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EXHIBIT 4.1
INVESTMENT AND OPTION AGREEMENT
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THIS INVESTMENT AGREEMENT (the "AGREEMENT") is entered into as of the 21st day
of July, 1999, by and between TRAVELCENTERS OF AMERICA, INC., a Delaware
corporation ("TA"), and FREIGHTLINER CORPORATION, a Delaware corporation
("FREIGHTLINER").
RECITALS:
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A. Freightliner and TA have agreed that TA Operating Corporation, a
wholly owned subsidiary of TA ("TAOC"), will become a designated parts and
service dealer of Freightliner pursuant to the terms of an Operating Agreement
of even date herewith among Freightliner, TAOC and TA Franchise Systems Inc.
("TAFS") (the "OPERATING AGREEMENT").
B. TA desires to permit Freightliner to acquire a certain number of
shares of Common Stock, $.01 par value per share, of TA and to grant
Freightliner an option to acquire a certain number of additional shares of
Common Stock, $.01 par value per share, upon the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained herein, and for other valuable consideration,
the receipt and adequacy of which is hereby acknowledged, the parties mutually
agree as follows:
ARTICLE 1
PURCHASE OF COMMON STOCK OF TA
Section 1.1. PURCHASE AND SALE. Subject to the terms and conditions of this
Agreement, Freightliner agrees to purchase from TA, and TA agrees to sell to
Freightliner, the number of Initial Shares of Common Stock, $.01 par value per
share, of TA ("TA COMMON STOCK") indicated on EXHIBIT A at the Purchase Price
(as defined on EXHIBIT A). TA agrees that all of the Initial Shares issued to
Freightliner pursuant to this Agreement shall, upon full payment of the Purchase
Price, be validly issued, fully paid and nonassessable, and shall be issued to
Freightliner free and clear of all Encumbrances, except those provided for in
the Stockholders Agreement (as defined in Section 4.1). Freightliner agrees to
pay to TA the Purchase Price in immediately available funds by wire transfer
within 1 business day following the Closing Date. Upon receipt of such payment
TA will deliver to Freightliner a share certificate for the Initial Shares
issued in the name of Freightliner.
Section 1.2. CLOSING. The consummation of the transactions contemplated by
Section 1.1 of this Agreement (the "CLOSING") will take place simultaneously
with the execution and delivery of this Agreement by all of the parties hereto
and with the deliveries described in Sections 4.1 and 4.2 (the "CLOSING DATE")
at the offices of TA at 24601 Center Ridge Road, Suite 200, Westlake, Ohio, or
at such other place as the parties may agree in writing. All of the agreements,
documents, certificates and instruments to be delivered by each party at the
Closing are hereby deemed and acknowledged by the parties to be delivered
concurrently.
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ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF TA
TA represents and warrants to Freightliner as follows:
Section 2.1. ORGANIZATION. TA is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of Delaware
and is duly qualified or registered to do business as a foreign corporation,
and is in good standing, in each jurisdiction in which the character or
location of the property owned, leased or operated by it or the nature of the
business conducted by it makes such qualification necessary, except where the
failure to be so qualified or licensed would not have a Material Adverse Effect
on TA and its consolidated subsidiaries taken as a whole.
Section 2.2. CORPORATE POWER. TA has the requisite power and authority
to perform its obligations under this Agreement and to consummate and the
transactions contemplated hereby.
Section 2.3. AUTHORITY. Except as set forth on SCHEDULE 2.3, the
execution, delivery, and performance by TA of this Agreement and the
transactions contemplated hereby have been duly and validly authorized and
approved by all requisite corporate action, and neither the execution and
delivery of this Agreement nor the consummation of the transactions
contemplated hereby will (i) violate any terms or provisions of TA's
Certificate of Incorporation or Bylaws, (ii) violate any Law, judgment, order,
writ, injunction or decree applicable to TA, or (iii) result in a violation of,
or constitute a default under, any material contracts to which TA is a party,
excluding from the foregoing clauses (ii) and (iii) violations or defaults
which would not have a Material Adverse Effect on TA and its consolidated
subsidiaries taken as a whole. This Agreement has been duly executed and
delivered by TA and constitutes the valid and binding obligation of TA
enforceable in accordance with its terms except as may be limited by laws
affecting creditors' rights generally or by judicial limitations on the right
to specific performance.
Section 2.4. FINANCIAL STATEMENTS. TA has timely filed all required
reports, schedules, forms, statements and other documents required to be filed
by it with the SEC since January 1, 1997 (collectively, and in each case
including all exhibits and schedules thereto and documents incorporated by
reference therein, as amended, the "SEC DOCUMENTS"). As of their respective
dates, the SEC Documents complied in all material respects with the
requirements of the Exchange Act and the rules and regulations of the SEC
promulgated thereunder applicable to such SEC Documents, and none of the SEC
Documents (including any and all financial statements included therein) as of
such dates contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they
were made, not misleading. The consolidated financial statements (including
footnotes) of TA included in the SEC Documents comply as to form in all
material respects with applicable accounting requirements and the published
rules and regulations of the SEC with respect thereto, have been prepared in
accordance with generally accepted accounting principles (except, in the case
of unaudited consolidated quarterly statements, as permitted by Form 10-Q of
the SEC) applied on a consistent basis during the periods involved (except as
may be indicated in the notes thereto), and fairly present the consolidated
financial position of TA and its consolidated subsidiaries as of
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the dates thereof and the consolidated income, shareholders' equity and cash
flows for the periods then ended.
Section 2.5. STOCK. Upon receipt of the Purchase Price by TA, the
Initial Shares will be fully paid and nonassessable.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF FREIGHTLINER
Freightliner hereby represents and warrants to TA as follows:
Section 3.1. ORGANIZATION. Freightliner is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Delaware and is duly qualified or registered to do business as a foreign
corporation, and is in good standing, in each jurisdiction in which the
character or location of the property owned, leased or operated by it or the
nature of the business conducted by it makes such qualification necessary,
except where the failure to be so qualified or licensed would not have a
Material Adverse Effect on Freightliner and its consolidated subsidiaries taken
as a whole.
Section 3.2. CORPORATE POWER. Freightliner has the requisite power and
authority to perform its obligations under this Agreement and to consummate and
the transactions contemplated hereby.
Section 3.3. AUTHORITY. Except as set forth on SCHEDULE 3.3, the
execution, delivery, and performance by Freightliner of this Agreement and the
transactions contemplated hereby have been duly and validly authorized and
approved by all requisite corporate action, and neither the execution and
delivery of this Agreement nor the consummation of the transactions
contemplated hereby will (i) violate any terms or provisions of Freightliner's
Certificate of Incorporation or Bylaws, (ii) violate any Law, judgment, order,
writ, injunction or decree applicable to Freightliner, or (iii) result in a
violation of, or constitute a default under, any material contracts to which
Freightliner is a party, excluding from the foregoing clauses (ii) and (iii)
violations or defaults which would not have a Material Adverse Effect on
Freightliner and its consolidated subsidiaries taken as a whole. This Agreement
has been duly executed and delivered by Freightliner and constitutes the valid
and binding obligation of Freightliner enforceable in accordance with its terms
except as may be limited by laws affecting creditors' rights generally or by
judicial limitations on the right to specific performance.
Section 3.4. INVESTMENT MATTERS.
(a) The Initial Shares and the Option Shares (as defined in Section
5.1) Freightliner purchases hereunder (collectively the "SUBJECT SHARES") are
acquired for investment for Freightliner's own account, not as a nominee or
agent, and not with a view to the resale or distribution of any part thereof,
and Freightliner has no present intention of selling, granting any
participation in, or otherwise distributing the same.
(b) Freightliner is financially capable of bearing the economic risk
associated with its investment in the Subject Shares, and has such knowledge
and experience in financial or
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business matters that it is capable of evaluating the merits and risks of its
investment in the Subject Shares.
(c) Freightliner understands that its investment in the Subject Shares
is a speculative investment and involves a high degree of risk, and there is no
market for TA Common Stock and there can be no assurance that such a market
will develop.
(d) Freightliner understands that the shares of the Subject Shares it
is purchasing hereunder are characterized as "RESTRICTED SECURITIES" under the
Securities Act of 1933, as amended, and other securities Laws since they are
being acquired from TA in a transaction not involving a public offering and
such securities may be resold without registration under such Laws only in
certain limited circumstances. In this regard, Freightliner represents that it
is familiar with Securities and Exchange Commission Rule 144, as presently in
effect, and understands the resale limitations imposed thereby and by the
Securities Act.
(e) Freightliner is an "ACCREDITED INVESTOR" as that term is defined
in Regulation D of Rule 501(a) promulgated by the SEC. Freightliner has (i)
been provided with all suitable information in respect of the transactions
contemplated hereby by TA pursuant to Rule 502(b) of Regulation D of the
Securities Act, (ii) has been provided with an opportunity to ask questions of,
and has received answers thereto from TA and its representatives regarding the
terms and conditions of its purchase of securities, and TA and its business
generally, and (iii) has obtained all additional information requested by it to
verify the accuracy of all information furnished to it in connection with such
purchase.
(f) Freightliner is not relying on and acknowledges that no
representation is being made by TA or any of its officers, employees,
affiliates, agents or representatives, except for representations and
warranties expressly set forth in this Agreement, and, in particular, it is not
relying on, and acknowledges that no representation is being made in respect
of, (i) any projections, estimates or budgets delivered to or made available to
it of future revenue, expenses or expenditures, or future results of
operations, and (ii) any other information or documents delivered or made
available to it or its representatives, except for representations and
warranties expressly set forth in this Agreement.
(g) In deciding to invest in TA, Freightliner has relied exclusively
on the representations and warranties of TA expressly set forth in this
Agreement and the investigations made by Freightliner and its representatives.
Based solely on such representations and warranties of TA and such
investigations and knowledge, Freightliner has determined that the securities
Freightliner is acquiring are a suitable investment for it.
Section 3.5. TRANSFER LEGEND. Freightliner hereby acknowledges that
the Subject Shares issued to it will be subject to additional restrictions as
contained in the Stockholders Agreement (as defined below) and that the Subject
Shares shall be imprinted with a conspicuous legend in substantially the
following form:
THIS CERTIFICATE AND THE SECURITIES REPRESENTED BY THIS CERTIFICATE
HAVE BEEN ISSUED PURSUANT TO A CLAIM OF EXEMPTION FROM THE REGISTRATION
OR QUALIFICATION PROVISIONS OF FEDERAL AND STATE SECURITIES LAWS AND
MAY NOT BE SOLD OR TRANSFERRED WITHOUT COMPLIANCE WITH THE
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REGISTRATION OR QUALIFICATIONS PROVISIONS OF APPLICABLE FEDERAL AND
STATE SECURITIES LAWS OR APPLICABLE EXEMPTIONS THEREFROM.
THIS CERTIFICATE AND THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO A STOCKHOLDERS AGREEMENT DATED AS OF JULY 21, 1999, A COPY
OF WHICH IS ON FILE AT THE OFFICES OF THE COMPANY AND WILL BE FURNISHED
TO ANY PROSPECTIVE PURCHASERS ON REQUEST. BY ACCEPTANCE OF THIS
CERTIFICATE, EACH HOLDER HEREOF AGREES TO BE BOUND BY THE PROVISIONS OF
THE STOCKHOLDERS AGREEMENT.
ARTICLE 4
CLOSING DELIVERIES AND ACTIONS
Section 4.1. CLOSING DELIVERIES OF TA. At the Closing, TA will
deliver, or cause to be delivered, to Freightliner the following documents in
form and substance reasonably satisfactory to Freightliner and its counsel:
(a) the Operating Agreement duly executed by TAOC and
TAFS and any other agreements contemplated by the
parties in connection therewith duly executed by the
proper TA affiliate;
(b) the consent to the transactions contemplated by this
Agreement of any third party whose consent is
required for the consummation of such transactions;
(c) a Stockholders Agreement between and among TA,
Freightliner and certain stockholders of TA,
substantially in the form of EXHIBIT B (the
"STOCKHOLDERS AGREEMENT"), duly executed by TA and
such stockholders; and
(d) certified copies of the resolutions of TA's Board of
Directors authorizing the consummation of the
transactions contemplated by this Agreement.
Section 4.2. CLOSING DELIVERIES OF FREIGHTLINER. At the Closing,
Freightliner will deliver, or cause to be delivered to TA, the following
documents in form and substance reasonably satisfactory to TA and its counsel:
(a) the Operating Agreement duly executed by
Freightliner and any other agreements contemplated
by the parties thereto in connection therewith duly
executed by Freightliner; and
(b) the Stockholders Agreement, duly executed by
Freightliner.
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ARTICLE 5
OPTION
Section 5.1. GRANT OF OPTION. TA hereby grants to Freightliner,
subject to the terms of this Agreement, the right and option (the "OPTION") to
purchase up to the number of Option Shares of TA Common Stock indicated on
EXHIBIT A at the Option Price (as defined on EXHIBIT A). TA agrees that all of
the Option Shares issued to Freightliner pursuant to this Agreement shall, upon
full payment of the applicable Option Price, be validly issued, fully paid and
nonassessable, and shall be issued to Freightliner free and clear of all
Encumbrances, except those provided for in the Stockholders Agreement.
Section 5.2. TERM OF OPTION. The Option may be exercised at any time
and from time to time during the period commencing on the date of this
Agreement and expiring at 5:00 p.m., Eastern Time, on the earlier of (a) the
fifth anniversary of the date hereof, or (b) if applicable, the date provided
for in Section 5.3 below (the "OPTION TERM").
Section 5.3. EXPIRATION OF OPTION. The Option shall expire (i) upon
the dissolution of TA, (ii) upon the occurrence of a merger or consolidation in
which TA Common Stock is converted into cash or other consideration (other than
stock or securities of TA), (iii) upon a registered public offering of TA
Common Stock under the Securities Act of 1933, as amended, (iv) upon the
termination of the Operating Agreement, and (v) at such time as Freightliner
ceases to be a stockholder of TA.
Section 5.4. ADJUSTMENT OF NUMBER OF SHARES, ETC. If after the date of
this Agreement, the outstanding TA Common Stock is, as a result of a stock
split, stock dividend, combination, reclassification, reorganization,
redesignation, merger, consolidation, recapitalization or other similar change,
increased or decreased or changed into or exchanged for a different number or
kind of shares of stock or other securities of TA, in a transaction not
otherwise described in Section 5.3 hereof, then (i) there shall automatically
be substituted for each share of TA Common Stock subject to an unexercised
option granted hereunder the number and kind of shares of stock or other
securities into which each outstanding share of TA Common Stock shall be
exchanged, (ii) the Base Option Price per Share and the Maximum Option Price
per Share shall be increased or decreased proportionately so that the aggregate
purchase price for the securities subject to the Option shall remain the same
as immediately prior to such event, and (iii) TA's Board of Directors shall
make such other adjustments to the securities subject to this Agreement as may
be appropriate and equitable and any such adjustment shall be final, binding
and conclusive as to Freightliner. Any such adjustment shall provide for the
elimination of fractional shares.
Section 5.5. EXERCISE OF OPTION. The Option shall be exercised by
delivering to TA in accordance with Section 8.7 below (i) a completed Notice of
Exercise of Option in the form of EXHIBIT D attached hereto setting forth the
number of shares of TA Common Stock with respect to which the Option is being
exercised (subject to the limitation in Section 5.1 above), and (ii) payment in
full of the Option Price per share for each share of TA Common Stock so
purchased. Such payment shall be made by wire transfer of immediately available
funds to an account designated in writing by TA in the amount of the aggregate
purchase price for such TA Common Stock. Notwithstanding anything to the
contrary above, the Option may be exercised only twice
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during any of the 12 month periods ending on the anniversary dates of this
Agreement and each such exercise shall be for no less than 25,000 Option Shares
as adjusted in Section 5.4.
Section 5.6. ISSUANCE OF SHARE CERTIFICATES. Subject to the last
sentence of this Section 5.6, upon receipt by TA, prior to expiration of the
Option Term, of the deliveries specified in Section 5.6 above, TA shall
promptly cause to be delivered to Freightliner, a certificate for the number of
TA Common Stock so purchased. Freightliner shall not have any of the rights of
a stockholder with respect to the TA Common Stock which is subject to the
Option unless and until a certificate representing such TA Common Stock is
issued pursuant to the valid exercise of the Option.
Section 5.7. OTHER PROVISIONS RELATING TO SHARES. All TA Common Stock
purchased pursuant to the exercise of the Option shall be subject to all of the
transfer restrictions and other rights, terms and provisions contained in the
Stockholders Agreement, as it may be amended from time to time. All TA Common
Stock issued pursuant to this Article 5 shall bear such a transfer legend as
described in Section 3.4 hereof.
Section 5.8. NOTICES. During the Option Term, TA shall (i) give
written notice to Freightliner immediately upon any adjustment of the Option
Price pursuant to the terms of Section 5.4, (ii) give written notice to
Freightliner at least 30 days prior to the date on which the Company closes its
books or takes a record (A) with respect to any dividend or distribution upon
the Common Stock, or (B) for determining rights to vote with respect to any
event described in Section 5.3(i), (ii) or (iii) or any event which if effected
would cause an adjustment to the Option Price under Section 5.4, (iii) give
written notice to Freightliner at least at least 30 days prior to the
occurrence of any event described in Section 5.3(i), (ii) or (iii) or any event
which if effected would cause an adjustment to the Option Price.
ARTICLE 6
DEFINITIONS
In this Agreement the following terms shall have the meanings ascribed
to them below:
"ENCUMBRANCES" mean all liens, encumbrances, equitable rights of third
parties, options, claims, pledges and other limitations on the ownership,
voting, convertibility or transferability of such shares, excluding
restrictions and limitations under federal or state securities laws.
"LAW" means any federal, state, local or foreign law, statute,
ordinance, rule, order or regulation.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on the
business, financial condition or results of operations.
"SEC" means the Securities and Exchange Commission.
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ARTICLE 7
INDEMNIFICATION
Section 7.1. SURVIVAL. All of the representations and warranties of TA
in Article 2 above and all of the representations and warranties of
Freightliner in Article 3 above shall survive the closing until the expiration
of the Option Term.
Section 7.2. INDEMNIFICATION BY TA. TA shall indemnify and hold
harmless Freightliner and its shareholders, directors, officers, employees,
agents and affiliates (the "Freightliner Indemnified Parties") against and from
any losses, claims, damages, liabilities, expenses and costs, including
reasonable attorneys' fees (collectively, "LOSSES") insofar as the Losses (or
actions in respect thereof) arise, directly or indirectly, out of or are based
upon (i) any inaccuracy in or breach of any of the representations or
warranties of TA in Article 2 above, or (ii) any material default by TA in the
performance of its obligations under this Agreement, except to the extent (but
only to the extent) any such Losses arise out of or result from the action or
inaction of the Freightliner Indemnified Parties. All claims for
indemnification under Section 7.2(i) must be made during the survival period as
described in Section 7.1.
Section 7.3. INDEMNIFICATION BY FREIGHTLINER. Freightliner shall
indemnify and hold harmless TA and its shareholders, directors, officers,
employees, agents and affiliates (the "TA Indemnified Parties") against and
from any Losses insofar as the Losses (or actions in respect thereof) arise,
directly or indirectly, out of or are based upon (i) any inaccuracy in or
breach of any of the representations or warranties of Freightliner in Article 3
above, or (ii) any material default by Freightliner in the performance of its
obligations under this Agreement, except to the extent (but only to the extent)
any such Losses arise out of or result from the action or inaction of the TA
Indemnified Parties. All claims for indemnification under Section 7.3(i) must
be made during the survival period as described in Section 7.1.
Section 7.4. THIRD-PARTY CLAIMS. If any legal proceeding is instituted
or any claim is asserted by any third party in respect of which the TA
Indemnified Parties on the one hand, or the Freightliner Indemnified Parties on
the other hand, may be entitled to indemnification hereunder, the party
asserting such right to indemnification (the "Indemnitee") shall give the party
from whom indemnification is sought (the "Indemnitor") written notice thereof.
A delay in giving such notice shall only relieve the Indemnitor to the extent
the Indemnitor suffers prejudice because of such delay. The Indemnitor shall
have the right, at its option and expense, to participate in the defense of
such a proceeding or claim, but not to control the defense, negotiation or
settlement thereof, which control shall at all times rest with the Indemnitee,
unless the Indemnitor irrevocably acknowledges to the Indemnitee in writing
complete responsibility for and agrees to indemnify the Indemnitee, in which
case the Indemnitor may assume such control through counsel of its choice and
at its expense, but the Indemnitee shall continue to have the right to be
represented, at its own expense, by counsel of its choice in connection with
the defense of such a proceeding or claim. If the Indemnitor does not assume
control of the defense of such a proceeding or claim, the entire defense of the
proceeding or claim by the Indemnitee, any settlement made by the Indemnitee,
and any judgment entered in the proceeding or claim shall be deemed to have
been consented to by, and shall be binding on, the Indemnitor as fully as
though it alone had assumed the defense thereof and a judgment had been entered
in the proceeding or claim in the amount of such settlement or judgment, except
that the right of the
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Indemnitor to contest the right of the Indemnitee to indemnification under this
Agreement with respect to the proceeding or claim shall not be extinguished. If
the Indemnitor does assume control of the defense of such a proceeding or
claim, it will not, without the prior written consent of the Indemnitee, settle
the proceeding or claim or consent to entry of any judgment relating thereto
which does not include as an unconditional term thereof the giving by the
claimant to the Indemnitee a release from all liability in respect of the
proceeding or claim. The parties hereto agree to cooperate fully with each
other in connection with the defense, negotiation or settlement of any such
proceeding or claim.
ARTICLE 8
MISCELLANEOUS
Section 8.1. AMENDMENT. This Agreement may be amended or modified only
by a written agreement executed by all of the parties.
Section 8.2. ASSIGNABILITY. No party to this Agreement shall convey,
assign or otherwise transfer any of its rights or obligations under this
Agreement without the express written consent of the other party to this
Agreement which may be withheld for any reason. All of the terms and conditions
of this Agreement shall be binding upon and inure to the benefit of the parties
and their respective successors and permitted assigns.
Section 8.3. COOPERATION. The parties agree that after the Closing
they will from time to time, upon the request of any other party and without
further consideration, execute, acknowledge and deliver any further instruments
and take such other action as any other party may reasonably request to carry
out effectively the transactions contemplated by the Investment Documents.
Section 8.4. COUNTERPARTS. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same document.
Section 8.5. ENTIRE AGREEMENT. This Agreement (including the Schedules
incorporated by reference herein) together with the Stockholders Agreement and
the Operating Agreement, contain the entire understanding of the parties with
respect to the subject matter hereof and thereof. There are no representations,
promises, warranties, covenants or undertakings other than those expressly set
forth or provided for herein and therein. This Agreement and the other
documents executed in connection herewith supersede all prior agreements and
understandings between the parties with respect to the transactions described
herein and therein.
Section 8.6. GOVERNING LAW. Ohio law shall govern the interpretation,
construction and enforcement of this Agreement and all transactions and
agreements contemplated hereby, without regard to conflict of law principles.
Section 8.7. NOTICES. All notices, requests, demands or other
communications that are required or may be given pursuant to the terms of this
Agreement shall be in writing and delivery shall be deemed to have been duly
given (i) on the date of delivery if delivered personally or by commercial
courier service or by facsimile transmission if receipt is confirmed to the
party giving the notice by the party to whom the notice is being given, or (ii)
on the third day after
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mailing if mailed by first-class certified mail, return receipt requested,
postage prepaid, and properly addressed as follows:
If to Freightliner, to: Freightliner Corporation
P. O. Xxx 0000
Xxxxxxxx, Xxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
Facsimile: (000) 000-0000
or:
Freightliner Corporation
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
Attention: Xxxxx Xxxxxx
Facsimile: (000) 000-0000
With a copy to: Stoel Rives LLP
000 X.X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxxxx 00000-0000
Attention: Xxxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
If to TA, to: TravelCenters of America, Inc.
00000 Xxxxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxxx 00000-0000
Attention: Xxxxx X. Xxxx, President and
C.E.O.
Facsimile: 000-000-0000
With a copy to: Xxxxxx, Xxxxxx & Xxxxxxxx XXX
0000 XxXxxxxx Xxxxxxxxxx Center
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
Facsimile: 000-000-0000
Section 8.8. SEVERABILITY. Whenever possible, each provision of this
Agreement shall 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
prohibited by or invalid under applicable Law, such provision will be
ineffective only to the extent of the prohibition or invalidity, without
invalidating the remainder of this Agreement.
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Section 8.9. WAIVER OF BREACH. Neither any waiver of any breach, nor
any failure to enforce any term or condition, of this Agreement shall operate
as a waiver of any other breach of any term or condition, nor constitute nor be
deemed a waiver or release of any other rights, in law or at equity, of claims
that any party may have against any other party for anything arising out of
this Agreement. No waiver shall be enforceable against any party hereto unless
set forth in a written instrument or agreement signed by that party. No waiver
shall be deemed to occur as a result of the failure of any party to enforce any
term or condition of this Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date first above written.
FREIGHTLINER CORPORATION
By: /s/ Xxxxx X. Hebe
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Title: President
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TRAVELCENTERS OF AMERICA, INC.
By: /s/ Xxxxx X. Xxxx
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Title: President & Chief Executive Officer
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LIST OF EXHIBITS
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Exhibit A -- Initial Shares; Purchase Price; Option Shares;
and Option Price
Exhibit B --Stockholders Agreement
Exhibit C -- TA Centers
Exhibit D -- Notice of Exercise of Option
LIST OF SCHEDULES
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Schedule 2.2 -- TA Conflicts
Schedule 3.2 -- Freightliner Conflicts
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EXHIBIT A
Initial Shares; Purchase Price; Option Shares; and Option Price
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Initial Shares:
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The number of Initial Shares is 200,000 shares of Common Stock, $.01
par value per share of TA.
Purchase Price:
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The Purchase Price for the Initial Shares shall be Thirty-Three Dollars
and Thirty Cents ($33.30) per Initial Share or Six Million Six Hundred Sixty
Thousand Dollars ($6,660,000.00) in the aggregate.
Option Shares:
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The number of OPTION SHARES is 100,000 shares of Common Stock, $.01 par
value per share of TA.
Option Price:
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Subject to the provisions of Section 5.4, if the Option is exercised,
in whole or in part, at any time on or prior to the first anniversary of the
date of this Agreement, the Option Price for such exercise shall be Thirty-Three
Dollars and Thirty Cents ($33.30) per Option Share (the "BASE OPTION PRICE").
Subject to the provisions of Section 5.4, if the Option is exercised, in whole
or in part, at any time after the first anniversary of this Agreement, the
Option Price for such exercise shall be the Base Option Price per Share;
PROVIDED, HOWEVER, that if during any of the 12 month periods ending on the
anniversary dates of this Agreement occurring prior to such exercise of the
Option (each a "PRIOR ANNIVERSARY YEAR") the number of TA Serviced Trucks (as
defined below) serviced at the TA truck service centers listed on EXHIBIT C (the
"TA CENTERS") is not at least equal to the Target Number (as defined below) then
the Option Price for such exercise shall be increased by an amount equal to: (i)
Base Option Price per Share, times (ii) ten percent (10%), times (iii) the
number of Prior Anniversary Years in which the Target Number was not achieved;
PROVIDED, FURTHER that the maximum Option Price shall be Forty Dollars ($40.00)
per share (the "MAXIMUM OPTION PRICE PER SHARE").
The number of TA Serviced Trucks for any Prior Anniversary Year shall
be the sum of the number of Freightliner branded trucks serviced pursuant to the
Operating Agreement during such Prior Anniversary Year at each TA Center after
such TA Center was converted to a Freightliner Express center pursuant to the
Operating Agreement;
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The Target Number for any Prior Anniversary Year shall be determined as
follows:
(i) for each TA Center determine the percentage of such
Prior Anniversary Year during which the TA Center was
operated as a Freightliner Express center pursuant to
the Operating Agreement;
(ii) for each TA Center multiply the number of
Freightliner Trucks serviced in 1998 listed next to
such TA Center on EXHIBIT C by the percentage
determined in (i) above; PROVIDED, HOWEVER, that if
the "month open" date for any TA Center on EXHIBIT C
is other that "Jan-98", then for purposes of this
calculation the number of Freightliner Trucks
serviced in 1998 for such TA Center shall be the
annualized number of Freightliner Trucks serviced in
1998 for such TA Center;.
(iii) for each TA Center multiply the product determined in
(ii) above by the percentage listed in the chart
below based on the Prior Anniversary Year during
which the TA Center was converted to a Freightliner
Express center pursuant to the Operating Agreement
(the "CONVERSION YEAR") and the Prior Anniversary
Year for which the Target Number is being determined;
and
-------------------------------- ------------------------------------------------------------------------------------------
Prior Anniversary Year
----------------------
----------------- ------------------ ----------------- ----------------- -----------------
Conversion Year
--------------- July 1, 1999 to July 1, 2000 to July 1, 2001 to July 1, 2002 to July 1, 2003 to
June 30, 2000 June 30, 2001 June 30, 2002 June 30, 2003 June 30, 2004
-------------------------------- ----------------- ------------------ ----------------- ----------------- -----------------
July 1, 1999 - June 30, 2000 110.000% 121.000% 133.100% 146.410% 161.051%
-------------------------------- ----------------- ------------------ ----------------- ----------------- -----------------
July 1, 2000 - June 30, 2001 0% 110.000% 121.000% 133.100% 146.410%
-------------------------------- ----------------- ------------------ ----------------- ----------------- -----------------
July 1, 2001 - June 30, 2002 0% 0% 110.000% 121.000% 133.100%
-------------------------------- ----------------- ------------------ ----------------- ----------------- -----------------
July 1, 2002 - June 30, 2003 0% 0% 0% 110.000% 121.000%
-------------------------------- ----------------- ------------------ ----------------- ----------------- -----------------
July 1, 2003 - June 30, 2004 0% 0% 0% 0% 110.000%
-------------------------------- ----------------- ------------------ ----------------- ----------------- -----------------
(iv) the sum of the amounts determined in (iii) above for
each TA Center above is the Target Number.
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EXHIBIT B
Stockholders Agreement
----------------------
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EXHIBIT C
TA Centers
----------
SEE ATTACHED
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EXHIBIT D
Notice of Exercise of Option
----------------------------
To: TRAVELCENTERS OF AMERICA, INC. Dated: ________________
Freightliner Corporation, pursuant to the provisions set forth
in the Investment and Option Agreement (the "Investment Agreement") dated July
21, 1999 between TravelCenters of America, Inc. ("TA") and Freightliner
Corporation, hereby agrees to purchase _____ shares of Common Stock, $.01 par
value per share, of TA, pursuant to the terms of the Investment Agreement and
makes full payment therefor as provided for the Investment Agreement.
FREIGHTLINER CORPORATION
By:____________________________________
Title:_________________________________
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