Exhibit 10.2
THIS WARRANT
AND THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE
TRANSFERRED IN VIOLATION OF SUCH ACT, THE RULES AND REGULATIONS
THEREUNDER OR THE PROVISIONS OF THIS WARRANT
No. of Shares
of Common Stock: 454,000
WARRANT
To Purchase Shares of Common Stock
of
TURBOCHEF TECHNOLOGIES,
INC.
THIS WARRANT (referred to herein as this
“Warrant”) IS TO CERTIFY THAT MARTHA STEWART LIVING
OMNIMEDIA, INC. (the “Initial Holder”) is entitled, at
any time prior to the Expiration Date (as hereinafter defined), to
purchase from TURBOCHEF TECHNOLOGIES, INC., a Delaware corporation
(the “Company”), up to 454,000 shares of Common Stock
(as hereinafter defined and subject to adjustment as provided
herein), in whole or in part, at the Current Warrant Price (as
defined herein), all on the terms and conditions and pursuant to
the provisions hereinafter set forth.
WHEREAS, the Company and Initial Holder have
entered into a Product Integration and License Agreement of even
date herewith, the terms of which include the issuance of this
Warrant to purchase shares of Common Stock, subject to adjustment
as provided in Section 4 herein;
NOW, THEREFORE, in consideration of the premises
and the mutual agreements herein set forth, the Company hereby
issues this Warrant on the following terms and
conditions:
1. DEFINITIONS
As used in this Warrant, the following terms
have the respective meanings set forth below:
" Business Day " shall mean any day
that is not a Saturday or Sunday or a day on which banks are
required or permitted to be closed in the State of New
York.
" Common Stock " shall mean (except
where the context otherwise indicates) the Common Stock, $0.01 par
value, of the Company as constituted on the Issue Date, and any
capital stock into which such Common Stock may thereafter be
changed, and shall also include (i) capital stock of the Company of
any other class (regardless of how denominated) issued to the
holders of shares of Common Stock upon any reclassification thereof
which is not preferred as to dividends or assets over any other
class of stock of the Company and which is not subject to
redemption and (ii) shares of common stock of any successor or
acquiring corporation (as defined in Section 4.2) received by or
distributed to the holders of Common Stock of the Company in the
circumstances contemplated by Section 4.2.
" Commission " shall mean the
Securities and Exchange Commission or any other federal agency then
administering the Securities Act and other federal securities
laws.
" Current Market Price " shall mean, in
respect of any share of Common Stock on any date herein specified,
the closing price per share of Common Stock on such
date. If the Common Stock is listed or admitted to
trading on a national securities exchange, the closing price shall
be the last sale price during regular trading hours, or, in case no
such sale takes place on such day, the average of the closing bid
and asked prices during regular trading hours, in either case as
reported in the principal consolidated transaction reporting system
with respect to securities listed or admitted to trading on the
NASDAQ Global Select Market or NASDAQ Global Market, as the case
may be, or, if the Common Stock is not listed or admitted to
trading on the NASDAQ Global Select Market or NASDAQ Global Market,
as the case may be, as reported in the principal consolidated
transaction reporting system with respect to securities listed on
the principal national securities exchange on which the Common
Stock is listed or admitted to trading. If Common Stock
is not listed or admitted to trading on any national securities
exchange, the closing price for each day shall be the closing last
sale price or, if not so quoted, the average of the high bid and
low asked prices in the over-the-counter market, as reported by the
National Association of Securities Dealers, Inc., Automated
Quotation System or such other system then in use, or, if on any
such date the Common Stock or such other securities are not quoted
by any such organization, the average of the closing bid and asked
prices as furnished by a professional market maker making a market
in the Common Stock selected by the Board of Directors of the
Company. In connection with an exercise (or partial
exercise) of this Warrant through the surrender of all or a portion
of a Warrant, the “Current Market Price” shall be
increased by the fair market value of any property, cash or
securities that would be received by Holder pursuant to Section 4.3
in connection with the exercise of this Warrant for one share of
Common Stock.
" Current Warrant Price " as of any
date shall mean, in respect of a share of Common Stock at any date
herein specified, $8.26, as such price shall have been adjusted in
accordance with Section 4 hereof.
" Exchange Act " shall mean the
Securities Exchange Act of 1934, as amended, or any successor
federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect from time to
time. Reference to a particular section of the Exchange
Act shall include reference to the comparable section, if any, of
such successor federal statute.
“ Exercise Date ” shall have
the meaning ascribed in Section 2.1.
" Expiration Date " shall mean April
28, 2014 .
“ Governmental Authority ”
means the government of any nation, state, city, locality or other
political subdivision of any thereof, and any entity exercising
executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government or any international
regulatory body having or asserting jurisdiction over a Person, its
business or its properties.
" Holder " shall mean the Initial
Holder or any Person in whose name this Warrant is registered on
the books of the Company maintained for such purpose after a
transfer by the Initial Holder or, collectively, each Holder of a
Warrant, in the event of any division of this Warrant.
“ Initial Holder ” shall mean
Martha Stewart Living Omnimedia, Inc.
" Issue Date " shall mean April 28,
2008.
" Majority Holders " shall mean the
holders of Warrants exercisable for in excess of 50% of the
aggregate number of shares of Common Stock then purchasable upon
exercise of all Warrants.
" Person " shall mean any
individual, firm, corporation, partnership or other entity, and
shall include any successor by merger or otherwise of such
entity.
" Securities Act " shall mean the
Securities Act of 1933, as amended, or any similar federal statute,
and the rules and regulations of the Commission thereunder, all as
the same shall be in effect at the time.
" Warrants " shall mean this Warrant and
all warrants issued upon transfer, division or combination of, or
in substitution for, any thereof. All Warrants shall at all times
be identical as to terms and conditions and date, except as to the
number of shares of Common Stock for which they may be
exercised.
" Warrant Stock " shall mean the shares
of Common Stock purchased by Holder upon the exercise of this
Warrant.
2.
EXERCISE OF WARRANT
2.1.
Manner of Exercise . At any time or from time to
time until 5:00 P.M., New York time, on the Expiration Date, Holder
may exercise this Warrant, on any Business Day, for all or any part
of the number of shares of Common Stock purchasable
hereunder.
In order to
exercise this Warrant, in whole or in part, Holder shall deliver to
the Company at its principal office, currently at Six Concourse
Parkway, Suite 1900, Atlanta, Georgia 30328 (i) a written notice of
Holder's election to exercise this Warrant, which notice shall
specify the number of shares of Common Stock to be purchased, (ii)
payment of the Current Warrant Price and (iii) this
Warrant. Such notice shall be substantially in the form
appearing at the end of this Warrant as Exhibit A, duly executed by
Holder. Upon receipt of the items specified in the
second preceding sentence, the Company shall execute or cause to be
executed and deliver or cause to be delivered to Holder as soon as
practicable a certificate or certificates representing the
aggregate number of full shares of Common Stock issuable upon such
exercise, together with cash in lieu of any fraction of a share, as
hereinafter provided. The stock certificate or
certificates so delivered shall be in such denomination or
denominations as Holder shall request in the notice and shall be
registered in the name of Holder. This Warrant shall be deemed to
have been exercised and such certificate or certificates shall be
deemed to have been issued, and Holder shall be deemed to have
become a holder of record of such shares for all purposes, as of
the date the notice, together with the Current Warrant Price and
this Warrant, are received by the Company as described above (the
“ Exercise Date ”). If this Warrant
shall have been exercised in part, appropriate notation may be made
on this Warrant and the same returned to Holder.
Payment of the Current Warrant Price shall be
made at the option of Holder by certified or official bank check or
wire transfer of immediately available funds. If at the
time of exercise the shares of Warrant Stock issuable upon such
exercise are not then the subject of an effective resale
registration under applicable federal and state securities laws,
then payment of the Current Warrant Price also may be made at the
option of Holder (i) by delivering to the Company certificates
representing the number of shares of Common Stock to be
surrendered, duly endorsed by or accompanied by appropriate
instruments of transfer duly executed by Holder, (ii) cancellation
as of the date of exercise of a portion of this Warrant or (iii)
any combination of the foregoing. For the purposes of
making payment of the Warrant Price, shares of Common Stock being
surrendered shall have a value equal to the Current Market Price as
of the last trading day immediately preceding the Exercise Date. If
a portion of this Warrant is cancelled in payment of the Current
Warrant Price, the value of the portion of this Warrant so
cancelled shall be equal to the product of (x) the number of shares
of Common Stock purchasable under this Warrant as to which this
Warrant is being cancelled, multiplied by (y) the excess of the
Current Market Price as of the last trading day immediately
preceding the Exercise Date over the Current Warrant Price as
adjusted at the Exercise Date. If Holder surrenders
shares of Common Stock in payment of the Current Warrant Price and
less than all of the shares of Common Stock represented by any
certificate are being surrendered, the Company shall deliver to
Holder a new certificate or certificates representing the shares of
Common Stock not applied to payment of the Current Warrant Price;
provided , however , that in lieu of any fractional
share of Common Stock which such Holder would otherwise be entitled
to receive, the Company shall pay to Holder an amount of cash equal
to such fraction multiplied by the Current Market Price as of the
last trading day immediately preceding the Exercise
Date.
2.2.
Conditions to Exercise . Notwithstanding anything
contained herein to the contrary, if the sale of the Warrant Stock
to be received upon exercise of this Warrant has not been
registered under the Securities Act, the issuance of such Warrant
Stock shall be conditioned upon delivery to the Company of a
written certification in substantially the form of the
certification attached hereto as Exhibit B, or, at the
Holder’s election, the delivery to the Company of an opinion
of counsel, which opinion and counsel shall be reasonably
satisfactory to the Company, that such Warrant Stock may be issued
without registration under the Securities Act.
2.3.
Payment of Taxes . All shares of Common Stock
when issued upon the exercise of this Warrant shall be validly
issued, fully paid and nonassessable and without any preemptive
rights. The Company shall pay all expenses in connection
with, and all taxes and other governmental charges that may be
imposed with respect to, the issue or delivery thereof, other than
income taxes payable by Holder or any of its affiliates.
2.4.
Fractional Shares . The Company shall not be
required to issue a fractional share of Common Stock upon exercise
of this Warrant. As to any fraction of a share which Holder would
otherwise be entitled to receive upon such exercise, the Company
shall pay a cash adjustment in respect of such fraction in an
amount equal to the same fraction of the Current Market Price per
share of Common Stock on the date of exercise.
3. TRANSFER,
DIVISION AND COMBINATION
3.1.
Transfers . Holder shall have the right to effect
transfers of this Warrant in whole or in part from time to time
subject to compliance with applicable state and federal securities
laws upon written notice to the Company. Any transfer of
this Warrant and of rights hereunder, in whole or in part, shall be
registered on t
