|
AMENDMENT NO. 1
TO
AGREEMENT AND PLAN OF MERGER
AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER, dated as of
January 30, 2007 (this " Amendment "), to the Agreement and
Plan of Merger, dated as of September 15, 2006 (the " Merger
Agreement "), by and among TravelCenters of America, Inc. (the
" Company "), Hospitality Properties Trust (" Parent
"), HPT TA Merger Sub Inc. (" Merger Sub ") and Oak Hill
Capital Partners, L.P. (collectively, the " Parties
"). Terms used herein but not defined shall have the meaning
assigned to them in the Merger Agreement.
WHEREAS, the Parties have heretofore executed and entered into
the Merger Agreement;
WHEREAS, Section 2.06(b) of the Merger Agreement provides that
the Company shall use commercially reasonable efforts to take such
actions and obtain such consents as are necessary under the Warrant
Agreement in order to provide that each Company Warrant that is
outstanding and unexercised at the Effective Time be cancelled as
of the Effective Time and, in exchange for such cancellation, the
holders of the Company Warrants receive right to payment from
Parent immediately following the Effective Time of an amount of
cash calculated in accordance with the formula provided therein (in
the aggregate, the " Payment ");
WHEREAS, the Company has taken such actions and obtained such
consents necessary to amend the Warrant Agreement and has entered
into that certain Second Amendment to Warrant Agreement, dated as
of January 10, 2007, among the Company and U.S. Bank National
Association (" US Bank "), as successor warrant agent to
State Street Bank and Trust Company (the " Second Amendment
");
WHEREAS, the Second Amendment provides that the Payment will be
made by the Company to US Bank, as Depository and Consent Agent
pursuant to that certain Depository and Consent Agent Agreement,
dated as of November 21, 2006, between the Company and US Bank, for
further payment to the holders of the Company Warrants;
WHEREAS, the Parties have agreed that Section 3.04(a) of the
Merger Agreement should be amended to provide that the Payment be
made to US Bank;
WHEREAS, the Parties have agreed that it will be more
practicable for payment of amounts to be paid to holders of Company
Stock Options pursuant to Section 2.06(a) (in the aggregate, the "
Option Payment ") to be made by the Surviving Corporation
rather than the Exchange Agent;
WHEREAS, the Parties have agreed that Section 3.04(a) of the
Merger Agreement should be amended to provide that the Option
Payment will be made by Parent to the Surviving Corporation for
further payment to the holders of Company Stock Options;
WHEREAS, the Parties have agreed that certain adjustments to the
Merger Consideration which were to be determined as of the close of
business on the day immediately
preceding the Closing Date shall instead be
determined at or after the close of business on the Closing Date
and that Parent will deposit with the Company, on the Closing Date,
certain amounts deducted in the determination of the Estimated
Merger Consideration;
WHEREAS, Section 6.07(c) of the Merger Agreement provides that
the Parent shall obtain "tail" or "runoff" insurance policies (the
" Insurance Policies ") in accordance with the terms and
conditions described therein;
WHEREAS, the Parties have agreed that the Company shall obtain
the Insurance Policies but that the cost incurred by the Company in
obtaining the Insurance Policies be treated as a Special Cost;
WHEREAS, Section 6.08 of the Merger Agreement provides that,
subject to the terms and conditions provided in the Merger
Agreement, the Parties shall use all reasonable efforts to take, or
cause to be taken, all actions necessary, proper or advisable to
consummate and make effective the Merger and the other transactions
contemplated by the Merger Agreement;
WHEREAS, Section 7.02(d) of the Merger Agreement provides that,
as a condition to Parent and Merger Sub’s obligation to
consummate the Merger, the Company shall have obtained the consents
and approvals listed in Schedule 4.06 of the Merger Agreement,
except for such consents and approvals the failure of which to
obtain would not, individually or in the aggregate, reasonably be
expected to have a Company Material Adverse Effect (provided that
the failure to obtain any consents or approvals due to the identity
of Parent or its Affiliates is not to be taken into account as to
whether or not the condition is satisfied);
WHEREAS, each of Parent and Merger Sub have agreed for the
benefit of the Company that the Company need not seek all of the
consents and approvals heretofore listed in Schedule 4.06 of the
Merger Agreement as a condition to consummation of the Merger;
WHEREAS, the board of directors of the Company desires to pay
certain additional fees to Oak Hill Capital Management, Inc. and
Olympus Growth Fund III, L.P. as Company Closing Costs and forgive
certain indebtedness of management stockholders in connection with
the Merger; and
WHEREAS, in order to effect the foregoing and to make certain
other clerical amendments as set forth below, the Parties desire to
amend the Merger Agreement in accordance with Section 9.09 of the
Merger Agreement as set forth below.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein set forth, and other good and
valuable consideration, the receipt and sufficiency of which hereby
are acknowledged, the parties hereby agree as follows:
1.
Amendment to Section 3.04(a) of the Merger Agreement.
The first sentence of Section 3.04(a) of the Merger Agreement is
hereby amended and restated as follows:
"Exchange Agent . Immediately following the
Effective Time (but in any event on the Closing Date), Parent shall
deposit (A) with an exchange agent selected by the Parent and
2
reasonably acceptable to the Company (the "
Exchange Agent "), for the benefit of the holders of Company
Common Stock, for exchange in accordance with this Agreement, an
amount equal to (i) the Estimated Merger Consideration
minus (ii) the Escrow Amount, minus (iii) the
product of (A) the Per Share Merger Consideration (calculated based
on the Estimated Merger Consideration) and (B) the total number of
Dissenting Shares, minus (iv) an amount equal to the Per
Share Merger Consideration (calculated based on the Estimated
Merger Consideration) multiplied by the total number of
shares of Company Common Stock for which all Company Warrants were
exercisable for immediately prior to the Effective Time and,
minus (v) an amount equal to the Per Share Merger
Consideration (calculated based on the Estimated Merger
Consideration) multiplied by the total number of shares of
Company Common Stock for which all Company Stock Options were
exercisable immediately prior to the Effective Time (the "
Exchange Fund ") (it being understood that any adjustment to
the Estimated Merger Consideration pursuant to Section 3.02 shall
be paid in accordance with such section), (B) with U.S. Bank
National Association ("U.S. Bank"), as Depository and Consent Agent
pursuant to that certain Depository and Consent Agent Agreement,
dated as of November 21, 2006, between the Company and U.S. Bank,
for further payment to the holders of the Company Warrants, for the
benefit of the holders of Company Warrants, for exchange in
accordance with this Agreement, an amount equal to the excess, if
any, of the Per Share Merger Consideration (calculated based on the
Estimated Merger Consideration) multiplied by the total
number of shares of Company Common Stock for which all Company
Warrants were exercisable imm
| 
