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STOCKHOLDER VOTING AND SUPPORT AGREEMENT

Voting Agreement

STOCKHOLDER VOTING AND SUPPORT AGREEMENT | Document Parties: TURBOCHEF TECHNOLOGIES INC | Chef Acquisition Corp | Middleby Corporation You are currently viewing:
This Voting Agreement involves

TURBOCHEF TECHNOLOGIES INC | Chef Acquisition Corp | Middleby Corporation

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Title: STOCKHOLDER VOTING AND SUPPORT AGREEMENT
Governing Law: Delaware     Date: 8/13/2008
Industry: Appliance and Tool     Sector: Consumer Cyclical

STOCKHOLDER VOTING AND SUPPORT AGREEMENT, Parties: turbochef technologies inc , chef acquisition corp , middleby corporation
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Exhibit 10.1

 

STOCKHOLDER VOTING AND SUPPORT AGREEMENT

 

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.

 

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(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 provisi


 
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