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 .
(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.
(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