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EXHIBIT 10.16
EXECUTION COPY
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of January 1, 2006, by and among
TA
Operating Corporation, a Delaware corporation (the "Company"),
TravelCenters
of America, Inc., a Delaware corporation ("Holdings") and Steven C.
Lee (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, 2006
(the
"Effective Date") and end on December 31, 2007 (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
December 31, 2006
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 second anniversary of the date on which such Change
of Control
occurs. The Employee
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acknowledges that neither the Company nor Holdings shall have any
obligation
to extend the Term beyond the Initial Term 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 or transferred to one or
more
corporations or persons, and as a result of such sale or
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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 2005, 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 Senior 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 President and Chief Executive 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"), and all subsidiaries and
affiliates of
the Company, Holdings, TAFSI, and Licensing.
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 Two Hundred Eight
Thousand Dollars
($210,000) per annum (the "Base Salary"), which
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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, 2006, 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
sixty-five percent (65%) of the Base Salary in effect as of the
first day of
the Fiscal Year (sixty-five percent (65%) 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 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
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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) a
company-owned
automobile of a make and model approved by the Compensation
Committee as
appropriate for an officer of the position of the Employee;
(ii)
company-owned club membership (or to the extent the club does not
permit
company membership, reimbursement for individual membership) for
fees, dues
and fixed expenses only, paid by the Company and/or the Employee,
which shall
not exceed Ten Thousand
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Dollars ($10,000.00) per year; and (iii) paid vacation days in
accordance
with standard Company policy for similarly situated officers.
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 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
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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.
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
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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 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
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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
re
