Item 1.01. Entry into a Material Definitive Agreement
On
Subject to the terms and conditions set forth in the Merger Agreement, at the
effective time of the Merger (the "Effective Time"), each share of common stock,
par value
Following the closing of the Merger, the Middleby Common Stock will continue to be listed on the NASDAQ Global Select Market ("NASDAQ"). Subject to the terms and conditions set forth in the Merger Agreement, at the Effective Time, the Company's equity-based compensation plan maintained for employees of the Company will be assumed by Middleby and (i) all outstanding options to purchase Company Common Stock will be converted into options to purchase shares of Middleby Common Stock, (ii) all outstanding restricted stock awards and restricted stock unit awards with respect to Company Common Stock will be converted into corresponding restricted stock awards and restricted stock unit awards with respect to shares of Middleby Common Stock, and (iii) all outstanding performance stock unit awards with respect to Company Common Stock will be converted into restricted stock unit awards with respect to shares of Middleby Common Stock, with performance criteria deemed satisfied based on the achievement levels set forth in the Merger Agreement ((i), (ii), and (iii) collectively, the "Converted Awards"), in each case, based on the Exchange Ratio and with respect to such converted stock options, the exercise price of which shall be equal to the exercise price of such option in effect immediately prior to the Effective Time, divided by the Exchange Ratio, rounded up to the nearest whole cent. Following the closing, the Converted Awards will otherwise continue to be governed by the substantially the same general terms and conditions as applicable to such Converted Awards as in effect prior to the closing. No fractional shares of Middleby Common Stock will be issued in connection with the Merger, and holders of shares of Company Common Stock will receive cash in lieu of any such fractional shares.
The respective boards of directors of the Company and Middleby have unanimously approved the Merger Agreement, and the board of directors of the Company has agreed to recommend that the Company's stockholders adopt the Merger Agreement. In addition, the board of directors of Middleby has agreed to recommend that Middleby's stockholders approve the issuance of the shares of Middleby Common Stock in connection with the Merger, as required by the listing standards of NASDAQ. Middleby and the Company each have agreed not to directly or indirectly solicit alternative proposals and to terminate all existing discussions, negotiations and communications with any persons with respect to any alternative proposal. However, (i) the board of directors of Middleby may, subject to certain conditions, respond to unsolicited proposals from third parties and withdraw its recommendation in favor of approval of the issuance of Middleby Common Stock in connection with the Merger or terminate the Merger Agreement, and (ii) the board of directors of the Company may, subject to certain conditions, respond to unsolicited proposals from third parties and withdraw its recommendation in favor of adoption of the Merger Agreement or terminate the Merger Agreement, in each case, if, in connection with the receipt of an alternative proposal, Middleby's board or the Company's board, as the case may be, determines in good faith that (x) such alternative proposal constitutes a superior proposal and (y) a failure to effect such a withdrawal of recommendation would be reasonably likely to be inconsistent with its fiduciary duties. In addition, Middleby's board of directors or the Company's board of directors, as the case may be, may withdraw its recommendation (but not terminate the Merger Agreement) if, in connection with a material event or circumstance occurring after the date of the Merger Agreement that was not known or foreseeable as of the date of the Merger Agreement, it determines in good faith that a failure to effect such a withdrawal of recommendation would be reasonably likely to be inconsistent with its fiduciary duties.
The Merger Agreement provides that, at the Effective Time, the size of the board
of directors of Middleby will be increased by two members, with
The completion of the Merger is subject to the satisfaction or waiver of customary closing conditions, including (i) approval of the issuance of Middleby Common Stock in connection with the Merger by Middleby's stockholders, (ii) approval for listing of the Middleby Common Stock to be issued in connection with the Merger on NASDAQ, (iii) the effectiveness of a registration statement on Form S-4 with respect to the Middleby Common Stock to be issued in connection with the Merger, (iv) approval and adoption of the Merger Agreement by the Company's stockholders, (v) expiration or termination of any waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and receipt of applicable approvals under certain foreign competition, antitrust or merger control laws, (vi) there being no law or order prohibiting consummation of the Merger, (vii) subject to specified materiality standards, the accuracy of the representations and warranties of the parties, (viii) compliance by the parties in all material respects with their respective covenants, (ix) the absence of a material adverse effect with respect to each of Middleby and the Company, and (x) the delivery of an officer's closing certificate by both parties. The completion of the Merger is not conditioned on receipt of financing by Middleby.
Middleby and the Company have made customary representations and warranties in
the Merger Agreement. The Merger Agreement also contains customary covenants and
agreements, including covenants and agreements relating to (a) the conduct of
each of Middleby's and the Company's respective businesses between the date of
the signing of the Merger Agreement and the consummation of the Merger, (b) the
efforts of the parties to cause the Merger to be completed, (c) obligations to
convene and hold meetings of their respective stockholders to obtain the
required stockholder approvals and (d) obligations to cooperate with each other
to prepare and file a registration statement on Form S-4 and joint proxy
statement with the
The Merger Agreement provides that the Company may be required to pay Middleby a
termination fee equal to
The Merger Agreement provides that Middleby may be required to pay the Company a
termination fee equal to
Item 8.01 Other Events
On
In addition, on
Item 9.01. Financial Statements and Exhibits.
(d) Exhibit Exhibit No. Description 2.1 Agreement and Plan of Merger, dated as ofApril 20, 2021 , by and among The Middleby Corporation,Welbilt, Inc. ,Middleby Marshall Inc. andMosaic Merger Sub, Inc. * 99.1 Press Release, datedApril 21, 2021 , jointly issued by The Middleby Corporation andWelbilt, Inc. 99.2 Investor Presentation, datedApril 21, 2021 . 104 Cover Page Interactive Data File (the cover page XBRL tags are embedded in the Inline XBRL document).
* Schedules and exhibits have been omitted pursuant to Item 601(b)(2) of
Regulation S-K.
Forward-Looking Statements
This document contains forward-looking statements within the meaning of Section
27A of the Securities Act of 1933, as amended (the "Securities Act"), and
Section 21E of the Exchange Act. Some of these forward-looking statements can be
identified by the use of forward-looking words such as "believes," "expects,"
"may," "will," "should," "seeks," "approximately," "intends," "plans,"
"estimates," "projects," "strategy," or "anticipates," or the negative of those
words or other comparable terminology. Such forward-looking statements,
including those regarding the timing and consummation of the transactions
described herein, involve risks and uncertainties. The Company's and Middleby's
experience and results may differ materially from the experience and results
anticipated in such statements. The accuracy of such statements is subject to a
number of risks, uncertainties and assumptions including, but are not limited
to, the following factors: the risk that the conditions to the closing of the
transaction are not satisfied, including the risk that required approvals of the
transaction from the stockholders of the Company or Middleby or from regulators
are not obtained; litigation relating to the transaction; uncertainties as to
the timing of the consummation of the transaction and the ability of each party
to consummate the transaction; risks that the proposed transaction disrupts the
current plans or operations of the Company or Middleby; the ability of the
Company or Middleby to retain and hire key personnel; competitive responses to
the proposed transaction; unexpected costs, charges or expenses resulting from
the transaction; potential adverse reactions or changes to relationships with
customers, suppliers, distributors and other business partners resulting from
the announcement or completion of the transaction; the combined company's
ability to achieve the synergies expected from the transaction, as well as
delays, challenges and expenses associated with integrating the combined
company's existing businesses; the impact of COVID-19 or other public health
crises and any related company or government policies and actions to protect the
health and safety of individuals or government policies or actions to maintain
the functioning of national or global economies and markets; and legislative,
regulatory and economic developments. Other factors that might cause such a
difference include those discussed in the Company's and Middleby's filings with
the
Additional Information about the Merger and Where to Find It
In connection with the proposed transaction, Middleby intends to file with the
Participants in the Solicitation
The Company, Middleby and certain of their respective directors and executive
officers may be deemed to be participants in the solicitation of proxies in
respect of the proposed transaction. Information about the directors and
executive officers of the Company is set forth in its proxy statement for its
2021 annual meeting of shareholders, which was filed with the
No Offer or Solicitation
This document is not intended to and shall not constitute an offer to buy or
sell or the solicitation of an offer to buy or sell any securities, or a
solicitation of any vote or approval, nor shall there be any sale of securities
in any jurisdiction in which such offer, solicitation or sale would be unlawful
prior to registration or qualification under the securities laws of any such
jurisdiction. No offering of securities shall be made, except by means of a
prospectus meeting the requirements of Section 10 of the
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