Exhibit 10.16
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of January 1, 2002, by and among TA
Operating Corporation, a Delaware corporation (the "Company"), TravelCenters of
America, Inc., a Delaware corporation ("Holdings") and ▇▇▇▇▇▇ ▇. ▇▇▇ (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, 2002 (the "Effective Date") and end on
December 31, 2002 (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 the date hereof 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 first 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
(provided, however, that the failure of the Company and the Employee to give
written notice on or before the date hereof of its or his intent not to renew
this Agreement at the end of its Initial Term means that the Term will be
extended until at least December 31, 2003) 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
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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 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 2001, 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 Vice President and General Counsel 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 Senior Vice
President and Chief Financial 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"), TravelCenters Realty, Inc., a Delaware corporation ("TC Realty"),
TravelCenters Properties, L.P, a Delaware limited partnership ("TC Properties")
and all subsidiaries and affiliates of the Company, Holdings, TAFSI, Licensing,
TC Realty and TC Properties.
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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 One Hundred Seventy-Five Thousand Dollars ($175,000) per
annum (the "Base Salary"), which 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,
2002, 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 fifty percent (50%) of the Base
Salary in effect as of the first day of the Fiscal Year (fifty percent (50%) 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
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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 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) paid vacation days in accordance with
standard
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Company policy for similarly situated officers; and (ii) participation
in a nonqualified unfunded elective salary deferral plan adopted or to be
adopted by the Compensation Committee having such terms as the Compensation
Committee determines in its sole discretion are appropriate for the purpose of
providing certain benefits in excess of the benefits otherwise available under
the Company's employee benefit plan established pursuant to Code sections 401(a)
and 401(k) of the Internal Revenue Code of 1986, as amended (the "Code"), which
nonqualified plan provides or is expected to provide tax-deferred savings
opportunities through elective salary deferrals in excess of certain of the
limits set forth in Subchapter D of Chapter I of Subtitle A of the Code.
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
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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 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.
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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 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
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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 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:
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(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 hundred sixty-five (365), which
amount shall be payable on the same date that active officers are paid
similar Annual Bonuses;
(ii) during the twelve (12) 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 one hundred percent (100%) of the
greater of the Employee's Target Bonus as set forth in Section 3.2
hereof for the Fiscal Year ended December 31, 2002 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 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); provided that the
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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) twelve (12) 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, ▇▇▇▇ Bros., Giant, All American, Rip
Griffin, Bosselman's, ▇▇▇▇▇ 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 Company's
Affiliates. The Employee agrees that all confidential information of the Company
or any of the
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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:
TravelCenters of America, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Chief Executive Officer
Telecopy No: (▇▇▇) ▇▇▇-▇▇▇▇
and a copy to:
▇▇▇▇▇▇, Halter & ▇▇▇▇▇▇▇▇ LLP
1400 ▇▇▇▇▇▇▇▇ Investment Center
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇
20
and, if prior to a Change of Control,
a copy to:
Oak Hill Capital Management, Inc.
Park Avenue Tower
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇.▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
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.
▇▇▇▇▇▇ ▇. ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
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
21
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/ ▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇
Chairman, President and CEO
TA OPERATING CORPORATION
("Company")
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇
Chairman, President and CEO
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇
-----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇ ("Employee")