Business-Combination Transaction Communication — Rule 425 Filing Table of Contents
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1: 425 Form 8-K HTML 41K
2: EX-2.1 Plan of Acquisition, Reorganization, Arrangement, HTML 407K
Liquidation or Succession
3: EX-10.1 Material Contract HTML 63K
4: EX-99.1 Miscellaneous Exhibit HTML 33K
This
STOCKHOLDER VOTING AND SUPPORT AGREEMENT, dated as of August 12, 2008 (this
“Agreement”),
is by and among The Middleby Corporation, a Delaware corporation (the “Parent”), and the
holder of capital stock of TurboChef Technologies, Inc., a Delaware corporation
(the “Company”)
set forth on the signature page hereto (the “Stockholder”).
RECITALS
WHEREAS,
the board of directors of the Company has determined it is in the best interests
of the stockholders of the Company for the Company to enter into an Agreement
and Plan of Merger, by and among Parent, the Company and Chef Acquisition Corp.,
a Delaware corporation and a wholly-owned subsidiary of Parent (“Merger Sub”), dated
as of August 12, 2008 (as in effect on the date hereof, the “Merger Agreement”),
pursuant to which the Company will merge with and into Merger Sub (the “Merger”), with Merger
Sub surviving as a wholly-owned subsidiary of Parent;
WHEREAS,
the Stockholder holds of record and Beneficially Owns the shares of Common Stock
set forth opposite such Stockholder’s name on Schedule A hereto
(such shares, together with any shares of Common Stock that are hereafter issued
to or otherwise acquired or owned by such Stockholder prior to the termination
of this Agreement being referred to herein as the “Subject
Shares”);
WHEREAS,
as a condition to entering into the Merger Agreement, Parent desires that the
Stockholder enter, and the Stockholder is willing to enter, into this Agreement;
and
WHEREAS,
capitalized terms used but not otherwise defined herein shall have the
respective meanings attributed to them in the Merger Agreement.
NOW,
THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Parent and the Stockholder, intending to be legally bound, hereby agree as
follows:
(1) Certain Definitions.
In addition to the terms defined elsewhere herein, capitalized terms used and
not defined herein have the respective meanings ascribed to them in the Merger
Agreement. In addition, for purposes of this Agreement:
(a)
“Beneficially
Own” or “Beneficial Ownership”
with respect to any securities means having “beneficial ownership” of such
securities as determined pursuant to Rule 13d-3 under the Securities Exchange
Act of 1934, as amended (the “Exchange Act”),
including pursuant to any agreement, arrangement or understanding, whether or
not in writing.
(b) “Common Stock” means
(i) shares of common stock, par value $0.01 per share, of the Company and (ii)
any change in such shares by reason of any stock dividend, split-up,
recapitalization, combination, conversion of securities, exchange of shares or
the like.
(2) Voting of Subject
Shares.
(a) The
Stockholder hereby agrees that, until the termination of this Agreement, at any
duly called meeting of the stockholders of the Company (or any adjournment or
postponement thereof), and in any action by written consent of the stockholders
of the Company, such Stockholder shall, vote or cause to be voted the Subject
Shares:
(i)
in favor of (A) adopting the Merger Agreement and thereby approving the Merger
and any other matters contemplated by the Merger Agreement that are necessary
for consummation of the Merger and (B) approval of any proposal to adjourn or
postpone the meeting to a later date if there are not sufficient votes for the
adoption of the Merger Agreement on the date on which such meeting is
held;
(ii) against
(A) any agreement or arrangement related to or in furtherance of any Acquisition
Proposal (other than the Merger) or (B) any corporate action the consummation of
which would reasonably be expected to impede, interfere with, prevent or
materially delay the consummation of the transactions contemplated by the Merger
Agreement;
and in connection therewith to execute
any documents reasonably requested by Parentthat are necessary or appropriate in
order to effectuate the foregoing.
(b) In
order to implement the provision of Section 2(a), the
Stockholder covenants and agrees that it will, upon the written request of
Parent, not later than three (3) Business Days prior to the Company Stockholder
Meeting or, if applicable, the date when written consents must be submitted to
the Company, deliver to the Company a duly completed and executed proxy in favor
of adopting the Merger Agreement and thereby approving the Merger, and any other
matters which are necessary for consummation of the Merger.
(3) Treatment Under Merger
Agreement. The Stockholder acknowledges and agrees to the treatment,
payments, terms and conditions applicable to the Common Stock under the Merger
Agreement, including, without limitation, Sections 2.1 through
2.3 of the
Merger Agreement.
(4) Grant of Proxy; Appointment
of Proxy.
(a) The
Stockholder, revoking (or causing to be revoked) any proxies that it has
heretofore granted, hereby irrevocably grants to, and appoints, the Parent as
proxy and attorney-in-fact (with full power of substitution), for and in the
name, place and stead of the Stockholder, to vote the Subject Shares in
accordance with the provisions of Section 2 hereof,
whether in person at a Company Stockholder Meeting, by proxy, or by written
Consent, in the event the Stockholder has not delivered a proxy or a written
consent in respect of all the Subject Shares in accordance with Section
2.
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(b) The
Stockholder understands and acknowledges that Parent is entering into the Merger
Agreement in reliance upon the proxy set forth in Subsection 4(a)
hereof. The Stockholder hereby affirms (i) that the proxy set forth in Subsection 4(a)
hereof is given to secure the performance of the duties of the Stockholder under
Section 2 of
this Agreement and (ii) that the proxy is irrevocable during the term of this
Agreement and is coupled with an interest and may under no circumstances be
revoked during the term of this Agreement; provided that such proxy, as well as
any proxy delivered as set forth in Subsection 2(b), will
be automatically revoked upon termination of the Merger Agreement, as set forth
in Section
10. Such irrevocable proxy is executed and intended to
be irrevocable in accordance with the provisions of Section 212 of the
DGCL.
(5) No Ownership
Interest. Nothing contained in this Agreement shall be deemed to vest in
Parent or any of its Affiliates any direct ownership or incidence of ownership
of or with respect to the shares of Common Stock held of record or Beneficially
Owned by Stockholder. All rights, ownership and economic benefits of and
relating to the shares of Common Stock shall remain vested in and belong to the
Stockholder, and Parent shall not acquire by this Agreement any authority to
manage, direct, restrict, regulate, govern, or administer any of the policies or
operations of the Company or exercise any power or authority to direct the
Stockholder in the voting of any of the shares of Common Stock, except as
otherwise provided herein, or in the performance of the Stockholder’s duties or
responsibilities with respect to the Company.
(6) Representations and
Warranties of the Stockholder and Parent.
(a) The
Stockholder hereby represents and warrants to, and agrees with, Parent as
follows:
(i) The shares of Common Stock set
forth below the Stockholder’s name on the signature page hereof are owned by the
Stockholder, free and clear of any Encumbrance that would materially and
adversely affect Stockholder’s ability to exercise his voting power as provided
in Section 2,
grant the proxy pursuant to Section 4, or
otherwise comply with the terms hereof.
(ii)
Other than as provided in the Merger Agreement, (A) there are no options,
warrants, rights, subscriptions, convertible or exchangeable securities or other
agreements or commitments obligating the Stockholder to transfer, sell,
purchase, return or redeem, or cause the issuance, transfer, sale, return or
redemption of the shares of Common Stock set forth below the Stockholder’s name
on the signature page hereof and (B) there are no voting trusts, proxies,
registration rights agreements or other agreements to which the Stockholder is a
party with respect to the voting or transfer of capital stock of the
Company.
(iii) The
Stockholder has all requisite power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby and has duly
and validly executed and delivered this Agreement. This Agreement
constitutes the legal, valid and binding obligation of the Stockholder,
enforceable against the Stockholder in accordance with its terms (assuming the
due authorization, execution and delivery of this Agreement by Parent), except
as such enforceability may be limited by applicable bankruptcy, insolvency,
moratorium, reorganization or similar laws in effect which affect the
enforcement of creditors’ rights generally and by equitable
principles.
3
(iv) The
execution, delivery and performance by the Stockholder of this Agreement and the
consummation of the transactions contemplated hereby do not and will not (i)
violate any organizational documents of the Stockholder (as applicable), (ii)
violate any Law applicable to the Stockholder, (iii) require any consent or
other action by any Person under, constitute a default under, or give rise to
any right of termination, cancellation or acceleration or to a loss of any
benefit to which the Stockholder is entitled under any Law or any provision of
any agreement or other instrument binding on the Stockholder or (iv) result in
the imposition of any Encumbrance on any asset of the Stockholder, except in the
case of each of clauses (ii) through (iv) as would not materially and adversely
affect the Stockholder’s ability to perform its obligations
hereunder.
(v) There
is no action, suit, investigation or proceeding pending against, or, to the
knowledge of the Stockholder, threatened against or affecting, the Stockholder
or any of its properties or assets (including the Stockholder’s Subject Shares)
that impairs or restricts in any material respect or prohibits (or, if
successful, would impair, restrict or prohibit) the ability of the Stockholder
to perform its obligations hereunder or to consummate the transactions
contemplated hereby on a timely basis.
(vi) The
Stockholder has had the opportunity to review this Agreement and the Merger
Agreement with counsel of its own choosing. The Stockholder
understands and acknowledges that Parent is entering into the Merger Agreement
in reliance upon the Stockholder’s execution, delivery and performance of this
Agreement.
(b) Parent
hereby represents and warrants to, and agrees with, the Stockholder that Parent
has all requisite power and authority to execute and deliver this Agreement and
to consummate the transactions contemplated hereby and has duly and validly
executed and delivered this Agreement. This Agreement constitutes the legal,
valid and binding obligation of Parent, enforceable against Parent in accordance
with its terms (assuming the due authorization, execution and delivery of this
Agreement by the Stockholder), except as such enforceability may be limited by
applicable bankruptcy, insolvency, moratorium, reorganization or similar laws in
effect which affect the enforcement of creditors’ rights generally and by
equitable principles.
4
(7) Transfers. Other
than as contemplated by this Agreement, and until the termination of this
Agreement, the Stockholder shall not (A) sell, transfer, pledge, assign or
otherwise dispose of (including by gift) (collectively, “Transfer”), or enter
into any contract, option or other arrangement (including any profit sharing
arrangement) with respect to the Transfer of, any Subject Shares to any Person
other than pursuant to the Merger, (B) enter into any voting arrangement,
whether by proxy, voting agreement or otherwise, with respect to any Subject
Shares or (C) commit or agree to take any of the foregoing actions; provided
that nothing in this Agreement shall prohibit the Stockholder from Transferring
any of the Subject Shares to any Person that agrees in a writing reasonably
satisfactory to Parent to be bound by the terms of this Agreement.
(8) Fiduciary
Responsibilities. Notwithstanding any other provision of this
Agreement to the contrary, nothing contained in this Agreement shall limit the
rights and obligations of the Stockholder in his capacity as a director or
officer of the Company from taking any action solely in his capacity as a
director or officer of the Company, and no action taken by the Stockholder in
any such capacity shall be deemed to constitute a breach of any provision of
this Agreement.
(9) Street Name Subject
Shares. The Stockholder shall deliver a letter to each
financial intermediary or other Person through which the Stockholder holds
Subject Shares that informs such Person of the Stockholder’s obligations under
this Agreement and that informs such Person that such Person may not act in
disregard of such obligations without the prior written consent of
Parent.
(10) Termination. Except
as otherwise provided herein, this Agreement and the covenants and agreements
contained herein (including, without limitation, the appointments pursuant to
Section 2(b)
and Section
4) shall terminate, and no party shall have any rights or obligations
hereunder, upon the earlier of (i) the termination of the Merger Agreement
pursuant to Article VIII thereof, (ii) the Effective Time, (iii) the date of any
change or amendment to the Merger Agreement (including a waiver or forbearance
by the parties to the Merger Agreement that has the effect of a change or
amendment) that adversely affects the Stockholder in any material respect; (iv)
the date of any change or amendment of the Merger Agreement that (including a
waiver or forbearance by the parties to the Merger Agreement that has the effect
of a change or amendment) that results in a decrease in the Merger Consideration
or that results in a change in the form of consideration to be paid by the
Parent other than as contemplated by the terms of the Merger Agreement; and (iv)
the written agreement of the parties to terminate this
Agreement. Notwithstanding the foregoing, nothing set forth in this
Section 10 or
elsewhere in this Agreement shall relieve either party hereto from liability, or
otherwise limit the liability of either party hereto, for any breach of this
Agreement.
(11) Waiver of Appraisal
Rights. The
Stockholder hereby waives and agrees not to exercise any appraisal rights the
Stockholder may have pursuant to the DGCL relating to the Merger and the Merger
Agreement.
(12) Miscellaneous.
5
(a) Amendment. This Agreement may
not be amended, changed, supplemented, waived or otherwise modified or
terminated, except upon the execution and delivery of a written agreement
executed by the parties hereto affected by such amendment.
(b) Notices. Any notice, request,
instruction or other document to be given hereunder by a party hereto shall be
in writing and shall be deemed to have been given, (i) on the date when received
in hand if given in person or by courier or a courier service, (ii) on the date
of transmission if sent by facsimile with confirmed receipt, or if transmitted
after 5 p.m. local time of the recipient or on a non-Business Day, then on the
next Business Day, or (iii) on the next Business Day if sent by a nationally
recognized overnight delivery service, such as Federal Express, charges prepaid:
(A) if to the Stockholder, to the address set forth for the Stockholder on the
signature page to this Agreement, and (B) if to the Company or Parent, in
accordance with the provisions of the Merger Agreement, or to such other
individual or address as a party hereto may designate for itself by notice given
as herein provided.
(c) Waivers. The failure of a
party hereto at any time or times to require performance of any provision hereof
shall in no manner affect its right at a later time to enforce the same. No
waiver by a party of any condition or of any breach of any term, covenant,
representation or warranty contained in this Agreement shall be effective unless
in writing, and no waiver in any one or more instances shall be deemed to be a
further or continuing waiver of any such condition or breach in other instances
or a waiver of any other condition or breach of any other term, covenant,
representation or warranty.
(d) Counterparts. This Agreement
may be executed in counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument. A facsimile
transmission of an executed counterpart signature page shall be deemed an
original.
(e) Interpretation. The headings
preceding the text of Sections included in this Agreement are for convenience
only and shall not be deemed part of this Agreement or be given any effect in
interpreting this Agreement. The use of the masculine, feminine or
neuter gender herein shall not limit any provision of this Agreement. The use of
the terms “including” or “include” shall in all cases herein mean “including,
without limitation” or “include, without limitation,”
respectively. Underscored references to Sections shall refer to those
portions of this Agreement. Time is of the essence of each and every covenant,
agreement and obligation in this Agreement.
(f) APPLICABLE
LAW. THIS AGREEMENT SHALL IN ALL RESPECTS BE GOVERNED BY AND
INTERPRETED, CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAW OF THE STATE OF
DELAWARE WITHOUT REGARD TO ITS RULES OF CONFLICTS OF LAW.
(g) Binding Agreement. This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. No party may assign its rights or
obligations under this Agreement without the prior written consent of the other
parties hereto.
6
(h) Third Party Beneficiaries.
This Agreement is solely for the benefit of the parties hereto and no provision
of this Agreement shall be deemed to confer upon third parties any remedy,
claim, liability, reimbursement, cause of action or other right.
(i) Enforcement. The parties
hereto agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. Therefore, Parent shall,
in addition to any other claims or actions for damages or other remedies, be
entitled to seek specific performance, injunction or other equitable remedies in
connection with any breach or violation by Stockholder of this
Agreement.
(j) Entire Understanding. This
Agreement sets forth the entire agreement and understanding of the parties
hereto and supersedes any and all prior agreements, arrangements and
understandings among the parties.
(k) JURISDICTION OF DISPUTES;
WAIVER OF JURY TRIAL. IN THE EVENT ANY PARTY TO THIS AGREEMENT COMMENCES
ANY LITIGATION, PROCEEDING OR OTHER LEGAL ACTION IN CONNECTION WITH OR RELATING
TO THIS AGREEMENT, ANY RELATED AGREEMENT OR ANY MATTERS DESCRIBED OR
CONTEMPLATED HEREIN OR THEREIN, WITH RESPECT TO ANY OF THE MATTERS DESCRIBED OR
CONTEMPLATED HEREIN OR THEREIN, THE PARTIES TO THIS AGREEMENT HEREBY
(A) AGREE UNDER ALL CIRCUMSTANCES ABSOLUTELY AND IRREVOCABLY TO INSTITUTE
ANY LITIGATION, PROCEEDING OR OTHER LEGAL ACTION IN THE COURT OF CHANCERY OF THE
STATE OF DELAWARE, OR, IN THE EVENT (BUT ONLY IN THE EVENT) THAT SUCH COURT DOES
NOT HAVE SUBJECT MATTER JURISDICTION OVER SUCH ACTION OR PROCEEDING, IN THE
FEDERAL COURTS OF THE UNITED STATES OF AMERICA LOCATED IN THE STATE OF DELAWARE;
(B) AGREE THAT IN THE EVENT OF ANY SUCH LITIGATION, PROCEEDING OR ACTION,
SUCH PARTIES WILL CONSENT AND SUBMIT TO PERSONAL JURISDICTION IN ANY SUCH COURT
DESCRIBED IN CLAUSE (A) OF THIS SECTION AND TO SERVICE OF PROCESS UPON THEM IN
ACCORDANCE WITH THE RULES AND STATUTES GOVERNING SERVICE OF PROCESS;
(C) AGREE TO WAIVE TO THE FULL EXTENT PERMITTED BY LAW ANY OBJECTION THAT
THEY MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH LITIGATION, PROCEEDING
OR ACTION IN ANY SUCH COURT OR THAT ANY SUCH LITIGATION, PROCEEDING OR ACTION
WAS BROUGHT IN AN INCONVENIENT FORUM; AND (D) AGREE THAT MAILING OF PROCESS
OR OTHER PAPERS IN CONNECTION WITH ANY SUCH ACTION OR PROCEEDING IN THE MANNER
PROVIDED IN SECTION 12(b) OR IN SUCH OTHER
MANNER AS MAY BE PERMITTED BY LAW SHALL BE VALID AND SUFFICIENT SERVICE THEREOF.
EACH PARTY HERETO WAIVES THE RIGHT TO A TRIAL BY JURY IN ANY DISPUTE IN
CONNECTION WITH OR RELATING TO THIS AGREEMENT OR ANY MATTERS DESCRIBED OR
CONTEMPLATED HEREIN, AND AGREE TO TAKE ANY AND ALL ACTION NECESSARY OR
APPROPRIATE TO EFFECT SUCH WAIVER.
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(l) Severability. Any term or
provision of this Agreement that is invalid or unenforceable in any situation in
any jurisdiction shall not affect the validity of enforceability of the
remaining terms and provisions hereof or the validity or enforceability of the
offending term or provision in any other situation or in any other situation or
in any other jurisdiction. If the final judgment of a court of competent
jurisdiction declares that any term or provision hereof is invalid or
unenforceable, the parties agree that the court making the determination of
invalidity or unenforceability shall have the power to reduce the scope,
duration, or area of the term or provision, to delete specific words or phrases,
or to replace any invalid or unenforceable term or provision with a term or
provision that is valid and enforceable and that comes closest to expressing the
intention of the invalid or unenforceable term or provision, and this Agreement
shall be enforceable as so modified after the expiration of the time within
which the judgment may be appealed.
(m) Construction. The language
used in this Agreement will be deemed to be the language chosen by the parties
to express their mutual intent, and no rule of strict construction shall be
applied against any party. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires
otherwise.
[Remainder
of page intentionally left blank]
8
IN
WITNESS WHEREOF, Parent and the Stockholder have caused this Agreement to be
duly executed as of the day and year first above written.
THE
MIDDLEBY CORPORATION
By:
/s/ Timothy
J. FitzGerald
Name:
Timothy
J. FitzGerald
Title:
Vice
President and Chief Financial Officer
[Parent
Signature Page to Stockholder Voting and Support Agreement]
9
STOCKHOLDERS
/s/ Richard
E. Perlman
Richard
E. Perlman
OvenWorks
LLLP
By:
/s/
Richard E. Perlman
Richard
E. Perlman, Manager
/s/
James K. Price
James
K. Price
/s/
J. Thomas Presby
J.
Thomas Presby
/s/
William A. Shutzer
William
A. Shutzer
/s/
Raymond H. Welsh
Raymond
H. Welsh
/s/
Anthony Stuart Jolliffe
Sir
Anthony Stuart Jolliffe
/s/
James W. DeYoung
James
W. DeYoung
/s/
Paul P. Lehr
Paul
P. Lehr
/s/
J. Miguel Fernandez De Castro
J.
Miguel Fernandez De Castro
/s/
Stephen J. Beshara
Stephen
J. Beshara
/s/
Dennis J. Stockwell
Dennis
J. Stockwell
10
SCHEDULE
A
Stockholder
Shares
Directly
Owned*
Shares
Not Directly Owned
but
for which Stockholder has
sole
voting power
Voting
Percentage
**
Richard
E. Perlman
1,688,187
432,185
(through OvenWorks
LLLP);
32,693 (through Oven
Management,
Inc.)
7.08%
James
K. Price
1,720,879
5.66%
J.
Thomas Presby
118,928
.39%
William
A. Shutzer
1,748,484
5.75%
Raymond
H. Welsh
40,431
.13%
Sir
Anthony Jolliffe
17,630
.06%
James
W. DeYoung
2,500
291,840
(through a family
limited
partnership
.98%
Paul
P. Lehr
0
0%
J.
Miguel Fernandez de Castro
31,583
.10%
Stephen
J. Beshara
32,984
.11%
Dennis
J. Stockwell
17,435
.06%
0
Total
5,419,041
756,718
20.32%
* Does
not include shares underlying options or restricted stock units which have not
been issued as of the date of this Agreement
** Based
on 30,390,471 shares outstanding as of the date of this Agreement
11
Dates Referenced Herein and Documents Incorporated by Reference
