EXHIBIT 10.34
VARIABLE STOCK AGREEMENT DATED JANUARY 14, 1999 BY AND
BETWEEN TURBOCHE TECHNOLOGIES, INC. AND AIG FINANCIAL
SERVICES CORP.
EXHIBIT 10.34
VARIABLE STOCK AGREEMENT
THIS AGREEMENT is made as of this 14th day of January, 1999
between TURBOCHEF TECHNOLOGIES, INC., a Delaware corporation ("Seller"), and
BANQUE AIG, LONDON BRANCH ("Purchaser").
WHEREAS, Seller owns shares of Common Stock, $1.25 par value
per share ("Common Stock"), of Maytag Corporation, a Delaware corporation (the
"Company"); and
WHEREAS, Seller intends to sell, and Purchaser intends to
purchase, shares of Common Stock at the time and on the terms set forth herein;
NOW, THEREFORE, in consideration of their mutual covenants
herein contained, the parties hereto, intending to be legally bound, hereby
mutually covenant and agree as follows:
DEFINITIONS
As used herein, the following words and phrases shall have
the following meanings:
"Alternate Settlement Date" has the meaning provided in
Article VI.
"Closing Price" of the Common Stock on any date of
determination means the daily closing sale price (or, if no closing sale price
is reported, the last reported sale price) of the Common Stock on the NYSE on
such date of determination as reported by the NYSE or, if the Common Stock is
not listed for trading on the NYSE on any such date, as reported in the
composite transactions for the principal United States securities exchange on
which the Common Stock is so listed, or if the Common Stock is not so listed on
a United States national or regional securities exchange, as reported by the
Nasdaq National Market or, if the Common Stock is not so reported, the last
quoted bid price for the Common Stock in the over-the-counter market as
reported by the National Quotation Bureau or similar organization.
"Contract Shares" means shares of Common Stock; provided,
however, that Purchaser may at any time appropriately
revise the definition of "Contract Shares" to reflect any adjustment it makes in
the payment or settlement terms of this Agreement in connection with Potential
Adjustment Events or Reorganization Events as provided in Article V.
"Contract Shares Number" means the maximum number of Contract
Shares which Seller has agreed to sell, and Purchaser has agreed to purchase,
pursuant to this Agreement. The Contract Shares Number on the date hereof is
72,000. The Contract Shares Number shall be subject to adjustment as provided in
Section 1.2(b) or in connection with Potential Adjustment Events and
Reorganization Events as provided in Article V.
"Covered Contract Shares" means the Contract Shares that
Seller is obligated to sell, and Purchaser is obligated to purchase, under this
Agreement as determined pursuant to Section 1.3(b).
"Currency Business Day" means any day on which commercial
banks are open for business in New York City.
"Daily Average Price" means, in relation to any Hedging Date,
the weighted average price per share of Common Stock at which Purchaser or an
affiliate thereof effected hedging transactions in respect of the Common Stock
on such Hedging Date. In respect of each such hedging transaction, the per share
price will be (i) in the case of long or short sales of shares of Common Stock,
the net price per share at which such sales are effected, and (ii) in the case
of any other hedging transaction, the net price per share implied by such
hedging transaction as determined by Purchaser.
"Event of Default" has the meaning provided in Article VI.
"Exchange Business Day" means any day that is a trading day
on the NYSE other than a day on which trading on the NYSE is scheduled to close
prior to its regular weekday closing time.
"Final Value" means the product, calculated as of the
Settlement Date or Alternate Settlement Date (as applicable), of the Reference
Price and the Contract Shares Number.
"Guarantee" means the Guarantee provided by the Guarantor in
the form of Annex A hereto.
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"Guarantor" means American International Group, Inc., a
Delaware corporation.
"Hedging Date" means any day on which Purchaser or an
affiliate thereof effects hedging transactions in respect of the Common Stock
pursuant to Section 1.2(a) hereof.
"Initial Price" means the weighted average of the Daily
Average Prices calculated by Purchaser for each Hedging Date. Such weighted
average shall be calculated with reference to the number of shares of Common
Stock hedged on each Hedging Date as determined by Purchaser. The Initial Price
shall be subject to adjustment in connection with Potential Adjustment Events
and Reorganization Events as provided in Article V.
"Initial Value" means the product, calculated as of the close
of business on the final Hedging Date, of the Initial Price and the Contract
Shares Number on the final Hedging Date.
"Lower Percentage" means 90.0%.
"Market Quotation" means an amount determined on the basis of
quotations from Reference Dealers. Each quotation will be for an amount, if any,
that would be paid to the quoting Reference Dealer in consideration of an
agreement between Purchaser and the quoting Reference Dealer to enter into a
transaction that would have the effect of preserving for Purchaser the delivery
and payment rights and obligations (whether the underlying right or obligation
was absolute or contingent and assuming the satisfaction of each applicable
condition precedent) of Purchaser under this Agreement that would, but for the
occurrence of the relevant Alternate Settlement Date, have been performed after
that date (including the right to receive the Covered Contract Shares on the
Settlement Date). Purchaser (or its agent) will request each Reference Dealer
to provide its quotation to the extent reasonably practicable as of the same day
and time (without regard to different time zones) on or as soon as reasonably
practicable after the Alternate Settlement Date. The day and time as of which
those quotations are to be obtained will be selected in good faith by Purchaser.
If more than three quotations are provided, the Market Quotation will be the
arithmetic mean of the quotations, without regard to the quotations having the
highest and lowest values. If exactly three such quotations are provided, the
Market Quotation will be
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the quotation remaining after disregarding the highest and lowest quotations.
For this purpose, if more than one quotation has the same highest value or
lowest value, then one of such quotations shall be disregarded. If fewer than
three quotations are provided, it will be deemed that Market Quotation cannot be
determined.
"NYSE" means the New York Stock Exchange, Inc.
"Pledge Agreement" means the Pledge Agreement, dated as of
the date hereof, between Seller and Purchaser in the form of Annex B hereto.
"Pledged Contract Shares" means the Contract Shares pledged
by Seller to Purchaser pursuant to the Pledge Agreement.
"Potential Adjustment Event" means any of the following: (i)
a subdivision, consolidation or reclassification of the Common Stock (unless a
Reorganization Event), or a free distribution or dividend of any shares of
Common Stock to existing holders by way of bonus, capitalization or similar
issue; (ii) a distribution or dividend to existing holders of the Common Stock
of (A) shares of Common Stock or (B) other share capital or securities granting
the right to payment of dividends and/or the proceeds of liquidation of the
Company equally or proportionately with such payments to holders of the Common
Stock, or (C) any other types of securities, rights or warrants or other assets,
in any case for payment (cash or other) at less than the prevailing market price
as determined in good faith by the Purchaser; (iii) an extraordinary dividend;
(iv) a call by the Company in respect of shares of Common Stock that are not
fully paid; (v) a repurchase by the Company of shares of Common Stock whether
out of profits or capital and whether the consideration for such repurchase is
cash, securities or otherwise; or (vi) any other similar event that may have a
diluting or concentrative effect on the theoretical value of the Common Stock.
"Prepayment Amount" means the product of (A) 0.651408705, (B)
the Initial Price, and (C) the Contract Shares Number.
"Prepayment Date" has the meaning provided in Section 1.3(a).
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"Purchaser's Loss" means an amount that Purchaser reasonably
determines in good faith to be its total losses and costs in connection with
declaration of an Alternate Settlement Date under this Agreement including any
losses of bargain, cost of funding or, at the election of Purchaser but without
duplication, loss or costs incurred as a result of its terminating, liquidating,
obtaining or reestablishing any hedge or related trading position (or any gain
resulting from any of them). Loss includes losses and costs (or gains) in
respect of any payment or delivery required to have been made (assuming
satisfaction of each applicable condition precedent) on or before the Alternate
Settlement Date and not made. Purchaser will determine its Loss as of the
Alternate Settlement Date, or, if that is not reasonably practicable, as of the
earliest date thereafter as is reasonably practicable. Purchaser may (but need
not) determine its Loss by reference to quotations of relevant rates or prices
from one or more leading dealers in the relevant markets.
"Reference Dealer" means a leading dealer in the equity
derivatives market selected by the Purchaser in good faith (a) from among
dealers of the highest credit standing which satisfy all the criteria Purchaser
generally applies at the time in deciding whether to offer or make an extension
of credit and (b) to the extent practicable, from among such dealers having an
office in the same city.
"Reference Price", when used with respect to the Settlement
Date, means the Closing Price of the Common Stock on January 14, 2002 (or, if
such date is not an Exchange Business Day, the next succeeding Exchange Business
Day), and when used with respect to an Alternate Settlement Date, means the
Closing Price of the Common Stock on the third Exchange Business Day immediately
preceding such Alternate Settlement Date.
"Reorganization Event" means (i) any consolidation or merger
of the Company, or any surviving entity or subsequent surviving entity of the
Company (a "Company Successor"), with or into another entity (other than a
merger or consolidation in which the Company is the continuing corporation and
in which the Common Stock outstanding immediately prior to the merger or
consolidation is not exchanged for cash, securities or other property of the
Company or another corporation), (ii) any reclassification of or change in the
Common Stock that results in a transfer of or an irrevocable commitment to
transfer all of the
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outstanding shares of Common Stock, (iii) any other takeover offer for shares of
Common Stock that results in a transfer of or an irrevocable commitment to
transfer all such shares of Common Stock (other than any such shares owned or
controlled by the offeror), (iv) any sale, transfer, lease or conveyance to
another corporation of the property of the Company or any Company Successor as
an entirety or substantially as an entirety, (v) any statutory exchange of
securities of the Company or any Company Successor with another corporation
(other than in connection with a merger or acquisition) or (vi) any liquidation,
dissolution or winding up of the Company or any Company Successor.
"Securities Act" means the Securities Act of 1933, as
amended.
"Settlement Date" means the third Currency Business Day
following the date as of which the Reference Price is determined in accordance
with the definition thereof.
I.
SALE AND PURCHASE
1.1 Sale and Purchase. Upon the terms and subject to the
conditions of this Agreement, Seller agrees to sell the Covered Contract Shares
to Purchaser and Purchaser agrees to purchase the Covered Contract Shares from
Seller. The sale of the Covered Contract Shares shall settle on the Settlement
Date.
1.2 Hedging. (a) Transactions. To hedge its exposure to the
Common Stock under this Agreement, Purchaser or an affiliate thereof has or will
effect purchases, long sales or short sales of Common Stock or options or other
derivatives in respect thereof (or combinations of such transactions).
Purchaser will make a good faith effort to complete such hedging transactions
not later than five Exchange Business Days after the date of this Agreement.
Promptly after the close of business on the final Hedging Date, Purchaser will
provide written notice to Seller of the Initial Price, the Prepayment Amount and
the Prepayment Date. Purchaser's calculation of the Initial Price and the
Prepayment Amount shall be conclusive absent manifest error. All hedging
transactions effected by Purchaser or its affiliate pursuant to this Section
1.2(a) shall be effected by
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them solely for their benefit and Seller shall not have any financial interest
in, or any right to direct the timing or amount of, any such transactions.
(b) Adjustments. In the event Purchaser or its affiliate does
not complete (in a manner determined by Purchaser in its discretion to be
satisfactory) the hedging contemplated by Section 1.2(a) in respect of the
Common Stock, Purchaser shall promptly give notice thereof to Seller and upon
such notification, at the election of Purchaser (set forth in such notice),
either (i) the Contract Shares Number shall be reduced to such number as
Purchaser or its affiliate has sufficiently hedged through hedging transactions
actually completed (determined by Purchaser in its sole discretion), such
revised Contract Shares Number to be set forth in such notice, or (ii) this
Agreement shall terminate with the same effect as if the Agreement were never
entered into.
1.3 Purchase Price. (a) Prepayment. Purchaser shall pay
Seller the Prepayment Amount on the first Currency Business Day following the
final Hedging Date (the "Prepayment Date"). Payment shall be made in immediately
available funds.
(b) Number of Contract Shares. Purchaser's obligation to
purchase, and Seller's obligation to sell, Contract Shares under this Agreement
applies only to the Covered Contract Shares. The number of Covered Contract
Shares shall be calculated in accordance with the following provisions:
(A) If the Final Value for the Settlement Data
is equal to or less than the Lower
Percentage times the Initial Value, then the
Covered Contract Shares shall be that number
of Contract Shares as shall equal the
Contract Shares Number.
(B) If the Final Value for the Settlement Date
is greater than the Lower Percentage times
the Initial Value, then the Covered Contract
Shares shall be that number of Contract
Shares as shall equal the product of (A) the
Contract Shares Number and (B) 1.000 minus a
fraction (expressed in decimal form) the
numerator of which is the Final Value minus
-----
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90.0% of the Initial Value and the
denominator of which is the Final Value.
(c) Delivery of Shares; Fractional Shares. Seller shall
deliver the Contract Shares to Purchaser on the Settlement Date (or, if
applicable, on any Alternate Settlement Date) in a manner prescribed by Section
8-301 of the New York Uniform Commercial Code. Any Contract Shares or other
cash, securities or property delivered pursuant to this Agreement shall be
delivered in marketable form without restrictive legends and be freely
transferable. If, however, on any Settlement Date or Alternate Settlement Date
any fractional shares of Common Stock would otherwise be deliverable to
Purchaser, Seller agrees to make a cash payment to Purchaser in respect of such
fractional shares of Common Stock in an amount equal to the value thereof the
applicable Reference Price.
II.
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to, and agrees with,
Purchaser that:
(a) Seller is duly organized and validly existing under the
laws of its jurisdiction of incorporation.
(b) The execution, delivery and performance by Seller of this
Agreement and the Pledge Agreement do not violate or conflict with any law
applicable to Seller, any provision of its organizational documents, any order
or judgment of any court or other governmental agency applicable to it or any of
its assets or any contractual restriction binding on or affecting it or any of
its assets.
(c) All governmental and other consents that are required to
have been obtained by Seller with respect to this Agreement and the Pledge
Agreement, if any, have been obtained and are in full force and effect. Without
limitation of the foregoing, Seller has made and will continue to make any and
all filings or reports required to be made by it under applicable laws and
regulations in connection with its ownership of any Contract Shares.
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(d) This Agreement and the Pledge Agreement have been duly authorized,
executed and delivered by Seller and Seller's obligations under this Agreement
and the Pledge Agreement constitute its legal, valid and binding obligations,
enforceable in accordance with their respective terms (subject to applicable
bankruptcy, reorganization, insolvency, moratorium or similar laws affecting
creditor's rights generally and subject, as to enforceability, to equitable
principles of general application (regardless of whether enforcement is sought
in a proceeding in equity or at law)).
(e) There is not pending or, to Seller's knowledge, threatened against
Seller any action, suit or proceeding at law or in equity or before any court,
tribunal, governmental body, agency or official or any arbitrator that might
affect the legality, validity or enforceability against it of this Agreement or
the Pledge Agreement or its ability to perform its obligations hereunder or
thereunder.
(f) The Pledged Contract Shares on the date hereof are freely
transferable by Seller under the Securities Act without restriction as to the
amount or timing of sale.
(g) Seller is not in possession of, and does not have special access
to, any material non-public information regarding the Company and during the
period that Purchaser is effecting hedging transactions pursuant to Section
1.2(a) and on the Settlement Date will not have, and will not have special
access to, any such information. Seller is not, and will not become during the
term of this Agreement, an "affiliate" (as defined in Rule 144 under the
Securities Act) of the Company.
(h) Seller is not, and will not become during the term of this
Agreement, the beneficial owner (as defined in Rule 13d-3 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), but treating any
securities beneficially owned by Seller that are convertible, exchangeable or
exercisable for equity securities of the Company as if they had been converted,
exchanged or exercised) of more than five percent of the outstanding shares of
any class or series of equity securities issued by the Company. For purposes of
this representation, Seller shall be deemed to have beneficial ownership of any
securities it beneficially owns within the meaning of said Rule 13d-3 whether
such beneficial ownership is direct or indirect and whether it is based on
securities individually owned by Seller or
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securities owned as a member of a "group" within the meaning of Rule 13d-5(b)
under the Exchange Act.
(i) Seller has filed or caused to be filed all tax returns that are
required to be filed by Seller and has paid all taxes shown to be due and
payable on said returns or on any assessment made against Seller or any of
Seller's property and all other taxes, assessments, fees, liabilities or other
charges imposed on Seller or any of Seller's property by any governmental
authority (other than any taxes, assessments, fees, liabilities or other charges
contested by Seller in good faith).
(j) Seller is an "accredited investor" as defined in Rule 501(a) of
Regulation D under the Securities Act.
(k) (i) Seller is solely responsible for Seller's investment decisions
with respect to this Agreement and the Pledge Agreement; and (ii) Seller is not
relying on Purchaser or any affiliate thereof in connection with any such
decisions, and neither Purchaser nor any such affiliate is acting as an advisor
to or fiduciary of Seller in connection with this Agreement or the Pledge
Agreement, regardless of whether Purchaser or any such affiliate provides Seller
from time to time with market information or views.
(1) Seller has sufficient knowledge, experience and access to
professional advice to make Seller's own legal, tax, accounting and financial
evaluation of the merits and risks of Seller entering into this Agreement and
the Pledge Agreement, has reviewed the documentation relating to this Agreement
and the Pledge Agreement carefully with Seller's financial, legal and tax
advisors and has determined that entering into this Agreement and the Pledge
Agreement is consistent with Seller's objectives. Without limitation of the
foregoing, or of any other provisions of this Agreement, Seller acknowledges and
understands that the transactions contemplated by this Agreement may involve
complex legal, tax and regulatory considerations that are highly dependent on
facts and circumstances related to Seller, that Purchaser has insufficient
information regarding such facts and circumstances to determine the legal, tax
and regulatory consequences of such transactions for Seller and that Seller,
together with its legal, tax and financial advisors, will be solely responsible
for determining and evaluating such consequences and making independent
decisions with respect to such transactions based on such determinations and
evaluations
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and any other factors or considerations deemed relevant by Seller or its
advisors.
(m) Seller has provided to Purchaser copies of all agreements or
contracts to which it is a party, or by which it is bound, that relate to the
Pledged Contract Shares or any other Common Stock or any securities that are
convertible, exchangeable or exercisable for Common Stock. A list of all such
agreements or contracts is attached as Annex B hereto.
(n) The Pledged Contract Shares and any other shares of Common Stock
beneficially owned by Seller, and any securities beneficially owned by Seller
that are convertible, exercisable or exchangeable for Common Stock, are not
subject to any restrictions on transfer other than those arising under federal
or state securities laws and no such shares of Common Stock or other securities
are entitled to the benefits of any registration rights agreement or similar
agreement.
(o) Seller acknowledges and agrees that Purchaser has or will hedge
its exposure to the Common Stock hereunder as contemplated by Section 1.2(a);
that at any time before, on or after the Settlement Date Purchaser may change or
alter its hedge position; that such transactions may affect the market price for
the Common Stock and thus the amounts payable hereunder; and that, with the
exception of its purchase obligation hereunder and its obligations under Section
1.2(a), Purchaser shall have no obligation to purchase or sell, or to refrain
from purchasing or selling, the Common Stock or entering into any hedging
transaction at any time.
(p) The information included in each financial statement delivered by
Seller to Purchaser pursuant to Section 4.4 hereof will be true and complete in
all material respects.
III.
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents to Seller that:
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(a) It is duly organized and validly existing under the laws of the
jurisdiction of its organization.
(b) It has the power to execute and deliver this Agreement and to
perform its obligations and has taken all necessary action to authorize such
execution, delivery and performance.
(c) The execution, delivery and performance by Purchaser of this
Agreement do not violate or conflict with any law applicable to Purchaser, any
provision of its constitutional documents, any order or judgment of any court or
other governmental agency applicable to it or any of its assets or any
contractual restriction binding on or affecting it or any of its assets.
(d) All governmental and other consents that are required to have been
obtained by Purchaser with respect to this Agreement, if any, have been obtained
and are in full force and effect.
(e) Purchaser's obligations hereunder constitute its legal, valid and
binding obligations, enforceable in accordance with their respective terms
(subject to applicable bankruptcy, reorganization, insolvency, moratorium or
similar laws affecting creditors' rights generally and subject, as to
enforceability, to equitable principles of general application (regardless of
whether enforcement is sought in a proceeding in equity or at law)).
(f) There is not pending or, to Purchaser's knowledge, threatened
against Purchaser any action, suit or proceeding at law or in equity or before
any court, tribunal, governmental body, agency or official or any arbitrator
that is likely to affect the legality, validity or enforceability against it of
this Agreement or its ability to perform its obligations hereunder.
IV.
COVENANTS
4.1 Taxes. Seller shall pay any and all documentary, stamp, transfer
or similar taxes and charges that may be payable
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in respect of the entry into this Agreement and the transfer and delivery of any
Contract Shares pursuant hereto.
4.2 Notices. Seller will cause to be delivered to Purchaser:
(a) Immediately upon the occurrence of any Event of Default hereunder
or under the Pledge Agreement, or the occurrence of any event that with giving
of notice, lapse of time or both would be such an Event of Default, or upon
Seller's obtaining knowledge that any of the conditions or events described in
paragraph (a) or (b) of Article VI shall have occurred with respect to the
Company, notice of such occurrence; and
(b) In case at any time prior to the Settlement Date Seller receives
notice, or otherwise obtains knowledge, that any event requiring or permitting
that an adjustment be effected pursuant to Article V hereof shall have occurred
or be pending, then Seller shall promptly cause to be delivered to Purchaser a
notice identifying such event and stating, if known to Seller, the date on which
such event is to occur and, if applicable, the record date relating to such
event. Seller shall cause further notices to be delivered to Purchaser if Seller
shall subsequently receive notice, or otherwise obtain knowledge, of any further
or revised information regarding the terms or timing of such event or any record
date relating thereto.
4.3 Security for Obligations. Seller shall secure its obligations to
Purchaser under this Agreement by executing the Pledge Agreement on the date
hereof and delivering thereunder the Pledged Contract Shares.
4.4 Seller Financial Statements. Seller shall deliver to Purchaser not
later than March 31st in each calendar year commencing in 1999, audited
consolidated financial statements for its immediately preceding fiscal year
certified by independent certified public accountants and prepared in accordance
with United States generally accepted accounting principles.
4.5 Confidentiality. Purchaser considers its participation in the
transactions contemplated by this Agreement and the details thereof
(collectively, the "Information") to constitute confidential and valuable
business information. Accordingly, Seller agrees to keep the Information
strictly
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confidential and not to disclose it (or any portion thereof) to any third party.
Seller may, however, disclose any Information to the extent such disclosure is
required by law, provided that Seller (i) notifies Purchaser reasonably in
advance of any requirement or pending request for the disclosure of any
Information, and (ii) prior to disclosure consults with Purchaser as to the
advisability of seeking means to preserve the confidentiality of such
Information.
4.7 Further Assurances. From time to time on and after the date hereof
through the Settlement Date, each of the parties hereto shall use its reasonable
best efforts to take, or cause to be taken, all action and to do, or cause to be
done, all things necessary, proper and advisable to consummate and make
effective as promptly as practicable the transactions contemplated by this
Agreement in accordance with the terms and conditions hereof, including (i)
using reasonable best efforts to remove any legal impediment to the consummation
of such transactions and (ii) the execution and delivery of all such deeds,
agreements, assignments and further instruments of transfer and conveyance
necessary, proper or advisable to consummate and make effective the transactions
contemplated by the Agreement in accordance with the terms and conditions
hereof.
V.
ADJUSTMENT OF INITIAL PRICE AND CONTRACT SHARES NUMBER
If there shall occur, or if the Company shall declare the terms of,
any Potential Adjustment Event, Purchaser will determine whether such Potential
Adjustment Event has a diluting or concentrative effect on the theoretical value
of the shares of Common Stock and, if so, will (i) make the corresponding
adjustment(s), if any, to the Initial Price and/or the Contract Shares Number
and, in any case, any other variable relevant to the settlement or payment terms
of this Agreement as Purchaser determines appropriate to account for that
diluting or concentrative effect and (ii) determine the effective date(s) of the
adjustment(s). If there shall occur any Reorganization Event, or if the Company
shall announce the terms of any Reorganization Event to which the Company is
irrevocably committed, Purchaser will (i) make such adjustments, if any, to the
settlement or payment terms of this Agreement as Purchaser determines
appropriate to account for such Reorganization Event
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(including adjustments to the number and class of securities or other assets to
be delivered by Seller on the Settlement Date), and (ii) determine the effective
date(s) of the adjustment(s). Purchaser may (but need not) determine the
appropriate adjustment(s) in respect of a Potential Adjustment Event or
Reorganization Event by reference to the adjustment(s) in respect of such
Potential Adjustment Event or Reorganization Event made by an options exchange
to options on the Common Stock traded on that options exchange. Purchaser will
promptly notify Seller in writing of any adjustments made by it pursuant to this
Article V. In making any such adjustment, Purchaser shall endeavor in good faith
to maintain the parties' relative economic positions under this Agreement as
they stood immediately prior to such adjustment and all such adjustments shall
be conclusive and binding on both parties absent manifest error.
VI.
ACCELERATION
6.1 Acceleration by Purchaser. If one or more of the following events
(each, an "Event of Default") shall occur:
(a) Seller shall commence a voluntary case or other proceeding seeking
relief with respect to itself or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of any
substantial part of its property, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary case
or other proceeding commenced against it, or shall take any action to authorize
any of the foregoing;
(b) an involuntary case or other proceeding shall be commenced against
the Seller seeking relief with respect to it or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or other similar
official of any substantial part of its property, and such involuntary case or
other proceeding shall remain undismissed and unstayed for a period of 30 days;
or an order for relief shall be entered against the Seller under the federal
bankruptcy laws as now or hereafter in effect;
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(c) any representation made by Seller in Article II hereof or
in the Pledge Agreement shall have been untrue in any material respect when
made, or at any time prior to the Settlement Date shall become untrue in any
material respect;
(d) Seller shall fail to perform in any material respect any
of its other obligations to Purchaser hereunder, and such failure shall continue
for five Currency Business Days after notice thereof;
(e) an Event of Default within the meaning of the Pledge
Agreement has occurred and is continuing; or
(f) there shall occur any Event of Default, Termination Event
or Additional Termination Event, with Seller as the affected party, within the
meaning of the Master Agreement, dated as of January 11, 1999, between Seller
and Purchaser;
then, upon the occurrence of any such event, Seller shall become obligated to
deliver on such Currency Business Day as Purchaser may specify (the "Alternate
Settlement Date") all of the Covered Contract Shares (calculated, as of the
Alternate Settlement Date, in the manner set forth in Section 1.3(b) hereof),
and, in addition, such number of Contract Shares as shall have a value equal to
the positive difference, if any, between (i) the Market Quotation (or, in the
event Market Quotation cannot be determined, Purchaser's Loss); and (ii) the
Final Value of the Covered Contract Shares, provided that Seller shall not be
obligated to deliver on any Alternate Settlement Date a total number of Contract
Shares that exceeds the Contract Shares Number.
VII.
MISCELLANEOUS
7.1 Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard forms of telecommunication. Notices to Purchaser
shall be directed to it at ▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇; ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇, Telecopy No. 011-44171-972-0771, with a copy to AIG Financial
Securities Corp., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Chief
Financial Officer (with a copy to the General
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Counsel), Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇, or to such other address as Purchaser
may notify Seller in writing. Notices to Seller shall be directed to it at ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: Chief Financial
Officer, Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇, or to such other address as Seller may
notify Purchaser in writing.
7.2 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
7.3 Severability. To the extent permitted by law, the
unenforceability or invalidity of any provision or provisions of this Agreement
shall not render any other provision or provisions herein contained
unenforceable or invalid.
7.4 Entire Agreement. Except as expressly set forth herein,
this Agreement, together with any oral or written confirmations of pricing terms
delivered by Purchaser to Seller, constitutes the entire agreement among the
parties with respect to the subject matter hereof and supersedes all prior
agreements, understandings and negotiations, both written and oral, among the
parties with respect to the subject matter of this Agreement.
7.5 Amendments; Waivers. Except with respect to oral or
written confirmations of pricing terms provided by Purchaser to Seller, any
provision of this Agreement may be amended or waived if, and only if, such
amendment or waiver is in writing and signed, in the case of an amendment, by
Purchaser and Seller or, in the case of a waiver, by the party against whom the
waiver is to be effective. No failure or delay by either party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof nor shall
any single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
7.6 No Third Party Rights; Successors and Permitted Assigns.
(a) This Agreement is not intended and shall not be construed to create any
rights in any person other than Seller and Purchaser and their respective
successors and permitted assigns and no person shall assert any rights as third
party beneficiary hereunder. Whenever any of the parties hereto is referred to,
such reference shall be deemed to include the
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successors and permitted assigns of such party. All the covenants and agreements
herein contained by or on behalf of the Seller and Purchaser shall bind, and
inure to the benefit of, their respective successors and permitted assigns
whether so expressed or not, and shall be enforceable by and inure to the
benefit of Purchaser and its successors and permitted assigns.
(b) Neither this Agreement nor any interest herein or
obligation hereunder may be transferred by Seller without the prior written
consent of Purchaser and any purported transfer without such consent will be
void.
(c) Except as expressly provided herein, neither this
Agreement nor any interest herein or obligation hereunder may be transferred by
Purchaser without the prior written consent of Seller (other than pursuant to a
consolidation or amalgamation with, or merger with or into, or transfer of all
or substantially all of Purchaser's assets to, another entity) and any purported
transfer without such consent will be void. Purchaser may transfer this
Agreement or any of its interests herein or obligations hereunder to another of
Purchaser's offices, branches or affiliates on two Business Days' prior written
notice; provided, however, that (i) if such transfer is to an entity other than
the Guarantor, such notice shall be accompanied by a guarantee of the Guarantor
of such transferee's obligations in substantially the form of the Guarantee or
by an agreement in writing of the Guarantor that such Guarantee will apply to
the obligations of such transferee under this Agreement.
7.7 Counterparts. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
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IN WITNESS WHEREOF, the parties have signed this Agreement as
of the date and year first above written.
SELLER:
TURBOCHEF TECHNOLOGIES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: EVD-CFO
PURCHASER:
BANQUE AIG, LONDON BRANCH
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: MANAGING DIRECTOR
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