EXHIBIT 10.18
MANAGEMENT SUBSCRIPTION AGREEMENT
MANAGEMENT SUBSCRIPTION AGREEMENT, dated as of November____, 1997, between
TravelCenters of America, Inc., a Delaware corporation (the "Company"), and
________________ (the "Purchaser").
WHEREAS, the Purchaser is an employee of either the Company or one
of its subsidiaries;
WHEREAS, the Purchaser wishes to subscribe for and purchase, and
the Company desires to issue and sell to the Purchaser, certain authorized
but unissued shares of common stock, par value $.01 per share, of the Company
(the "Common Stock") on the terms and subject to the conditions set forth
herein;
WHEREAS, the Purchaser is concurrently herewith becoming party to a
Stockholders' Agreement, dated as of March 6, 1997, among the Company and
certain of its stockholders (the "Stockholders' Agreement"), which provides
certain restrictions on the transfer of the Common Stock;
WHEREAS, the Purchaser agrees to enter into an Institutional and
Management Stockholder's Agreement and a Supplemental Institutional and
Management Stockholder's Agreement, substantially in the forms attached
hereto as Exhibits A and B, respectively, or in a form or forms mutually
agreeable to the Purchaser and the Company, which agreements also provide
certain restrictions on the transfer of Common Stock; and
WHEREAS, the Purchaser and the Company wish to provide for certain
additional arrangements with respect to the Purchaser's right to hold and
dispose of the shares of Common Stock acquired by the Purchaser hereunder.
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Accordingly, the Purchaser and the Company hereby agree as follows:
1. PURCHASE AND SALE OF SHARES. Subject to the terms set forth
in this Agreement, and in reliance upon the representations, warranties and
agreements of the Purchaser or the Beneficiary, as the case may be, contained
herein, the Company hereby issues and sells to the Purchaser, and the
Purchaser hereby subscribes for, the shares of Common Stock set forth
opposite his name on Schedule A hereto (the "Shares"), at a price of ____ per
share, for the aggregate purchase price set forth in Schedule A hereto (the
"Purchase Price").
2. CLOSING OF THE PURCHASE AND SALE; PAYMENT FOR SHARES. The
closing of the transactions contemplated hereby shall take place at the
offices of the Company, at such other time, date and place as the Company and
the Purchaser shall mutually agree (the "Closing"). At the Closing, the
Company shall deliver to the Purchaser a duly executed certificate
representing the Shares, and the Purchaser shall pay the Purchase Price to
the Company either (i) in cash or (ii) in a combination of cash and a note
payable to the Company (the "Note"), in the respective amounts set forth in
Schedule A.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to the Purchaser that:
(a) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, and
has the requisite corporate power and authority to execute and deliver this
Agreement and to perform its obligations hereunder.
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(b) The execution, delivery and performance of this
Agreement, and the execution, issuance, sale and delivery of the Shares have
been duly authorized by all necessary corporate action on the part of the
Company. The Shares, when issued, shall be validly issued, and, upon payment
to the Company by the Purchaser of the full Purchase Price (including payment
of any Notes delivered as a portion thereof), shall be fully paid and
nonassessable.
4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER OR THE
BENEFICIARY. The Purchaser or, if the Purchaser is other than an individual,
the Beneficiary, represents and warrants to the Company, that:
(a) he is acquiring the Shares for his own account and not
with a view to distributing or reselling the Shares in any transaction that
would be in violation of any federal or state securities laws;
(b) he (i) is familiar with the business of the Company, (ii)
has had an opportunity to discuss with representatives of the Company the
condition of and prospects for the continued operation of the Company and
such other matters as he deemed appropriate in considering whether to invest
in the Shares and (iii) has been provided access to all available information
about the Company requested by him;
(c) he understands that the Shares have not been registered
under the Securities Act of 1933, as amended (the "Securities Act"), or
registered or qualified under the securities laws of any state, and that he
may not sell or otherwise transfer the Shares unless the Shares are
subsequently registered under the Securities Act
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and registered or qualified under applicable state securities laws, or unless
an exemption is available that permits the sale or transfer without such
registration or qualification;
(d) he understands that each certificate representing the
Shares shall contain the following legend:
THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, AND MAY NOT BE SOLD, ASSIGNED, OR OTHERWISE
TRANSFERRED OR DISPOSED OF EXCEPT IN COMPLIANCE WITH SUCH
ACT AND THE APPLICABLE RULES AND REGULATIONS THEREUNDER.
(e) if a Note is delivered to the Company as part of the
Purchase Price, he understands that each certificate representing the Shares
shall bear a legend satisfying the requirements of Section 156 of the General
Corporation Law of the State of Delaware as to partly paid shares;
(f) he has made his own investigation whether or not to
invest in the Shares and that he has sufficient business and financial
experience so as to enable him to evaluate the merits and risks associated
with the purchase of the Shares;
(g) he is able to bear the economic risk of a total loss of
his investment in the Company and he has adequate means of providing for his
current needs and foreseeable personal contingencies and has no need for his
investment in the Shares to be liquid; and
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(h) he understands that the purchase of the Shares involves
various risks, including, among others, that it is unlikely that any market
will exist for any resale of the Shares and that the Shares are subject to
the provisions of the Stockholders' Agreement and also will be subject to the
terms and conditions of loan or credit agreements and related security
documents entered into by the Company.
5. REPRESENTATIONS OF THE BENEFICIARY. If the Purchaser is other
than an individual, the Beneficiary represents that he has authority to
instruct the Purchaser to enter into this Management Subscription Agreement.
6. RESTRICTIONS ON DISPOSITION OF THE SHARES. The Purchaser
agrees that as a condition of his subscription for the Shares he will become
party to the Stockholders' Agreement and acknowledges that the Stockholders'
Agreement contains certain provisions restricting the transfer or assignment
of the Shares. In addition, the Purchaser agrees to enter into an
Institutional and Management Stockholder's Agreement and a Supplemental
Institutional and Management Stockholder's Agreement, substantially in the
forms attached hereto as Exhibits A and B respectively, or in a form or
forms mutually agreeable to the Purchaser and the Company, which agreements
also provide certain restrictions on the transfer of the Common Stock.
7. CALL AND PUT OPTIONS. The Company and the Purchaser agree
that call and put options shall be available with respect to Shares as set
forth in Sections 2.8 and 3.11(d) of the TravelCenters of America, Inc. 1997
Stock Incentive Plan (the "Plan"),
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which sections shall be applied and interpreted consistently with other
sections of the Plan. Such options shall be exercised at a Call Purchase
Price or Put Purchase Price, as the case may be, as provided in Exhibit A and
Exhibit B to the Plan.
8. STOCKHOLDERS' AGREEMENT CONTROLS. If any provision of this
Agreement conflicts with or is contrary to any provision of the Stockholders'
Agreement, such provision of the Stockholders' Agreement shall control.
9. MISCELLANEOUS.
(a) RULES OF CONSTRUCTION. In this Agreement, unless the
context otherwise requires, words in the singular number or in the plural
number shall each include the singular number and the plural number, words of
the masculine gender shall include the feminine and the neuter, and, when the
sense so indicates, words of the neuter shall refer to any gender.
(b) FURTHER ASSURANCES. Each party hereto shall do and
perform or cause to be done and performed all further acts and shall execute
and deliver all other agreements, certificates, instruments and documents as
any other party hereto reasonably may request in order to carry out the
intent and accomplish the purposes of this Agreement and the consummation of
the transactions contemplated hereby.
(c) GOVERNING LAW. This Agreement and the rights and
obligations of the parties hereto shall be governed by, and construed and
enforced in accordance with, the laws of the State of New York, without
giving effect to the conflicts of laws principles thereof.
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(d) SPECIFIC PERFORMANCE. The parties hereto acknowledge
that there will be no adequate remedy at law for a violation of any of the
provisions of this Agreement and that, in addition to any other remedies that
may be available, all of the provisions of this Agreement shall be
specifically enforceable in accordance with their respective terms.
(e) INVALIDITY OF PROVISION. The invalidity or
unenforceability of any provision of this Agreement in any jurisdiction shall
not affect the validity or enforceability of the remainder of this Agreement
in that jurisdiction or the validity or enforceability of this Agreement,
including that provision, in any other jurisdiction.
(f) NOTICE. All notices and other communications hereunder
shall be in writing and, unless otherwise provided herein, shall be deemed to
have been given when received by the party to whom such notice is to be given
at its address set forth below, or such other address for the party as shall
be specified by notice given pursuant hereto:
If to the Company, to:
TravelCenters of America, Inc.
00000 Xxxxxx Xxxxx Xxxx
Xxxxx 000
Xxxxxxxx, XX 00000-0000
Attention: Corporate Secretary
Fax: 000-000-0000
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with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx &
Xxxxxxxx
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx X. Xxxxxxx, Esq.
Fax: 000-000-0000
If to the Purchaser, to the address set forth in
Schedule A hereto.
(g) BINDING EFFECT. This Agreement shall inure to the
benefit of and shall be binding upon the parties hereto and their respective
heirs, legal representatives, successors and assigns.
(h) AMENDMENT AND MODIFICATION. This Agreement may be
amended, modified or supplemented only by written agreement of the party
against whom enforcement of such amendment, modification or supplement is
sought.
(i) HEADINGS; EXECUTION IN COUNTERPARTS. The headings and
captions contained herein are for convenience only and shall not control or
affect the meaning or construction of any provision hereof. This Agreement
may be executed in any number of counterparts, each of which shall be deemed
to be an original and all of which together shall constitute one and the same
instrument.
(j) NO RIGHTS TO EMPLOYMENT. Nothing in this Agreement shall
constitute an offer of employment to [name of employee] or be construed to
require the Company or any of its affiliates to continue [name of employee]
in the employ of the Company or any of its affiliates for any stated period
of time.
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(k) ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement, and supersedes all prior agreements and understandings, oral and
written, between the parties hereto with respect to the subject matter hereof.
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IN WITNESS WHEREOF, the Purchaser and the Company have executed
this Agreement as of the date first above written.
TRAVELCENTERS OF AMERICA, INC.
By:
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Name:
Title:
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SCHEDULE A
Shares of Aggregate
Common Cash Note Purchase
Stock Issued Amount Amount Price
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Address of the Purchaser:
