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Exhibit B
EXECUTION COPY
VOTING AGREEMENT
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This VOTING AGREEMENT (this "Agreement"), dated as of the 26th
day of February, 1999, is entered into by and among TravelCenters of America,
Inc., a Delaware corporation ("TA"), TP Acquisition, Inc., a New York
corporation and wholly-owned subsidiary of TA ("Acquisition") and E. Xxxxxx
Xxxxxxxx ("Xxxxxxxx") and Xxxx X. Xxxxxxx ("Xxxxxxx") (each referred to
individually as a "Shareholder" and collectively as the "Shareholders") in their
individual capacity as shareholders of Travel Ports of America, Inc., a New York
corporation ("TP").
WHEREAS, concurrently herewith, TA, Acquisition and TP are
entering into an Agreement and Plan of Merger (the "Merger Agreement").
(Capitalized terms used without definition herein having the meanings ascribed
thereto in the Merger Agreement);
WHEREAS, concurrently herewith, TA and Xxxxxxxx are entering
into a Share Exchange Agreement, dated the date hereof (the "Share Exchange
Agreement");
WHEREAS, prior to the execution thereof, the Board of
Directors of TP has approved and authorized the TP's execution, delivery and
performance of the Merger Agreement, as well as the transactions contemplated by
this Agreement, and the Share Exchange Agreement;
WHEREAS, each Shareholder is the record and Beneficial Owner
(as defined in Section 2(f) hereof) of that number of shares of TP common stock
(the "Shares") set forth on SCHEDULE A hereto;
WHEREAS, in addition to the Shares set forth on Schedule A,
each Shareholder Beneficially Owns (as defined in Section 2(f) hereof) that
number of shares of TP common stock subject to the proper exercise of options or
the conversion of warrants, bonds, debentures, promissory notes, etc.
(collectively, the "Convertible Securities"), all as more fully set forth on
SCHEDULE B hereto;
WHEREAS, approval of the Merger Agreement by TP's shareholders
at a specially convened shareholders' meeting (the "TP Special Meeting") is a
condition to the consummation of the Merger;
WHEREAS, as a condition to its entering into the Merger
Agreement, TA has required that Shareholders agree, and Shareholders have
agreed, to enter into this Voting Agreement; and
WHEREAS, Shareholders have been informed that the Board of
Directors of TP has authorized, approved and adopted the Merger Agreement.
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NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements set forth herein, the parties hereto severally
agree as follows:
Section 1. Agreement to Vote, Restrictions on Dispositions, Etc.
(a) Each Shareholder hereby agrees to attend the TP Special
Meeting, in person or by proxy, and to vote (or cause to be
voted) all Shares, and any other voting securities of TP
owned by such Shareholder whether issued heretofore or
hereafter (including any shares of TP common stock issued in
connection with the exercise or conversion of a Convertible
Security), that such person owns or has the right to vote,
for approval and adoption of the Merger Agreement (as
amended from time to time) and the Plan of Merger, and the
transactions contemplated by the Merger Agreement, such
agreement to vote to apply also to any adjournment of the TP
Special Meeting. Each Shareholder agrees not to grant any
proxies or enter into any voting agreement or arrangement
inconsistent with this Agreement.
(b) Each Shareholder hereby agrees that, except in accordance
with the terms of the Merger Agreement, such Shareholder
shall not, directly or indirectly, sell, offer to sell,
grant any option for the sale of, or otherwise transfer or
dispose of, or enter into any agreement to sell, the Shares,
the Convertible Securities or any other voting securities of
TP that such Shareholder Beneficially Owns or otherwise
owns; except that (i) Xxxxxxxx shall be permitted to sell
shares of TP common stock to TA pursuant to the Share
Exchange Agreement and (ii) each Shareholder may, transfer
up to 250,000 Shares to any transferee that agrees in
writing in a form reasonably acceptable to TA, to be bound
by the provisions of this Agreement applicable to such
Shareholder and no such transferee shall be permitted to
make any transfer or assignment other than in accordance
with the terms of this Agreement.
(c) To the extent TP solicits a vote of shareholders or the same
is required under New York law, each Shareholder agrees to
vote (or cause to be voted) the Shares, all TP shares issued
in connection with the exercise or conversion of the
Convertible Securities and any other voting securities of
TP, owned by such Shareholder whether issued heretofore or
hereafter, that such person owns or has the right to vote,
(i) against any recapitalization, merger, consolidation,
sale of assets or other business combination or similar
transaction involving TP or any of its Subsidiaries,
securities or assets which is not endorsed in writing by TA
and (ii) against any other action or agreement that would
result in a breach of any covenant, representation or
warranty or any other obligation or agreement of TP under
the Merger Agreement or which
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could result in any of the conditions to TP's obligations
under the Merger Agreement not being fulfilled.
(d) Each Shareholder agrees not to directly or indirectly (i)
solicit, initiate, encourage, facilitate or cooperate with
(including through the furnishing of any information) any
inquiry or the making of any proposal which constitutes, or
may be reasonably expected to result in, any Transaction
Proposal (as defined in the Merger Agreement); (ii) propose,
enter into or participate in any discussions or negotiations
with any Person regarding a Transaction Proposal; or (iii)
agree to or endorse any Transaction Proposal; PROVIDED,
HOWEVER, that the foregoing shall not prohibit the
Shareholders from (A) furnishing information to a
third party who has made a Superior Transaction Proposal (as
defined in the Merger Agreement), subject to the prior
receipt of a binding confidentiality agreement containing
terms and conditions no less restrictive than those set
forth in the Confidentiality Agreement dated October 00,
0000 xxxxxxx XX xxx XX, (X) thereafter engaging in
discussions or negotiations with a third party who has made
a Superior Transaction Proposal, or (C) following TP's
receipt of a Superior Transaction Proposal and subject to
Section 6.5(c) of the Merger Agreement, taking and
disclosing to other shareholders of TP a position with
respect thereto, or taking any other legally required action
with respect thereto (including without limitation the
filing of any documents with the SEC), but in each case
referred to in the foregoing clauses (A) through (C), only
after the Board of Directors of TP has concluded in good
faith, after consultation with TP's financial advisers and
based upon the advice of independent legal counsel (who may
be TP's regularly engaged legal counsel), that such action
is necessary in order for the Directors of TP to comply with
their fiduciary obligations to TP's shareholders under
applicable law.
(e) Each Shareholder agrees to promptly notify TA in writing of
the nature and amount of any acquisition by Shareholder
after the date hereof of any voting securities of TP,
including upon the exercise or conversion of any Convertible
Securities.
(f) In the event that TA and Acquisition elect to purchase
shares of TP pursuant to a cash tender offer (an "Offer"),
each Shareholder agrees to validly tender and not withdraw,
pursuant to and in accordance with the terms of the Offer,
not later than the fifteenth business day after the
commencement of the Offer and pursuant to Rule 14d-2 of the
Securities Exchange Act of 1934, as amended (the "Exchange
Act), the Shares set forth on SCHEDULE A as well as that
number of shares of TP common stock issued to such
Shareholder in connection with his exercise or
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conversion of the Convertible Securities (the "Shares"
described on SCHEDULE A and the shares issued in connection
with the exercise or conversion of the
Convertible Securities described on SCHEDULE B
are collectively referred to as the "TP Common Shares").
Each Shareholder further agrees to permit TA and Acquisition
to publish and disclose his identity and ownership of the TP
Common Shares, and the nature of their commitments,
arrangements and understandings under this Agreement as may
be required by the Exchange Act and/or the Securities and
Exchange Commission or useful in connection with the filings
thereunder. TA agrees that, in the event of the commencement
of an Offer, the same consideration per share shall be paid
to all shareholders of TP, whether pursuant to such Offer or
any subsequent merger (except to the extent provided in the
Share Exchange Agreement) and shall otherwise comply with
Section 1.1 of the Merger Agreement.
Section 2. Additional Representations and Warranties of Shareholders.
Each Shareholder represents and warrants to TA as follows:
(a) such Shareholder has all necessary power and authority to
execute and deliver this Voting Agreement, to perform its
obligations hereunder and to consummate the transactions
contemplated hereby;
(b) this Voting Agreement has been duly executed and delivered
by such Shareholder;
(c) this Agreement constitutes the valid and binding agreement
of such Shareholder enforceable against such Shareholder in
accordance with its terms;
(d) the Shares described on SCHEDULE A hereto are the only
voting securities of TP owned by such Shareholder and are
owned free and clear of all liens, charges, encumbrances,
restrictions and commitments of any kind except for the
Share Exchange Agreement (in the case of Xxxxxxxx). Upon any
exercise or conversion of the Convertible Securities, each
Shareholder will own his TP Common Shares free and clear of
all liens, charges, encumbrances, restrictions and
commitments of any kind except for the Share Exchange
Agreement (in the case of Xxxxxxxx);
(e) the Convertible Securities and the shares subject thereto
described on SCHEDULE B are the only derivative or
convertible securities, or rights to acquire securities, of
TP owned by such Shareholder and are owned free and clear of
all liens, charges, encumbrances, restrictions and
commitments of any kind (except pursuant to the terms of
such
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instruments);
(f) Each Shareholder acknowledges that he Beneficially Owns (as
hereinafter defined) his Shares and that upon exercise or
conversion of the Convertible Securities, he will
Beneficially Own the TP Common Shares. "Beneficially Owns"
or "Beneficial Owner" with respect to any securities shall
mean having beneficial ownership of such securities as
determined pursuant to Section 13d-3 under the Exchange Act,
including pursuant to any agreement, arrangement or
understanding, whether or not in writing.
(g) such Shareholder has not appointed or granted any
irrevocable proxy, which appointment or grant is still
effective, with respect to the Shares owned by such
Shareholder;
(h) such Shareholder is not a party to any other voting
agreement, shareholders' agreement or other agreement or
arrangement with respect to the Shares or the Convertible
Securities owned by such Shareholder that contains any
covenant or provisions inconsistent with the terms hereof;
and
(i) each Shareholder acknowledges, and TA agrees, that the
restrictions imposed upon such Shareholder in this Voting
Agreement are so imposed only in Shareholder's capacity as a
shareholder of TP.
Section 3. Further Assurances.
Each party shall execute and deliver such additional instruments
and other documents and shall take such further actions as reasonably
may be necessary or appropriate to effectuate, carry out and comply
with all of their obligations under this Voting Agreement. Without
limiting the generality of the foregoing, none of the parties hereto
shall enter into any agreement or arrangement (or alter, amend or
terminate any existing agreement or arrangement) if such action would
materially impair the ability of such party to effectuate, carry out
or comply with all the terms of this Voting Agreement.
Section 4. Covenants of Shareholders.
(a) Subject to the provisions of Section 5 below, each
Shareholder hereby agrees that, except as contemplated by this Voting
Agreement, the Share Exchange Agreement and the Merger Agreement, such
Shareholder shall not enter into any voting agreement or grant an
irrevocable proxy or power of attorney with respect to the TP Common
Shares which is inconsistent with this Voting Agreement.
(b) At the Closing, Xxxxxxx agrees to execute that certain
Consulting
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Agreement as referenced in Section 7.2(j) of the Merger Agreement.
Section 5. Effectiveness and Termination.
It is a condition precedent to the effectiveness of this Voting
Agreement that the Merger Agreement shall have been executed and
delivered. This Voting Agreement shall automatically terminate and be
of no further force or effect upon the termination of the Merger
Agreement by TA or by TP in accordance with all of the provisions of
the Merger Agreement, including, if applicable, any requirement of TP
to pay an Immediate Termination Fee to TA and/or Acquisition prior to
or simultaneous with such termination as contemplated by the Merger
Agreement. Upon any termination of this Voting Agreement, except for
any rights any party may have in respect of any breach by another
party of its obligations hereunder, no one of the parties hereto shall
have any further obligation or liability hereunder. The provisions of
this Voting Agreement also shall terminate and be of no further force
or effect from and after the Effective Date of the Merger.
Section 6. Consideration.
Each Shareholder hereby acknowledges and agrees that TA is
entering into the Merger Agreement in reliance upon the execution by
the Shareholders of the Voting Agreement and that TA's execution of
the Merger Agreement (and the making by TA to TP of the various
representations, warranties and agreements contained therein, all of
which have been relied upon by Shareholders in connection with their
execution of this Voting Agreement) constitutes adequate consideration
and value for each Shareholder's execution of this Voting Agreement
and compliance with its terms.
Section 7. Miscellaneous.
(a) 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 TA or Acquisition, to:
TravelCenters of America, Inc.
00000 Xxxxxx Xxxxx Xxxx
Xxxxx 000
Xxxxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxx
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with a copy to:
Xxxxxx, Halter & Xxxxxxxx LLP
1400 XxXxxxxx Investment Center
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
(ii) If to TP, 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, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
(b) Amendments, Waivers, Etc. This Voting Agreement may not be
amended, changed, supplemented, waived or otherwise modified
or terminated except by an instrument in writing signed by
TA and Shareholders.
(c) Successors and Assigns. Except as provided in Section 1(b),
neither this Voting Agreement nor any of the rights,
interests or obligations of the parties hereto shall be
assigned, in whole or in part, without prior written consent
of the other party, provided however, that TA or Acquisition
may, without the prior written consent of the Shareholders,
assign its rights under this Agreement to any (i) financial
institution that requires such assignment in connection with
such financial institution's agreement to provide financing
or (ii) affiliate of TA. Subject to the preceding sentence,
this Agreement shall be binding upon, inure to the benefit
of, and be enforceable by, the parties hereto and their
respective successors and assigns.
(d) Specific Performance. The parties acknowledge that money
damages are not an adequate remedy for violations of this
Voting Agreement and that any party may, in its sole
discretion, apply to a court of competent jurisdiction for
specific performance or injunction or such other relief as
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such court may deem just and proper in order to enforce this
Voting Agreement or prevent any violation hereof without any
requirement for the posting of any bond, and, to the extent
permitted by applicable law, each party waives any objection
to the imposition of such relief.
(e) Governing Law. THIS VOTING AGREEMENT AND ALL DISPUTES
HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
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IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the date first above written.
TRAVELCENTERS OF AMERICA, INC.
By: /s/ Xxxxx X. Xxxx
_______________________________
Xxxxx X. Xxxx, President and
Chief Executive Officer
TP ACQUISITION, INC.
By: /s/Xxxxx X. Xxxx
_______________________________
Xxxxx X. Xxxx, President and
Chief Executive Officer
Name and Signature
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/s/ E. Xxxxxx Xxxxxxxx
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E. Xxxxxx Xxxxxxxx
/s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
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SCHEDULE A
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TO THE VOTING AGREEMENT
Name Number of Shares
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E. Xxxxxx Xxxxxxxx 1,844,275
Xxxx X. Xxxxxxx 580,032
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SCHEDULE B
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TO THE VOTING AGREEMENT
Number of Shares Subject to
Options, Warrants, Bonds,
Name and Debentures
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E. Xxxxxx Xxxxxxxx 103,053
Xxxx X. Xxxxxxx 511,167
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