UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
10-K/A
(Amendment
No. 1)
(Mark
One)
[X]
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ANNUAL
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934
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For
the Fiscal Year Ended December 31, 2007
OR
[ ]
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TRANSITION
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934
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For
the transition period from
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____________to____________
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Commission
File Number 001-32334
TurboChef
Technologies, Inc.
(Exact
name of Registrant as specified in its Charter)
DELAWARE
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48-1100390
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(State or other
jurisdiction of incorporation or
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(I.R.S. employer identification
number)
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organization)
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Six Concourse Parkway, Suite
1900
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30328
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Atlanta,
Georgia
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(Zip
code)
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(Address of principal executive
offices)
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Registrant’s
telephone number, including area code:
(678)
987-1700
SECURITIES
REGISTERED PURSUANT TO SECTION 12(b) OF THE EXCHANGE ACT:
Title of Each Class
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Name of Each Exchange on Which
Registered
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Common Stock, $0.01
Par Value
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NASDAQ Global
Market
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SECURITIES
REGISTERED PURSUANT TO SECTION 12(g) OF THE EXCHANGE ACT:
None
Indicate
by check mark if the registrant is a well-known seasoned issuer, as defined in
Rule 405 of the Securities Act. Yes [
] No [X]
Indicate
by check mark if the registrant is not required to file reports pursuant to
Section 13 or Section 15(d) of the Act. Yes [
] No [X]
Indicate
by check mark whether the registrant (1) has filed all reports required to be
filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the
preceding 12 months (or for such shorter period that the registrant was required
to file such reports), and (2) has been subject to such filing requirements for
the past 90 days.
Yes
[X] No [ ]
Indicate
by check mark if disclosure of delinquent filers pursuant to Item 405 of
Regulation S-K (§ 229.405) is not contained herein, and will not be contained,
to the best of registrant’s knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. [ ]
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting
company. See definition of “large accelerated filer,” “accelerated
filer” and “smaller reporting company” in Rule 12b-2 of the Exchange
Act.
Large
accelerated filer
¨
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Accelerated
filer
þ
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Non-accelerated
file
¨
(Do
not check if a smaller reporting company)
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Smaller
reporting company
¨
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Indicate
by check mark whether the registrant is a shell company (as defined in Rule
12b-2 of the Exchange Act). Yes [ ] No
[X]
Aggregate
market value of voting and non-voting common equity held by non-affiliates of
the registrant at June 29, 2007: (the last business day of the
registrant’s most recently completed second fiscal quarter)
$297,951,976.
Indicate
the number of shares outstanding of each of the registrant’s classes of common
stock, as of the latest practical date.
Title of Each Class
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Number of Shares
Outstanding
at March 1, 2008
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Common Stock, $0.01
Par Value
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29,570,854
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TURBOCHEF
TECHNOLOGIES, INC.
TABLE
OF CONTENTS
Form
10-K/A Item
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Page
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Item 15.
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Exhibits, Financial Statement
Schedules
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3
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Signatures
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6
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Explanatory
Note
We are filing this Amendment No. 1 to
our Annual Report on Form 10-K for the fiscal year ended December 31, 2007 to
amend Exhibit 10.32 filed therewith. The amendment is being made to
restore certain portions of Exhibit 10.32 that we had original requested to be
treated confidentially. The restoration of the redacted portions is
being made at the request of the staff of the Securities and Exchange
Commission. This Amendment No. 1 does not reflect events occurring
after the filing of the original Annual Report on Form 10-K and, other than the
filing of the revised portions of Exhibit 10.32, does not modify or update the
disclosures in the original Annual Report on Form 10-K in any way.
PART
IV.
ITEM
15. EXHIBITS, FINANCIAL STATEMENT SCHEDULES
(a) The
following documents are filed as part of this Report:
3. Exhibits.
The
following exhibits are required to be filed with this Report by Item 601 of
Regulation S-K:
Exhibit No.
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Description
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2.1
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Stock
Purchase Agreement dated as of October 28, 2003 by and between the
Registrant and OvenWorks, LLLP (incorporated by reference to Exhibit 2.1
to the Registrant’s Current Report on Form 8-K, filed with the Commission
on November 10, 2003)
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2.2
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Contribution
Agreement, dated May 21, 2004 by and among the Registrant, Enersyst
Development Center LLC and its members (incorporated by reference to
Exhibit 2.1 to the Registrant’s Current Report on Form 8-K, filed with the
Commission on May 28, 2004)
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2.3
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Asset
Purchase Agreement, dated September 12, 2005, among TurboChef
Technologies, Inc., Global Appliance Technologies, Inc. and stockholders
of Global Appliance Technologies (incorporated by reference to Exhibit 2.1
to the Registrant’s Current Report on Form 8-K, filed with the Commission
on September 13, 2005)
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3.1
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Restated
Certificate of Incorporation (incorporated by reference to Exhibit 3.1.2
to the Registrant’s Registration Statement on Form SB-2, Registration No.
33-75008)
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3.2
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Amendment
to Certificate of Incorporation—Certificate of Designation of Series A
Convertible Preferred Stock (incorporated by reference to Exhibit 3.1 to
the Registrant’s Quarterly Report on Form 10-Q for the quarter ended
September 30, 2000, filed with the Commission on November 14,
2000)
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3.3
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Amendment
to Certificate of Incorporation—Certificate of Designation of Series B
Convertible Preferred Stock (incorporated by reference to Exhibit 3.3 to
the Registrant’s Annual Report on Form 10-K for the fiscal year ended
December 31, 2000, filed with the Commission on April 16,
2001)
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3.4
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Amendment
to Certificate of Incorporation—Certificate of Designation of Series C
Convertible Preferred Stock (incorporated by reference to Exhibit 3.1 to
the Registrant’s Quarterly Report on Form 10-Q for the quarter ended March
31, 2002, filed with the Commission on May 15, 2002)
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3.5
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Amendment
to Certificate of Incorporation—Certificate of Designation of Series D
Convertible Preferred Stock (incorporated by reference to Exhibit 3(i) to
the Registrant’s Current Report on Form 8-K, filed with the Commission on
November 10, 2003)
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3.6
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Certificate
of Amendment to the Restated Certificate of Incorporation of TurboChef
Technologies, Inc., as amended (incorporated by reference to Exhibit 99.1
to the Registrant’s Current Report on Form 8-K, filed with the Commission
on July 20, 2004)
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3.7
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Certificate
of Amendment to the Restated Certificate of Incorporation of TurboChef
Technologies, Inc., as amended (incorporated by reference to Exhibit 99.1
to the Registrant’s Current Report on Form 8-K, filed with the Commission
on December 23, 2004)
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3.8
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Restated
By-Laws (incorporated by reference to Exhibit 3.2.2 to the Registrant’s
Registration Statement on Form SB-2, Registration No.
33-75008)
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3.9
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Amendment
to Bylaws (incorporated by reference to Item 5.03 of the Registrant’s
Current Report on Form 8-K, filed with the Commission on November 27,
2007)
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4.1
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Specimen
Common Stock certificate (incorporated by reference to Exhibit 4.2 to the
Registrant’s Registration Statement on Form SB-2, Registration No.
33-75008)
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4.2
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Specimen
Common Stock certificate (incorporated by reference to Exhibit 4.11 to the
Registrant’s Registration Statement on Form S-3, Registration No.
333-121818)
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4.3
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See
Exhibits 3.1 through 3.9 for provisions of the Certificate of
Incorporation and Bylaws of the Registrant defining the rights of holders
of the Registrant’s Common Stock
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10.1
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1994
Stock Option Plan, as amended (incorporated by reference to Exhibit
10.14.2 to the Registrant’s Registration Statement on Form SB-2,
Registration No. 33-75008)
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10.2*
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Equipment
Supplier Approval Agreement dated as of March 5, 2004 by and among the
Registrant, Doctor’s Associates, Inc. and Independent Purchasing
Cooperative, Inc. (incorporated by reference to Exhibit 10.19 to the
Registrant’s Annual Report on Form 10-K for the fiscal year ended December
31, 2003, filed with the Commission on March 30, 2004)
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10.3
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TurboChef
Technologies, Inc. 2003 Stock Incentive Plan (incorporated by reference to
Exhibit 10.21 to the Registrant’s Annual Report on Form 10-K for the
fiscal year ended December 31, 2003, filed with the Commission on March
30, 2004)
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10.4
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Form
of Incentive Stock Option Agreement under the 2003 Stock Incentive Plan
(incorporated by reference to Exhibit 10.22 to the Registrant’s Annual
Report on Form 10-K for the fiscal year ended December 31, 2003, filed
with the Commission on March 30, 2004)
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10.5
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Form
of Non-Qualified Stock Option Agreement under the 2003 Stock Incentive
Plan (incorporated by reference to Exhibit 10.23 to the Registrant’s
Annual Report on Form 10-K for the fiscal year ended December 31, 2003,
filed with the Commission on March 30, 2004)
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10.6
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Form
of Non-Qualified Stock Option Agreement for Consultants under the 2003
Stock Incentive Plan (incorporated by reference to Exhibit 10.24 to the
Registrant’s Annual Report on Form 10-K for the fiscal year ended December
31, 2003, filed with the Commission on March 30, 2004)
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10.7
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Employment
Agreement, dated as of February 9, 2004, by and between the Registrant and
Richard E. Perlman (incorporated by reference to Exhibit 10.25 to the
Registrant’s Annual Report on Form 10-K for the fiscal year ended December
31, 2003, filed with the Commission on March 30, 2004)
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10.8
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Employment
Agreement, dated as of February 9, 2004, by and between the Registrant and
James K. Price (incorporated by reference to Exhibit 10.26 to the
Registrant’s Annual Report on Form 10-K for the fiscal year ended December
31, 2003, filed with the Commission on March 30, 2004)
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10.9
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Employment
Agreement, dated as of February 9, 2004, by and between the Registrant and
James A. Cochran (incorporated by reference to Exhibit 10.27 to the
Registrant’s Annual Report on Form 10-K for the fiscal year ended December
31, 2003, filed with the Commission on March 30, 2004)
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10.10
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Preferred
Unit Exchange Agreement, dated May 21, 2004, by and among the Registrant
and the members of Enersyst (incorporated by reference to Exhibit 10.1 to
the Registrant’s Current Report on Form 8-K, filed with the Commission on
May 28, 2004)
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10.11
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Amended
and Restated Operating Agreement of Enersyst, dated May 21, 2004
(incorporated by reference to Exhibit 10.4 to the Registrant’s Current
Report on Form 8-K, filed with the Commission on May 28,
2004)
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10.12
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Amendment
to TurboChef Technologies, Inc. 2003 Stock Incentive Plan (incorporated by
reference to Exhibit 10.1 to the Registrant’s Quarterly Report on Form
10-Q for the quarter ended March 31, 2004, filed with the Commission on
May 12, 2004, as amended on November 22, 2004)
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10.13
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Employment
Agreement, dated as of September 14, 2004, by and between the Registrant
and Paul P. Lehr (incorporated by reference to Exhibit 10.1 to the
Registrant’s Current Report on Form 8-K, filed with the Commission on
November 1, 2004)
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10.14
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Credit
Agreement dated as of February 28, 2005 among TurboChef Technologies,
Inc., its subsidiaries and Bank of America, N.A. (incorporated by
reference to Exhibit 99.1 to the Registrant’s Current Report on Form 8-K,
filed with the Commission on March 3, 2005)
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10.15
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Employment
Agreement, effective as of April 25, 2005, by and between TurboChef
Technologies, Inc. and Joseph T. McGrain (incorporated by reference to
Exhibit 10.1 to the Registrant’s Current Report on Form 8-K, filed with
the Commission on May 5, 2005)
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10.16
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Restrictive
Covenant Agreement, dated September 12, 2005, between TurboChef
Technologies, Inc. and David H. McFadden (incorporated by reference to
Exhibit 10.1 to the Registrant’s Current Report on Form 8-K, filed with
the Commission on September 13, 2005)
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10.17
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Restrictive
Covenant Agreement, dated September 12, 2005, between TurboChef
Technologies, Inc. and David A. Bolton (incorporated by reference to
Exhibit 10.2 to the Registrant’s Current Report on Form 8-K, filed with
the Commission on September 13, 2005)
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10.18
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Second
Amendment to TurboChef Technologies, Inc. 2003 Stock Incentive Plan
(incorporated by reference to Exhibit 10.18 to the Registrant’s Annual
Report on Form 10-K for the fiscal year ended December 31, 2006, filed
with the Commission on September 24, 2007)
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10.19
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Third
Amendment to TurboChef Technologies, Inc. 2003 Stock Incentive Plan
(incorporated by reference to Exhibit 10.19 to the Registrant’s Annual
Report on Form 10-K for the fiscal year ended December 31, 2006, filed
with the Commission on September 24, 2007)
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10.20
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Form
of Restricted Stock Unit award agreement for employees under the 2003
Stock Incentive Plan (incorporated by reference to Exhibit 10.20 to the
Registrant’s Annual Report on Form 10-K for the fiscal year ended December
31, 2006, filed with the Commission on September 24,
2007)
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10.21
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Form
of Restricted Stock Unit award agreement for directors under the 2003
Stock Incentive Plan (incorporated by reference to Exhibit 10.21 to the
Registrant’s Annual Report on Form 10-K for the fiscal year ended December
31, 2006, filed with the Commission on September 24,
2007)
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10.22
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Stock
Option Modification Agreement (incorporated by reference to Exhibit 10.1
to the Registrant’s Current Report on Form 8-K, filed with the Commission
on December 30, 2005) and Schedule
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10.23*
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2007
Incentive-Based Compensation Plan (incorporated by reference to Exhibit
10.1 to the Registrant’s Quarterly Report on Form 10-Q/A for the quarter
ended March 31, 2007, filed with the Commission on November 10,
2008)
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10.24
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Form
of Stock Options Amendment Agreement (incorporated by reference to Exhibit
10.1 to the Registrant’s Current Report on Form 8-K, filed with the
Commission on December 10, 2007) and Schedule
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10.25
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Form
of Executive Stock Options Amendment Agreement and Schedule (incorporated
by reference to Exhibit 10.25 to the Registrant’s Annual Report on Form
10-K, filed with the Commission on March 7, 2008)
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10.26
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Amended
and restated employment agreement, dated January 18, 2008, by and between
TurboChef Technologies, Inc. and Richard E. Perlman (incorporated by
reference to Exhibit 10.26 to the Registrant’s Annual Report on Form 10-K,
filed with the Commission on March 7, 2008)
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10.27
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Amended
and restated employment agreement, dated January 18, 2008, by and between
TurboChef Technologies, Inc. and James K. Price (incorporated by reference
to Exhibit 10.27 to the Registrant’s Annual Report on Form 10-K, filed
with the Commission on March 7, 2008)
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10.28
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Amended
and restated employment agreement, dated January 18, 2008, by and between
TurboChef Technologies, Inc. and James A. Cochran (incorporated by
reference to Exhibit 10.28 to the Registrant’s Annual Report on Form 10-K,
filed with the Commission on March 7, 2008)
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10.29
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Amended
and restated employment agreement, dated January 18, 2008, by and between
TurboChef Technologies, Inc. and J. Miguel Fernandez de Castro
(incorporated by reference to Exhibit 10.29 to the Registrant’s Annual
Report on Form 10-K, filed with the Commission on March 7,
2008)
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10.30
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Amended
and restated employment agreement, dated January 18, 2008, by and between
TurboChef Technologies, Inc. and Paul P. Lehr (incorporated by reference
to Exhibit 10.30 to the Registrant’s Annual Report on Form 10-K, filed
with the Commission on March 7, 2008)
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10.31
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Amended
and restated employment agreement, dated January 18, 2008, by and between
TurboChef Technologies, Inc. and Stephen J. Beshara (incorporated by
reference to Exhibit 10.31 to the Registrant’s Annual Report on Form 10-K,
filed with the Commission on March 7, 2008)
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10.32*
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2008
Incentive-Based Compensation Plan
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10.33
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Amended
and Restated Credit Agreement dated as of February 7, 2008 among TurboChef
Technologies, Inc., its subsidiaries and Bank of America, N.A.
(incorporated by reference to Exhibit 99.1 to the Registrant’s Current
Report on Form 8-K, filed with the Commission on February 8,
2008)
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23.1
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Consent
of Independent Registered Public Accounting Firm (incorporated by
reference to Exhibit 23.1 to the Registrant’s Annual Report on Form 10-K,
filed with the Commission on March 7, 2008)
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24.1
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Power
of Attorney (see signature page to the Registrant’s Annual Report on Form
10-K, filed with the Commission on March 7, 2008)
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31.1
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Certification
of Principal Executive Officer pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002
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31.2
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Certification
of Principal Financial Officer pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002
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32.1
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Certification
of the Principal Executive Officer and Principal Financial Officer
pursuant to Section 906 of the Sarbanes-Oxley Act of
2002
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_______________
*
Portions of this document have been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment of the omitted portions under Rule 24b-2 of the Securities and
Exchange Act of 1934, as amended.
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the Registrant has
duly caused this amendment to report to be signed on its behalf by the
undersigned, thereunto duly authorized.
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TURBOCHEF
TECHNOLOGIES, INC.
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By:
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/s/
J. Miguel Fernandez de Castro
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J.
Miguel Fernandez de Castro
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Chief
Financial Officer
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(Duly
Authorized Officer and
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Principal
Financial Officer)
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Dated: November
10, 2008
6