STOCK OPTIONS AMENDMENT AGREEMENT
EXHIBIT
10.1
This
STOCK OPTIONS AMENDMENT AGREEMENT
(the “Agreement”) is entered into effective as of the
last date of signature below by and between __________________ (the
“Executive”) and TURBOCHEF TECHNOLOGIES, INC., a
Delaware corporation (the “Company”).
RECITALS:
A. The
Company previously issued the Executive options to purchase shares of the
Company’s common stock, as set forth in Exhibit A hereto, (the
“Options”) pursuant to the Company’s 2003 Stock
Incentive Plan, as amended (the “Plan”).
B. The
number of shares of the Company’s common stock (the
“Shares”) covered by the Options and the exercise
price per Share (the “Option Exercise Price”) for such
Options, if awarded prior to December 27, 2004, were subsequently
adjusted to reflect a one-for-three reverse stock split.
C. The
Company has determined that the Option Exercise Price represents a discount
from
the fair market value of the Company’s common stock on the proper measurement
date for such Options (such fair market value amount being herein referred
to as
the “Re-measurement Price”).
D. The
Company believes that the Options, having been awarded at an exercise price
reflecting a discount from the common stock’s fair market value on the proper
measurement date, subject the Executive to adverse tax consequences under
Section 409A of the Internal Revenue Code with respect to all or a portion
of
the Options (such portion, as identified in Exhibit A, is herein referred
to as the “Affected Options”). The Company
has been advised that the Internal Revenue Service will permit the Company
and
the Executive to alleviate all adverse effects of the application of Section
409A to the Affected Options by amending the Affected Options to reflect an
exercise price equal to the Re-measurement Price.
E. The
Company is willing to compensate the Executive for the lost value in the
Affected Options resulting from an increase in the exercise price to the
Re-measurement Price.
F. The
Executive desires to amend the exercise price of his Affected Options to the
Re-measurement Price in an effort to avoid the adverse tax consequences
attendant to discounted stock options and to receive compensation for the lost
value described in recital E.
In
consideration of the foregoing, the
agreements set forth below and other good and valuable consideration, the
parties hereby agree as follows:
1. AMENDMENT
OF COVERED PORTION OF OPTIONS
1.1. Increased
Exercise Price. The Options Exercise Price currently in
effect for the Affected Options is hereby increased to the Re-measurement Price
set forth on Exhibit A hereto.
2. RESTRICTED
STOCK UNIT ISSUANCE
2.1. Grant
of Restricted Stock Unit. The Company hereby grants to the
Executive an RSU, denominated in the dollar amount set forth in Exhibit A
hereto, for no additional consideration, subject to all of the terms and
conditions of this Agreement and the Plan.
2.2. Vesting. The
RSU award shall be fully vested upon grant.
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2.3. Settlement.
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a)
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Delivery
of RSU Shares. The RSU award shall settle in Shares on
March 7, 2008 (as such date may be adjusted pursuant to Section 2.3(c),
2.6 or 2.8, the “Settlement
Date”). The number of Shares to be issued by the
Company to settle the RSU (the “RSU Shares”)
shall be determined by dividing the dollar denomination of the RSU
as set
forth on Exhibit A hereto by the closing selling price per Share on
the last trading day before the Settlement Date as reported by The
Nasdaq
Global Market or any successor exchange upon which the Company’s Shares
may then be listed, rounding up to the nearest whole Share. The
RSU will be paid out by the Company through the issuance of the RSU
Shares
to the Executive as soon as reasonably possible after, and effective
as
of, the Settlement Date. The Company may issue stock
certificates or evidence the Executive’s interest by using a book entry
account with the Company’s transfer agent. To the extent
issued, certificate(s) for the RSU Shares shall be issued in the
name of
the Executive, free and clear of all liens, security interests, pledges
or
other claims or charges or restrictions (other than securities law
restrictions), and delivered to the last address of the Executive
known by
the Company or as otherwise directed in writing by the
Executive. The Company’s obligation to deliver the RSU Shares
is conditioned upon Executive providing such information as may be
reasonably required or appropriate in connection with such delivery,
such
as a registration address and tax identification
number.
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b)
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Stockholder
Rights. The Executive shall not be deemed to be the holder
of, or to have any of the rights of a holder with respect to any
RSU
Shares until issued to the Executive, except as provided in this
Agreement. After the RSU award is granted but before the
Settlement Date, the Executive shall have no rights to any dividend
or
other distribution declared by the Company on its Shares, except
as
provided in Section 2.7. The Executive shall have no voting
rights with respect to the RSU Shares until issued upon the Settlement
Date.
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c)
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Merger;
Acquisition. If the Company is acquired by merger or
otherwise on or after January 1, 2008, then the Settlement Date shall
be
accelerated to occur immediately prior to the closing of such transaction
and the Executive shall be permitted to participate in the merger
consideration or proceeds of acquisition to the same degree as if
the RSU
Shares had been issued and outstanding at the time of any record
date with
respect to such merger or acquisition, provided, however, that nothing
herein shall give Executive any voting rights with respect to the
RSU
Shares until issued.
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d)
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Limitation
on RSU Share Issuance. In such event that the number of
Shares the Company would have to issue to settle all RSU awards granted
in
connection with the Offer would exceed the number of Shares available
for
grant under the Plan on the Settlement Date, then the number of Shares
otherwise issuable upon settlement of the Executive’s RSU will be reduced
by a number of Shares equal to the product of (1) the quotient obtained
by
dividing (a) the number of Shares otherwise issuable upon settlement
of
the Executive’s RSU on the Settlement Date by (b) the total number of
Shares otherwise issuable upon settlement of all RSUs issued in connection
with the Offer on the Settlement Date, multiplied by (2) the total
number
of Shares otherwise issuable upon settlement of all RSUs on the Settlement
Date that exceeds the number of Shares available under the Plan,
rounded
down to the nearest whole Share.
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2.4. Nontransferability. The
RSU award and this Agreement shall not be transferable by the Executive other
than by will or by the laws of descent and distribution.
2.5. Securities
Law Restrictions. The issuance of RSU Shares may be
reasonably delayed by the Company until, in the opinion of counsel for the
Company, the issuance of the RSU Shares is exempt from registration under the
Securities Act of 1933, as amended, or any other applicable federal or state
securities law, rule or regulation, or the RSU Shares have been duly registered
under such laws. Unless the RSU Shares have been registered for sale
under all applicable laws, the Executive shall represent, warrant and agree,
as
a condition to the issuance of the RSU Shares, that if the issuance of the
RSU
Shares is deemed a purchase of such securities under applicable law, then the
RSU Shares are being purchased for investment only and without a view to any
sale or distribution of such RSU Shares and that such RSU Shares shall not
be
transferred or disposed of in any manner without registration under such laws,
unless it is the opinion of counsel satisfactory to the Company that such a
disposition is exempt from such registration. The Executive
acknowledges that an appropriate legend giving notice of the foregoing
restrictions shall, at the Options of the Company, appear conspicuously on
all
certificates evidencing the RSU Shares or other securities issued upon the
settlement of the RSU award.
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2.6. Effect
of Change in Control; Liquidation/Dissolution.
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a)
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Early
Settlement. Upon the consummation of a Change in Control
before January 1, 2008, the RSU Shares (or the cash and/or stock
issuable
in exchange for the Shares pursuant to the terms of the controlling
documents entered into in connection with the Change in Control)
shall be
issued or delivered to the Executive effective as of January 2,
2008. Upon the consummation of a Change in Control on or after
January 1, 2008 but prior to the Settlement Date, the RSU Shares
shall be
issued effective as of the date of such consummation of a Change
in
Control. In each such case, the Settlement Date shall change to
the effective date as of which the RSU Shares are to be issued under
this
Section 2.6(a). If, in connection with a Change of Control, all
or substantially all outstanding Shares are exchanged for consideration
consisting of cash, other securities or a combination thereof, then
the
Executive may receive such consideration in lieu of RSU
Shares.
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b)
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Liquidation/Dissolution. Upon
the effective date of the liquidation or dissolution of the Company
without a successor on or after January 1, 2008 but before the Settlement
Date, the Settlement Date shall change to such effective date and
the
Company shall issue the RSU Shares to the Executive on the new Settlement
Date.
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2.7. Adjustments. In
the event of a change in capitalization, the Committee may make appropriate
adjustments to the number and class of shares or other stock or securities
subject to the RSU award. The Committee’s adjustment shall be made in
accordance with the provisions of Section 4.4 of the Plan and shall be effective
and final, binding and conclusive for all purposes of the Plan and this
Agreement.
2.8. Withholding
of Taxes. The Executive shall pay an amount equal to the
federal, state and local income taxes and other amounts as may be required
by
law to be withheld (the “Withholding Taxes”) with
respect to the RSU award to the Company in cash prior to the issuance of any
RSU
Shares. In the Company’s discretion, the Company may accept from
Executive (other than from any Executive subject to Section 16 of the Securities
Exchange Act of 1934, as amended) a short-term promissory note by Executive
in
favor of the Company in a principal amount equal to any Withholding Taxes,
in
such form and having such terms and conditions satisfactory to the Company
in
its discretion. Alternatively, the Company may, in its discretion,
withhold from the number of RSU Shares otherwise issuable to Executive on the
Settlement Date such number of RSU Shares whose aggregate fair market value
equals the amount of any Withholding Taxes. If Executive does not
comply with the terms of this Section 2.8, the Company may delay the Settlement
Date until such time as Executive does comply.
3. MISCELLANEOUS
3.1. Construction. This
Agreement shall be construed in accordance and consistent with, and subject
to,
the provisions of the Plan (the provisions of which are incorporated herein
by
reference) and, except as otherwise expressly set forth herein, the capitalized
terms used in this Agreement shall have the same definitions as set forth in
the
Plan.
3.2. No
Additional Rights Created. Nothing in the Plan or this
Agreement shall confer on the Executive any right to continue as an employee
by
the Company, or by any parent or subsidiary, or limit in any way the rights
of
the Company to terminate the Executive’s employment at any time.
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3.3. Modification
of Agreement. Except as provided in Sections 2.3(c), 2.6,
and 2.7, this Agreement may be modified, amended, suspended or terminated,
and
any terms or conditions may be waived, only by a written instrument executed
by
the parties hereto; provided, however, that any modification, amendment, or
waiver that is not materially adverse to the Executive, as determined by the
Committee, can be approved by the Committee without the written consent of
the
Executive.
3.4. Severability. Should
any provision of this Agreement be held by a court of competent jurisdiction
to
be unenforceable or invalid for any reason, the remaining provisions of this
Agreement shall not be affected by such holding and shall continue in full
force
in accordance with their terms.
3.5. Governing
Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
Delaware without giving effect to the conflicts of laws principles
thereof.
3.6. Successors
in Interest. This Agreement shall inure to the benefit of
and be binding upon each successor corporation to the Company. This
Agreement shall inure to the benefit of the Executive’s legal
representatives. All obligations imposed upon the Executive and all
rights granted to the Company under this Agreement shall be final, binding
and
conclusive upon the Executive’s heirs, executors, administrators and
successors.
3.7. Resolution
of Disputes. Any dispute or disagreement which may arise
under, or as a result of, or in any way relate to, the interpretation,
construction or application of this Agreement shall be determined by the
Committee. Any determination made hereunder shall be final, binding
and conclusive on the Executive and the Company for all purposes.
3.8. Entire
Agreement. This Agreement, together with the original
Options agreement (to the extent not expressly amended hereby) as subsequently
modified as described in the Recitals and the Plan represent the entire
agreement of the parties with respect to the Affected Options and the
RSU.
3.9. Continuation
of Options Agreement. Except for the foregoing provisions,
no other terms or provisions of the Options agreement for the Options (as such
Options was subsequently modified as described in the Recitals) have been
modified as a result of this Agreement, and those terms and provisions shall
continue in full force and effect.
3.10. Compliance
with Code Section 409A. This Agreement and the RSU and
Options are intended to satisfy the requirements of Section 409A of the Code
and
any regulations or guidance that may be adopted thereunder from time to time
and
shall be interpreted by the Committee as it determines necessary or appropriate
in accordance with Section 409A of the Code to avoid a plan failure under
Section 409A(a)(1) of the Code.
IN
WITNESS WHEREOF,
this Agreement has been executed on behalf of TurboChef Technologies, Inc.
by a
duly-authorized officer and by Executive on the date indicated.
| TURBOCHEF TECHNOLOGIES, INC. | ||||||
| By: | Date: | |||||
| Name: | ||||||
| Title: | ||||||
| Executive: | ||||||
| Date: | ||||||
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Exhibit
A
Name
of
Executive:
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Original
Grant
Date
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Expiration
Date
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Total
Number
of
Shares
Subject
to
Covered
Portion
of
Options
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Exercise
Price Per
Share
Prior to
Amendment
($)
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New
Exercise
Price
Per Share
Subsequent
to
Amendment
($)
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RSUs
to be
Issued
($)
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