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Exhibit 10.6
FIRST AMENDMENT TO
AMENDED AND RESTATED
STOCK OPTION AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED STOCK OPTION
AGREEMENT (sometimes herein this "Amendment") is made and entered into as of
the 10th day of October, 1996, by and between XXXX XXXXX (hereinafter referred
to as "Xxxxx") and XXXXXXX X. XXXXXXX (hereinafter referred to as "Xxxxxxx").
W I T N E S S E T H:
WHEREAS, ShoLodge, Inc., (formerly Gulf Coast Development,
Inc.) (herein "ShoLodge") and Xxxxxxx entered into that certain Employment
Contract (the "Employment Contract") dated June 15, 1987, but effective as of
April 1, 1984; and
WHEREAS, pursuant to paragraph 7 of the Employment Contract,
ShoLodge granted Xxxxxxx the right and option to purchase an aggregate of three
hundred thirty-three (333) shares of the authorized, no par value, common stock
of ShoLodge; and
WHEREAS, by Agreement (the "Prior Agreement") dated June 15,
1987, but effective as of April 1, 1984, between Xxxxx and Xxxxxxx, Xxxxxxx
agreed that prior to exercising any option to acquire shares of ShoLodge
pursuant to paragraph 7 of the Employment Contract, he would first offer to
acquire such shares from Xxxxx on the same terms and conditions, with a
resulting reduction in option shares so that Xxxxxxx'x option would be for a
total of only twenty-five percent (25%) of the shares of common stock of
ShoLodge outstanding on June 15, 1987 (adjusted for stock splits and stock
dividends); and
WHEREAS, Xxxxxxx and ShoLodge entered into that certain First
Amendment to Employment Contract dated December 11, 1991 whereby they
eliminated the option of Xxxxxxx to acquire shares of ShoLodge's common stock
from ShoLodge; and
WHEREAS, Xxxxxxx and Xxxxx entered into that certain Stock
Option Agreement (the "Stock Option Agreement") dated December 11, 1991, but
effective as of April 1, 1984, whereby Xxxxx granted to Xxxxxxx an option to
acquire five hundred seventy-five thousand (575,000) shares of ShoLodge's
common stock from Xxxxx; and
WHEREAS, on February 21, 1992, Xxxxxxx acquired twelve
thousand two hundred twenty-four (12,224) shares of ShoLodge's common stock as
a result of the exercise by Xxxxxxx of his option under the Stock Option
Agreement, resulting in a total of five hundred sixty-two thousand seven
hundred seventy-six (562,776) shares of ShoLodge common stock remaining
available under the option; and
WHEREAS, Xxxxx and Xxxxxxx entered into that certain Amended
and Restated Stock Option Agreement dated March 9, 1992, but effective as of
April 1, 1984 (the "Amended Agreement"), which Amended Agreement amended and
restated the Stock Option Agreement; and
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WHEREAS, on April 28, 1993, Xxxxxxx acquired one hundred
forty thousand seven hundred sixty-five (140,765) shares of ShoLodge's common
stock as a result of the exercise by Xxxxxxx of his option under the Amended
Agreement, resulting in a total of four hundred twenty-two thousand eleven
(422,011) shares of ShoLodge common stock remaining available under the option;
and
WHEREAS, effective May 14, 1993, ShoLodge effected a stock
split in the form of a dividend to holders of its common stock whereby
one-quarter (1/4) share of common stock was issued for each share held of
record at the close of business on April 30, 1993, resulting in five hundred
twenty-seven thousand five hundred fourteen (527,514) shares of ShoLodge common
stock remaining available under the option; and
WHEREAS, effective March 28, 1994, ShoLodge effected a stock
split in the form of a dividend to holders of its common stock whereby
one-third (1/3) share of common stock was issued for each share held of record
at the close of business on March 14, 1994, resulting in seven hundred three
thousand three hundred fifty-two (703,352) shares of ShoLodge common stock
remaining available under the option; and
WHEREAS, Xxxxxxx and Xxxxx desire to amend the Amended
Agreement to reflect the stock acquisitions and stock splits as set forth above
and in certain other respects as set forth below.
NOW, THEREFORE, for and in consideration of the mutual
promises and covenants herein contained, the parties do hereby agree as
follows:
1. The Amended Agreement is hereby amended by deleting
subparagraph 1(a) thereof in its entirety and substituting in lieu thereof the
following:
(a) Grant of Option. Xxxxx hereby grants to Xxxxxxx
the right and option to purchase from Xxxxx, on the terms and
conditions following, all or any part of an aggregate of
seven hundred three thousand three hundred fifty-two
(703,352) shares of the authorized no par value common shares
of ShoLodge. The purchase price shall be determined as
follows:
Purchase Date Price
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If the purchase date occurs $4.72/share
after June 30, 1996, but
on or before September 30, 1996
If the purchase date occurs $4.82/share
after September 30, 1996, but
on or before December 31, 1996
If the purchase date occurs $4.92/share
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after December 31, 1996, but on
or before March 31, 1997
If the purchase date occurs $5.02/share
after March 31, 1997, but on
or before June 30, 1997
If the purchase date occurs $5.12/share
after June 30, 1997, but on
or before September 30, 1997
If the purchase date occurs $5.23/share
after September 30, 1997, but
on or before December 11, 1997
Xxxxxxx shall be entitled to elect to exercise the
option, in whole or in part, at any time prior to December
11, 1997. However, if Xxxxxxx does not purchase the full
number of shares to which he is entitled, he shall be
permitted those remaining shares through and including
December 11, 1997. No partial exercise of such option may be
for less than twenty-five (25) full shares, without Xxxxx'x
written consent, and in no event shall Xxxxx be required to
transfer fractional shares to Xxxxxxx, without Xxxxx'x
written approval.
2. The Amended Agreement is hereby amended by changing the
date "December 11, 1996" in the first and third sentences of subparagraph 1(c)
thereof to "December 11, 1997".
3. The Amended Agreement is hereby amended by deleting
subparagraph 1(j)(iii) thereof in its entirety and substituting in lieu thereof
the following:
(iii) Notice. Each stock certificate issued to
Xxxxxxx as a result of the exercise of the option set forth
herein shall be endorsed with the following legend:
Notice is hereby given that the sale, assignment,
transfer, pledge or other disposition of shares of capital
stock represented by this Certificate is subject to a right
of first refusal to Xxxx Xxxxx pursuant to the terms of that
certain Amended and Restated Stock Option Agreement dated
March 9, 1992, but effective as of April 1, 1984, as amended
by that certain First Amendment to Amended and Restated Stock
Option Agreement dated as of October 10, 1996, both by and
between Xxxx Xxxxx and Xxxxxxx X. Xxxxxxx.
4. Except as hereby modified and amended, the Amended
Agreement shall in all other respects remain in full force and effect.
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IN WITNESS WHEREOF, the parties have executed this First
Amendment to Amended and Restated Stock Option Agreement on the day and year
first above written.
/s/ Xxxx Xxxxx
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XXXX XXXXX
/s/ Xxxxxxx X. Xxxxxxx
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XXXXXXX X. XXXXXXX
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