Exhibit 10.3
REGISTRATION RIGHTS AGREEMENT
MAY _____, 2004
TO: THE SEVERAL HOLDERS OF CERTAIN SHARES OF
COMMON STOCK OF TURBOCHEF TECHNOLOGIES, INC.
IDENTIFIED ON EXHIBIT A HERETO:
GENTLEMEN:
This Registration Rights Agreement (the "Agreement") confirms that, in
connection with your agreement to purchase shares of common stock of TurboChef
Technologies, Inc. (the "Company") being issued to you by the Company, without
registration under the Securities Act (as defined below), the Company and you
covenant and agree as follows:
1. CERTAIN DEFINITIONS. As used herein, the following terms shall have
the following respective meanings:
"Commission" means the Securities and Exchange Commission, or any
succeeding federal agency at the time administering the Securities Act.
"Common Stock" means the common stock, $.01 par value per share,
of the Company.
"Closing Date" means the date first above-written.
"Holders" refers to you and any subsequent holder or holders of
record of any of the shares of Restricted Stock while such shares retain
that status as defined below.
"Restricted Stock" means the aggregate of up to 3,500,000 shares
of Common Stock being issued by the Company on the Closing Date to you
and certain other select investors in a private offering, each of whom
has completed a Subscription Agreement (in the form included in the
Confidential Subscription Booklet that contains this Agreement) that has
been accepted by the Company as provided therein, to the extent that any
certificate therefor is required to bear the legend pursuant to and as
set forth in Section 2 hereof.
"Securities Act" means the Securities Act of 1933, as amended, or
any succeeding federal statute, and, as applicable, the rules and
regulations of the Commission thereunder, all as the same shall be in
effect at the time.
2. RESTRICTIVE LEGEND. Each certificate representing shares of Restricted
Stock as initially issued, and, except as otherwise provided in Section 3, each
certificate issued upon exchange or transfer of any Restricted Stock, has been
or shall be stamped or otherwise imprinted with a legend substantially in the
following form:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"FEDERAL ACT"), OR ANY STATE SECURITIES LAW, AND HAVE BEEN
ACQUIRED BY THE REGISTERED OWNER HEREOF FOR PURPOSES OF INVESTMENT
AND HAVE BEEN ISSUED OR SOLD IN RELIANCE ON STATUTORY EXEMPTIONS
CONTAINED IN THE FEDERAL ACT OR AVAILABLE UNDER APPLICABLE STATE
SECURITIES LAWS. THE SHARES MAY NOT BE SOLD, TRANSFERRED, OR
OTHERWISE DISPOSED OF EXCEPT IN A TRANSACTION WHICH IS EXEMPT
UNDER THE FEDERAL ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR
PURSUANT TO AN EFFECTIVE REGISTRATION UNDER SUCH ACT AND LAWS; IN
THE CASE OF RELIANCE UPON AN EXEMPTION, THE COMPANY MUST HAVE
RECEIVED AN OPINION OF COUNSEL SATISFACTORY TO IT THAT SUCH
TRANSACTION IS EXEMPT AND DOES NOT REQUIRE SUCH REGISTRATION OF
THE SHARES."
3. NOTICE OF PROPOSED TRANSFER.
(a) NOTICE REQUIREMENT. Prior to any proposed transfer or other
disposition of any Restricted Stock (other than under circumstances described in
Section 4 or 5), the Holder shall give written notice to the Company of its
intention to do so. Each such notice shall describe the manner of the proposed
transfer or disposition and, if requested by the Company, shall be accompanied
by an opinion of counsel reasonably satisfactory to the Company to the effect
that the proposed transaction may be effected without registration under the
Securities Act and applicable state securities laws, whereupon the Holder shall
be entitled to transfer or otherwise dispose of such Restricted Stock in
accordance with the terms of its notice. Each certificate for Restricted Stock
transferred as provided above shall bear the legend set forth in Section 2,
except that such certificate shall not bear such legend if (i) such transfer is
in accordance with the provisions of Rule 144 under the Securities Act (or any
other rule under the Securities Act permitting public sale without registration
thereunder) or (ii) the opinion of counsel referred to above is to the further
effect that the transferee and any subsequent transferee (other than an
affiliate of the Company) would be entitled to transfer such securities in a
public sale without registration under the Securities Act or any applicable
state securities law.
(b) TERMINATION OF NOTICE REQUIREMENT. The foregoing restrictions
on transfer and disposition of Restricted Stock shall terminate as to any
particular shares of Restricted Stock when such shares shall have been
effectively registered under the Securities Act AND sold or otherwise disposed
by the seller thereof in accordance with a method of disposition set forth in
the registration statement covering such shares. Whenever a Holder demonstrates
to the Company (and its counsel) that the provisions of Rule 144(k) of the
Securities Act are available to such Holder without limitation, such Holder
shall be entitled to receive from the Company, without expense, a new
certificate representing its shares of Restricted Stock not bearing the
restrictive legend set forth in Section 2.
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4. AUTOMATIC REGISTRATION.
(a) TIMING OF REGISTRATION. The Company agrees to file a
registration statement registering under the Securities Act, for public sale in
the manner(s) specified by you or any other Holder, all the shares of Restricted
Stock (or such lesser portion thereof as you or any other Holders thereof may
specify) by no later than July 31, 2004. The Company shall use its reasonable
best efforts to cause such Registration Statement to be declared effective as
soon as possible after its filing date.
(b) NOTICE OF FILING; UNDERWRITERS. The Company shall notify the
Holders not less than ten (10) days before making its filing under the
Securities Act. In addition to, or in lieu of, the methods of disposition set
forth on Exhibit B, the Company shall use its reasonable best efforts to
register the Restricted Stock for public sale in accordance with the methods of
disposition specified by Holders to the Company within five (5) days of receipt
of the Company's notice to them. If any such method of disposition shall be an
underwritten public offering, the Holders of a majority of the shares of
Restricted Stock requesting such method of distribution shall be entitled to
designate the managing underwriter for such offering, subject to the reasonable
approval of the Company. Other possible underwriters for the offering may be
selected by other such requesting Holders, subject to reasonable approval by the
Company and to the customary discretion of managing underwriters with respect to
such matters.
(c) LIMITATION ON INCLUDING OTHER SECURITIES. The Company shall be
entitled to include in any registration statement referred to in this Section 4,
for sale in a manner consistent with any method of disposition specified by
requesting Holders (or for sale pursuant to a firm commitment underwriting),
shares of Common Stock to be sold by or for the account of other persons who may
then be holding "piggyback" registration rights.
5. PIGGYBACK REGISTRATION.
(a) GENERAL AVAILABILITY. If the Company at any time (other than
pursuant to Section 4) proposes to register any of its Common Stock under the
Securities Act for sale to the public for cash, whether for its own account or
for the account of other security holders or both (except with respect to
registration statements on Forms S-4 or S-8, or on another form not generally
available for registering securities such as the Restricted Stock for sale to
the public for cash), the Company will give written notice to all Holders of
then outstanding Restricted Stock of its intention so to do. Upon the written
request of any such Holder, given within five (5) days after receipt of any such
notice, to register any of its shares of Restricted Stock (which request states
the intended method of disposition thereof), the Company will use its reasonable
best efforts to cause such shares of Restricted Stock to be included among the
securities to be covered by the registration statement otherwise proposed to be
filed by the Company, all to the extent requisite to permit the sale or other
disposition of such Restricted Stock by the Holder in accordance with its
written request. The Company's obligations hereunder shall terminate with
respect to any shares of Restricted Stock that may be sold by the Holder
thereof, without limitation, pursuant to the provisions of Rule 144(k) under the
Securities Act.
(b) CERTAIN VOLUME LIMITATIONS. The number of shares of Restricted
Stock to be included pursuant to Section 5(a) in any registration statement that
relates to an underwritten public
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offering may be reduced (pro rata among the requesting Holders of Restricted
Stock based upon the respective numbers of shares so requested to be registered)
if and to the extent that the managing underwriter thereof shall be of the
opinion that the inclusion of all such shares would adversely affect the
marketing of the securities included in such registration statement to be sold
for the account of the Company or such other security holders. Such number of
shares of Restricted Stock shall not be reduced, however, if any shares of
Common Stock are to be included in such underwriting for the account of any
person other than the Company, a Holder of Restricted Stock, or a holder of
Common Stock pursuant to such holder's exercise of "demand" registration rights
or of "piggyback" registration rights that were granted on or prior to the
Closing Date.
(c) CERTAIN OTHER RESTRICTIONS. Notwithstanding anything to the
contrary contained in this Section 5, if there is a firm commitment underwritten
offering of securities for the Company pursuant to a registration covering
shares of Restricted Stock, AND if a selling Holder of Restricted Stock does not
elect to sell its Restricted Stock to the underwriters of the Company's
securities in connection with such offering, THEN such Holder (if requested by
the managing underwriter) shall agree to refrain from selling any of its shares
of Restricted Stock that are otherwise registered pursuant to this Section 5
during the period of distribution of the Company's securities by such
underwriter(s) and during the period in which the underwriting syndicate, as
such, participates in the after-market. Such Holder shall, however, be entitled
to sell such shares, in any event, commencing on the 26th day after the
effective date of such registration statement, if then lawful to do so under
applicable securities laws and rules of the Commission.
6. REGISTRATION PROCEDURES.
(a) COMPANY OBLIGATIONS AND PROCEDURES. Whenever the Company is
required under Section 4 or Section 5 hereof to use its reasonable best efforts
to effect the registration of any of the Restricted Stock under the Securities
Act, the Company will:
(i) prepare and file with the Commission a registration
statement on an appropriate form of the Commission, cause such
registration statement to become effective, and use its reasonable
best efforts to cause such registration statement to remain
effective for the period of the disposition contemplated thereby
(determined as provided in Section 6(b));
(ii) prepare and file with the Commission such amendments
and supplements to such registration statement and the prospectus
used in connection therewith as may be necessary to keep such
registration statement effective for the period referred to in
clause (i) above and to comply with the provisions of the
Securities Act with respect to the disposition of all Restricted
Stock covered by such registration statement, in accordance with
the sellers' intended method or methods of disposition set forth
in such registration statement, for such period;
(iii) furnish to each seller such number of copies of the
registration statement and the prospectus included therein
(including each preliminary prospectus and each amendment or
supplement of a prospectus, if any) as such persons may reasonably
request in order to facilitate the public sale or other
disposition of the Restricted Stock covered by such registration
statement;
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(iv) use its reasonable best efforts to register or
qualify, or to secure an exemption therefrom, the Restricted Stock
covered by such registration statement under the securities or
blue sky laws of such jurisdictions (up to an aggregate maximum of
ten (10), excluding jurisdictions in which an exemption is readily
available) as the sellers of Restricted Stock shall reasonably
request. The foregoing shall not obligate the Company to qualify
to do business, or to subject itself to service of process
generally, in any jurisdiction in which it is not otherwise so
qualified or subject;
(v) immediately notify each seller under such registration
statement and each underwriter, if any, at any time that a
prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of which
the prospectus contained in such registration statement, as then
in effect, contains an untrue statement of a material fact or
omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in the
light of the circumstances then existing (and each seller shall
similarly immediately notify the Company and each underwriter);
(vi) if the offering is underwritten, use its reasonable
best efforts to furnish, at the request of any seller, on the date
that Restricted Stock is delivered to the underwriter(s) for sale
pursuant to such registration: (A) an opinion of counsel
representing the Company for the purposes of such registration,
addressed to such seller (and to such underwriter(s), if any),
stating that such registration statement has become effective
under the Securities Act, and further stating that, to the best
knowledge of such counsel, (I) no stop order suspending the
effectiveness thereof has been issued and no proceedings for that
purpose have been instituted or are pending or contemplated under
the Securities Act and (II) the registration statement, the
related prospectus, and each amendment or supplement thereof,
comply as to form in all material respects with the requirements
of the Securities Act and the applicable rules and regulations of
the Commission thereunder (except that such counsel need express
no opinion as to financial statements, other financial information
or any statistical or similar data contained therein), and to such
other customary effect as may reasonably be requested by such
seller or any such underwriter(s), and (B) a "cold comfort" letter
from the independent public accountants of the Company, addressed
to such seller (and to such underwriter(s), if any), in customary
form and covering matters of the type customarily covered by such
letters;
(vii) use its reasonable best efforts to cause all such
Restricted Stock to be listed or qualified on each securities
exchange or inter-dealer quotation system on which similar
securities issued by the Company are then listed or qualified on
the basis such securities are listed or qualified;
(viii) if the offering is underwritten, enter into such
customary agreements (including underwriting agreements in
customary form) and take all such other actions as the sellers of
the Restricted Stock being sold or the underwriter(s), if any,
reasonably request in order to expedite or facilitate the
disposition of such Restricted Stock, including without
limitation, to the extent reasonably requested, opinions of
counsel customary in such registrations;
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(ix) make available for inspection by any seller of
Restricted Stock, any underwriter participating in any disposition
pursuant to such registration statement, and any attorney,
accountant, or other agent retained by any such seller or
underwriter, all pertinent financial and other records, pertinent
corporate documents, and properties of the Company, and cause the
Company's officers, directors, employees and independent
accountants to supply all information reasonably requested by any
such seller, underwriter, attorney, accountant or agent in
connection with such registration statement, provided that the
Company receives assurances satisfactory to it (which may include
written agreements) from each such person as to the confidential
treatment and limited use of all such information; and
(x) otherwise use its reasonable best efforts to comply
with all applicable rules and regulations of the Commission, and
make available to its security holders, as soon as reasonably
practicable, an earnings statement covering the period of at least
twelve months beginning with the first day of the Company's first
full calendar quarter after the effective date of the registration
statement, which earnings statement shall satisfy the provisions
of Section 11(a) of the Securities Act and Rule 158 thereunder.
(b) PERIOD OF DISPOSITION. For purposes of clauses (i) and (ii) of
Section 6(a) and for Section 4(c), the period of disposition of Restricted Stock
in a firm commitment underwritten public offering shall extend until each
underwriter has completed the distribution of all securities purchased by it,
and the period of disposition of Restricted Stock in any other offering shall
extend until the earlier of the public sale of all shares of Restricted Stock
covered thereby or 120 days after the effective date of the registration
statement therefor.
(c) CERTAIN OBLIGATIONS OF SELLERS. In connection with the
registration hereunder, and as a condition to the Company's obligations
hereunder to any such seller, each seller of Restricted Stock will furnish to
the Company in writing such information with respect to such seller and its
proposed disposition as shall be reasonably necessary in order to assure
compliance with the Securities Act and with other federal and applicable state
securities laws. Without limiting the generality of the foregoing, in connection
with an underwritten public offering, each selling Holder of Restricted Stock
electing such method of disposition agrees to enter into, as required, a written
agreement with the managing underwriter (selected in the manner provided
elsewhere herein) in such form and containing such provisions as are customary
in the securities business for such an arrangement, and to complete and execute
all questionnaires, powers of attorney, indemnities, and other documents or
instruments reasonably required under such terms of the underwriting
arrangements.
7. EXPENSES.
(a) EXPENSES. All expenses incurred by the Company in complying
with Sections 4 and 5, including, without limitation, all registration and
filing fees, printing expenses, fees and disbursements of counsel and
independent public accountants for the Company, fees of the National Association
of Securities Dealers, Inc., transfer taxes, fees of transfer agents and
registrars, and costs of insurance, if any, but excluding any Selling Expenses
and excluding the fees and expenses described in the last sentence of this
subparagraph (a), are herein called "Registration Expenses". All underwriting
discounts and selling commissions applicable to the sale of any
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Restricted Stock are herein called "Selling Expenses". Fees and expenses of any
counsel, accountant or other advisor to a Holder or seller of Restricted Stock
are not included as either Registration Expenses or Selling Expenses.
(b) PAYMENT OF EXPENSES. The Company will pay all Registration
Expenses; all Selling Expenses shall be borne by the participating sellers in
proportion to the number of shares sold by each, or by such persons other than
the Company (except to the extent the Company shall be a seller) as they may
agree.
8. INDEMNIFICATION.
(a) BY COMPANY. In connection with a registration of Restricted
Stock under the Securities Act pursuant to Section 4 or 5, the Company will
indemnify and hold harmless, to the extent permitted by law, each seller and
each underwriter, if any, of Restricted Stock thereunder and each other person,
if any, who controls such seller or underwriter within the meaning of the
Securities Act, from and against all losses, claims, damages or liabilities,
joint or several, to which such seller or underwriter or controlling person may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in any registration statement under which such Restricted Stock
was registered, any preliminary prospectus or final prospectus contained
therein, or any amendment or supplement thereof, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will reimburse each such seller, underwriter, and controlling person for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
PROVIDED, HOWEVER, that the Company will not be liable in any such case if and
to the extent that any such loss, claim, damage, liability or expense arises out
of or is based upon an untrue statement or alleged untrue statement or omission
or alleged omission so made or omitted in conformity with information furnished
by or on behalf of such seller, underwriter or controlling person in writing for
use in such registration statement, prospectus, or amendment or supplement.
(b) BY SELLERS. In connection with a registration of Restricted
Stock under the Securities Act pursuant to Section 4 or 5, each seller of such
Restricted Stock thereunder, severally and not jointly, will indemnify and hold
harmless, to the extent permitted by law, the Company and each person who
controls the Company within the meaning of the Securities Act, each officer of
the Company who signs the registration statement, and each director of the
Company, from and against all losses, claims, damages or liabilities, joint or
several, to which the Company or such officer or director or controlling person
may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the registration statement under which such
Restricted Stock was registered, any preliminary prospectus or final prospectus
contained therein, or any amendment or supplement thereof, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse the Company and each such officer, director and
controlling person for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
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liability or action; PROVIDED, HOWEVER, that such seller will be liable
hereunder in any such case if and only to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made or omitted in
reliance upon and in conformity with information pertaining to such seller, as
such, furnished in writing to the Company by or on behalf of such seller for use
in such registration statement, prospectus, amendment or supplement; PROVIDED
FURTHER, that the liability of each seller hereunder shall be limited to the
proportion of any such loss, claim, damage, liability or expense that is equal
to the proportion that the public offering price of shares sold by such seller
under such registration statement bears to the total public offering price of
all securities sold thereunder, but not to exceed the proceeds received by such
seller from the sale of Restricted Stock covered by such registration statement.
If the registration relates to an underwritten offering, and the seller sells
its Restricted Stock through the underwriter(s) thereof, the seller (upon
request by the underwriter(s)) will indemnify such underwriters, their officers
and directors, and each person who controls such underwriters within the meaning
of the Securities Act, to the same extent as provided above with respect to the
indemnification of the Company or to such other extent as provided in Section
8(e).
(c) PROCEDURES. Any person entitled to indemnification hereunder
will (i) give prompt written notice to the indemnifying party of any claim with
respect to which it seeks indemnification and (ii) unless in such indemnified
party's reasonable judgment (based upon advice in a written opinion of qualified
legal counsel) a conflict of interests between such indemnified and indemnifying
parties may exist with respect to such claim, permit such indemnifying party to
assume and continue the defense of such claim with counsel reasonably
satisfactory to the indemnified party. If such defense is assumed and continued,
and the indemnifying party so notifies the indemnified party, the indemnifying
party shall not be liable to such indemnified party under this Section 8 for any
legal expenses subsequently incurred by such indemnified party in connection
with the defense thereof, other than reasonable costs incurred by the
indemnified party for investigation and liaison with the counsel so selected,
and the indemnifying party will not be subject to any liability for any
settlement made by the indemnified party without the indemnifying party's
consent (which consent shall not be unreasonably withheld). An indemnifying
party who is not entitled to, or elects not to, assume and continue the defense
of a claim will be obligated to pay the fees and expenses of counsel for an
indemnified party with respect to such claim.
(d) CONTRIBUTION. If the indemnification provided for in Sections
8(a) and 8(b) is unavailable or insufficient to hold harmless an indemnified
party in respect of any loss, claim, damage, liability or action in respect
thereof referred to therein, then each indemnifying party shall (in lieu of or
in addition to, as the case may be, indemnifying such indemnified party)
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage, liability or action in such proportion as is
appropriate to reflect the relative fault of the Company, on the one hand, and
the sellers of such Restricted Stock, on the other, in connection with the
statements or omissions that resulted in such loss, claim, damage, liability or
action as well as any other relevant equitable considerations, including any
failure to give in a timely manner any notice required under such Sections. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement or omission or alleged omission of a
material fact relates to information supplied by the Company, on the one hand,
or the sellers of such Restricted Stock, on the other hand, and the parties'
relative intent, knowledge, access to information, and opportunity to correct or
prevent such statement or omission. The Company and you agree that it would not
be just and equitable if contributions pursuant to this Section 8(d) were
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determined by pro rata allocation (whether or not all of the sellers of such
Restricted Stock were treated as one entity for such purpose) or by any other
method of allocation that did not take account of the equitable considerations
referred to above in this Section 8(d). The amount paid or payable by an
indemnified party as a result of any loss, claim, damage, liability or action in
respect thereof referred to in this Section 8(d), shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim in the
manner provided in Section 8(c). No person guilty of a fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act),
shall be entitled to contribution from any person who is not guilty of
fraudulent misrepresentation.
(e) CONDITIONS ON INDEMNIFICATION OF UNDERWRITERS. The
indemnification of underwriters provided for in this Section 8 shall be on such
other terms and conditions as are at the time customary and reasonably required
by such underwriters.
9. MISCELLANEOUS.
(a) SUCCESSORS AND ASSIGNS. All covenants and agreements contained
in this Agreement by or on behalf of any of the parties hereto shall bind and
inure to the benefit of the respective successors and assigns of the parties,
whether or not so expressed. Without limiting the generality of the foregoing,
the registration rights conferred herein on you shall inure to the benefit of
any and all subsequent Holders from time to time of the Restricted Stock for so
long as the certificates representing the Restricted Stock shall be required to
bear the legend specified in Section 2 hereof, subject to any time period
limitations otherwise stated herein.
(b) REMEDIES. Any person having rights under any provision of this
Agreement shall be entitled to enforce such rights specifically, to recover
damages caused by reason of any breach of any provision of this Agreement, and
to exercise all other rights granted by law.
(c) AMENDMENTS AND WAIVERS. Except as otherwise provided herein,
the provisions of this Agreement may be amended and the Company may take any
action herein prohibited, or omit to perform any act herein required to be
performed by it, if, but only if, the Company has obtained the written consent
of Holders of a majority of the shares of Restricted Stock then outstanding.
(d) SEVERABILITY. Whenever possible, each provision of this
Agreement will be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held to be
invalid, illegal or unenforceable under any applicable law or rule in any
jurisdiction, such provision will be ineffective only to the extent of such
invalidity, illegality or unenforceability in such jurisdiction, without
invalidating the remainder of this Agreement in such jurisdiction or any
provision hereof in any other jurisdiction.
(e) COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original and any one of
which need not contain the signatures of more than one party, but all of which
taken together shall constitute one and the same Agreement.
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(f) DESCRIPTIVE HEADINGS. The descriptive headings in certain
portions of this Agreement are used for convenience of reference only. They do
not constitute a part of this Agreement and shall not influence the construction
or interpretation of any provision hereof.
(g) NOTICES. All notices, demands, or other communications to be
given or delivered under or by reason of any provision of this Agreement shall
be in writing and shall be deemed to have been given (i) on the date delivered
in person, (ii) on the date indicated on the return receipt if mailed postage
prepaid, by certified or registered U.S. Mail, with return receipt requested,
(iii) on the date transmitted by telecopy facsimile, if sent by 5:00 P.M.,
Eastern Time, and confirmation of receipt thereof is reflected, or (iv) IF sent
by Federal Express or other nationally recognized overnight courier service or
overnight express U.S. Mail, with service charges or postage prepaid, THEN on
the next business day after delivery to the courier service or U.S. Mail (in
time for next day delivery). In each case (except for personal delivery), such
notices, demands and other communications shall be sent to a Holder of
Restricted Stock, at the address or facsimile number for such Holder on the
Company's stock records (which for you is, as of the date of this Agreement, the
address and facsimile number specified for you on the signature page hereof) and
to the Company as follows:
TurboChef Technologies, Inc.
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Attention: President and CEO
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
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Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address or to the attention of such other person as the
receiving party has specified by prior written notice to the sending party
pursuant to this Section 9(g).
(h) GOVERNING LAW. This Agreement shall be governed by, and
construed and enforced in accordance with, the internal laws of the State of
Georgia, without regard to conflict of laws rules thereof.
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Please confirm your agreement to and acceptance of this Agreement by
countersigning and delivering to the Company a counterpart of this Agreement,
whereupon this Agreement shall be a binding agreement among you, the Company,
and each other such countersignatory.
Very truly yours,
TURBOCHEF TECHNOLOGIES, INC.
By:
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President and Chief Executive Officer
AGREED TO AND ACCEPTED
as of the date first above-written:
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Name(s) (Please type or print)
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Signature(s) (if not an individual,
indicate title of authorized person)
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EXHIBIT A TO
REGISTRATION RIGHTS AGREEMENT
DATED MAY _____, 2004
Names, Addresses, Mail Addresses and Facsimile Nos.
of Certain Holders of Common Stock
of TurboChef Technologies, Inc.
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EXHIBIT B TO
REGISTRATION RIGHTS AGREEMENT
DATED MAY _____, 2004
Methods of Disposition of Restricted Stock
in a Registration Pursuant to Section 4
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The shares of Common Stock may be offered and sold by or for the account
of a Selling Shareholder, from time to time as market conditions permit, on such
exchange or other securities market in which the common stock is quoted or
listed or otherwise, at prices and on terms then prevailing, or in negotiated
transactions. The shares of Common Stock may be sold by one or more of the
following methods, without limitation: (a) a block trade in which a broker or
dealer so engaged will attempt to sell the shares as agent, but may position and
resell a portion of the block as principal to facilitate the transaction; (b)
purchases by a broker or dealer (including a specialist or market maker) as
principal and resale by such broker or dealer for its account pursuant to this
Prospectus; (c) ordinary brokerage transactions and transactions in which the
broker solicits purchasers; and (d) face-to-face transactions between sellers
and purchasers without a broker-dealer. In effecting sales, brokers or dealers
engaged by a Selling Shareholder may arrange for other brokers or dealers to
participate. Such brokers or dealers may receive commissions or discounts from a
Selling Shareholder in amounts to be negotiated. Such brokers and dealers and
any other participating brokers or dealers may be deemed to be "underwriters",
within the meaning of the Securities Act, in connection with such sales.
