<PAGE>
As filed with the Securities and Exchange Commission on June 25, 1999.
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
_______________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_______________________
TURBOCHEF TECHNOLOGIES, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 48-1100390
(State or other jurisdiction (I.R.S. Employer
of incorporation) Identification Number)
_______________________
10500 Metric Drive, Suite 128
Dallas, Texas 75243
(Address of Registrant's principal executive offices)
_______________________
1994 Stock Option Plan
(Full Title of the Plan)
_______________________
Richard N. Caron
President and Chief Executive Officer
10500 Metric Drive, Suite 128
Dallas, Texas 75243
(Name and Address of agent for service)
_______________________
(214) 341-9471
(Telephone Number, including area code, of agent for service)
_______________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==========================================================================================
- ------------------------------------------------------------------------------------------
Title of securities Amount to Proposed maximum Proposed maximum Amount of
to be registered be registered offering price aggregate offering registration
per share price fee
- ------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 3,650,000/(1)/ $ 7.75 $ 28,287,500 $ 7,864/(2)/
$.01 par value
===========================================================================================
</TABLE>
/(1)/ This Registration Statement covers, in addition to the number of shares
of Common Stock stated above, pursuant to Rule 416(c) under the Securities Act
of 1933, as amended (the "Securities Act"), an additional indeterminate number
of shares which by reason of certain events specified in the Plan may be offered
or sold pursuant to the Plan.
/(2)/ Estimated solely for the purpose of calculating the registration fee,
based upon the average of the high and low prices of the Common Stock on the
Nasdaq National Market on June 22, 1999 in accordance with Rules 457(c) and
457(h) of the Securities Act.
================================================================================
<PAGE>
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I is included in documents sent or
given to participants in the 1994 Stock Option Plan, as amended (the "Plan") of
TurboChef Technologies, Inc., a Delaware corporation (the "Registrant") pursuant
to Rule 428(b)(1).
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The Registrant is subject to the informational and reporting
requirements of Sections 13(a), 14 and 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and in accordance therewith files
reports, proxy statements and other information with the Securities and Exchange
Commission. The following documents, which are on file with the Securities and
Exchange Commission, are incorporated in this Registration Statement by
reference:
(a) The Registrant's latest annual report filed pursuant to Section
13(a) or 15(d) of the Exchange Act or either (1) the latest prospectus filed
pursuant to Rule 424(b) under the Securities Act, that contains audited
financial statements for the Registrant's latest fiscal year for which such
statements have been filed, or (2) the Registrant's effective registration
statement on Form 10 or Form 20-F filed under the Exchange Act containing
audited financial statements for the Registrant's latest fiscal year.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the registrant document
referred to in (a) above.
(c) The description of the Common Stock which is contained in a
registration statement filed under the Exchange Act, including any amendment or
report filed for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all shares offered hereby have
been sold or which deregisters all shares then remaining unsold, shall be deemed
to be incorporated in this Registration Statement by reference and to be a part
hereof from the date of filing of such documents. Any statement contained herein
or in a document, all or a portion of which is incorporated or deemed to be
incorporated by reference herein, shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any statement modified or superseded shall not be deemed, except as
so modified or amended, to constitute a part of this Registration Statement.
1
<PAGE>
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not Applicable.
Item 6. Indemnification of Directors and Officers
Section 145 of the General Corporation Law of the State of Delaware
provides that a corporation has the power to indemnify a director, officer,
employee or agent of the corporation and certain other persons serving at the
request of the corporation in related capacities against amounts paid and
expenses incurred in connection with an action or proceeding to which he is or
is threatened to be made a party by reason of such position, if such person
shall have acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the corporation, and, in any criminal
proceeding, if such person had no reasonable cause to believe his conduct was
unlawful, provided that, in the case of actions brought by or in the right of
the corporation, no indemnification shall be made with respect to any matter as
to which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the adjudicating court determines that such
indemnification is proper under the circumstances.
Article NINTH of the Registrant's Restated Certificate of
Incorporation, as amended (the "Certificate of Incorporation") provides that no
director shall be liable to the Registrant or its stockholders for monetary
damages for breach of his duty as a director, except for liability (i) for any
breach of the director's duty of loyalty to the Registrant or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the
Delaware General Corporation Law, or (iv) for any transaction in which the
director derived an improper personal benefit. Article NINTH further provides
that if the General Corporation Law of the State of Delaware is amended to
authorize corporate action further eliminating or limiting the personal
liability of directors, then the liability of a director shall be eliminated or
limited to the fullest extent permitted by such law, as so amended.
Pursuant to Article TENTH of the Certificate of Incorporation a
director or officer of the Registrant shall be indemnified by the Registrant to
the fullest extent authorized by the General Corporation Law of the State of
Delaware (a) against all expenses (including attorneys' fees), judgments, fines,
ERISA excise taxes or penalties and amounts paid in settlement incurred in
connection with any litigation or other legal proceeding (other than an action
by or in the right of the Registrant) brought, or threatened to be brought,
against him by virtue of his position as a director or officer of the Registrant
or by virtue of his serving at the request of the Registrant, as a director,
officer, or trustee of, or in a similar capacity with a corporation, trust or
other enterprise, if he acted in good faith and in a manner he reasonably
believed to be in, or not opposed to, the best interests of the Registrant, and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful, and (b) against all expenses (including
attorneys' fees) incurred
2
<PAGE>
in connection with any action by or in the right of the Registrant brought, or
threatened to be brought, against him by virtue of his position as a director or
officer of the Registrant or by virtue of his serving, at the request of the
Registrant, as a director, officer, or trustee of, or in a similar capacity with
a corporation, trust or other enterprise, if he acted in good faith and in a
manner he reasonably believed to be in, or not opposed to, the best interests of
the Registrant, except that no indemnification shall be made with respect to any
such matters to which such person shall have been adjudged to be liable to the
Registrant, unless a court determines that, despite such adjudication but in
view of all of the circumstances, he is entitled to indemnification of such
expenses. Notwithstanding the foregoing, to the extent that a director or
officer has been successful, on the merits or otherwise, including, without
limitation, the dismissal of an action without prejudice or the settlement of an
action without admission of liability, he is required to be indemnified by the
Registrant against all expenses (including attorneys' fees) incurred in
connection therewith. Expenses shall be advanced to a director or officer at his
request, provided that he undertakes to repay the amount advanced if it is
ultimately determined that he is not entitled to indemnification for such
expenses.
Indemnification is required to be made only as authorized in the
specific case upon the determination that indemnification of the present or
former director or officer is proper in the circumstances because the person has
met the applicable standard of conduct required for indemnification. The
determination whether the applicable standard of conduct has been met shall be
made (i) by a majority vote of the directors who are not parties to such action,
suit or proceeding, even though less than a quorum, (ii) by a committee of such
directors designated by majority vote of such directors, even though less than a
quorum, (iii) if there are no such directors, or if such directors so direct, by
independent legal counsel in a written opinion, or (iv) by the stockholders.
The Registrant has a directors' and officers' liability policy that
insures the Registrant's officers and directors against certain liabilities.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
The Exhibit Index immediately preceding the exhibits is attached
hereto and incorporated herein by reference.
3
<PAGE>
Item 9. Undertakings
1. The Registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)
(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this Registration Statement (or the
most recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
this Registration Statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this Registration
Statement;
provided, however, that paragraphs (a) (i) and (a) (ii) above do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in this Registration Statement.
(b) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
2. The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Dallas, State of Texas, on the 25/th/ day of June,
1999.
TURBOCHEF TECHNOLOGIES, INC.
By: /s/Richard N. Caron
----------------------------
Richard N. Caron
President and Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of TurboChef Technologies,
Inc., hereby severally constitute Richard N. Caron and Dennis J. Jameson, and
each of them singly, our true and lawful attorneys with full power to them, and
each of them singly, to sign for us and in our names in the capacities indicated
below, the Registration Statement on Form S-8 filed herewith and any and all
subsequent amendments to said Registration Statement, and generally to do all
such things in our names and behalf in our capacities as officers and directors
to enable TurboChef Technologies, Inc. to comply with all requirements of the
Securities and Exchange Commission, hereby ratifying and confirming our
signatures as they may be signed by said attorneys, or any of them, to said
Registration Statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated:
<TABLE>
<CAPTION>
Name Title Date
- ---- ----- ----
<S> <C> <C>
/s/ Richard N. Caron President and Chief Executive Officer June 25, 1999
- ---------------------
Richard N. Caron and Director (Principal Executive Officer)
/s/ Dennis J. Jameson Executive Vice President June 25, 1999
- ---------------------
Dennis J. Jameson Chief Financial Officer
(Principal Financial and Accounting Officer)
/s/ Marion H. Antonini Chairman of the Board and Director June 25, 1999
- ----------------------
Marion H. Antonini
/s/ Jeffrey B. Bogatin Director June 25, 1999
- ----------------------
Jeffrey B. Bogatin
/s/ Donald J. Gogel Director June 25, 1999
- -------------------
Donald J. Gogel
/s/ Sir Anthony Jolliffe Director June 25, 1999
- ------------------------
Sir Anthony Jolliffe
</TABLE>
5
<PAGE>
EXHIBIT INDEX
Exhibit Number Description
- --------------------------------------------------------------------------------
4.1 Restated Certificate of Incorporation of the Registrant,
as amended.
4.2 Restated By-Laws of the Registrant./(1)/
4.3 Registrant's 1994 Stock Option Plan, as amended.
5.1 Opinion of Henry, Meier & Jones, L.L.P.
23.1 Consent of KPMG LLP
23.2 Consent of Arthur Andersen LLP
23.3 Consent of Henry, Meier & Jones, L.L.P. (included in
Exhibit 5.1).
24 Power of Attorney (included on the signature page of this
Registration Statement).
/(1)/ Incorporated herein by reference from the Registrant's Registration
Statement on Form SB-2 (File No. 33-75008), as declared effective by the
Securities and Exchange Commission on April 7, 1994.
<PAGE>
Exhibit 4.1
RESTATED
CERTIFICATE OF INCORPORATION
OF
TURBOCHEF, INC.
(Originally incorporated under the same name on
July 9, 1993)
FIRST: The name of the Corporation is: TurboChef, Inc.
SECOND: The address of its registered office in the State of Delaware
is 9 East Loockerman Street, City of Dover, County of Kent. The name of the
registered agent at such address is National Corporate Research, Ltd.
THIRD: The nature of the business or purpose to be conducted or
promoted is to engage in any lawful act or activity for which corporations may
be organized under the General Corporation Law of Delaware.
FOURTH: The total number of shares of capital stock which the
Corporation shall have authority to issue is 20,000,000 shares of common stock,
par value $.01 per share. At the effective time of this Restated Certificate of
Incorporation, each outstanding share of common stock shall be reclassified and
<PAGE>
changed to 1,767.2266 shares of common stock. No fractional shares shall be
issued by reason of this reclassification and change. The Corporation shall pay
to holders of common stock outstanding immediately prior to the effective time
of this Restated Certificate of Incorporation, an amount of cash equal to the
product of the fraction of a share of common stock to which such holder
otherwise would be entitled, multiplied by the initial public offering price per
share of common stock of the Corporation's proposed initial public offering.
FIFTH: The Corporation reserves the right to amend, alter, change
or repeal any provision contained in this certificate of incorporation, in the
manner now or hereafter prescribed by statute, and all rights and powers
conferred herein upon stockholders and directors are granted subject to this
reservation.
SIXTH: In furtherance and not in limitation of the powers conferred
by statute, the Board of Directors is expressly authorized to make, alter or
repeal the by-laws of the Corporation.
SEVENTH: Meetings of stockholders shall be held at such place, within
or without the state of Delaware, as may be designated by or in the manner
provided in the by-laws, or, if not so designated, at the registered office of
the Corporation in
-2-
<PAGE>
the State of Delaware. Elections of directors need not be by written ballot
unless and to the extent that the by-laws so provide.
EIGHTH: Whenever a compromise or arrangement is proposed between
this Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of (S)291 of Title 8 of the Delaware Code or on the application
of trustees in dissolution or of any receiver or receivers appointed for this
Corporation under the provisions of (S)279 of Title 8 of the Delaware Code,
order a meeting of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this Corporation, as the case may be,
to be summoned in such manner as the said court directs. If a majority in number
representing three fourths in value of the creditors or class of creditors,
and/or of the stockholders or class of stockholders of this Corporation, as the
case may be, agree to any compromise or arrangement and to any reorganisation of
this Corporation as a consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganisation shall, if sanctioned by
the court to which the said application has been made, be binding on all the
-3-
<PAGE>
creditors or class of creditors and/or on all the stockholders or class of
stockholders, of this Corporation, as the case may be, and also on this
Corporation.
NINTH: A director of this Corporation shall not be personally
liable to this Corporation or its stockholders for monetary damages for breach
of duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to this Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived an improper
personal benefit. If the Delaware General Corporation Law is amended to
authorize corporate action further eliminating or limiting the personal
liability of directors, then the liability of a director of this Corporation
shall be eliminated or limited to the fullest extent permitted by the Delaware
General Corporation Law, as so amended. Any repeal or modification of this
provision shall not adversely affect any right or protection of a director of
this Corporation existing at the time of such repeal or modification.
TENTH:
Section 1. Right to Indemnification. (a) Each person who was or
------------------------
is made a party or is threatened to be made a
-4-
<PAGE>
party to or is involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (hereinafter a "proceeding"), by
reason of the fact that he or she, or a person of whom he or she is the legal
representative, is or was a director or officer of the Corporation, including
service with respect to employee benefit plans, whether the basis of such
proceeding is alleged action in an official capacity as a director, officer,
employee or agent or in any other capacity while serving as a director, officer,
employee or agent, shall be indemnified and held harmless by the Corporation to
the fullest extent authorized by the Delaware General Corporation Law, as the
same exists or may hereafter be amended (but, in the case of any such amendment,
only to the extent that such amendment permits the Corporation to provide
broader indemnification rights than said law permitted the Corporation to
provide prior to such amendment), against all expense, liability and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid or to be paid in settlement) reasonably incurred or suffered by
such person in connection therewith and such indemnification shall continue as
to a person who has ceased to be a director, officer, employee or agent and
shall inure to the benefit of his or her heirs, executors and administrators,
and (b) the Corporation shall indemnify and hold harmless in such a manner any
person who was or is made a party or is threatened to be made a party to a
proceeding by reason of the fact that he, she or a person of whom he or she is
the legal
-5-
<PAGE>
representative, is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation or a partnership,
joint venture, trust or other enterprises provided, however, that except as
provided in Section 2 of this Article, the Corporation shall indemnify any such
person seeking indemnification in connection with a proceeding (or part thereof)
initiated by such person only if such proceeding (or part thereof) was
authorized by the Board of Directors of the Corporation. In the event a
director or officer of the Corporation shall serve as a director, officer,
employee or agent of any corporation, partnership, joint venture, trust or other
enterprise in which the Corporation maintains an investment it shall be
conclusively presumed for purposes of the indemnification provided for in
subsection (b) above that such service has been undertaken at the request of the
Corporation. The foregoing presumption shall apply regardless of whether such
director or officer is serving such entity at the request of a third party or
that his or her service with such entity was commenced prior to the
effectiveness of this Article of the certificate of incorporation or prior to
his or her becoming an officer or director of the Corporation. The right to
indemnification conferred in Subsection (a) above shall be a contract right
based upon an offer from the Corporation which shall be deemed to be accepted
by such person's service or continued service with the Corporation for any
period after the adoption of this Article of the certificate of incorporation
and
-6-
<PAGE>
shall include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition; provided,
however, that, if the Delaware General Corporation Law requires, the payment of
such expenses incurred by a director or officer in his or her capacity as a
director or officer (and not in any other capacity in which service was or is
rendered by such person while a director or officer, including, without
limitation, service to an employee benefit plan) in advance of the final
disposition of a proceeding, shall be made only upon delivery to the Corporation
of an undertaking, by or on behalf of such director or officer, to repay all
amounts so advanced if it shall ultimately be determined that such director or
officer is not entitled to be indemnified under this section or otherwise. The
Corporation may, by action of its Board of Directors, provide indemnification to
employees or agents of the Corporation with the same scope and effect as the
foregoing indemnification of directors and officers.
Section 2. Right of Claimant to Bring Suit. If a claim under
-------------------------------
Section 1(a) of this Article is not paid in full by the Corporation within
thirty days after a written claim has been received by the Corporation, the
claimant may at any time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim and, if successful in whole or in part,
the claimant shall be entitled to be paid also the expense
-7-
<PAGE>
(including attorneys' fees) of prosecuting such claim. It shall be a defense to
any such action (other than an action brought to enforce a claim for expenses
incurred in defending any proceeding in advance of its final disposition where
the required undertaking, if any is required, has been tendered to the
Corporation) that the claimant has not met the standards of conduct which make
it permissible under the Delaware General Corporation Law for the Corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
Delaware General Corporation Law, nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct.
Section 3. Nonexclusivity of Rights. The right to indemnification and
------------------------
the payment of expenses incurred in defending a proceeding in advance of its
final disposition conferred in this Section shall not be exclusive of any other
-8-
<PAGE>
right which any person may have or hereafter acquire under any statute,
provision of the certificate of incorporation, by-law, agreement, vote of
stockholders or disinterested directors or otherwise.
Section 4. Insurance. The Corporation may maintain insurance, at its
---------
expense, to protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise against any such expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
IN WITNESS WHEREOF, the Corporation has caused this Restated
Certificate of Incorporation, which restates and integrates and also amends the
Corporation's Certificate of Incorporation, after having been duly adopted,
recommended and approved by the Board of Directors and adopted by the written
consent of the holders of a majority of the outstanding shares of each class of
capital stock of the Corporation entitled to vote thereon in accordance with the
provisions of Sections 228, 242 and 245 of the Delaware General Corporation Law,
with notice of such action duly given pursuant to Section 228 (d), to be signed
and attested by its duly authorized officers on this 16/th/ day of
-9-
<PAGE>
March, 1994.
TURBOCHEF, INC.
By /s/ Philip R. Mckee
----------------------
Name: Philip R. Mckee
Title: President
Attest:
/s/ Jeffrey B. Bogatin
- -------------------------
Name: Jeffrey B. Bogatin
Title: Assistant Secretary
-10-
<PAGE>
CERTIFICATE OF AMENDMENT
TO THE CERTIFICATE OF INCORPORATION OF
TURBOCHEF, INC.
(Originally incorporated on July 9, 1993)
TURBOCHEF, INC., a corporation organized and existing under and by virtue
of the General Corporation Law of the State of Delaware (the "Corporation"),
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of Turbochef, Inc. adopted
resolutions setting forth a proposed amendment to the Certificate of
Incorporation of the Corporation, declaring said amendment to be advisable and
calling for a meeting of the stockholders of the Corporation for consideration
thereof. The resolution setting forth the proposed amendment is as follows:
"RESOLVED, that the Certificate of Incorporation of Turbochef,
Inc. be amended to increase the number of authorized shares of common
stock from 20,000,000 shares to 50,000,000, having a par value of One
Cent ($.01) per share, and to effect the foregoing, the previously
stated Article Fourth of the Certificate of Incorporation shall be
amended to read in its entirety as follows:
"FOURTH: Authorized Shares. The total number of
-----------------
shares of stock which the Corporation shall have
authority to issue is Fifty Million (50,000,000) shares
common stock having a par value of One Cent ($.01) per
share.""
SECOND: At its annual meeting held on June 17, 1997, a Certificate of
Judges of Election was executed confirming that the stockholders of Turbochef,
Inc. have approved by the requisite vote, among other proposals, to amend the
Certificate of Incorporation of the Corporation in order to increase the number
of authorized shares of common stock from 20,000,000 to 50,000,000, having a par
value of $.01 per share.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
<PAGE>
IN WITNESS WHEREOF, TurboChef, Inc. has caused this Certificate to be
executed by Philip R. McKee, its President, and attested by Dennis J. Jameson,
its Corporate Secretary, this 28th day of July 1997.
TURBOCHEF, INC.
/s/ Philip R. McKee
--------------------------------------
Philip R. McKee, President
ATTESTED BY:
/s/ Dennis J. Jameson
--------------------------------------
Dennis J. Jameson, Corporate Secretary
THE STATE OF TEXAS (S)
(S)
COUNTY OF DALLAS (S)
Before me, the undersigned, a Notary Public, on this day personally
appeared Philip R. McKee, known to me to be the person whose name is subscribed
to the foregiong instrument and acknowledged to me that the same was the act of
the said TurboChef, Inc., and that he has executed the same as the act of such
corporation for the purposes and consideration therein expressed, and in the
capacity therein stated.
Given under my hand and seal of office, this 28th day of July 1997.
[SEAL] /s/ Lisa A. Hargrave
-----------------------------------------------
Notary Public in and for the State of Texas
My Commission expires:
8/8/2000
- --------------------
-2-
<PAGE>
CERTIFICATE OF AMENDMENT
TO
RESTATED CERTIFICATE OF INCORPORATION OF
TURBOCHEF, INC.
(Originally incorporated on July 9,1993)
TURBOCHEF, INC., (the "Corporation") a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY THAT:
FIRST: The Board of Directors of the Corporation, by unanimous written
consent pursuant to Section 141 of the General Corporation Law of the State of
Delaware, duly adopted resolutions setting forth a proposed amendment to the
Restated Certificate of Incorporation of the Corporation, declaring said
amendment to be advisable and authorizing the officers of the Corporation to
submit such amendment to the stockholders of the Corporation for approval at the
Corporation's 1998 annual meeting of stockholders. The resolution setting forth
the proposed amendment is as follows:
RESOLVED, that the Restated Certificate of Incorporation of
TurboChef, Inc. be amended to change the corporate name of the
Corporation to "TurboChef Technologies, Inc." and to effect the
foregoing Article First of the Restated Certificate of Incorporation
shall be amended to read as follows:
"FIRST: The name of the corporation is: "TurboChef
Technologies, Inc."
SECOND: Thereafter, pursuant to resolution of its Board of Directors, the
1998 annual meeting of stockholders of the Corporation was duly called and held,
upon notice in accordance with Section 222 of the General Corporation Law of the
State of Delaware, at which meeting the necessary number of shares as required
by the Corporation's Restated Certificate of Incorporation were voted in favor
of the amendment.
THIRD: Said amendment was duly adopted in accordance with the provisions
of Section 242 of the General Corporation Law of the State of Delaware.
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused this certificate to be
executed by Marion H. Antonini, its acting Chief Executive Officer and attested
by Dennis J. Jameson its Corporate Secretary, this 30th day of June 1998.
TURBOCHEF, INC.
/s/ Marion H. Antonini
-------------------------------------------
Marion H. Antonini, Chief Executive Officer
ATTEST:
/s/ Dennis J. Jameson
- --------------------------------------
Dennis J. Jameson, Corporate Secretary
-2-
<PAGE>
CERTIFICATE OF AMENDMENT
TO
RESTATED CERTIFICATE OF INCORPORATION OF
TURBOCHEF TECHNOLOGIES, INC.
(Originally incorporated on July 9, 1993)
TURBOCHEF TECHNOLOGIES, INC., (the "Corporation") a corporation organized
and existing under and by virtue of the General Corporation Law of the State of
Delaware,
DOES HEREBY CERTIFY THAT:
FIRST: The Board of Directors of the Corporation, by unanimous written
consent pursuant to Section 141 of the General Corporation Law of the State of
Delaware, duly adopted resolutions setting forth a proposed amendment to the
Restated Certificate of Incorporation of the Corporation, declaring said
amendment to be advisable and authorizing the officers of the Corporation to
submit such amendment to the stockholders of the Corporation for approval at the
Corporation's 1999 annual meeting of stockholders. The resolution setting forth
the proposed amendment is as follows:
RESOLVED, that the proposal to amend and restate the Fourth
Article of the Company's Restated Certificate of Incorporation to
authorize a class of blank check preferred stock be, and it hereby is,
approved in all respects.
FURTHER RESOLVED, that, subject to stockholder approval, the
foregoing Article Fourth of the Restated Certificate of Incorporation
of the Company be amended to read in its entirety as follows:
FOURTH: Authorized Shares. The total number of shares
-----------------
of stock which the Corporation shall have authority to
issue is Fifty Five Million (55,000,000) shares consisting
of Fifty Million (50,000,000) shares of common stock having
a par value of one cent ($.01) per share and Five Million
(5,000,000) shares of preferred stock having a stated value
of one dollar ($1.00) per share.
The Board of Directors is authorized, subject to any
limitations prescribed by law and the provisions of this
Article FOURTH, to provide for the issuance of the shares of
preferred stock in series, and by filing a
<PAGE>
certificate pursuant to the applicable law of the State of Delaware, to
establish from time to time the number of shares to be included in each such
series, and to fix the designation, powers, preferences and rights of the shares
of each such series and the qualifications, limitations or restrictions thereof.
The authority of the Board of Directors with respect to each series shall
include, but not be limited to, determination of the following:
A. The number of shares constituting that series and the distinctive
designation of that series;
B. The dividend rate on the shares of that series, whether dividends shall
be cumulative, and, if so, from which date or dates, and the relative rights of
priority, if any, of payment of dividends on shares of that series;
C. Whether that series shall have voting rights, in addition to the voting
rights provided by law, and, if so, the terms of such voting rights;
D. Whether that series shall have conversion privileges, and, if so, the
terms and conditions of such conversion, including provision for adjustment of
the conversion rate in such events as the Board of Directors shall determine;
E. Whether or not the shares of that series shall be redeemable, and, if
so, the terms and conditions of such redemption, including the date or dates
upon or after which they shall be redeemable, and the amount per share payable
in case of redemption, which amount may vary under different conditions and at
different redemption dates;
F. Whether that series shall have a sinking fund for the redemption or
purchase of shares of that series, and, if so, the terms and amount of such
sinking fund;
G. The rights of the shares of that series in the event of voluntary or
involuntary liquidation, dissolution or winding up of the Corporation, and the
relative rights of priority, if any, of payment of shares of the Corporation,
and the relative rights of priority, if any, of payment of shares of that
series; and
H. Any other relative rights, preferences and limitations of that series.
-2-
<PAGE>
SECOND: Thereafter, pursuant to resolution of its Board of Directors, the
1999 annual meeting of stockholders of the Corporation was duly called and held,
upon notice in accordance with Section 222 of the General Corporation Law of the
State of Delaware, at which meeting the necessary number of shares as required
by the Corporation's Restated Certificate of Incorporation were voted in favor
of the amendment.
THIRD: Said amendment was duly adopted in accordance with the provisions
of Section 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this certificate to be
executed by Richard N. Caron, its President and Chief Executive Officer and
attested by Dennis J. Jameson, its Corporate Secretary, this 15th day of June
1999.
TURBOCHEF TECHNOLOGIES, INC.
/s/ Richard N. Caron
-----------------------------------
Richard N. Caron
President and Chief Executive
Officer
ATTEST:
/s/ Dennis J. Jameson
- --------------------------------------
Dennis J. Jameson, Corporate Secretary
-3-
<PAGE>
EXHIBIT 4.3
TURBOCHEF TECHNOLOGIES, INC.
1994 STOCK OPTION PLAN (AS AMENDED)
SECTION 1. Establishment. There is hereby established the
-------------
TurboChef Technologies, Inc. 1994 Stock Option Plan ("Plan"), pursuant to which
employees and directors of TURBOCHEF TECHNOLOGIES, INC. (the "Company") and
consultants and any other persons who perform substantial services for or on
behalf of the Company, any subsidiaries of the Company and certain other
entities may be granted options to purchase shares of common stock of the
Company, par value $.01 per share ("Common Stock"), and thereby share in the
future growth of the business. The subsidiaries of the Company included in this
Plan (the "Subsidiaries") shall be any subsidiary of the Company as defined in
Section 424 of the Internal Revenue Code of 1986, as amended ("the Code").
SECTION 2. Status of Options. The options which may be
-----------------
granted pursuant to this Plan will constitute either incentive stock options
within the meaning of Section 422 of the Code ("Incentive Stock Options") or
options which are not Incentive Stock Options ("Non-incentive Stock Options").
Incentive Stock Options and Non-incentive Stock Options shall be collectively
referred to herein as "Options".
SECTION 3. Eligibility. All employees (including officers,
-----------
whether or not they are members of the Board of Directors) of the Company or any
of its Subsidiaries who are employed at the time of the adoption of this Plan or
thereafter, any directors of the Company, and any consultants and other persons
who perform substantial services for or on behalf of the Company, any of its
Subsidiaries or affiliates, or any entity in which the Company has an interest
(collectively, the "Grantees") shall be eligible to be granted Non-incentive
Stock Options under this Plan. All employees (including officers, whether or
not they are members of the Board of Directors) of the Company or any of its
Subsidiaries who are employed at the time of adoption of this Plan or thereafter
shall be eligible to be granted Incentive Stock Options under this Plan.
SECTION 4. Number of Shares Covered by Options: No Preemptive
---------------------------------------------------
Rights. The total number of shares which may be issued and sold pursuant to
- ------
Options granted under this Plan shall be 3,650,000 shares (after giving effect
to (a) a 1,767.2266 for 1 stock split with respect to the Common Stock effected
immediately prior to the Company's initial public offering of Common Stock, and
(b) a 2 for 1 stock split with respect to the Common Stock effected on December
29, 1995) of Common Stock (or the number and kind of shares of stock or other
securities which, in accordance with Section 9 of this Plan, shall be
substituted for such shares of Common Stock or to which said shares shall be
adjusted; hereinafter, all references to shares of Common Stock are deemed to be
references to said shares or shares so adjusted.) The issuance of shares upon
exercise of an Option shall be free from any preemptive or preferential right of
subscription or purchase on the part of any stockholder. If any outstanding
Option granted under this Plan expires or is terminated, for any reason, the
shares of Common Stock subject to the unexercised portion of the Option will
again be available for Options issued under this Plan.
<PAGE>
SECTION 5. Administration.
--------------
(a) This Plan shall be administered by the committee (the "Committee")
referred to in paragraph (b) of this Section. Subject to the express provisions
of this Plan, the Committee shall have complete authority, in its discretion, to
interpret this Plan, to prescribe, amend and rescind rules and regulations
relating to it, to determine the terms and provisions of the respective option
agreements (which need not be identical), to determine the Grantees to whom, and
the times and the prices at which, Options shall be granted, the option periods,
the number of shares of the Common Stock to be subject to each Option and
whether each Option shall be an Incentive Stock Option or a Non-incentive Stock
Option, and to make all other determinations necessary or advisable for the
administration of the Plan. Each Option shall be clearly identified at the time
of grant as to its status. In making such determinations, the Committee may take
into account the nature of the services rendered by the respective Grantees,
their present and potential contributions to the success of the Company and such
other factors as the Committee, in its discretion, shall deem relevant. Nothing
contained in this Plan shall be deemed to give any Grantee any right to be
granted an Option to purchase shares of Common Stock except to the extent and
upon such terms and conditions as may be determined by the Committee. The
Committee's determination on all of the matters referred to in this Section 5
shall be conclusive.
(b) The Committee shall consist of from one (1) to five (5) individuals
who are members of the Board. Each member of the Committee shall be a person
who, at the time of his appointment to, and at all times during his service as a
member of, the Committee is a "disinterested person" as that term is then
defined under Regulation 16b-3 promulgated under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), or any successor statute or regulation
regarding the same subject matter. The Committee shall be appointed by the
Board, which may at any time, and from time to time, remove any member of the
Committee, with or without cause, appoint additional members to the Committee
and fill vacancies, however caused, in the Committee. A majority of the members
of the Committee shall constitute a quorum and all determinations of the
Committee shall be made by a majority of such quorum. Any decision or
determination of the Committee reduced to writing and signed by all of the
members of the Committee shall be fully as effective as if it had been made at a
meeting duly called and held.
(c) The Committee may at its election provide in any option agreement
covering the grant of Options under this Plan that, upon the exercise of such
Options, the Company will loan to the holder thereof such amount as shall equal
the purchase price of the shares of Common Stock issuable upon such exercise,
such loan to be on terms and conditions deemed appropriate by the Committee.
(d) Notwithstanding any provision hereof to the contrary, the Committee
shall have sole and exclusive authority with respect to the grant of Options to
directors.
(e) No member of the Committee will be liable for anything done or omitted
to be done by such member or by any other member of the Committee in connection
with this Plan, except for the willful misconduct or gross negligence of such
member. The Committee will have the power
-2-
<PAGE>
to engage outside consultants, auditors or other professional help to assist in
the fulfillment of the Committee's duties under this Plan at the Company's
expense.
SECTION 6. Terms of Incentive Stock Options. Each Incentive
--------------------------------
Stock Option granted under this Plan shall be evidenced by an Incentive Stock
Option Agreement which shall be executed by the Company and by the person to
whom such Incentive Stock Option is granted, and shall be subject to the
following terms and conditions:
(a) The price at which shares of Common Stock covered by each Incentive
Stock Option may be purchased pursuant thereto shall be determined in each case
on the date of grant by the Committee, but shall be an amount not less than the
par value of such shares and not less than the fair market value of such shares
on the date of grant. For purposes of this Section, the fair market value of
shares of Common Stock on any day shall be (i) in the event the Common Stock is
not publicly traded, the fair market value on such day as determined in good
faith by the Committee or (ii) in the event the Common Stock is publicly traded,
the last sale price of a share of Common Stock as reported by the principal
quotation service on which the Common Stock is listed, if available, or if last
sale prices are not reported with respect to the Common Stock, the mean of the
high bid and low asked prices of a share of Common Stock as reported by such
principal quotation service, or if there is no such report by such quotation
service for such day, such fair market value shall be the average of (i) the
last sale price (or, if last sale prices are not reported with respect to the
Common Stock, the mean of the high bid and low asked prices) on the day next
preceding such day for which there was a report and (ii) the last sale price
(or, if last sale prices are not reported with respect to the Common Stock, the
mean of the high bid and low asked prices) on the day next succeeding such day
for which there was a report, or as otherwise determined by the Committee in its
discretion pursuant to any reasonable method contemplated by Section 422 of the
Code and any regulations issued pursuant to that Section.
(b) The option price of the shares to be purchased pursuant to each
Incentive Stock Option shall be paid in full in cash, or by delivery (i.e.
surrender) of shares of Common Stock of the Company then owned by the Grantee,
at the time of the exercise of the Incentive Stock Option; provided, however,
-------- -------
that the Grantee shall have held the surrendered shares of Common Stock for a
period of not less than six (6) months. Shares of Common Stock so delivered
will be valued on the day of delivery for the purpose of determining the extent
to which the option price has been paid thereby, in the same manner as provided
for the purchase price of Incentive Stock Options as set forth in paragraph (a)
of this Section, or as otherwise determined by the Committee, in its discretion,
pursuant to any reasonable method contemplated by Section 422 of the Code and
any regulations issued pursuant to that Section.
(c) Each Incentive Stock Option Agreement shall provide that such
Incentive Stock Option may be exercised by the Grantee, in such parts and at
such times as may be specified in such Agreement, with a period not exceeding
ten years after the date on which the Incentive Stock Option is granted
(hereinafter called the "Incentive Stock Option Period") and, in any event, only
during the continuance of the employee's employment by the Company or any of its
Subsidiaries or during the
-3-
<PAGE>
period of three months after the termination of such employment to the extent
that the right to exercise such Incentive Stock Option had accrued at the date
of such termination; provided, however, that if Incentive Stock Options as to
100 or more shares are held by a Grantee, then such Incentive Stock Options may
not be exercised for less than 100 shares at any one time, and if Incentive
Stock Options for less than 100 shares are held by a Grantee, then Incentive
Stock Options for all such shares must be exercised at one time; and provided,
further, that if the Grantee, while still employed by the Company or any of its
Subsidiaries, shall die or become "Disabled" within the Incentive Stock Option
Period, the Incentive Stock Option may be exercised, to the extent specified in
the Incentive Stock Option Agreement, and as herein provided, but only prior to
the first to occur of:
(i) the expiration of the period of one year (x) after the date of
the Grantee's death, or (y) the date that the Grantee became Disabled, as the
case may be,
(ii) in the event of the Grantee's death, the expiration of the
Incentive Stock Option Period, by the person or persons entitled to do so under
the Grantee's will, or, if the Grantee shall fail to make testamentary
disposition of said Incentive Stock Option, or shall die intestate, by the
Grantee's legal representative or representatives, or
(iii) in the event the Grantee becomes Disabled, the expiration of
the Incentive Stock Option Period, by the Grantee's legal representative. For
purposes of this Plan, a Grantee shall be deemed to be "Disabled" in the event
that a physical or mental illness causes the Grantee to be unable to carry out
the duties and responsibilities of the position or office held by the Grantee
with the Company or any Subsidiary for a period of more than ninety (90) days in
any twelve month period.
(d) Each Incentive Stock Option granted under this Plan shall by its terms
be non-transferable by the Grantee except (i) by will or by the laws of descent
and distribution, and (ii) that the Grantee shall have the right to transfer any
Incentive Stock Option to such Grantee's spouse or such Grantee's ancestors,
descendants, siblings, descendants of any sibling, or the spouse of any of the
foregoing (collectively, "Relatives") or to a trust of which there are no
principal beneficiaries other than such Grantee or one or more of such Relatives
of such Grantee.
(e) Notwithstanding the foregoing, if an Incentive Stock Option is granted
to a person at any time when such person owns, within the meaning of Section 424
(d) of the Code, more than 10% of the total combined voting power of all classes
of stock of the employer corporation (or a parent or subsidiary of such
corporation within the meaning of Section 424 of the Code) the price at which
each share of Common Stock covered by such Incentive Stock Option may be
purchased pursuant to such Incentive Stock Option shall not be less than 110% of
the fair market value (determined as in paragraph (a) of this Section) of the
shares of Common Stock at the time the Incentive Stock Option is granted, and
such Incentive Stock Option must be exercised within a period specified in the
Incentive Stock Option Agreement which does not exceed five years after the date
on which such Incentive Stock Option is granted.
-4-
<PAGE>
(f) The Incentive Stock Option Agreement entered into pursuant hereto may
contain such other terms, provisions and conditions not inconsistent herewith as
shall be determined by the Committee including, without limitation, provisions
(i) requiring the giving of satisfactory assurances by the Grantee that the
shares are purchased for investment and not with a view to resale in connection
with a distribution of such shares, and will not be transferred in violation of
applicable securities laws, (ii) restricting the transferability of such shares
during a specified period, (iii) requiring the resale of such shares to the
Company at the option price if the employment of the employee terminates prior
to a specified time, and (iv) requiring that any shares of Common Stock issued
to an officer or director of the Company pursuant to this Plan shall not be
transferred until at least six (6) months have elapsed from the date of grant of
such Option to the date of disposition of the Common Stock underlying such
Option. In addition, the Committee, in its discretion, may afford to holders of
Incentive Stock Options granted under this Plan the right to require the Company
to cause to be registered under the Securities Act of 1933, as amended, for
public sale by the holders thereof, shares of Common Stock subject to such
Incentive Stock Options upon such terms and subject to such conditions as the
Committee may determine to be appropriate.
(g) In the discretion of the Committee, a single Stock Option Agreement
may include both Incentive Stock Options and Non-incentive Stock Options, or
those options may be included in separate stock option agreements.
Section 7. Terms of Non-incentive Stock Opinions. Each Non-
-------------------------------------
incentive Stock Option granted under this Plan shall be evidenced by a Non-
incentive Stock Option Agreement which shall be executed by the Company and by
the person to whom such Non-incentive Stock Option is granted, and shall be
subject to the following terms and conditions:
(a) The price at which shares of Common Stock covered by each Non-
incentive Stock Option may be purchased pursuant thereto shall be an amount not
less than the par value of such shares and not less than the fair market value
of such shares on the date of grant, determined in the manner provided in
Section 6(a) of this Plan.
(b) Each Non-incentive Stock Option Agreement shall provide that such Non-
incentive Stock Option may be exercised by the Grantee, in such parts and at
such times as may be specified in such Agreement, within a period up to and
including ten years and thirty days after the date on which the Non-incentive
Stock Option is granted.
(c) Each Non-incentive Stock Option granted under this Plan shall by its
terms be non-transferable by the Grantee except (i) by will or by the laws of
descent and distribution, and (ii) that the Grantee shall have the right to
transfer any Non-incentive Stock Option to such Grantee's Relatives or to a
trust of which there are no principal beneficiaries other than such Grantee or
one or more of such Relatives of such Grantee.
(d) The Non-incentive Stock Option Agreement entered into pursuant hereto
may contain such other terms, provisions and conditions not inconsistent
herewith as shall be terminated by the
-5-
<PAGE>
Committee, in its sole discretion, including without limitation the terms,
provisions and conditions set forth in Section 6(f) with respect to Incentive
Stock Option Agreements.
Section 8. Limit on Option Amount. Notwithstanding any provision
----------------------
contained herein, the aggregate fair market value (determined under Section 6(a)
as of the time such Incentive Stock Options are granted) of the shares of Common
Stock with respect to which Incentive Stock Options are first exercisable by any
employee during any calendar year (under all stock option plans of the
employee's employer corporation and its parent and subsidiary corporation within
the meaning of Section 424 of the Code) shall not exceed $100,000. If an Option
exceeds this $100,000 limitation, the portion of such an option which is
exercisable for shares of Common Stock in excess of the $100,000 limitation
shall be treated as a Non-incentive Stock Option. The limit in this paragraph
shall not apply to options which are designated as Non-incentive Stock Options,
and, except as otherwise provided herein, there shall be no limit on the amount
of such options which may be first exercisable in any year.
Section 9. Adjustment of Number of Shares. In the event that a
------------------------------
dividend shall be declared upon the shares of Common Stock payable in shares of
Common Stock, the number of shares of Common Stock then subject to any Option
granted hereunder, and the number of shares reserved for issuance pursuant to
this Plan but not yet covered by an Option, shall be adjusted by adding to each
of such shares the number of shares which would be distributable thereon if such
share had been outstanding on the date fixed for determining the stockholders
entitled to receive such stock dividend. In the event that the outstanding
shares of Common Stock shall be changed into or exchanged for a different number
or kind of shares of stock or other securities of the Company or of another
corporation, whether through reorganization, recapitalization, stock split-up,
combination of shares, merger or consolidation, then there shall be substituted
for each share of Common Stock reserved for issuance pursuant to this Plan but
not yet covered by an Option, the number and kind of shares of stock or other
securities into which each outstanding share of Common Stock shall be so changed
or for which each such share shall be exchanged; provided, however, that in the
event that such change or exchange results from a merger or consolidation, and
in the judgment of the Board of Directors such substitution cannot be effected
or would be inappropriate, or if the Company shall sell all or substantially all
of its assets, the Company shall use reasonable efforts to effect some other
adjustment of each then outstanding Option which the Board of Directors, in its
sole discretion, shall deem equitable. In the event that there shall be any
change, other than as specified above in this Section 9, in the number or kind
of outstanding shares of Common Stock or of any stock or other securities into
which such shares of Common Stock shall have been changed or for which they
shall have been exchanged, then, if the Board of Directors shall determine that
such change equitably requires an adjustment in the number or kind of shares
theretofore reserved for issuance pursuant to the Plan but not yet covered by an
Option and of the shares then subject to an Option or Options, such adjustment
shall be made by the Board of Directors and shall be effective and binding for
all purposes of this Plan and of each stock option agreement. Notwithstanding
the foregoing, if any adjustment in the number of shares which may be issued and
sold pursuant to Options is required by the Code or regulations issued pursuant
thereto to be approved by the stockholders in order to enable the Company to
issue Incentive Stock Options pursuant to this Plan, then no such adjustment
-6-
<PAGE>
shall be made without the approval of the stockholders. In the case of any such
substitution or adjustment as provided for in this Section, the option price in
each stock option agreement for each share covered thereby prior to such
substitution or adjustment will be the total option price for all shares of
stock or other securities which shall have been substituted for each such share
or to which such share shall have been adjusted pursuant to this Section 9. No
adjustment or substitution provided for in this Section 9 shall require the
Company, in any stock option agreement, to sell a fractional share, and the
total substitution or adjustment with respect to each stock option agreement
shall be limited accordingly. Notwithstanding the foregoing, in the case of
Incentive Stock Options, if the effect of the adjustments or substitution is to
cause the Incentive Stock Option to fail to continue to qualify as an Incentive
Stock Option or to cause a modification, extension or renewal of such Incentive
Stock Option within the meaning of Section 424 of the Code, the Board of
Directors shall use reasonable efforts to effect such other adjustment of each
then outstanding option as the Board of Directors, in its sole discretion, shall
deem equitable.
Section 10. Change of Control. Notwithstanding any provision of
-----------------
this Plan or any provision in any stock option agreement to the contrary, all
unexpired Options will become immediately exercisable in full upon and
simultaneously with the occurrence of any of the following events:
(a) the Company is merged, consolidated, or reorganized into or with
another corporation or other legal entity, and as a result of such merger,
consolidation, or reorganization less than a majority of the combined voting
power of the then-outstanding securities of such corporation or entity
immediately after such transaction are held in the aggregate by the holders of
then-outstanding securities entitled to vote generally in the election of
directors of the Company (the "Voting Stock"), immediately prior to such
transaction;
(b) the Company sells or otherwise transfers all or substantially all of
its assets to another corporation or other legal entity and, as a result of such
sale or transfer, less than a majority of the combined voting power of the then-
outstanding securities of such other corporation or entity immediately after
such sale or transfer is held in the aggregate by the holders of Voting Stock of
the Company immediately prior to such sale or transfer; or
(c) any person (as the term "person" is used in Section 13(d)(3) or
Section 14(d)(2) of the Exchange Act), other than Jeffrey B. Bogatin or his
heirs or legal representatives, becomes the beneficial owner (as the term
"beneficial owner" is defined under Rule 13d-3 or any successor rule or
regulation promulgated under the Exchange Act) of securities representing 50% or
more of the combined voting power of the Voting Stock of the Company; provided,
--------
however, that an event pursuant to the provisions of this Section 10(c) shall
- -------
not be deemed to have occurred solely because (i) the Company, (ii) a Subsidiary
of the Company, or (iii) any employee stock ownership plan or any other employee
benefit plan of the Company or any of its Subsidiaries becomes the beneficial
owner of securities of the Company.
-7-
<PAGE>
Section 11. Retirement. Notwithstanding any provision of this Plan
----------
or any provision in any stock option agreement to the contrary, all unexpired
Options granted to any Grantee who is an employee of the Company or any of its
Subsidiaries will become immediately exercisable in full upon the "retirement"
of such Grantee; provided, that, such Grantee shall have been employed by the
-------- ----
Company or any of its Subsidiaries for a period of at least two consecutive
years prior to the date of such retirement. For purposes of this Plan, the term
"retirement" shall mean (i) the voluntary termination of employment with the
Company and/or any of its Subsidiaries by a Grantee on or after the date such
Grantee becomes 62 years old, or (ii) the mandatory retirement from the Company
and/or any of its Subsidiaries with respect to a Grantee pursuant to the
Company's then existing employment policy.
Section 12. Liability of the Company. None of the Company, its
------------------------
directors, officers, or employees, any of the Subsidiaries which are in
existence or hereafter come into existence, or their directors, officers or
employees, shall be liable to any Grantee or other person if it is determined
for any reason by the Internal Revenue Service or any court having jurisdiction
that any Incentive Stock Options granted hereunder do not qualify for tax
treatment as incentive stock options under Section 422 of the Code.
Section 13. No Guarantee of Employment. Nothing in this Plan will
--------------------------
in any manner be construed to limit in any way the right of the Company or a
Subsidiary to terminate any Grantee's employment at any time, without regard to
the effect of such termination on any rights such Grantee would otherwise have
under this Plan, or give any right to such Grantee to remain employed by the
Company or a Subsidiary in any particular position or at any particular rate of
compensation.
Section 14. Amendments.
----------
(a) Amendment of Plan. This Plan may be terminated or amended from time to
-----------------
time by vote of the Board of Directors; provided, however, that no such
termination or amendment shall materially adversely affect or impair any then
outstanding Option without the consent of the Grantee thereof and no amendment
which shall (i) change the total number of shares which may be issued and sold
pursuant to Options granted under this Plan, or (ii) change the designation or
class of employees or other persons eligible to receive Incentive Options or
Non-incentive Option, shall be effective without the approval of the
stockholders.
(b) Amendments Relating to Incentive Stock Options. To the extent
----------------------------------------------
applicable, this Plan is intended to permit the issuance of Incentive Stock
Options in accordance with Section 422 of the Code. This Plan may be modified
or amended at any time, both prospectively and retroactively, and in such manner
as to affect Incentive Stock Options previously granted, if such amendment or
modification is necessary for this Plan and the Incentive Stock Options granted
hereunder to qualify under said provisions of the Code.
-8-
<PAGE>
Section 15. Termination. Except to the extent necessary to govern
-----------
outstanding Options, this Plan shall terminate on, and no additional Options
shall be granted after, ten years from the date the Plan is adopted, or ten
years from the date the Plan is approved by the stockholders, whichever is
earlier.
Section 16. Miscellaneous.
-------------
(a) Fail-Safe Provision. With respect to persons subject to Section 16 of
-------------------
the Exchange Act, transactions under this Plan are intended to comply with all
applicable conditions of Rule 16b-3 or its successors under the Exchange Act.
To the extent any provisions of this Plan or action by Committee fails to so
comply, it shall be deemed null and void, to the extent permitted by law and
deemed advisable by the Committee.
(b) Proceeds. The proceeds to be received by the Company upon exercise of
--------
any Option granted under this Plan will constitute general funds of the Company
and may be used for any proper purposes.
(c) Effect of Headings. The section and subsection headings contained
------------------
herein are for convenience only and shall not affect the construction hereof.
-9-
<PAGE>
EXHIBIT 5.1
Henry, Meier & Jones, L.L.P.
Attorneys and Counselors at Law
1700 Pacific Avenue, Suite 2700
Dallas, Texas 75201
(214) 954-9700
(214) 954-9701 facsimile
June 25, 1999
TurboChef Technologies, Inc.
10500 Metric Drive, Suite 128
Dallas, Texas 75243
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
This opinion is furnished to you in connection with a Registration
Statement on Form S-8 (the "Registration Statement") filed with the Securities
and Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Securities Act"), for the registration of 3,650,000 shares of
Common Stock, $.01 par value per share (the "Shares"), of TurboChef
Technologies, Inc., a Delaware corporation (the "Company"), issuable under the
Company's 1994 Stock Option Plan, as amended (the "Plan").
We have examined the Certificate of Incorporation and By-Laws of the
Company, each as amended and restated to date, and originals, or copies
certified to our satisfaction, of all pertinent records of the meetings of the
directors and stockholders of the Company, the Registration Statement and such
other documents relating to the Company as we have deemed material for the
purposes of this opinion.
In examination of the foregoing documents, we have assumed the genuineness
of all signatures, the authenticity of all documents submitted to us as
originals, the conformity to original documents of all documents submitted to us
as copies, the authenticity of the originals of such latter documents and the
legal competence of all signatories to such documents.
We express no opinion herein as to the laws of any state or jurisdiction
other than the state laws of the State of Texas, the Delaware General
Corporation Law statute and the federal laws of the United States of America.
Based upon and subject to the foregoing, we are of the opinion that the
Shares have been duly authorized for issuance and the Shares, when issued and
paid for in accordance with the terms of the Plan, will be validly issued, fully
paid and nonassessable.
It is understood that this opinion is to be used only in connection with
the offer and sale of the Shares while the Registration Statement is in effect.
<PAGE>
TurboChef Technologies, Inc.
June 25, 1999
Page 2
Please note that we are opining only as to the matters expressly set forth
herein, and no opinion should be inferred as to any other matters.
We hereby consent to the filing of this opinion with the Commission as an
exhibit to the Registration Statement in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Securities Act. In giving such
consent, we do not hereby admit that we are in the category of persons whose
consent is required under Section 7 of the Securities Act or the rules and
regulations of the Commission.
Sincerely,
/s/ HENRY, MEIER & JONES, L.L.P.
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement
on Form S-8 of TurboChef Technologies, Inc. (the "Company") of our report dated
January 30, 1998, relating to the balance sheet of the Company as of December
31, 1997 and the related statements of operations, stockholders' equity and cash
flows for the years ended December 31, 1997 and 1996, which report appears in
the December 31, 1998 Annual Report on Form 10-K of the Company.
/S/ KPMG LLP
Dallas, Texas
June 25, 1999
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our report dated March 31, 1999
included in the TurboChef Technologies, Inc., Form 10-K for the year ended
December 31, 1998 and to all references to our Firm included in this
Registration Statement.
/s/ ARTHUR ANDERSEN LLP
Dallas, Texas
June 25, 1999
