statement also covers an indeterminate amount of any additional shares and rights that may be offered and issued in accordance with anti-dilution provisions of the 2021 LTIP. | ||||||||||||||||
(2) | This Registration Statement covers 1,350,000 shares of Common Stock of the Registrant, not previously registered, issuable under the 2021 LTIP. In addition, the number of shares available for issuance under the 2021 LTIP may be increased from time to time by shares of Common Stock subject to outstanding awards under the Registrant’s 2011 Long-Term Incentive Plan that are forfeited, cancelled or expire after May 10, 2021. | ||||||||||||||||
(3) | Estimated solely for the purpose of calculating the registration fee in accordance with Rules 457(c) and (h) under the Securities Act, based upon the average of the high and low sale prices of the Common Stock of the Registrant reported on the Nasdaq Global Select Market on August 20, 2021. | ||||||||||||||||
(4) | Pursuant to Rule 457(p) of the Securities Act, $26,352.23 of the $329,365.32 registration fee that was previously paid by the Registrant in connection with the filing of the Registrant’s registration statement on Form S-4 (File No. 333-256653) (the “Form S-4”), initially filed on May 28, 2021, has been offset against the filing fee due with respect to the Registration Statement. The offering under the Form S-4 was terminated, and the Registrant filed a request to withdraw the Form S-4 on July 15, 2021. |
(a) | the Registrant’s Annual Report on Form 10–K for the fiscal year ended January 2, 2021 (the “Annual Report”); | ||||
(b) | the Registrant’s Quarterly Reports on Form 10–Q for the fiscal quarter ended April 3, 2021 and July 3, 2021; | ||||
(c) | the Registrant’s Current Reports on Form 8-K, filed with the Commission on January 5, 2021, February 19, 2021, April 21, 2021, May 13, 2021, June 1, 2021, July 6, 2021, July 13, 2021 and July 14, 2021; | ||||
(d) | the Registrant’s Definitive Proxy Statement on Schedule 14A, filed with the Commission on March 31, 2021; and | ||||
(e) | the description of the Registrant’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, including the Description of the Registrant’s Securities contained in Exhibit 4.4 to the Registrant’s Annual Report. |
(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 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. |
Exhibit Number | Description | ||||
4.1 | |||||
4.2 | |||||
4.3 | |||||
4.4 | |||||
4.5 | Specimen Common Stock certificate (incorporated by reference to Exhibit 7 to the Registrant’s Registration Statement on Form 8–A filed with the Commission on July 1, 1998). | ||||
5.1* | |||||
23.1* | |||||
23.2* | |||||
24.1* | |||||
99.1 |
THE MIDDLEBY CORPORATION | |||||
By: | /s/ Bryan E. Mittelman | ||||
Name: Bryan E. Mittelman Title: Chief Financial Officer |
Signature | Title | ||||
/s/ Timothy J. FitzGerald | Chief Executive Officer and | ||||
Timothy J. FitzGerald | Director (Principal Executive Officer) | ||||
/s/ Bryan E. Mittelman | Chief Financial Officer | ||||
Bryan E. Mittelman | (Principal Financial and Accounting Officer) | ||||
/s/ Gordon O’Brien | |||||
Gordon O’Brien | Chairman of the Board and Director | ||||
/s/ Sarah Palisi Chapin | |||||
Sarah Palisi Chapin | Director | ||||
/s/ Cathy L. McCarthy | |||||
Cathy L. McCarthy | Director | ||||
/s/ John R. Miller, III | |||||
John R. Miller, III | Director | ||||
/s/ Robert Nerbonne | |||||
Robert Nerbonne | Director | ||||
/s/ Nassem Ziyad | |||||
Nassem Ziyad | Director |
Re: | The Middleby Corporation | |||||||
Registration Statement on Form S-8 |
(a) | the Registration Statement; | |||||||
(b) | an executed copy of a certificate of Martin M. Lindsay, Chief Risk and Administration Officer of the Company, dated as of the date hereof (the “Officer’s Certificate”); | |||||||
(c) | the Plan, certified pursuant to the Officer’s Certificate; | |||||||
(d) | a specimen certificate representing the Common Stock, certified pursuant to the Officer’s Certificate; | |||||||
(e) | a copy of the Company’s Restated Certificate of Incorporation certified by the Secretary of State of the State of Delaware as of August 23, 2021, and certified pursuant to the Officer’s Certificate (the “Current Charter”); | |||||||
(f) | a copy of the Fourth Amended and Restated Bylaws of the Company dated February 26, 2021, as in effect as of the date hereof and certified pursuant to the Officer’s Certificate (the “Current Bylaws”); and |
(g) | certain resolutions of the Board of Directors of the Company, adopted February 26, 2021, relating to approval of the Plan and the filing of the Registration Statement, certified pursuant to the Officer’s Certificate. |
(a) | the Plan Shares will be issued in accordance with the terms of the Plan; | |||||||
(b) | each award agreement under which rights to acquire Plan Shares are granted pursuant to the Plan (each an “Award Agreement”) will be consistent therewith and will be duly authorized, validly executed and delivered by the parties thereto; | |||||||
(c) | the consideration received by the Company for each Plan Share delivered pursuant to the Plan shall not be less than the par value of the Common Stock; and | |||||||
(d) | the registrar and transfer agent for the Common Stock will duly register such issuance and countersign the stock certificates evidencing such Plan Shares and such stock certificates will conform to the specimen certificate examined by us. |
Very truly yours, | ||||||||
/s/ Skadden, Arps, Slate, Meagher & Flom LLP |