EMPLOYMENT AGREEMENT (As Amended and Restated July 1, 2008)
Exhibit 99.1
(As
Amended and Restated July 1, 2008)
TurboChef
Technologies, Inc., a Delaware corporation, (“TurboChef”) and Xxxx Xxxx
(“Executive”) entered into an employment agreement (the “Employment Agreement”)
effective October 29, 2003 (the “Effective Date”), which was amended and
restated effective January 18, 2008. TurboChef and Executive hereby
amend and restate the Employment Agreement in its entirety. This
revised Employment Agreement is effective upon execution and has the following
terms and conditions:
§
1. TERM
The term
of the Employment Agreement, unless earlier terminated or extended as provided
herein (the “Term”), continues to the end of the day, December 31, 2008 and
shall automatically extend for one additional year beginning on January 1, 2009
and thereafter for an additional year on each subsequent anniversary of January
1, 2009 unless TurboChef or Executive notifies the other pursuant to § 6(a) that
no such extension will be effected at least six months before January 1, 2009 or
at least six months before any such subsequent anniversary date (January 1, 2009
and each subsequent anniversary date during the Term shall herein be referred to
as a “Renewal Date”). If at any time during the Term a Change of
Control occurs (as defined below in § 4(f)), then the Term shall be extended to
the date falling three years from the Change of Control (a “COC Extension”), and
automatic further extensions shall cease. Sections 3, 4, 5 and 6
shall survive termination or expiration of this Employment
Agreement.
§
2. POSITION AND
DUTIES AND RESPONSIBILITIES
(a) Position. Executive
shall be a Senior Vice President and the Chief Operating Officer of
TurboChef. Executive’s primary location of employment shall be at
TurboChef’s offices in Carrollton, Texas.
(b) Duties and
Responsibilities. Executive’s duties and responsibilities
shall be those normally associated with Executive’s position as a senior vice
president and the chief operating officer of a corporation plus any additional
duties and responsibilities that TurboChef’s Board of Directors, Chairman or
Chief Executive Officer from time to time may assign orally or in writing to
Executive. Executive shall report to TurboChef’s Chief Executive
Officer and shall have such powers as may be delegated to him by such board or
officer. Executive shall undertake to perform all Executive’s duties
and responsibilities for TurboChef in good faith and on a full-time basis and
shall at all times act in the course of Executive’s employment under this
Employment Agreement in the best interest of TurboChef.
§
3. COMPENSATION
AND BENEFITS
(a) Base
Salary. Executive’s base salary shall be at the rate of
$360,000 per year, which base salary shall be payable during employment in
accordance with TurboChef’s standard payroll practices and policies for
executives (but not less frequently than monthly) and shall be subject to such
withholdings as required by law or as otherwise permissible under such practices
or policies. Executive’s base salary shall be adjusted annually for
any changes in the Consumer Price Index (CPI), with the adjustment applied
effective as of January 1, 2010 and thereafter as of the next Renewal
Date. The adjustment will be directly proportional to the percent
change in the CPI for All Urban Consumers (CPI-U) for the U.S. City Average for
All Items, 1982-84=100, comparing the CPI for November immediately prior to the
Renewal Date against the CPI for November of the prior year. The
Compensation Committee may, in its sole discretion, determine a reasonable
adjustment if a major revision in the CPI occurs. Executive’s base
salary also shall be subject to periodic adjustments as determined by the
Compensation Committee of TurboChef’s Board of Directors.
(b) Bonus. Executive
shall be eligible to receive bonus compensation in excess of base salary and
benefits for any year (or other period) during the Term pursuant to one or more
executive or management compensation plans adopted or individual awards made
from time to time by the Compensation Committee or the Chairman or Chief
Executive Officer in their respective discretion. Executive need not
be employed by TurboChef at the time of payment of a bonus. The bonus
amount shall be payable in a lump sum in the following calendar year not later
than the earlier of ten business days after TurboChef’s financial results for
the year are publicly released and March 15 of such calendar
year. Executive’s bonus hereunder may be prorated for any partial
year of employment. The Compensation Committee shall reasonably
decide any dispute over the amount of any bonus hereunder.
(c) Employee Benefit
Plans. Executive shall be eligible to participate in the
employee benefit plans, programs and policies maintained by TurboChef for
similarly situated executives in accordance with the terms and conditions to
participate in such plans, programs and policies as in effect from time to
time.
(d) Vacation. Executive
shall be entitled to vacation as provided under TurboChef’s policies as
described in the Employee Handbook, provided, however, that Executive shall
accrue not less than four weeks of vacation during each successive one year
period in the Term. Vacation time shall be taken at such time or
times so as not to materially and adversely interfere with the business of
TurboChef. Executive shall not have the right to carry over unused
vacation from any calendar year to any other period nor to receive additional
compensation in lieu of taking Executive’s vacation time.
(e) Expenses. TurboChef
shall reimburse Executive for, or pay directly, all reasonable business expenses
incurred by Executive at the request of, or on behalf of, TurboChef in the
performance of Executive’s duties under this Employment Agreement, provided that
Executive incurs and accounts for such expenses in accordance with all of the
policies and directives of TurboChef as in effect from time to
time. Business expenses payable or reimbursable hereunder shall be
referred to in this Employment Agreement as “Business Expenses.”
-2-
§
4. TERMINATION
OF EMPLOYMENT
(a) Termination by TurboChef
Other Than for Cause or Disability or by Executive for Good
Reason.
|
|
(1)
|
TurboChef
shall have the right to terminate Executive’s employment at any time, and
Executive shall have the right to resign at any time. However,
a notice under § 1 that no extension of Executive’s Term will be
effected shall not constitute a termination of Executive’s employment by
TurboChef or a resignation by Executive. If either TurboChef or
Executive elects to give such notice, TurboChef’s only obligation to
Executive under this Employment Agreement after the expiration of the Term
shall be to pay Executive’s earned but unpaid salary and benefits then in
effect under § 3(a), if any, until the date the Term
expired.
|
|
|
(2)
|
If
TurboChef terminates Executive’s employment other than for Cause or
Disability or Executive resigns for Good Reason, TurboChef shall (in lieu
of any other severance benefits under any of TurboChef’s employee benefit
plans, programs or policies and as the sole severance benefit due
Executive) pay Executive, within five business days after the date
Executive’s employment is terminated (or, subject to § 6(h), at
TurboChef’s option on regular pay dates over a period not to exceed the
employment period represented by the amount of the severance payment), in
a lump sum an amount equal to $180,000 or one half times Executive's base
salary in effect immediately before Executive’s termination of
employment, whichever is greater; provided, however, during a COC
Extension the amount shall be the balance of unpaid base salary (in effect
at the time of the Change of Control or at the time of such termination,
whichever is greater) for the full period of the three-year
extension. In addition, TurboChef shall make any “Gross-Up
Payment” called for under § 4(f) to Executive within five business
days after the date such excise tax is determined to be
payable. Executive waives Executive’s rights, if any, to have
such payment taken into account in computing any other benefits payable
to, or on behalf of, Executive by TurboChef. In addition, all
outstanding stock options, restricted stock units or other equity awards
which by their terms do not provide otherwise shall immediately vest and
become exercisable or paid out, and the agreements or certificates
representing such awards shall be deemed amended as necessary to permit
such accelerated vesting or pay
out.
|
-3-
(b) Termination by TurboChef for
Cause or by Executive Other Than for Good Reason.
|
|
(1)
|
TurboChef
shall have the right to terminate Executive’s employment at any time for
Cause, and Executive shall have the right to resign at any time other than
for Good Reason.
|
|
|
(2)
|
If
TurboChef terminates Executive’s employment for Cause or Executive resigns
other than for Good Reason, TurboChef’s only obligation to Executive under
this Employment Agreement shall be to pay Executive’s earned but unpaid
base salary and benefits up to the date Executive’s employment
terminates. Furthermore, if terminated for Cause, Executive
shall forfeit any amount of a bonus that he may have earned in the year of
termination and his right to exercise any outstanding options or other
rights to purchase common stock of TurboChef, and all such outstanding
options and other rights and unvested restricted stock or restricted stock
units shall be immediately forfeited on his date of
termination.
|
(c) Cause. The
term “Cause” as used in this Employment Agreement means
|
|
(1)
|
Executive
has engaged in conduct which in the judgment of TurboChef’s Board of
Directors constitutes gross negligence, gross misconduct or gross neglect
in the performance of Executive’s duties and responsibilities under this
Employment Agreement, including conduct resulting or intending to result
directly or indirectly in gain or personal enrichment for Executive at
TurboChef’s expense;
|
|
|
(2)
|
Executive
has been convicted of a felony for fraud, embezzlement or theft or other
felony reasonably deemed by TurboChef to adversely affect TurboChef’s
reputation or Executive’s ability to effectively perform his
duties;
|
|
|
(3)
|
Executive
is restricted from performing services as an officer of TurboChef by
action of the Securities Exchange Commission or other governmental
regulatory agency; or
|
|
|
(4)
|
Executive
has engaged in a breach of any provision of this Employment Agreement
which Executive has failed to cure within thirty days after Executive has
notice of such breach from TurboChef’s Board of Directors; provided,
however,
|
|
|
(5)
|
No
“Cause” shall exist under this Employment Agreement unless
(i) Executive has been provided a detailed, written statement of the
basis for TurboChef’s belief that “Cause” exists and an opportunity to
meet with TurboChef’s Board of Directors (together with Executive’s
counsel (if Executive chooses to have Executive’s counsel present at such
meeting)) after Executive has had a reasonable period in which to review
such statement and (ii) TurboChef’s Board of Directors determines
(after such meeting, if Executive meets with TurboChef’s Board of
Directors) reasonably and in good faith and by the affirmative vote of not
less than a majority of the members of TurboChef’s Board of Directors then
in office at a meeting called and held for such purpose that “Cause” does
exist under this Employment
Agreement.
|
-4-
(d) Good
Reason. The term “Good Reason” means, in the absence of
Executive’s specific agreement thereto,
|
|
(1)
|
Any
material reduction in Executive’s rate of base
salary;
|
|
|
(2)
|
A
material reduction in Executive's authority, duties or responsibilities
(except during a COC Extension)
|
|
|
(3)
|
A
material reduction in the authority, duties or responsibilities of the
supervisor to whom the Executive reports (except during a COC
Extension);
|
|
|
(4)
|
A
relocation of Executive’s primary work site(s) more than one hundred miles
from Executive’s current primary work site(s);
or
|
|
|
(5)
|
Any
material breach of any of the terms of this Employment Agreement by
TurboChef;
|
provided,
however, no Good Reason shall exist unless (i) within ninety (90) days of the
initial existence of the event or condition that Executive believes constitutes
Good Reason, Executive gives TurboChef a detailed, written statement of the
basis for Executive’s belief that Good Reason exists and gives TurboChef a
thirty-day period after the delivery of such statement to cure the basis for
such belief and (ii) Executive actually submits Executive’s resignation to
TurboChef’s Board of Directors during the sixty day period which begins
immediately after the end of such thirty-day period if Executive reasonably and
in good faith determines that Good Reason continues to exist after the end of
such thirty-day period.
(e) Termination for Disability
or Death.
|
|
(1)
|
TurboChef
shall have the right to terminate Executive’s employment on or after the
date Executive has a Disability, and Executive’s employment shall
terminate at Executive’s death.
|
|
|
(2)
|
If
Executive’s employment terminates under this § 4(e), TurboChef’s only
obligation under this Employment Agreement shall be to pay Executive or,
if Executive dies, Executive’s estate any earned but unpaid base salary
then in effect under § 3(a), benefits, earned but unpaid bonus under
§ 3(b) pro-rated for any partial year, and non-reimbursed Business
Expenses through the date Executive’s employment
terminates. The pro-rated annual bonus shall be paid within 60
days of the termination date.
|
-5-
The term
“Disability” as used in this Employment Agreement means the suffering by
Executive for at least a 180 consecutive day period of a physical or mental
condition resulting from bodily injury, disease, or mental disorder which
renders Executive incapable of continuing even with reasonable accommodation to
perform the essential functions of Executive’s job. TurboChef’s Board
of Directors shall determine whether Executive has a Disability. If
Executive disputes such determination, the issue shall be submitted to a panel
consisting of three physicians who specialize in the physical or mental
condition from which Executive suffers, one appointed and paid by TurboChef, one
appointed and paid by Executive and the third appointed by these two physicians
and paid one-half by TurboChef and one-half by Executive. The
determination as to whether Executive has a Disability shall be made by such
panel and shall be binding on TurboChef and on Executive.
(f) Change in
Control. If there is a “Change in Control”, Executive’s right
to exercise all outstanding stock options or other rights, his right to receive
payment under all outstanding restricted stock units and any restrictions on
alienation of restricted stock or other restricted rights which have been
granted to Executive by TurboChef, and which by their terms do not provide
otherwise, shall immediately become 100% vested and non-forfeitable, payable and
freely transferable, as the case may be. Executive waives Executive’s
right, if any, to have any and all such options (to the extent an exercise right
is accelerated under this § 4(f)) and payments taken into account in
computing any other benefits payable to, or on behalf of, Executive by
TurboChef. Notwithstanding anything to the contrary in the foregoing,
if in connection with a Change of Control, holders of Common Stock of TurboChef
receive in exchange for their shares cash, other securities or a combination
thereof, then TurboChef may require that Executive accept in exchange for
Executive’s stock options or other rights to receive or acquire shares of Common
Stock of TurboChef comparable consideration for the net value of Executive’s
stock options or other rights as if they had been immediately exercised or paid
out.
The term
“Change in Control” as used in this Employment Agreement means:
|
|
(1)
|
The
closing of an acquisition at any time by any person, entity or “group”
within the meaning of Sections 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934 (excluding, for this purpose, TurboChef, its
affiliates, or any employee benefit plan of TurboChef or any of its
affiliates) of beneficial ownership (within the meaning of Rule 13d-3
promulgated under such securities law) of more than fifty percent of
either the then outstanding shares of common stock of TurboChef or of the
combined voting power of TurboChef’s then outstanding voting securities or
any such acquisition of more than fifty percent of either such common
stock or voting securities of TurboChef or of the combined voting power of
TurboChef’s then outstanding voting securities except for an acquisition
resulting from a disposition of such stock or securities effected by
TurboChef or a public offering by
TurboChef;
|
-6-
|
|
(2)
|
The
individuals who constitute the members of the Board of Directors of
TurboChef, who shall be referred to as the “Incumbent Members”, cease for
any reason to constitute at least a majority of such Board of Directors,
provided that any individual becoming a member after the date of this
Employment Agreement whose election, or nomination for election by
TurboChef’s stockholders, was approved by a vote of at least a majority of
the then Incumbent Members shall be considered as though such individual
was an Incumbent Member; provided, however, that any individual becoming a
member of the Board of Directors in the aforesaid manner as part of a
group whose membership after election constitutes a majority of the Board
of Directors, or whose membership becomes a majority of the Board of
Directors within a reasonably short period of time because of the
resignation of Incumbent Members following the election of such group,
will not be considered as an Incumbent
Member;
|
|
|
(3)
|
The
closing of a merger, consolidation or other reorganization where, in each
case, with respect to which persons who were the stockholders of TurboChef
immediately prior to such merger, consolidation or other reorganization,
immediately thereafter, they do not own more than fifty percent of the
combined voting power of the merged, consolidated or reorganized
TurboChef’s then outstanding voting securities;
or
|
|
|
(4)
|
The
closing of a sale of all or substantially all of the assets of
TurboChef.
|
If
TurboChef or TurboChef’s accountants determine that the option exercise right
and the severance payments called for under this § 4(f) and § 4(a)(2)
plus any other payments or benefits made available to Executive by TurboChef
upon a Change in Control will result in Executive being subject to an excise tax
under Section 4999 of the Code, or if such an excise tax is assessed against
Executive as a result of such option exercise right or payment or other
benefits, TurboChef shall make a “Gross Up Payment” to or on behalf of Executive
as and when each and any such determination or assessment, as applicable, is
made, provided Executive takes such action (other than waiving Executive’s right
to any payments or benefits otherwise due from TurboChef) as TurboChef
reasonably requests under the circumstances to mitigate or challenge such tax;
provided, however, if TurboChef or TurboChef’s accountants determine that no
Gross Up Payment would be payable under this § 4(f) if Executive waives
Executive’s right to receive a part of such payments and such part does not
exceed $10,000, Executive agrees to irrevocably waive Executive’s right to
receive such part of such payments if an independent accountant or lawyer
retained by Executive and paid by TurboChef agrees with the determination made
by TurboChef or TurboChef’s accountants.
-7-
The term
“Gross Up Payment” as used in this Employment Agreement shall mean a payment to
or on behalf of Executive which shall be sufficient to pay (i) any excise tax
described in this § 4(f) in full, (ii) any federal, state and local income
tax and social security or other employment tax on the payment made to pay such
excise tax as well as any additional excise tax on such payment and (iii) any
interest or penalties assessed by the Internal Revenue Service on Executive if
such interest or penalties are attributable to TurboChef’s failure to comply
with its obligations under this §4(f) or applicable law. Any
determination under this §4(f) by TurboChef or TurboChef’s accountants shall be
made in accordance with Section 280G of the Code and any applicable related
regulations (whether proposed, temporary or final) and any related Internal
Revenue Service rulings and any related case law and, if TurboChef reasonably
requests that Executive take action to mitigate or challenge, or to mitigate and
challenge, any such tax or assessment and Executive complies with such request,
TurboChef shall provide Executive with such information and such expert advice
and assistance from TurboChef’s accountants, lawyers and other advisors as
Executive may reasonably request and shall pay for all expenses incurred in
effecting such compliance and any related fines, penalties, interest and other
assessments.
Notwithstanding
the foregoing, (i) each Gross Up Payment required to be made by TurboChef to
Executive hereunder and any overpayment of a Gross Up Payment required to be
repaid by Executive to TurboChef shall be paid no later than the end of the
calendar year next following the calendar year in which Executive remits the
corresponding taxes to the Internal Revenue Service, and (ii) any reimbursement
of expenses related to a tax audit or litigation addressing the existence or
amount of a tax liability required to be made by TurboChef to Executive
hereunder shall be paid no later than the end of the calendar year next
following the calendar year in which Executive remits to the Internal Revenue
Service the taxes that are the subject of the audit or litigation or, where as a
result of the audit or litigation no taxes are due or are remitted but other
reimbursable costs and/or expenses have been incurred, the end of the calendar
year following the calendar year in which the audit is completed or there is a
final and nonappealable settlement or other resolution of the
litigation.
(g) Benefits at Termination of
Employment. Upon termination of employment Executive shall
have the right to receive any benefits payable under TurboChef’s employee
benefit plans, programs and policies which Executive otherwise has a
nonforfeitable right to receive under the terms of such plans, programs and
policies (other than severance benefits) independent of Executive’s rights under
this Employment Agreement in addition to any base salary under § 3(a) which
accrued as of the termination date and are expressly payable under this § 4
without regard to the reason for such termination of employment. This
Employment Agreement shall terminate, and all obligations of TurboChef not
already accrued under this Employment Agreement for the benefit of Executive
shall end upon cessation of Executive’s employment by TurboChef (or any parent
or subsidiary) for any or no reason and upon death, except to the extent such
obligation is specifically provided for continuation or for Executive’s benefit
after termination of employment under this Employment Agreement.
-8-
§
5. COVENANTS BY
EXECUTIVE
(a) TurboChef
Property.
|
|
(1)
|
Executive
upon the termination of Executive’s employment for any reason or, if
earlier, upon TurboChef’s request shall promptly return all “Property”
which had been entrusted or made available to Executive by
TurboChef.
|
|
|
(2)
|
The
term “Property” means all records, files, memoranda, reports, price lists,
customer lists, drawings, plans, sketches, keys, codes, computer hardware
and software, equipment and other property of any kind or description
prepared, used or possessed by Executive during Executive’s employment by
TurboChef and, if applicable, any of its affiliates (and any duplicates of
any such property) together with any and all information, ideas, concepts,
discoveries, and inventions and the like conceived, made, developed or
acquired at any time by Executive individually or, with others during
Executive’s employment which relate to TurboChef business, products or
services.
|
(b) Trade
Secrets.
|
|
(1)
|
Executive
agrees that Executive will hold in a fiduciary capacity for the benefit of
TurboChef, and any of its affiliates, and will not directly or indirectly
use or disclose, any “Trade Secret” that Executive may have acquired
during the term of Executive’s employment by TurboChef or any of its
affiliates for so long as such information remains a Trade
Secret.
|
|
|
(2)
|
The
term “Trade Secret” means information, including, but not limited to,
technical or nontechnical data, a formula, a pattern, a compilation, a
program, a device, a method, a technique, a drawing, a process, financial
data, financial plans, product plans, or a list of actual or potential
customers or suppliers that (a) derives economic value, actual or
potential, from not being generally known to, and not being generally
readily ascertainable by proper means by, other persons who can obtain
economic value from its disclosure or use and (b) is the subject of
reasonable efforts by TurboChef and any of its affiliates to maintain its
secrecy.
|
-9-
|
|
(3)
|
This
§ 5(b) and § 5(c) are intended to provide rights to TurboChef
which are in addition to, not in lieu of, those rights TurboChef has under
the common law or applicable statutes for the protection of trade
secrets.
|
(c) Confidential
Information.
|
|
(1)
|
Executive
while employed under this Employment Agreement and thereafter during the
“Restricted Period” shall hold in a fiduciary capacity and use solely for
the benefit of TurboChef and any of its affiliates, and shall not directly
or indirectly disclose to any unauthorized person, any “Confidential
Information” that Executive may have acquired (whether or not developed or
compiled by Executive and whether or not Executive is authorized to have
access to such information) during the term of, and in the course of, or
as a result of Executive’s employment by TurboChef or any of its
affiliates.
|
|
|
(2)
|
The
term “Confidential Information” means any secret, confidential or
proprietary information possessed by TurboChef or any of its affiliates
relating to their businesses, including, without limitation, trade
secrets, customer lists, details of client or consultant contracts,
current and anticipated customer requirements, pricing policies, price
lists, market studies, business plans, operational methods, marketing
plans or strategies, product development techniques or flaws, computer
software programs (including object code and source code), data and
documentation data, base technologies, systems, structures and
architectures, inventions and ideas, past current and planned research and
development, compilations, devices, methods, techniques, processes,
financial information and data, business acquisition plans and personnel
acquisition or disposition plans (not otherwise included in the definition
of a Trade Secret under this Employment Agreement) that has not become
generally available to the public by the act of one who has the right to
disclose such information without violating any right of TurboChef or any
of its affiliates. Confidential Information may include, but
not be limited to, future business plans, licensing strategies,
advertising campaigns, information regarding customers, employees and
independent contractors and the terms and conditions of this Employment
Agreement.
|
(d) Restricted
Period. The term “Restricted Period” as used in the Employment
Agreement shall mean the twenty-four month period which starts on the date
Executive’s employment terminates with TurboChef without regard to whether such
termination comes before or after the end of the Term.
-10-
(e) Nonsolicitation of Customers
or Employees.
|
|
(1)
|
Executive
(i) while employed under this Employment Agreement shall not, on
Executive’s own behalf or on behalf of any person, firm, partnership,
association, corporation or business organization, entity or enterprise
(other than TurboChef or one of its affiliates), solicit Competing
Business of customers of TurboChef or any of its affiliates and (ii)
during the Restricted Period shall not, on Executive’s own behalf or on
behalf of any person, firm, partnership, association, corporation or
business organization, entity or enterprise, solicit Competing Business of
customers of TurboChef or any of its affiliates with whom Executive within
the twenty-four month period immediately preceding the beginning of the
Restricted Period had or made contact with in the course of Executive’s
employment by TurboChef.
|
|
|
(2)
|
Executive
(i) while employed under this Employment Agreement shall not, either
directly or indirectly, call on, solicit or attempt to induce any other
officer, employee or independent contractor of TurboChef or any of its
affiliates to terminate his or her employment with TurboChef or any of its
affiliates and shall not assist any other person or entity in such a
solicitation (regardless of whether any such officer, employee or
independent contractor would commit a breach of contract by terminating
his or her employment), and (ii) during the Restricted Period, shall
not, either directly or indirectly, call on, solicit or attempt to induce
any other officer, employee or independent contractor of TurboChef or any
of its affiliates with whom Executive had contact, knowledge of, or
association in the course of Executive’s employment with TurboChef or any
of its affiliates as the case may be, during the twelve month period
immediately preceding the beginning of the Restricted Period, to terminate
his or her employment with TurboChef or any of its affiliates and shall
not assist any other person or entity in such a solicitation (regardless
of whether any such officer, employee or independent contractor would
commit a breach of contract by terminating his or her
employment).
|
|
|
(3)
|
The
term “Competing Business” as used in this Employment Agreement means the
design, development, manufacture, marketing, selling, licensing or
servicing of appliances utilizing Speed Xxxx Technology or high heat
coefficient air impingement or air circulation technology. For
this purpose “Speed Xxxx Technology” shall mean technology that allows the
cooking of foods at speeds greater than three times conventional cooking
speeds other than through the use of microwave technology
alone.
|
-11-
(f) Noncompetition
Obligation. Executive while employed under this Employment
Agreement and thereafter during the Restricted Period and within the United
States, shall not organize or form any other business that will conduct
Competing Business and shall not engage in the management of, or provide
consulting concerning the management of, Competing Business on behalf of any
business other than TurboChef or its affiliates. Executive
acknowledges and agrees that the territory identified in this § 5(f) are
states in which Executive performs services for TurboChef by being actively
engaged as a member of TurboChef’s executive management team in TurboChef’s
operations in these states.
(g) Reasonable and Continuing
Obligations. Executive agrees that Executive’s obligations
under this § 5 are obligations which will continue beyond the date
Executive’s employment terminates and that such obligations are reasonable and
necessary to protect TurboChef’s legitimate business
interests. TurboChef in addition shall have the right to take such
other action as TurboChef deems necessary or appropriate to compel compliance
with the provisions of this § 5.
(h) Remedy for
Breach. Executive agrees that the remedies at law of TurboChef
for any actual or threatened breach by Executive of the covenants in this
§ 5 would be inadequate and that TurboChef shall be entitled to specific
performance of the covenants in this § 5, including entry of an ex parte,
temporary restraining order in state or federal court, preliminary and permanent
injunctive relief against activities in violation of this § 5, or both, or
other appropriate judicial remedy, writ or order, in addition to any damages and
legal expenses which TurboChef may be legally entitled to
recover. Executive acknowledges and agrees that the covenants in this
§ 5 shall be construed as agreements independent of any other provision of
this or any other agreement between TurboChef and Executive, and that the
existence of any claim or cause of action by Executive against TurboChef,
whether predicated upon this Employment Agreement or any other agreement, shall
not constitute a defense to the enforcement by TurboChef of such
covenants.
§
6. MISCELLANEOUS
(a) Notices. Notices
and all other communications shall be in writing and shall be deemed to have
been duly given when personally delivered or received or when mailed by United
States registered or certified mail. Notices to TurboChef shall be
sent to TurboChef Technologies, Inc., Xxxxx 0000, Xxx Xxxxxxxxx Xxxxxxx,
Xxxxxxx, XX 00000, Attention: Corporate Secretary, or such
other address as may be provided to Executive in writing for such
purpose. Notices and communications to Executive shall be sent to the
address Executive most recently provided to TurboChef.
(b) No
Waiver. Except for the notice described in § 6(a), no
failure by either TurboChef or Executive at any time to give notice of any
breach by the other of, or to require compliance with, any condition or
provision of this Employment Agreement shall be deemed a waiver of any
provisions or conditions of this Employment Agreement.
-12-
(c) Delaware
Law. This Employment Agreement shall be governed by Delaware
law without reference to the choice of law principles thereof.
(d) Assignment. This
Employment Agreement shall be binding upon and inure to the benefit of TurboChef
and any successor to all or substantially all of the business or assets of
TurboChef. TurboChef may assign this Employment Agreement to any
affiliate or successor, and no such assignment shall be treated as a termination
of Executive’s employment under this Employment
Agreement. Executive’s rights and obligations under this Employment
Agreement are personal and shall not be assigned or transferred.
(e) Other
Agreements. This amended and restated Employment Agreement
replaces and merges any and all previous agreements and understandings regarding
all the terms and conditions of Executive’s employment relationship with
TurboChef, and this Employment Agreement constitutes the entire agreement
between TurboChef and Executive with respect to such terms and
conditions. This Employment Agreement does not replace any previous
agreement regarding ownership of inventions or other intellectual
property.
(f) Amendment. No
amendment to this Employment Agreement shall be effective unless it is in
writing and signed by TurboChef and by Executive.
(g) Invalidity. If
any part of this Employment Agreement is held by a court of competent
jurisdiction to be invalid or otherwise unenforceable, the remaining part shall
be unaffected and shall continue in full force and effect, and the invalid or
otherwise unenforceable part shall be deemed not to be part of this Employment
Agreement.
(h) Section
409A. It is the intent of TurboChef and the Executive that all
payments payable to the Executive pursuant to this Employment Agreement shall
comply with Section 409A of the Internal Revenue Code of 1986, as amended (the
“Code”), and the guidance thereunder (collectively “Section 409A”) or shall be
exempt from Section 409A (as short-term deferrals or otherwise in accordance
with Section 409A). Notwithstanding the foregoing, to the extent
TurboChef determines in good faith that (a) one or more payments or benefits
received or to be received by Executive pursuant to this Employment Agreement
(including any Gross Up Payment) would constitute deferred compensation subject
to the rules of Section 409A, and (b) that the Executive is a “specified
employee” under Section 409A, then only to the extent required to avoid the
Executive’s incurrence of any additional tax or interest or penalties
under Section 409A, such payment or benefit will be delayed until the first
business day after the date which is six (6) months after the Participant’s
“separation from service” within the meaning of Section 409A. In
addition, to the extent TurboChef determines in good faith that one or more
payments or benefits received or to be received by the Executive upon a
termination of employment pursuant to this Employment Agreement would constitute
deferred compensation subject to the rules of Section 409A, a termination of
employment shall be deemed to occur only if such termination of employment
constitutes a “separation from service” as defined in Section 409A, as
determined by TurboChef in accordance with such elections and policies adopted
by it from time to time.
-13-
IN
WITNESS WHEREOF, TurboChef and Executive have executed this Employment Agreement
in multiple originals to be effective upon the date of the last signature
hereto.
|
TURBOCHEF
TECHNOLOGIES, INC.
|
EXECUTIVE
|
||
|
By:
/s/ Xxxxxx
Xxxxxxxxx xx Xxxxxx
|
/s/ Xxxx
Xxxx
|
||
|
Name:
Xxxxxx Xxxxxxxxx xx Xxxxxx
|
Xxxx
Xxxx
|
||
|
Title:
SVP & CFO
|
|||
|
Date:
July 1, 2008
|
Date: July
1, 2008
|
-14-
