EXHIBIT 10.28
AMENDMENT NO. 1 TO MANAGEMENT EQUITY ROLLOVER AGREEMENT
AMENDMENT NO. 1 TO MANAGEMENT EQUITY ROLLOVER AGREEMENT
("Amendment") dated as of December 15, 2003, by and among TA Operating
Corporation, a Delaware corporation (the "Company"), TravelCenters of America,
Inc., a Delaware corporation ("Holdings"), and Xxxxx X. Xxxxxx (the "Employee").
WHEREAS, Holdings, as successor by merger to TCA Acquisition
Corporation, and the Employee are parties to a Management Equity Rollover
Agreement dated November 9, 2000 (the "Management Equity Rollover Agreement");
and
WHEREAS, the parties desire to modify the Management Equity Rollover
Agreement as hereinafter set forth; and
WHEREAS, Section 11.2(b) of the Management Equity Rollover Agreement
permit the parties thereto to amend such agreement in a writing signed by each
party.
NOW, THEREFORE, in consideration of the parties' mutual desire to
modify the Management Equity Rollover Agreement, and the mutual covenants herein
contained, the parties agree as follows effective December 15, 2003:
Capitalized terms used herein and not otherwise defined shall have
the meanings ascribed to them in the Management Equity Rollover Agreement.
1. Section 4.1 of the Management Equity Rollover Agreement shall be
deleted in its entirety, and the following shall be inserted therefor:
"4.1 Repurchase - Death or Disability. In the event of a termination
of Management Employee's employment with the Company (a
"Termination") by reason of Management Employee's death or
Disability, then the Company, by written notice delivered within
sixty (60) days after the Termination (the "Call Exercise Notice")
to the Management Employee or his estate, legal representative or
committee, as the case may be (the "Departing Purchaser"), shall
have the right, but not the obligation to purchase, and if the
Company exercises such right, the Departing Purchaser and any
Permitted Transferees shall have the obligation to sell, such number
of TravelCenters Common Stock specified in the Call
Exercise Notice, which number may be any or all of the TravelCenters
Common Stock held by the Departing Purchaser and any Permitted
Transferees, at a price per share equal to the Fair Market Value
thereof as of the date of such Termination. In the event that,
following the Termination, the Company does not exercise its right
under this section to repurchase the TravelCenters Common Stock held
by the Departing Purchaser, then until sixty (60) days following the
date on which the Company ceased to be entitled to purchase such
TravelCenters Common Stock pursuant to this section (or
affirmatively waived in writing its right to do so) such Departing
Purchaser shall have the right and option (the "Put Option") to
require the Company to purchase any or all of the TravelCenters
Common Stock held by such Departing Purchaser and such Departing
Purchasers' Permitted Transferees by delivering written notice of
exercise (the "Put Exercise Notice") to the Company setting forth
the number of such TravelCenters Common Stock subject to the Put
Option. If the Departing Purchaser shall exercise the Put Option,
then the Company shall purchase and the Departing Purchaser and such
Departing Purchaser's Permitted Transferees shall sell, such number
of TravelCenters Common Stock set forth in the Put Exercise Notice
held by such persons at a price per share equal to the Fair Market
Value thereof as of the date of such Termination.
2. Section 4.2 of the Management Equity Rollover Agreement shall be
deleted in its entirety, and the following shall be inserted therefore:
"4.2 Repurchase - Scheduled Retirement. In the event of a
Termination by reason of Management Employee's Scheduled Retirement,
Management Employee shall have the right to put to the Company upon
60, but not more than 90, days' advance written notice, and if
Management Employee exercises such right, the Company shall be
required to purchase from Management Employee, all or any part of
the TravelCenters Common Stock and equity interests held by
Management Employee as follows:
(a) commencing on the date of such Scheduled Retirement, the
shares of TravelCenters Common Stock held by Management
Employee at the Fair Market Value therefor;
(b) commencing on the date which is one year after the date of
such Scheduled Retirement, 50% of all then exercisable
TravelCenters equity interests held by Management Employee at
the Fair Market Value of the TravelCenters Common Stock
underlying such equity interests, minus the exercise price
therefor;
(c) commencing on the date which is two years after the date
of such Scheduled Retirement, all remaining exercisable
TravelCenters equity interests held by Management Employee at
the Fair Market Value of the TravelCenters Common Stock
underlying such equity interests, minus the exercise price
therefor;
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(d) notwithstanding the foregoing clauses (a), (b), and (c) of
this Section 4.2, if Management Employee's Scheduled
Retirement is prior to the calendar year in which he has
reached or will reach age 62, and Management Employee becomes
employed by or renders any services to a TA Truck-Stop
Competitor or has 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 Participant may own, solely as an investment,
securities of any TA Truck-Stop Competitor that are publicly
traded if the Participant (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) while such
Management Employee holds TravelCenters Common Stock or equity
interests, Management Employee shall have the right to put to
the Company upon 60, but not more than 90, days' advance
notice, and if Management Employee exercises such right, the
Company shall be required to purchase from Management
Employee, up to 25% of the TravelCenters Common Stock and
equity interests held by Management employee as of the date of
such Scheduled Retirement, at a price per share equal to the
Fair Market Value therefor as of such date, and if the
Management Employee exercises such right, the Company shall be
required to purchase the remaining 75% of the TravelCenters
Common Stock and equity interests held by Management Employee
as of the date of such Scheduled Retirement on each
anniversary following the date of such Scheduled Retirement
through the calendar year in which Management Employee reaches
or will reach age 62 (with an equal number of shares and
equity interests to be purchased on each anniversary date), at
a price per share equal to the Fair Market Value therefor as
of the anniversary date in connection with which the purchase
is being made. "TA Truck-Stop Competitor," shall mean Petro,
Flying J, AMBEST, PTP, Xxxx Bros., All American, Rip Griffin,
Bosselman's, Texaco/Equilon, Pilot, Love's, Little America,
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. Nothing in this clause (d) shall
alter or affect any restrictions on Management Employee's
ability to compete with the Company contained in any agreement
or plan applicable to Management Employee from time to time.
where, in each case, the Fair Market Value of a share is deemed to
be its Fair Market Value (i) if the put right is exercised with
proper notice as of the date of Management Employee's Scheduled
Retirement or the date which is one year or two years thereafter,
the Fair Market Value on the last day of the fiscal quarter which
includes the date on which Management Employee provided notice of
the exercise of his put right; or (ii) if the put right is exercised
with proper notice as of any other date, the Fair Market Value on
the last day of the fiscal quarter during which Management Employee
provided notice of the exercise of his put right. The foregoing put
right may be exercised by Management Employee not more
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than two times per calendar year and is intended, notwithstanding
the language of Section 5.1 of the Stock Option Agreement, dated
December 26, 2001, between TravelCenters of America, Inc. and
Management Employee, to be in lieu of and to supersede the Company's
obligation to repurchase options contained in such Section 5.1. The
foregoing provisions of this Section 4.2 to the contrary
notwithstanding, if there is a Change of Control which involves the
sale by stockholders of the Company other than Management Employee
of shares of TravelCenters Common Stock (or the receipt of cash or
other property in connection with Change of Control in respect of
such shares of TravelCenters Common Stock), the Company shall be
required upon the consummation of the transaction which gives rise
to the Change of Control to purchase (or cause the purchase of) all
remaining shares of TravelCenters Common Stock and TravelCenters
equity interests held by Management Employee, at a price per share
equal to the price per share paid to such stockholders pursuant to
the Change of Control, minus any exercise price, as the case may
be."
3. Section 4.3 of the Management Equity Rollover Agreement shall be
deleted in its entirety, and the following shall be inserted therefor:
"4.3 Closing of Purchase. The closing of any purchase pursuant to
Section 4.1 or 4.2 shall take place at the principal office of the
Company at a mutually scheduled day and time not later than the 60th
day following (a) the later of (i) the date as of which the Fair
Market Value with respect to such purchase is determined or (ii) the
date as of which the put right or call right is exercised, or (b)
the date of the Change of Control, as the case may be."
4. Section 4.6(a) of the Management Equity Rollover Agreement shall
be deleted in its entirety, and the following substituted therefor:
"(a) At any time the Company elects or is required to purchase any
shares pursuant to this Section 4, the Company shall pay the
purchase price for such shares it purchases first, by set-off of any
of the Management Employee's Note (including accrued and unpaid
interest thereon) and then, by the Company's delivery of a bank
cashier's check or certified check for the remainder of such
purchase price, if any; provided that in lieu of paying cash, the
Company may pay the purchase price for any purchases of shares
pursuant to Section 4.4 (other than a purchase in connection with a
Scheduled Retirement, Termination without Cause or due to a
Resignation with Good Reason and except as provided in Section 4.5
above) by delivery of a promissory note substantially in the form of
Exhibit B hereto issued by the Company to the Management Employee
with an aggregate principal amount equal to the purchase price,
bearing interest at the Prime Rate per annum, payable annually in
arrears on the outstanding principal amount of such note and
accruing on a daily basis from the date payment is otherwise
required pursuant to this Section 4, and with principal payments to
Management Employee in four equal annual installments commencing on
the first anniversary of the date of such note."
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5. Section 4.7(a) of the Management Equity Rollover Agreement shall
be deleted in its entirety, and the following substituted therefor:
"(a) For purposes of this Section 4, the terms `Cause,' `Change of
Control,' `Disability,' `Good Reason' and `Scheduled Retirement'
have the meanings given to such terms in the Stock Option Agreement
between Management Employee and TravelCenters, dated the Closing
Date, as it may be amended from time to time, entered into pursuant
to the TravelCenters of America, Inc. 2001 Stock Option Plan; in
addition, the following terms shall have the following meanings:"
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IN WITNESS WHEREOF, the parties have executed this Amendment No. 1
to Management Equity Rollover Agreement as of the date first above written.
TRAVELCENTERS OF AMERICA, INC.
("Holdings")
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
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Title: President and Chief Operating Officer
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TA OPERATING CORPORATION
("Company")
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: Executive VP and Chief Financial Officer
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Xxxxx X. Xxxxxx
("Employee")
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