SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K/A

Amendment No. 1 to CURRENT REPORT

Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): December 21, 2001

THE MIDDLEBY CORPORATION
(Exact Name of Registrant as Specified in its Charter)

Commission File No. 1-9973

The undersigned registrant hereby amends its Current Report on Form 8-K dated December 21, 2001 and filed on January 7, 2002 in its entirety as follows:

Item 2. Acquisition or Disposition of Assets

On December 21, 2001 (the “Closing Date”), The Middleby Corporation (“Middleby”) completed the acquisition of substantially all of the assets of the Blodgett commercial cooking products business (the “Acquisition”) of Maytag Corporation, a Delaware corporation (“Maytag”). Blodgett manufactures products under the Blodgett, Pitco Frialator, Magikitch’n and Blodgett Combi brands. The Acquisition was effected in accordance with the terms of a Stock Purchase Agreement by and between Middleby and Maytag, dated as of August 30, 2001, as amended by Amendment No. 1, dated December 21, 2001 (the “Purchase Agreement”).

As consideration for the Acquisition, Middleby delivered to Maytag: (i) $74,000,000 in cash; and (ii) $21,000,000 in subordinated notes. The amount of consideration was determined by arms-length negotiation, and there was no material relationship between Maytag and Middleby or any of its affiliates, any of its directors or officers, or any associate of any such director or officer.

The description of the transaction contained herein is qualified in its entirety by reference to the Purchase Agreement, which is incorporated herein by reference as Exhibit 2.1, and the Amendment thereto, which was filed as Exhibit 2.2 to the original Form 8-K.

Financing for the Acquisition included a $68 million senior bank facility led by Bank of America (filed as Exhibit 4.3 to the original Form 8-K) and secured by substantially all of the assets of Middleby and its direct and indirect subsidiaries, including the Blodgett companies acquired in the Acquisition. Additional financing included $25 million of senior subordinated note financing from American Capital Strategies (Exhibit 4.8 filed herewith) as well as $21 million in subordinated notes due to Maytag (filed as Exhibits 4.1 and 4.2 to the original Form 8-K). The senior bank facility loan amortizes over four years at an interest rate that initially starts at an average spread of approximately 3.3% over the floating Eurodollar interest rate. That spread may decrease over time based upon certain prescribed leverage performance ratios. See Exhibit 4.3 to the original Form 8-K for more details.

The $25 million of senior subordinated note financing is scheduled to be repaid in 4.75 years and carries a fixed interest rate of 13.5% cash interest and 2% interest payable in additional notes. In addition, these notes will require the issuance of warrant rights to the noteholder to purchase Middleby common stock at $4.67 per share. The aggregate of the warrants to be issued equal up to a maximum of 8.25% of the outstanding common stock of Middleby as of the Closing Date.

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The number of warrants that may be exercised may be decreased based upon certain prescribed rates of return earned by the noteholder on this financing transaction. See Exhibits 4.9 and 4.10 filed herewith for more details.

The $21 million of subordinated notes due to Maytag are scheduled to be repaid in five years and carry fixed interest rates of 12% to 13.5%. The Acquisition purchase price and the associated amount of subordinated notes due to Maytag may be adjusted after the Closing Date based upon the change in adjusted working capital of the acquired assets. See Exhibits 2.1, 2.2, 4.1 and 4.2 to the original Form 8-K for more details.

Item 7. Financial Statements, Pro Forma Financial Information and Exhibits

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SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this amendment to Current Report on Form 8-K to be signed on its behalf by the undersigned thereunto duly authorized.

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     Exhibit 4.8

NOTE AND EQUITY PURCHASE AGREEMENT

by and among

THE MIDDLEBY CORPORATION and
MIDDLEBY MARSHALL INC.,
AS LOAN PARTIES,

AMERICAN CAPITAL FINANCIAL SERVICES, INC.,
AS AGENT

and

THE PURCHASERS IDENTIFIED ON
ANNEX A HERETO

December 21, 2001

TABLE OF CONTENTS

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ii

iii

NOTE AND EQUITY PURCHASE AGREEMENT

$25,000,000 Aggregate Principal Amount of
Senior Subordinated Promissory Notes of the Company
Due September 14, 2006

Warrants to Purchase up to 8.25%
of Common Stock of Parent

     THIS NOTE AND EQUITY PURCHASE AGREEMENT (this “Agreement”), dated as of December 21, 2001, is by and among The Middleby Corporation, a Delaware corporation (“Parent”), Middleby Marshall Inc., a Delaware corporation (the “Company” and, jointly and severally, the “Loan Parties”), the securities purchasers that are now and hereafter at any time parties hereto and are listed in Annex A (or any amendment or supplement thereto) attached hereto (each a “Purchaser” and collectively, “Purchasers”), and AMERICAN CAPITAL FINANCIAL SERVICES, INC., a Delaware corporation (“ACFS”), as administrative agent for Purchasers (in such capacity “Agent”). Capitalized terms used and not defined elsewhere in this Agreement are defined in Article 1 hereof.

RECITALS

     A. Parent and Maytag Corporation, a Delaware corporation (“Maytag”), are party to that certain Stock Purchase Agreement, dated as of August 30, 2001 (as amended, restated or otherwise modified from time to time, the “Acquisition Agreement”), whereby Parent has agreed to purchase all of the capital stock of Blodgett Holdings, Inc. (the “Blodgett Acquisition”).

     B. In order to finance the Blodgett Acquisition and provide working capital to the Company, the Company has proposed selling to Purchasers the Notes to be issued pursuant to this Agreement.

     C. In order to induce Purchasers to purchase the Notes to be issued pursuant to this Agreement, Parent has agreed to issue and sell to Purchasers, in connection with the purchase of such Notes, warrants to purchase up to 8.25% (on a fully diluted basis) of the issued and outstanding Common Stock of Parent subject to the terms and conditions sets forth in this Agreement.

     NOW, THEREFORE, the parties hereto, in consideration of the premises and their mutual covenants and agreements herein set forth and intending to be legally bound hereby, covenant and agree as follows:

     NOW, THEREFORE, the parties hereto, in consideration of the premises and their mutual covenants and agreements herein set forth and intending to be legally bound hereby, covenant and agree as follows:

ARTICLE 1

DEFINITIONS

     1.1 Certain Definitions. In addition to other words and terms defined elsewhere in this Agreement, the following words and terms shall have the meanings set forth below (and such meanings shall be equally applicable to both the singular and plural form of the terms defined, as the context may require):

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     “ACAS” shall mean American Capital Strategies, Ltd., a Delaware limited partnership.

     “ACFS” shall have the meaning assigned to such term in the introductory paragraph hereto.

     “Acquisition” shall mean any transaction or series of related transactions for the purpose of or resulting, directly or indirectly, in (a) the acquisition of all or substantially all of the assets of a Person, or of any business or division of a Person, (b) the acquisition of in excess of 50% of the capital stock, partnership interests, membership interests or equity of any Person, or otherwise causing any Person to become a Subsidiary, or (c) a merger or consolidation or any other combination with another Person (other than a Person that is a Subsidiary).

     “Acquisition Agreement” shall have the meaning assigned to such term in the recitals hereto.

     “Acquisition Documents” shall mean the Acquisition Agreement and all documents, instruments, certificates, and agreements contemplated thereby or executed in connection therewith.

     “Affiliate” shall mean with respect to any Person, (a) any other Person which, directly or indirectly, controls or is controlled by or is under common control with such Person and (b) any officer or director of such Person.

     “Agent” shall have the meaning assigned to such term in the preamble hereto and any successor agent provided for hereunder.

     “Agreement” shall mean this Note and Equity Purchase Agreement, as the same may be amended, restated, supplemented or otherwise modified from time to time.

     “Appraised Value” shall mean the fair market value of a security on a control premium basis without discount for limitations on voting rights, minority interests, illiquidity or restrictions on transfer, as determined by an appraisal performed at the expense of Parent by any of (x) Houlihan, Lokey, Howard & Zukin, (y) Duff & Phelps or (z) Willamette Management Associates, or any successor to such firms, as Parent shall elect; provided, that such appraiser shall be directed to determine the value of such securities as soon as practicable, but in no event later than 30 days from the date of its selection and for such purposes all rights, options and warrants to subscribe for or purchase, and other securities convertible into or exchangeable for Common Stock of Parent shall be deemed to be exercised, exchanged or converted, and the underlying shares of Common Stock of Parent shall be deemed outstanding.

     “Asset Sale” shall mean the sale, lease, assignment or other transfer for value by a Middleby Company to any Person (other than a Middleby Company) of any asset or right of such Middleby Company (including any sale or other transfer of stock of any Subsidiary, whether by merger, consolidation or otherwise), excluding (a) the sale or lease of inventory in the ordinary course of business, (b) license agreements entered into by such Middleby Company, as licensor, in the ordinary course of business for the use of any intellectual property or other intangible asset of such Middleby Company, (c) sales or discounts of accounts receivable in the ordinary course of business in connection with the compromise or collection thereof, which sales shall be without recourse to such Middleby Company and (d) other sales or transfers of assets in an aggregate amount not exceeding $500,000 in any fiscal year.

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     “Blodgett Acquisition” shall have the meaning assigned to such term in the recitals hereto.

     “Business” shall mean the principal business of each of the Middleby Companies as set forth in Section 5.1(b) herein and as such shall continue to be conducted following the purchase and sale of the Securities.

     “Business Day” shall mean any day other than a Saturday, Sunday or other day on which banking institutions in Illinois are authorized or required by law to close.

     “By-laws” shall mean the by-laws, partnership agreement, limited liability company agreement, regulations, operating agreement or analogous instrument governing the operations of each of the Middleby Companies, as applicable, including all amendments and supplements thereto.

     “Capital Expenditures” shall mean all expenditures which, in accordance with GAAP, would be required to be capitalized and shown on the consolidated balance sheet of the Parent, but excluding expenditures made in connection with the replacement, substitution or restoration of assets to the extent financed (a) from insurance proceeds (or other similar recoveries) paid on account of the loss of or damage to the assets being replaced or restored or (b) with awards of compensation arising from the taking by eminent domain or condemnation of the assets being replaced.

     “Capitalized Leases” shall mean, with respect to any Person, leases of (or other agreements conveying the right to use) any property (whether real, personal or mixed) by such Person as lessee that, in accordance with GAAP, would be required to be classified and accounted for as Capitalized Leases on a balance sheet of such Person.

     “Cash Equivalent Investment” shall mean, at any time, (a) any evidence of Indebtedness, maturing not more than one year after such time, issued or guaranteed by the United States Government or any agency thereof, (b) commercial paper, maturing not more than one year from the date of issue, or corporate demand notes, in each case (unless issued by a Senior Lender or its holding company) rated at least A-l by Standard & Poor’s Ratings Group (“S&P”) or P-l by Moody’s Investors Service, Inc. (“Moody’s”) (or carrying an equivalent rating by an internationally-recognized rating agency), (c) any certificate of deposit (or time deposits represented by such certificates of deposit) or bankers acceptance, maturing not more than one year after such time, or overnight Federal funds transactions or money market deposit accounts that are issued or sold by, or maintained with, a Senior Lender, (d) any repurchase agreement entered into with any Senior Lender which (i) is secured by a fully perfected security interest in any obligation of the type described in any of clauses (a) through (c) and (ii) has a market value at the time such repurchase agreement is entered into of not less than 100% of the repurchase obligation of such Senior Lender thereunder, (e) investments in short-term asset management accounts offered by any Senior Lender for the purpose of investing in loans to any corporation (other than the Parent or an Affiliate of the Parent), state or municipality, in each case organized under the laws of any state of the United States or of the District of Columbia, (f) securities with maturities of six (6) months or fewer from the date of acquisition backed by standby letters of credit issued by any Senior Lender, or (g) shares of money market mutual or similar funds which invest exclusively in assets satisfying the requirements of clauses (a) through (f) of this definition.

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     “CERCLA” shall mean the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. § 9604, et seq.), as amended, and rules, regulations, standards guidelines and publications issued thereunder.

     “Change of Control” shall mean the occurrence of any of the following:

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     “Charter Documents” shall mean the articles of incorporation, certificate of incorporation, certificate of limited partnership, certificate of limited liability company, articles of organization, certificate of organization, charter or analogous organic instrument filed with the appropriate Governmental Authorities of each of the Middleby Companies, as applicable, including all amendments and supplements thereto.

     “Closing” shall mean the closing of the purchase and sale of the Securities pursuant to this Agreement.

     “Closing Date” shall mean the date and time for delivery and payment of the Notes as finally determined pursuant to Section 2.4 hereof.

     “Closing Processing Fee” shall mean a fee in an amount equal to $687,500 ($50,000 of which was paid by the Company to ACFS prior to the date hereof) payable by the Company to ACFS in consideration of the structuring of the financing contemplated hereby.

     “Code” shall mean the Internal Revenue Code of 1986, as amended.

     “Common Stock” shall mean the common stock, $.01 par value, of the Parent.

     “Company” shall have the meaning assigned to such term in the introductory paragraph hereto.

     “Computation Period” shall mean each period of four (4) consecutive Fiscal Quarters ending on the last day of a Fiscal Quarter.

     “Condition” shall mean any condition that results in or otherwise relates to any Environmental Liabilities.

     “Conditional Warrants” shall mean Warrants issued pursuant to, and in the form of Exhibit B-2 to, this Agreement.

     “Consolidated Net Income” shall mean, with respect to the Parent and its Subsidiaries for any period, the net income (or loss) of the Parent and its Subsidiaries for such period, excluding (a) any extraordinary gains during such period and (b) any foreign exchange translation gains or losses that might appear on or be reflected in the consolidated statement of earnings of the Parent and its Subsidiaries on a consolidated basis for such period.

     “Consolidated Net Worth” shall mean, at any date, the sum of (a) consolidated stockholders’ equity (excluding any equity attributable to any preferred stock which is mandatorily redeemable, or redeemable at the option of the holder thereof, prior to one year following the final stated maturity of the Term Financing) of the Parent and its Subsidiaries as of such date and (b) all Special Charges taken after September 29, 2001.

     “Controlled Group” shall mean the “controlled group of corporations” as that term is defined in Section 1563 of the Internal Revenue Code of 1986, as amended, of which the Middleby Companies are a part from time to time.

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     “Default” shall mean any event or condition that, but for the giving of notice or the lapse of time, or both, would constitute an Event of Default.

     “Determination Date” shall mean the earlier to occur of (a) the date of payment in full of the Notes in accordance with the terms of this Agreement and (b) September 14, 2006.

     “Direct Competitor” shall mean a Person engaged in whole or in part in a business substantially similar to the Business.

     “Domestic Subsidiary” shall mean any Subsidiary that is incorporated in the United States.

     “EBITDA” shall mean for any period, without duplication, Consolidated Net Income for such period plus to the extent deducted in determining such Consolidated Net Income, Interest Expense, income tax expense, depreciation and amortization for such period.

     “Environmental Claims” means all claims, however asserted, by any governmental, regulatory or judicial authority or other Person alleging potential liability or responsibility for violation of any Environmental Law, or for release of hazardous substances or injury to the environment.

     “Environmental Laws” means all federal, state or local laws, statutes, common law duties, rules, regulations, ordinances and codes, together with all administrative orders, directed and enforceable duties, licenses, authorizations and permits of, and agreements with, any governmental authority, in each case relating to environmental matters.

     “Environmental Liabilities” shall mean any obligations or liabilities (including any claims, suits or other assertions of obligations or liabilities) that are:

The term “Environmental Liabilities” includes: (a) fines, penalties, judgments, awards, settlements, losses, damages, costs, fees (including attorneys’ and consultants’ fees), expenses and disbursements; (b) defense and other responses to any administrative or judicial action (including claims, notice letters, complaints, and other assertions of liability); and (c) financial responsibility for (i) cleanup costs and injunctive relief, including any Removal, Remedial or other Response actions, and natural resource damages, and (ii) any other compliance or remedial measures.

     “Environmental Schedule” shall have the meaning assigned to such term in Section 5.1(l) hereof.

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     “ERISA” shall mean the Employee Retirement Income Security Act of 1974, as the same may from time to time be amended, and the rules and regulations of any governmental agency or authority, as from time to time in effect, promulgated thereunder.

     “Event of Default” shall mean any of the events of default described in Section 8.1 hereof.

     “Exercise Shares” shall mean the number of shares of Common Stock (as adjusted from time to time in accordance with the Warrants) into which each Conditional Warrant is exercisable.

     “Fair Market Value” of a security shall mean (a) the Market Price thereof or (b) if determined in connection with a Change of Control, the greater of (i) the Market Price thereof or (ii) the value to be realized by the holder of the security as a result of such Change of Control.

     “Fiscal Quarter” shall mean each 13-week period during a Fiscal Year, beginning with the first day of such Fiscal Year.

     “Fiscal Year” or “fiscal year” shall mean the fiscal year of the Parent and its Subsidiaries, which period shall be the 12-month period ending on the Saturday closest to December 31 of each year. References to a Fiscal Year with a number corresponding to any calendar year (e.g., “Fiscal Year 2001”) refer to the Fiscal Year ending on the Saturday closest to December 31 of such calendar year.

     “Fixed Charge Coverage Ratio” shall mean, as of the last day of any Computation Period, the ratio of (a) the result of (i) Pro Forma EBITDA for such Computation Period less (ii) Capital Expenditures for such Computation Period less (iii) cash income tax expense for such Computation Period to (b) the sum of (i) Interest Expense to the extent payable in cash for such Computation Period plus (ii) the Scheduled Loan Payments (as defined below) for such Computation Period plus (iii) the actual aggregate amount of all other principal payments on Indebtedness made by the Parent and its Subsidiaries during such Computation Period; provided that:

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     For purposes of clause (b)(ii) above, “Scheduled Loan Payments” shall mean, with respect to the Term Financing, (A) for the Computation Period ending March 30, 2002, $6,000,000, (B) for the Computation Period ending June 29, 2002, $7,000,000, (C) for the Computation Period ending September 28, 2002, $9,000,000, (D) for the Computation Periods ending December 28, 2002, March 29, 2003, June 28, 2003 and September 27, 2003, $10,000,000, and (E) for any Computation Period ending thereafter, the amount of principal payments of the Loans (as defined in the Senior Credit Agreement) scheduled to be made during such Computation Period.

     “Funded Debt” shall mean all Indebtedness of the Parent and its Subsidiaries, excluding (i) contingent obligations in respect of undrawn letters of credit and Suretyship Liabilities (except, in each case, to the extent constituting Suretyship Liabilities in respect of Indebtedness of a Person other than the Company or any Subsidiary), (ii) Hedging Obligations, (iii) Indebtedness of the Company to its Subsidiaries and Indebtedness of the Company’s Subsidiaries to the Company or to other Subsidiaries of the Company, (iv) Indebtedness of Parent to the Company and (v) Seller Subordinated Debt.

     “GAAP” shall mean generally accepted accounting principles set forth from time to time in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board (or agencies with similar functions of comparable stature and authority within the U.S. accounting profession), which are applicable to the circumstances as of the date of determination.

     “Governmental Authorities” shall mean any federal, state, provincial or municipal court or other governmental department, ministry, council, commission, board, bureau, agency or instrumentality, governmental or quasi-governmental, domestic or foreign.

     “Guaranty” shall mean any guaranty of the payment or performance of any Indebtedness or other obligation and any other arrangement whereby credit is extended to one obligor on the basis of any promise of another Person, whether that promise is expressed in terms of an obligation to pay the Indebtedness of such obligor, or to purchase an obligation owed by such obligor, or to purchase goods and services from such obligor pursuant to a take-or-pay contract, or to maintain the capital, working capital, solvency or general financial condition of such obligor, whether or not any such arrangement is reflected on the balance sheet of such other Person, firm or corporation, or referred to in a footnote thereto, but shall not include endorsements of items for collection in the ordinary course of business. For the purpose of all computations made under this Agreement, the amount of a Guaranty in respect of any obligation shall be deemed to be equal to the maximum aggregate amount of such obligation or, if the Guaranty is limited to less than the full amount of such obligation, the maximum aggregate potential liability under the terms of the Guaranty.

     “Hazardous Materials” shall mean all substances defined as Hazardous Substances, Oils, Pollutants or Contaminants in the National Oil and Hazardous Substances Pollution Contingency Plan, 40 C.F.R. § 300.5, or defined as such by, or regulated as such under, any Environmental Law.

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     “Hedging Agreements” shall mean any interest rate, currency or commodity swap agreement, cap agreement or collar agreement, and any other agreement or arrangement designed to protect such Person against fluctuations in interest rates, currency exchange rates or commodity prices.

     “Hedging Obligations” shall mean, with respect to any Person, all liabilities of such Person under Hedging Agreements.

     “Holder” shall have the meaning assigned to such term in Section 10.1 hereof.

     “Holders’ IRR” shall have the meaning set forth in Section 13.18(a) hereof.

     “Indebtedness” shall mean, without duplication, (a) all indebtedness of such Person for borrowed money, whether or not evidenced by bonds, debentures, notes or similar instruments, (b) all obligations of such Person as lessee under Capitalized Leases which have been or should be recorded as liabilities on a balance sheet of such Person in accordance with GAAP, (c) all obligations of such Person to pay the deferred purchase price of property or services (excluding trade accounts payable in the ordinary course of business), (d) all indebtedness secured by a Lien on the property of such Person, whether or not such indebtedness shall have been assumed by such Person (it being understood that if such Person has not assumed or otherwise become personally liable for any such indebtedness, the amount of the Debt of such Person in connection therewith shall be limited to the lesser of the face amount of such indebtedness or the fair market value of all property of such Person securing such indebtedness), (e) all obligations, contingent or otherwise, with respect to the face amount of all letters of credit (whether or not drawn) and banker’s acceptances issued for the account of such Person, (f) all Hedging Obligations of such Person, (g) all Suretyship Liabilities of such Person in respect of obligations of the types referred to in clauses (a) through (f) and (h) all Indebtedness of any partnership in which such Person is a general partner.

     “Indebtedness to be Repaid” shall mean the Indebtedness listed on Schedule 7.2(a)(xi).

     “Interest Expense” shall mean, for any Computation Period, the consolidated interest expense of the Parent and its Subsidiaries for such Computation Period (including all imputed interest on Capitalized Leases).

     “Investment” shall mean, relative to any Person, (a) any loan or advance made by such Person to any other Person (excluding prepaid expenses in the ordinary course of business, accounts receivable arising in the ordinary course of business and commission, travel, relocation or similar loans or advances made to directors, officers and employees of the Parent or any of its Subsidiaries), (b) any Suretyship Liability of such Person, (c) any ownership or similar interest held by such Person in any other Person and (d) deposits and the like relating to prospective Acquisitions.

     “IP Assets” shall mean all intellectual property of the Middleby Companies including copyrights, trademarks, trademark applications, service marks and trade names, trade secrets, patent and patent applications related to the Business, and all physical manifestations thereof, including, without limitation, all books, manuals, software, disks, computer tapes and electronic and electromagnetic representations and reproductions thereof.

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     “IRS” shall mean the Internal Revenue Service and any governmental body or agency succeeding to the functions thereof.

     “IRR” shall mean, as to any Person and as of any date of determination, the internal rate of return received with respect to a Person’s investment in Notes and Warrants (which rate of return shall specifically exclude loan fees (other than prepayment premiums) received in connection therewith), assuming that the Warrants are exercisable into 5.5% of the issued and outstanding Common Stock of Parent on a fully diluted basis at the time of Closing.

     “Laws” shall mean all U.S. and foreign federal, state or local statutes, laws, rules, regulations, ordinances, codes, policies, rules of common law, and the like, now or hereafter in effect, including any judicial or administrative interpretations thereof, and any judicial or administrative orders, consents, decrees or judgments.

     “Lien” shall mean, with respect to any Person, any interest granted by such Person in any real or personal property, asset or other right owned or being purchased or acquired by such Person which secures payment or performance of any obligation and shall include any mortgage, lien, encumbrance, charge or other security interest of any kind, whether arising by contract, as a matter of law, by judicial process or otherwise.

     “Life Insurance” shall have the meaning assigned to such term in Section 7.1(n) hereof.

     “Litigation Schedule” shall have the meaning assigned to such term in Section 5.1(j) hereof.

     “Loan Parties” shall have the meaning assigned to such term in the introductory paragraph hereto.

     “Manage” and “Management” shall mean generation, production, handling, distribution, processing, use, storage, treatment, operation, transportation, recycling, reuse and/or disposal, as those terms are defined in CERCLA, RCRA and other Environmental Laws (including as those terms are further defined, construed, or otherwise used in rules, regulations, standards, guidelines and publications issued pursuant to, or otherwise in implementation of, such Environmental Laws).

     “Market Price” of any security shall mean the average of the closing prices of such security’s sales on all securities exchanges on which such security may at the time be listed, or, if there have been no sales on any such exchange on any day, the average of the highest bid and lowest asked prices on all such exchanges at the end of each day, or, if on any day such security is not so listed, the average of the representative bid and asked prices quoted in the NASDAQ System as of 4:00 P.M., New York time, or, if on any day such security is not quoted in the NASDAQ System, the average of the highest bid and lowest asked prices on such day in the domestic over-the-counter market as reported by the National Quotation Bureau, Incorporated, or any similar successor organization, in each such case averaged over a period of 30 days consisting of the day as of which “Market Price” is being determined and the 29 consecutive business days prior to such day. If at any time such security is not listed on any securities exchange or quoted in the NASDAQ System or the over-the-counter market, then “Market Price” shall be the fair value thereof determined jointly by Parent and the Holders of Warrants representing a majority of the shares of Common Stock of Parent obtainable upon exercise of the Warrants. If such parties are unable to reach agreement within ten (10) days of any event that requires the determination of Market Price, then the Market Price shall be deemed to be the Appraised Value.

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     “Material Adverse Effect” shall mean a material adverse effect on the business, properties, assets or financial condition of the Middleby Companies, taken as a whole.

     “Maytag” shall have the meaning assigned to such term in the recitals hereto.

     “Middleby Companies” shall mean Parent, Company and each of their respective Subsidiaries.

     “Multiemployer Plan” shall mean a multiemployer plan (within the meaning of Section 3(37) of ERISA) that is maintained for the benefit of the employees of the Middleby Companies or any member of the Controlled Group.

     “Net Cash Proceeds” shall mean:

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     “Non-U.S. Lender” shall have the meaning set forth in Section 3.7 hereof.

     “Notes” shall have the meaning set forth in Section 2.1(c) hereof.

     “Organizational Schedule” shall have the meaning assigned to such term in Section 5.1(a) hereof.

     “Other Taxes” shall have the meaning assigned to such term in Section 3.7 hereof.

     “Parent” shall have the meaning assigned to such term in the introductory paragraph hereto.

     “Parent Notice” shall have the meaning set forth in Section 13.18(a) hereof.

     “PBGC” shall mean the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA, or any other governmental agency, department or instrumentality succeeding to the functions thereof.

     “Permitted Investment Schedule” shall have the meaning assigned to such term in Section 7.2(g) hereof.

     “Permitted Liens” shall have the meaning assigned to such term in Section 7.2(b) hereof.

     “Person” shall mean any individual, partnership, limited partnership, corporation, limited liability company, association, joint stock company, trust, joint venture, unincorporated organization or governmental entity or department, agency or political subdivision thereof.

     “Piggyback Registration” shall have the meaning assigned to such term in Section 12.1 hereof.

     “Plan” shall mean any employee benefit plan (within the meaning of Section 3(3) of ERISA), other than a Multiemployer Plan, established or maintained by any of the Middleby Companies or any member of the Controlled Group.

     “Pollutant” shall include any “hazardous substance” and any “pollutant or contaminant” as those terms are defined in CERCLA; any “hazardous waste” as that term is defined in RCRA; and any “hazardous material” as that term is defined in the Hazardous Materials Transportation Act (49 U.S.C. § 1801 et seq.), as amended (including as those terms are further defined, construed, or otherwise used in rules, regulations, standards, guidelines and publications issued pursuant to, or otherwise in implementation of, said Environmental Laws); and including without limitation any petroleum product or byproduct, solvent, flammable or explosive material, radioactive material, asbestos, polychlorinated biphenyls (PCBs), dioxins, dibenzofurans, heavy metals, and radon gas; and including any other substance or material that is reasonably determined to present a threat, hazard or risk to human health or the environment.

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     “Prime Rate” shall mean, for any day, the rate of interest in effect for such day as publicly announced from time to time by Bank of America in Charlotte, North Carolina, as its “prime rate”. (The “prime rate” is a rate set by Bank of America based upon various factors, including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate.) Any change in the “prime rate” announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change.

     “Pro Forma EBITDA” shall mean, for any period, the sum of (a) EBITDA for such period plus (b) for the Computation Period ending (i) December 29, 2001, $4,900,000, (ii) March 30, 2002, $3,300,000 and (iii) June 29, 2002, $1,300,000 plus (c) to the extent deducted in determining Consolidated Net Income for such period, any Special Charges taken during such period; provided that in calculating Pro Forma EBITDA:

     (A) the consolidated net income of any Person (or business unit) acquired by the Parent or any Subsidiary during such period (plus, to the extent deducted in determining such consolidated net income, interest expense, income tax expense, depreciation and amortization of such Person) shall be included on a pro forma basis for such period (assuming the consummation of each such acquisition and the incurrence or assumption of any Indebtedness in connection therewith occurred on the first day of such period) based upon (1) in the case of Blodgett Holdings, Inc., the pro forma financial information delivered to the Agent and the Purchasers prior to the Closing Date and (2) in the case of any other Person, (x) to the extent available, (I) the audited consolidated balance sheet of such acquired Person and its consolidated Subsidiaries (or such business unit) as at the end of the fiscal year of such Person (or business unit) preceding such acquisition and the related audited consolidated statements of income, stockholders’ equity and cash flows for such fiscal year and (II) any subsequent unaudited financial statements for such Person (or business unit) for the period prior to such acquisition so long as such statements were prepared on a basis consistent with the audited financial statements referred to above or (y) to the extent the items listed in clause (x) are not available, such historical financial statements and other information as is disclosed to, and reasonably approved by, the Required Purchasers; and

     (B) the consolidated net income of any Person (or division or similar business unit) disposed of by the Parent, the Company or any Subsidiary during such period (plus, to the extent deducted in determining such consolidated net income, interest expense, income tax expense, depreciation and amortization of such Person (or division or business unit)) shall be excluded on a pro forma basis for such period (assuming the consummation of such disposition occurred on the first day of such period).

     “Properties and Facilities” shall have the meaning assigned to such term in Section 5.1(q).

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     “Proprietary Rights” shall mean all IP Assets, inventions, production methods, licenses, formulas, know-how and licenses and goodwill related to any of the foregoing, regardless of whether such are registered with any Governmental Authorities, including applications therefor.

     “Purchase Documents” shall mean this Agreement, the Notes, the Warrants, any Guaranty executed by a Middleby Company in favor of Purchasers and all other agreements, instruments and documents delivered in connection therewith as any or all of the foregoing may be supplemented or amended from time to time.

     “Purchaser” shall have the meaning assigned to such term in the introductory paragraph hereto and in Section 6.2 hereof.

     “Purchaser’s Exemption Representation” shall have the meaning assigned to such term in Section 3.7 hereof.

     “Put Option” shall have the meaning assigned to such term in Section 10.1 hereof.

     “Put Option Closing” shall have the meaning assigned to such term in Section 10.5 hereof.

     “Put Price” shall have the meaning assigned to such term in Section 10.2 hereof.

     “Put Shares” shall have the meaning assigned to such term in Section 10.2 hereof.

     “RCRA” shall mean the Resource Conservation and Recovery Act (42 U.S.C. §6901 et seq.), as amended, and all rules, regulations, standards, guidelines, and publications issued thereunder.

     “Registrable Securities” shall mean any shares of Common Stock of Parent purchased upon the exercise of any Warrant and any shares of Common Stock of Parent purchased pursuant to Article 11 hereof.

     “Related Person” shall mean (a) any living ancestor of William Whitman, Jr., (b) any descendant of William Whitman, Sr., (c) any spouse or former spouse of any of the foregoing and (d) any trustee for a trust on behalf of the foregoing.

     “Removal,” “Remedial” and “Response” actions shall include the types of activities covered by CERCLA, RCRA, and other comparable Environmental Laws, and whether the activities are those which might be taken by a government entity or those which a government entity or any other person might seek to require of waste generators, handlers, distributors, processors, users, storers, treaters, owners, operators, transporters, recyclers, reusers, disposers, or other persons under “removal,” “remedial,” or other “response” actions.

     “Required Purchasers” shall mean, at any time, Purchasers holding a pro rata percentage of the outstanding principal amount of the Notes aggregating at least 66-2/3% at such time.

     “Responsible Financial Officer” shall mean, as to any Person, the chief financial officer, the treasurer or the controller of such Person.

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     “Revolving Financing” shall mean the secured revolving line of credit facility of the Company established under the Senior Credit Agreement, as such facility may be restated, renewed, replaced, refinanced, amended or modified from time to time.

     “SEC” shall mean the Securities and Exchange Commission and any governmental body or agency succeeding to the functions thereof.

     “Securities” shall have the meaning assigned to such term in Section 2.3 hereof.

     “Securities Act” shall mean the Securities Act of 1933, as amended.

     “Securities Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.

     “Seller Subordinated Debt” shall mean Indebtedness in original principal amount of up to $21,000,000 issued by the Parent in connection with the Blodgett Acquisition, together with any subordinated notes issued by the Parent as payments of interest thereon in kind and any capitalized interest thereon.

     “Senior Agent” means the “Administrative Agent” (as such term is defined in the Senior Credit Agreement).

     “Senior Credit Agreement” shall mean that certain Credit Agreement, dated as of December 21, 2001, by and among the Company, Parent, Bank of America, N.A., as Administrative Agent, Issuing Lender and Swing Line Lender, Banc of America Securities LLC, as Lead Arranger and Book Manager and the various financial institutions party thereto from time to time, as such agreement may be restated, renewed, refinanced, replaced, amended or modified from time to time.

     “Senior Credit Documents” shall mean the Senior Credit Agreement and all documents, instruments, certificates, and agreements contemplated thereby or executed in connection therewith.

     “Senior Default Put Note” shall mean a senior subordinated promissory note of Parent, (a) the payment and performance of which has been guaranteed by all other Middleby Companies, (b) which shall initially bear interest at an annual rate equal to the lesser of 15.5% or the highest rate permitted by applicable law, and which provides that such annual rate of interest shall increase by 0.5% per annum on the first (1^st) Business Day of each Fiscal Quarter immediately following the date of issuance of such note, (c) which provides that such interest shall be paid monthly in cash, commencing on the first (1^st) Business Day of the month immediately following the date of issuance of such note, (d) which provides that the principal thereof shall be due and payable in 36 equal monthly installments (unless sooner accelerated or sooner permitted to be paid by the Senior Lender), commencing on the first (1^st) Business Day of the month immediately following the date of issuance of such note, and (e) which may be prepaid, in part or in full, at any time and from time to time without premium or penalty of any kind. Any Senior Default Put Note shall constitute “Subordinated Indebtedness” under and as defined in the Subordination Agreement.

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     “Senior Financing” shall mean the Revolving Financing and the Term Financing in an aggregate principal amount not to exceed $77,500,000, which principal amount shall be reduced by the amount of scheduled principal payments actually made on the Term Financing after the Closing Date, and any refinancing or refunding thereof, to which the Notes will be subordinated on the terms set forth in the Subordination Agreement or such other terms as may be reasonably acceptable to Required Purchasers.

     “Senior Funded Debt” means the remainder of (a) Funded Debt minus (b) the sum of (i) Indebtedness under this Agreement and (ii) Subordinated Debt.

     “Senior Lender” shall collectively mean the banks from time to time party to the Senior Credit Agreement.

     “Senior Leverage Ratio” shall mean, for any Computation Period, the ratio of (i) Senior Funded Debt as of the last day of such Computation Period to (ii) Pro Forma EBITDA for such Computation Period.

     “Senior Put Note” shall mean a senior subordinated promissory note of Parent, (a) the payment and performance of which has been guaranteed by all other Middleby Companies, (b) which shall bear interest at an annual rate equal to the lesser of 13.5% or the highest rate permitted by applicable law, and which provides that such interest shall be payable monthly in cash, commencing on the first (1st) Business Day of the month immediately following the date of issuance of such note, (c) which provides that the principal thereof shall be due and payable in 36 equal monthly installments (unless sooner accelerated), commencing on the first (1st) Business Day of the month immediately following the date of issuance of such note, and (d) which may be prepaid, in part or in full, at any time and from time to time without premium or penalty of any kind. Any Senior Put Note shall constitute “Subordinated Indebtedness” under and as defined in the Subordination Agreement.

     “Special Charges” shall mean up to $5,000,000 in the aggregate of special charges taken by (a) the Parent through the Fiscal Quarter ending December 28, 2002 relating to severance, and the closure of various locations of the Parent and various Subsidiaries, as a result of the Blodgett Acquisition and (b) Blodgett Holdings, Inc. during the Fiscal Quarter ending December 29, 2001.

     “Stockholders Agreement” shall have the meaning assigned to such term in Section 4.1(g) hereof.

     “Subject Securities” shall mean the Warrants, the Warrant Shares and any shares of Common Stock of Parent purchased pursuant to Article 11 hereof.

     “Subordinated Debt” shall mean (a) the Seller Subordinated Debt and (b) any other Indebtedness of the Loan Parties which has maturities and other terms, and which is subordinated to the obligations of the Loan Parties and its Subsidiaries hereunder and under the other Transaction Documents in a manner, approved in writing by the Required Purchasers.

     “Subordination Agreement” shall mean that certain Subordination Agreement, dated as of the Closing Date, by and among Agent, Purchasers, the Loan Parties, the other Middleby Companies signatory thereto, and Bank of America, N.A., as Administrative Agent for the Senior Lender.

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     “Subsidiary” of any corporation shall mean any other corporation or limited liability company of which the outstanding capital stock possessing a majority of voting power in the election of directors (otherwise than as the result of a default) is owned or controlled by such corporation directly or indirectly through Subsidiaries.

     “Suretyship Liability” shall mean any agreement, undertaking or arrangement by which any Person guarantees, endorses or otherwise becomes or is contingently liable upon (by direct or indirect agreement, contingent or otherwise, to provide funds for payment, to supply funds to or otherwise to invest in a debtor, or otherwise to assure a creditor against loss) any indebtedness, obligation or other liability of any other Person (other than (a) customary indemnification obligations arising in the ordinary course of business under leases and other contracts and (b) by endorsements of instruments for deposit or collection in the ordinary course of business), or guarantees the payment of dividends or other distributions upon the shares of any other Person. The amount of any Person’s obligation in respect of any Suretyship Liability shall (subject to any limitation set forth therein) be deemed to be the lesser of (x) the principal amount of the debt, obligation or other liability supported thereby and (y) the maximum amount for which such Person may be liable pursuant to the terms of the instrument embodying such Suretyship Liability, unless such primary obligation and the maximum amount for which such Person may be liable are not stated or determinable, in which case the amount of such Suretyship Liability shall be such Person’s maximum reasonably anticipated liability in respect thereof as determined by such Person in good faith.

     “Taxes” shall have the meaning set forth in Section 3.7 hereof.

     “Term Financing” shall mean the secured term credit facilities established under the Senior Credit Agreement, as such facilities may be restated, renewed, replaced, refinanced, amended or modified from time to time.

     “Total Leverage Ratio” shall mean, for any Computation Period, the ratio of (i) Funded Debt as of the last day of such Computation Period to (ii) Pro Forma EBITDA for such Computation Period.

     “Transaction Documents” shall have the meaning assigned to such term in Section 5.1(f) hereof.

     “Transactions” shall mean the incurrence of debt and the issuance of securities in connection therewith, as contemplated by this Agreement, the Notes, the Warrants and all other agreements contemplated hereby and thereby.

     “Underlying Common Stock” shall mean (a) the Common Stock of Parent issued or issuable upon exercise of the Warrants and (b) any equity securities issued or issuable with respect to the securities referred to in clause (a) above by way of stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation or other reorganization.

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     “Warrants” shall have the meaning assigned to such term in Section 2.2 hereof.

     “Warrant Shares” shall mean the shares of Common Stock issued or issuable upon exercise of the Warrants.

     1.2 Other Definitional Provisions; Construction. Whenever the context so requires, neuter gender includes the masculine and feminine, the singular number includes the plural and vice versa. The words “hereof” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not in any particular provision of this agreement, and references to section, article, annex, schedule, exhibit and like references are references to this Agreement unless otherwise specified. A Default or Event of Default shall “continue” or be “continuing” until such Default or Event of Default has been cured or waived by Agent and Purchasers. References in this Agreement to any Persons shall include such Persons’ successors and permitted assigns. Other terms contained in this Agreement (which are not otherwise specifically defined herein) shall have meanings provided in Article 9 of the Illinois Uniform Commercial Code on the date hereof to the extent the same are used or defined therein.

ARTICLE 2

ISSUE AND SALE OF SECURITIES

     2.1 Authorization and Issuance of the Notes. The Company has duly authorized the issuance and sale to Purchasers of $25,000,000 in aggregate principal amount of the Company’s Senior Subordinated Promissory Notes Due September 14, 2006 (including any Notes issued in substitution therefor pursuant to Sections 6.3 and 6.4 hereof and any Notes issued in exchange for Put Shares pursuant to Section 10.4 or Section 10.5, the “Notes”) to be substantially in the form of the Note attached hereto as Exhibit A.

     2.2 Authorization and Issuance of the Warrants. Parent has duly authorized the issuance and sale to Purchasers of stock purchase warrants substantially in the form of the warrants attached hereto as Exhibits B-1 and B-2 (collectively, the “Warrants”) evidencing Purchasers’ right to acquire up to 8.25% of the issued and outstanding Common Stock of Parent on a fully diluted basis at the time of Closing.

     2.3 Sale and Purchase. Subject to the terms and conditions and in reliance upon the representations, warranties and agreements set forth herein, (a) the Company shall sell to Purchasers, and Purchasers shall purchase from the Company, their pro rata portion of the Notes and (b) the Parent shall sell to Purchasers, and Purchasers shall purchase from the Parent, their pro rata portion of the Warrants, in each case as set forth on Annex A. The aggregate purchase price for the Notes and the Warrants is $25,000,000. (The Warrants and the Notes are sometimes referred to herein collectively as the “Securities.”)

     2.4 The Closing. Delivery of and payment for the Securities (the “Closing”) shall be made at the offices of Skadden, Arps, Slate, Meagher & Flom (Illinois), Chicago, Illinois, commencing at 10:00 a.m., local time, on December 21, 2001 or at such place or on such other date on or before December 21, 2001 as may be mutually agreeable to the Loan Parties and Purchasers. The date and time of the Closing as finally determined pursuant to this Section 2.4 are referred to herein as the “Closing Date.” Delivery of the Securities shall be made to Purchasers against payment of the purchase price therefor, less that portion of the Closing Processing Fee not previously paid by the Company to ACFS and any other amounts payable pursuant to Section 4.1(g) hereof, by wire transfer of immediately available funds in the manner agreed to by the Loan Parties and Purchasers. The Notes shall be issued in such name or names and in such permitted denomination or denominations as set forth in Annex A or as Purchasers may request in writing not less than two (2) Business Days before the Closing Date.

ARTICLE 3

REPAYMENT OF THE NOTES

     3.1 Interest Rates and Interest Payments. The Company covenants and agrees to make payments to Agent for the ratable benefit of Purchasers, of accrued interest on the Notes on the first Business Day of each month commencing February, 2002. The Notes will bear interest on the outstanding principal amount thereof at a fixed rate equal to (a) 13.5% per annum, which shall be payable in cash on the due date thereof plus (b) 2% per annum, which shall be paid in kind (i.e., such interest will be capitalized when due and added to the principal balance of the Notes on a pro rata basis). Interest on the Notes will be computed on the basis of a year of 360 days, composed of twelve, 30-day months, and the actual number of days elapsed.

     3.2 Repayment of the Notes. The Company covenants and agrees to repay to Agent, for the ratable benefit of Purchasers, the unpaid principal balance of the Notes in full, together with all accrued and unpaid interest, fees and other amounts due hereunder on September 14, 2006.

     3.3 Optional Prepayment of Notes. Subject to the terms of this Section 3.3, the Company may prepay to Agent, for the ratable benefit of Purchasers, the outstanding principal amount of the Notes in whole or in part in multiples of $100,000, or such lesser amount as is then outstanding, at any time for an amount equal to (a) the principal amount of the prepaid Notes; plus (b) the accrued interest, if any, to the date set for prepayment; plus (c) a prepayment fee representing the amortization of certain of Purchasers’ costs incurred in connection with the purchase of the Notes equal to the principal amount prepaid multiplied by the following percentage:

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provided, however, that no prepayment fee shall be applied to any prepayment of the outstanding principal amount of the Notes in connection with any prepayment attributable to Life Insurance proceeds. All such prepayments shall be applied by Agent to the outstanding principal after application of such prepayment to any accrued interest and prepayment fee payable in connection therewith.

     3.4 Notice of Optional Prepayment. If the Company shall elect to prepay any Notes pursuant to Section 3.3 hereof, the Company shall give notice of such prepayment to Agent and each holder of the Notes to be prepaid not less than 30 days or more than 90 days prior to the date fixed for prepayment, specifying (a) the date on which such prepayment is to be made, (b) the principal amount of such Notes to be prepaid on such date, and (c) the prepayment fee, if any, and accrued interest applicable to the prepayment. Such notice shall be accompanied by a certificate of the Chairman of the Board of Directors, the Chief Executive Officer or Chief Financial Officer of the Company that such prepayment is being made in compliance with Section 3.3. Notice of prepayment having been so given, the aggregate principal amount of the Notes specified in such notice, together with accrued interest thereon and the prepayment fee, if any, shall become due and payable on the prepayment date set forth in such notice.

     3.5 Mandatory Prepayment. The Notes shall be prepaid (a) by an amount equal to any proceeds of Life Insurance, together with all interest, fees and expenses computed in accordance with Section 3.3, as if such prepayment were a voluntary prepayment, in the event that any Middleby Company receives any proceeds of Life Insurance, (b) in full, together with all accrued interest, plus a prepayment fee computed in accordance with Section 3.3, as if such prepayment were a voluntary prepayment, in the event of a Change of Control and (c) by an amount (rounded down, if necessary, to an integral multiple of $100,000) equal to 100% of the Net Cash Proceeds received by any Middleby Company from any Asset Sale (after giving effect to any mandatory or voluntary prepayments or repayments of the Senior Financing required under the Senior Credit Agreement as a result of, or in connection with, any such Asset Sale), together with all interest, fees and expenses computed in accordance with Section 3.3, as if such prepayment were a voluntary prepayment. Any prepayment of the Notes under this Section 3.5 shall be made within one (1) Business Day of the event giving rise to the mandatory prepayment requirement.

     3.6 Home Office Payment. The Company will pay all sums becoming due on such Notes for principal, premium, if any, and interest to Agent by the method and at the address specified for such purpose in Annex A, or by such other method or at such other address as Purchasers shall have from time to time specified to the Company in writing for such purpose, without the presentation or surrender of such Notes or the making of any notation thereon, except that upon written request of the Company made concurrently with or reasonably promptly after payment or prepayment in full of any Note, each holder of a Note shall surrender such Note for cancellation, reasonably promptly after such request, to the Company at its principal executive office.

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     3.7 Taxes. Any and all payments by the Loan Parties hereunder or under the Notes or other Purchase Documents that are made to or for the benefit of Purchasers shall be made free and clear of and without deduction for any and all present or future taxes, levies, imposts, deductions, charges or withholdings and penalties, interests and all other liabilities with respect thereto (collectively, “Taxes”), excluding taxes imposed on Agent’s, Purchasers’ or any transferee of any Purchaser’s net income or capital and franchise taxes imposed on any of them by the jurisdiction under the laws of which any of them is organized or has its principal place of business or any political subdivision thereof (all such nonexcluded Taxes being hereinafter referred to as “Covered Taxes”). If any of the Loan Parties shall be required by law to deduct any Covered Taxes from or in respect of any sum payable hereunder or under any Notes or other Purchase Documents to Agent for the benefit of Purchasers, or to any Purchaser, the sum payable shall be increased as may be necessary so that after making all required deductions of Covered Taxes (including deductions of Covered Taxes applicable to additional sums payable under this paragraph), each Purchaser receives an amount equal to the sum it would have received had no such deductions been made. The Loan Parties shall make such deductions and the Loan Parties shall pay the full amount so deducted to the relevant taxation authority or other authority in accordance with applicable law. In addition, the Loan Parties agree to pay any present or future stamp, documentary, excise, privilege, intangible or similar levies that arise at any time or from time to time from any payment made under any and all Purchase Documents or from the execution or delivery by the Loan Parties or from the filing or recording or maintenance of, or otherwise with respect to the exercise by Agent or Purchasers of their respective rights under any and all Purchase Documents (collectively, “Other Taxes”). The Loan Parties will indemnify Agent and Purchasers for the full amount of Covered Taxes imposed on or with respect to amounts payable hereunder and Other Taxes, and any liability (including penalties, interest and expenses, other than any such amounts that are attributable to the gross negligence or willful misconduct of the Person seeking indemnity) arising therefrom or with respect thereto. Payment of this indemnification shall be made within 30 days from the date Agent or Purchasers provide the Loan Parties with a certificate certifying and setting forth in reasonable detail the calculation thereof as to the amount and type of such Taxes. Any such certificates submitted by Agent or Purchasers in good faith to the Loan Parties shall, absent manifest error, be final, conclusive and binding on all parties. The obligation of the Loan Parties under this Section 3.7 shall survive the payment of the Notes and the termination of this Agreement until 60 days after the expiration of the applicable statute of limitations. Within 30 days after the Loan Parties having received a receipt for payment of Covered Taxes and/or Other Taxes, the Loan Parties shall furnish to Agent, the original or certified copy of a receipt evidencing payment thereof. Agent and each Purchaser represents and warrants (the “Purchaser’s Exemption Representation”) to the Loan Parties that, as of the date of this Agreement (or in the case of an assignee permitted pursuant to Article 6 hereof, the date it becomes a party hereto), it is entitled to receive payments hereunder without any deduction or withholding in respect of any Taxes pursuant to any law, rule or regulation. Each Purchaser (or transferee thereof) shall, upon the request of any Loan Party, (i) promptly deliver to Agent and such Loan Party, on the date such Person first becomes a party to this Agreement, two (2) original copies of IRS Form W-9 or any successor form, certifying that such Person is exempt from United States backup withholding tax on payments made hereunder, under the Notes or under any other Purchase Document and (ii) thereafter upon the reasonable request of any Loan Party, promptly deliver two (2) original copies of an updated IRS Form W-9 or any successor form. Agent and each Purchaser (or transferee thereof) that is organized under the laws of a jurisdiction other than the United States, any state thereof or the District of Columbia (a “Non-U.S. Lender”) that is entitled to an exemption from United States federal withholding tax under United States federal income tax law (or any treaty to which the United States is a party) with respect to payments made hereunder, under the Notes or under any other Purchase Document, shall deliver to Agent and the Loan Parties such properly completed and duly executed documentation prescribed by applicable law (including, without limitation, an appropriate IRS Form W-8) as will permit such payments to be made without deduction for any withholding tax. Such documentation shall be delivered by each Non-U.S. Lender on or before the date it becomes a party to this Agreement. In addition, each Non-U.S. Lender shall deliver such documentation promptly upon the obsolescence or invalidity of any documentation previously delivered by such Non-U.S. Lender. Notwithstanding any provision of this Section 3.7 to the contrary, the Loan Parties shall not be required to indemnify or pay any additional amounts to Agent, any Purchaser (or transferee thereof) or any Non-U.S. Lender under this Section 3.7 in respect of any Covered Taxes to the extent that (i) the obligation to deduct and withhold amounts in respect of Covered Taxes existed on the date such Person became a party to this Agreement or (ii) such Person has failed to comply with the documentation requirements of this Section 3.7.

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     3.8 Maximum Lawful Rate. This Agreement, the Notes and the other Purchase Documents are hereby limited by this Section 3.8. In no event, whether by reason of acceleration of the maturity of the amounts due hereunder or otherwise, shall interest and fees contracted for, charged, received, paid or agreed to be paid to Purchasers exceed the maximum amount permissible under such applicable law. If, from any circumstance whatsoever, interest and fees would otherwise be payable to Agent or Purchasers in excess of the maximum amount permissible under such applicable law, the interest and fees shall be reduced to the maximum amount permitted under applicable law. If from any circumstance, Agent or Purchasers shall have received anything of value deemed interest by applicable law in excess of the maximum lawful amount, an amount equal to any excess of interest shall be applied to the reduction of the principal amount of the Notes, in such manner as may be determined by Purchasers, and not to the payment of fees or interest, or if such excessive interest exceeds the unpaid balance of the principal amount of the Notes, such excess shall be refunded to the Loan Parties.

     3.9 Capital Adequacy. If, after the date hereof, either the introduction of or any change of the interpretation of any law or the compliance by Purchasers with any guideline or request from any Governmental Authority (other than with respect to Taxes for which Agent and Purchasers are indemnified pursuant to Section 3.7 hereof, Taxes imposed on Agent’s and any Purchaser’s net income or capital and franchise taxes imposed on any of them by the jurisdiction under the laws of which any of them is organized or has its principal place of business or any subdivision thereof) has or would have the effect of reducing the rate of return on the capital or assets of Purchasers as a consequence of, as determined by Agent or Purchasers in their sole discretion, the existence of any Purchaser’s obligations under this Agreement or any other Purchase Documents, then, upon demand by Purchasers, the Loan Parties immediately shall pay to Purchasers, from the time as specified by Purchasers, additional amounts sufficient to compensate Purchaser in light of such circumstances. The obligations of the Loan Parties under this Section 3.9 shall survive the payments of the Notes and the termination of this Agreement.

     3.10 Certain Waivers. The Loan Parties unconditionally waive (a) any rights to presentment, demand, protest or (except as expressly required hereby) notice of any kind, and (b) any rights of rescission, setoff, counterclaim or defense to payment under the Notes or otherwise that the Loan Parties may have or claim against any Purchaser, the Agent or any prior Purchaser or Agent.

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ARTICLE 4

CONDITIONS

     4.1 Conditions to Purchase of Securities. The obligation of Purchasers to purchase and pay for the Securities is subject to the satisfaction, prior to or at the Closing, of the following conditions:

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ARTICLE 5

REPRESENTATIONS AND WARRANTIES OF THE LOAN PARTIES

     5.1 Representations and Warranties of Loan Parties. As a material inducement to Agent and Purchasers to enter into this Agreement and purchase the Notes and the Warrants, the Loan Parties, jointly and severally, hereby represent and warrant to Agent and Purchasers as follows:

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     5.2 Absolute Reliance on the Representations and Warranties. All representations and warranties contained in this Agreement and any financial statements, instruments, certificates, schedules or other documents delivered in connection herewith, shall survive the execution and delivery of this Agreement, regardless of any investigation made by Agent or Purchasers or on Agent’s or Purchasers’ behalf.

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ARTICLE 6

TRANSFER OF SECURITIES

     6.1 Restricted Securities. Purchasers acknowledge that the Securities have not been registered under the Securities Act and may be resold only if registered pursuant to the provisions of the Securities Act or if an exemption from registration is available, and that the Loan Parties are not required to register the Notes or the Warrants, as the case may be.

     6.2 Legends; Purchaser’s Representations. Each of the Purchasers hereby represents and warrants to the Loan Parties that (i) it is an “accredited investor” within the meaning of Rule 501(a) under the Securities Act; (ii) it is acquiring the Securities for investment for its own account, with no present intention of dividing its participation with others (except for a potential transfer or transfers of the Securities to an affiliate or affiliates of Purchasers) or reselling or otherwise distributing the same in violation of the Securities Act or any applicable state securities laws; (iii) it understands (a) that this is a highly speculative investment with a substantial risk of loss of such Purchaser’s entire investment and such Purchaser is in a position to bear the economic risk of such loss, (b) that it has no registration rights with respect to the Securities or the Common Stock issuable upon the conversion of the Warrants except as set forth in Article 12, and (c) that even if available, such exemption may not allow such Purchaser to transfer all or any portion of the Securities, if any, under the circumstances, in the amount or at the times it might propose; (iv) by reason of its business or financial experience, or the business and financial experience of its management, it has the capacity to protect its own interest in connection with the transaction contemplated in this Agreement and such Purchaser is not a corporation formed for the specific purpose of consummating this transaction; and (v) it has been given access to all documents, records, and other information of the Loan Parties, has received physical delivery of all those which it requested, and has had adequate opportunity to ask questions of, and receive answers from, the officers, employees, agents, accountants, and representatives of the Loan Parties concerning the business, operations, financial condition, assets, liabilities, and all other matters of the Loan Parties relevant to its investment in the Securities. The Loan Parties may place an appropriate legend on the Securities owned by Purchasers concerning the restrictions set forth in this Article 6. Upon the assignment or transfer by Purchasers or any of its successors or assignees of all or any part of the Securities, the term “Purchaser” as used herein shall thereafter mean, to the extent thereof, the then holder or holders of such Securities, or portion thereof.

     6.3 Transfer of Notes. Subject to Section 6.2 hereof, a holder of a Note may transfer such Note to a new holder other than, prior to the occurrence of an Event of Default, to a Direct Competitor of any of the Middleby Companies, or may exchange such Note for Notes of different denominations (but in no event of denominations of less than $100,000 in original principal amount), by surrendering such Note to the Company duly endorsed for transfer or accompanied by a duly executed instrument of transfer naming the new holder (or the current holder if submitted for exchange only), together with written instructions for the issuance of one or more new Notes specifying the respective principal amounts of each new Note and the name of each new holder and each address therefor. The Company shall simultaneously deliver to such holder or its designee such new Notes, shall mark the surrendered Notes as canceled and shall provide notice of such transfer to Agent. In lieu of the foregoing procedures, a holder may assign a Note (in whole but not in part) to a new holder by sending written notice to the Company and Agent of such assignment specifying the new holder’s name and address; in such case, the Company shall promptly acknowledge such assignment in writing to both the old and new holder. The Company shall not be required to recognize any subsequent holder of a Note unless and until the Company has received reasonable assurance that all applicable transfer taxes have been paid and that any such transfer has not violated the Securities Act or any applicable state securities laws.

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     6.4 Replacement of Lost Securities. Upon receipt of evidence reasonably satisfactory to the Loan Parties of the mutilation, destruction, loss or theft of any Securities and the ownership thereof, the Loan Parties shall, upon the written request of the holder of such Securities, execute and deliver in replacement thereof new Securities in the same form, in the same original principal amount and dated the same date as the Securities so mutilated, destroyed, lost or stolen; and such Securities so mutilated, destroyed, lost or stolen shall then be deemed no longer outstanding hereunder. If the Securities being replaced have been mutilated, they shall be surrendered to the Loan Parties; and if such replaced Securities have been destroyed, lost or stolen, such holder shall furnish the Loan Parties with an indemnity in writing to save it harmless in respect of such replaced Security.

     6.5 No Other Representations Affected. Nothing contained in this Article 6 shall limit the full force or effect of any representation, agreement or warranty made herein or in connection herewith to Purchaser.

ARTICLE 7

COVENANTS

     7.1 Affirmative Covenants. The Loan Parties, jointly and severally, covenant that, so long as all or any of the principal amount of the Notes or any interest thereon shall remain outstanding, the Loan Parties shall comply with each of the covenants set forth in this Section 7.1. In addition, following the repayment in full of the principal amount of the Notes and all accrued interest thereon, and for so long as the Purchasers collectively own Warrants and/or Underlying Common Stock which represent in the aggregate not less than fifty percent (50%) of the Warrants and/or Underlying Common Stock issued or issuable on the Closing Date, the Loan Parties, jointly and severally, covenant that the Loan Parties shall comply with Sections 7.1(a), 7.1(b), 7.1(c), 7.1(d), 7.1(e)(i)-(vii), 7.1(f)(v), 7.1(f)(vii), 7.1(h), 7.1(i) and 7.1(j) below.

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     7.2 Negative Covenants. The Loan Parties, jointly and severally, covenant that, so long as all or any part of the principal amount of the Notes or any interest thereon shall remain outstanding:

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provided that no Investment otherwise permitted by clause (ii), (v) (vi) or (vi) shall be permitted to be made if, immediately before or after giving effect thereto, any Default or Event of Default shall have occurred and be continuing.

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     7.3 Financial Covenants. The Loan Parties, jointly and severally, covenant that, so long as all or any part of the principal amount of the Notes or any interest thereon shall remain outstanding, they will, on a consolidated basis, beginning December 29, 2001:

ARTICLE 8

EVENTS OF DEFAULT

     8.1 Events of Default. An “Event of Default” means the occurrence of one or more of the following described events:

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     8.2 Consequences of Event of Default.

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ARTICLE 9

THE AGENT

     9.1 Authorization and Action. Each Purchaser and each subsequent holder of any Note by its acceptance thereof, hereby designates and appoints ACFS as Agent hereunder and authorizes ACFS to take such actions as agent on its behalf and to exercise such powers as are delegated to Agent by the terms of this Agreement and the other Purchase Documents, together with such powers as are reasonably incidental thereto. Agent shall not have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with any Purchaser, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on the part of Agent shall be read into this Agreement or otherwise exist for Agent. In performing its functions and duties hereunder, Agent shall act solely as agent for Purchasers and does not assume, nor shall be deemed to have assumed, any obligation or relationship of trust or agency with or for the Middleby Companies or any of their respective successors or assigns. Agent shall not be required to take any action that exposes Agent to personal liability or that is contrary to this Agreement or applicable Laws. The appointment and authority of Agent hereunder shall terminate at the indefeasible payment in full of the Notes and related obligations.

     9.2 Delegation of Duties. Agent may execute any of its duties under this Agreement by or through agents or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. Agent shall not be responsible for the negligence or misconduct of any agents or attorneys-in-fact selected by it with reasonable care.

     9.3 Exculpatory Provisions. Neither Agent nor any of its directors, officers, agents or employees shall be (a) liable for any action lawfully taken or omitted to be taken by it or them under or in connection with this Agreement (except for its, their or such Person’s own gross negligence or willful misconduct or, in the case of Agent, the breach of its obligations expressly set forth in this Agreement, unless such action was taken or omitted to be taken by Agent at the direction of the Required Purchasers), or (b) responsible in any manner to any of Purchasers for any recitals, statements, representations or warranties made by the Loan Parties contained in this Agreement or in any certificate, report, statement or other document referred to or provided for in, or received under or in connection with, this Agreement for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other document furnished in connection herewith, or for any failure of any of the Loan Parties to perform their respective obligations hereunder, or for the satisfaction of any condition specified in Article 4 hereof. Agent shall not be under any obligation to any Purchaser to ascertain or to inquire as to the observance or performance of any of the agreements or covenants contained in, or conditions of, this Agreement, or to inspect the properties, books or records of any of the Middleby Companies.

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     9.4 Reliance. Agent shall in all cases be entitled to rely, and shall be fully protected in relying, upon any document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons and upon advice and statements of legal counsel (including, without limitation, counsel to the Middleby Companies), independent accountants and other experts selected by Agent. Agent shall in all cases be fully justified in failing or refusing to take any action under this Agreement or any other document furnished in connection herewith unless it shall first receive such advice or concurrence of the Required Purchasers or all of Purchasers, as applicable, as it deems appropriate or it shall first be indemnified to its satisfaction by Purchasers; provided, that, unless and until Agent shall have received such advice, Agent may take or refrain from taking any action, as Agent shall deem advisable and in the best interests of Purchasers. Agent shall in all cases be fully protected in acting, or in refraining from acting, in accordance with a request of the Required Purchasers or all of Purchasers, as applicable, and such request and any action taken or failure to act pursuant thereto shall be binding upon all Purchasers.

     9.5 Non-Reliance on Agent and Other Purchasers. Each Purchaser expressly acknowledges that neither Agent, nor any of its officers, directors, employees, agents, attorneys-in-fact or affiliates has made any representations or warranties to it and that no act by Agent or hereafter taken, including, without limitation, any review of the affairs of the Middleby Companies, shall be deemed to constitute any representation or warranty by Agent. Each Purchaser represents and warrants to Agent that it has and will, independently and without reliance upon Agent or any other Purchaser and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, operations, property, prospects, financial and other conditions and creditworthiness of the Middleby Companies and made its own decision to enter into this Agreement.

     9.6 Agent in its Individual Capacity. Agent, and each of its Affiliates may make loans to, purchase securities from, provide services to, accept deposits from and generally engage in any kind of business with the Middleby Companies or any Affiliate of the Middleby Companies as though Agent were not Agent hereunder.

     9.7 Successor Agent. Agent may, upon 45 days’ notice to the Loan Parties and Purchaser, and Agent will, upon the direction of the Required Purchasers (other than Agent, in its individual capacity), resign as Agent. If Agent shall resign, then the Required Purchasers during such 15-day period shall appoint a successor Agent and if the Required Purchasers direct Agent to resign, such direction shall include an appointment of a successor Agent. If for any reason no successor Agent is appointed by the Required Purchasers during such 15-day period, then effective upon the expiration of such 15-day period, Purchasers shall perform all of the duties of Agent hereunder and the Company shall make all payments in respect of the Notes directly to the applicable Purchaser and for all purposes shall deal directly with Purchasers. After any retiring Agent’s resignation hereunder as Agent, the provisions of this Article 9 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Agent under this Agreement.

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     9.8 Collections and Disbursements.

     9.9 Reporting. During the term of this Agreement, Agent will promptly furnish each Purchaser with copies of all notices and financial statements of the Middleby Companies required to be delivered or obtained hereunder and such other financial statements and reports and other information in Agent’s possession as any Purchaser may reasonably request. Agent will immediately notify Purchasers when it receives actual knowledge of any Event of Default under the Purchase Documents.

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     9.10 Consent of Purchasers.

     9.11 This Article Not Applicable to Loan Parties. This Article 9 is included in this Agreement solely for the purpose of determining certain rights as between Agent and Purchasers and does not create, nor shall it give rise to, any rights in or obligations on the part of the Loan Parties and all rights and obligations of the Loan Parties (other than as specifically set forth herein) under this Agreement shall be determined by reference to the provisions of this Agreement other than this Article 9.

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ARTICLE 10

PUT OPTION

     10.1 Grant of Option. Parent hereby grants to each holder of Subject Securities (a “Holder”) an option to sell to Parent, and Parent is obligated to purchase from each Holder under such option (the “Put Option”), all (or such portion as is designated by any such Holder pursuant to Section 10.3 below) of the Subject Securities then owned by such Holder. The Put Option will be effective at any time and from time to time after the earliest to occur of (a) March 15, 2007 or (b) a Change of Control.

     10.2 Put Price. In the event that any Holder exercises the Put Option, the price (the “Put Price”) to be paid to each such Holder pursuant to this Agreement will be the sum of the amount determined by multiplying the number of shares of Subject Securities (or, in the case of any Warrant, the number of shares of Underlying Common Stock into which such Warrant is convertible) for which the Put Option is being exercised (collectively, the “Put Shares”) by the Fair Market Value therefor (or, in the case of any Subject Securities that are issuable Warrant Shares, by the difference between the Fair Market Value therefor and the exercise price therefor).

     10.3 Exercise of Put Option. If any Holder elects to exercise its Put Option, such Holder shall give notice to Parent and each other Holder of such Holder’s election to exercise the Put Option, specifying, among other things, the date on which the Put Option Closing (as hereinafter defined) shall occur, which date shall not be less than 30 days after the date of such notice. If a Holder receives such notice of another Holder’s exercise of such other Holder’s Put Option and the Put Option of the Holder receiving such notice is effective pursuant to Section 10.1 hereof, the Holder receiving such notice may elect to exercise its Put Option and designate a Put Option Closing simultaneous with that of such other Holder. Parent will provide each Holder desiring to exercise its Put Option with the name and address of each other Holder. Notwithstanding the foregoing, the right of each Holder to exercise its Put Option shall be an individual and separate right, and the exercise of any Put Option by any Holder shall not be conditioned upon the exercise by any other Holder of its Put Option.

     10.4 Certain Remedies. Subject to the following sentence, in the event that Parent defaults on its obligation to purchase all or any portion of the Put Shares upon exercise of the Put Option by any Holder (i.e., Parent fails to pay the Put Price in cash or, at a time when permitted, by the issuance of a Senior Put Note), the Holder may elect, in addition to any other rights or remedies of such Holder, either to (a) rescind its exercise of the Put Option, in which case the Put Option will continue in full force and effect, or (b) receive a promissory note that (i) shall be in form and substance satisfactory to such Holder in its sole discretion, (ii) shall be duly executed by the Parent and payable to such Holder in the principal amount of the Put Price, (iii) shall be guaranteed by each other Middleby Company, (iv) shall bear interest on the outstanding principal thereof at a rate per annum equal to 17.5%, (v) shall be payable on demand and (vi) may be subject to repayment, in part or in full, at any time and from time to time without premium or penalty of any kind. If any Holder elects to exercise its Put Option at a time that all or any portion of the Put Price is not permitted to be paid in cash pursuant to the Senior Credit Agreement, the Holder shall accept a Senior Default Put Note with respect to that portion of the Put Price which the Company is not then permitted to dividend or otherwise distribute to Parent under the Senior Credit Agreement to permit the Parent to pay the Put Price in cash.

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     10.5 Put Option Closing. Each closing for the purchase and sale of the Put Shares as to which any Holder has notified Parent of such Holder’s intention to exercise the Put Option (a “Put Option Closing”) shall occur on the date specified in such notice of exercise. At any Put Option Closing, to the extent applicable, the Holder of the Put Shares will deliver the certificate or certificates evidencing the Put Shares being purchased, duly endorsed in blank. In consideration therefor, Parent will deliver to the Holder the Put Price, which will be payable, at the Company’s option, (a) in cash by wire transfer of immediately payable funds to an account designated by such Holder, or (b) if at the time of the Put Option Closing, the Senior Leverage Ratio is not greater than 2.5 to 1.0 for the Computation Period then ended, by the issuance of a Senior Put Note.

ARTICLE 11

PREEMPTIVE RIGHTS

     11.1 Limited Preemptive Rights. If after the date of this Agreement, Parent authorizes the issuance and sale of any shares of capital stock or any securities containing options or rights to acquire any shares of capital stock (other than in connection with the exercise of the Warrants, an underwritten public offering or the issuance of such securities in exchange for the securities or assets of another Person as a part of a merger or acquisition (or other similar transaction) of a business as a going concern) at any time that any Purchaser holds any Common Stock of Parent or Warrants, Parent will offer to sell to each Purchaser a portion of such securities equal to the percentage determined by dividing (a) the number of shares of Common Stock of Parent and Underlying Common Stock (without duplication) then held by such Purchaser by (b) the number of shares of Common Stock of Parent then outstanding (on a fully diluted basis). For purposes of clause (b) above, a share of Common Stock of Parent acquirable upon exercise or conversion of options or rights to acquire any shares of Common Stock of Parent shall be deemed outstanding only if the applicable conversion price, exercise price or other acquisition price is equal to or less than the then current Market Price of a share of Common Stock of Parent. Each Purchaser will be entitled to (x) purchase such stock or securities at the same price and on the same terms as such stock or securities are to be offered to any other Person and (y) receive written notice of such proposed sale from Parent describing in reasonable detail the stock or securities being so offered, the purchase price thereof, the payment terms and each Purchaser’s percentage allotment. Each Purchaser will have 30 Business Days from the date of receipt of any such notice and such other information as such Purchaser may reasonably request to facilitate its investment decision, to agree to purchase up to its respective pro rata share of the new stock or securities being so offered for the price (valued at Fair Market Value for any noncash consideration) and upon the terms specified in such notice by giving written notice to the Parent stating the quantity of such new stock or securities that such Purchaser has agreed to purchase. Upon the expiration of such period, Parent will be free to sell such stock or securities which Purchasers have not elected to purchase during the 180-days following such expiration on terms and conditions no more favorable to purchasers thereof than those offered to Purchasers. Any stock or securities offered or sold by Parent after such 180-day period must be reoffered to each Purchaser pursuant to the terms of this Section 11.1. Any stock or securities purchased by a Purchaser from Parent pursuant to this Section 11.1 shall, upon such purchase and thereafter be deemed to be Securities and Registrable Securities for all purposes of this Agreement.

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ARTICLE 12

REGISTRATION RIGHTS

     12.1 Piggyback Registrations.

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     12.2 Demand Registration Rights.

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     12.3 S-3 Demand Registration Rights. In addition to the registration rights provided in Sections 12.1 and 12.2 above, if at any time Parent is eligible to use SEC Form S-3 (or any successor form) for registration of secondary sales of Registrable Securities, any holder of Registrable Securities may request in writing that Parent register shares of Registrable Securities on such form. Upon receipt of such request, Parent will promptly notify all holders of Registrable Securities in writing of the receipt of such request and each such Holder may elect (by written notice sent to Parent within 30 days of receipt of Parent’s notice) to have its Registrable Securities included in such registration pursuant to this Section 12.3. Thereupon, Parent will, as soon as practicable, use its best efforts to effect the registration on Form S-3 of all Registrable Securities that Parent has so been requested to register by such holder for sale. Parent will use its best efforts to qualify and maintain its qualification for eligibility to use Form S-3 for such purposes.

     12.4 Holdback Agreements.

     12.5 Registration Procedures. Whenever the holders of Registrable Securities have requested that any Registrable Securities be registered pursuant to this Agreement, Parent will use reasonable efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof (including the registration of Warrants held by a holder of Registrable Securities requesting registration as to which Parent has received reasonable assurances that only Registrable Securities will be distributed to the public), and pursuant thereto Parent will as expeditiously as possible:

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     12.6 Registration Expenses. All expenses incident to Parent’s performance of or compliance with this Article 12, including without limitation all registration and filing fees, fees and expenses of compliance with securities or blue sky laws, printing expenses, messenger and delivery expenses, and fees and disbursements of counsel for Parent and all independent certified public accountants, underwriters (excluding discounts and commissions) and other Persons retained by Parent (all such expenses, excluding underwriting discounts and commissions, being herein called “Registration Expenses”), will be borne by Parent. Parent will bear the cost of one set of counsel for the Holders of Registrable Securities participating in any Piggyback Registration or Demand Registration. All underwriting discounts and commissions will be borne by the seller of the securities sold pursuant to the registration.

     12.7 Indemnification.

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     12.8 Participation in Underwritten Registrations. No Person may participate in any registration hereunder which is underwritten unless such Person (a) agrees to sell such Person’s securities on the basis provided in any underwriting arrangements approved by the Person or Persons entitled hereunder to approve such arrangements and (b) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents required under the terms of such underwriting arrangements; provided that no holder of Registrable Securities included in any underwritten registration shall be required to make any representations or warranties to Parent or the underwriters other than representations and warranties regarding such holder and such holder’s intended method of distribution.

ARTICLE 13

MISCELLANEOUS

     13.1 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, except that (a) the Loan Parties may not assign or transfer their rights hereunder or any interest herein or delegate their duties hereunder and (b) Purchasers shall have the right to assign their rights hereunder and under the Securities in accordance with Article 6 hereof.

     13.2 Modifications and Amendments. The provisions of this Agreement may be modified, waived or amended, but only by a written instrument signed by each of the Loan Parties to be bound thereby, and to the extent such modification, amendment or waiver relates (a) to the Notes, such instrument must be executed by Agent on behalf of Purchasers upon satisfaction of the conditions set forth in Section 9.10 and (b) to the Warrants or the Underlying Shares, such instrument must be executed by the holders of a 75% of the Warrant Shares.

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     13.3 No Implied Waivers; Cumulative Remedies; Writing Required. No delay or failure in exercising any right, power or remedy hereunder shall affect or operate as a waiver thereof; nor shall any single or partial exercise thereof or any abandonment or discontinuance of steps to enforce such a right, power or remedy preclude any further exercise thereof or of any other right, power or remedy. The rights and remedies hereunder are cumulative and not exclusive of any rights or remedies that Agent or Purchasers or any holder of Notes, Warrants or Warrant Shares would otherwise have. Any waiver, permit, consent or approval of any kind or character of any breach or default under this Agreement or any such waiver of any provision or condition of this Agreement must be in writing, satisfy the conditions set forth in Section 9.10 hereof and shall be effective only to the extent in such writing specifically set forth.

     13.4 Reimbursement of Expenses. The Loan Parties upon demand shall (or shall cause the other Middleby Companies to) pay or reimburse Agent and Purchasers for all reasonable out-of-pocket fees and expenses incurred or payable by Agent or Purchasers (including, without limitation, reasonable fees and expenses of special counsel for Agent and Purchasers), from time to time (a) arising in connection with the negotiation, preparation and execution of this Agreement, the Notes, the other Purchase Documents and all other instruments and documents to be delivered hereunder or thereunder or arising in connection with the transactions contemplated hereunder or thereunder, (b) relating to any amendments, waivers or consents pursuant to the provisions hereof or thereof, and (c) arising in connection with the enforcement of this Agreement or collection of the Notes.

     13.5 Holidays. Whenever any payment or action to be made or taken hereunder or under the Notes shall be stated to be due on a day which is not a Business Day, such payment or action shall be made or taken on the next following Business Day, and such extension of time shall be included in computing interest or fees, if any, in connection with such payment or action.

     13.6 Notices. All notices and other communications given to or made upon any party hereto in connection with this Agreement shall, except as otherwise expressly herein provided, be in writing (including telecopy, but in such case, a confirming copy will be sent by another permitted means) and mailed via certified mail, telecopied or delivered by guaranteed overnight parcel express service or courier to the respective parties, as follows:

     to any Loan Party:

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     with a copy to:

     to Agent:

     with a copy to:

     and to:

     and to:

     to Purchasers:

or in accordance with any subsequent written direction from the recipient party to the sending party. All such notices and other communications shall, except as otherwise expressly herein provided, be effective upon delivery if delivered by courier or overnight parcel express service; in the case of certified mail, three (3) Business Days after the date sent; or in the case of telecopy, when received.

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     13.7 Survival. All representations, warranties, covenants and agreements of the Middleby Companies contained herein or made in writing in connection herewith shall survive the execution and delivery of this Agreement and the purchase of the Notes and the Warrants and shall continue in full force and effect so long as any Note or Warrant is outstanding and until payment in full of all of the Loan Parties’ obligations hereunder or thereunder. All obligations relating to indemnification hereunder shall survive any termination of this Agreement and shall continue for the length of any applicable statute of limitations.

     13.8 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF ILLINOIS, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.

     13.9 Jurisdiction, Consent to Service of Process.

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     13.10 Jury Trial Waiver. THE LOAN PARTIES HEREBY IRREVOCABLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING (I) TO ENFORCE OR DEFEND ANY RIGHTS UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR (II) ARISING FROM ANY DISPUTE OR CONTROVERSY IN CONNECTION WITH OR RELATED TO THIS AGREEMENT AND AGREES THAT ANY SUCH ACTION OR COUNTERCLAIM SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.

     13.11 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law in any jurisdiction, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating any other provision of this Agreement.

     13.12 Headings. Article, section and subsection headings in this Agreement are included for convenience of reference only and shall not constitute a part of this Agreement for any other purpose.

     13.13 Indemnity. The Loan Parties hereby agree to indemnify, defend and hold harmless Agent and Purchasers and their officers, directors, employees, agents and representatives, and their respective successors and assigns in connection with any losses, claims, damages, liabilities and expenses, including reasonable attorneys’ fees, to which Agent or any Purchaser may become subject (other than as a result of the gross negligence or willful misconduct of any such Person), insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or by reason of any investigation, litigation or other proceedings related to or resulting from any act of, or omission by, the Loan Parties or their Affiliates or any officer, director, employee, agent or representative of the Loan Parties or their Affiliates with respect to the Transactions, the Notes, Charter Documents, the Bylaws or any agreements entered into in connection with any such agreements, instruments or documents and to reimburse Agent and Purchasers and each such Person and Affiliate, upon demand, for any legal or other expenses incurred in connection with investigating or defending any such loss, claim, damage, liability, expense or action. To the extent that the foregoing undertakings may be unenforceable for any reason, the Loan Parties agree to make the maximum contribution to the payment and satisfaction of indemnified liabilities set forth in this Section 13.13 which is permissible under applicable law.

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     13.14 Environmental Indemnity. The Loan Parties, and their successors and assigns, hereby release and discharge, and agree to defend, indemnify and hold harmless, Agent, Purchasers and their Affiliates (including their partners, subsidiaries, customers, guests, and invitees, and the successors and assigns of all of the foregoing, and their respective officers, employees and agents) from and against any and all losses, claims, damages, liabilities and expenses, including reasonable attorneys’ fees, to which Agent or any Purchaser may become subject (other than as a result of the gross negligence or willful misconduct of any such Person), insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or by reason of any Environmental Liabilities, whenever and by whomever asserted, to the extent that such Environmental Liabilities are based upon, or otherwise relate to: (a) any Condition at any time in, at, on, under, a part of, involving or otherwise related to the Properties and Facilities (including any of the properties, materials, articles, products, or other things included in or otherwise a part of the Properties and Facilities); (b) any action or failure to act of any Person, including any prior owner or operator of the Properties and Facilities (including any of the properties, materials, articles, products, or other things included in or otherwise a part of the Properties and Facilities), involving or otherwise related to the Properties and Facilities or operations of the Middleby Companies; (c) the Management of any Pollutant, material, article or product (including Management of any material, article or product containing a Pollutant) in any physical state and at any time, involving or otherwise related to the Properties and Facilities or any property covered by clause (d) (including Management either from the Properties and Facilities or from any property covered by clause (d), and Management to, at, involving or otherwise related to the Properties and Facilities or any property covered by clause (d)); (d) conditions, and actions or failures to act, in, at, on, under, a part of, involving or otherwise related to any property other than the Properties and Facilities, which property was, at or prior to the Closing Date, (i) acquired, held, sold, owned, operated, leased, managed, or divested by, or otherwise associated with, (A) the Middleby Companies, (B) any of the Middleby Companies’ Affiliates, or (C) any predecessor or successor organization of those identified in (A) or (B); or (ii) engaged in any tolling, contract manufacturing or processing, or other similar activities for, with, or on behalf of the Middleby Companies; (e) any violation of or noncompliance with or the assertion of any Lien under the Environmental Laws, (f) the presence of any toxic or hazardous substances, wastes or contaminants on, at or from the past and present Properties and Facilities, including, without limitation, human exposure thereto; (g) any spill, release, discharge or emission affecting the past and present Properties and Facilities, whether or not the same originates or emanates from such Properties and Facilities or any contiguous real estate, including, without limitation, any loss of value of such Properties and Facilities as a result thereof; or (h) a misrepresentation in any representation or warranty or breach of or failure to perform any covenant made by the Loan Parties in this Agreement. This indemnity and agreement to defend and hold harmless shall survive any termination or satisfaction of the Notes or the sale, assignment or foreclosure thereof or the sale, transfer or conveyance of all or part of the past and present properties and facilities or any other circumstances which might otherwise constitute a legal or equitable release or discharge, in whole or in part, of the Company under the Notes.

     13.15 Counterparts. This Agreement may be executed in any number of counterparts and by either party hereto on separate counterparts, each of which, when so executed and delivered, shall be an original, but all such counterparts shall together constitute one and the same instrument.

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     13.16 Integration. This Agreement and the other Purchase Documents set forth the entire understanding of the parties hereto with respect to all matters contemplated hereby and supersede all previous agreements and understandings among them concerning such matters. No statements or agreements, oral or written, made prior to or at the signing hereof, shall vary, waive or modify the written terms hereof.

     13.17 Subordination. THE OBLIGATIONS EVIDENCED HEREBY ARE SUBORDINATE IN THE MANNER AND TO THE EXTENT SET FORTH IN THAT CERTAIN SUBORDINATION AGREEMENT (THE “SUBORDINATION AGREEMENT”), DATED AS OF DECEMBER 21, 2001, AMONG BANK OF AMERICA, N.A., AS ADMINISTRATIVE AGENT FOR THE SENIOR LENDER, AGENT, PURCHASERS, THE LOAN PARTIES, AND THE OTHER MIDDLEBY COMPANIES SIGNATORY THERETO TO THE INDEBTEDNESS AND OTHER LIABILITIES OWED BY THE LOAN PARTIES UNDER AND PURSUANT TO THE SENIOR CREDIT AGREEMENT, AND EACH RELATED “LOAN DOCUMENT” (AS DEFINED THEREIN), AND EACH HOLDER HEREOF, BY ITS ACCEPTANCE HEREOF, ACKNOWLEDGES AND AGREES TO BE BOUND BY THE PROVISIONS OF THE SUBORDINATION AGREEMENT.

     13.18 Conditional Warrant Determination

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     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.

ANNEXES

SCHEDULES

ANNEX A
TO
NOTE AND EQUITY PURCHASE AGREEMENT

Information Relating to Purchasers

     Exhibit 4.9

THIS WARRANT WAS ISSUED ON DECEMBER 21, 2001 AND SUCH ISSUANCE WAS NOT REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THE TRANSFER OF THIS WARRANT AND THE SECURITIES OBTAINABLE UPON EXERCISE HEREOF IS SUBJECT TO THE CONDITIONS ON TRANSFER SPECIFIED IN THE NOTE AND EQUITY PURCHASE AGREEMENT, DATED AS OF DECEMBER 21, 2001 (AS AMENDED FROM TIME TO TIME, THE “PURCHASE AGREEMENT“), BY AND AMONG THE ISSUER HEREOF, MIDDLEBY MARSHALL INC., THE PURCHASERS NAMED THEREIN, AND AMERICAN CAPITAL FINANCIAL SERVICES, INC., AS AGENT FOR THE PURCHASERS AND THE ISSUER HEREOF RESERVES THE RIGHT TO REFUSE THE TRANSFER OF SUCH SECURITY UNTIL SUCH CONDITIONS HAVE BEEN FULFILLED WITH RESPECT TO SUCH TRANSFER. UPON WRITTEN REQUEST, A COPY OF SUCH CONDITIONS WILL BE FURNISHED BY THE ISSUER HEREOF TO THE HOLDER HEREOF WITHOUT CHARGE.

WARRANT

     FOR VALUE RECEIVED, THE MIDDLEBY CORPORATION, a Delaware corporation (the “Parent”), hereby grants to AMERICAN CAPITAL STRATEGIES, LTD., or its registered assigns (the “Registered Holder”) the right to purchase from Parent 362,226 shares (as adjusted from time to time hereunder, the “Exercise Shares”), of Parent’s Common Stock, $0.01 par value, at a price per share of $4.67 (as adjusted from time to time hereunder, the “Exercise Price”). This Warrant is one of one or more Warrants (collectively, the “Warrants”) originally issued by Parent to certain investors on December 21, 2001 in connection with the purchase of one or more Notes (as defined in the Purchase Agreement). Certain capitalized terms used herein are defined in Section 4 hereof. Certain capitalized terms used and not defined herein are defined in the Purchase Agreement. The amount and kind of securities purchasable pursuant to the rights granted hereunder and the purchase price for such securities are subject to adjustment pursuant to the provisions contained in this Warrant.

     This Warrant is subject to the following provisions:

     Section 1. Exercise of Warrant.

     1A. Exercise Period. The Registered Holder may exercise, in whole or in part (but not as to a fractional share of Common Stock), the purchase rights represented by this Warrant at any time and from time to time, to and including the date that is the tenth (10th) anniversary of the original date of issuance (the “Exercise Period"). Parent will give the Registered Holder written notice at least 30 days but not more than 90 days prior to the expiration of the Exercise Period.

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     1B. Exercise Agreement. Upon any exercise of this Warrant, the Exercise Agreement will be substantially in the form set forth in Exhibit I hereto, except that if the shares of Common Stock are not to be issued in the name of the Person in whose name this Warrant is registered, the Exercise Agreement will also state the name of the Person to whom the certificates for the shares of Common Stock are to be issued, and if the number of shares of Common Stock to be issued does not include all the shares of Common Stock purchasable hereunder, it will also state the name of the Person to whom a new Warrant for the unexercised portion of the rights hereunder is to be delivered. Such Exercise Agreement will be dated the actual date of execution thereof.

     1C. Fractional Shares. If a fractional share of Common Stock would, but for the provisions of paragraph 1A, be issuable upon exercise of the rights represented by this Warrant, Parent will, within ten (10) days after the date of the Exercise Time, deliver to the Registered Holder a check payable to the Registered Holder in lieu of such fractional share in an amount equal to the difference between the Fair Market Value of such fractional share as of the date of the Exercise Time and the Exercise Price of such fractional share.

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     Section 2. Adjustment of Number of Exercise Shares. In order to prevent dilution of the rights granted under this Warrant, the number of Exercise Shares shall be subject to adjustment from time to time as provided in this Section 2.

     2A. Adjustment of Number of Exercise Shares upon Issuance of Shares of Common Stock or Stock Equivalents. If and whenever on or after the Closing Date, Parent issues or sells, or in accordance with paragraph 2Bis deemed to have issued or sold, any shares of Common Stock for a consideration per share of Common Stock less than the Fair Market Value per share of Common Stock at the time of such issue or sale (not including the issuance of shares of Common Stock pursuant to exercise of the Warrants), then forthwith upon such issue or sale, the Exercise Shares will be increased by multiplying such number by a fraction, (A) the numerator of which is the Fair Market Value per share of Common Stock at the time of such issue or sale and (B) the denominator of which is the amount determined by dividing (a) the sum of (1) the product derived by multiplying the Fair Market Value per share of Common Stock at the time of such issue or sale times the number of shares of Common Stock outstanding on a Fully Diluted Basis immediately prior to such issue or sale, plus (2) the aggregate consideration, if any, received by Parent upon such issue or sale, by (b) the number of shares of Common Stock outstanding on a Fully Diluted Basis immediately after such issue or sale; provided, however, that notwithstanding any other provision of this paragraph 2Aor of paragraph 2B, no adjustment shall be made for the issuance of shares of Common Stock upon exercise of any Warrant issued in the name of the Registered Holder.

     2B. Effect on Exercise Shares of Certain Events. For purposes of determining the adjusted Exercise Shares of Common Stock under paragraph 2Aabove, the following will be applicable:

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     2C. Subdivision or Combination of Common Stock. If Parent at any time subdivides (by any stock split, stock dividend, recapitalization or otherwise) one or more classes of its outstanding shares of Common Stock into a greater number of shares, the Exercise Shares in effect immediately prior to such subdivision will be proportionately increased. If Parent at any time combines (by reverse stock split or otherwise) one or more classes of its outstanding shares of Common Stock into a smaller number of shares, the Exercise Shares in effect immediately prior to such combination will be proportionately decreased.

     2D. Reorganization, Reclassification, Consolidation, Merger or Sale. Any recapitalization, reorganization, reclassification, consolidation, merger, sale of all or substantially all of Parent’s assets to another Person or other transaction that is effected in such a way that holders of Common Stock are entitled to receive (either directly or upon subsequent liquidation) stock, securities or assets with respect to or in exchange for Common Stock is referred to herein as “Organic Change.” Prior to the consummation of any Organic Change, Parent will make appropriate provision (as determined by the Board of Directors, but in form and substance reasonably satisfactory to the Registered Holders of the Warrants representing a majority of the Common Stock obtainable upon exercise of all Warrants then outstanding) to insure that each of the Registered Holders of the Warrants will thereafter have the right to acquire and receive in lieu of or addition to (as the case may be) the shares of Common Stock immediately theretofore acquirable and receivable upon the exercise of such holder’s Warrant, such shares of stock, securities or assets as may be issued or payable with respect to or in exchange for the number of shares of Common Stock immediately theretofore acquirable and receivable upon exercise of such holder’s Warrant had such Organic Change not taken place. In any such case, Parent will make appropriate provision (in form and substance reasonably satisfactory to the Registered Holders of the Warrants representing a majority of the Common Stock obtainable upon exercise of all Warrants then outstanding) with respect to such holder’s rights and interests to insure that the provisions of this Section 2 and Sections 3 and 4 hereof will thereafter be applicable to the Warrants (including, in the case of any such consolidation, merger or sale in which the successor entity or purchasing entity is other than Parent, an immediate adjustment of the Exercise Price to the value for the Common Stock reflected by the terms of such consolidation, merger or sale, and a corresponding immediate adjustment in the number of Exercise Shares, if the value so reflected is less than the Exercise Price in effect immediately prior to such consolidation, merger or sale). Parent will not effect any such consolidation, merger or sale, unless prior to the consummation thereof, the successor entity (if other than Parent) resulting from consolidation or merger or the corporation purchasing such assets assumes by written instrument (in form and substance reasonably satisfactory to the Registered Holders of Warrants representing a majority of the Common Stock obtainable upon exercise of all of the Warrants then outstanding), the obligation to deliver to each such holder such shares of stock, securities or assets as, in accordance with the foregoing provisions, such holder may be entitled to acquire.

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     2E. Notices.

     Section 3. Dividends

     3A. In the event that, during the term of the Warrants, Parent pays any cash dividend or makes any cash distribution to any holder of Common Stock each Registered Holder shall be entitled to receive in respect of its Warrant a dilution fee in cash (the "Dilution Fee") on the date of payment of such dividend or distribution, which Dilution Fee shall be equal to the difference between (a) the product of (i) the highest amount per share paid to holders of Common Stock times (ii) the number of Exercise Shares to which the Holder is then entitled. No such dividend or distribution shall be paid unless the Holders shall have received advance written notice thereof at least ten (10) days prior to the record date.

     3B. If Parent declares or pays a dividend upon the Common Stock payable otherwise than in cash out of earnings or earned surplus (determined in accordance with generally accepted accounting principles, consistently applied) except for a stock dividend payable in shares of Common Stock (a “Liquidating Dividend”), then Parent will pay to the Registered Holder of this Warrant at the time of payment thereof the Liquidating Dividend which would have been paid to such Registered Holder on the Common Stock had this Warrant been fully exercised immediately prior to the date on which a record is taken for such Liquidating Dividend, or, if no record is taken, the date as of which the record holders of Common Stock entitled to such dividends are to be determined.

     Section 4. Definitions. The following terms have meanings set forth below:

     “Aggregate Exercise Price” shall have the meaning set forth in paragraph 1A.

     “Common Stock” shall mean Parent’s common stock, par value $.01 per share, and, except for purposes of the shares obtainable upon exercise of this Warrant, any capital stock of any class of Parent hereafter authorized that is not limited to a fixed sum or percentage of par or stated value in respect to the rights of the holders thereof to participate in dividends or in the distribution of assets upon any liquidation, dissolution or winding up of Parent.

     “Dilution Fee” shall have the meaning set forth in paragraph 3A.

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     “Exercise Period” shall have the meaning set forth in paragraph 1A.

     “Exercise Price” shall have the meaning set forth in the introductory paragraph hereof.

     “Exercise Shares” shall have the meaning set forth in the introductory paragraph hereof.

     “Exercise Time” shall have the meaning set forth in paragraph 1A.

     “Fair Market Value” shall have the meaning set forth in the Purchase Agreement.

     “Former CEO Options” shall mean the options issued to Mr. David Riley to acquire, in the aggregate, 100,000 shares of Common Stock.

     “Fully Diluted Basis” shall mean, at any given time, the number of shares of Common Stock actually outstanding at such time, plus the number of Stock Equivalents then outstanding (including Warrants), regardless of their exercise price or its equivalent.

     “Liquidating Dividend” shall have the meaning set forth in paragraph 3B.

     “Organic Change” shall have the meaning set forth in paragraph 2D.

     “Parent” shall have the meaning set forth in the introductory paragraph hereof.

     “Person” shall mean an individual, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

     “Registered Holder” shall have the meaning set forth in the introductory paragraph hereof.

     “Stock Equivalents” shall mean any option, warrant, right or similar security or claim exercisable into, exchangeable for, or convertible to shares of Common Stock or the economic equivalent value of shares of Common Stock (including, by way of illustration, stock appreciation rights).

     “Warrants” shall have the meaning set forth in the introductory paragraph hereof.

     Section 5. No Voting Rights; Limitations of Liability. This Warrant will not entitle the holder hereof to any voting rights or other rights as a stockholder of Parent. No provision hereof, in the absence of affirmative action by the Registered Holder to purchase Common Stock, and no enumeration herein of the rights or privileges of the Registered Holder shall give rise to any liability of such holder for the Exercise Price of Common Stock acquirable by exercise hereof or as a stockholder of Parent.

     Section 6. Warrant Transferable. Subject to the transfer conditions referred to in the legend endorsed hereon, this Warrant and all rights hereunder are transferable, in whole or in part, without charge to the Registered Holder, upon surrender of this Warrant with a properly executed Assignment (in the form of Exhibit II hereto) at the principal office of Parent.

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     Section 7. Warrant Exchangeable for Different Denominations. This Warrant is exchangeable, upon the surrender hereof by the Registered Holder at the principal office of Parent, for new Warrants of like tenor representing in the aggregate the purchase rights hereunder, and each of such new Warrants will represent such portion of such rights as is designated by the Registered Holder at the time of such surrender. The date Parent initially issues this Warrant will be deemed to be the “Date of Issuance” hereof regardless of the number of times new certificates representing the unexplored and unexercised rights formerly represented by this Warrant shall be issued. All Warrants representing portions of the rights hereunder are referred to herein as the “Warrants”.

     Section 8. Replacement. Upon receipt of evidence reasonably satisfactory to Parent (an affidavit of the Registered Holder will be satisfactory) of the ownership and the loss, theft, destruction or mutilation of any certificate evidencing this Warrant, and in the case of any such loss, theft or destruction, upon receipt of indemnity reasonably satisfactory to Parent (provided that if the Registered Holder is a financial institution or other institutional investor its own agreement will be satisfactory), or, in the case of any such mutilation upon surrender of such certificate, Parent will (at its expense) execute and deliver in lieu of such certificate a new certificate of like kind representing the same rights represented by such lost, stolen, destroyed or mutilated certificate and dated the date of such lost, stolen, destroyed or mutilated certificate.

     Section 9. Notices. Except as otherwise expressly provided herein, all notices referred to in this Warrant will be in writing and will be delivered personally, sent by reputable express courier service (charges prepaid) or sent by registered or certified mail, return receipt requested, postage prepaid and will be deemed to have been given when so delivered, one (1) Business Day after being so sent or three Business Days after being so deposited in the U.S. Mail (i) to Parent, at its principal executive offices and (ii) to the Registered Holder of this Warrant, at such holder’s address as it appears in the records of Parent (unless otherwise indicated by any such holder).

     Section 10. Amendment and Waiver. Except as otherwise provided herein, the provisions of the Warrants may be amended and Parent may take any action herein prohibited, or omit to perform any act herein required to be performed by it, only if Parent has obtained the written consent of the Registered Holders of Warrants representing a majority of the shares of Common Stock obtainable upon exercise of the Warrants; provided, that no such action may change the Exercise Price of the Warrants or the number of shares or class of stock obtainable upon exercise of each Warrant without the written consent of the Registered Holders of Warrants representing at least 60% of the shares of Common Stock obtainable upon exercise of all the Warrants then outstanding.

     Section 11. Descriptive Headings; Governing Law. The descriptive headings of the several Sections and paragraphs of this Warrant are inserted for convenience only and do not constitute a part of this Warrant. The construction, validity and interpretation of this Warrant will be governed by the internal law, and not the conflicts law, of the State of Illinois.

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     IN WITNESS WHEREOF, Parent has caused this Warrant to be signed and attested by its duly authorized officers under its corporate seal and to be dated the Date of Issuance hereof.

EXHIBIT I

EXERCISE AGREEMENT

     To:

     Dated:

     The undersigned, pursuant to the provisions set forth in the attached Warrant (Certificate No. W-__), hereby agrees to subscribe for the purchase of ______ shares of the Common Stock covered by such Warrant and makes payment herewith in full therefor at the price per share provided by such Warrant.

|_| Check Box for Net Issue Exercise

EXHIBIT II

ASSIGNMENT

     FOR VALUE RECEIVED, ____________, hereby sells, assigns, and transfers all of the rights of the undersigned under the attached Warrant (Certificate No. W-__) with respect to the number of shares of the Common Stock covered thereby set forth below, unto:

     Exhibit 4.10

     THIS CONDITIONAL WARRANT WAS ISSUED ON DECEMBER 21, 2001 AND SUCH ISSUANCE WAS NOT REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THE TRANSFER OF THIS CONDITIONAL WARRANT AND THE SECURITIES OBTAINABLE UPON EXERCISE HEREOF IS SUBJECT TO THE CONDITIONS ON TRANSFER SPECIFIED IN THE NOTE AND EQUITY PURCHASE AGREEMENT, DATED AS OF DECEMBER 21, 2001 (AS AMENDED FROM TIME TO TIME, THE “PURCHASE AGREEMENT”), BY AND AMONG THE ISSUER HEREOF, MIDDLEBY MARSHALL INC., THE PURCHASERS NAMED THEREIN, AND AMERICAN CAPITAL FINANCIAL SERVICES, INC., AS AGENT FOR THE PURCHASERS AND THE ISSUER HEREOF RESERVES THE RIGHT TO REFUSE THE TRANSFER OF SUCH SECURITY UNTIL SUCH CONDITIONS HAVE BEEN FULFILLED WITH RESPECT TO SUCH TRANSFER. UPON WRITTEN REQUEST, A COPY OF SUCH CONDITIONS WILL BE FURNISHED BY THE ISSUER HEREOF TO THE HOLDER HEREOF WITHOUT CHARGE.

     FOR VALUE RECEIVED, THE MIDDLEBY CORPORATION, a Delaware corporation (the “Parent”), hereby grants to AMERICAN CAPITAL STRATEGIES, LTD., or its registered assigns (the “Registered Holder”) the right to purchase from Parent the number of shares (as adjusted from time to time hereunder, the “Conditional Shares”) of Parent’s Common Stock, $0.01 par value (“Common Stock”) set forth in paragraph 1D, at a price per share equal to $4.67 per share (as adjusted from time to time hereunder, the “Exercise Price”). This Conditional Warrant is one of one or more Warrants (collectively, the “Warrants”) issued by Parent to certain investors on December 21, 2001 in connection with the purchase of one or more Notes (as defined in the Purchase Agreement). Certain capitalized terms used herein are defined in Section 4 hereof. Certain capitalized terms used and not defined herein are defined in the Purchase Agreement. The amount and kind of securities purchasable pursuant to the rights granted hereunder and the purchase price for such securities are subject to adjustment pursuant to the provisions contained in this Warrant.

     This Warrant is subject to the following provisions:

     Section 1. Exercise of Warrant.

     1A. Exercise Period. The Registered Holder may exercise, in whole or in part (but not as to a fractional share of Common Stock), the purchase rights represented by this Warrant at any time and from time to time after the Determination Date to and including the date that is the tenth (10^th) anniversary of the original date of issuance (the “Exercise Period”). Parent will give the Registered Holder written notice at least 30 days but not more than 90 days prior to the expiration of the Exercise Period.

     1B. Exercise Agreement. Upon any exercise of this Warrant, the Exercise Agreement will be substantially in the form set forth in Exhibit I hereto, except that if the shares of Common Stock are not to be issued in the name of the Person in whose name this Warrant is registered, the Exercise Agreement will also state the name of the Person to whom the certificates for the shares of Common Stock are to be issued, and if the number of shares of Common Stock to be issued does not include all the shares of Common Stock purchasable hereunder, it will also state the name of the Person to whom a new Warrant for the unexercised portion of the rights hereunder is to be delivered. Such Exercise Agreement will be dated the actual date of execution thereof.

     1C. Fractional Shares. If a fractional share of Common Stock would, but for the provisions of paragraph 1A, be issuable upon exercise of the rights represented by this Warrant, Parent will, within ten (10) days after the date of the Exercise Time, deliver to the Registered Holder a check payable to the Registered Holder in lieu of such fractional share in an amount equal to the difference between the Fair Market Value of such fractional share as of the date of the Exercise Time and the Exercise Price of such fractional share.

     1D. Determination of Conditional Shares.

     Section 2. Adjustment of Number of Conditional Shares. In order to prevent dilution of the rights granted under this Warrant, the number of Stage 1 Conditional Shares, Stage 2 Conditional Shares, Stage 3 Conditional Shares and Stage 4 Conditional Shares (if such adjustment is to occur on or before the Determination Date) or the number of Conditional Shares (if such adjustment is to occur after the Determination Date) shall be subject to adjustment from time to time as provided in this Section 2.

     2A. Adjustment of Number of Conditional Shares upon Issuance of Shares of Common Stock or Stock Equivalents. If and whenever on or after the Closing Date, Parent issues or sells, or in accordance with paragraph 2B is deemed to have issued or sold, any shares of Common Stock for a consideration per share of Common Stock less than the Fair Market Value per share of Common Stock at the time of such issue or sale (not including the issuance of shares of Common Stock pursuant to exercise of the Warrants), then forthwith upon such issue or sale, the Stage 1 Conditional Shares, Stage 2 Conditional Shares, Stage 3 Conditional Shares, Stage 4 Conditional Shares or Conditional Shares, as applicable, will be increased by multiplying such number by a fraction, (A) the numerator of which is the Fair Market Value per share of Common Stock at the time of such issue or sale and (B) the denominator of which is the amount determined by dividing (a) the sum of (1) the product derived by multiplying the Fair Market Value per share of Common Stock at the time of such issue or sale times the number of shares of Common Stock outstanding on a Fully Diluted Basis immediately prior to such issue or sale, plus (2) the aggregate consideration, if any, received by Parent upon such issue or sale, by (b) the number of shares of Common Stock outstanding on a Fully Diluted Basis immediately after such issue or sale; provided, however, that notwithstanding any other provision of this paragraph 2A or of paragraph 2B, no adjustment shall be made for the issuance of shares of Common Stock upon exercise of any Warrant issued in the name of the Registered Holder.

     2B. Effect on Conditional Shares of Certain Events. For purposes of determining the adjusted Stage 1 Conditional Shares, Stage 2 Conditional Shares, Stage 3 Conditional Shares, Stage 4 Conditional Shares or Conditional Shares of Common Stock under paragraph 2A, the following will be applicable:

     2C. Subdivision or Combination of Common Stock. If Parent at any time subdivides (by any stock split, stock dividend, recapitalization or otherwise) one or more classes of its outstanding shares of Common Stock into a greater number of shares, the Conditional Shares in effect immediately prior to such subdivision will be proportionately increased. If Parent at any time combines (by reverse stock split or otherwise) one or more classes of its outstanding shares of Common Stock into a smaller number of shares, the Conditional Shares in effect immediately prior to such combination will be proportionately decreased.

     2D. Reorganization, Reclassification, Consolidation, Merger or Sale of Assets. Any recapitalization, reorganization, reclassification, consolidation, merger, sale of all or substantially all of Parent’s assets to another Person or other transaction that is effected in such a way that holders of Common Stock are entitled to receive (either directly or upon subsequent liquidation) stock, securities or assets with respect to or in exchange for Common Stock is referred to herein as “Organic Change”. Prior to the consummation of any Organic Change, Parent will make appropriate provision (as determined by the Board of Directors, but in form and substance reasonably satisfactory to the Registered Holders of the Warrants representing a majority of the Common Stock obtainable upon exercise of all Warrants then outstanding) to insure that each of the Registered Holders of the Warrants will thereafter have the right to acquire and receive in lieu of or addition to (as the case may be) the shares of Common Stock immediately theretofore acquirable and receivable upon the exercise of such holder’s Warrant, such shares of stock, securities or assets as may be issued or payable with respect to or in exchange for the number of shares of Common Stock immediately theretofore acquirable and receivable upon exercise of such holder’s Warrant had such Organic Change not taken place. In any such case, Parent will make appropriate provision (in form and substance reasonably satisfactory to the Registered Holders of the Warrants representing a majority of the Common Stock obtainable upon exercise of all Warrants then outstanding) with respect to such holder’s rights and interests to insure that the provisions of this Section 2 and Sections 3 and 4 hereof will thereafter be applicable to the Warrants (including, in the case of any such consolidation, merger or sale in which the successor entity or purchasing entity is other than Parent, an immediate adjustment of the Exercise Price to the value for the Common Stock reflected by the terms of such consolidation, merger or sale, and a corresponding immediate adjustment in the number of Conditional Shares, if the value so reflected is less than the Exercise Price in effect immediately prior to such consolidation, merger or sale). Parent will not effect any such consolidation, merger or sale, unless prior to the consummation thereof, the successor entity (if other than Parent) resulting from consolidation or merger or the corporation purchasing such assets assumes by written instrument (in form and substance reasonably satisfactory to the Registered Holders of Warrants representing a majority of the Common Stock obtainable upon exercise of all of the Warrants then outstanding), the obligation to deliver to each such holder such shares of stock, securities or assets as, in accordance with the foregoing provisions, such holder may be entitled to acquire.

     2E. Notices.

     Section 3. Dividends.

     3A. In the event that, during the term of the Warrants, Parent pays any cash dividend or makes any cash distribution to any holder of Common Stock each Registered Holder shall be entitled to receive in respect of its Warrant a dilution fee in cash (the “Dilution Fee”) on the date of payment of such dividend or distribution, which Dilution Fee shall be equal to the difference between (a) the product of (i) the highest amount per share paid to holders of Common Stock times (ii) the number of Conditional Shares to which the Holder is then entitled. No such dividend or distribution shall be paid unless the Holders shall have received advance written notice thereof at least ten (10) days prior to the record date.

     3B. If Parent declares or pays a dividend upon the Common Stock payable otherwise than in cash out of earnings or earned surplus (determined in accordance with generally accepted accounting principles, consistently applied) except for a stock dividend payable in shares of Common Stock (a “Liquidating Dividend”), then Parent will pay to the Registered Holder of this Warrant at the time of payment thereof the Liquidating Dividend which would have been paid to such Registered Holder on the Common Stock had this Warrant been fully exercised immediately prior to the date on which a record is taken for such Liquidating Dividend, or, if no record is taken, the date as of which the record holders of Common Stock entitled to such dividends are to be determined.

     3C. Notwithstanding anything in this Section 3 to the contrary, the amounts payable pursuant to this Section 3 shall not be due and payable until the Determination Date. On the Determination Date, Parent shall pay to the Registered Holder an amount equal to the amount to which the Registered Holder would have been entitled under paragraphs 3A and 3B above had the Conditional Shares been determined as of the date of the payment of each such dividend, if any.

     Section 4. Definitions. The following terms have meanings set forth below:

     “Aggregate Exercise Price” shall have the meaning set forth in paragraph 1A.

     “Common Stock” shall mean Parent’s common stock, par value $.01 per share, and, except for purposes of the shares obtainable upon exercise of this Warrant, any capital stock of any class of Parent hereafter authorized that is not limited to a fixed sum or percentage of par or stated value in respect to the rights of the holders thereof to participate in dividends or in the distribution of assets upon any liquidation, dissolution or winding up of Parent.

     “Conditional Shares” shall have the meaning set forth in the introductory paragraph hereof.

     “Conditional Warrants” shall mean Warrants issued pursuant to, and in the form of Exhibit B-2 of, the Purchase Agreement.

     “Determination Date” shall have the meaning set forth in paragraph 1D hereof.

     “Dilution Fee” shall have the meaning set forth in paragraph 3A.

     “Exercise Period” shall have the meaning set forth in paragraph 1A.

     “Exercise Price” shall have the meaning set forth in the introductory paragraph hereof.

     “Exercise Time” shall have the meaning set forth in paragraph 1A.

     “Fair Market Value” shall have the meaning set forth in the Purchase Agreement.

     “Former CEO Options” shall mean the options issued to Mr. David Riley to acquire, in the aggregate, 100,000 shares of Common Stock.

     “Fully Diluted Basis” shall mean, at any given time, the number of shares of Common Stock actually outstanding at such time, plus the number of Stock Equivalents then outstanding (including Warrants), regardless of their exercise price or its equivalent.

     “Imputed Notes” shall mean Notes with a principal amount equal to the maximum amount of Notes sold under the Purchase Agreement multiplied by the Warrant Fraction.

     “Imputed Primary Warrants” shall mean Primary Warrants in the aggregate amount sold or issued under the Purchase Agreement multiplied by the Warrant Fraction.

     “IRR” shall have the meaning set forth in the Purchase Agreement.

     “Liquidating Dividend” shall have the meaning set forth in paragraph 3B.

     “Organic Change” shall have the meaning set forth in paragraph 2D.

     “Parent” shall have the meaning set forth in the introductory paragraph hereof.

     “Person” shall mean an individual, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

     “Primary Warrants” shall mean all Warrants, other than any Conditional Warrants, issued pursuant to the Purchase Agreement.

     “Registered Holder” shall have the meaning set forth in the introductory paragraph hereof.

     “Securities” shall have the meaning set forth in paragraph 1D hereof.

     “Stage 1 Conditional Shares” shall have the meaning set forth in paragraph 1D hereof.

     “Stage 2 Conditional Shares” shall have the meaning set forth in paragraph 1D hereof.

     “Stage 3 Conditional Shares” shall have the meaning set forth in paragraph 1D hereof.

     “Stock Equivalents” shall mean any option, warrant, right or similar security or claim exercisable into, exchangeable for, or convertible to shares of Common Stock or the economic equivalent value of shares of Common Stock (including, by way of illustration, stock appreciation rights).

     “Warrants” shall have the meaning set forth in the introductory paragraph hereof.

     “Warrant Fraction” shall mean a fraction, the numerator of which is the number of Conditional Shares (as of the Date of Determination) for which this Warrant may be exercised and the denominator of which is the aggregate Conditional Shares (as of the Date of Determination) for all Conditional Warrants that have been sold or issued under the Purchase Agreement (as of the Date of Determination).

     Section 5. No Voting Rights; Limitations of Liability. This Warrant will not entitle the holder hereof to any voting rights or other rights as a stockholder of Parent. No provision hereof, in the absence of affirmative action by the Registered Holder to purchase Common Stock, and no enumeration herein of the rights or privileges of the Registered Holder shall give rise to any liability of such holder for the Exercise Price of Common Stock acquirable by exercise hereof or as a stockholder of Parent.

     Section 6. Warrant Transferable. Subject to the transfer conditions referred to in the legend endorsed hereon, this Warrant and all rights hereunder are transferable, in whole or in part, without charge to the Registered Holder, upon surrender of this Warrant with a properly executed Assignment (in the form of Exhibit II hereto) at the principal office of Parent.

     Section 7. Warrant Exchangeable for Different Denominations. This Warrant is exchangeable, upon the surrender hereof by the Registered Holder at the principal office of Parent, for new Warrants of like tenor representing in the aggregate the purchase rights hereunder, and each of such new Warrants will represent such portion of such rights as is designated by the Registered Holder at the time of such surrender. The date Parent initially issues this Warrant will be deemed to be the “Date of Issuance” hereof regardless of the number of times new certificates representing the unexplored and unexercised rights formerly represented by this Warrant shall be issued. All Warrants representing portions of the rights hereunder are referred to herein as the “Warrants”.

     Section 8. Replacement. Upon receipt of evidence reasonably satisfactory to Parent (an affidavit of the Registered Holder will be satisfactory) of the ownership and the loss, theft, destruction or mutilation of any certificate evidencing this Warrant, and in the case of any such loss, theft or destruction, upon receipt of indemnity reasonably satisfactory to Parent (provided that if the Registered Holder is a financial institution or other institutional investor its own agreement will be satisfactory), or, in the case of any such mutilation upon surrender of such certificate, Parent will (at its expense) execute and deliver in lieu of such certificate a new certificate of like kind representing the same rights represented by such lost, stolen, destroyed or mutilated certificate and dated the date of such lost, stolen, destroyed or mutilated certificate.

     Section 9. Notices. Except as otherwise expressly provided herein, all notices referred to in this Warrant will be in writing and will be delivered personally, sent by reputable express courier service (charges prepaid) or sent by registered or certified mail, return receipt requested, postage prepaid and will be deemed to have been given when so delivered, one (1) Business Day after being so sent or three Business Days after being so deposited in the U.S. Mail (i) to Parent, at its principal executive offices and (ii) to the Registered Holder of this Warrant, at such holder’s address as it appears in the records of Parent (unless otherwise indicated by such holder).

     Section 10. Amendment and Waiver. Except as otherwise provided herein, the provisions of the Warrants may be amended and Parent may take any action herein prohibited, or omit to perform any act herein required to be performed by it, only if Parent has obtained the written consent of the Registered Holders of Warrants representing a majority of the shares of Common Stock obtainable upon exercise of the Warrants; provided that no such action may change the Exercise Price of the Warrants or the number of shares or class of stock obtainable upon exercise of each Warrant without the written consent of the Registered Holders of Warrants representing at least 60% of the shares of Common Stock obtainable upon exercise of all the Warrants then outstanding.

     Section 11. Descriptive Headings; Governing Law. The descriptive headings of the several Sections and paragraphs of this Warrant are inserted for convenience only and do not constitute a part of this Warrant. The construction, validity and interpretation of this Warrant will be governed by the internal law, and not the conflicts law, of the State of Illinois.

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     IN WITNESS WHEREOF, Parent has caused this Conditional Warrant to be signed and attested by its duly authorized officers under its corporate seal and to be dated the Date of Issuance hereof.

EXHIBIT I

EXERCISE AGREEMENT

     To:

     Dated:

     The undersigned, pursuant to the provisions set forth in the attached Conditional Warrant (Certificate No. W-__), hereby agrees to subscribe for the purchase of ______ shares of the Common Stock covered by such Conditional Warrant and makes payment herewith in full therefor at the price per share provided by such Conditional Warrant.

|_| Check Box for Net Issue Exercise

EXHIBIT II

ASSIGNMENT

     FOR VALUE RECEIVED, _______________ hereby sells, assigns, and transfers all of the rights of the undersigned under the attached Conditional Warrant (Certificate No. W-__) with respect to the number of shares of the Common Stock covered thereby set forth below, unto: