Exhibit 10.55
AMENDMENT TO EMPLOYMENT AGREEMENT
FIRST AMENDMENT TO EMPLOYMENT AGREEMENT (this "Amendment") dated as of
November __, 2002, by and between Lodgian, Inc., a Delaware corporation (the
"Company"), and David Hawthorne (the "Executive"). Capitalized terms used herein
but not otherwise defined herein shall have the meanings specified in the
Employment Agreement between the foregoing parties, dated November 1, 2001 (the
"Employment Agreement").
W I T N E S S E T H
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WHEREAS, the parties hereto entered into the Employment Agreement; and
WHEREAS, Section 13(c) of the Employment Agreement allows the parties
to amend or modify the Employment Agreement by a written agreement executed by
the parties thereto, and the parties hereto desire to amend the Employment
Agreement as set forth herein;
NOW, THEREFORE, IT IS AGREED:
1. Amendment.
(a) Section 5 of the Employment Agreement shall be supplemented by
inserting the following language at the end of such section:
"(d) Termination by the Executive. If the Executive and
the Company do not reach an agreement on (i) a new mutually
satisfactory employment agreement and (ii) a long term incentive
compensation agreement within six months from the effective date of the
First Amended Joint Plan of Reorganization of Lodgian Inc., et al.,
dated November 1, 2002, then the Executive may, at his discretion,
terminate his employment with the Company, and, in the event of such
termination, the Company shall, within thirty (30) days after such
termination, make a lump sum cash payment to the Executive in the
amount equal to the sum of:
(i) the greater of (x) two times the Base Salary
in effect on the date of such termination and (y) the Base
Salary in effect on the date of such termination multiplied by
the number of years remaining in the Employment Period (plus,
if the remaining Employment Period includes a period of less
than a full year, a pro rated amount of the Base Salary for
the number of full months remaining in the Employment Period);
(ii) the Executive's Base Salary payable through
the date of such termination to the extent not already paid;
(iii) the Executive's actual earned annual bonus
for any completed fiscal year or period not theretofore paid;
(iv) reimbursement for any expenses for which the
Executive shall not have theretofore been reimbursed, as
provided in Section 4; and
(v) the unpaid portion of any amounts earned by
the Executive prior to the date of such termination pursuant
to any benefit program in which the executive participated
during the Employment Period, including without limitation any
accrued vacation pay to the extent not theretofore paid."
(b) Section 6(b)(A) of the Employment Agreement is hereby amended
by deleting the current language and inserting the following in lieu thereof:
"the greater of (x) two times the Base Salary in effect upon
consummation of the Change of Control and (y) the Base Salary in effect upon
consummation of the Change of Control multiplied by the number of years
remaining in the Employment Period (plus, if the remaining Employment Period
includes a period of less than a full year, a pro rated amount of the Base
Salary for the number of full months remaining in the Employment Period);"
2. Counterparts; Effectiveness. This Amendment may be
signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto
were upon the same instrument. This Amendment shall become effective
when each party to this Amendment shall have received a counterpart
hereof signed by the other party hereto.
3. Governing Law. This Amendment shall be governed by
and construed in accordance with the laws of the State of Georgia,
without reference to principles of conflict of laws.
4. Agreement as Amended. This Amendment is limited as
specified and shall not constitute a modification, acceptance or waiver
of any other provision of the Employment Agreement. From and after the
date hereof, all references to the Asset Purchase Agreement shall be
deemed references to the Asset Purchase Agreement as amended and
supplemented hereby.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed as of the date first set forth above.
LODGIAN, INC.
By:
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Name: Daniel E. Ellis
Title: Vice President and Secretary
DAVID HAWTHORNE
By:
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