UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the
Securities
Exchange Act of 1934
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Date
of Report (Date of earliest event reported)
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August
12, 2008
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TURBOCHEF
TECHNOLOGIES, INC.
(Exact
Name of Registrant as Specified in Charter)
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(State
or Other Jurisdiction
of
Incorporation)
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(Commission
File
Number)
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(IRS
Employer
Identification
No.)
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Six
Concourse Parkway, Suite 1900, Atlanta, Georgia
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(Address
of Principal Executive Offices)
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(Zip
Code)
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Registrant’s
telephone number, including area code:
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(678)
987-1700
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(Former
Name or Former Address, if Changed Since Last Report)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General
Instruction A.2. below):
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ý
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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¨
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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¨
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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¨
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Item
1.01.
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Entry
Into a Material Definitive
Agreement.
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On August
12, 2008, TurboChef Technologies, Inc., a Delaware corporation (“TurboChef”), entered
into an Agreement and Plan of Merger (the “Merger Agreement”)
with The Middleby Corporation, a Delaware corporation (“Middleby”) and its
wholly owned subsidiary, Chef Acquisition Corp., a Delaware corporation (“Merger Sub” and,
together with Middleby, “Purchasers”). The
Merger Agreement provides that, upon the terms and conditions set forth in the
Merger Agreement, TurboChef will merge with and into Merger Sub (the “Merger”), and Merger
Sub will continue as the surviving corporation in the Merger as a wholly owned
subsidiary of Middleby. The Merger, the Merger Agreement and the
transactions contemplated thereby have been unanimously approved by the Boards
of Directors of TurboChef and Middleby.
At the
effective time of the Merger (the “Effective Time”),
each issued and outstanding share of TurboChef’s common stock, par value $0.01
per share (“TurboChef
Common Stock”), will be automatically converted into the right to receive
0.0486 shares (the “Exchange Ratio”) of
the common stock of Middleby, $0.01 par value per share (“Middleby Common
Stock”) and $3.67 in cash (the “Cash Consideration”,
and together with Middleby Common Stock, the “Merger
Consideration”) for a total value of $6.47 based on Middleby’s closing
stock price of $57.60 on August 11, 2008, the last trading date prior to the
announcement of the contemplated transaction. No fractional shares of
Middleby Common Stock will be issued in connection with the Merger, and holders
of TurboChef Common Stock will be entitled to receive cash in lieu
thereof.
Each
vested and unvested option to purchase shares of TurboChef Common Stock under
TurboChef’s 2003 Stock Option Plan that is outstanding immediately prior to the
Effective Time (“TurboChef Option”)
will be canceled and converted into the right to receive for each share of
TurboChef Common Stock subject to such TurboChef Option, a cash payment equal to
the excess, if any, of the Cash Consideration plus the Exchange Ratio multiplied
by the average of the volume weighted averages of the trading prices of
Middleby’s Common Stock for each of the ten trading days ending on the third
trading day prior to the Closing minus the applicable exercise
price. Middleby will assume all outstanding options under TurboChef’s
former 1994 Stock Option Plan and TurboChef’s outstanding
warrants. Each vested and unvested restricted stock award evidencing
the right to receive shares of TurboChef Common Stock that is outstanding
immediately prior to the Effective Time (“Restricted Stock”)
and each outstanding preferred unit exchange right evidencing the right to
receive shares of TurboChef Common Stock that is outstanding immediately prior
to the Effective Time (“Exchange Right”) will
be automatically converted into the right to receive the Merger Consideration at
the Effective Time.
TurboChef
and Middleby have made customary representations, warranties and covenants in
the Merger Agreement. The Merger Agreement contains a “no shop” restriction on,
among other things, TurboChef’s ability to solicit third party proposals,
provide information, engage in discussions and negotiations with unsolicited
third parties or enter into any agreements with respect to another proposal. The
no shop provision is subject to a “fiduciary out” provision that generally
allows TurboChef to furnish nonpublic information to such third party and engage
in discussions and negotiations with such third party if TurboChef’s Board of
Directors determines in good faith, after consultation with its legal and
financial advisors that the proposal presented by such third party would
reasonably be likely to result in a Superior Proposal (as defined in the Merger
Agreement).
The
Merger Agreement is terminable as follows: (i) either TurboChef or Middleby may
terminate if (a) the Merger is not consummated by December 31, 2008, (b) the
Merger is permanently enjoined or otherwise prohibited or (c) the requisite
stockholder vote of TurboChef’s stockholders is not obtained; (ii) TurboChef may
terminate if (a) it enters into an agreement related to a Superior Proposal, (b)
TurboChef’s Board of Directors has made an Adverse Recommendation Change because
of an Intervening Event with respect to Middleby (each as defined in the Merger
Agreement) or (c) Middleby or Merger Sub breach any representations and
warranties or covenants (subject to an opportunity to cure), resulting in a
failure to satisfy the related closing condition; and (iii) Middleby may
terminate if (a) TurboChef’s Board of Directors has made an Adverse
Recommendation Change or fails to expressly reaffirm the Company Board
Recommendation after a request by Middleby to do so, (b) TurboChef breaches any
representations and warranties or covenants (subject to an opportunity to cure),
resulting in a failure to satisfy the related closing condition or (c) TurboChef
materially breaches its “no shop” restrictions. In connection with
certain terminations, TurboChef may be required to pay a termination fee to
Middleby equal to $7 million pursuant to the terms of the Merger
Agreement.
Consummation
of the Merger is subject to various conditions, including antitrust approvals,
effectiveness of the registration statement relating to the Middleby Common
Stock, the approval of TurboChef’s stockholders and other customary closing
conditions. The transaction is expected to close in the fourth quarter of
2008.
In
connection with the transactions contemplated by the Merger Agreement, certain
officers and directors of TurboChef, collectively representing approximately 20%
of TurboChef’s outstanding shares, entered into a voting and support agreement
(the “Voting
Agreement”) with Middleby. Pursuant to the Voting Agreement,
these stockholders have agreed, among other things, to vote their shares in
favor of the adoption and approval of the Merger Agreement and the
Merger. All obligations to vote in favor of the adoption and
approval of the Merger Agreement and the Merger will terminate if the Merger
Agreement is terminated. Approval by Middleby’s stockholders is not
required.
The
foregoing descriptions of the Merger Agreement and the Voting Agreement, which
are attached hereto as Exhibits 2.1 and 10.1, respectively, are qualified in
their entirety by reference to the text thereof and are incorporated herein by
reference.
On August
12, 2008, TurboChef issued a press release announcing its entry into the Merger
Agreement. A copy of the press release is furnished herein as Exhibit
99.1.
Cautionary
Statements
The
Merger Agreement has been included to provide investors with information
regarding its terms. Except for its status as a contractual document
that establishes and governs the legal relations among the parties thereto with
respect to the transactions described above, the Merger Agreement is not
intended to be a source of factual, business or operational information about
the parties.
The
Merger Agreement contains representations and warranties made by the parties to
each other regarding certain matters. The assertions embodied in the
representations and warranties are as of specific dates and are qualified by
information in confidential disclosure schedules that the parties have exchanged
in connection with signing the Merger Agreement. The disclosure
schedules contain information that modifies, qualifies and creates exceptions to
the representations and warranties. Moreover, certain representations and
warranties may not be complete or accurate as of a particular date because they
are subject to a contractual standard of materiality and/or were used for the
purpose of allocating risk among the parties rather than establishing certain
matters as facts. Information concerning the subject matter of the
representations and warranties may change after the date of the Merger
Agreement, which subsequent information may or may not be fully reflected in
TurboChef’s or Middleby’s public disclosures. Accordingly, you should
not rely on the representations and warranties as characterizations of the
actual state of facts at the time they were made or otherwise.
Additional
Information and Where You Can Find It
Middleby
intends to file with the Securities and Exchange Commission (“SEC”) a Registration
Statement on Form S-4, which will include a proxy statement/prospectus of
TurboChef and Middleby and other relevant materials in connection with the
proposed transaction. The proxy statement/prospectus will be mailed
to the stockholders of TurboChef. Investors and stockholders are
urged to read the proxy statement/prospectus and Registration Statement, and any
and all amendments or supplements thereto, when they become available because
they will contain important information about the proposed
transaction. Investors and stockholders may obtain a free copy of the
proxy statement/prospectus and Registration Statement (when available), as well
as other documents filed by TurboChef and Middleby with the SEC, at the SEC’s
website at www.sec.gov. Investors
and stockholders may also obtain a free copy of the proxy statement/prospectus
and Registration Statement and the respective filings with the SEC directly from
TurboChef by directing a request to James A. Cochran, Senior Vice President –
Investor Relations and Corporate Strategy, at (678) 987-1700.
Each of
the companies’ directors and executive officers and other persons may be deemed,
under SEC rules, to be participating in the solicitation of proxies in
connection with the proposed transaction. Information regarding
TurboChef’s directors and officers can be found in its proxy statement filed
with the SEC on June 20, 2008, and information regarding Middleby’s directors
and officers can be found in its proxy statement filed with the SEC on March 28,
2008, and amended on April 24, 2008. Additional information regarding
the participants in the proxy solicitation and a description of their direct and
indirect interest in the transaction, by security holdings or otherwise, will be
contained in the proxy statement/prospectus and other relevant materials to be
filed with the SEC.
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Item
9.01.
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Financial
Statements and Exhibits
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(d) Exhibits.
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Exhibit No.
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Description
of Exhibits
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2.1
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Agreement
and Plan of Merger, dated August 12, 2008, by and among TurboChef
Technologies, Inc., The Middleby Corporation and Chef Acquisition
Corp.
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10.1
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Stockholder
Voting and Support Agreement, dated April 30, 2008, by and among The
Middleby Corporation and the stockholders named
therein.
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99.1
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Press
release dated August 12, 2008.
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SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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TURBOCHEF
TECHNOLOGIES, INC. |
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(Registrant) |
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By: |
/s/ Dennis J.
Stockwell |
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Dennis J.
Stockwell |
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Vice President and General
Counsel |
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| Date: August
13, 2008 |
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Index
to Exhibits
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Exhibit No.
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Description
of Exhibits
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2.1
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Agreement
and Plan of Merger, dated August 12, 2008, by and among TurboChef
Technologies, Inc., The Middleby Corporation and Chef Acquisition
Corp.
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10.1
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Stockholder
Voting and Support Agreement, dated April 30, 2008, by and among The
Middleby Corporation and the stockholders named
therein.
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99.1
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Press
release dated August 12, 2008.
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