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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 9)*
THE MIDDLEBY CORPORATION
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(Name of Issuer)
Common Stock, par value $0.01 per share
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(Title of Class of Securities)
596278101
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(CUSIP Number)
Thomas C. Danziger
Danziger & Danziger
405 Park Avenue
New York, New York 10022
Telephone: (212) 754-7000
Copy to:
Timothy J. FitzGerald
The Middleby Corporation
1400 Toastmaster Drive
Elgin, Illinois 60120
Telephone: (847) 741-3300
December 23, 2004
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(Date of Event Which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition that is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the
following box. |_|
Note: Schedules filed in paper format shall include a signed original
and five copies of the schedule, including all exhibits. See Rule 13d-7 for
other parties to whom copies are sent.
(Continued on following pages)
(Page 1 of 5 Pages)
______________
*The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall
not be deemed to be "filed" for the purpose of Section 18 of the Securities
Exchange Act of 1934, as amended (the "Act") or otherwise subject to the
liabilities of that section of the Act but shall be subject to all other
provisions of the Act (however, see the Notes).
CUSIP No. 596278101 13D Page 2 of 5 Pages
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1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY)
WILLIAM F. WHITMAN, JR.
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |X|
(b) |_|
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
N/A
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS |_|
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
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NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 0
OWNED BY ------------------------------------------------
EACH 8 SHARED VOTING POWER
REPORTING
PERSON 0
WITH ------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES |_|
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0%
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14 TYPE OF REPORTING PERSON
IN
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CUSIP No. 596278101 13D Page 3 of 5 Pages
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1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY)
BARBARA K. WHITMAN
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |X|
(b) |_|
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
N/A
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS |_|
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
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NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 0
OWNED BY -----------------------------------------------
EACH 8 SHARED VOTING POWER
REPORTING
PERSON 0
WITH -----------------------------------------------
9 SOLE DISPOSITIVE POWER
0
-----------------------------------------------
10 SHARED DISPOSITIVE POWER
0
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0
-------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES |_|
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0%
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14 TYPE OF REPORTING PERSON
IN
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CUSIP No. 596278101 13D Page 4 of 5 Pages
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1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY)
BARBARA K. WHITMAN, TRUSTEE UNDER TRUST AGREEMENTS DATED
DECEMBER 21, 2003 FOR THE BENEFIT OF LAURA B. WHITMAN,
WILLIAM F. WHITMAN III AND BARBARA K. WHITMAN
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |X|
(b) |_|
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
N/A
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS |_|
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
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NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 718,500
OWNED BY -----------------------------------------------
EACH 8 SHARED VOTING POWER
REPORTING
PERSON 0
WITH -----------------------------------------------
9 SOLE DISPOSITIVE POWER
718,500
-----------------------------------------------
10 SHARED DISPOSITIVE POWER
0
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
718,500
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES |_|
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.7%
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14 TYPE OF REPORTING PERSON
IN
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CUSIP No. 596278101 13D Page 5 of 5 Pages
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1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY)
WILLIAM F. WHITMAN, JR. AND BARBARA K. WHITMAN AS TRUSTEES UNDER
THE WILLIAM F. WHITMAN, JR. AND BARBARA K. WHITMAN CHARITABLE
REMAINDER TRUST AGREEMENT, DATED AUGUST 3, 2004
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |X|
(b) |_|
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
N/A
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS |_|
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
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NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 100,000
OWNED BY -----------------------------------------------
EACH 8 SHARED VOTING POWER
REPORTING
PERSON 0
WITH -----------------------------------------------
9 SOLE DISPOSITIVE POWER
100,000
-----------------------------------------------
10 SHARED DISPOSITIVE POWER
0
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
100,000
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES |_|
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.3%
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14 TYPE OF REPORTING PERSON
IN
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Introduction
This Amendment No. 9 to Schedule 13D ("Amendment No. 9") amends the
Schedule 13D originally filed with the Securities and Exchange Commission (the
"Original Schedule 13D"), as amended, by William F. Whitman, Jr. ("Mr.
Whitman"), Barbara K. Whitman ("Mrs. Whitman"), Mrs. Whitman as sole trustee
("Family Trustee") under the trust agreements dated December 21, 2003 for the
benefit of Laura B. Whitman, William F. Whitman, III and Barbara K. Whitman
(the "Family Trusts") and Mr. Whitman and Mrs. Whitman as trustees ("CRT
Trustees") under the William F. Whitman, Jr. and Barbara K. Whitman Charitable
Remainder Trust Agreement, dated August 3, 2004 (the "CRT," and together with
Mr. Whitman, Mrs. Whitman, Family Trustee, the Family Trusts and the CRT
Trustees, the "Reporting Persons").
Item 4. Purpose of Transaction.
The second paragraph of Item 4 of the Original Schedule 13D, as
amended, is hereby amended and restated in its entirety as follows:
On December 23, 2004, the Reporting Persons entered into a Stock
Repurchase Agreement (the "Stock Repurchase Agreement") by and among the
Company, the Reporting Persons and the other stockholders party thereto. The
Stock Repurchase Agreement contains provisions regarding, among other things,
the acquisition, registration, disposition and voting of shares of common
stock, par value $0.01 per share (the "Common Stock"), of the Company as well
as certain provisions regarding the composition of the Company's board of
directors. In connection with the Stock Repurchase Agreement, Mr. Whitman,
Laura B. Whitman and W. Fifield Whitman III resigned from their positions as
members of the Board. The Reporting Persons intend to sell some or all of
their remaining shares of Common Stock in an underwritten public offering
registered under the Securities Act of 1933, as amended (the "Securities
Act"). Except as disclosed in this Item 4, the Reporting Persons do not have
any current plans or proposals which relate to or would result in any of the
events described in clauses (a) through (j) of the instructions to Item 4 of
Schedule 13D of the Act.
Item 5. Interest in Securities of the Issuer.
Item 5 of the Original Schedule 13D, as amended, is hereby amended
and restated in its entirety as follows:
(a) and (b) As of the date hereof, Mr. Whitman and Mrs. Whitman, as
individuals, do not beneficially own any shares of Common Stock and do not
have sole or shared power to vote or direct the vote or to dispose or direct
the disposition of any shares of Common Stock.
Family Trustee, in her capacity as trustee of the Family Trusts,
beneficially owns and has the sole power to vote or direct the vote or to
dispose or direct the disposition of 718,500 shares of Common Stock held by
the Family Trusts, which represents approximately 9.7% of the outstanding
shares of Common Stock. Family Trustee, as trustee of the Family Trusts, does
not beneficially own or have shared power to vote or direct the vote or to
dispose or direct the disposition of any other shares of Common Stock.
The CRT Trustees, in their capacity as trustees of the CRT,
beneficially own and have the sole power to vote or direct the vote or to
dispose or direct the disposition of 100,000 shares of Common Stock held by
the CRT, which represents approximately 1.3% of the outstanding shares of
Common Stock. The CRT Trustees, as trustees of the CRT, do not beneficially
own or have shared power to vote or direct the vote or to dispose or direct
the disposition of any other shares of Common Stock.
(c) On December 23, 2004, Mr. Whitman and Mrs. Whitman sold all of
1,738,974 shares of Common Stock held for their benefit under the Whitman
Irrevocable Trust and Mr. Whitman sold all of his 250,000 options to purchase
Common Stock, which constituted each of Mr. Whitman's and Mrs. Whitman's
entire beneficial ownership interest in the Company as individuals, to the
Company for $42.00 per share of Common Stock and $42.00 less the exercise
price for each option to purchase Common Stock. Mr. Whitman as President of
the W. F. Whitman Family Foundation, Inc. (the "Foundation"), sold all of the
Foundation's 60,000 shares of Common Stock, which constituted the Foundation's
entire beneficial interest in the Company, to the Company for $42.00 per
share. Except as disclosed in this Schedule 13D, the Reporting Persons have
not effected any transactions with respect to the Common Stock within the
60-day period prior to the filing of this Schedule 13D.
(d) The Family Trusts have the right to receive any dividends from,
or proceeds from, the sale of shares of Common Stock held by them.
(e) N/A.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer.
Item 6 of the Original Schedule 13D, as amended, is hereby amended
and restated in its entirety as follows:
The information set forth in Item 4 of this Amendment No. 9 is hereby
incorporated by reference.
Pursuant to the terms of the Stock Repurchase Agreement, the Company
has agreed to file a registration statement under the Securities Act with
respect to the sale of some or all of the shares of Common Stock held by the
Reporting Persons in an underwritten public offering. In the event that the
Reporting Persons decide not to proceed with this underwritten public
offering, the Reporting Persons have the right, subject to certain conditions,
to require the Company to register their shares of Common Stock for sale in
the public markets on up to two additional occasions.
The Reporting Persons have agreed to certain restrictions on their
ability to sell their shares of Common Stock in private transactions and to
make additional purchases of Common Stock. They have also agreed to certain
restrictions with respect to their ability to vote their shares of Common
Stock.
References to, and descriptions of, the Stock Repurchase Agreement in
this Item 6 are qualified in their entirety by reference to the copy of the
Stock Repurchase Agreement which is filed as Exhibit 1 to this Amendment No. 9
and which are incorporated by reference in this Item 6 in its entirety where
such references and descriptions appear.
Item 7. Material to be Filed as Exhibits.
Exhibit No. Description
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1 Stock Repurchase Agreement, dated as of December 23, 2004,
by and among The Middleby Corporation, William F. Whitman,
Jr., Barbara K. Whitman , W. Fifield Whitman III, Laura B.
Whitman, the Barbara K. Whitman Irrevocable Trust, the
William F. Whitman, Jr. Irrevocable Trust, the Trust dated
December 21, 2003 F/B/O Barbara K. Whitman, the Trust
dated December 21, 2003 F/B/O Laura B. Whitman, the Trust
dated December 21, 2003 F/B/O William Fifield Whitman III,
the William F. Whitman, Jr. and Barbara K. Whitman
Charitable Remainder Trust and the W. F. Whitman Family
Foundation, incorporated by reference to Exhibit 10.1 to
the Current Report on Form 8-K of The Middleby Corporation
filed on December 28, 2004
2 Power of Attorney, dated January 5, 2005, for William F.
Whitman, Jr.
3 Power of Attorney, dated January 5, 2005, for Barbara K.
Whitman
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief,
I certify that the information set forth in this statement is true, complete
and correct.
Dated: January 14, 2005
/s/ Martin M. Lindsay
---------------------------------
Martin M. Lindsay, by Power of Attorney
for William F. Whitman, Jr.,
individually and as joint trustee
under the William F. Whitman, Jr. and
Barbara K. Whitman Charitable Reminder
Trust Agreement, dated August 3, 2003
/s/ Martin M. Lindsay
------------------------------------
Martin M. Lindsay, by Power of Attorney
for Barbara K. Whitman, individually,
as sole trustee under Trust Agreements,
dated December 21, 2003, for the
benefit of Laura B. Whitman, William
F. Whitman III and Barbara K. Whitman
and as joint trustee under the William
F. Whitman, Jr. and Barbara K. Whitman
Charitable Reminder Trust Agreement,
dated August 3, 2003
Exhibit Index
Exhibit No. Description
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1 Stock Repurchase Agreement, dated as of December 23, 2004,
by and among The Middleby Corporation, William F. Whitman,
Jr., Barbara K. Whitman , W. Fifield Whitman III, Laura B.
Whitman, the Barbara K. Whitman Irrevocable Trust, the
William F. Whitman, Jr. Irrevocable Trust, the Trust dated
December 21, 2003 F/B/O Barbara K. Whitman, the Trust
dated December 21, 2003 F/B/O Laura B. Whitman, the Trust
dated December 21, 2003 F/B/O William Fifield Whitman III,
the William F. Whitman, Jr. and Barbara K. Whitman
Charitable Remainder Trust and the W. F. Whitman Family
Foundation, incorporated by reference to Exhibit 10.1 to
the Current Report on Form 8-K of The Middleby Corporation
filed on December 28, 2004
2 Power of Attorney, dated January 5, 2005, for William F.
Whitman, Jr.
3 Power of Attorney, dated January 5, 2005, for Barbara K.
Whitman
Exhibit 2
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints Martin M. Lindsay as
the undersigned's true and lawful attorney-in-fact, with full power of
substitution, to sign any and all instruments, certificates and documents that
may be necessary, desirable or appropriate to be executed on behalf of the
undersigned, pursuant to section 13 and 16 of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and any and all regulations promulgated
thereunder, and Rules 144, 144A and 145 under the Securities Act of 1933, as
amended (the "Securities Act"), and to file the same, with all exhibits
thereto, and any other documents in connection therewith, with the Securities
and Exchange Commission, and with any other entity when and if such is
mandated by the Exchange Act or by the Securities Act, granting unto said
attorney-in-fact full power and authority to do and perform each and every act
and thing necessary, desirable or appropriate, fully to all intents and
purposes as he or she might or could do in person, thereby ratifying and
confirming all that said attorney-in-fact, or his or her substitutes may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, this Power of Attorney has been signed as of the
5th day of January, 2005.
Signature: /s/ William F. Whitman, Jr.
----------------------------
Print Name: William F. Whitman, Jr.
Exhibit 3
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints Martin M. Lindsay as
the undersigned's true and lawful attorney-in-fact, with full power of
substitution, to sign any and all instruments, certificates and documents that
may be necessary, desirable or appropriate to be executed on behalf of the
undersigned, pursuant to section 13 and 16 of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and any and all regulations promulgated
thereunder, and Rules 144, 144A and 145 under the Securities Act of 1933, as
amended (the "Securities Act"), and to file the same, with all exhibits
thereto, and any other documents in connection therewith, with the Securities
and Exchange Commission, and with any other entity when and if such is
mandated by the Exchange Act or by the Securities Act, granting unto said
attorney-in-fact full power and authority to do and perform each and every act
and thing necessary, desirable or appropriate, fully to all intents and
purposes as he or she might or could do in person, thereby ratifying and
confirming all that said attorney-in-fact, or his or her substitutes may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, this Power of Attorney has been signed as of the
5th day of January, 2005.
Signature: /s/ Barbara Whitman
--------------------
Print Name: Barbara Whitman