RESTRICTIVE COVENANT AGREEMENT
Exhibit
10.1
THIS
RESTRICTIVE COVENANT AGREEMENT (the
“Restrictive
Agreement”)
is
made and entered into as of September 12, 2005 (“Effective
Date”),
by
and between TurboChef Technologies, Inc., a Delaware corporation (“Buyer”),
and
Xxxxx X. XxXxxxxx (“Executive”).
W
I T N E S S E T H:
WHEREAS,
Buyer,
Global Appliance Technologies, Inc., a Delaware corporation (“Seller”),
and
all of the stockholders of Seller, have entered into an Asset Purchase
Agreement, dated the Effective Date (the “Definitive
Agreement”),
providing for the acquisition by Buyer of substantially all of the assets and
the assumption of certain liabilities of Seller (the “Transaction”);
WHEREAS,
Executive
is a major stockholder, director and key executive of Seller and has been one
of
the primary individuals involved in developing certain proprietary technology
associated with Seller’s business (the “Purchased
Technology”),
which, along with the goodwill associated with Seller’s business, is one of the
most valuable assets being acquired by Buyer in the Transaction;
WHEREAS,
in
light
of the foregoing, Executive has extensive and detailed knowledge of the
Purchased Technology, and of Seller’s other intellectual property and
confidential and proprietary information;
WHEREAS,
Seller’s
business of researching, designing, developing and licensing various heat
transfer technologies and cooking methods and services for use by manufacturers
of commercial and residential foodservice equipment is highly competitive;
and
WHEREAS,
as
a
condition of, and in order to induce Buyer to consummate, the Transaction,
Executive has agreed to enter into this Restrictive Agreement.
NOW,
THEREFORE,
for and
in consideration of the rights and benefits that they will each derive from
this
Restrictive Agreement and the Definitive Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which are acknowledged
conclusively, Buyer and Executive (the “Parties”),
intending to be legally bound, agree as follows:
ARTICLE
1
DEFINED
TERMS; ACKNOWLEDGMENTS;
REPRESENTATIONS
AND WARRANTIES
1.1
Defined
Terms.
For
purposes of this Restrictive Agreement, the following capitalized terms shall
have the following meanings:
(a)
“Affiliate”
shall
mean, as to any specified Person, any other Person that, directly or indirectly
through one or more intermediaries or otherwise, controls, is controlled by,
or
is under common control with the specified Person. As used in this definition,
“control” means the possession, directly or indirectly, of the power to direct
or cause the direction of the management or policies of a Person (whether
through ownership of securities of that Person, by contract, or
otherwise).
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(b)
“Business”
shall
mean the business of inventing, researching, designing, developing, licensing,
marketing and selling various heat transfer technologies and cooking methods,
products and services for use by manufacturers of commercial and residential
foodservice equipment.
(c)
“Buyer
Indemnified Party”
shall
mean Buyer and its Affiliates, and each of Buyer’s officers, directors,
employees, representatives and agents.
(d)
“Competitive
Position”
shall
mean (i) Executive’s direct or indirect equity ownership or control of any
Competitor, or (ii) an employment, consulting, partnership, advisory,
directorship, agency, promotional or independent contractor relationship between
Executive and a Competitor, where Executive is to provide employment,
consulting, contractual, advisory or other services similar in nature to some
or
all of the services that Executive provided to Seller. Notwithstanding the
foregoing: (x) Executive’s direct or indirect ownership, solely as a passive
investment, of equity securities of any entity that is required to file periodic
reports with the U.S. Securities and Exchange Commission under Section 13 or
15(d) of the Securities Exchange Act of 1934, as amended, the securities of
which corporation are listed on any securities exchange, quoted on the National
Association of Securities Dealers Automated Quotation System or traded in the
over-the-counter market shall not constitute a “Competitive Position” if
Executive is not a controlling person of, or a member of a group that controls,
the entity and Executive does not, directly or indirectly, own one percent
(1%)
or more of any class of securities of the entity; and (y) a
relationship between Executive and a subsidiary, division or Affiliate of a
Competitor with annual revenues in excess of $1 billion, which subsidiary,
division or Affiliate is not engaged, in whole or in part, in the Business,
shall not constitute a “Competitive Position” if such relationship does not
involve the provision of employment, consulting, contractual, advisory or other
services within the Business.
(e)
“Competitor”
when
referring to the Seller, shall mean any Person that is engaged, wholly or in
material part, in the Business, or that develops, manufactures, sells, resells
or distributes commercial or residential foodservice equipment that are within
the Business.
(f)
“Confidential
Information”
shall
mean all Non-Public (as defined below) information or data of or about Seller,
its business, clients and customers, including, but not limited to, information
or data about its products, manufacturing processes, intellectual property,
know-how, Trade Secrets (as defined below), designs, formulas, developmental
or
experimental work, computer programs (whether in object or source code),
databases, other original works of authorship, customer lists, marketing
methods, business plans, and financial information; provided,
however,
that
Confidential Information shall not include information (i) that is or
becomes generally available to the public other than as a result of a disclosure
by Executive that was not previously authorized by Buyer, or (ii) that
becomes available to Executive on a non-confidential basis from a third-party
source unaffiliated with Buyer or Seller, provided that such source is not
actually known by Executive to be bound by a confidentiality agreement with
or
other obligation of secrecy to Buyer or Seller. For purposes of the foregoing
definition, “Non-Public”
information is information that is not legally available to or legally
accessible by the public.
(g)
“Person”
shall
mean any individual, corporation, partnership, limited liability company,
association, trust, governmental authority or other entity or
organization.
(h)
“Restricted
Period”
shall
mean the period from and after the consummation of the Transaction on the
Effective Date until the tenth (10th)
anniversary of the Effective Date.
(i)
“Trade
Secrets”
shall
mean information that constitutes a trade secret under applicable
law.
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1.2
Acknowledgements
by Executive.
Executive acknowledges that by virtue of his ownership of and senior position
with Seller, and his critical role in developing the Purchased Technology he
has
developed substantial expertise in the business operations of Seller and has
had
extensive access to Trade Secrets and other Confidential Information of Seller.
Executive also acknowledges that while Seller’s principal place of business is
currently located in Tarrant County, Texas, Seller has conducted business
activities throughout the United States and the world, that the relevant market
for the Business of Seller is national, international and worldwide in scope,
and that there exists intense national, international and worldwide competition
for the Purchased Technology and the other products and services of the Business
of Seller. Executive also acknowledges that, as an owner of Seller and as one
of
Seller’s senior most executive officers, his duties for the Seller effectively
extended throughout all areas where the Seller conducted business. Executive
acknowledges that he will receive significant value and benefit in conjunction
with the Transaction as a result of being a major stockholder of Seller, and
that he is receiving and will receive substantial financial benefits hereunder.
Executive recognizes that Buyer would be irreparably damaged, and its
substantial investment in the assets of Seller materially impaired, if Executive
were to enter into an activity competing with the Business of Seller in
violation of the terms of this Restrictive Agreement or if Executive were to
disclose or make unauthorized use of any Confidential Information. Executive
expressly acknowledges that he is voluntarily entering into this Restrictive
Agreement.
1.3
Representations
and Warranties.
Executive represents and warrants, to and for the benefit of the Buyer
Indemnified Parties, that: (a) he has full power and capacity to execute and
deliver, and to perform all of Executive’s obligations under, this Restrictive
Agreement; (b) neither the execution and delivery of this Restrictive Agreement
nor the performance of this Restrictive Agreement will result directly or
indirectly in a violation or breach of (i) any agreement or obligation by which
he is or may be bound, or (ii) any law, rule or regulation of which Executive
has knowledge; (c) Executive has carefully read this Restrictive Agreement;
(d) Executive executes this Restrictive Agreement with full knowledge of the
contents of this Restrictive Agreement, the legal consequences thereof, and
any
and all rights which each Party may have with respect to one another; (e)
Executive has had the opportunity to receive, and has received, independent
legal advice with respect to the matters set forth in this Restrictive Agreement
and with respect to the rights and asserted rights arising out of such matters;
and (f) Executive is entering into this Restrictive Agreement of Executive’s own
free will. Executive’s representations and warranties shall survive until the
expiration of the Restricted Period.
ARTICLE
2
LIMITATION
ON COMPETITION
Executive
agrees that during the Restricted Period, Executive shall not, anywhere in
the
restricted territory described on Exhibit
A
to this
Restrictive Agreement (the “Restricted Territory”),
directly or indirectly, alone or in conjunction with any other person or entity,
without the express prior written consent of Buyer, seek, accept, or take active
steps to prepare for a Competitive Position (it
being
understood that any continuing education or attending any industry conference
or
trade show shall not be deemed to be taking “active steps” to prepare for a
Competitive Position).
ARTICLE
3
NON-SOLICITATION
AND NON-INTERFERENCE COVENANTS
3.1
Clients,
Customers, Suppliers and Agents.
Executive shall not, directly or indirectly, during the Restricted Period:
(a)
solicit, or assist with the solicitation of, any Person to whom Seller actually
provided services or products (or any Person to whom Seller had actively and
directly sought to provide services or products) at any time after November
15,
2002 until the Effective Date
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(“Customers”),
for
purposes of providing products or services that are in competition with those
offered by Seller in conduct of the Business, except on behalf of Buyer or
its
controlled Affiliates; or (b) induce Customers, suppliers, agents or
other
Persons under contract or otherwise associated or doing business with Seller
at
any time after November 15, 2002 until the Effective Date, to reduce, alter
or
sever any such association or business with Buyer and/or its controlled
Affiliates.
3.2
Personnel.
Executive agrees that during the Restricted Period, at any time or for any
reason, Executive shall not, directly or indirectly, knowingly solicit any
Person employed or retained by Buyer or its Affiliates to: (a) terminate such
employment or engagement; or (b) accept employment, or enter into any consulting
arrangement, with any Person other than Buyer and/or its
Affiliates.
3.3
Non-Disparagement.
During
the Restricted Period, neither Party will publicly and knowingly disparage
the
other Party or its business, executives, employees or advisors, whether in
writing or orally or on any web page.
ARTICLE
4
NON-DISCLOSURE
4.1
Non-Disclosure
and Non-Use.
Except
as and to the extent required by law, Executive shall not, directly or
indirectly, alone or in conjunction with any other Person: (a) disclose,
publish, disseminate or otherwise communicate, in oral, written, electronic
or
other format, any Confidential Information to any Person unaffiliated with
Seller or Buyer; or (b) use, copy or reproduce any Confidential Information,
except for the sole benefit of Buyer. The foregoing restrictions shall terminate
with respect to any Confidential Information that does not constitute a Trade
Secret upon the conclusion of the Restricted Period. Executive agrees that
if he
is required (by law, regulation or court or judicial order) to disclose any
Confidential Information, Executive will give Buyer prompt notice of such
requirement so that Buyer may seek an appropriate protective order. If a
protective order or similar order is not obtained by the date that Executive
must comply with the request, Executive will disclose what he believes in his
reasonable judgment to be the minimal amount of Confidential Information
necessary to comply with the request.
4.2
Return
of Confidential Information.
Executive shall, promptly after receipt of a written request of Buyer, return
to
Buyer, at Buyer’s expense, or destroy all documents or other materials or things
in his possession that contain or embody the Confidential Information or any
portion of the Confidential Information.
ARTICLE
5
CONSIDERATION
5.1
Payments.
As
consideration for Executive’s covenants and agreements in Article 2,
Article
3
and
Article
4
hereof,
subject to the provisions of Section
5.2
and
Section
5.3
hereof,
Buyer will pay, or cause to be paid, to Executive a total of Three Million
Dollars ($3,000,000), payable as follows:
(a)
One
Million Dollars ($1,000,000) has been paid to Executive on the Effective Date
in
connection with the execution and delivery hereof.
(b)
The
remaining Two Million Dollars ($2,000,000) shall be paid to Executive in three
(3) annual installments of (i) Six Hundred Sixty-Seven Thousand Five Hundred
Dollars ($667,500), (ii) Six Hundred Sixty-Seven Thousand Five Hundred Dollars
($667,500) and (iii) Six Hundred Sixty-Five Thousand Dollars ($665,000), each
without interest, with the first such payment being due on the
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first
anniversary of the Effective Date, the second such payment being due on the
second anniversary of the Effective Date, and the third and final payment being
due on the third anniversary of the Effective Date.
5.2
Forfeiture
Upon Breach.
Without
limiting the generality of Section
6.9
or any
other provision hereof, upon (a) any breach by Executive of any of the covenants
set forth in Article 2
or
Article
3
hereof,
or (b) any material breach by Executive of any of the covenants set forth in
Article
4
hereof
or of any other provision hereof, Executive shall be deemed to have irrevocably
forfeited, and shall have no further right to receive, any remaining payments
pursuant to Section
5.1 (b)
hereof.
Such forfeiture of payments is not exclusive of, is not limited by and shall
not
limit any other rights or remedies which Buyer may have, whether at law, in
equity, by contract or otherwise, all of which shall be cumulative (and not
alternative).
5.3
Right
to Terminate for Failure to Pay.
If Buyer
shall not pay, when due, any amount owing under Sections
5.1(a)
or
(b)
hereof,
and Buyer shall fail to cure such failure to pay within thirty (30) days after
it receives written notice thereof from Executive, Executive may, at its
election and upon written notice to Buyer, declare this Restrictive Agreement
to
be terminated and of no further force or effect and void ab initio.
5.4
Manner
of Payment.
Each
payment to be made by Buyer hereunder shall be made by wire transfer of
immediately available funds to an account designated by Executive at least
three
(3) business days prior to the due date of such payment.
ARTICLE
6
MISCELLANEOUS
6.1
Material
Breach.
Any
violation by Executive of his covenants in Article
2
or
Article
3
shall be
deemed to be a material breach of this Restrictive Agreement and the covenants
and agreements of Executive herein. Executive acknowledges that the covenants
in
Article
2,
Article
3
and
Article
4
are a
material and essential part of the sale of Seller’s Business to Buyer, without
which Buyer would not have consummated the Transaction.
6.2
Entire
Agreement; Amendments and Waivers.
This
Restrictive Agreement contains the entire agreement of the parties with respect
to the subject matter hereof and supersedes all prior agreements, written or
oral, with respect thereto. This Restrictive Agreement may be amended or
modified and the terms and conditions hereof may be waived, only by a written
instrument signed by each of the parties or, in the case of waiver, by the
party
waiving compliance. No delay on the part of either party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof, nor
shall
any waiver on the part of either party of any right, power or privilege
hereunder, nor any single or partial exercise of any right, power or privilege
hereunder, preclude any other or further exercise thereof or the exercise of
any
other right, power or privilege hereunder. The rights and remedies provided
herein are cumulative and are not exclusive of any rights or remedies that
either party may otherwise have at law or in equity.
6.3
Notices.
All
notices, objections, requests, claims, demands, and other communications
required or permitted hereunder shall be in writing, and shall be deemed to
be
delivered and received (i) if personally delivered or, if delivered by courier
service, when actually received by the party to whom notice is sent (or upon
confirmation of receipt received by the sender), or (ii) if delivered by mail
(whether actually received or not), at the close of business on the third
business day next following the day when placed in the mail, postage prepaid,
certified or registered, return receipt requested addressed to
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the
appropriate party or parties, at the address of such party set forth below
such
party’s signature on the signature page to this Restrictive Agreement (as such
may be amended by notice from time to time).
6.4
Governing
Law.
This
Restrictive Agreement shall be construed in accordance, and governed in all
respects by, the internal laws of the Commonwealth of Massachusetts (without
giving effect to principles of conflicts of laws).
6.5
Dispute
Resolution.
(a)
Except
as
specifically provided in Section
6.5(d),
any
dispute, claim, question, or disagreement arising out of or relating to this
Restrictive Agreement or the breach by Executive of any provision hereof, shall
be solely and finally settled by binding arbitration in accordance with the
provisions of the Commercial Arbitration Rules (the “Arbitration
Rules”)
of the
American Arbitration Association (“AAA”)
by a
panel of three arbitrators selected in accordance with the Arbitration Rules
(which arbitrators shall be knowledgeable in labor and employment law,
intellectual property law and the protection of intellectual
property).
(b)
The
parties agree that, unless otherwise selected by mutual agreement, any
arbitration proceeding hereunder shall be brought in Chicago,
Illinois.
(c)
Judgment
on the award of the arbitrators may be entered in any court having jurisdiction
over the party against which enforcement of the award is being
sought.
(d)
Each
party may, without inconsistency with this Agreement (including this
Section
6.5),
seek
from a court any interim or provisional relief, including injunctive or other
equitable relief, that may be necessary to protect the rights or property of
that party pending the selection of the arbitrators or pending the arbitrators’
determination of the merits of the controversy, or to otherwise enforce the
provisions of this Agreement, without first seeking or obtaining any decision
of
arbitrators under this Section
6.5,
even if
a similar or related matter has already been referred to arbitration in
accordance with the terms of this Section
6.5.
6.6
Transaction.
In the
event the Transaction is not consummated and the Definitive Agreement is
terminated for any reason in accordance with its terms, this Restrictive
Agreement shall be null and void ab initio without any provisions herein
surviving.
6.7
Severability.
(a)
If
any
provision of this Restrictive Agreement shall be held by an arbitrator or a
court of competent jurisdiction to be excessively broad as to duration, activity
or subject, it shall be deemed to extend only over the maximum duration,
activity and subject as to which such provision shall be valid and enforceable
under applicable law. In the event that any provision of this Restrictive
Agreement, or the application of any such provision to any Person or set of
circumstances, shall be determined to be invalid, unlawful, void or
unenforceable to any extent, the remainder of this Restrictive Agreement, and
the application of such provision to Persons or circumstances other than those
as to which it is determined to be invalid, unlawful, void or unenforceable,
shall not be impaired or otherwise affected and shall continue to be valid
and
enforceable to the fullest extent permitted by law.
(b)
The
parties intend that the covenant contained in Article
2
above
shall be construed as a series of separate covenants, one for each geographical
unit specified. Except for geographical coverage, each such separate covenant
shall be deemed identical in terms to the covenant contained in Article
2
above.
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(c)
If,
in
any arbitration or in any judicial proceeding under Section
6.5(d)
hereof,
an arbitrator or a court, as applicable, shall refuse to enforce any of the
separate covenants deemed included in this Restrictive Agreement, then the
unenforceable covenant shall be deemed eliminated from these provisions for
the
purpose of those proceedings to the extent necessary to permit the remaining
separate covenants to be enforced.
6.8
Successors
and Assigns.
This
Restrictive Agreement shall be binding upon and inure to the benefit of the
parties hereto, the heirs and legal representatives of Executive and the
successors and assigns of Buyer. Executive shall not be entitled to assign
his
obligations hereunder. Buyer may assign its rights under this Restrictive
Agreement to any successor in interest to all or part of the business or assets
of Buyer in connection with any merger, consolidation or other business
combination involving it or the sale of all or substantially all of its assets
or the assets of the Business. Executive agrees that, upon request therefor,
he
will, in writing, acknowledge and consent to any such assignment of this
Restrictive Agreement.
6.9
Several
Agreements.
In
addition to this Restrictive Agreement between Buyer and the Executive, Buyer
has entered into a similar agreement with one other key employee of Seller.
It
is expressly agreed that this Restrictive Agreement and the obligations of
the
parties hereunder are to be construed separately from any similar agreement
with
the other key employee of Seller and a breach of a similar agreement by the
other key employee of Seller shall not constitute a breach of this Restrictive
Agreement.
6.10
Independence
of Obligations.
The
covenants of Executive set forth in this Restrictive Agreement shall be
construed as independent of any other agreement or arrangement between
Executive, on the one hand, and Buyer or any of their Affiliates or
subsidiaries, on the other hand, and
except
as set forth in Section 5.3 hereof , or except with respect to any claim by
Executive for failure of Buyer to make any payments under Section 3 of that
certain Services Agreement, of even date herewith, between Executive and Buyer
or Section 3.3 of the Definitive Agreement,
the
existence of any claim or cause of action by Executive against Seller or Buyer
or any of their Affiliates or subsidiaries shall not constitute a defense to
the
enforcement of such covenants against Executive.
6.11
Remedies.
Executive expressly acknowledges that damages alone will not be an adequate
remedy for any breach by Executive of any of the covenants set forth in this
Restrictive Agreement and that Buyer, in addition to any other remedies which
it
may have, shall be entitled, as a matter of right, to injunctive relief,
including, without limitation, specific performance (if an applicable form
of
relief for such breach). The rights and remedies of Buyer and the other Buyer
Indemnified Parties under this Restrictive Agreement are not exclusive of or
limited by any other rights or remedies which they may have, whether at law,
in
equity, by contract or otherwise, all of which shall be cumulative (and not
alternative). Without limiting the generality of the foregoing, the rights,
remedies, obligations and liabilities of Buyer and the other Buyer Indemnified
Parties under this Restrictive Agreement, and the rights, remedies, obligations
and liabilities of Executive under this Restrictive Agreement, are in addition
to their respective rights, remedies, obligations and liabilities under the
law
of unfair competition, under laws relating to misappropriation of trade secrets,
under other laws and common law requirements and under all applicable rules
and
regulations. Executive’s and Buyer’s obligations under this Restrictive
Agreement are absolute and nothing in this Restrictive Agreement shall limit
any
of Executive’s or Buyer’s obligations, or the rights or remedies of Executive,
Buyer or any of the other Buyer Indemnified Parties, under the Definitive
Agreement; and nothing in the Definitive Agreement shall limit any of Buyer’s or
Executive’s obligations, or any of the rights or remedies of Executive, Buyer or
any of the other Buyer Indemnified Parties, under this Restrictive Agreement.
No
breach on the part of Executive, Buyer or any other party of any covenant or
obligation contained in the Definitive Agreement or any other agreement (except
as otherwise set forth in this Restrictive Agreement) or by virtue of any
failure to
7
perform
or other breach of any obligation of Executive, Buyer, any other Buyer
Indemnified Party or any other Person shall limit or otherwise affect any right
or remedy of Executive, Buyer or any of the other Buyer Indemnified Parties
under this Restrictive Agreement.
6.12
Further
Assurances.
Executive shall (at Buyer’s sole expense) execute and/or cause to be delivered
to Buyer (and each Buyer Indemnified Party, if applicable) such instruments
and
other documents, and shall (at Buyer’s sole expense) take such other actions, as
Buyer and such Buyer Indemnified Party may reasonably request at any time
(whether during or after the Restricted Period) for the purpose of carrying
out
or evidencing any of the provisions of this Restrictive Agreement.
6.13
Construction.
(a)
For
purposes of this Restrictive Agreement, whenever the context requires: the
singular number shall include the plural, and vice versa; the masculine gender
shall include the feminine and neuter genders; the feminine gender shall include
the masculine and neuter genders; and the neuter gender shall include the
masculine and feminine genders.
(b)
The
parties hereto agree that any rule of construction to the effect that
ambiguities are to be resolved against the drafting party shall not be applied
in the construction or interpretation of this Restrictive
Agreement.
(c)
As
used
in this Restrictive Agreement, the words “include” and “including,” and
variations thereof, shall not be deemed to be terms of limitation, but rather
shall be deemed to be followed by the words “without limitation.”
(d)
Except
as
otherwise indicated, all references in this Restrictive Agreement to “Sections”
and “Articles” are intended to refer to Sections of this Restrictive Agreement
and Articles of this Restrictive Agreement.
6.14
Headings.
The
headings contained in this Restrictive Agreement are for convenience of
reference only, shall not be deemed to be a part of this Restrictive Agreement
and shall not be referred to in connection with the construction or
interpretation of this Restrictive Agreement.
6.15
Dispute
Resolution Fees.
If any
action or proceeding relating to this Restrictive Agreement or the enforcement
of any provision of this Restrictive Agreement is brought against any party
hereto, the prevailing party shall be entitled to recover reasonable attorneys’
fees, costs and disbursements, as well as all expenses, fees and costs
associated with the action or proceeding, including fees and expenses of the
arbitrator selected under Section
6.5
hereof
(in addition to any other relief to which the prevailing party may be
entitled).
[signatures
on following page]
8
IN
WITNESS WHEREOF,
Buyer
and Executive have executed this Restrictive Agreement as of the Effective
Date.
|
EXECUTIVE:
/s/
Xxxxx X. XxXxxxxx
Xxxxx
X. XxXxxxxx
Address:
0
Xxxx Xxxxx Xxxx
Xxxxxxxxx,
XX 00000
BUYER:
TurboChef
Technologies, Inc.
By:
/s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx
X. Xxxxxxx
Chairman
Address:
Xxx
Xxxxxxxxx Xxxxxxx
Xxxxx
0000
Xxxxxxx,
XX 00000
|
9
EXHIBIT
A
Restricted
Territory
The
“Restricted
Territory”
shall
mean the continents of North America, South America, Europe, Asia and
Australia.
