EXHIBIT 10.15
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of January 1, 2005, by and among TA
Operating Corporation, a Delaware corporation (the "Company"), TravelCenters
of America, Inc., a Delaware corporation ("Holdings") and Xxxxxx X. Xxxxx
(the "Employee").
In consideration of the parties' desire to assure the Company and
Holdings of the services of the Employee, and the mutual covenants herein
contained, the parties agree as follows:
1. Employment.
1.1 Employment, Acceptance and Term. Subject to Section 5
hereof, the Company and Holdings hereby agree to employ the Employee, and the
Employee agrees to serve the Company and Holdings, during the term of this
Agreement (the "Term") which shall commence January 1, 2005 (the "Effective
Date") and end on December 31, 2006 (the "Initial Term"), and shall be renewed
automatically for successive one calendar year periods thereafter through
December 31 of the calendar year in which the Employee reaches age sixty-five
(65), unless the Company gives the Employee or the Employee gives the Company
written notice of its or his intent not to renew this Agreement, which notice
must be given not later than December 31, 2005 if this Agreement is to expire at
the end of the Initial Term or December 31 of the year last preceding the final
calendar year of the Term if this Agreement is to expire after the Initial Term;
provided, however, that no such notice given by either the Company or the
Employee after a "Change of Control" as defined in Section 1.2 hereof shall have
the effect of terminating this Agreement prior to the December 31 coinciding
with or next following the second anniversary of the date on which such Change
of Control occurs. The Employee acknowledges that neither the Company nor
Holdings shall have any obligation to extend the
Term beyond the Initial Term or to renew the Agreement after any extension, or
to enter into a new employment agreement upon the expiration of the Term. Unless
otherwise agreed between the parties in writing, any continuation of the
Employee's employment beyond the expiration of the Term shall constitute an
employment at will and shall not extend the terms of this Agreement.
1.2 Change of Control. Any of the following events shall
constitute a "Change of Control":
(i) any "person," as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), becomes the beneficial owner (as defined in Rule 13d-3 promulgated
under the Exchange Act) of fifty-one percent (51%) or more of the voting
power of the then-outstanding voting securities of Holdings; provided,
however, that the foregoing does not apply to any such acquisition that is
made by (i) the Company or any Affiliate or (ii) any employee benefit plan
maintained either by the Company or any Affiliate; or
(ii) Holdings merges into itself, or is merged or consolidated
with, another corporation and as a result of such merger or consolidation
less than fifty-one (51%) of the voting power of the then-outstanding
voting securities of the surviving or resulting corporation immediately
after such transaction are owned in the aggregate by the former
shareholders of Holdings immediately prior to such transaction;
(iii) all or substantially all the assets accounted for on the
consolidated balance sheet of the Company and the Affiliates, in the
aggregate, are sold or transferred to one or more corporations or persons,
and as a result of such sale or transfer less than fifty-one percent (51%)
of the voting power of the then-outstanding
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voting securities of such corporation or person immediately after such
sale or transfer is held in the aggregate by the former shareholders of
Holdings immediately prior to such transaction or series of transactions;
(iv) fifty-one percent (51%) or more of the assets accounted
for in the consolidated balance sheet of Company and its Affiliates, in
the aggregate, are sold or transferred to one or more corporations or
persons, whether such sale or transfer is accomplished by the sale or
transfer of assets directly, the sale or transfer of stock of the Company
or one or more Affiliates or otherwise with, in any case, an aggregate
value of fifty-one percent (51%) or more of the aggregate value of the
Company and its Affiliates, or any combination of methods by which
fifty-one percent (51%) or more of the aggregate value of the Company and
its Affiliates are sold or transferred, if, immediately after such sale or
transfer, the purchaser or transferee is less than fifty-one percent (51%)
owned, in the aggregate, by the persons who are the shareholders of
Holdings immediately prior to such sale or transfer; or
(v) during any period of two (2) consecutive years, including,
without limitation, the year 2004, individuals who at the beginning of any
such period constitute the Board of Directors of Holdings cease, for any
reason, to constitute at least a majority thereof, unless the election or
nomination for election of each Director first elected during such period
was approved by a vote of at least a majority of the members of the Board
of Directors of Holdings who were members of the Board of Directors of
Holdings on the date of the beginning of any such period.
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Without otherwise limiting the generality of the foregoing, an
initial public offering of the Common Stock of Holdings shall not be
deemed a "Change of Control" for purposes of this Agreement.
2. Duties and Authority.
2.1 Office. Subject to Section 5 hereof, during the Term the
Employee will serve as the Senior Vice President, Marketing of the Company and
Holdings, in accordance with the Certificates of Incorporation and By-Laws of
the Company and Holdings, respectively, and subject to the direction of, and in
accordance with the authority delegated to the Employee by, the Boards of
Directors of the Company and Holdings, and reporting to the President and Chief
Executive Officer.
2.2 Duties. Subject to Section 5 hereof, during the Term
the Employee shall devote all of his full working time and energies to the
business and affairs of the Company and, in connection therewith, shall
perform such duties, functions and responsibilities as are commensurate with
and appropriate to the position of an officer of the Company. Throughout the
Term, the Employee will use his best efforts, skills and abilities to promote
the interests of the Company and its Affiliates. For purposes of this
Agreement, the term "Affiliates" shall mean, collectively, Holdings, TA
Franchise Systems Inc., a Delaware corporation ("TAFSI"), TA Licensing, Inc.,
a Delaware corporation ("Licensing"), and all subsidiaries and affiliates of
the Company, Holdings, TAFSI, and Licensing.
3. Compensation.
3.1 Base Salary. As compensation for services to be rendered
during the Term pursuant to this Agreement, the Company shall pay the Employee a
base salary at the rate of Two Hundred Eight Thousand Dollars ($208,000) per
annum (the "Base Salary"), which
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amount shall be reviewed not less frequently than annually and which may be
increased but not decreased by action of the Board of Directors of the Company
or the Compensation Committee (as defined in Section 3.2 hereof) in a manner
consistent with the treatment of other employees of the Company as approved by
the Compensation Committee and payable currently in equal biweekly installments
or otherwise in accordance with the payroll policies of the Company as from time
to time in effect.
3.2 Annual Bonus. For each fiscal year of the Company during
the Term (a "Fiscal Year"), commencing with the Fiscal Year ending December 31,
2005, the Company shall pay to the Employee an annual bonus (the "Annual
Bonus"). The amount of each Annual Bonus shall be determined by the Compensation
Committee of the Board of Directors of the Company (the "Compensation
Committee"), based fifty percent (50%) upon corporate performance (EBITDA goals)
and fifty percent (50%) upon the Employee's individual performance (MBO
targets), and shall range from zero (0) to seventy-five percent (75%) of the
Base Salary in effect as of the first day of the Fiscal Year (seventy-five
percent (75%) of such Base Salary being the "Target Bonus"). The MBO targets for
the following Fiscal Year shall be presented to and approved by the Board of
Directors or Compensation Committee of the Company in December of each year in a
manner consistent with past practice. The Annual Bonus shall be paid within
thirty (30) days after the completion of the audit by the Company's independent
auditors of the financial statements of the Company and its Affiliates for the
Fiscal Year to which the Annual Bonus applies.
4. Additional Benefits.
4.1 Benefit Plans. The Employee shall be entitled during the
Term, if and to the extent eligible, to participate in all employee benefit
plans of the Company or Holdings which the Company or
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Holdings provides to its executive employees or officers generally, including,
without limitation, a health and medical insurance plan, basic life insurance,
supplemental life insurance, basic disability benefit plan, supplemental
disability benefit plan, relocation, retirement or pension plan or similar
benefit plans, whether now in existence or hereafter adopted; provided, however,
that neither the Company nor Holdings shall be obligated to adopt, maintain or
contribute to any such benefit plans which, in their discretion, the Company and
Holdings believe would be imprudently expensive or otherwise inappropriate. Any
new benefit plan which the Company or Holdings provides to its executive
employees, and any change to a benefit plan which the Company or Holdings
provides to its executive employees, shall be applied consistently to all such
executive employees.
4.2 Director's and Officer's Insurance. Holdings has purchased
and Holdings or the Company will use reasonable efforts to maintain during the
Term, at Holdings' or the Company's expense, Director's and Officer's liability
insurance in a reasonable amount covering all insurable acts of the Employee
pursuant to this Agreement provided that the Employee's coverage will not be
less extensive than that provided by Holdings or the Company to any other
director or officer of Holdings, the Company or any Affiliate.
4.3 Fringe Benefits. The Employee shall be entitled during the
Term to the following additional benefits: (i) a company-owned automobile of a
make and model approved by the Compensation Committee as appropriate for an
officer of the position of the Employee; (ii) company-owned club membership (or
to the extent the club does not permit company membership, reimbursement for
individual membership) for fees, dues and fixed expenses only, paid by the
Company and/or the Employee, which shall not exceed Ten Thousand
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Dollars ($10,000.00) per year; and (iii) paid vacation days in accordance with
standard Company policy for similarly situated officers.
5. Termination of Employment. The Employee's employment with the
Company shall terminate upon the death of the Employee, and the Company shall
have the right, at any time during the Term, by delivery of written notice to
the Employee, to terminate the Employee's employment as a result of the
Employee's Permanent Disability (as such term is defined in Section 5.1 hereof),
for Cause (as such term is defined in Section 5.3 hereof) or for any other
reason, and the Employee shall have the right to resign, the consequences of any
such termination or resignation being as specified in this Section 5:
5.1 Death; Disability. If the Employee's employment with the
Company is terminated by reason of the Employee's death or Permanent Disability
during the Term, the obligations of the Company and Holdings under this
Agreement shall be satisfied by providing the benefits set forth in the
Company's life insurance or disability benefit plan or plans, as the case may
be. The Employee shall not be entitled to any other payments or compensation
under this Agreement except for (i) Base Salary accrued and unpaid to the date
of death or Permanent Disability, (ii) any vested benefits as of the date of
death or termination for Permanent Disability under any awards to the Employee
pursuant to the TravelCenters of America, Inc. 2001 Stock Option Plan, and any
other such plan or individual agreement adopted after the date of this Agreement
(collectively, the "Stock Incentive Plans"), or any amount payable under any
other benefit plan of the Company or any Affiliate, in accordance with the terms
of any such plan, (iii) an amount equal to the product of (x) the Annual Bonus,
if any, determined by the Compensation Committee for the year in which the
termination occurs, multiplied by (y) the fraction, the numerator of which
equals the number of days the Employee
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was employed by the Company during the Fiscal Year in which such termination
occurs and the denominator of which is three hundred sixty-five (365), and (iv)
if the Employee and/or his spouse and dependents properly elect continued
medical coverage ("COBRA") in accordance with Code section 4980B, the Company
will pay the entire cost of the premiums for such continued medical coverage for
the maximum required period of coverage under Code section 4980B(f). "Permanent
Disability," as used in this Section 5.1, shall mean the physical or mental
inability of the Employee to perform, consistent with past practice, the
essential functions of such Employee's duties as specified in Section 2.1
hereof, with reasonable accommodation to the extent required by the applicable
requirements of the Americans with Disabilities Act, for at least twelve (12)
consecutive months. Determination of Permanent Disability shall be made
initially by the Board of Directors of the Company. If there is a disagreement
between the Employee and the Company as to the existence of such a Permanent
Disability, such disagreement shall be resolved by the determination of two
physicians, one selected by the Employee and one selected by the Company. If
such physicians shall disagree, the decision shall be made by a third physician
selected by the first two physicians. The fees and expenses of all of the
physicians shall be paid by the Company.
5.2 Resignation. If the Employee's employment with the Company
is terminated during the Term by reason of the Employee's resignation (other
than for "Good Reason" as defined in Section 5.5 hereof), all obligations of the
Company and Holdings, including, without limitation, the obligation to pay
salary or other amounts payable under this Agreement to or for the benefit of
the Employee, shall terminate upon the effective date of such resignation, and
the Employee shall not be entitled to any compensation under this Agreement
except for Base Salary accrued and unpaid through, and any vested benefits under
any awards to
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the Employee pursuant to the Stock Incentive Plans, or any amount payable under
any other benefit plan of the Company or any Affiliate in accordance with the
terms of such plan, as of the effective date of such resignation. The Employee
agrees to give the Company one hundred twenty (120) days notice of his
resignation (other than for Good Reason).
5.3 Company's Right to Terminate for Cause. If the Employee
shall be discharged for "Cause" (as defined below) during the Term, all
obligations of the Company and Holdings, including, without limitation, the
obligation to pay salary or other amounts payable under this Agreement to or for
the benefit of the Employee, shall terminate upon the effective date of such
discharge, and the Employee shall not be entitled to any compensation under this
Agreement except for Base Salary accrued and unpaid through, and vested benefits
under any awards to the Employee pursuant to the Stock Incentive Plans, or any
amount payable under any other benefit plan of the Company or any Affiliate in
accordance with the terms of such plan, as of the effective date of such
discharge. As used in this Agreement, "Cause" shall mean a discharge in one or
more of the following events:
(i) the Employee's misappropriation of money or other assets
or property, breach of fiduciary duty, tortious conduct or other act of
dishonesty with respect to the Company or any Affiliate; the Employee's
conviction of, or plea of guilty or nolo contendere to, any act of fraud,
embezzlement, tortious conduct or any crime for an offense that
constitutes a felony, or the Employee's indictment for any crime involving
dishonesty or moral turpitude;
(ii) the Employee's continuing, repeated willful failure or
refusal to follow written directions of the Board of Directors of the
Company or Holdings which failure or refusal continues following the
Employee's receipt of written notice
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from such Board of Directors advising him of the acts or omissions that
constitute the failure to perform his duties as an officer of the Company
or Holdings, if such failure continues after the Employee shall have had a
reasonable opportunity to correct the act or omissions so complained of;
(iii) the Employee's violation of the Company's drug abuse or
alcohol abuse policy; or
(iv) the Employee's breach of any covenant set forth in
Section 6 hereof.
5.4 Termination for Any Other Reason or Resignation for a Good
Reason. If (a) the Employee is discharged by the Company during the Term for any
reason (other than for "Cause" (as defined in Section 5.3 hereof) or by reason
of the Employee's death or "Permanent Disability" (as defined in Section 5.1
hereof)) or (b) the Employee's employment with the Company is terminated by
reason of the Employee's resignation for a "Good Reason" (as defined in Section
5.5 hereof) occurring during the Term, then all obligations of the Company and
Holdings hereunder shall cease except that the Employee shall be entitled to the
following from the Company:
(i) any Base Salary accrued and unpaid to the date of such
discharge or resignation, which shall be payable within thirty (30) days
of such discharge or resignation, plus an amount equal to the product of
(A) multiplied by (B), where (A) equals his Annual Bonus, if any,
determined by the Compensation Committee for the year in which his
discharge or resignation occurred and where (B) equals a fraction, the
numerator of which equals the number of days in the calendar year during
which the Employee was employed by the Company, and the denominator of
which equals three
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hundred sixty-five (365), which amount shall be payable on the same date
that active officers are paid similar Annual Bonuses;
(ii) during the twenty-four (24) month period following the
date of his discharge or termination, a monthly amount equal to the
greater of (i) his monthly rate of Base Salary in effect as of the date
immediately preceding any Change of Control or (ii) his monthly rate of
Base Salary in effect as of the date of his discharge or termination,
which shall be payable in such manner and at such times as active
employees of the Company are paid base salaries;
(iii) an amount equal to two hundred percent (200%) of the
greater of the Employee's Target Bonus as set forth in Section 3.2 hereof
for the Fiscal Year ended December 31, 2005 or the Employee's Target Bonus
as set forth in Section 3.2 hereof for the Fiscal Year in which his
Termination of Employment occurs, which amount shall be payable in two
separate payments each equal to one-half of such amount (i.e., each
payment equal to one hundred percent (100%) of the Target Bonus amount).
The first such payment shall be payable at such time and in such manner as
active officers of the Company customarily are paid similar bonuses for
the Fiscal Year next following the Fiscal Year in which his discharge or
resignation occurs (or in accordance with past practice if such bonuses
are not being paid to such active officers), and the second such payment
shall be payable at such time and in such manner as active officers of the
Company customarily are paid similar bonuses for the second Fiscal Year
following the Fiscal Year in which his discharge or resignation occurs (or
in accordance with past practice if such bonuses are not being paid to
such active officers), provided
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that the second payment shall be made not later than the date of the last
scheduled payment payable pursuant to Section 5.4(ii) hereof;
(iv) any vested benefits as of the date of such resignation or
discharge under any awards to the Employee pursuant to the Stock Incentive
Plans, or any amount payable under any other benefit plan of the Company
or any Affiliate in accordance with the terms of such plan; and
(v) if the Employee (and/or his spouse and/or dependents)
properly elect continued COBRA medical coverage, the Company and the
Employee (and/or his spouse and/or dependents) each shall pay their same
portions of the premiums for such medical coverage as if the Employee had
remained in the employ of the Company until the Participant shall elect to
discontinue such coverage, provided that the obligation of the Company
under this Section 5.4(v) shall cease upon the expiration of the later of
(A) the maximum required period of coverage under Code Section 4980B(f),
or (B) twenty-four (24) months after the date of such discharge or
resignation;
provided, however, that, in each case in clauses (i) through (v) above in this
Section 5.4, if at any time during which the Company is obligated to make
payments thereunder the Employee engages in any activity violative of Section 6
hereof, then, as of the date the Employee commences engaging in such activity,
all of the Company's obligations to pay compensation or other amounts under this
Agreement to or for the benefit of the Employee shall terminate except for (i)
Base Salary then accrued and unpaid, (ii) any vested benefits under any awards
to the Employee pursuant to the Stock Incentive Plans, and (iii) any amount
payable under any other benefit plan of the Company or any Affiliate in
accordance with the terms of such plan.
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5.5 Resignation for Good Reason. As used in this Agreement,
"Good Reason" shall mean a resignation by the Employee as a result of one or
more of the following events occurring during the Term:
(i) a material reduction in the Employee's compensation
(including the additional benefits described in Section 4 hereof) in the
aggregate or his duties or title with respect to the Company or any of its
Affiliates (other than nonsubstantive, titular or nominal changes);
(ii) the Company requires the Employee to change his principal
location of work to any location which is outside of the Cleveland, Ohio,
metropolitan area, without his prior written consent; or
(iii) a material breach of this Agreement by the Company or
any of its Affiliates unless such breach is substantially cured within a
reasonable period of time (hereby defined as thirty (30) days) after
written notice advising the Company of the acts or omissions constituting
such breach is actually received by the Company in accordance with Section
9.5 hereof.
If the Employee claims the existence of a Good Reason, he must
notify the Company in writing of the event constituting Good Reason not later
than sixty (60) days following the later to occur of the occurrence of the event
(e.g., the actual reduction in compensation, the scheduled date of relocation or
the date of the breach) constituting Good Reason or his actual knowledge
thereof. If the event which the Employee claims to be a Good Reason is not cured
within thirty (30) days following the date of such notice, the Employee must
resign within ten (10) days following the thirty (30) day cure period in order
to invoke his right to resign for Good Reason. If no such timely resignation
occurs or no such timely written
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notices are given, the Employee's right to resign for Good Reason with respect
to such event shall be permanently waived.
5.6 Employee Benefit Plans. In addition to such payments and
benefits as may be provided to the Employee upon his termination of employment
during the Term as set forth herein, the Employee (or his estate, legal
representative or employee benefit plan beneficiary, as the case may be) shall
be entitled to receive such other benefits as are expressly so provided under
the terms of any employee benefit plan or other contractual arrangement
maintained by the Company or any Affiliate; provided, however, that the
Compensation Committee may reduce benefits under any such other plan or
arrangement, if permissible thereunder, or may reduce benefits hereunder, to the
extent it both (i) determines in good faith that such benefits are clearly
duplicative or unintended (e.g., duplicative severance benefits or more than one
company car), and (ii) permits full payment of the better (in the case of two
duplicative benefits) or the best (in the case of more than two duplicative
benefits) of the benefits. This Section 5.6 shall not be deemed to permit any
reduction in any amount otherwise payable to the Employee under any nonqualified
deferred compensation plan of the Company or any Affiliate.
6. Covenants of the Employee.
6.1 Covenants Against Competition. The Employee acknowledges
that (a) the Company and its Affiliates are engaged in the business of operating
a truckstop network, with facilities that provide motor fuel pumping along with
one or more of the following services: truck care and repair services, a fast
food restaurant, a full-service restaurant, a convenience store, showers,
laundry facilities, telephones, recreation rooms, truck weighing scales and
other compatible business services approved by the Company (the "Business"); (b)
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the Employee is one of the limited number of persons who developed the
Business; (c) such Business is conducted nationally; (d) the Employee's work
for the Business has given him, and will continue to give him, trade secrets
of, and confidential information concerning, the Business; (e) the Employee
acknowledges that the Employee's knowledge of such trade secrets and of, and
confidential information concerning, the Business would be of significant
assistance and value to any "TA Truck-Stop Competitor," which for purposes of
this Section 6 shall mean Petro, Flying J, AMBEST, PTP, Xxxx Bros., Giant,
All American, Rip Griffin, Bosselman's, Xxxxx Trucker's Home, Texaco/Equilon,
Pilot, Love's, Speedway (Emro), Little America, Total, Mapco, Coastal, Fuel
Mart and any other chain or network of national or regional "truck stops" as
such term is generally understood in the trucking industry, including any
affiliates or successors to any of the foregoing; and (f) the agreements and
covenants contained in this Section 6.1 are essential to protect the Business
and the goodwill associated with it. Accordingly, the Employee covenants and
agrees as follows:
6.1.1 Non-Compete. From the date hereof through the later
of (A) the last day of the Term and (B) the last date through which the
Employee is entitled to receive any payment pursuant to Section 5.4(ii)
hereof, the Employee shall not, in the United States of America, directly or
indirectly, (x) enter the employ of or render any services to any TA
Truck-Stop Competitor, or (y) have an interest in any TA Truck-Stop
Competitor, whether such interest is direct or indirect, and including any
interest as a partner, shareholder, trustee, consultant, officer or similarly
situated person; provided, however, that in any case, the Employee may own,
solely as an investment, securities of any TA Truck-Stop Competitor that are
publicly traded if the Employee (a) is not a controlling person and (b) does
not, directly or indirectly, own five percent (5%) or more of any class of
securities of such person. After the date which is the later
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of (A) and (B) in the preceding sentence, the Employee shall be free to engage
in any lawful business activities, including activities for or related to a TA
Truck-Stop Competitor. The covenant contained in this Section 6.1.1 shall
survive the termination of this Agreement.
6.1.2 Confidential Information. The Employee agrees that
neither during the Term nor at any time thereafter shall he (i) disclose to any
person not employed by the Company or an Affiliate, or not engaged to render
services to the Company or an Affiliate or (ii) use for the benefit of himself
or others, any confidential information of the Company, any of the Company's
Affiliates or of the Business obtained by him, including, without limitation,
"know-how," trade secrets, details of customers', suppliers', manufacturers' or
distributors' contracts with the Company or any of the Company's Affiliates,
pricing policies, financial data, operational methods, marketing and sales
information, marketing plans or strategies, product development techniques or
plans, plans to enter into any contract with any person or any strategies
relating thereto, technical processes, designs and design projects, and other
proprietary information of the Company, the Company's Affiliates or of the
Business or the business of any of the Company's Affiliates; provided, however,
that this provision shall not preclude the Employee from (a) making any
disclosure required by law or court order or (b) using or disclosing information
(i) known generally to the public (other than information known generally to the
public as a result of a violation of this Section 6.1.2 by the Employee), (ii)
acquired by the Employee outside of his affiliation with the Company or any of
the Company's Affiliates, or (iii) of a general nature (that is, not related
specifically to the Business) that ordinarily would be learned, developed or
obtained by individuals similarly active and/or employed in similar capacities
by other companies in the same Business as the Company or any of the
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Company's Affiliates. The Employee agrees that all confidential information of
the Company or any of the Company's Affiliates shall remain the Company's or the
Company's Affiliates', as the case may be, property and shall be delivered to
the Company or to the Company's Affiliates, as the case may be, promptly upon
the termination of the Employee's employment with the Company or at any other
time on request. The covenant contained in this Section 6.1.2 shall survive the
termination of this Agreement.
6.1.3 Nonsolicitation by Restricted Persons. From the date
hereof through the later of (A) the last day of the Term and (B) the last date
through which the Employee is entitled to receive any payment pursuant to
Section 5.4(ii) hereof, the Employee shall not, directly or indirectly, (a)
solicit any employee to leave the employment of the Company or the employment of
any of the Company's Affiliates or (b) hire any employee who has left the employ
of the Company or the employ of any of the Company's Affiliates within six (6)
months after termination of such employee's employment with the Company or such
employee's employment with any of the Company's Affiliates, as the case may be
(unless such employee was discharged by the Company without Cause and excepting
clerical and similar employees). The covenant contained in this Section 6.1.3
shall survive the termination of this Agreement.
7. Rights and Remedies Upon Breach of Covenants. If the Employee
breaches, or threatens to commit a breach of, any of the provisions of Section 6
hereof (the "Restrictive Covenants"), the Company shall have the following
rights and remedies, each of which rights and remedies shall be independent of
the others and severally enforceable, and all of which rights and remedies shall
be in addition to, and not in lieu of, any other rights and remedies available
to the Company at law or in equity:
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7.1 Specific Performance. The right and remedy to have the
Restrictive Covenants specifically enforced by any court having equity
jurisdiction, it being acknowledged and agreed that any such breach or
threatened breach will cause irreparable injury to the Company and that money
damages will not provide an adequate remedy to the Company.
7.2 Severability of Covenants. The Employee acknowledges and
agrees that the Restrictive Covenants are reasonable and valid in geographical
and temporal scope and in all other respects. If any court determines that any
of the Restrictive Covenants, or any part thereof, is invalid or unenforceable,
the remainder of the Restrictive Covenants shall not thereby be affected and
shall be given full effect to the greatest extent possible, without regard to
the invalid portions.
7.3 Blue Penciling. If any court construes any of the
Restrictive Covenants, or any part thereof, to be unenforceable because of the
duration of such provision or the area covered thereby, such court shall have
the power to reduce the duration or area of such provision and, in its reduced
form, such provision shall be enforceable and shall be enforced to the greatest
extent possible.
7.4 Enforceability in Jurisdictions. The parties intend to and
hereby do limit jurisdiction to enforce the Restrictive Covenants upon the
courts of the jurisdiction of the Employee's last principal place of business
under this Agreement and the sites of the alleged breach of the Restrictive
Covenants.
7.5 Survival. The provisions of this Section 7 shall survive
the termination of this Agreement.
8. Representations of Employee. The Employee hereby represents and
warrants to the Company (a) that there are no restrictions, agreements or
understandings
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whatsoever to which the Employee is a party which would prevent or make unlawful
the execution or performance of this Agreement or his employment hereunder and
(b) that the execution of this Agreement and the Employee's employment hereunder
shall not constitute a breach of any contract, agreement or understanding to
which he is a party or by which he is bound.
9. Other Provisions.
9.1 Conflict. To the extent any provisions of this Agreement
conflict with the terms of any existing plan, policy or arrangement affecting
the compensation or benefits of the Employee, the provisions of this Agreement
will control.
9.2 Withholding. The Company may withhold from any amounts
payable under this Agreement such federal, state or local taxes or other amounts
as shall be required to be withheld pursuant to any applicable law or
regulation.
9.3 Code Section 280G. The Employee's right to receive any
payment or benefit hereunder in connection with his termination of employment or
otherwise which may be characterized as a "parachute payment" (within the
meaning of Code section 280G), or deemed to constitute a payment made in
connection with or contingent upon a change of control of the Company or
Holdings for purposes of Code section 280G, is contingent upon and subject to
the approval of holders of record of stock of the Company or Holdings, as
applicable, representing more than seventy-five percent (75%) of the voting
power of all outstanding stock of the Company or Holdings, as the case may be,
immediately prior to such change of control (determined without regard to any
stock actually or constructively owned by the Employee and by certain other
persons as determined by the Company).
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The Company and Holdings covenant that they will present this
Agreement in a timely manner to the shareholders of the Company or Holdings or
both, as appropriate, with a unanimous recommendation of the Boards of Directors
of the Company and Holdings that it be approved by such shareholders.
9.4 Subsidiaries and Affiliates. Notwithstanding any contrary
provision of this Agreement, to the extent it does not adversely affect the
Employee, the Company and Holdings may provide the compensation and benefits to
which the Employee is entitled hereunder through one or more subsidiaries or
affiliates, including, without limitation, Holdings.
9.5 Notices. Any notice or other communication required or
which may be given hereunder shall be in writing and shall be delivered
personally, sent by facsimile transmission or overnight courier or sent by
registered or certified mail, return receipt requested, postage prepaid, and
shall be deemed given when so delivered personally or sent by facsimile
transmission or overnight courier, or if mailed, four days after the date of
mailing, as follows:
(i) if to the Company or Holdings, to it at:
Travel Centers of America, Inc.
00000 Xxxxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxxx 00000-0000
Attention: General Counsel
Telecopy No: (000) 000-0000
and a copy to:
Xxxxxx, Halter & Xxxxxxxx LLP
1400 XxXxxxxx Investment Center
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
Telecopy No. (000) 000-0000
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and, if prior to a Change of Control, a copy to:
Oak Hill Capital Management, Inc.
Park Avenue Tower
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Rowan X.X. Xxxxxx
Telecopy No.: (000) 000-0000
or at such other address as such person may hereafter
designate to the Employee by notice as provided herein;
and
(ii) if to the Employee, to him at the address set forth
below or at such other address as the Employee may
hereafter designate to each of the persons listed in
clause (i) above by notice as provided herein.
Xxxxxx X. Xxxxx
000 Xxxxxxxx Xxxxx
Xxxx Xxxx, Xxxx 00000
Either party may give any notice or other communication hereunder
using any other means (including ordinary mail or electronic mail), but no such
notice or other communication shall be deemed to have been duly given unless and
until it actually is received by the individual for whom it is intended. Either
party may change the address to which notices and other communications hereunder
are to be delivered by giving the other party notice in the manner herein set
forth.
9.6 Entire Agreement. This Agreement contains the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior agreements, written or oral, with respect thereto. The
Employee acknowledges that, as of the date this Agreement is executed, he has
received all amounts accrued or due under any prior agreements, and that he is
not entitled to receive additional amounts pursuant to any such agreements.
9.7 Waivers and Amendments. This Agreement may be amended,
modified, superseded, canceled, renewed or extended, and the terms and
conditions hereof may be waived, only by a written instrument signed by the
parties or, in the case of a waiver, by the
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party waiving compliance. No delay on the part of any party in exercising any
right, power or a privilege hereunder shall operate as a waiver thereof, nor
shall any waiver on the part of any party of any right, power or privilege
hereunder, nor any single or partial exercise of any right, power or privilege
hereunder, preclude any other or further exercise thereof or the exercise of any
other right, power or privilege hereunder. The rights and remedies herein
provided are cumulative and are not exclusive of any rights or remedies which
any party may otherwise have at law or in equity.
9.8 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Ohio applicable to
agreements made and to be performed entirely within such State.
9.9 Assignment; Binding Effect. This Agreement, and the
Employee's rights and obligations hereunder, may not be assigned by the
Employee. The Company and Holdings, jointly but not severally, may assign this
Agreement and their rights, together with their obligations, hereunder to any
entity that controls the Company or Holdings, is controlled by the Company or
Holdings, or is under common control with the Company or Holdings, or in
connection with any sale, transfer or other disposition of all or substantially
all of the assets or business of the Company and Holdings, whether by merger,
consolidation or otherwise. The Company and Holdings, or any direct or indirect
Successor to the Company or Holdings, shall use its reasonable efforts to cause
its successor in interest to assume explicitly the obligations of the Company
and Holdings or such direct or indirect Successor to the Company or Holdings, as
the case may be, hereunder.
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9.10 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
9.11 Headings. The headings in this Agreement are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
9.12 Arbitration. If requested by the Employee or the
Company, any claim or controversy arising out of or relating to the
interpretation, construction and performance of this Agreement, or any
alleged breach hereof, shall be finally resolved by arbitration conducted in
accordance with such rules as may be agreed upon by the parties within thirty
(30) days following written notice by either party to the other identifying
the issue in dispute and the position of the party giving notice, or failing
to achieve such agreement, in accordance with the National Rules for the
Resolution of Employment Disputes of the American Arbitration Association.
Any award rendered in connection with the foregoing arbitration shall be in
writing and shall be final and binding upon the parties, and judgment upon
any such award may be entered and enforced in any court of competent
jurisdiction. The forum for such arbitration shall be in Cleveland, Ohio and
the governing law shall be the laws of the State of Ohio without giving
effect to conflict of laws provisions. Notwithstanding any provision in this
Section 9.12 to the contrary, the Company shall have the right and power to
seek and obtain equitable relief in accordance with Section 7.1 hereof.
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IN WITNESS WHEREOF, the parties have executed this Employment
Agreement as of the date first above written.
TRAVELCENTERS OF AMERICA, INC.
("Holdings")
By: /s/ Xxxxx X. Xxxx
-------------------------------------
Name: Xxxxx X. Xxxx
Title: Chairman
TA OPERATING CORPORATION
("Company")
By: /s/ Xxxxx X. Xxxx
--------------------------------------
Name: Xxxxx X. Xxxx
Title: Chairman
/s/ Xxxxxx X. Xxxxx
------------------------------------
Xxxxxx X. Xxxxx
("Employee")
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