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Exhibit D
EXECUTION COPY
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SHARE EXCHANGE AGREEMENT
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THIS SHARE EXCHANGE AGREEMENT (this "Agreement") is entered
into as of the 26th day of February, 1999, by and among TRAVELCENTERS OF
AMERICA, INC., a Delaware corporation, as purchaser ("Buyer"), and E. Xxxxxx
Xxxxxxxx, as seller ("Seller").
RECITALS:
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A. Seller owns, in the aggregate, 1,844,275 shares of common stock of
Travel Ports of America, Inc., a New York corporation (the "Company").
B. In connection with the transaction contemplated by this Agreement,
Buyer has agreed to acquire all of the issued and outstanding shares of common
stock of the Company pursuant to a merger agreement dated the date hereof, as
the same may be amended (the "Merger Agreement"), among Buyer, TP Acquisition,
Inc. ("MergerCo") and the Company providing for the merger of MergerCo with and
into the Company (the "Merger").
C. Concurrently herewith, Seller, Xxxx X. Xxxxxxx ("Xxxxxxx"), Buyer
and MergerCo are entering into a Voting Agreement (the "Voting Agreement")
pursuant to which Seller and Xxxxxxx are obligated to vote any and all shares of
the Company owned by each for the approval and adoption of the Merger Agreement.
D. Prior to the execution thereof, the Board of Directors of the
Company has approved and authorized the Company's execution, delivery and
performance of the Merger Agreement, as well as the transactions contemplated by
this Agreement, and the Voting Agreement.
E. Prior to the effective time of the Merger, Buyer desires to purchase
from Seller, and Seller desires to sell to Buyer, 653,025 shares of Company
common stock (the "Shares"), upon and subject to the terms and conditions set
forth in this Agreement.
NOW, THEREFORE, in consideration of and in reliance upon the mutual
representations, warranties, covenants and agreements set forth in this
Agreement, Buyer and Seller hereby agree as follows:
ARTICLE 1
DEFINITIONS
1.1 DEFINITIONS. Certain terms used in this Agreement shall have the
meanings set forth herein or elsewhere as indicated in Article 8.
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ARTICLE 2
PURCHASE AND SALE
2.1 CLOSING. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at 9:00 a.m., E.S.T., on the date of
the closing of the Merger, as contemplated in the Merger Agreement (the "Closing
Date") at the offices of Xxxxxx, Halter & Xxxxxxxx LLP, 800 Superior Avenue,
1400 XxXxxxxx Investment Center, Cleveland, Ohio.
2.2 PURCHASE AND SALE. Subject to the terms and conditions of this
Agreement, at the Closing, Seller shall sell, transfer and deliver to Buyer free
and clear of all Liens, and Buyer shall purchase from Seller, all of Seller's
right, title and interest in the Shares.
2.3 CONSIDERATION. On the Closing Date, Buyer shall purchase the Shares
from Seller in exchange for 85,000 shares of fully paid and non-assessable
shares of common stock, par value $.01 per share, of Buyer (the "Buyer Common
Stock") which shall be issued pursuant to an exemption from the registration
requirements under Section 4(2) of the Securities Act.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer that the following statements
contained in this Article 3 are true and correct at and as of the date of this
Agreement with respect to Seller. Each representation and warranty contained in
this Article 3 shall be deemed to be independently material and relied upon by
Buyer.
3.1 AUTHORITY AND CAPACITY. Seller possesses all requisite legal right,
power, authority and capacity to execute, deliver and perform this Agreement,
including, without limitation, the authority and capacity to sell and transfer
the Shares to Buyer as provided by this Agreement.
3.2 OWNERSHIP OF SECURITIES. Seller owns all of the Shares free and
clear of all Liens. The Shares are not subject to any marital property or other
agreement, judgment, order, voting trust or proxy which either limits or
restricts Seller's absolute authority to transfer the Shares as herein provided
or requires the holder thereof to vote the Shares in any particular manner,
except for the Voting Agreement.
3.3 EXECUTION AND DELIVERY; ENFORCEABILITY. This Agreement and each
other document, instrument or agreement to be executed and delivered by Seller
in connection herewith has been duly executed and delivered by Seller and
constitutes the legal, valid and binding obligation of Seller, enforceable
against Seller in accordance with its terms.
3.4 NONCONTRAVENTION. Seller's execution, delivery and performance of
this Agreement and any other document, instrument or agreement to be executed
and delivered by Seller in connection herewith, (i) does not require Seller to
submit any notice, report or other
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filing with any Governmental Authority, (ii) violate or breach any Law
applicable to Seller, any Order to which Seller is subject or any Contract to
which Seller is a party, or (iii) require the consent, approval or authorization
of any Governmental Authority or any other Person.
3.5 BROKERAGE. No Person is or will become entitled, by reason of any
agreement or arrangement entered into or made by or on behalf of Seller, to
receive any commission, brokerage, finder's fee or other similar compensation in
connection with the consummation of the transactions contemplated by this
Agreement.
3.6 INVESTMENT INTENT.
(a) Seller is an "accredited investor" as that term is defined
in Section 501 under the Securities Act. Seller has sufficient knowledge and
experience in financial and business matters to enable him to evaluate the
merits and risks of the transactions contemplated by this Agreement. However,
nothing in this Section 3.6 shall have any bearing on or mitigate, dilute or
compromise in any manner any of the representations, warranties, indemnities,
agreements or covenants contained elsewhere in this Agreement or any of the
agreements contemplated hereby.
(b) Seller has been given access to information requested by
Seller regarding Buyer, including the opportunity to ask questions of and
receive answers from the officers of Buyer concerning the present and proposed
activities of Buyer and to obtain the information which Seller deems necessary
or advisable in order to evaluate the merits and risks of the transactions
contemplated by this Agreement, and Seller has made his own independent
investigation of Buyer and the merits and risks of the transactions contemplated
by this Agreement.
(c) Seller is acquiring the Buyer Common Stock for his own
account, for investment purposes, and not with a present view to resell or
distribute all or any portion of the Buyer Common Stock.
(d) Seller understands that the Buyer Common Stock has not
been registered under the Securities Act as of the Closing or under any state
securities laws, is being offered and sold in reliance upon federal and state
exemptions for transactions not involving any public offering, and such
certificates will bear a legend in substantially the following form, as well as
any other legend that may be required by applicable law:
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 REGISTRATION OR QUALIFICATIONS PROVISIONS OF
APPLICABLE
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FEDERAL AND STATE SECURITIES LAWS OR APPLICABLE
EXEMPTIONS THEREFROM.
(e) Seller acknowledges that the Buyer Common Stock will be
subject to further additional restrictions as contained in that certain
Stockholders' Agreement, dated March 6, 1997, as the same is or may be further
amended, among Buyer and its stockholders (the "Stockholders' Agreement").
Seller understands that any certificate(s) evidencing the Buyer Common Stock
will bear additional restrictive legends as provided for in the Stockholders'
Agreement.
(f) Seller further represents that:
(i) Seller or his purchaser representative
is a sophisticated investor with knowledge
and experience in business and financial
matters;
(ii) Seller has been provided with the
information specified in Rule 502(b)(2)(ii)
under the Securities Act and has had the
opportunity to obtain additional information
as desired in order to evaluate the merits
and risks inherent in holding the Buyer
Common Stock;
(iii) Seller has not been offered the Buyer Common
Stock by any form of general advertising or
general solicitation;
(iv) Seller is aware that his investment in the
Buyer Common Stock is a speculative one and
involves a high degree of risk, that the
amount realized on the investment may not
equal the original amount invested and
Seller has concluded that the proposed
investment in Buyer is appropriate in light
of his overall investment objectives and
financial situation; and
(v) Seller is able to bear the economic risk and
lack of liquidity inherent in holding the
Buyer Common Stock.
3.7 RESTRICTED SECURITIES. Seller understands and acknowledges that the
Buyer Common Stock he is receiving are "restricted securities" under federal and
state securities laws insofar as the Buyer Common Stock has not been registered
under the Securities Act or the securities laws of any other jurisdiction, that
they may not be resold or transferred without compliance with the registration
or qualification provisions of the Securities Act or applicable federal and
state securities laws of any state or other jurisdiction. Seller is familiar
with SEC Rule 144 as presently in effect and the resale limitations imposed
thereby and under the Securities Act.
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ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller that the following statements
contained in this Article 4 are true and correct at and as of the date of this
Agreement. Each representation and warranty contained in this Article shall be
deemed to be independently material and relied upon by Seller.
4.1 ORGANIZATION; AUTHORIZATION. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
Buyer has all requisite corporate power and authority to execute, deliver and
perform this Agreement and each other agreement, instrument and document to be
executed and delivered by or on behalf of Buyer in connection herewith. All
requisite corporate action to authorize, execute, deliver and perform this
Agreement and each other agreement, instrument and document to be executed and
delivered by or on behalf of Buyer in connection herewith has been taken by
Buyer.
4.2 EXECUTION AND DELIVERY; ENFORCEABILITY. This Agreement and each
other document, instrument or agreement to be executed and delivered by Buyer in
connection herewith has been duly executed and delivered by Buyer and
constitutes the legal, valid and binding obligation of Buyer enforceable against
Buyer in accordance with its terms.
4.3 NONCONTRAVENTION. Buyer's execution, delivery and performance of
this Agreement and any other document, instrument or agreement to be executed
and delivered by Buyer in connection herewith, (i) does not require Buyer to
submit any notice, report or other filing with any Governmental Authority (other
than as may be required under Regulation 13-D of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), or other state or federal securities
laws), (ii) violate or breach any Law applicable to Buyer, any Order to which
Buyer is subject or any Contract to which Buyer is a party, or (iii) require the
consent, approval or authorization of any Governmental Authority or any other
Person.
4.4 BROKERAGE. No Person is or will become entitled, by reason of any
agreement or arrangement entered into or made by or on behalf of Buyer, to
receive any commission, brokerage, finder's fee or other similar compensation in
connection with the consummation of the transactions contemplated by this
Agreement.
4.5 INVESTMENT INTENT. Buyer is acquiring the Shares for its own
account, for investment purposes, and not with a present view to resell or
distribute any portion thereof.
4.6 SEC DOCUMENTS. Buyer has timely filed all required reports,
schedules, forms, statements and other documents 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
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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 Buyer 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 specifically indicated in the notes thereto), and fairly
present the consolidated financial position of Buyer and its consolidated
subsidiaries as of the dates thereof and the consolidated income, shareholders'
equity and cash flows for the periods then ended.
4.7 NONCONTRAVENTION. As of the date hereof, except as set forth on
Schedule A, any exercise by Seller of the Put Right (as described in Section
6.2(a)) shall not cause a breach or default under any agreement to which Buyer
or any of its subsidiaries is a party. As of the date hereof, the exercise by
Seller of the Put Right would not, to the knowledge of Buyer, violate any Law
and, in particular, Buyer has sufficient "surplus" (as that term is defined in
the Delaware General Corporation Law) to permit Buyer to purchase the Put Shares
(as defined in Section 6.2(a)), if such Put Right were to be exercised on the
date hereof.
ARTICLE 5
CONDITIONS TO CLOSING
5.1 CONDITIONS TO BUYER'S OBLIGATION TO CLOSE. The obligation of Buyer
to consummate the transactions contemplated by this Agreement is subject to the
satisfaction, at or before the Closing, of the following conditions set forth in
this Section 5.1:
(i) Seller's execution and delivery of a counterpart
signature page to the Stockholders' Agreement
pursuant to which Seller agrees to be bound by such
terms and conditions as contained therein;
(ii) no suit, action, investigation or proceeding shall be
pending or threatened before any court, agency or
other Governmental Authority by which it is sought to
restrain, delay, prohibit, invalidate, set aside or
impose any conditions upon the Closing, in whole or
in part;
(iii) each of Seller's representations and warranties in
Article 3 (a) must have been accurate in all respects
as of the date of this Agreement, and (b) must be
accurate in all respects as of the Closing Date as if
made on the Closing Date;
(iv) all of the obligations, covenants and conditions that
Seller is required to perform or to comply with
pursuant to this Agreement at or prior to the
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Closing and each of these obligations, covenants and
conditions must have been duly performed and complied
with by Seller in all respects;
(v) Buyer shall have received from Seller (a) a stock
certificate evidencing or representing the Shares
issued in the name of Buyer, and (b) evidence of the
cancellation of the stock certificate(s) previously
issued in the name of Seller evidencing the Shares;
(vi) Seller's execution and delivery, at the Closing, of a
certificate in form and substance reasonably
acceptable to Buyer certifying as to (a) the
continued accuracy as of the Closing Date of the
representations and warranties contained in Article 3
hereof, (b) Seller's performance and compliance with
all obligations, covenants and conditions required by
this Agreement to have been performed or complied
with by Seller prior to or on the Closing Date, (c)
Seller's record and beneficial ownership of the
Shares and good and marketable title thereto and
Seller's absolute right to transfer the same, and
upon transfer, certifying that the Shares are not
subject to any Liens, and (d) Seller's full power and
capacity to perform the terms of this Agreement;
(vii) each of the conditions set forth in Sections 7.1, 7.2
and 7.3 of the Merger Agreement shall have been
satisfied or waived by the party entitled to waive
the same; and
(viii) Buyer shall have received each other document
required to be delivered to Buyer pursuant to this
Agreement.
Any agreement or document to be delivered to Buyer pursuant to this Section 5.1,
the form of which is not attached to this Agreement as an exhibit, shall be in
form and substance reasonably satisfactory to Buyer and its counsel.
5.2 CONDITIONS TO SELLER'S OBLIGATION TO CLOSE. The obligations of
Seller to consummate the transactions contemplated by this Agreement are subject
to the satisfaction, at or before the Closing, of the following conditions set
forth in this Section 5.2:
(i) no suit, action, investigation or proceeding shall be
pending or threatened before any court, agency or other
governmental authority by which it is sought to
restrain, delay, prohibit, invalidate, set aside or
impose any conditions upon the Closing, in whole or in
part;
(ii) each of Buyer's representations and warranties in
Article 4 (a) must have been accurate in all respects
as of the date of this Agreement, and (b) must be
accurate in all respects as of the Closing Date as if
made on the Closing Date;
(iii) all of the obligations, covenants and conditions that
Buyer is required to perform or to comply with pursuant
to this Agreement at or prior to the
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Closing and each of these obligations, covenants and
conditions must have been duly performed and complied
with by Buyer in all respects;
(iv) Seller shall have received a stock certificate issued
in the name of Seller evidencing or representing the
Buyer Common Stock;
(v) Buyer's execution and delivery, at the Closing, of a
certificate in form and substance reasonably acceptable
to Seller certifying as to (a) the continued accuracy
as of the Closing Date of the representations and
warranties contained in Article 4 hereof, (b) Buyer'
performance and compliance with all obligations,
covenants and conditions required by this Agreement to
have been performed or complied with by Buyer prior to
or on the Closing Date, (c) the accuracy and efficacy
of the Board of Director resolutions of Buyer
respecting the issuance of the Buyer Common Stock, and
(d) Buyer's full power and authorization to execute and
deliver this Agreement;
(vi) each of the conditions set forth in Sections 7.1, 7.2
and 7.3 shall have been satisfied or waived by the
party entitled to waive the same; and
(vii) Seller shall have received each other document
required to be delivered to Seller pursuant to this
Agreement.
Any agreement or document to be delivered to Seller pursuant to this Section
5.2, the form of which is not attached to this Agreement as an exhibit, shall be
in form and substance reasonably satisfactory to Seller and his counsel.
5.3 CONDITION SUBSEQUENT TO CLOSING . Immediately following the Closing,
Buyer and the Company shall file all necessary documents and take such other
actions under and in accordance with the Merger Agreement to cause the Merger to
be consummated as provided for therein. In the event the Merger is not
consummated for any reason within two days following the Closing hereunder, all
of the transactions contemplated herein shall be deemed not to have occurred and
the parties shall thereupon promptly return to the other all deliveries made
pursuant hereto.
ARTICLE 6
ADDITIONAL COVENANTS AND AGREEMENTS
6.1 Board Appointment.
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(a) Promptly following the closing of the Merger, and subject
to the approval of Buyer's stockholders, Buyer shall use all reasonable efforts
to cause Seller to be appointed to the Board of Directors (the "Board") of Buyer
at the next regularly scheduled shareholder meeting to serve until the death,
resignation or removal of Seller (including as provided in Section 6.1(b)
below).
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(b) Seller's right to maintain a position on the Board shall
terminate on the earliest to occur of (i) three years from the Closing, (ii)
Seller's failure to own at least 50,000 shares of Buyer common stock; PROVIDED,
HOWEVER, that the 50,000 share requirement shall be equitably adjusted up or
down, as applicable, in the event of any stock dividend or change in the common
stock of Buyer by reason of any stock split, reverse stock split,
recapitalization, reclassification, combination, exchange of shares or similar
organic change (collectively, an "Organic Change"), (iii) a registration
statement filed for an initial public offering of the common stock of Buyer is
declared effective under the Securities Act (an "IPO"), or (iv) a Change in
Control (each, a "Resignation Event"). Upon the occurrence of a Resignation
Event, Seller shall immediately tender his written resignation as a member of
the Board, which resignation may be accepted or rejected by Buyer, for a thirty
(30) day period after Buyer's receipt. In the event Buyer rejects Seller's
resignation, Seller shall remain a member of the Board and subsequently tender
his written resignation on each anniversary thereafter, which Buyer may elect to
accept or reject for a thirty (30) day period after Buyer's receipt.
(c) Seller acknowledges and agrees that his right to obtain
and maintain a position on the Board is a personal right and is in no way
assignable or transferable in any manner.
6.2 PUT RIGHT.
(a) Subject to the terms of this Section 6.2, Seller shall
have the right to sell to Buyer and Buyer shall be obligated to purchase from
Seller, all but not less than all, of the shares of Buyer Common Stock received
by Seller pursuant to this Agreement (including any additional shares of Buyer
Common Stock received by Seller with respect to such shares of Buyer Common
Stock as a result of any Organic Change) that Seller then owns at the time he
elects to exercise the Put Right (the "Put Shares") which are then eligible to
be "put" under Section 6.2(b) at the put exercise price of $33.04 (the "Exercise
Price") per share (the "Put Right"); PROVIDED, HOWEVER, that the Exercise Price
shall be equitably adjusted up or down, as applicable, in the event of any
Organic Change.
(b) Subject to the following sentence of this paragraph, the
Put Right becomes exercisable in equal one-third (1/3) increments annually
beginning on the first anniversary of the Closing Date (so that two-thirds (2/3)
of the Put Shares can be "put" commencing after the second anniversary of the
Closing Date and one hundred percent (100%) commencing after the third
anniversary of the Closing Date) and terminates upon the fourth anniversary of
the Closing Date. Notwithstanding the foregoing, the Put Right shall become
exercisable in full upon consummation of a transaction pursuant to which there
is a Change in Control of Buyer in which Seller was not offered the opportunity
to sell all of the Put Shares in such transaction. The Put Right is exercisable
by giving an irrevocable written notice (the "Put Notice") of exercise to Buyer,
subject to the applicable vesting period, prior to the termination of the Put
Right. The total consideration to be paid Seller upon exercise of the Put Right
shall be calculated by multiplying (x) the Exercise Price by (y) the number of
shares representing the Put Shares subject to the Put Notice (the "Total Put
Price"). If the Put Notice is given during the applicable exercise period as
provided above and Buyer is precluded by Law or
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Contract from purchasing some or all of the Buyer Common Stock referenced in
Seller's Put Notice then (i) Buyer shall purchase those shares of Buyer Common
Stock that Buyer is not so precluded from purchasing, pursuant to a closing
under Section 6.2(e) below, and shall purchase the remainder of the Buyer Common
Stock referenced in the Put Notice (the "Unpaid Put Shares") as soon as
practicable after such time as Buyer is no longer precluded by Law or Contract
from completing such purchase (at which point a closing shall occur for the
consummation of the purchase according to the terms of Section 6.2(e)) and
PROVIDED, FURTHER, that Buyer shall remain obligated to buy and Seller obligated
to sell the remainder of the Buyer Common Stock referenced in the Put Notice as,
and to the extent, availability arises thereafter; and (ii) until such time as
the Unpaid Put Shares are so purchased, Buyer shall pay a monthly penalty fee on
the portion of the Total Put Price related to any such Unpaid Put Shares at a
rate of eight-and-one-half percent (8.5%) per annum until so paid, which penalty
fee shall be payable monthly. Any payment made with respect to the Unpaid Put
Shares shall be applied first against any such accrued but unpaid penalty fee.
(c) Under no circumstances shall Buyer be obligated to
purchase the Buyer Common Stock pursuant to the Put Right if such purchase would
violate any Law, including, but not limited to, provisions of the General
Corporation Law of Delaware (or any successor statutory provision) or would
constitute or require the breach of any provisions of the Contracts listed on
Schedule A (or any additional Contracts entered into by Buyer that either: (a)
contain restrictions or limitations on Seller's ability to exercise the Put
Right that are not more restrictive than those set forth on Schedule A or (b)
have been the subject of a Seller Waiver under Section 6.7). Notwithstanding the
foregoing, if Buyer is precluded by Contract (other than pursuant to the
Indenture, dated as of March 27, 1997, listed on Schedule A or pursuant to a
Contract that has been the subject of a Seller Waiver under Section 6.7) from
purchasing some or all of the Buyer Common Stock referenced in Seller's Put
Notice, Buyer shall use commercially reasonable efforts to seek a waiver of such
restrictions from the appropriate third parties to permit the Put Right to be
exercised in full. If Seller exercises the Put Right and Buyer is precluded by
Law, as described above, then Seller and Buyer shall use their respective
reasonable efforts to accomplish such purchase and sale as contemplated by this
Section 6.2, in a manner not in violation of any Law, including, where
appropriate, the parties' attempt to modify the terms of the Put Right in such a
manner as to comply with the requirements of applicable Law.
(d) During the period commencing ninety (90) days from the
date of Buyer's receipt of the Put Notice (the "Review Period"), Seller's
exercise of the Put Right shall constitute and remain a valid and binding offer
to sell all shares of Buyer Common Stock then owned by Seller on the terms
hereof and shall not be subject to revocation, unless Buyer shall have consented
thereto in writing. Buyer shall have the term of the Review Period (and during
such time will be complying with the requirements of Section 6.2(c) above) to
notify Seller whether it is precluded by Law or Contract from acquiring such
shares or to notify Seller of its binding acceptance of such offer to purchase
the Buyer Common Stock.
(e) If Buyer is not precluded by Law or Contract from
purchasing the Buyer Common Stock, then, within thirty (30) days after the
Review Period, a closing shall occur for
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the consummation of such purchase, at a location determined by Buyer, where
Seller and Buyer shall be required to make the following deliveries:
(i) BY SELLER:
(1) stock certificate(s) evidencing the
Buyer Common Stock to be sold and
purchased duly endorsed in blank
with signatures guaranteed and
otherwise in proper form for
transfer.
(2) a certificate of Seller representing
and warranting that (A) Seller is
the record and beneficial owner of
the shares being sold subject to the
Put Right, (B) Seller has good and
marketable title to the shares
subject to the Put Right and the
absolute right to transfer the same,
and upon transfer, such shares will
be free and clear of Liens, (C)
Seller has full power and capacity
to perform the terms of this
Agreement relating to the exercise
of the Put Right and (D) Seller has
had an opportunity to obtain
information respecting Buyer and has
the information necessary to enable
him to make a knowledgeable decision
with respect to the exercise of the
Put Right.
(3) if the Put Right is being exercised
by a permitted transferee pursuant
to Section 6.2(g), in addition to
the deliveries provided for in
Section 6.2(e)(1) and 6.2(e)(2),
such transferee shall deliver a
certificate in form and substance
reasonably acceptable to Buyer
representing and warranting that (A)
such transferee or his or her
purchaser representative is a
sophisticated investor with
knowledge and experience in business
and financial matters and (B) such
transferee or his or her purchaser
representative has received and
reviewed all filings made by Buyer
with the SEC pursuant to the
requirements of the Exchange Act.
(ii) BY BUYER:
(1) the purchase price for the shares
being purchased subject to the Put
Right in an amount determined by
Section 6.2(b) above by certified
check or wire transfer of
immediately available funds to
Seller's designated account.
(f) Prior to any closing pursuant to Section 6.2(e), Buyer
shall have the right to postpone such closing for a reasonable period not to
exceed sixty (60) days if (i) Buyer is in possession of material non-public
information, (ii) Buyer determines that such
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postponement is necessary in order to avoid a requirement to disclose such
material non-public information and (iii) Buyer determines in good faith that
disclosure of such material non-public information would not be in the best
interests of Buyer or its stockholders.
(g) Seller acknowledges and agrees that the Put Right is in no
way assignable or transferable, except that Seller shall have the right, subject
to the next sentence and applicable law (including federal and state securities
laws), to transfer the Put Right, directly or indirectly, (i) to his parent,
spouse, ex-spouse or child (or any trust for the benefit of any such parent,
spouse, ex-spouse or child), (ii) pursuant to Seller's will (following his
death) or (iii) pursuant to the laws of descent and distribution; PROVIDED,
HOWEVER, in any such case, that Seller shall not transfer or assign the Put
Right to more than five (5) persons and, PROVIDED, FURTHER, that any transfer or
devise of the Put Right shall only be transferred and devised with respect to
and in connection with the underlying shares that are the subject of the Put
Right. As a condition to any transfer or assignment by Seller pursuant to this
paragraph, each transferee or assignee, prior to such transfer or assignment,
shall agree in writing in a form reasonably acceptable to Buyer to be bound by
all the provisions of this Agreement and the Stockholders' Agreement applicable
to Seller and no such transferee or assignee shall be permitted to make any
further transfer or assignment of the Put Right. Notwithstanding the foregoing,
Buyer shall be permitted (but not obligated), without the consent of Seller, to
assign its rights, duties and obligations respecting the Put Right to any
Person, provided Buyer shall remain obligated for payment of the purchase price
related to Seller's exercise of the Put Right.
6.3 MAYBROOK TRAVEL PLAZA SUBLEASE. At the Closing, Seller shall cause
his affiliate, Maybrook Travel Plaza, Inc. ("MTP") to execute an amendment to
that certain Sublease dated March 30, 1984 between MTP and the Company which
amendment shall provide for, among other things, (i) two additional 10 year
renewal options and (ii) an increase in the price of the Company's option to
purchase the subject property, all as provided for in Section 6.17 of the Merger
Agreement.
6.4 CONSULTING AGREEMENT. Prior to or at the Closing, Seller shall
terminate all of his rights, duties and obligations under that certain
Consulting Agreement currently in effect between Seller and the Company.
6.5 AMENDMENT OF CERTIFICATE OF INCORPORATION. Buyer agrees to amend
Buyer's Restated Certificate of Incorporation prior to Closing to clarify that
no further stockholder consent is required in order for the Company to perform
its obligations with respect to the exercise of the Put Right.
6.6 LIMITATION ON FUTURE RESTRICTIONS. Subject to this Section 6.6 and
Section 6.7, Buyer agrees, during the period that the Put Right is outstanding,
not to enter into any Contract that contains any restriction or limitation on
Seller's ability to exercise the Put Right that is more restrictive than those
set forth on Schedule A, without complying with Section 6.7; PROVIDED, HOWEVER,
that this Section 6.6 shall not prohibit Buyer from granting any Allowable Put
Rights (as hereinafter defined). "Allowable Put Rights" for purposes of this
Agreement shall mean any "put" rights or repurchase or redemption obligations
granted in the future that
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(a) are subordinated by Contract in right of payment to the Put Right(s) granted
under this Agreement, or (b) do not become exercisable until after the Put
Right(s) granted under this Agreement have expired or been exercised in full, or
(c) are granted to Directors, officers or employees in connection with future
acquisitions of equity securities of the Company in a manner consistent with
past practices.
6.7 CALL RIGHT.
(a) Subject to the terms of this Section 6.7, if Buyer, at any
time during the period that all or part of the Put Right remains outstanding
(whether or not exercisable), in the exercise of its reasonable business
judgment, determines to enter into a new transaction that it expects will
contain any restriction or limitation on Seller's ability to exercise the Put
Right that is more restrictive than those set forth on Schedule A (a
"Restrictive Transaction"), then Buyer shall first provide Seller with notice of
the principal terms of such Restrictive Transaction and give Seller ten (10)
days thereafter to determine whether to waive the provisions of Section 6.6
hereof (which written waiver also shall be delivered within such ten (10) day
period) (a "Seller Waiver"). In the event that a Seller Waiver is not executed
and delivered during such ten (10) day period, then Buyer shall have the right
to purchase (the "Call Right") and Seller (or, for all purposes hereof, any
transferee or assignee pursuant to Section 6.2(g)) shall be obligated to sell
all, but not less than all, of the Put Shares owned by such person at the call
exercise price of $36.34 (the "Call Exercise Price") per share; PROVIDED,
HOWEVER, that the Call Exercise Price shall be equitably adjusted up or down, as
applicable, in the event of any Organic Change.
(b) The Call Right is exercisable at any time during the
period that all or part of the Put Right remains outstanding, by Buyer giving an
irrevocable written notice (the "Call Notice") of exercise to Seller prior to
consummating the Restrictive Transaction. The total consideration to be paid
Seller upon exercise of the Call Right shall be calculated by multiplying (x)
the Call Exercise Price by (y) the number of shares representing the Put Shares
subject to the Call Notice (the "Total Call Price"). If at such time as the Call
Notice is given, Buyer is precluded by Law or Contract from purchasing some or
all of the Put Shares referenced in the Call Notice, then (i) Buyer shall
purchase those Put Shares that Buyer is not so precluded from purchasing,
pursuant to a closing under Section 6.7(c), and shall purchase the remainder of
the Put Shares referenced in the Call Notice (the "Unpaid Call Shares") as soon
as practicable after such time as Buyer is no longer precluded by Law or
Contract from completing such purchase (at which point a closing shall occur for
the consummation of the purchase according to the terms of Section 6.7(c)) and
PROVIDED, FURTHER, that Seller shall remain obligated to sell and Buyer shall
remain obligated to buy the remaining Put Shares referenced in the Call Notice
as, and to the extent, availability arises thereafter; and (ii) until such time
as the Unpaid Call Shares are so purchased, Buyer shall pay a monthly penalty
fee on the portion of the Total Call Price related to any such Unpaid Call
Shares at a rate of eight-and-one-half percent (8.5%) per annum, which penalty
fee shall be payable monthly. Any payment made with respect to the Unpaid Call
Shares shall be applied first against any such accrued but unpaid penalty fees.
Notwithstanding the foregoing, if Buyer is precluded by Contract (other than
pursuant to the Indenture, dated as of March 27, 1997, listed on Schedule
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A or pursuant to a Contract that has been the subject of a Seller Waiver under
this Section 6.7) from purchasing some or all of the Put Shares referenced in
Buyer's Call Notice, Buyer shall use commercially reasonable efforts to seek a
waiver of such restrictions from the appropriate third parties to permit the
Call Right to be exercised in full.
(c) Within thirty (30) days after delivery of the Call Notice,
a closing shall occur for the consummation of such purchase, at a location
determined by Buyer, where Seller and Buyer shall be required to make the
following deliveries:
(i) BY SELLER:
(1) stock certificate(s) evidencing the
Buyer Common Stock to be sold and
purchased duly endorsed in blank
with signatures guaranteed and
otherwise in proper form for
transfer.
(2) a certificate of Seller representing
and warranting that (A) Seller is
the record and beneficial owner of
the shares being purchased subject
to the Call Right, (B) Seller has
good and marketable title to the
shares subject to the Call Right and
the absolute right to transfer the
same, and upon transfer, such shares
will be free and clear of Liens; and
(C) Seller has full power and
capacity to perform the terms of
this Agreement relating to the sale
of the Shares.
(ii) BY BUYER:
(1) the purchase price for the shares
being purchased subject to the Call
Right in an amount determined by
Section 6.2(b) above by certified
check or wire transfer of
immediately available funds to
Seller's designated account.
ARTICLE 7
INDEMNIFICATION
7.1 INDEMNIFICATION OF BUYER. Seller shall indemnify Buyer against and
hold Buyer harmless from any liability, loss, claim, deficiency, damage, cost
and expense, including attorneys' fees and other costs and expenses incident to
proceedings or investigations or the defense or settlement of any of the
foregoing (collectively, "Losses"), resulting from or arising out of any
inaccuracy in or breach of any of the representations and warranties made by
Seller in Article 3.
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7.2 INDEMNIFICATION OF SELLER. Buyer shall indemnify Seller against and
hold Seller harmless from any Losses resulting from or arising out of any
inaccuracy in or breach of any of the representations and warranties made by
Buyer in Article 4.
7.3 THIRD-PARTY CLAIMS. If any legal proceeding is instituted or any
claim asserted by any third party (a "Claim") in respect of which Seller, on the
one hand, or Buyer, 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")
prompt written notice thereof. A delay in giving such notice shall not relieve
the Indemnitor of liability for the Claim except only 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
Claim, but not to control the defense, negotiation or settlement thereof.
ARTICLE 8
CERTAIN DEFINITIONS
When used in this Agreement, the following terms in all of their
tenses, cases and correlative forms shall have the meanings assigned to them in
this Article 8, or elsewhere in this Agreement as indicated in this Article 8:
"AFFILIATE" shall mean, when used with respect to a specified Person,
another Person that directly, or indirectly through one or more intermediaries,
controls or is controlled by or is under common control with the Person
specified.
"CHANGE IN CONTROL" shall be deemed to have occurred if:
(a) any Person or group (within the meaning of Rule 13d-5 of the
Securities and Exchange Commission as in effect on March 21, 1997),
other than (i) the Institutional Investors (including the First Boston
Entities (as defined below)) or (ii) the Management Purchasers and
their Permitted Transferees (as defined in and set forth in Section
2(b) of the Stockholders' Agreement), shall directly or indirectly,
whether through the ownership of voting securities, by contract or
otherwise, have the ability to elect a majority of the board of
directors of Seller;
(b) (i) the Institutional Investors (including the First Boston
Entities) or (ii) the First Boston Entities, respectively, shall cease
to own in the aggregate, directly or indirectly, beneficially and of
record, shares representing at least 65% of the aggregate ordinary
voting power represented by the issued and outstanding capital stock of
Buyer held by such Persons on March 21, 1997, PROVIDED that such 65%
shall be reduced by the dilution suffered by such Persons as a result
of any issuance by Seller after March 27, 1997 of any capital stock
representing ordinary voting power (A) for fair value for cash to
non-Affiliates of the applicable parties under clause (i) or (ii)
above, as the case may be, or (B) to its employees to the extent that
the shares issued to such employees do not exceed 15% of the
then-outstanding capital stock having ordinary voting power;
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(c) any Person or group (within the meaning of Rule 13d-5 of the
Securities and Exchange Commission as in effect on March 21, 1997),
other than the Institutional Investors (including the First Boston
Entities), shall own directly or indirectly, beneficially or of record,
shares representing more than the lesser at any time of (i) 35% of the
aggregate ordinary voting power represented by the issued and
outstanding capital stock of Seller and (ii) the percentage of the
aggregate ordinary voting power represented by the shares owned
directly or indirectly, beneficially or of record, by the Institutional
Investors (including the First Boston Entities) at such time;
(d) a majority of the seats (other than vacant seats) on the board of
directors of the Borrower shall at any time be occupied by Persons who
were neither (i) nominated by the Institutional Investors (including
the First Boston Entities) or the Management Purchasers and their
Permitted Transferees nor (ii) elected by directors so nominated;
For purposes of this definition, the term "First Boston Entities" shall mean
Credit Suisse First Boston Corporation, The Clipper Group, L.P., Merchant
Truckstops, L.P., Clipper Capital Associates, L.P. and Clipper/Merchant I, L.P.
and their Affiliates and any of the designees on the Closing Date. For purposes
of clause (b) of this definition, the convertible preferred stock and the senior
convertible participating preferred stock of Seller shall be deemed to
constitute capital stock with ordinary voting power. For purposes only of
clauses (a), (c) and (d) of this definition, the term "Institutional Investor"
shall be deemed to include any other holder or holders of shares of the Borrower
having ordinary voting power if any Institutional Investor or First Boston
Entity (other than an Institutional Investor deemed to be an Institutional
Investor solely by virtue of this provision) shall hold the irrevocable general
proxy of each such holder in respect of the shares held by such holder.
"Institutional Investors" shall mean The Clipper Group, L.P.,
First Plaza, Credit Suisse First Boston Corporation, Barclays USA, Inc., Olympus
Private Placement Fund, L.P., Clipper/Merchant I, L.P., Clipper Capital
Associates, L.P., National Partners, L.P., National Partners III, L.P., UBS
Capital Corporation, The Travelers Indemnity Company, The Phoenix Insurance Co.
and their respective Affiliates.
"CLAIM" is defined in Section 7.3.
"CLOSING" is defined in Article 2.
"CLOSING DATE" is defined in Article 2.
"CODE" means the United States Internal Revenue Code of 1986, as amended, and
the regulations thereunder.
"COMPANY" means Travel Ports of America, Inc., a New York corporation.
"CONTRACT" means any agreement, contract, obligation, lease, promise, or
undertaking (whether written or oral and whether express or implied) that is
legally binding.
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"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"GOVERNMENTAL AUTHORITY" means any federal, state, local, municipal, foreign, or
other government and any quasi-governmental authority of any nature (including
any governmental agency, branch, department, official, or entity and any court
or other tribunal).
"INDEMNITEE" and "INDEMNITOR" are defined in Section 7.3.
"LAW" means any common law and any federal, state, regional, municipal, local or
foreign law, statute, ordinance, rule, regulation or order or treaty.
"LIEN" means any lien, charge, easement, encumbrance, security interest, adverse
claim, equitable interest, right of first refusal or any other title defect or
restriction of any kind.
"LOSSES" is defined in Section 7.1.
"PERSON" means an individual, a corporation, a limited liability company, a
partnership, a trust, an unincorporated association, a government or any agency,
instrumentality or political subdivision of a government, or any other entity or
organization.
"SECURITIES ACT" means The Securities Act of 1933, as amended.
"SEC" means the Securities and Exchange Commission.
ARTICLE 9
CONSTRUCTION; MISCELLANEOUS PROVISIONS
9.1 NOTICES. All notices, requests, claims, demands and other
communications under this Agreement shall be in writing and shall be deemed
given if delivered personally or sent by overnight courier to the parties at the
following addresses (or at such other address for a party as shall be specified
by like notice):
(i) If to Buyer or MergerCo, to:
TravelCenters of America, Inc.
00000 Xxxxxx Xxxxx Xxxx
Xxxxx 000
Xxxxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxx
with a copy to:
Xxxxxx, Halter & Xxxxxxxx LLP
1400 XxXxxxxx Investment Center
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
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(ii) If to the Company, to:
Travel Ports of America, Inc.
0000 Xxxxxx Xxxxx
Xxxxxxxx X
Xxxxxxxxx, XX 00000
Attention: E. Xxxxxx Xxxxxxxx
with a copy to:
Xxxxxx, Beach & Xxxxxx, LLP
000 Xxxx Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
or in any case, to such other address for a party as to which notice shall have
been given to Buyer and Seller in accordance with this Section. Notices so
addressed shall be deemed to have been duly given (i) on the third business day
after the day of registration, if sent by registered or certified mail, postage
prepaid, or (ii) on the next business day following the documented acceptance
thereof for next-day delivery by a national overnight air courier service, if so
sent. Otherwise, notices shall be deemed to have been given when actually
received. A courtesy copy of any action, suit or proceeding commenced pursuant
to Article 7 shall be delivered to counsel for Buyer and Sellers within three
(3) days after filing.
9.2 ENTIRE AGREEMENT. This Agreement and exhibits hereto and the other
agreements entered into in connection herewith constitute the exclusive
statement of the agreement among Buyer and Seller concerning the subject matter
hereof, and supersedes all other prior agreements, oral or written, among or
between any of the parties hereto concerning such subject matter. All
negotiations among or between any of the parties hereto are superseded by this
Agreement, and there are no representations, warranties, promises,
understandings or agreements, oral or written, in relation to the subject matter
hereof among or between any of the parties hereto other than those expressly set
forth or expressly incorporated herein.
9.3 JURISIDICTION AND VENUE.
(a) Any action, suit or proceeding at law, in equity or otherwise
initiated by Seller that in any way arises out of or relates to this
Agreement, including all counterclaims relating thereto, shall be
brought in a state or federal court of competent jurisdiction located
in Monroe County, New York, and all objections to personal jurisdiction
and venue in any action, suit or proceeding so commenced are hereby
expressly waived by all parties hereto, except for any applicable
objections concerning insufficiency of process or insufficiency of
service of process, which are hereby preserved.
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(b) Any action, suit or proceeding at law, in equity or otherwise
initiated by Buyer that in any way arises out of or relates to this
Agreement, including all counterclaims relating thereto, shall be
brought in a state or federal court of competent jurisdiction located
in Cuyahoga County, Ohio, and all objections to personal jurisdiction
and venue in any action, suit or proceeding so commenced are hereby
expressly waived by all parties hereto, except for any applicable
objections concerning insufficiency of process or insufficiency of
service of process, which are hereby preserved.
9.4 MODIFICATION AND WAIVER. No amendment, modification, or waiver of
this Agreement or any provision hereof, including the provisions of this
sentence, shall be effective or enforceable as against a party hereto unless
made in a written instrument which specifically references this Agreement and
which is signed by the party waiving compliance. Except as may otherwise be
expressly provided herein, the failure of any Person to enforce at any time, or
for any period of time, any provision of this Agreement shall not be construed
as a waiver of any provision of this Agreement or of the right of any such
Person to enforce each and every provision of this Agreement, and no single or
partial exercise of any right hereunder shall preclude any other or further
exercise of that or any other right.
9.5 BINDING EFFECT. This Agreement shall be binding upon and shall
inure to the benefit of Buyer, Seller, and the respective successors and
permitted assigns of Buyer and of Seller.
9.6 HEADINGS. The article and section headings used in this Agreement
are intended solely for convenience of reference, do not themselves form a part
of this Agreement, and may not be given effect in the interpretation or
construction of this Agreement.
9.7 COUNTERPARTS. This Agreement may be executed and delivered in
multiple counterparts, each of which shall be deemed an original, and all of
which together shall constitute one and the same instrument.
9.8 THIRD PARTIES. Except as may otherwise be expressly stated herein,
no provision of this Agreement is intended or shall be construed to confer on
any Person, other than the parties hereto, any rights or benefits hereunder.
9.9 TIME PERIODS. Any action required hereunder to be taken within a
certain number of days shall, except as may otherwise be expressly provided
herein, be taken within that number of calendar days; PROVIDED, HOWEVER, that if
the last day for taking such action falls on a Saturday, a Sunday, or a legal
holiday, the period during which such action may be taken shall automatically be
extended to the next business day.
9.10 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware, without regard to the
choice-of-laws or conflicts-of-laws provisions thereof.
9.11 FURTHER ASSURANCES. Buyer and Seller agree that, from time to time
after the Closing each will execute, acknowledge and deliver such other
instruments as reasonably may
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be required (i) to more effectively transfer and vest in Buyer the Shares, or
(ii) to more effectively transfer and vest in Seller the Buyer Common Stock, or
(iii) to otherwise carry out the terms and conditions of this Agreement.
ARTICLE 10
TERMINATION
10.1 TERMINATION OF AGREEMENT. Subject to any obligations of Seller to
resign from the Board, this Agreement and all rights hereunder shall terminate
upon the earliest to occur of the following date:
(a) termination of the Merger Agreement in accordance
with its terms;
(b) the fourth (4th) anniversary of the Closing Date
under this Agreement; or
(c) the date on which both (i) E. Xxxxxx Xxxxxxxx has died or
he owns less than 50,000 shares of Buyer Common Stock AND (ii) either (x) Seller
(or his transferee or devisee pursuant to Section 6.2(g)) has exercised the Put
Right, or (y) the fourth (4th) anniversary of the Closing Date under this
Agreement; or
(d) an IPO; or
(e) the failure of Buyer to satisfy the covenant set
forth in Section 6.6 prior to Closing.
10.2 EFFECT OF TERMINATION. If this Agreement is terminated, all
further obligations of the parties under this Agreement will terminate and be of
no further force and effect, except that the provisions of Article 7 shall
survive. Notwithstanding the foregoing, Buyer and Seller acknowledge that if
this Agreement is terminated pursuant to Section 10.1(e), Seller shall receive
for the Shares in the Merger the same consideration per share for the Shares as
shall be paid by Buyer to all shareholders of the Company.
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IN WITNESS WHEREOF, Buyer and Seller have executed and
delivered this Share Exchange Agreement, as of the date first written above.
TRAVELCENTERS OF AMERICA, INC.
/s/ Xxxxx X. Xxxx
--------------------------------------
Xxxxx X. Xxxx, President and
Chief Executive Officer
("Buyer")
/s/ E. Xxxxxx Xxxxxxxx
--------------------------------------
E. Xxxxxx Xxxxxxxx
("Seller")
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SCHEDULE A
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Credit Agreement, dated as of March 21, 1997, as amended and restated as of
November 24, 1998, among TravelCenters of America, Inc., the financial
institutions party thereto, as lenders, and The Chase Manhattan Bank.
(See Section 7.06)
Senior Secured Note Exchange Agreements, dated as of March 21, 1997, as
supplemented as of November 24, 1998, among TravelCenters of America,
Inc. and the Tranche A Exchange Note Purchasers named therein. (See
Section 7.6)
Indenture, dated as of March 27, 1997, relating to the TravelCenters of
America 10.25% Senior Subordinated Notes due April 1, 2007. (See
Section 4.04)
The Restated Certificate of Incorporation of Buyer as amended.