Exhibit 10.22
AMENDMENT TO EMPLOYMENT AGREEMENT
This Amendment to the Employment Agreement by and between Lodgian, Inc.
(the "Company") and W. Xxxxxx Xxxxxxxxxx ("Employee")(collectively the
"Parties"), is entered into and effective as of the 3rdth day of August, 2005
(the "Effective Date").
WHEREAS, the Employee is currently employed by the Company pursuant to an
Employment Agreement between the Company and the Employee dated December 18,
2003 (the "Employment Agreement");
WHEREAS, the Company and the Employee have agreed to modify certain terms
and conditions of Employee's employment as set forth in the Employment
Agreement;
WHEREAS, the Company and the Employee desire to modify the Employment
Agreement, which modification shall be contemporaneous with the effectiveness of
this Amendment to the Employment Agreement (the "Amendment");
WHEREAS, except as otherwise amended in this Amendment, the Employment
Agreement shall remain in full force and effect;
WHEREAS, the Company has agreed to enter into the Separation and Release
Agreement attached to this Amendment as Exhibit A (the "Separation Agreement")
in exchange for this Amendment, and Employee has relied upon Company's promise
to enter into such agreement as a condition precedent to this Amendment; and
WHEREAS, on December 31, 2005, Employee acknowledges and agrees that
Employee will execute and not revoke the Separation Agreement.
NOW, THEREFORE, the Parties agree:
1. Amendments. The Parties agree to the following amendments of the
Employment Agreement:
(a) The first sentence in Section 1 of the Employment Agreement
shall be amended and restated to read as follows:
TERM OF EMPLOYMENT. My employment under this Agreement shall
commence on July 1, 2003 and shall end on December 31, 2005
(Expiration Date), or such earlier date on which my employment
is terminated under Section 5 of this Agreement ("Employment
Term").
(b) The first sentence in Section 2 of the Employment Agreement
shall be amended and restated to read as follows:
NATURE OF DUTIES. I shall be the Company's Chief Executive
Officer reporting solely to the Board of Directors (Board).
Except as noted herein, I shall work exclusively for the
Company and shall have all of the customary powers and duties
associated with the position of Chief Executive Officer.
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(c) New Section 19 shall be added to the Employment Agreement and
it shall read as follows:
EARLY TERMINATION OF POSITION/TITLE/DUTIES. Notwithstanding
anything to the contrary contained in this Agreement, the
Company may ask me, at any time and for any reason, (i) not to
report to work, (ii) not to perform any duties under Section
2, (iii) to resign as Chief Executive Officer of the Company,
and/or (iv) to resign as a member of the Board of Directors.
If the Company implements (i), (ii), and/or (iii) in the
preceding sentence, the Company shall continue to pay my Base
Salary through the Expiration Date. Further, if the Company
implements (iii) or (iv) above, I shall immediately sign a
letter indicating that I have resigned as Chief Executive
Officer of the Company or as a member of the Board of
Directors of the Company, as the case may be.
2. Entire Agreement. This Amendment, including Exhibit A which is
incorporated by reference, constitutes the entire agreement between the Parties
concerning the subject matter of this Amendment. This Amendment supersedes any
prior communications, agreements or understandings, whether oral or written,
between the Parties concerning the matters set forth in this Amendment. Other
than the terms of this Amendment, no other representation, promise or agreement
has been made with Employee to cause Employee to sign this Amendment.
IN WITNESS WHEREOF, the Parties hereto have executed this Amendment as of
the Effective Date.
LODGIAN, INC.:
By: s/ Xxxxxx X. Xxxxx
--------------------------------------------
Printed Name: Xxxxxx X. Xxxxx
Title: Senior VP, General Counsel & Secretary
Date: August 3, 0000
X. XXXXXX XXXXXXXXXX:
s. W. Xxxxxx Xxxxxxxxxx
Date: August 3, 2005
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EXHIBIT A
[EXHIBIT A LOCATED ON NEXT PAGE]
SEPARATION AND RELEASE AGREEMENT
December 31, 2005
W. Xxxxxx Xxxxxxxxxx
Re: Your resignation from Lodgian, Inc.
Dear Xxxxxx:
This letter will confirm that you and Lodgian, Inc. (the "Company")1 have agreed
to the separation of your employment effective December 31, 2005 (the
"Separation Date"). This separation and release agreement (the "Separation
Agreement") sets forth the terms under which your employment with the Company is
ending. In addition, except as set forth below, this Separation Agreement
effectively terminates (i) the Employment Agreement between you and the Company
dated December 18, 2003 (the "Employment Agreement"), and (ii) any amendments to
the Employment Agreement, including, but not limited to, the Amendment to the
Employment Agreement dated August 3, 2005 (the "Amendment"). We desire to
resolve any and all issues relating to your employment and the conclusion of
your employment with the Company amicably and on mutually satisfactory terms.
Specifically, you ("You" or "Your") and the Company (collectively, the
"Parties") agree:
A. SEPARATION TERMS
1. Separation Benefits. Provided that You satisfy the conditions of this
Separation Agreement and do not revoke this Separation Agreement, the Company
will:
(a) Payment of COBRA Premiums. Pay Your COBRA premium under the
Company's major medical group health plan on a monthly basis through
July, 2006;
(b) Accelerated Option Vesting. Accelerate and immediately vest all of
Your unvested options to acquire shares of the Company's common
stock (the "Options"). As a result, You will be vested in a total of
33,333 shares as of the Separation Date. Your right to exercise the
Options shall terminate thirty (30) days following the Separation
Date. Except as provided in this provision, the Options will
continue to be governed by the Amended and Restated 2002 Stock
Incentive Plan of Lodgian, Inc.; and
(c) Restricted Stock Units. Accelerate and immediately vest all of Your
restricted stock units (the "Units"). As a result, You will be
vested in a total of 22,222 Units, which will immediately be
convertible into an equal number of shares of common stock, as of
the Separation Date. The Units will continue to be governed by the
Amended and Restated 2002 Stock Incentive Plan of Lodgian, Inc.
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(1) The term "Company" includes the company's parents, subsidiaries, affiliates
and all related companies, as well as their respective officers, directors,
shareholders, employees, agents and any other representatives, any employee
benefits plan of the Company, and any fiduciary of those plans.
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The separation benefits stated above will be subject to applicable withholdings,
including taxes and Social Security. Because You are no longer employed, Your
rights to any particular employee benefit will be governed by applicable law and
the terms and provisions of the Company's various employee benefit plans and
arrangements. You acknowledge that Your Separation Date will be the date used in
determining benefits under all Company employee benefit plans. The Company's
obligations listed in sub-sections A(1)(a) - A(1)(c) above shall terminate
immediately upon any breach by You of the Release Agreement and/or the
Separation Agreement.
2. Release. In exchange for the separation benefits stated above, You release
and discharge the Company from any claim or liability, whether known or unknown,
arising out of any event, act or omission occurring on or before the day You
sign this Separation Agreement, including, but not limited to, claims arising
out of Your employment or the cessation of Your employment, claims arising out
of the Employment Agreement, claims arising out of any amendment to the
Employment Agreement, claims arising out of the Amendment, claims arising by
virtue of Your status as an officer or director of the Company, claims for
breach of contract, tort, employment discrimination, retaliation, or harassment,
as well as any other statutory or common law claims, at law or in equity,
recognized under any federal, state, or local law. You also release any claims
for unpaid back pay, sick pay, vacation pay, expenses, bonuses, claims to stock
options, claims to the vesting of stock options, claims to restricted stock
units, claims to the vesting of restricted stock units, commissions, attorneys'
fees, or any other compensation.
You acknowledge and agree that You are not entitled to any additional payment or
benefits from the Company, except as set forth in this Separation Agreement. You
further acknowledge and agree that You have suffered no harassment, retaliation,
employment discrimination, or work-related injury or illness.
Notwithstanding anything to the contrary in this Section A(2), the Parties
acknowledge and agree that (a) this Separation Agreement does not waive Your
right to (i) claim or receive indemnification as an officer or director of the
Company under any applicable state laws, the Company's Articles of
Incorporation, or the Company's By-laws, or (ii) claim or receive insurance
coverage or be defended under any officers or directors insurance coverage which
applies to officers and/or directors of the Company and which applies to You in
Your capacity as a former President, Chief Executive Officer, and director of
the Company; and (b) You do not waive any claims arising under this Separation
Agreement.
3. ADEA/OWBPA Waiver. By agreeing to this provision, You release and waive any
right or claim against the Company arising out of Your employment or the
termination of Your employment with the Company under the Age Discrimination in
Employment Act, as amended, 29 U.S.C. Section 621 et seq. ("ADEA"), the Older
Workers Benefit Protection Act, 29 U.S.C. Section 621 et seq. ("OWBPA"), or the
Georgia Prohibition of Age Discrimination in Employment, O.C.G.A. Section
34-1-2, (the "Waiver"). You understand and agree that:
(a) this Separation Agreement is written in a manner that You
understand;
(b) You do not release or waive rights or claims that may arise after
You sign this Separation Agreement;
(c) You waive rights and claims You may have had under the ADEA and the
OWBPA, but only in exchange for payments and/or benefits in addition
to anything of value to which You are already entitled;
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(d) You have been advised to consult with an attorney before signing
this Separation Agreement;
(e) You have 21 days (the "Second Offer Period") from receipt of this
Separation Agreement to consider whether to sign it. If You sign
before the end of the Second Offer Period, You acknowledge that Your
decision to do so was knowing, voluntary, and not induced by fraud,
misrepresentation, or a threat to withdraw, alter, or provide
different terms prior to the expiration of the Second Offer Period.
You agree that changes or revisions to this Separation Agreement,
whether material or immaterial, do not restart the running of the
Second Offer Period;
(f) You have 7 days after signing this Separation Agreement to revoke
this Separation Agreement (the "Revocation Period"). If You revoke,
the Separation Agreement shall not be effective or enforceable and
You shall not be entitled to the separation benefits stated above.
To be effective, the revocation must be in writing and received by
the Senior Vice President, General Counsel & Secretary, Xxxxxx
Xxxxx, at Lodgian, Inc., 0000 Xxxxxxxxx Xx., Xxxxx 000, Xxxxxxx,
Xxxxxxx 00000, or his successor, within the Revocation Period; and
(g) this Waiver will not become effective or enforceable until the
Revocation Period has expired.
B. YOUR ONGOING OBLIGATIONS
1. Resignation as Officer/Director. You will, at the same time You execute this
Separation Agreement, resign from every officer position You hold with the
Company or with the Company's subsidiaries on the Separation Date, if any, by
executing a resignation letter to be prepared by the Company.
C. GENERAL PROVISIONS
1. No Admission of Liability. This Separation Agreement is not an admission of
liability by the Company. The Company denies any liability whatsoever. The
Company enters into this Separation Agreement to reach a mutual agreement
concerning Your separation from the Company.
2. Attorneys' Fees. In the event of litigation relating to this Separation
Agreement, the prevailing party shall be entitled to recover attorneys' fees and
costs of litigation, in addition to all other remedies available at law or in
equity.
3. Waiver. The Company's failure to enforce any provision of this Separation
Agreement shall not act as a waiver of that or any other provision. The
Company's waiver of any breach of this Separation Agreement shall not act as a
waiver of any other breach.
4. Severability. The provisions of this Separation Agreement are severable. If
any provision is determined to be invalid, illegal, or unenforceable, in whole
or in part, the remaining provisions and any partially enforceable provisions
shall remain in full force and effect.
5. Governing Law. The laws of the State of Georgia shall govern this Separation
Agreement. If Georgia's conflict of law rules would apply another state's laws,
the Parties agree that Georgia law shall still govern.
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6. Entire Agreement. This Separation Agreement constitutes the entire agreement
between the Parties; provided, however, that Sections 6(a), 6(b), 6(d), 6(e) and
6(f) of the Employment Agreement are incorporated by reference, shall remain in
full force and effect, and shall survive (i) the termination of the Employment
Agreement and any amendments to the Employment Agreement, including, but not
limited to, the Amendment, and (ii) the cessation of Your employment. Section 6
(c) of the Employment Agreement will have no further force or effect upon
execution of this Separation Agreement. This Separation Agreement supersedes any
prior communications, agreements or understandings, whether oral or written,
between the Parties arising out of or relating to Your employment and the
termination of that employment; provided, however, that the Parties acknowledge
and agree that this Separation Agreement does not supersede Your
post-termination obligations contained in Sections 6(a), 6(b), 6(d), 6(e) and
6(f) of the Employment Agreement. Other than this Separation Agreement, no other
representation, promise or agreement has been made with You to cause You to sign
this Separation Agreement.
7. Amendments. This Separation Agreement may not be amended or modified except
in writing signed by both Parties.
8. Consent to Jurisdiction. You agree that any claim arising out of or relating
to this Separation Agreement shall be brought in a state or federal court of
competent jurisdiction in Georgia. You consent to the personal jurisdiction of
the state and/or federal courts located in Georgia. You waive (i) any objection
to jurisdiction or venue, or (ii) any defense claiming lack of jurisdiction or
improper venue, in any action brought in such courts.
9. Successors and Assigns. This Separation Agreement shall be assignable to, and
shall inure to the benefit of, the Company's successors and assigns, including,
without limitation, successors through merger, name change, consolidation, or
sale of a majority of the Company's stock or assets, and shall be binding upon
You and Your heirs and assigns.
10. Voluntary Agreement. You acknowledge the validity of this Separation
Agreement and represent that You have the legal capacity to enter into this
Separation Agreement. You acknowledge that You have carefully read this
Separation Agreement, know and understand the terms and conditions, including
its final and binding effect, and sign it voluntarily.
If the terms set forth in this Separation Agreement are acceptable, please sign
below and return the signed original to me on or before January 7, 2006. If the
Company does not receive a signed original on or before the above-stated date,
then this offer shall be revoked and You shall not be entitled to the separation
benefits stated above.
Sincerely,
Xxxxxx Xxxxx
Senior Vice President, General
Counsel & Secretary
I acknowledge the validity of this Separation Agreement and represent that I
have the legal capacity to enter into this Separation Agreement. I have
carefully read the Separation
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Agreement, know and understand the terms and conditions, including its final and
binding effect, and sign it voluntarily.
_________________________________ _________________________________
W. Xxxxxx Xxxxxxxxxx Date
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