Exhibit 10.1


 


Execution Version


 


 


VOTING AND SUPPORT AGREEMENT


 


This VOTING AND SUPPORT AGREEMENT
(this “Agreement”), dated as of April 20, 2021, is entered into by and among The Middleby Corporation, a Delaware corporation
(“Parent”), and the undersigned stockholders (the “Stockholders”) and beneficial owners (the “Beneficial
Owners” and together with the Stockholders, the “Stockholder Parties”). Capitalized terms used but not defined
herein shall have the meanings given to them in the Merger Agreement (as defined below).


 


RECITALS


 


WHEREAS, concurrently with
this Agreement, (i) Welbilt, Inc., a Delaware corporation (the “Company”), (ii) Parent (iii) Middleby Marshall Inc.,
a Delaware corporation and a direct wholly owned Subsidiary of Parent (“Acquiror”) and (iv) Mosaic Merger Sub, Inc.,
a Delaware corporation and a direct wholly owned Subsidiary of Acquiror (“Merger Sub”), have entered into an Agreement
and Plan of Merger as of the date hereof (as may be amended from time to time, the “Merger Agreement”), which provides
for the merger of Merger Sub with and into the Company (the “Merger”) with the Company surviving the Merger as a wholly
owned subsidiary of Parent;


 


WHEREAS, the Stockholders
and the Beneficial Owners are the beneficial owners (within the meaning of Rule 13d-3 under the Exchange Act, which meaning will apply
for all purposes of this Agreement whenever the term “beneficial owner” or “beneficially own” is used) of shares
of common stock, par value $0.01 per share, of the Company (the “Shares”);


 


WHEREAS, the Owned Shares
(as defined on Exhibit A) and any additional Shares or other voting securities of the Company acquired by the Stockholder
Parties after the date hereof and prior to the Termination Date (as defined herein) and pursuant to which the Stockholder Parties have
the right to vote such Shares or other voting securities, including, without limitation, by purchase, as a result of a stock dividend,
stock split, recapitalization, combination, reclassification, exchange or change of such shares, or upon exercise or conversion of any
securities, by the Stockholder Parties are referred to in this Agreement as, the “Covered Shares”;


 


WHEREAS, as a condition and
inducement to Parent’s willingness to enter into the Merger Agreement and to proceed with the transactions contemplated thereby,
including the Merger, Parent and the Stockholder Parties are entering into this Agreement; and


 


WHEREAS, the Stockholder Parties
acknowledge that Parent is entering into the Merger Agreement in reliance on the representations, warranties, covenants and other agreements
of the Stockholder Parties set forth in this Agreement, and would not enter into the Merger Agreement if the Stockholder Parties did not
enter into this Agreement.


 


NOW, THEREFORE, in consideration
of the foregoing and the mutual covenants and agreements herein contained, and intending to be legally bound hereby, Parent and the Stockholder
Parties hereby agree as follows:


 






     


     


    

 


Section 1.                  
Agreement to Vote. From and after the date hereof until the termination of this Agreement in accordance with Section 3,
at any meeting of the Company’s stockholders (or any adjournment or postponement thereof), however called, or in connection with
any action proposed to be taken by written consent of the stockholders of the Company, the Stockholders agree to take the following actions
(or cause the applicable holder of record of its Covered Shares to take the following actions) and each Beneficial Owner agrees to cause
any applicable holder of record of its, his or her Covered Shares to take the following actions:


 


(a)              
appear and be present (in accordance with the Bylaws of the Company) at such meeting of the Company’s stockholders or otherwise
cause its Covered Shares to be counted as present thereat for purposes of calculating a quorum;


 


(b)              
to affirmatively vote and cause to be voted all of its, his or her Covered Shares in favor of (“for”), or, if action
is to be taken by written consent in lieu of a meeting of the Company’s stockholders, deliver to the Company a duly executed affirmative
written consent in favor of (“for”), the Merger and the adoption of the Merger Agreement (the “Supported Matters”);
and


 


(c)              
to vote or cause to be voted all of its Covered Shares against, and not provide any written consent with respect to (i) any Company
Acquisition Proposal and (ii) any action, proposal, transaction or agreement that is intended to or would (1) result in a breach in any
material respect of any covenant, representation or warranty or any other obligation or agreement of the Company under the Merger Agreement
or of the Stockholder Parties under this Agreement, (2) impede, interfere with, delay, postpone, discourage or adversely affect the timely
consummation of the Merger or any of the other transactions expressly contemplated by the Merger Agreement or this Agreement or (3) change
in any manner the voting rights of any class of shares of the Company (including any amendments to the Company’s Certificate of
Incorporation or Bylaws).


 


Notwithstanding the foregoing,
the obligations in this Section 1 shall only apply with respect to (A) sub-sections (a) and (b) to the extent that the
Supported Matters are submitted for a vote at any such meeting or are the subject of any such written consent and (B) sub-section (c)
to the extent that any Company Acquisition Proposal or any of the matters contemplated by Section 1(c)(ii) are submitted for
a vote at any such meeting or are the subject of any such written consent. No Stockholder Party shall take or commit or agree to take
any action inconsistent with the foregoing.


 


Section 2.                  
Inconsistent Agreements. Except as contemplated by this Agreement, each Stockholder Party hereby represents, covenants and
agrees that it, he or she, nor any entity under the control of such Stockholder Party:


 


(a)              
has entered into, or shall enter into at any time prior to the Termination Date (as defined below), any voting agreement or voting
trust with respect to its Covered Shares; nor


 


(b)              
has granted, or shall grant at any time prior to the Termination Date, a proxy or power of attorney with respect to its Covered
Shares, in either case, which has not subsequently been revoked or which is inconsistent with the obligations of such Stockholder Party
pursuant to this Agreement.


 






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Section 3.                  Termination. This Agreement shall terminate upon the earliest of (a) the Effective Time, (b) the termination of the Merger Agreement
in accordance with its terms, (c) the entry into or effectiveness of any amendment, modification or waiver of any provision of the Merger
Agreement (including the Schedules and Exhibits thereto) that (i) reduces the amount or changes the form of the Merger Consideration
in a manner adverse to the Stockholders, (ii) extends the Termination Date (as such term is defined in the Merger Agreement), or (iii)
imposes any material restrictions or additional material conditions on the consummation of the Merger or the payment of the Merger Consideration
or otherwise in a manner adverse to the Stockholders, (d) the Company Board having effected a Company Adverse Recommendation Change in
accordance with the terms of the Merger Agreement, or (e) written notice of termination of this Agreement by Parent to the Stockholder
Parties (such earliest date being referred to herein as the “Termination Date”); provided, that the provisions
set forth in Sections 7, and 10 through 23 shall survive the termination of this Agreement; provided,
further that no such termination will relieve any party hereto from any liability for any willful and material breach of this
Agreement occurring prior to such termination.


 


Section 4.                  Representations and Warranties of the Stockholder Parties. Each Stockholder Party hereby represents and warrants to Parent
as follows:


 


(a)              
The Stockholders are the record owners, and the Beneficial Owners are the beneficial owners of, the Owned Shares, and the Stockholders
have good and valid title to the Owned Shares free and clear of Encumbrances other than as created by this Agreement or under prime broker
agreements. The Stockholder Parties have the only voting power, power of disposition, power to demand appraisal rights and power to agree
to all of the matters set forth in this Agreement, in each case with respect to all of such Owned Shares, with no limitations, qualifications
or restrictions on such rights, subject to applicable federal securities Laws and the terms of this Agreement. As of the date hereof,
other than the Owned Shares, the Stockholder Parties do not own beneficially or of record any (i) shares of capital stock or voting securities
of the Company, (ii) securities of the Company convertible into or exchangeable for shares of capital stock or voting securities of the
Company or (iii) options or other rights to acquire from the Company any capital stock, voting securities or securities convertible into
or exchangeable for capital stock or voting securities of the Company.


 


(b)              
Each Stockholder Party that is an entity is duly organized, validly existing and in good standing under the laws of the jurisdiction
of its formation. Each Stockholder Party has all requisite power, authority and legal capacity to execute and deliver this Agreement
and to perform its, his or her obligations hereunder. The execution, delivery and performance of this Agreement by each Stockholder Party
that is an entity, the performance by such Stockholder Party of its obligations hereunder and the consummation by such Stockholder Party
of the transactions contemplated hereby have been duly and validly authorized by such Stockholder Party and no other actions or proceedings
on the part of such Stockholder Party are necessary to authorize the execution and delivery by such Stockholder Party of this Agreement,
the performance by such Stockholder Party of its obligations hereunder or the consummation by such Stockholder Party of the transactions
contemplated hereby. This Agreement has been duly and validly executed and delivered by each Stockholder Party and, assuming due authorization,
execution and delivery by Parent, constitutes a legal, valid and binding obligation of such Stockholder Party, enforceable against it,
him or her in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other similar Laws, now or hereafter in effect, affecting creditors’ rights and remedies generally (regardless of whether considered
in a Proceeding in equity or at law).


 






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(c)              
Except for the applicable requirements of the Exchange Act, (i) no filing with, and no permit, authorization, consent or approval
of, any Governmental Authority is necessary on the part of any Stockholder Party for the execution, delivery and performance of this Agreement
by such Stockholder Party or the consummation by such Stockholder Party of the transactions contemplated hereby, other than as contemplated
by the Merger Agreement, and (ii) neither the execution, delivery or performance of this Agreement by such Stockholder Party, nor the
consummation by such Stockholder Party of the transactions contemplated hereby, nor compliance by such Stockholder Party with any of the
provisions hereof shall (A) conflict with or violate, any provision of the organizational documents of such Stockholder Party (if such
Stockholder Party is an entity), (B) result in any breach or violation of, or constitute a default (or an event which, with notice or
lapse of time or both, would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation
of, or result in the creation of an Encumbrance on any property or asset of such Stockholder Party pursuant to, any Contract to which
such Stockholder Party is a party or by which such Stockholder Party or any properties or assets of such Stockholder Party is bound or
affected or (C) violate any order, writ, injunction, decree, statute, rule or regulation applicable to such Stockholder Party or any of
such Stockholder Party’s properties or assets, except, in the case of each of sub-clause (i) and (ii), as would not restrict,
prohibit or impair the performance by such Stockholder of its obligations under this Agreement.


 


(d)              
As of the date hereof, there are no Proceedings pending or, to the knowledge of any Stockholder Party, threatened against such
Stockholder Party or any of its or his Affiliates that would impair the ability of such Stockholder Party to perform its obligations under
this Agreement or consummate the transactions contemplated by this Agreement in a timely manner.


 


Section 5.                  Representations and Warranties of Parent. Parent hereby represents and warrants to each Stockholder Party as follows:


 


(a)              
Parent is an entity duly organized, validly existing and in good standing under the laws of Delaware. Parent has all requisite
power, authority and legal capacity to execute and deliver this Agreement. The execution and delivery of this Agreement by Parent have
been duly and validly authorized by Parent and no other actions or proceedings on the part of Parent are necessary to authorize the execution
and delivery by Parent of this Agreement. This Agreement has been duly and validly executed and delivered by Parent and, assuming due
authorization, execution and delivery by each Stockholder Party, constitutes a legal, valid and binding obligation of Parent, enforceable
against Parent in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar Laws, now or hereafter in effect, affecting creditors’ rights and remedies generally (regardless of
whether considered in a Proceeding in equity or at law).


 


(b)               Except
for the applicable requirements of the Exchange Act, (i) no filing with, and no permit, authorization, consent or approval of, any
Governmental Authority is necessary on the part of Parent for the execution and delivery of this Agreement by Parent, and (ii) the
execution and delivery of this Agreement by Parent shall not (A) conflict with or violate, any provision of the Parent
Organizational Documents, (B) result in any breach or violation of, or constitute a default (or an event which, with notice or lapse
of time or both, would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation
of, or result in the creation of an Encumbrance on any property or asset of Parent pursuant to, any Contract to which Parent is a
party or by which Parent or any properties or assets of Parent is bound or affected or (C) violate any order, writ, injunction,
decree, statute, rule or regulation applicable to Parent or any of Parent’s properties or assets, except, in the case of each
of sub-clause (i) and (ii), as would not restrict, prohibit or impair the performance by Parent of its obligations under this
Agreement.


 






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(c)              
Parent has taken and will take any and all action necessary (including, as applicable, the adoption of relevant resolutions by
the Parent Board) to render inapplicable any control share acquisition, business combination, or other similar anti-takeover provisions
under Parent’s articles of incorporation or bylaws, or any applicable “fair price,” “moratorium,” “interested
stockholder,” “control share acquisition,” “business combination” or other anti-takeover Law or similar
Law enacted under state or federal Law, that is or could become applicable to any of Parent, the Stockholder Parties and their Affiliates,
this Agreement and the transactions contemplated hereby, and the Merger Agreement and the transactions contemplated thereby.


 


(d)              
As of the date hereof, there are no Proceedings pending or, to the knowledge of Parent, threatened against Parent or any of its
Affiliates that would impair the ability of Parent to consummate the transactions contemplated by the Merger Agreement.


 


Section 6.                  Certain Covenants of the Parties.


 


(a)              
Each Stockholder Party hereby covenants and agrees as follows:


 


(i)      Prior
to the Termination Date, and except as contemplated hereby, such Stockholder Party shall not (A) tender any Covered Shares into any
tender or exchange offer, (B) except for an Exempt Transfer, sell (constructively or otherwise), transfer, offer, exchange, pledge,
hypothecate, grant, encumber, assign or otherwise dispose of or encumber (collectively “Transfer”), or enter into
any contract, option, agreement or other arrangement or understanding with respect to the Transfer of any of its Covered Shares or
beneficial ownership or voting power thereof or therein (including by operation of Law, or through the granting of any proxies or
powers of attorney, in connection with a voting trust or voting agreement); (C) acquire, offer to acquire, or agree to acquire,
directly or indirectly, by purchase or otherwise, any material assets of the Company or any of its subsidiaries; (D) make, or in any
way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the
rules of the SEC) to vote any voting securities of the Company to (I) not adopt or approve the Supported Matters or (II) approve any
other matter that if approved would reasonably be expected to prevent, interfere with, discourage, impair or delay the consummation
of the Supported Matters; (E) make any public announcement (other than public statements relating to the Merger) with respect to, or
submit a proposal for, or offer for (with or without conditions), any transaction involving the Company or its subsidiaries or its
and its subsidiaries’ securities or assets, except as required by Law; provided that nothing in this Agreement shall
restrict any of the Stockholder Parties from acquiring additional securities of the Company; provided, however, any
securities acquired by any such Stockholder Party or their respective Affiliates after the date of this Agreement shall be subject
to this Agreement in all respects; (F) form, join or in any way participate in a “group” (as defined in Section 13(d)(3)
under the Exchange Act) in connection with any of the actions expressly described in any of clauses (A)-(E) of
this Section 6(a)(i); or (G) agree (whether or not in writing) to take any of the actions referred to in this Section
6(a)(i). Any action in violation of this provision shall be void.


 






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For purposes of this Agreement, an “Exempt
Transfer” means any Transfer of Covered Shares (a) in open market transactions, (b) in block trade transactions arranged through
an investment bank, (c) as a bona fide gift or gifts, or for bona fide estate planning purposes, (d) by will or intestacy, (e) to any
trust for the direct or indirect benefit of the Mr. Carl Icahn or the immediate family of Mr. Icahn (for purposes of this Agreement, “immediate
family” shall mean any relationship by blood, current or former marriage, domestic partnership or adoption, not more remote than
first cousin), (f) to any immediate family member, (g) to a partnership, limited liability company or other entity of which Mr. Icahn
and the immediate family of Mr. Icahn is the legal and beneficial owner of all of the outstanding equity securities or similar interests,
(h) to a nominee or custodian of a person or entity to whom a disposition or Transfer would be permissible under clauses (c) through (g)
above, (i) by operation of law, such as pursuant to a qualified domestic order, divorce settlement, divorce decree or separation agreement,
or (j) if the Stockholder Party is a corporation, partnership, limited liability company, trust or other business entity, (A) to another
corporation, partnership, limited liability company, trust or other business entity that is an affiliate (as defined in Rule 405 promulgated
under the Securities Act of 1933, as amended) of such Stockholder Party, or to any investment fund or other entity controlling, controlled
by, managing or managed by or under common control with such Stockholder Party or affiliates of such Stockholder Party (including, for
the avoidance of doubt, where such Stockholder Party is a partnership, to its general partner or a successor partnership or fund, or any
other funds managed by such partnership), or (B) as part of a distribution, transfer or disposition without consideration by such Stockholder
Party to its stockholders, partners, members or other equity holders; provided that (x) in the case of any Transfer or series of related
Transfers pursuant to clauses (a) or (b), if the Stockholder Parties know that such Transfer or related Transfers involves the aggregate
Transfer(s) of 5% or more of the then-outstanding Shares of the Company (based on the number of outstanding Shares of disclosed in the
Company’s most recent quarterly or annual report on Form 10-Q or Form 10-K) to one or more related parties, then as a precondition
to such Transfer(s), the transferee will agree in a writing reasonably satisfactory in form and substance to Parent, to be bound to vote
such Shares in favor of the Supported Matters, and (y) in the case of a transfer or distribution pursuant to clauses (c), (d), (e), (f),
(g), (h), (i) or (j), such transferee will execute a joinder to this Agreement in form and substance reasonably satisfactory to Parent.


 


(ii)     
 From and after the date hereof until the Termination Date, each Stockholder Party agrees that it shall not, directly or indirectly,
initiate, solicit, facilitate or knowingly encourage any Company Acquisition Proposal or the making or submission thereof or the making
of any proposal that could reasonably be expected to lead to any Company Acquisition Proposal. Each Stockholder Party agrees that it shall
cease immediately and cause to be terminated, and shall not authorize or knowingly permit any of its or their Representatives to continue,
any and all existing activities, discussion or negotiations, if any, with any third party conducted prior to the date hereof with respect
to any Company Acquisition Proposal and shall use its reasonable best efforts to cause any such third party (or its agents or advisors)
in possession of non-public information in respect of the Company or any of its Subsidiaries that was furnished on behalf of the Company
and its Affiliates to return or destroy (and confirm destruction of) all such information, if any.


 






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(iii)     
Prior to the Termination Date, in the event that any Stockholder Party acquires the power to vote or direct the voting of, any
additional Shares or other voting interests with respect to the Company, such Shares or voting interests shall, without further action
of the parties, be deemed Covered Shares and subject to the provisions of this Agreement in all respects, and the number of Owned Shares
held by such Stockholder Party set forth on Exhibit A will be deemed amended accordingly.


 


Section 7.                  Stockholder Party Capacity. This Agreement is being entered into by each Stockholder Party solely in its, his or her capacity
as a record and/or beneficial owner of the Covered Shares, and nothing in this Agreement shall restrict or limit the ability of such Stockholder
Party or any affiliate of such Stockholder Party who is a director, officer or employee of the Company to take any action in his or her
capacity as a director, officer or employee of the Company, including the exercise of fiduciary duties to the Company or its stockholders.


 


Section 8.                  Appraisal Rights. Prior to the Termination Date, no Stockholder Party shall exercise any rights to demand appraisal of any
Covered Shares or right to dissent that may arise with respect to the Merger, and each Stockholder Party hereby waives any such rights
of appraisal or rights to dissent that such Stockholder Party may have under applicable Law.


 


Section 9.                  Disclosure. Prior to the Termination Date, none of the Stockholder Parties or Parent shall issue any press release or make
any public statement with respect to this Agreement without the prior written consent of each other party (which consent shall not be
unreasonably withheld, conditioned or delayed), except (a) as may be required by applicable Law or the rules or regulations of any applicable
U.S. securities exchange or Governmental Authority to which the relevant party is subject, in which case the party required to make the
release or announcement shall use its reasonable best efforts to allow each other party reasonable time to comment on such release or
announcement in advance or (b) with respect to any press release or other public statement by such Stockholder Party permitted by Section 6(a)(i)(E).


 


Section 10.                  Non-Survival
of Representations, Warranties and Covenants. The representations, warranties and covenants of the Stockholder Parties contained
herein shall not survive the Termination Date, other than those contained within the provisions that the parties have agreed will
survive the termination of this Agreement pursuant to Section 3.


 






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Section 11.                 Notices. All notices and other communications hereunder shall be in writing and shall be deemed duly given (a) on the date
of delivery if delivered personally, or if by email, upon the first Business Day after such email is sent if written confirmation of receipt
by email is obtained, (b) on the first Business Day following the date of dispatch if delivered utilizing a next-day service by a nationally
recognized next-day courier if next Business Day delivery is requested, or (c) on the earlier of confirmed receipt or the fifth Business
Day following the date of mailing if delivered by United States registered or certified mail, return receipt requested, postage prepaid.
All notices hereunder shall be delivered to the addresses set forth below, or pursuant to such other instructions as may be designated
in writing by the party to receive such notice:


 


if to Parent, Acquiror or Merger Sub:


 


The Middleby Corporation

1400 Toastmaster Drive

Elgin, Illinois 60120

Attention: Timothy J. FitzGerald, Chief Executive Officer

Email: tfitzgerald@middleby.com


 


with a copy (which shall not constitute notice)
to:


 


Skadden, Arps, Slate,
Meagher & Flom LLP


155 North Wacker Drive


Chicago, Illinois 60606

Attention: Shilpi Gupta


 Email: Shilpi.Gupta@skadden.com




 


Skadden, Arps, Slate, Meagher & Flom
LLP

1000 Louisiana, Suite 6800

Houston, Texas 77002

Attention: Eric C. Otness

Email: Eric.Otness@Skadden.com


 


if to any Stockholder Party, to the address(es)
set forth on the signature page to this Agreement, with a copy (which shall not constitute notice) to:


 


Icahn Capital LP

16690 Collins Avenue

Sunny Isles Beach, FL 3316

Attention: Andrew Langham

Email: alangham@sfire.com


 






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Section 12.                 Interpretation. When a reference is made in this Agreement to a Section, Article, Schedule or Exhibit, such reference shall be
to a Section, Article, Schedule or Exhibit of this Agreement unless otherwise indicated. The headings contained in this Agreement or
in any Schedule or Exhibit are for convenience of reference purposes only and shall not affect in any way the meaning or interpretation
of this Agreement. All words used in this Agreement will be construed to be of such gender or number as the circumstances require. Any
capitalized terms used in any Schedule or Exhibit but not otherwise defined therein shall have the meaning set forth in this Agreement.
All Schedules and Exhibits annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set
forth herein. The word “including” and words of similar import when used in this Agreement will mean “including, without
limitation,” unless otherwise specified.


 


Section 13.                 Entire Agreement. This Agreement (including the Schedules and Exhibits hereto) constitutes the entire agreement of the parties,
and supersedes all prior written agreements, arrangements, communications and understandings and all prior and contemporaneous oral agreements,
arrangements, communications and understandings among the parties with respect to the subject matter hereof and thereof.


 


Section 14.                 No Third Party Beneficiaries. This Agreement shall be binding upon and inure solely to the benefit of the parties and their
respective successors and permitted assigns, and nothing in this Agreement, express or implied, is intended to or shall confer upon any
other Person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement, other than the Company, which
shall be and hereby is, an express third-party beneficiary of this Agreement.


 


Section 15.                 Governing Law. This Agreement and all claims and causes of action based upon, arising out of or in connection herewith shall
be governed by, and construed in accordance with, the Laws of the State of Delaware, without regard to Laws that may be applicable under
conflicts of laws principles (whether of the State of Delaware or any other jurisdiction) that would cause the application of the Laws
of any jurisdiction other than the State of Delaware.


 


Section 16.                 Submission
to Jurisdiction. Each of the parties hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive
jurisdiction of the Court of Chancery of the State of Delaware or, if such Court does not have jurisdiction, any Delaware State court,
or Federal court of the United States of America, sitting in Delaware, and any appellate court from any thereof, in any Proceeding arising
out of or relating to this Agreement or the transactions contemplated hereby or for recognition or enforcement of any judgment relating
thereto, and each of the parties hereby irrevocably and unconditionally (i) agrees not to commence any such Proceeding except in such
courts, (ii) agrees that any claim in respect of any such Proceeding may be heard and determined in such court, (iii) waives, to the
fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any such
Proceeding in any such court, and (iv) waives, to the fullest extent permitted by Law, the defense of an inconvenient forum to the maintenance
of such Proceeding in any such court. Each of the parties agrees that a final judgment in any such Proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law. Each party to this Agreement irrevocably
consents to service of process in the manner provided for notices in Section 11. Nothing in this Agreement will affect the right of any
party to this Agreement to serve process in any other manner permitted by Law.


 






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Section 17.                 Assignment; Successors. Neither this Agreement nor any of the rights, interests or obligations under this Agreement may
be assigned or delegated, in whole or in part, by operation of Law or otherwise, by any party without the prior written consent of the
other parties, and any such assignment without such prior written consent shall be null and void. Subject to the preceding sentence, this
Agreement will be binding upon, inure to the benefit of, and be enforceable by, the parties and their respective successors and assigns.


 


Section 18.                 Enforcement. The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise breached. Accordingly, subject to the limitations contained
in this Section 18, Parent shall be entitled to seek specific performance of the terms hereof, including an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in any court
of the State of Delaware located in New Castle County, Delaware or any federal court located in Wilmington, Delaware, this being in addition
to any other remedy to which such party is entitled at Law or in equity, without any requirement to post security as a prerequisite to
obtaining equitable relief.


 


Section 19.                 Severability. Whenever possible, each provision or portion of any provision of this Agreement shall be interpreted in such
manner as to be effective and valid under applicable Law, but if any provision or portion of any provision of this Agreement is held to
be invalid, illegal or unenforceable in any respect under any applicable Law or rule in any jurisdiction, such invalidity, illegality
or unenforceability shall not affect any other provision or portion of any provision in such jurisdiction, and this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision or portion of any provision
had never been contained herein.


 


Section 20.                 Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY
TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF SUCH WAIVERS, (B) IT UNDERSTANDS
AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (C) IT MAKES SUCH WAIVERS VOLUNTARILY AND (D) IT HAS BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 20.


 






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Section 21.                 Counterparts.
This Agreement may be executed in two or more counterparts, all of which shall be considered one and the same instrument and shall become
effective when one or more counterparts have been signed by each of the parties and delivered to the other parties. This Agreement may
be executed by signatures delivered by facsimile or email, and a copy hereof that is executed and delivered by a party by facsimile or
email (including in .pdf format) will be binding upon that party to the same extent as a copy hereof containing that party’s
original signature.


 


Section 22.                 Facsimile or Electronic Signature. This Agreement may be executed by facsimile or electronic signature and a facsimile or
electronic signature shall constitute an original for all purposes.


 


Section 23.                 No Presumption Against Drafting Party. Parent and the Stockholder Parties acknowledge that each party to this Agreement
has been represented by counsel in connection with this Agreement and the transactions contemplated by this Agreement. Accordingly, any
rule of Law or any legal decision that would require interpretation of any claimed ambiguities in this Agreement against the drafting
party has no application and is expressly waived.


 


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IN WITNESS WHEREOF, the parties
have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.


 


	 	THE MIDDLEBY CORPORATION
	 	 
	 	By:	/s/ Timothy J. FitzGerald
	 	 	Name:	Timothy J. FitzGerald
	 	 	Title:	Chief Executive Officer



 


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	 	ICAHN PARTNERS MASTER FUND LP
	 	 
	 	By: 	/s/ Irene March
	 	 	Name:	Irene March
	 	 	Title:	Executive Vice President
	 	 
	 	ICAHN OFFSHORE LP
	 	 
	 	By:	/s/ Irene March
	 	 	Name:	Irene March
	 	 	Title:	Executive Vice President
	 	 
	 	ICAHN PARTNERS LP
	 	 
	 	By:	/s/ Irene March
	 	 	Name:	Irene March
	 	 	Title:	Executive Vice President



 


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	 	ICAHN ONSHORE LP
	 	 	 
	 	By:	/s/ Irene March
	 	 	Name:	Irene March
	 	 	Title:	Executive Vice President
	 	 
	 	ICAHN CAPITAL LP
	 	 	 
	 	By:	/s/ Irene March
	 	 	Name:	Irene March
	 	 	Title:	Executive Vice President
	 	 
	 	IPH GP LLC
	 	 	 
	 	By:	/s/ Irene March
	 	 	Name:	Irene March
	 	 	Title:	Executive Vice President
	 	 
	 	ICAHN ENTERPRISES HOLDINGS L.P.
	 	 	 
	 	By:	/s/ Ted Papapostolou
	 	 	Name:	Ted Papapostolou
	 	 	Title:	Principal Accounting Officer
	 	 
	 	ICAHN ENTERPRISES G.P. INC.
	 	 	 
	 	By:	/s/ Ted Papapostolou
	 	 	Name:	Ted Papapostolou
	 	 	Title:	Principal Accounting Officer
	 	 
	 	BECKTON CORP.
	 	 	 
	 	By:	/s/ Irene March
	 	 	Name:	Irene March
	 	 	Title:	Vice President
	 	 	 
	 	CARL C. ICAHN
	 	 	 
	 	By:	/s/ Carl C. Icahn
	 	 	Name:	Carl C. Icahn



 


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EXHIBIT A


 


	Record or Beneficial Owner	 	Shares
    of Common Stock 
 (the “Owned Shares”)	 
	Icahn Partners Master Fund LP (Direct Owner)	 	 	4,956,068	 
	Icahn Offshore LP	 	 	4,956,068	 
	Icahn Partners LP (Direct Owner)	 	 	6,986,170	 
	Icahn Onshore LP	 	 	6,986,170	 
	Icahn Capital LP	 	 	11,942,238	 
	IPH GP LLC	 	 	11,942,238	 
	Icahn Enterprises Holdings LP	 	 	11,942,238	 
	Icahn Enterprises G.P. Inc.	 	 	11,942,238	 
	Beckton Corp.	 	 	11,942,238	 
	Carl C. Icahn	 	 	11,942,238