UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
_________________________
SCHEDULE
13D
Under
the Securities Exchange Act of 1934
_________________________
TurboChef
Technologies, Inc.
(Name
of Issuer)
COMMON
STOCK, Par Value $0.01 Per Share
(Title
of Class of Securities)
________________________
900006206
(CUSIP
Number)
________________________
Timothy
J. FitzGerald
Vice
President and
Chief
Financial Officer
The
Middleby Corporation
1400
Toastmaster Drive
Elgin,
Illinois 60120
Telephone:
(847) 741-3300
(Name,
Address and Telephone Number of Person
Authorized
to Receive Notices and Communications)
___________________________
Copy
to:
Shilpi
Gupta, Esq.
Skadden,
Arps, Slate, Meagher & Flom LLP
333
West Wacker Drive
Chicago,
Illinois 60606
Telephone:
(312) 407-0700
_________________________
August
12, 2008
(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 Sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check
the following box
o
.
NOTE:
Schedules filed in paper format shall include a signed original and five copies
of the schedule, including all exhibits. See Section 240.13d-7 for
other parties to whom copies are to be sent.
(continued on following pages)
(Page 1 of 7 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
(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).
Page 2 of 7
CUSIP
No. 900006206
(1)
|
NAME
OF REPORTING PERSONS
The
Middleby Corporation
|
(2)
|
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
(a) [ ]
(b) [
x
]
|
(3)
|
SEC
USE ONLY
|
(4)
|
SOURCE
OF FUNDS (See Instructions)
OO
|
(5)
|
CHECK
IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR
2(e) [ ]
|
(6)
|
CITIZENSHIP
OR PLACE OF ORGANIZATION
Delaware
|
NUMBER
OF
SHARES
BENEFICIALLY OWNED BY
EACH
REPORTING
PERSON
WITH
|
(7)
|
SOLE
VOTING POWER
0
|
(8)
|
SHARED
VOTING POWER
6,175,759
1
|
(9)
|
SOLE
DISPOSITIVE POWER
0
|
(10)
|
SHARED
DISPOSITIVE POWER
0
|
(11)
|
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,175,759
1
|
(12)
|
CHECK
IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See
Instructions)
o
|
(13)
|
PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
20.3%
2
|
(14)
|
TYPE
OF REPORTING PERSON (See Instructions)
CO
|
1
The Reporting Person disclaims beneficial ownership of such shares and this
statement shall not be construed as an admission that the Reporting Person is
the beneficial owner of any securities covered by this statement.
2
Based on 30,390,471 shares outstanding at August 12, 2008, as represented by the
Issuer in the Merger Agreement attached hereto as Exhibit 1.
Page 3 of 7
Item
1.
Security and
Issuer
The
class of equity security to which this statement on Schedule 13D relates is the
common stock, $0.01 par value per share (the “Common Stock”), of TurboChef
Technologies, Inc., a Delaware corporation (the “Issuer”). The principal
executive offices of the Issuer are located at Six Concourse Parkway, Suite
1900, Atlanta, Georgia 30328.
Item
2.
Identity and
Background
(a)
This statement on Schedule 13D is filed by The Middleby Corporation, a Delaware
corporation (“Middleby”).
(b)
The business address of Middleby is 1400 Toastmaster Drive, Elgin, Illinois
60120.
(c)
Middleby designs, manufactures, markets, distributes and services a broad line
of (i) cooking and warming equipment used in all types of commercial restaurants
and institutional kitchens and (ii) food preparation, cooking and packaging
equipment for food processing operations. The name, citizenship,
principal occupation and business address of each executive officer and director
of Middleby are set forth in Schedule I hereto, which is incorporated herein by
reference.
(d)
–(e) During the past five years, neither Middleby nor, to Middleby’s knowledge,
any person named in Schedule I hereto has been (i) convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors) or (ii) a
party to a civil proceeding of a judicial or administrative body of competent
jurisdiction as a result of which such person was or is subject to a judgment,
decree or final order enjoining future violations of, or prohibiting or
mandating activity subject to, federal or state securities laws or finding any
violation with respect to such laws.
(f)
Reference is made to Schedule I hereto, which is incorporated herein by
reference.
Item
3.
Source and Amount of Funds
or Other Consideration
In
connection with the Merger Agreement described in Item 4, as a condition to the
willingness of Middleby to enter into the Merger Agreement, and as an inducement
and in consideration therefor, Middleby entered into Stockholder Voting and
Support Agreements, each dated as of August 12, 2008 (the “Voting Agreements”),
with certain officers and directors of the Issuer (the
“Stockholders”). By reason of Middleby’s entering into the Voting
Agreements with the Stockholders, Middleby may be deemed to have acquired
beneficial ownership of the shares of Common Stock that are the subject of the
Voting Agreements. The transactions contemplated by the Voting
Agreements do not require the expenditure of any funds. Middleby
anticipates that it will fund the transactions contemplated by the Merger
Agreement by drawing on its existing credit facility. For a more
detailed description of the Voting Agreements, see Item 4 below, which
description is incorporated herein by reference in response to this Item
3.
Item
4.
Purpose of
Transaction
Merger
Agreement
(a)
–(b) On August 12, 2008, the Issuer, Middleby and Chef Acquisition Corp., a
Delaware corporation and wholly-owned subsidiary of Middleby (“Merger Sub”),
entered into an Agreement and Plan of Merger (the “Merger Agreement”). The
Merger Agreement provides that, upon the terms and subject to the conditions set
forth in the Merger Agreement, Issuer 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.
Upon
and subject to the effectiveness of the Merger, each issued and outstanding
share of Issuer’s common stock, other than shares owned by Middleby, Issuer or
their subsidiaries and any dissenting shares, will be automatically converted
into the right to receive a combination of (i) 0.0486 shares of Middleby common
stock and (ii) $3.67 in cash
Page 4 of 7
No
fractional shares of Middleby common stock will be issued in connection with the
Merger, and holders of Common Stock of the Issuer will be entitled to receive
cash in lieu thereof.
Middleby,
Merger Sub and Issuer have made customary representations, warranties and
covenants in the Merger Agreement. Consummation of the Merger is
subject to various closing conditions, including adoption of the Merger
Agreement by Issuer’s stockholders, effectiveness of the registration statement
relating to Middleby’s common stock, the expiration or termination of the
applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements Act
of 1976 and other customary closing conditions.
The
Merger Agreement contains certain termination rights for both Middleby and
Issuer, and further provides that, upon termination of the Merger Agreement
under specified circumstances, Issuer may be required to pay Middleby a
termination fee of $7 million.
The
foregoing summary of the Merger Agreement contained in this item 4 is qualified
in its entirety by reference to the full text of the merger Agreement, attached
as Exhibit 1 hereto and incorporated herein by reference.
Voting
Agreement
In
connection with the Merger Agreement, and as a condition and inducement to
Middleby’s willingness to enter into the Merger Agreement, (i) Richard E.
Perlman (individually, as well as through his interest in OvenWorks, LLLP), (ii)
James K. Price, (iii) J. Thomas Presby, (iv) William A. Shutzer, (v) Raymond H.
Welsh, (vi) Sir Anthony Jolliffe, (vii) James W. DeYoung, (viii) Paul P. Lehr,
(ix) J. Miguel Fernandez de Castro, (x) Stephen J. Beshara and (xi) Dennis J.
Stockwell (collectively, the “ Stockholders”) entered into Stockholder Voting
and Support Agreements with Middleby, each dated as of August 12, 2008
(each, a “Voting Agreement”) with respect to all shares of Common Stock of the
Issuer that the Stockholder holds of record and Beneficially Owns (as determined
pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as amended
(the "Exchange Act")) (collectively, the “Subject Shares”). The Subject Shares
include any shares of the Issuer as to which a Stockholder acquires beneficial
ownership after the execution of the Voting Agreement.
Pursuant
to the Voting Agreements, each of the Stockholders irrevocably granted to and
appointed Middleby 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 the Voting Agreement,
whether in person at a stockholder meeting of the Issuer, by proxy, or by
written consent. Each Stockholder affirmed that the proxy is coupled
with an interest and shall be irrevocable during the term of the Voting
Agreement.
Each
Stockholder agreed, until the termination of the Voting Agreement, at any duly
called meeting of the stockholders of the Issuer (or any adjournment or
postponement thereof), and in any action by written consent of the stockholders
of the Issuer, to 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; and (ii) against
(A) any agreement or arrangement related to or in furtherance of any Acquisition
Proposal, as defined in the Merger Agreement (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.
Each
Stockholder also agreed that he will 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 the Voting Agreement shall prohibit the Stockholder from
Transferring the Subject Shares to any person that agrees in a writing
reasonably satisfactory to Middleby to be bound by the terms of the Voting
Agreement.
The
Voting Agreements terminate 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 that adversely
affects the Stockholder in any material respect; (iv) the date of any change or
amendment of the Merger
Page 5 of 7
Agreement
that results in a decrease in the merger consideration or that results in a
change in the form of consideration to be paid by Middleby other than as
contemplated by the terms of the Merger Agreement; and (v) the written agreement
of the parties to terminate the Voting Agreement.
The
foregoing summary of the Voting Agreements contained in this Item 4 is qualified
in its entirety by reference to the form of Voting Agreement, attached as
Exhibit 2 hereto and incorporated herein by reference.
(c)
Not applicable.
(d)
Pursuant to the Merger Agreement, the directors of Merger Sub immediately prior
to the Effective Time (as defined in the Merger Agreement) will be the initial
directors of the surviving corporation. The officers of the Issuer
immediately prior to the Effective Time will be the initial officers of the
surviving corporation.
(e)
Not applicable.
(f)
Not applicable.
(g)
Pursuant to the Merger Agreement, as of the Effective Time, the certificate of
incorporation and the bylaws of Merger Sub shall be the certificate of
incorporation and the bylaws of the surviving corporation.
(h)
– (i) Following the consummation of the Merger, Middleby intends that the Common
Stock of Issuer will be delisted from the NASDAQ Global Market and will become
eligible for termination of registration pursuant to Section 12(g)(4) of the
Exchange Act.
(j)
Except as described in Item 4 above, Middleby currently has no plan or proposals
which relate to, or may result in, any of the matters listed in Items 4(a) – (i)
of Schedule 13D (although Middleby reserves the right to develop such
plans).
Item
5.
Interest in Securities of
the Issuer
(a)
Middleby, pursuant to the Voting Agreements, has acquired the right to vote in
favor of the Merger (as described in Item 4 above) and, for the purposes of Rule
13d-3 promulgated under the Exchange Act, Middleby may be deemed to have shared
beneficial ownership of 6,175,759 shares of Common Stock, representing
approximately 20.32% of the outstanding Common Stock of the
Issuer. This percentage calculation is based on 30,390,471 shares of
Common Stock issued and outstanding as of August 12, 2008, which number is based
on the representations made by the Issuer in the Merger
Agreement. Neither the filing of this statement on Schedule 13D nor
any of its contents shall be deemed to constitute an admission by any Reporting
Person that it is the beneficial owner of any of the Common Stock referred to
herein for purposes of the Exchange Act, or for any other purpose, and such
beneficial ownership is expressly disclaimed.
(b)
For the purposes of Rule 13d-3 promulgated under the Exchange Act, Middleby may
be deemed to have shared power to vote or to direct the voting of 6,175,759
shares of Common Stock pursuant to the Voting Agreements as described in Item 4
above.
(c)
Except for the arrangements described above, to the knowledge of Middleby, no
transactions in the class of securities reported have been effected during the
past 60 days by any person named in Schedule I or Item 5(a) and
(b).
(d)
Not applicable.
(e)
Not applicable.
Page 6 of 7
Item
6.
Contracts, Arrangements,
Understandings or Relationships with Respect to Securities of the
Issuer
Except
for the arrangements described in Items 3, 4, and 5 of this statement on
Schedule 13D and the agreements incorporated herein by reference and set forth
as exhibits hereto, to the knowledge of Middleby, there are no contracts,
arrangements, understandings or relationships (legal or otherwise) among the
persons named in Item 2 and between such persons and any person with respect to
any securities of the Issuer, including but not limited to transfer or voting of
any of the securities, finder’s fees, joint ventures, loan or option
arrangements, puts or calls, guarantees of profits, division of profits or loss,
or the giving or withholding of proxies.
Item
7.
Material to Be Filed as
Exhibits
The
following documents are filed as exhibits:
Exhibit
Number
|
Exhibit
Name
|
1
|
Agreement
and Plan of Merger, dated August 12, 2008, by and among The Middleby
Corporation, Chef Acquisition Corp., and TurboChef Technologies, Inc.
(incorporated by reference to Exhibit 2.1 to The Middleby Corporation’s
Current Report on Form 8-K, filed August 15, 2008 (Commission File No.
1-9973)).
|
2
|
Form
of Voting Agreement, dated August 12, 2008 (incorporated by reference to
Exhibit 10.1 to The Middleby Corporation’s Current Report on Form 8-K,
filed August 15, 2008 (Commission File No. 1-9973)).
|
Page 7 of 7
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.
Date:
August 22, 2008
|
THE
MIDDLEBY CORPORATION
|
|
by
|
/s/
Timothy J. FitzGerald
|
|
|
Name:
Timothy J. FitzGerald
Title:
Vice President and Chief Financial Officer
|
SCHEDULE
I
INFORMATION
CONCERNING THE DIRECTORS AND EXECUTIVE
OFFICERS
OF THE MIDDLEBY CORPORATION
1. Directors
and Executive Officers of The Middleby Corporation.
The following table sets forth the
name, citizenship, current principal occupation or employment, and material
occupations, positions, offices or employments and business addresses thereof
for the past five years of each individual that is a director or executive
officer of The Middleby Corporation. The current business address of each person
is 1400 Toastmaster Drive, Elgin, Illinois 60120. Unless otherwise indicated,
each occupation set forth opposite an individual’s name refers to employment
with the Middleby Corporation.
Name,
Country of Citizenship
and
Business Address
|
|
Present
Principal Occupation or Employment;
Material
Positions Held During the Past Five Years
|
Selim
A. Bassoul
Citizenship:
United States ofAmerica
|
|
President,
Chief Executive Officer, and Chairman of the Board of the Company and its
principal subsidiary, Middleby Marshall Inc. ("MM") since December 23,
2004. President and Chief Executive Officer of the Company and MM from
2001 to 2004. Chief Operating Officer of the Company and MM from 2000 to
2001. Group President of Middleby Cooking Systems Group from 1999 to 2000.
President of Southbend, a Middleby company, from 1996 to
1999.
|
Robert
B. Lamb
Citizenship:
United States ofAmerica
|
|
Clinical
Professor of Management at the Leonard N. Stern School of Business at New
York University since 1977. Has served as adviser to U.S. and foreign
corporations, commercial banks, investment banks and government agencies.
Director of Bondholders Communication Corporation. Member of the Board of
Editors, The Municipal Finance Journal, since 1985.
|
Ryan
Levenson
Citizenship:
United States ofAmerica
|
|
Principal
of Privet Fund Management LLC, 2007 to current. Managing Partner of Haynes
Manor Capital, LLC, investment group from 2003 to 2007. Vice President of
Business Development of MSI, a subsidiary of Lighten Up, LLC, from 2003 to
2006. Investment Analyst for Cramer, Rosenthal, McGlynn, hedge fund, from
2001 to 2003.
|
John
R. Miller III
Citizenship:
United States ofAmerica
|
|
Chairman
and Chief Executive Officer of E.O.P, Inc., publisher of special market
trade magazines since 1968. Director Emeritus of First National Bank of
Long Island and its holding company, the First of Long Island
Corporation.
|
Gordon
O’Brien
Citizenship:
United States ofAmerica
|
|
President,
Specialty Finance and Operations, of American Capital Strategies since
1998. Vice President of Pennington Partners/PENMAN Partners, a private
equity firm, from 1995 to 1998. A Board member of numerous private
companies as a representative of American Capital
Strategies.
|
Philip
G. Putnam
Citizenship:
United States ofAmerica
|
|
Managing
Director, Fulcrum Securities since 2008. Managing Director, Flagstone
Capital, LLC, investment bankers, from 2000 to 2007. Executive Vice
President, Brean Murray & Co. Inc., investment bankers, from 1996 to
2000.
|
Sabin
C. Streeter
Citizenship:
United States ofAmerica
|
|
Adjunct
Professor and Executive-in-Residence at Columbia Business School since
1997. Managing Director and Vice President of Donaldson, Lufkin &
Jenrette Securities Corp., investment bankers, from 1976 to 1997. Director
of Curtis Instruments.
|
Robert
L. Yohe
Citizenship:
United States ofAmerica
|
|
Retired
Vice Chairman and Director of Olin Corporation, a chemicals manufacturer,
from 1993 to 1994, and from 1985 to 1992, President of Olin Chemicals, a
division of Olin Corporation. Director of Calgon Carbon Corporation and
Marsulex Inc.
|
Timothy
J. FitzGerald
Citizenship:
United States ofAmerica
|
|
Vice
President and Chief Financial Officer of the Company and MM since May
2003. Vice President and Corporate Controller of the Company and MM from
February 2000 to May 2003. Corporate Controller of the Company and MM from
November 1998 to May 2003.
|
David
Brewer
Citizenship:
United States ofAmerica
|
|
President,
Pitco Frialator, Inc. since July 2007. President, Lantech North America,
from June 2005 to July 2007. Vice President of Global Supply Chain, YUM!,
from March 2002 to June 2005.
|
Lyall
Newby
Citizenship:
Canada
|
|
President
Middleby Worldwide, since 2007. Director, International Supply, Chain
Management Equipment and Logistics, YUM! Restaurants, December 1999 to
March 2007.
|
Gary
Mick
Citizenship:
United States ofAmerica
|
|
President,
Blodgett Oven Company, from April, 2007. Vice President and General
Manager, Blodgett Oven Company from June 2005 to April 2007. Vice
President and Controller from January 1, 2001 to June
2005.
|
Magdy
Albert
Citizenship:
United States ofAmerica
|
|
Executive
Vice President, Food Processing Group, since March 2008; President,
Alkar-RapidPak, from June 2006 to March 2008. General Manager, Middleby
Cooking Systems Group, June 2003 to May 2006. General Manager, Vulan
Steam, Illinois Tool Works, January 2001 to May 2003. Vice President,
Engineering, Premark International, February 1998 to December
2000.
|
Mark
A. Sieron
Citizenship:
United States ofAmerica
|
|
Division
President, since 2004. Vice President and General Manager, Middleby
Cooking Systems Group, from 1988 to 2004.
|
Nazih
Ibrahim
Citizenship:
United States ofAmerica
|
|
Division
President, Southbend since August 2004. Vice President of Supply Chain
Management, from July 2003 to August 2004. Vice President, Materials
Management, Franke Group from 1999 to 2003. Vice President, Purchasing,
Stainless Incorporated, from 1995 to 1999.
|
Martin
M. Lindsay
Citizenship:
United States ofAmerica
|
|
Corporate
Treasurer of the Company and MM since February 2002. Assistant Treasurer
of the Company and MM from March 1999 to February
2002.
|