the meaning of Section 162(m)
of the Internal Revenue Code of 1986, as amended (the Code), a subcommittee of the Committee shall be appointed to grant awards to Named
Executive Officers (as defined above under Executive Compensation) and to officers who are subject to Section 16 of the Exchange Act, and
each member of such subcommittee shall satisfy the requirements of (i) and (ii) above. References to the Committee in this summary shall include and,
as appropriate, apply to any such subcommittee.
Subject to the requirement that
stockholder approval be obtained for certain amendments, the Plan may be amended by the Committee in whole or in part, but no such action shall
adversely affect any rights or obligations with respect to any awards previously granted under the Plan, unless the participants affected by such
amendment provide their written consent.
Under the Plan, participants may
be granted stock options (qualified and nonqualified), stock appreciation rights (SARs), restricted stock, restricted stock units
(RSUs), and performance shares, provided that non-employee directors are not eligible for grants of qualified stock options or performance
shares. Except to the extent the Committee determines that an award shall not comply with the performance-based compensation provisions of Section
162(m), the maximum number of shares subject to options and stock appreciation rights that, in the aggregate, may be granted pursuant to awards in any
one calendar year to any one participant shall be 1,500,000 shares, and the maximum number of shares of restricted stock and restricted stock units,
and performance shares or units that may be granted, in the aggregate, pursuant to awards in any one calendar year to any one participant shall be
1,000,000 shares.
Shares awarded or subject to
purchase under the Plan that are not delivered or purchased, or revert to the Company as a result of forfeiture or termination, expiration or
cancellation of an award, will be again available for issuance under the Plan.
The Committee will determine the
individuals to whom awards will be granted, the number of shares subject to an award, and the other terms and conditions of an award. The Committee may
provide in the agreements relating to awards under the Plan for automatic accelerated vesting and other rights upon the occurrence of a change in
control or upon the occurrence of other events as may be specified in such agreements. To the extent provided by law, the Committee may delegate to one
or more persons the authority to grant awards to individuals who are not Named Executive Officers and not subject to Section 16 under the Exchange Act.
The Committee has delegated authority to the Chairman of the Board and the Chief Executive Officer of the Company to grant awards for up to 15,000
shares of common stock each calendar quarter in the aggregate to employees of the Company. As applicable, when used in this description of the Plan,
the Committee also refers to any such individual to whom the Committee has delegated some of its authority to grant awards.
STOCK
OPTIONS. The number of shares subject to a stock option, the type of stock option (i.e., incentive stock option or nonqualified
stock option), the exercise price of a stock option (which for an incentive stock option shall be not less than the fair market value of a share on the
date of grant) and the period of exercise will be determined by the Committee and set forth in an option agreement; provided that no option will be
exercisable more than ten years after the date of grant.
Options granted under the Plan
shall be exercisable at such times and be subject to restrictions and conditions as the Committee shall in each instance approve, including conditions
related to the employment of or provision of services by a participant. The Committee shall determine and set forth in the option agreement the extent
to which options are exercisable after termination of employment. The Committee may provide for deferral of option gains related to an exercise. The
option price upon exercise shall be paid to the Company in full, either (a) in cash, (b) cash equivalent approved by the Committee, (c) by tendering
(or attesting to the ownership of) previously acquired shares having an aggregate fair market value at the time of exercise equal to the total exercise
option price, or (d) by a combination of (a), (b) and (c). The Committee may also allow cashless exercises as permitted under the Federal Reserve
Boards Regulation T, subject to applicable securities law restrictions, or by any other means which the Committee determines to be consistent
with the Plans purpose and applicable law.
SARS. SARs
granted under the Plan entitle the grantee to receive an amount payable in shares and/or cash, as determined by the Committee, equal to the excess of
the fair market value of a share on the day the SAR is exercised over the specified exercise price. SARs may be granted in tandem with a related stock
option or
25
independently. If a SAR is
granted in tandem with a stock option, the grantee may exercise the stock option or the SAR, but not both. The Committee shall determine and set forth
in the award agreement the extent to which SARs are exercisable after termination of employment.
RESTRICTED STOCK/RESTRICTED STOCK
UNITS. Restricted stock awards may be made either alone, in addition to or in tandem with other types of awards permitted under
the Plan and may be current grants of restricted stock or deferred grants. The terms of restricted stock awards, including the restriction period,
performance targets applicable to the award and the extent to which the grantee will have the right to receive unvested restricted stock following
termination of employment or other events, will be determined by the Committee and be set forth in the agreement relating to such award. Unless
otherwise set forth in an agreement relating to a restricted stock award, the grantee of restricted stock shall have all of the rights of a stockholder
of the Company, including the right to vote the shares and the right to receive dividends, provided however that the Committee may require that any
dividends on such shares of restricted stock be automatically deferred and reinvested in additional restricted stock or may require that dividends on
such shares be paid to the Company to be held for the account of the grantee.
A restricted stock unit is an
unsecured promise to transfer an unrestricted share at a specified future date, such as a fixed number of years, retirement or other termination of
employment (which date may be later than the vesting date of the award at which time the right to receive the share becomes nonforfeitable). Restricted
stock units represent the right to receive a specified number of shares at such times, and subject to such restriction period and other conditions, as
the Committee determines. A participant to whom restricted stock units are awarded has no rights as a stockholder with respect to the shares
represented by the restricted stock units unless and until shares are actually delivered to the participant in settlement of the award. However,
restricted stock units may have dividend equivalent rights if provided for by the Committee.
PERFORMANCE
SHARES. Performance shares are awards granted in terms of a stated potential maximum number of shares, with the actual number
and value earned to be determined by reference to the satisfaction of performance targets established by the Committee. Such awards may be granted
subject to any restrictions, in addition to performance conditions, deemed appropriate by the Committee. Except as otherwise provided in an agreement
relating to performance shares, a grantee shall be entitled to receive any dividends declared with respect to shares earned that have not yet been
distributed to the grantee and shall be entitled to exercise full voting rights with respect to such shares.
PERFORMANCE
MEASURES. If awards granted or issued under the Plan are intended to qualify under the performance-based compensation provisions
of Section 162(m) of the Code, the performance measure(s) to be used for purposes of such awards shall be chosen by the Committee from among the
following: earnings, earnings per share, consolidated pre-tax earnings, net earnings, operating income, EBIT (earnings before interest and taxes),
EBITDA (earnings before interest, taxes, depreciation and amortization), gross margin, revenues, revenue growth, market value added, economic value
added, return on equity, return on investment, return on assets, return on net assets, return on capital employed, total stockholder return, profit,
economic profit, capitalized economic profit, after-tax profit, pre-tax profit, cash flow measures, cash flow return, sales, sales volume, stock price,
cost, and/or unit cost. The Committee can establish other performance measures for awards granted to participants that are not Named Executive
Officers, as defined in the Securities Exchange Act of 1934, as amended, or for awards granted to Named Executive Officers that are not intended to
qualify under the performance-based compensation provisions of Section 162(m) of the Code.
MISCELLANEOUS
PROVISIONS. The Plan prohibits the Company from decreasing the Option Price of any outstanding Option (except for changes in
capitalization) without first receiving stockholder approval of such repricing.
Federal Income Tax Consequences
The following is a brief summary
of the current U.S. federal income tax consequences of awards made under the Plan. This summary is general in nature and is not intended to cover all
tax consequences that may apply to participants and the Company. Further, the provisions of the Code and the regulation and rulings thereunder relating
to these matters may change.
26
STOCK
OPTIONS. A participant will not recognize any income upon the grant or purchase of a stock option. A participant will recognize
income taxable as ordinary income (and subject to income tax withholding for Company employees) upon exercise of a non-qualified stock option equal to
the excess of the fair market value of the shares purchased over the sum of the exercise price and the amount, if any, paid for the option on an
after-tax basis, and the Company will be entitled to a corresponding deduction. A participant will not recognize income (except for purposes of the
alternative minimum tax) upon exercise of an incentive stock option provided that the incentive stock option is exercised either while the participant
is an employee of the Company or within 3 months (one year if the participant is disabled within the meaning of Section 22(c)(3) of the Code) following
the participants termination of employment. If shares acquired by such exercise of an incentive stock option are held for the longer of two years
from the date the option was granted and one year from the date it was exercised, any gain or loss arising from a subsequent disposition of such shares
will be taxed as long-term capital gain or loss, and the Company will not be entitled to any deduction. If, however, such shares are disposed of within
the above-described period, then in the year of such disposition the participant will recognize income taxable as ordinary income equal to the excess
of (i) the lesser of the amount realized upon such disposition and the fair market value of such shares on the date of exercise over (ii) the exercise
price, and the Company will be entitled to a corresponding deduction.
SARS. A
participant will not recognize any income upon the grant of a SAR. A participant will recognize income taxable as ordinary income (and, subject to
income tax withholding for Company employees) upon exercise of a SAR equal to the fair market value of any shares delivered and the amount of cash paid
by the Company upon such exercise, and the Company will be entitled to a corresponding deduction.
RESTRICTED STOCK
AWARDS. A participant will not recognize taxable income at the time of the grant of a restricted stock award, and the Company
will not be entitled to a tax deduction at such time, unless the participant makes an election under a special Code provision to be taxed at the time
such restricted stock award is granted. If such election is not made, the participant will recognize taxable income at the time the restrictions on
such restricted stock award lapse in an amount equal to the excess of the fair market value of the shares at such time over the amount, if any, paid
for such shares. The amount of ordinary income recognized by a participant making the above-described special election or upon the lapse of the
restrictions is deductible by the Company, as compensation expense, except to the extent the limit of Section 162(m) applies. In addition, a
participant receiving dividends with respect to shares subject to a restricted stock award for which the above-described election has not been made and
prior to the time the restrictions lapse will recognize taxable compensation (subject to income tax withholding for Company employees), rather than
dividend income, in an amount equal to the dividends paid and the Company will be entitled to a corresponding deduction.
RESTRICTED STOCK
UNITS. A participant will not recognize taxable income at the time of the grant of a restricted stock unit and the Company will
not be entitled to a tax deduction at such time. When the participant receives shares pursuant to a restricted stock unit, the federal income tax
consequences applicable to restricted stock awards, described above, will apply.
PERFORMANCE SHARE
AWARDS. A participant will not recognize taxable income upon the grant of a performance share award, and the Company will not be
entitled to a tax deduction at such time. Upon the settlement of a performance share award, the participant will recognize compensation taxable as
ordinary income (and subject to income tax withholding for Company employees) in an amount equal to the cash paid and the fair market value of the
shares delivered to the participant, and the Company will be entitled to a corresponding deduction.
COMPLIANCE WITH SECTION
162(m). Section 162(m) of the Code denies an income tax deduction to an employer for certain compensation in excess of $1
million per year paid by a publicly traded corporation to the Chief Executive Officer or any of the four most highly compensated executive officers
other than the Chief Executive Officer. Compensation realized with respect to stock options awarded under the Plan, including upon exercise of a
non-qualified stock option or upon a disqualifying disposition of an incentive stock option, as described above, will be excluded from this
deductibility limit if it satisfies certain requirements, including a requirement that the Plan be approved by the Companys current stockholders.
In addition, other types of awards under the Plan may be excluded from this deduction limit if they are conditioned on the achievement of one or more
of the performance measures described above, as required by Section 162(m). To satisfy the requirements that apply to
27
performance-based compensation, those performance measures must be
approved by our current stockholders, and approval of the Plan will also constitute approval of those measures.
Plan Awards
As of June 2, 2008, awards with
respect to 4,953,707 shares of common stock have been granted and awards with respect to 3,412,697 shares are outstanding under the Plan. Exercise
prices for stock options are set at fair market value on the day of grant and range from a low of $5.25 per share to a high of $16.06 per share.
Options granted under the Plan through June 2, 2008 expire ten years after the grants, beginning October 29, 2013. On June 2, 2008, the market value of
all shares of common stock underlying outstanding awards granted under the Plan was $22,114,277. The table below shows options and RSUs received under
the Plan by the indicated participants through June 2, 2008:
NAME AND POSITION
|
|
|
|
NUMBER OF OPTIONS
|
|
NUMBER OF RSUs
|
Named Executive
Officers:
|
|
|
|
|
|
|
|
|
|
|
Richard E.
Perlman Chairman
|
|
|
|
|
416,667
|
|
|
|
58,000
|
|
James K.
Price CEO
|
|
|
|
|
416,667
|
|
|
|
58,000
|
|
J. Miguel
Fernandez de Castro CFO (from 10/07)
|
|
|
|
|
48,333
|
|
|
|
90,000
|
|
Paul A. Lehr
COO
|
|
|
|
|
173,333
|
|
|
|
156,000
|
|
Stephen J.
Beshara Chief Branding Officer
|
|
|
|
|
173,333
|
|
|
|
181,000
|
|
James A.
Cochran Senior Vice President
|
|
|
|
|
148,333
|
|
|
|
50,000
|
|
Current
Executive Officers, as a Group*
|
|
|
|
|
1,331,666
|
|
|
|
588,000
|
|
|
Non-Executive
Officer Director nominees:
|
|
|
|
|
|
|
|
|
|
|
J. Thomas
Presby
|
|
|
|
|
68,333
|
|
|
|
14,000
|
|
William A.
Shutzer
|
|
|
|
|
68,333
|
|
|
|
14,000
|
|
Raymond H.
Welsh
|
|
|
|
|
53,332
|
|
|
|
10,000
|
|
James W.
DeYoung
|
|
|
|
|
61,665
|
|
|
|
18,988
|
|
Sir Anthony
Jolliffe
|
|
|
|
|
89,998
|
|
|
|
14,580
|
|
Non-executive
Officer Directors, as a Group
|
|
|
|
|
341,661
|
|
|
|
71,568
|
|
|
Employees
(including officers) who are not Executive Officers, as a Group
|
|
|
|
|
1,657,104
|
|
|
|
740,668
|
|
*
|
|
Does not include awards to James A.
Cochran, who is still an officer of the Company but no longer an executive officer.
|
Subject to approval of the
proposed amendment to the Plan by the stockholders, future awards will be made at the discretion of the Committee. The number of awards that may be
granted in the future to eligible participants is not currently determinable. Only Messrs. Perlman, Price, Lehr and Beshara received 5% or more of the
awards granted under the Plan.
Vote Required
The affirmative vote of a
majority of the shares present or represented by proxy and entitled to vote at the annual meeting is required for approval of the proposed amendment of
the Plan. Broker non-votes are not entitled to vote on this matter, and consequently will not affect the outcome. Abstentions have the same effect as
votes against adoption of the proposal. Proxies that are executed, but that do not contain any specific instructions, will be voted for this proposed
amendment of the Plan.
Recommendation of the Board of
Directors
Our Board of Directors recommends
that stockholders vote FOR approval of the proposed amendment of the Plan.
28
PROPOSAL THREE SELECTION OF INDEPENDENT REGISTERED
PUBLIC
ACCOUNTING FIRM FOR 2008
The Audit Committee of the Board
of Directors has selected Ernst & Young LLP to be our independent registered public accounting firm for the fiscal year ending December 31, 2008,
and proposes that the stockholders ratify this selection at the annual meeting. Ratification of the selection of Ernst & Young LLP requires the
approval of a majority of the shares present or represented by proxy and entitled to vote at the annual meeting. Abstentions and broker non-votes will
not be counted. If the selection of Ernst & Young LLP is rejected by the stockholders, then the Audit Committee will re-evaluate its selection.
Proxies that are executed, but that do not contain any specific instructions, will be voted for the selection of Ernst & Young
LLP.
Representatives of Ernst &
Young LLP are expected to be present at the annual meeting and will have the opportunity to make a statement if they desire to do so and will be
available to respond to appropriate questions.
The Board unanimously recommends
a vote FOR this proposal.
Report of the Audit Committee
Three members of the
Companys Board of Directors comprise the Audit Committee of the Board. Those members are Messrs. J. Thomas Presby, William A. Shutzer and Raymond
H. Welsh. The Board of Directors has adopted a written charter for the Audit Committee.
The Audit Committee reviewed the
Companys audited financial statements for the fiscal year ended December 31, 2007 and discussed these financial statements with the
Companys management and independent auditors. As appropriate, the Audit Committee reviewed and evaluated, and discussed with the Companys
management, internal accounting and financial personnel and the independent auditors, the following:
|
|
the plan for, and the independent
auditors report on, the audit of the Companys financial statements;
|
|
|
the Companys financial disclosure
documents, including all financial statements and reports filed with the Securities and Exchange Commission or sent to the Companys
stockholders;
|
|
|
managements selection, application
and disclosure of critical accounting policies;
|
|
|
changes in the Companys accounting
practices, principles, controls or methodologies;
|
|
|
significant developments or changes in
accounting rules applicable to the Company; and
|
|
|
the adequacy of the Companys
internal controls and accounting and financial personnel.
|
The Audit Committee also reviewed
and discussed the audited financial statements and the matters required by Statement on Auditing Standards 61 (Communication with Audit Committees)
with Ernst & Young LLP, the Companys independent auditors. SAS 61 requires the Companys independent auditors to discuss with the
Companys Audit Committee, among other things, the following, if applicable:
|
|
methods to account for significant
unusual transactions;
|
|
|
the effect of significant accounting
policies in controversial or emerging areas for which there is a lack of authoritative guidance or consensus;
|
|
|
the process used by management in
formulating particularly sensitive accounting estimates and the basis for the auditors conclusions regarding the reasonableness of those
estimates; and
|
|
|
disagreements with management over the
application of accounting principles, the basis for managements accounting estimates and the disclosures in the financial
statements.
|
The Companys independent
auditors also provided the Audit Committee with the written disclosures and the letter required by Independence Standards Board Standard No. 1
(Independence Discussions with Audit Committees) and Rule 3600T of the PCAOB. Independence Standards Board Standard No. 1 requires auditors annually to
disclose in writing all relationships that in the auditors professional opinion may reasonably be thought
29
to bear on independence,
confirm their perceived independence and engage in a discussion of independence. The Audit Committee discussed with the independent auditors the
matters disclosed in this letter and their independence from the Company. The Audit Committee also considered whether the independent auditors
provision of the other, non-audit related services to the Company which are described in Independent Accountant Fees below is compatible
with maintaining such auditors independence.
In performing all of the
functions described above, the Audit Committee acts only in an oversight capacity. The Audit Committee relies on the work and assurances of the
Companys management, which has the primary responsibility for the Companys financial statements and reports, and of the independent
auditors, who, in their report, express an opinion on the conformity of the Companys annual financial statements to generally accepted accounting
principles.
Based on its discussions with
management and the independent auditors, and its review of the representations and information provided by management and the independent auditors, the
Audit Committee recommended to the Companys Board of Directors that the audited financial statements be included in the Companys Annual
Report on Form 10-K for the year ended December 31, 2007.
By the Audit Committee:
J. Thomas Presby
William A.
Shutzer
Raymond H. Welsh
Independent Accountant Fees
Audit Fees and All Other Fees
Audit
Fees
Fees for audit services totaled
approximately $1.1 million in 2007 and $536,000 in 2006, including fees associated with the annual audit and internal control report, the reviews of
the Companys quarterly reports on Form 10-Q and annual reports on Form 10-K and, for 2007, fees associated with the stock option
investigation.
Audit-Related
Fees
Fees for audit related services
totaled approximately $1,500 in 2007 and $2,000 in 2006. Audit related services principally include accounting consultations and other attest
services.
Tax
Fees
Fees for tax services totaled
approximately $37,000 in 2007 and $50,000 in 2006, including tax compliance, tax advice and tax planning.
All Other
Fees
The Company did not pay its
principal accountant any other fees in 2007 or in 2006.
The Audit Committee pre-approves
all services for which the principal accountant is engaged.
We have been advised by Ernst
& Young LLP that neither the firm, nor any member of the firm, has any financial interest, direct or indirect, in any capacity in the Company or
its subsidiaries.
OTHER MATTERS
As of the date of this proxy
statement, our Board of Directors does not know of any other matters that will be presented for consideration at the annual meeting other than as
described in this proxy statement. However, if any other matter is properly presented at the meeting, proxies will be voted in accordance with the
judgment of the proxy holders.
30
PROXIES
Proxies are solicited on behalf
of the Company, and the cost of this solicitation will be borne by the Company. Directors, officers and other employees of the Company may, without
compensation other than reimbursement for actual expenses, solicit proxies by mail, in person or by telecommunication. The Company may reimburse
brokers, fiduciaries, custodians and other nominees for out-of-pocket expenses incurred in assisting in the distribution of the Companys proxy
materials to, and obtaining instructions relating to such materials from, beneficial owners.
Once given, you may later revoke
your proxy prior to the vote at the meeting by (1) delivering a written instrument revoking the proxy to our Secretary, (2) delivering another proxy
with a later date to our Secretary, or (3) voting in person. Attendance at the annual meeting will not constitute a revocation of a proxy absent
compliance with one of the foregoing three methods of revocation.
COMMUNICATING WITH THE BOARD OF
DIRECTORS
TurboChef security holders and
other parties with concerns about the Companys conduct or about accounting, internal control or auditing matters may communicate with the Board
by writing to them in care of the Corporate Secretary, TurboChef Technologies, Inc., Six Concourse Parkway, Suite 1900, Atlanta, GA 30328. All concerns
related to accounting, internal control or auditing matters will be referred to the Chairman of the Audit Committee. Correspondence otherwise will be
directed as requested by the writer. The Company may screen or filter out solicitations for goods or services or other inappropriate communications
unrelated to TurboChef or its business under procedures adopted by the independent members of the Board.
STOCKHOLDER PROPOSALS FOR THE 2009 ANNUAL
MEETING
Any stockholder intending to
submit a proposal for inclusion in the proxy statement and form of proxy for our 2009 Annual Meeting of Stockholders must submit the proposal to the
attention of our Secretary at our principal executive office sufficiently far in advance so that it is received by us no later than March 20,
2009.
In addition, stockholders may
present proposals which are proper subjects for consideration at an annual meeting, including nominees for election to our Board of Directors, even if
the proposal is not submitted by the deadline for inclusion in the proxy statement. To do so, the proposal should be submitted to the attention of our
Secretary at our principal executive office in a timely manner before we send out our proxy materials. For the 2009 Annual Meeting of Stockholders such
a proposal should be submitted sufficiently far in advance that it is received by us no later than April 27, 2009. Proxy voting on proposals, if any,
received after that date will be subject to the discretionary voting authority of the designated proxy holders.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and
special reports, proxy statements and other information with the SEC. You may read and copy any reports, statements or other information that we file
at the SECs public reference room at 450 Fifth Street, N.W., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further
information on the public reference rooms. You may also obtain copies of this information by mail from the Public Reference Section of the SEC, 450
Fifth Street, N.W., Room 1024, Washington, D.C. 20549, at prescribed rates. The SEC also maintains an Internet World Wide Web site that contains
reports, proxy statements and other information about issuers, including us, who file electronically with the SEC. The address of that site is
http://www.sec.gov.
YOU SHOULD RELY ONLY ON THE
INFORMATION CONTAINED IN THIS PROXY STATEMENT TO VOTE YOUR SHARES AT THE ANNUAL MEETING. WE HAVE NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH INFORMATION
THAT IS DIFFERENT THAN THAT WHICH IS CONTAINED IN THIS PROXY STATEMENT. THIS PROXY STATEMENT IS DATED JUNE 11, 2008. YOU SHOULD NOT ASSUME THAT THE
INFORMATION CONTAINED IN THIS PROXY STATEMENT IS ACCURATE AS OF ANY OTHER DATE.
31
Appendix to Schedule 14A
TURBOCHEF TECHNOLOGIES, INC.
2003 STOCK INCENTIVE PLAN
-i-
Table of Contents
(Continued)
|
Page
|
-ii-
Table of Contents
(Continued)
|
Page
|
-iii-
TURBOCHEF TECHNOLOGIES, INC.
2003 STOCK INCENTIVE PLAN
ARTICLE 1
- GENERAL PROVISIONS
1.1
Establishment of Plan
. TurboChef Technologies, Inc., a Delaware corporation (the Company), hereby establishes an incentive compensation plan to be known as the TurboChef Technologies, Inc. 2003 Stock Incentive Plan (the Plan), as set forth in this document.
1.2
Purpose of Plan
. The objectives of the Plan are to (i) attract and retain employees, directors, consultants, advisors and other persons who perform services for the Company by providing compensation opportunities that are competitive with other companies; (ii) provide incentives to those individuals who contribute significantly to the long-term performance and growth of the Company and its affiliates; and (iii) align the long-term financial interests of employees and other Eligible Participants with those of the Companys stockholders.
1.3
Types of Awards
. Awards under the Plan may be made to Eligible Participants in the form of Incentive Stock Options, Nonqualified Stock Options, Stock Appreciation Rights, Restricted Stock, Restricted Stock Units, Performance Shares, Performance Units or any combination of these.
1.4
Effective Date
. The Plan shall be effective on October 29, 2003, the date it was approved by the Board of Directors of the Company (the Effective Date), subject to approval by the Companys stockholders within the 12-month period immediately thereafter.
1.5
Duration of the Plan
. The Plan shall commence on the Effective Date, and shall remain in effect, subject to the right of the Committee to amend or terminate the Plan at any time pursuant to Article 13, until the day prior to the tenth (10
th
) anniversary of the Effective Date.
ARTICLE 2
- DEFINITIONS
Except where the context otherwise indicates, the following definitions apply:
2.1
Act
means the Securities Exchange Act of 1934, as now in effect or as hereafter amended. All citations to sections of the Act or rules thereunder are to such sections or rules as they may from time to time be amended or renumbered.
2.2
Agreement
means the written agreement evidencing an Award granted to the Participant under the Plan.
2.3
Award
means an award granted to a Participant under the Plan that is an Option, Stock Appreciation Right, Restricted Stock, Restricted Stock Unit, Performance Share, Performance Unit or combination of these.
2.4
Board
means the Board of Directors of the Company.
-1-
2.5
Cause
means, unless provided otherwise in the Agreement: any conduct amounting to fraud, dishonesty, willful misconduct, negligence, significant activities materially harmful to the reputation of the Company or an Employer, insubordination or conviction of a felony or a crime involving moral turpitude, all as determined in the exercise of good faith by the Board of Directors of the Company. Without limiting the foregoing, the following shall constitute Cause: (i) Participants breach of this Plan or any agreement between Participant and the Employer, (ii) negligence in Participants attention to the business or affairs of the Employer or intentionally failing to perform a reasonably requested directive or assignment or failure to perform his duties with the Employer
substantially in accordance with the Employers operating and personnel policies and procedures generally applicable to all of its employees, (iii) the misappropriation (or attempted misappropriation) of any of the Employers funds or property. Cause under (i), (ii) and (iii) above shall be determined by the Committee. Notwithstanding the foregoing, if the Participant has entered into an employment agreement with the Employer that is binding as of the date of employment termination, and if such employment agreement defines Cause, then the definition of Cause in such agreement shall apply to the Participant for purposes of this Plan.
2.6
Change in Control
means:
(a) Any Person is or becomes the beneficial owner within the meaning of Rule 13d-3 promulgated under the Act (but without regard to any time period specified in Rule 13d-3(d)(1)(i)), of 50 percent or more of either (i) the then outstanding Shares or (ii) the combined voting power of then outstanding securities of the Company entitled to vote generally in the election of directors (the Outstanding Company Voting Securities); excluding, however, (1) any acquisition by the Company or (2) any acquisition by an employee benefit plan (or related trust) sponsored or maintained by the Company or any corporation controlled by the Company;
(b) Individuals who, as of the Effective Date, constitute the Board (the Incumbent Board) cease for any reason to constitute at least a majority of such Board; provided that any individual who becomes a director of the Company subsequent to the Effective Date whose election, or nomination for election by the Companys stockholders, was approved by the vote of at least a majority of the directors then comprising the Incumbent Board shall be deemed a member of the Incumbent Board; and provided further, that any individual who was initially elected as a director of the Company as a result of an actual or threatened election contest, as such terms are used in Rule 14a-11 of Regulation 14A promulgated under the Act, or any other actual or threatened solicitation of proxies or consents by or on behalf of any Person other
then the Board shall not be deemed a member of the Incumbent Board;
(c) Consummation by the Company of a reorganization, merger, or consolidation or sale of all or substantially all of the assets of the Company (a Corporate Transaction); excluding, however, a Corporate Transaction pursuant to which (i) all or substantially all of the individuals or entities who are the beneficial owners, respectively, of the Outstanding Shares and the Outstanding Company Voting Securities immediately prior to such Corporate Transaction will beneficially own, directly or indirectly, more than 66 2/3 percent of, respectively, the outstanding shares of common stock, and the
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combined voting power of the outstanding securities of such corporation entitled to vote generally in the election of directors, as the case may be, of the corporation resulting from such Corporate Transaction (including, without
limitation, a corporation which as a result of such transaction owns the Company or all or substantially all of the Companys assets either directly or indirectly) in substantially the same proportions relative to each other as their ownership, immediately prior to such Corporate Transaction, of the Outstanding Shares and the Outstanding Company Voting Securities, as the case may be, (ii) no Person (other than: the Company, any employee benefit plan (or related trust) sponsored or maintained by the Company or any corporation controlled by the Company, the corporation resulting from such Corporate Transaction, and any Person which beneficially owned, immediately prior to such Corporate Transaction, directly or indirectly 33 1/3 percent or more of the Outstanding Shares or the Outstanding Company Voting Securities, as the case may be) will beneficially own, directly or indirectly, 33 1/3 percent or more of, respectively, the outstanding shares of common stock of the
corporation resulting from such Corporate Transaction or the combined voting power of the outstanding securities of such corporation entitled to vote generally in the election of directors and (iii) individuals who were members of the Incumbent Board will constitute at least a majority of the members of the board of directors of the corporation resulting from such Corporate Transaction; or
(d) Approval by the stockholders of the Company of a plan of complete liquidation or dissolution of the Company.
2.7
Code
means the Internal Revenue Code of 1986, as now in effect or as hereafter amended. All citations to sections of the Code are to such sections as they may from time to time be amended or renumbered.
2.8
Committee
means the Compensation Committee of the Board or such other committee consisting of two or more members as may be appointed by the Board to administer this Plan pursuant to Article 3. If any member of the Committee does not qualify as (i) a Non-Employee Director within the meaning of Rule 16b-3 under the Act, and (ii) an outside director within the meaning of Code Section 162(m), a subcommittee of the Committee shall be appointed to grant Awards to Named Executive Officers and to officers who are subject to Section 16 of the Act, and each member of such subcommittee shall satisfy the requirements of (i) and (ii) above. References to the Committee in the Plan shall include and, as appropriate, apply to any such subcommittee. If, at any time, the Board
has not appointed a Committee, the Board shall be the Committee.
2.9
Company
means TurboChef Technologies, Inc., a Delaware corporation, and its successors and assigns.
2.10
Director
means any individual who is a member of the Board of Directors of the Company; provided, however, that any Director who is employed by the Company or any Employer shall not be considered a Director, but instead shall be considered an employee for purposes of the Plan.
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2.11
Disability
means, with respect to any Incentive Stock Option, disability as determined under Code Section 22(e)(3), and with respect to any other Award, (i) with respect to a Participant who is eligible to participate in the Employers program of long-term disability insurance, if any, a condition with respect to which the Participant is entitled to commence benefits under such program, and (ii) with respect to any Participant (including a Participant who is eligible to participate in the Employers program of long-term disability insurance, if any), a disability as determined under procedures established by the Committee or in any Award.
2.12
Effective Date
shall have the meaning ascribed to such term in Section 1.4 hereof.
2.13
Eligible Participant
means an employee of the Employer (including an officer) as well as any other natural person, including a Director or proposed Director and a consultant or advisor who provides bona fide services to the Employer not in connection with the offer or sale of securities in a capital-raising transaction, subject to limitations as may be provided by the Code, the Act or the Committee, as shall be determined by the Committee.
2.14
Employer
means the Company and any entity during any period that it is a parent corporation or a subsidiary corporation with respect to the Company within the meaning of Code Sections 424(e) and 424(f). With respect to all purposes of the Plan, including but not limited to, the establishment, amendment, termination, operation and administration of the Plan, the Company shall be authorized to act on behalf of all other entities included within the definition of Employer.
2.15
Fair Market Value
means the fair market value of a Share, as determined in good faith by the Committee; provided, however, that
(a) if the Shares are traded on a national or regional securities exchange or on The Nasdaq National Market System (Nasdaq) on a given date, Fair Market Value on such date shall be the closing sales price for a Share on the securities exchange on the immediately preceding date (or, if no sales of Shares were made on such exchange on such date, on the next preceding day on which sales were made on such exchange), all as reported in
The Wall Street Journal
or such other source as the Committee deems reliable; and
(b) if the Shares are not listed on any securities exchange or traded on Nasdaq, but nevertheless are publicly traded and reported (through the OTC Bulletin Board or otherwise), Fair Market Value on such date shall be the closing sales price on the immediately preceding day (or, if there are no sales on such date, on the next preceding day); provided, however, that the Fair Market Value for stock options granted on the Effective Date shall be $1.75, which is the volume-weighted average price on such date.
For purposes of subsection (a) above, if Shares are traded on more than one securities exchange then the following exchange shall be referenced to determine Fair Market Value: (i) the New York Stock Exchange (NYSE), or (ii) if shares are not traded on the NYSE, the Nasdaq, or (iii) if shares are not traded on the NYSE or Nasdaq, the largest regional exchange on which Shares are traded.
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2.16
Incentive Stock Option
or
ISO
means an Option granted to an Eligible Participant under Article 5 of the Plan which is intended to meet the requirements of Section 422 of the Code.
2.17
Insider
shall mean an individual who is, on the relevant date, subject to the reporting requirements of Section 16(a) of the Act.
2.18
Named Executive Officer
means a Participant who, as of the date an Award could be deductible by the Employer, is one of the group of covered employees as defined in the regulations promulgated or other guidance under Code Section 162(m).
2.19
Nonqualified Stock Option
or
NQSO
means an Option granted to an Eligible Participant under Article 5 of the Plan which is not intended to meet the requirements of Section 422 of the Code.
2.20
Option
means an Incentive Stock Option or a Nonqualified Stock Option. An Option shall be designated as either an Incentive Stock Option or a Nonqualified Stock Option, and in the absence of such designation, shall be treated as a Nonqualified Stock Option.
2.21
Option Price
means the price at which a Share may be purchased by a Participant pursuant to an Option.
2.22
Participant
means an Eligible Participant to whom an Award has been granted.
2.23
Performance Share
means an Award under Article 8 of the Plan that is valued by reference to a Share, which value may be paid to the Participant by delivery of such property as the Committee shall determine, including without limitation, cash or Shares, or any combination thereof, upon achievement of such performance objectives during the relevant performance period as the Committee shall establish at the time of such Award or thereafter, but not later than the time permitted by Code Section 162(m) in the case of a Named Executive Officer, unless the Committee determines not to comply with Code Section 162(m).
2.24
Performance Unit
means an Award under Article 8 of the Plan that has a value set by the Committee, which value may be paid to the Participant by delivery of such property as the Committee shall determine, including without limitation, cash or Shares, or any combination thereof, upon achievement of such performance objectives during the relevant performance period as the Committee shall establish at the time of such Award or thereafter, but not later than the time permitted by Code Section 162(m) in the case of a Named Executive Officer, unless the Committee determines not to comply with Code Section 162(m).
2.25
Plan
means this TurboChef Technologies, Inc. 2003 Stock Incentive Plan, as amended from time to time.
2.26
Restricted Stock
means an Award of Shares under Article 7 of the Plan, which Shares are issued with such restriction(s) as the Committee, in its sole discretion, may impose, including without limitation, any restriction on the right to retain such Shares, to sell, transfer, pledge or assign such Shares, to vote such Shares, and/or to receive any cash dividends with
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respect to such Shares, which restrictions may lapse separately or in combination at such time or times, in installments or otherwise, as the Committee may deem appropriate.
2.27
Restricted Stock Unit
or
RSU
means a right granted under Article 7 of the Plan to receive a number of shares, or a cash payment for each such share equal to the Fair Market Value of a Share, on a specified date.
2.28
Restriction Period
means the period commencing on the date an Award of Restricted Stock or an RSU is granted and ending on such date as the Committee shall determine.
2.29
Retirement
means termination of employment other than for Cause after a Participant has reached the age of 65 years.
2.30
Share
means one share of common stock of the Company (as such Share may be adjusted pursuant to the provisions of Section 4.3 of the Plan).
2.31
Stock Appreciation Right
or
SAR
means an Award granted under Article 6 which provides for an amount payable in Shares and/or cash, as determined by the Committee, equal to the excess of the Fair Market Value of a Share on the day the Stock Appreciation Right is exercised over the specified purchase price.
ARTICLE 3
- ADMINISTRATION
3.1
General
. This Plan shall be administered by the Committee. The Committee, in its discretion, may delegate to one or more of its members such of its powers as it deems appropriate. Members of the Committee shall be appointed originally, and as vacancies occur, by the Board, to serve at the pleasure of the Board.
3.2
Authority of the Committee
.
(a) The Committee shall have the exclusive right to interpret, construe and administer the Plan, to select the persons who are eligible to receive an Award, and to act in all matters pertaining to the granting of an Award and the contents of the Agreement evidencing the Award, including without limitation, the determination of the number of Options, Stock Appreciation Rights, RSUs, Shares of Restricted Stock, Performance Shares or Performance Units subject to an Award and the form, terms, conditions and duration of each Award, and any amendment thereof consistent with the provisions of the Plan. The Committee may adopt such rules, regulations and procedures of general application for the administration of this Plan, as it deems appropriate.
(b) The Committee may correct any defect, supply any omission or reconcile any inconsistency in the Plan or any Agreement in the manner and to the extent it shall deem desirable to carry it into effect.
(c) In the event the Company shall assume outstanding employee benefit awards or the right or obligation to make future such awards in connection with the acquisition of another
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corporation or business entity, the Committee may, in its discretion, make such adjustments in the terms of Awards under the Plan as it shall deem appropriate.
(d) All acts, determinations and decisions of the Committee made or taken pursuant to grants of authority under the Plan or with respect to any questions arising in connection with the administration and interpretation of the Plan, including the severability of any and all of the provisions thereof, shall be conclusive, final and binding upon all parties, including the Company, its stockholders, Participants, Eligible Participants and their estates, beneficiaries and successors.
3.3
Participation Outside of the United States
. The Committee or its designee shall have the authority to amend the Plan (including by the adoption of appendices or subplans) and/or the terms and conditions relating to an Award to the extent necessary to permit participation in the Plan by eligible individuals who are located outside of the United States on terms and conditions comparable to those afforded to eligible individuals located within the United States, provided that any such action taken with respect to a Named Executive Officer shall be taken in compliance with Section 162(m) of the Code.
3.4
Delegation of Authority
. Except with respect to Named Executive Officers and Insiders, the Committee may, at any time and from time to time, delegate to one or more persons any or all of its authority under Section 3.2, to the full extent permitted by law.
3.5
Award Agreements
. Each Award granted under the Plan shall be evidenced by a written Agreement. Each Agreement shall be subject to and incorporate, by reference or otherwise, the applicable terms and conditions of the Plan, and any other terms and conditions, not inconsistent with the Plan, as may be imposed by the Committee, including without limitation, provisions related to the consequences of termination of employment. A copy of such document shall be provided to the Participant, and the Committee may, but need not, require that the Participant sign a copy of the Agreement.
3.6
Indemnification
. In addition to such other rights of indemnification as they may have as directors or as members of the Committee, the members of the Committee shall be indemnified by the Company against reasonable expenses, including attorneys fees, actually and necessarily incurred in connection with the defense of any action, suit or proceeding, or in connection with any appeal therein, to which they or any of them may be a party by reason of any action taken or failure to act under or in connection with the Plan or any Award granted thereunder, and against all amounts paid by them in settlement thereof, provided such settlement is approved by independent legal counsel selected by the Company, or paid by them in satisfaction of a judgment or settlement in any such
action, suit or proceeding, except as to matters as to which the Committee member has been negligent or engaged in misconduct in the performance of his duties; provided, that within 60 days after institution of any such action, suit or proceeding, a Committee member shall in writing offer the Company the opportunity, at its own expense, to handle and defend the same.
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ARTICLE 4
SHARES SUBJECT TO THE PLAN
4.1
Number of Shares
. Subject to adjustment as provided in
Section 4.3
, the total number of Shares available for grant of Awards under the Plan shall be six million (6,000,000) Shares, all of which may be granted as Incentive Stock Options. The Shares may, in the discretion of the Company, be either authorized but unissued Shares or Shares held as treasury shares, including Shares purchased by the Company, whether on the market or otherwise.
The following rules shall apply for purposes of the determination of the number of Shares available for grant under the Plan:
(a) If, for any reason, any Shares awarded or subject to purchase under the Plan are not delivered or purchased, or are reacquired by the Company, for reasons including, but not limited to, a forfeiture of Restricted Stock or termination, expiration or cancellation of an Option, Stock Appreciation Right, Performance Shares or Performance Units, such Shares (Returned Shares) shall not be charged against the aggregate number of Shares available for issuance pursuant to Awards under the Plan and shall again be available for issuance pursuant to Award under the Plan. If the exercise price and/or withholding obligation under an Option is satisfied by tendering Shares to the Company (either by actual delivery or attestation), only the number of Shares issued net of the Shares so tendered shall be deemed delivered for purposes of determining
the maximum number of Shares available for issuance under the Plan.
(b) Each RSU and each Performance Share awarded that may be settled in Shares shall be counted as one Share subject to an Award. Each Performance Unit awarded that may be settled in Shares shall be counted as a number of Shares subject to an award, with the number determined by dividing the value of the Performance Unit at grant by the Fair Market Value of a Share at Grant. Performance Shares and Units and RSUs that may not be settled in Shares (or that may be settled in Shares but are not) shall not result in a charge against the aggregate number of Shares available for issuance.
(c) Each Stock Appreciation Right that may be settled in Shares shall be counted as one Share subject to an award. Stock Appreciation Rights that may not be settled in Shares (or that may be settled in Shares but are not) shall not result in a charge against the aggregate number of Shares available for issuance. In addition, if a Stock Appreciation Right is granted in connection with an Option and the exercise of the Stock Appreciation Right results in the loss of the Option right, the Shares that otherwise would have been issued upon the exercise of such related Option shall not result in a charge against the aggregate number of Shares available for issuance.
4.2
Individual Limits
. Except to the extent the Committee determines that an Award to a Named Executive Officer shall not comply with the performance-based compensation provisions of Code Section 162(m), the following rules shall apply to Awards under the Plan:
(a)
Options and SARs
. The maximum number of Options and Stock Appreciation Rights that, in the aggregate, may be granted pursuant to Awards in any one calendar year to any one Participant shall be one million five hundred thousand (1,500,000) Shares.
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(b)
Restricted Stock, RSUs and Performance Shares
. The maximum number of Shares of Restricted Stock and the maximum number of Shares subject to RSUs that may be granted pursuant to Awards in any one calendar year to any one Participant shall be one million (1,000,000) Shares.
The maximum grant of Performance Shares and Units (valued as of the grant date) that may be granted in any one fiscal year to any one Participant shall equal the value of one million (1,000,000) Shares.
4.3
Lapsed Award
. If any Award granted under this Plan is canceled, terminates, expires or lapses for any reason, or if Shares are withheld in payment of the Option Price or for withholding taxes, any Shares subject to such Award or that are withheld shall again be available for the grant of an Award under the Plan. However, in the event that prior to the Award's cancellation, termination, expiration or lapse, the holder of the Award at any time received one or more benefits of ownership pursuant to such Award (as defined by the Securities and Exchange Commission, pursuant to any rule or interpretation promulgated under Section 16 of the Exchange Act), the Shares subject to such Award shall not again be made available for regrant under the Plan.
4.4
Adjustment of Shares
. In the event of a corporate transaction involving the Company (including, without limitation, any stock split, recapitalization, reorganization (whether or not such reorganization comes within the definition of such term in Code Section 368), merger, consolidation, separation, including a spin-off, other distribution of stock or property of the Company, or any partial or complete liquidation of the Company), the Committee, in its sole discretion, may make adjustments as it determines to be appropriate and equitable to prevent dilution or enlargement of rights, including but not limited to adjustment in the number and class of Shares which may be delivered under the Plan, in the number and class of and/or price of Shares subject to outstanding Awards granted
under the Plan, and any other adjustments as the Committee determines to be equitable; provided, however, that the number of Shares subject to any Award shall always be a whole number and the Committee shall make such adjustments as are necessary to insure Awards of whole Shares. Any such adjustment in the Shares or other stock or securities subject to outstanding Incentive Stock Options (including any adjustments in the purchase price) shall be made in such manner as not to constitute a modification as defined by Section 424(h)(3) of the Code and only to the extent otherwise permitted by Sections 422 and 424 of the Code.
ARTICLE 5
- STOCK OPTIONS
5.1
Grant of Options
. Subject to the terms and provisions of the Plan, Options may be granted to Eligible Participants at any time and from time to time as shall be determined by the Committee. The Committee shall have sole discretion in determining the number of Shares subject to Options granted to each Participant. The Committee may grant a Participant ISOs, NQSOs or a combination thereof, and may vary such Awards among Participants; provided that only an employee may be granted ISOs.
5.2
Agreement
. Each Option grant shall be evidenced by an Agreement that shall specify the Option Price, the duration of the Option, the number of Shares to which the Option pertains and such other provisions as the Committee shall determine. The Option Agreement shall further specify whether the Award is intended to be an ISO or an NQSO. Any portion of an
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Option that is not designated as an ISO or otherwise fails or is not qualified as an ISO (even if designated as an ISO) shall be an NQSO.
5.3
Option Price
. The Option Price for each grant of an ISO shall not be less than one hundred percent (100%) of the Fair Market Value of a Share on the date the Option is granted. The Option Price for each grant of an NQSO may be less than, equal to or greater than the Fair Market Value of a Share on the date the Option is granted.
5.4
Duration of Options
. Each Option shall expire at such time as the Committee shall determine at the time of grant; provided, however, that no Option shall be exercisable later than the tenth (10
th
) anniversary of its grant date.
5.5
Exercise of Options
. Options granted under the Plan shall be exercisable at such times and be subject to such restrictions and conditions as the Committee shall in each instance approve, including conditions related to the employment of or provision of services by the Participant with the Company or any Employer, which need not be the same for each grant or for each Participant. The Committee may provide in the Agreement for automatic accelerated vesting and other rights upon the occurrence of a Change in Control of the Company or upon the occurrence of other events as specified in the Agreement. In addition, the Committee may provide in the Agreement for the deferral of option gains related to an exercise.
5.6
Payment
. Options shall be exercised by the delivery of a written notice of exercise to the Company, setting forth the number of Shares with respect to which the Option is to be exercised, accompanied by full payment for the Shares (less any amount previously paid by the Participant to acquire the Option). The Option Price upon exercise of any Option shall be payable to the Company in full, either: (a) in cash, (b) cash equivalent approved by the Committee, (c) if approved by the Committee, by tendering previously acquired Shares (or delivering a certification or attestation of ownership of such Shares) having an aggregate Fair Market Value at the time of exercise equal to the total Option Price (provided that the tendered Shares must have been held by the Participant for any
period required by the Committee), or (d) by a combination of (a), (b) and (c). The Committee also may allow cashless exercises as permitted under Federal Reserve Board's Regulation T, subject to applicable securities law restrictions, or by any other means which the Committee determines to be consistent with the Plan's purpose and applicable law.
5.7
Nontransferability of Options
(a)
Incentive Stock Options
. No ISO granted under the Plan may be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated, other than by will or by the laws of descent and distribution. Further, all ISOs granted to a Participant under the Plan shall be exercisable during his or her lifetime only by such Participant.
(b)
Nonqualified Stock Options
. Except as otherwise provided in a Participants Award Agreement consistent with securities and other applicable laws, rules and regulations, no NQSO granted under this Article 5 may be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated, other than by will or by the laws of descent and distribution. Further, except as otherwise provided in a Participants Award Agreement, all NQSOs granted to a
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Participant under this Article 5 shall be exercisable during his or her lifetime only by such Participant.
5.8
Special Rules for ISOs
. Notwithstanding the above, in no event shall any Participant who owns (within the meaning of Section 424(d) of the Code) stock of the Company possessing more than ten percent (10%) of the total combined voting power of all classes of stock of the Company be eligible to receive an ISO at an Option Price less than one hundred ten percent (110%) of the Fair Market Value of a share on the date the ISO is granted or be eligible to receive an ISO that is exercisable later than the fifth (5th) anniversary date of its grant. No Participant may be granted ISOs (under the Plan and all other incentive stock option plans of the Employer) which are first exercisable in any calendar year for Shares having an aggregate Fair Market Value (determined as of the date an
Option is granted) that exceeds One Hundred Thousand Dollars ($100,000).
ARTICLE 6
- STOCK APPRECIATION RIGHTS
6.1
Grant of SARs
. A Stock Appreciation Right may be granted to an Eligible Participant in connection with an Option granted under Article 5 of this Plan or may be granted independently of any Option. A Stock Appreciation Right shall entitle the holder, within the specified period, to exercise the SAR and receive in exchange therefor a payment having an aggregate value equal to the amount by which the Fair Market Value of a Share exceeds the exercise price, times the number of Shares with respect to which the SAR is exercised. A SAR granted in connection with an Option (a Tandem SAR) shall entitle the holder of the related Option, within the period specified for the exercise of the Option, to surrender the unexercised Option, or a portion thereof, and to receive in
exchange therefore a payment having an aggregate value equal to the amount by which the Fair Market Value of a Share exceeds the Option Price per Share, times the number of Shares under the Option, or portion thereof, which is surrendered.
6.2
Tandem SARs
. Each Tandem SAR shall be subject to the same terms and conditions as the related Option, including limitations on transferability, and shall be exercisable only to the extent such Option is exercisable and shall terminate or lapse and cease to be exercisable when the related Option terminates or lapses. The grant of Stock Appreciation Rights related to ISOs must be concurrent with the grant of the ISOs. With respect to NQSOs, the grant either may be concurrent with the grant of the NQSOs, or in connection with NQSOs previously granted under Article 5, which are unexercised and have not terminated or lapsed.
6.3
Payment
. The Committee shall have sole discretion to determine in each Agreement whether the payment with respect to the exercise of an SAR will be in the form of all cash, all Shares, or any combination thereof. If payment is to be made in Shares, the number of Shares shall be determined based on the Fair Market Value of a Share on the date of exercise. If the Committee elects to make full payment in Shares, no fractional Shares shall be issued and cash payments shall be made in lieu of fractional shares. The Committee shall have sole discretion as to the timing of any payment made in cash or Shares, or a combination thereof, upon exercise of SARs. Payment may be made in a lump sum, in annual installments or may be otherwise deferred; and the Committee shall have sole
discretion to determine whether any deferred payments may bear amounts equivalent to interest or cash dividends.
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6.4
Exercise of SARs
. Upon exercise of an SAR, the number of Shares subject to exercise under any related Option shall automatically be reduced by the number of Shares represented by the Option or portion thereof which is surrendered.
ARTICLE 7
- RESTRICTED STOCK AND RESTRICTED STOCK UNITS
7.1
Grant of Restricted Stock and Restricted Stock Units
. Awards of Restricted Stock and Restricted Stock Units ("RSUs") may be made to Eligible Participants as a reward for past service or as an incentive for the performance of future services that will contribute materially to the successful operation of the Employer. Awards of Restricted Stock and RSUs may be made either alone or in addition to or in tandem with other Awards granted under the Plan and may be current grants of Restricted Stock and RSUs or deferred grants of Restricted Stock and RSUs.
7.2
Restricted Stock Agreement
. The Restricted Stock Agreement shall set forth the terms of the Award, as determined by the Committee, including, without limitation, the purchase price, if any, to be paid for such Restricted Stock, which may be more than, equal to, or less than Fair Market Value and may be zero, subject to such minimum consideration as may be required by applicable law; any restrictions applicable to the Restricted Stock such as continued service or achievement of performance goals; the length of the Restriction Period, if any, and whether any circumstances, such as death, Disability, or a Change in Control, will shorten or terminate the Restriction Period; and rights of the Participant to vote or receive dividends with respect to the Shares during the Restriction Period.
7.3
Restricted Stock Units Agreement
. The Restricted Stock Unit Agreement shall set forth the terms of the Award, as determined by the Committee, including without limitation, the number of RSUs granted to the Participant; the restrictions, terms and conditions of the Award; whether the Award will be paid in cash, Shares, or a combination of the two and the time when the Award will be payable; any requirements such as continued service or achievement of certain performance measures; the length of the Restriction Period, if any, and whether any circumstances such as Change in Control, termination of employment, disability or death will shorten or terminate any vesting or Restriction Period; and whether dividend equivalents will be paid or accrued with respect to the RSUs.
7.4
Nontransferability
. Except as otherwise provided in this Article 7, no RSUs and no Shares of Restricted Stock received by a Participant shall be sold, exchanged, transferred, pledged, hypothecated or otherwise disposed of during the Restriction Period.
7.5
Certificates
. Upon an Award of Restricted Stock to a Participant, Shares of Restricted Stock shall be registered in the Participants name. Certificates, if issued, may either be held in custody by the Company until the Restriction Period expires or until restrictions thereon otherwise lapse and/or be issued to the Participant and registered in the name of the Participant, bearing an appropriate restrictive legend and remaining subject to appropriate stop-transfer orders. If required by the Committee, the Participant shall deliver to the Company one or more stock powers endorsed in blank relating to the Restricted Stock. If and when the Restriction Period expires without a prior forfeiture of the Restricted Stock subject to such Restriction Period, unrestricted
certificates for such shares shall be delivered to the Participant; provided, however, that the Committee may cause such legend or legends to be placed on any
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such certificates as it may deem advisable under the rules, regulations and other requirements of the Securities and Exchange Commission and any applicable federal or state law. The Company shall not be required to deliver any fractional Share but will pay, in lieu thereof, the Fair Market Value (determined as of the date the restrictions lapse) of such fractional Share to the holder thereof. Concurrently with the delivery of a certificate for Restricted Stock, the holder shall be required to pay an amount necessary to satisfy any applicable federal, state and local tax requirements as set out in Article 12 below.
7.6
Dividends and Other Distributions
. Except as provided in this Article 7 or in the Award Agreement, a Participant receiving a Restricted Stock Award shall have, with respect to such Restricted Stock Award, all of the rights of a stockholder of the Company, including the right to vote the Shares to the extent, if any, such Shares possess voting rights and the right to receive any dividends; provided, however, the Committee may require that any dividends on such Shares of Restricted Stock shall be automatically deferred and reinvested in additional Restricted Stock subject to the same restrictions as the underlying Award, or may require that dividends and other distributions on Restricted Stock shall be paid to the Company for the account of the Participant. The Committee shall
determine whether interest shall be paid on such amounts, the rate of any such interest, and the other terms applicable to such amounts. In addition, with respect to Named Executive Officers, the Committee may apply any restrictions it deems appropriate to the payment of dividends declared with respect to Restricted Stock such that the dividends and/or Restricted Stock maintain eligibility for the performance-based compensation exception under Code Section 162(m).
ARTICLE 8
- PERFORMANCE SHARES AND UNITS
8.1
Grant of Performance Shares/Units
. Performance Shares, Performance Units or both may be granted to Participants in such amounts and upon such terms, and at any time and from time to time, as shall be determined by the Committee.
8.2
Value of Performance Shares/Units
. Each Performance Unit shall have an initial value that is established by the Committee at the time of grant. Each Performance Share shall have an initial value equal to the Fair Market Value of a Share on the date of grant. The Committee shall set performance goals in its discretion which, depending on the extent to which they are met, will determine the number and/or value of Performance Shares, Performance Units or both that will be paid out to the Participant. For purposes of this Article 8, the time period during which the performance goals must be met shall be called a Performance Period.
8.3
Earning of Performance Shares/Units
. Subject to the terms of this Plan, after the applicable Performance Period has ended, the holder of Performance Shares/Units shall be entitled to receive a payout of the number and value of Performance Shares/Units earned by the Participant over the Performance Period, to be determined as a function of the extent to which the corresponding performance goals have been achieved.
8.4
Form and Timing of Payment of Performance Shares/Units
. Subject to the terms of this Plan, the Committee, in its sole discretion, may pay earned Performance Shares/Units in the form of cash or in Shares (or in a combination thereof) which has an aggregate Fair Market Value equal to the value of the earned Performance Shares/Units at the close of the applicable
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Performance Period. Such Shares may be granted subject to any restrictions deemed appropriate by the Committee. The determination of the Committee with respect to the form and timing of payout of such Awards shall be set forth in the Award Agreement pertaining to the grant of the Award.
Except as otherwise provided in the Participants Award Agreement, a Participant shall be entitled to receive any dividends declared with respect to Shares earned in connection with earned grants of Performance Shares/Units, that have not yet been distributed to the Participant (such dividends shall be subject to the same accrual, forfeiture, and payout restrictions as apply to dividends earned with respect to Shares of Restricted Stock, as set forth in Section 7.6 herein). In addition, unless otherwise provided in the Participants Award Agreement, a Participant shall be entitled to exercise full voting rights with respect to such Shares.
8.5
Nontransferability
. Except as otherwise provided in a Participants Award Agreement, Performance Shares/Units may not be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated, other than by will or by the laws of descent and distribution. Further, except as otherwise provided in a Participants Award Agreement, a Participants rights under the Plan shall be exercisable during the Participants lifetime only by the Participant or the Participants legal representative.
ARTICLE 9
- PERFORMANCE MEASURES
Until the Committee proposes for stockholder vote and stockholders approve a change in the general performance measures set forth in this Article 9, the attainment of which may determine the degree of payout and/or vesting with respect to Named Executive Officers Awards that are intended to qualify under the performance-based compensation provisions of Code Section 162(m), the performance measure(s) to be used for purposes of such Awards shall be chosen from among the following: earnings, earnings per share, consolidated pre-tax earnings, net earnings, operating income, EBIT (earnings before interest and taxes), EBITDA (earnings before interest, taxes, depreciation and amortization), gross margin, revenues, revenue growth, market value added, economic value added, return on equity, return on investment, return on assets, return on net assets, return on capital employed, total
stockholder return, profit, economic profit, capitalized economic profit, after-tax profit, pre-tax profit, cash flow measures, cash flow return, sales, sales volume, inventory turnover ratio, stock price, cost, and/or unit cost. The Committee can establish other performance measures for Awards granted to Eligible Participants that are not Named Executive Officers.
The Committee shall be authorized to make adjustments in performance based criteria or in the terms and conditions of other Awards in recognition of unusual or nonrecurring events affecting the Company or its financial statements or changes in applicable laws, regulations or accounting principles. The Committee shall also have the discretion to adjust the determinations of the degree of attainment of the pre-established performance goals; provided, however, that Awards which are designed to qualify for the performance-based compensation exception from the deductibility limitations of Code Section 162(m), and which are held by Named Executive Officers, may not be adjusted upward (the Committee shall retain the discretion to adjust such Awards downward).
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If applicable tax and/or securities laws change to permit Committee discretion to alter the governing performance measures without obtaining stockholder approval of such changes, the Committee shall have sole discretion to make such changes without obtaining stockholder approval. In addition, in the event that the Committee determines that it is advisable to grant Awards which shall not qualify for the performance-based compensation exception from the deductibility limitations of Code Section 162(m), the Committee may make such grants without satisfying the requirements of Code Section 162(m).
ARTICLE 10
- BENEFICIARY DESIGNATION
Each Participant under the Plan may, from time to time, name any beneficiary or beneficiaries (who may be named contingently or successively) to whom any benefit under the Plan is to be paid in case of his or her death before he or she receives any or all of such benefit. Each such designation shall revoke all prior designations by the same Participant, shall be in a form prescribed by the Company, and will be effective only when filed by the Participant in writing with the Company during the Participants lifetime. In the absence of any such designation, benefits remaining unpaid at the Participants death shall be paid to the Participants estate.
ARTICLE 11
- DEFERRALS
The Committee may permit or require a Participant to defer such Participants receipt of the payment of cash or the delivery of Shares that would otherwise be due to such Participant by virtue of the exercise of an Option or SAR, the lapse or waiver of restrictions with respect to Restricted Stock, or RSUs, or the satisfaction of any requirements or goals with respect to Performance Shares. If any such deferral election is required or permitted, the Committee shall, in its sole discretion, establish rules and procedures for such payment deferrals.
ARTICLE 12
- WITHHOLDING
12.1
Tax Withholding
. The Company shall have the power and the right to deduct or withhold, or require a Participant to remit to the Company, an amount sufficient to satisfy Federal, state, and local taxes, domestic or foreign, required by law or regulation to be withheld with respect to any taxable event arising as a result of this Plan. If a Participant makes a disposition within the meaning of Section 424(c) of the Code and regulation promulgated thereunder, of any Share or Shares issued to him pursuant to his exercise of an Incentive Stock Option within the two-year period commencing on the day after the date of the grant or within the one-year period commencing on the day after the date of transfer of such Share or Shares to the Optionee pursuant to such exercise, the Optionee shall,
within ten (10) days of such disposition, notify the Company thereof, by delivery of written notice to the Company at its principal executive office, and immediately deliver to the Company the amount of any required tax withholding.
12.2
Share Withholding
. With respect to withholding required upon the exercise of Options or SARS, upon the lapse of restrictions on Restricted Stock or RSUs, or upon any other taxable event arising as a result of Awards granted hereunder which are to be paid in the form of Shares, Participants may elect, subject to the approval of the Committee, to satisfy the
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withholding requirement, in whole or in part, by having the Company withhold Shares having a Fair Market Value on the date the tax is to be determined equal to not more than the minimum amount of tax required to be withheld with respect to the transaction. All such elections shall be subject to any restrictions or limitations that the Committee, in its sole discretion, deems appropriate.
ARTICLE 13
- AMENDMENT AND TERMINATION
13.1
Amendment of Plan
. The Committee
may at any time terminate or from time to time amend the Plan in whole or in part, but no such action shall adversely affect any rights or obligations with respect to any Awards previously granted under the Plan, unless the affected Participants consent in writing. To the extent required by Code Sections 162(m) or 422 and/or the rules of the exchange upon which the Shares are traded or other applicable law, no amendment, without approval by the Companys stockholders, shall (i) modify the requirements as to eligibility for participation in the Plan; (ii) except as provided in Section 4.3, increase the maximum number of Shares which are available for issuance in accordance with Section 4.1; (iii) increase
the maximum grants that may be made to a Participant under Section 4.2, or (iv) change the performance measures in Article 9.
13.2
Amendment of Award Agreement
. The Committee may, at any time, amend outstanding Agreements in a manner not inconsistent with the terms of the Plan; provided, however, except as provided in Section 13.4 and 13.5, if such amendment is adverse to the Participant, as determined by the Committee, the amendment shall not be effective unless and until the Participant consents, in writing, to such amendment. To the extent not inconsistent with the terms of the Plan, the Committee may, at any time, amend an outstanding Agreement in a manner that is not unfavorable to the Participant without the consent of such Participant. Notwithstanding the above provision, the Committee shall not have the authority to decrease the Option Price of any outstanding Option, except in accordance with Section 4.3 or
unless such an amendment is approved by the stockholders of the Company.
13.3
Termination of Plan
. No Awards shall be granted under the Plan on or after the tenth anniversary of the Effective Date of the Plan.
13.4
Cancellation of Awards for Detrimental Activity
. The Committee may provide in the Award Agreement that if a Participant engages in any Detrimental Activity (as defined below), the Committee may, notwithstanding any other provision in this Plan to the contrary, cancel, rescind, suspend, withhold or otherwise restrict or limit any unexpired, unexercised, unpaid or deferred Award as of the first date the Participant engages in the Detrimental Activity, unless sooner terminated by operation of another term of this Plan or any other agreement. Without limiting the generality of the foregoing, the Agreement may also provide that if the Participant exercises an Option or SAR, receives a Performance Share, Performance Unit, or RSU payout, or receives Shares under an Award at any time
during the period beginning six months prior to the date the Participant first engages in Detrimental Activity and ending six months after the date the Participant ceases to engage in any Detrimental Activity, the Participant shall be required to pay to the Company the excess of the then fair market value of the Shares subject to the Award over the total price paid by the Participant for such Shares.
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For purposes of this Section , Detrimental Activity means any of the following, as determined by the Committee in good faith: (i) the violation of any agreement between the Company and the Participant relating to the disclosure of confidential information or trade secrets, the solicitation of employees, customers, suppliers, licensees, licensors or contractors, or the performance of competitive services; (ii) conduct that constitutes Cause (as defined in Section 2.5 above), whether or not the Participants employment is terminated for Cause; (iii) making, or causing or attempting to cause any other person to make, any statement, either written or oral, or conveying any information about the Company which is disparaging or which in any way reflects negatively upon the Company; (iv) improperly disclosing or otherwise misusing any confidential information regarding the
Company; or (v) the refusal or failure of a Participant to provide, upon the request of the Company, a certification, in a form satisfactory to the Company, that he or she is in full compliance with the terms and conditions of the Plan; provided, that the Committee may provide in the Agreement that only certain of the restrictions provided above apply for purposes of the Award Agreement.
13.5
Assumption or Cancellation of Awards Upon a Corporate Transaction
. In the event of a proposed sale of all or substantially all of the assets or stock of the Company, the merger of the Company with or into another corporation such that stockholders of the Company immediately prior to the merger exchange their shares of stock in the Company for cash and/or shares of another entity or any other Change in Control or corporate transaction to which the Committee deems this provision applicable (any such event is referred to as a Corporate Transaction), the Committee may, in its discretion, cause each Award to be assumed or for an equivalent Award to be substituted by the successor corporation or a parent or subsidiary of such successor corporation (and adjusted as appropriate).
In addition or in the alternative, the Committee, in its discretion, may determine that all or certain types of Awards will be cancelled at or immediately prior to the time of the Corporate Transaction; provided, however, that at least 30 days prior to the Corporate Transaction (or, if not feasible to provide 30 days notice, within a reasonable period prior to the Corporate Transaction), the Committee notifies the Participant that, subject to rescission if the Corporate Transaction is not successfully completed within a certain period, the Award will be terminated and provides the Participant, either, at the election of the Committee, (i) a payment (in cash or Shares) equal to value of the Award, as determined below, or (ii) the right to exercise the Option or other Award as to all Shares, including Shares as to which the Option or other Award would not otherwise be exercisable (or with
respect to Restricted Stock, RSUs, Performance Shares or Performance Units, provide that all restrictions shall lapse) prior to the Corporate Transaction. For purposes of this provision, the value of the Award shall be measured as of the date of the Corporate Transaction and shall equal the amount of cash or Shares that would be payable to the Participant upon exercise or vesting of the Award, less the amount of any payment required to be tendered by the Participant upon such exercise. For example, the amount payable to the Participant upon the Committees decision to cancel outstanding Options would equal the difference between the Fair Market Value of the Options and the Exercise Price for such Options, computed as of the date of the Corporate Transaction.
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ARTICLE 14- MISCELLANEOUS PROVISIONS
14.1
Restrictions on Shares
. All certificates for Shares delivered under the Plan shall be subject to such stop-transfer orders and other restrictions as the Committee may deem advisable under the rules, regulations, and other requirements of the Securities and Exchange Commission, any stock exchange upon which the Shares are then listed and any applicable federal or state laws, and the Committee may cause a legend or legends to be placed on any such certificates to make appropriate reference to such restrictions. In making such determination, the Committee may rely upon an opinion of counsel for the Company.
Notwithstanding any other provision of the Plan, the Company shall have no liability to deliver any Shares under the Plan or make any other distribution of the benefits under the Plan unless such delivery or distribution would comply with all applicable laws (including, without limitation, the requirements of the Securities Act of 1933), and the applicable requirements of any securities exchange or similar entity.
14.2
Rights of a Stockholder
. Except as otherwise provided in Article 7 of the Plan and in the Restricted Stock Agreement, each Participant who receives an Award of Restricted Stock shall have all of the rights of a stockholder with respect to such Shares, including the right to vote the Shares to the extent, if any, such Shares possess voting rights and receive dividends and other distributions. Except as provided otherwise in the Plan or in an Agreement, no Participant awarded an Option, Stock Appreciation Right, RSU, Performance Unit, or Performance Share shall have any right as a stockholder with respect to any Shares covered by such Award prior to the date of issuance to him or her of a certificate or certificates for such Shares.
14.3
No Implied Rights
. Nothing in the Plan or any Award granted under the Plan shall confer upon any Participant any right to continue in the service of the Employer, or to serve as a Director thereof, or interfere in any way with the right of the Employer to terminate his or her employment or other service relationship at any time. Unless agreed by the Board, no Award granted under the Plan shall be deemed salary or compensation for the purpose of computing benefits under any employee benefit plan, severance program, or other arrangement of the Employer for the benefit of its employees. No Participant shall have any claim to an Award until it is actually granted under the Plan. To the extent that any person acquires a right to receive payments from the Company under the Plan, such right
shall, except as otherwise provided by the Committee, be no greater than the right of an unsecured general creditor of the Company.
14.4
Compliance with Laws
(a) At all times when the Committee determines that compliance with Code Section 162(m) is required or desirable, all Awards granted under this Plan to Named Executive Officers shall comply with the requirements of Code Section 162(m). In addition, in the event that changes are made to Code Section 162(m) to permit greater flexibility with respect to any Awards under the Plan, the Committee may, subject to the requirements of Article 13, make any adjustments it deems appropriate.
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(b) The Plan and the grant of Awards shall be subject to all applicable federal and state laws, rules, and regulations and to such approvals by any United States government or regulatory agency as may be required. Any provision herein relating to compliance with Rule 16b-3 under the Act shall not be applicable with respect to participation in the Plan by Participants who are not Insiders.
14.5
Successors
. The terms of the Plan shall be binding upon the Company, and its successors and assigns.
14.6
Tax Elections
. Each Participant agrees to give the Committee prompt written notice of any election made by such Participant under Code Section 83(b) or any similar provision thereof.
14.7
Legal Construction
(a)
Severability
. If any provision of this Plan or an Agreement is or becomes or is deemed invalid, illegal or unenforceable in any jurisdiction, or would disqualify the Plan or any Agreement under any law deemed applicable by the Committee, such provision shall be construed or deemed amended to conform to applicable laws or if it cannot be construed or deemed amended without, in the determination of the Committee, materially altering the intent of the Plan or the Agreement, it shall be stricken and the remainder of the Plan or the Agreement shall remain in full force and effect.
(b)
Gender and Number
. Where the context admits, words in any gender shall include the other gender, words in the singular shall include the plural and words in the plural shall include the singular.
(c)
Governing Law
. To the extent not preempted by federal law, the Plan and all Agreements hereunder, shall be construed in accordance with and governed by the laws of the State of Delaware.
IN WITNESS WHEREOF, this Plan is executed this the 29th day of October, 2003.
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TURBOCHEF TECHNOLOGIES, INC.
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ATTEST:
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By :
/s/ Richard E. Perlman
Authorized Officer
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/s/ James A. Cochran
Secretary
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TURBOCHEF TECHNOLOGIES, INC.
AMENDMENT TO
2003 STOCK INCENTIVE PLAN
Background
TurboChef Technologies, Inc. (the Company) adopted its 2003 Stock Incentive Plan (the Plan) on October 29, 2003. Under Section 4.1 of the Plan, the total number of shares of Common Stock of the Company available for grant of Awards under the Plan was six million (6,000,000) shares. The Companys Board of Directors deemed it advisable that the number of shares available for grant of Awards be increased to a total of ten million (10,000,000) shares. Under Section 13.1 of the Plan the Committee, defined in the Plan as the Compensation Committee of the Companys Board of Directors, is authorized at any time to amend the Plan.
Amendment
At a meeting held on March 29, 2004, the Companys Board of Directors, including both members of the Compensation Committee, unanimously approved amending the Plan to increase by four million the number of shares of Common Stock of the Company available for grant of Awards under the Plan. Accordingly, the Plan is amended, effective April 1, 2004, by deleting the first sentence of Section 4.1 thereof and substituting in lieu thereof the following sentence:
Subject to adjustment as provided in Section 4.3, the total number of Shares available for grant of Awards under the Plan shall be ten million (10,000,000) Shares, all of which may be granted as Incentive Stock Options.
By authority of the Board of Directors
/s/ Dennis J. Stockwell
Dennis J. Stockwell
Secretary
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TURBOCHEF TECHNOLOGIES, INC.
SECOND AMENDMENT TO
2003 STOCK INCENTIVE PLAN
Background
TurboChef Technologies, Inc. (the Company) adopted its 2003 Stock Incentive Plan (the Plan) on October 29, 2003. Under Section 4.1 of the Plan, the total number of shares of Common Stock of the Company available for grant of Awards under the Plan was six million (6,000,000) shares. Effective April 1, 2004, the Company amended the Plan to increase the number of shares available for Award grants to ten million (10,000,000) shares. The amended Plan was approved by stockholders of the Company on July 19, 2004. Effective December 27, 2004, the Company effected a 1-for-3 reverse split of its outstanding shares, and the number of shares available for Award grants under the Plan adjusted pursuant to Section 4.4 of the Plan to 3,333,333 shares. Under Section 13.1 of the Plan the Committee, defined in the Plan as the Compensation Committee of the Companys Board of
Directors, is authorized at any time to amend the Plan. The Companys Board of Directors deemed it advisable that the number of shares available for grant of Awards be increased by an additional 2,000,000 shares, to a total of 5,333,333 shares, and by consent on June 6, 2005, the Board, including the members of the Compensation Committee, approved the amendment and recommended it for approval by the stockholders. On July 19, 2005, the amendment was approved by the Companys stockholders.
Amendment
The Plan, as amended, is further amended, effective July 19, 2005, by deleting the first sentence of Section 4.1 thereof and substituting in lieu thereof the following sentence:
Subject to adjustment as provided in Section 4.4, effective July 19, 2005 the total number of Shares available for grant of Awards under the Plan shall be five million three hundred thirty three thousand three hundred thirty three (5,333,333) Shares, subject to Awards granted prior to the effective date, all of which may be granted as Incentive Stock Options.
By authority of the Board of Directors
/s/ Dennis J. Stockwell
Dennis J. Stockwell
Secretary
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TURBOCHEF TECHNOLOGIES, INC.
THIRD AMENDMENT TO
2003 STOCK INCENTIVE PLAN
Background
TurboChef Technologies, Inc. (the Company) adopted its 2003 Stock Incentive Plan (the Plan) on October 29, 2003 and it was approved (as then currently amended) by stockholders of the Company on July 19, 2004. Under Section 13.1 of the Plan the Committee, defined in the Plan as the Compensation Committee of the Companys Board of Directors, is authorized at any time to amend the Plan. In light of the accounting impact that results from the application of SFAS 123R to modifications of Awards, such as could be deemed to occur if Awards are electively adjusted in connection with restructuring events, the Committee deemed it in the best interest of the Company to amend the Plan to provide that equitable adjustments under the Plans antidilution provision are mandated for restructuring events, and by consent effective on September 11, 2006, the Compensation
Committee, approved the amendment.
Amendment
The Plan, as amended, is further amended, effective September 11, 2006, by deleting Section 4.4 thereof and substituting in lieu thereof the following new Section 4.4:
4.4
Adjustment of Shares. In the event of a corporate transaction involving the Company (including, without limitation, any stock split, recapitalization, reorganization (whether or not such reorganization comes within the definition of such term in Code Section 368), merger, consolidation, separation, including a spin-off, other distribution of stock or property of the Company, or any partial or complete liquidation of the Company), the Committee shall make equitable adjustments to prevent dilution or enlargement of rights, including but not limited to adjustment in the number and class of Shares which may be delivered under the Plan, in the number and class of and/or price of Shares subject to outstanding Awards granted under the Plan, and any other adjustments as the Committee determines to be
equitable; provided, however, that the number of Shares subject to any Award shall always be a whole number and the Committee shall make such adjustments as are necessary to insure Awards of whole Shares. Any such adjustment in the Shares or other stock or securities subject to outstanding Incentive Stock
Options (including any adjustments in the purchase price) shall be made in such manner as not to constitute a modification as defined by Section 424(h)(3) of the Code and only to the extent otherwise permitted by Sections 422 and 424 of the Code.
By authority of the Compensation Committee of the Board of Directors
/s/ Dennis J. Stockwell
Dennis J. Stockwell
Secretary
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TURBOCHEF TECHNOLOGIES, INC.
FOURTH AMENDMENT TO
2003 STOCK INCENTIVE PLAN
Background
TurboChef Technologies, Inc. (the Company) adopted its 2003 Stock Incentive Plan (the Plan) on October 29, 2003. Under Section 13.1 of the Plan the Committee is authorized at any time to amend the Plan.
The Committee recognizes that the use of the closing price of stock on the
day of
an award, for shares traded on an exchange or with trades reported, is more widely accepted as the measure of fair market value for option pricing, compensation charge accounting and tax withholding determinations. While the Plan document uses a definition of Fair Market Value as the closing price on the
last trading day before
an award, the Committee believes it is in the best interests of the Company to adopt the more widely accepted measure, and the Committee approved
the following amendment on March 14, 2008.
Amendment
The 2003 Stock Incentive Plan is hereby amended by modifying the definition of Fair Market Value in Section 2.15 thereof by deleting the words the immediately preceding date and the immediately preceding day everywhere they appear and substituting in lieu thereof the words such date and by deleting the words the next preceding day everywhere they appear and substituting in lieu thereof the words the next day.
This record of action shall be entered into the records of the Company.
By authority of the Compensation Committee of the Board of Directors
/s/ Dennis J. Stockwell
__________________________
Dennis J. Stockwell
Secretary
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