EXHIBIT 10.3
AMENDMENT NO. 1
TO THE
LODGIAN, INC. 401(K) PLAN
(AS AMENDED AND RESTATED EFFECTIVE AS OF SEPTEMBER 1, 2003)
(THE "PLAN")
Pursuant to the power to amend reserved in Section 12.1 of the Plan,
and as authorized by the Board of Directors of Lodgian, Inc., Lodgian, Inc.
hereby amends the Plan, effective April 1, 2004, as follows:
1. By amending Section 5.1 to read as follows:
5.1. General. It is intended that Participants, Beneficiaries of
deceased Participants and alternate payees will have an opportunity to
direct the investment of their Accounts among investment funds
selected by the Plan Sponsor or, at the discretion of the Plan
Sponsor, a committee, which committee may be the same Committee
referenced in Section 9.2, in accordance with Section 404(c) of ERISA.
The Plan Sponsor or committee will select four or more investment
funds to make available under the Trust Fund, and each such investment
fund will be described for Participants in the summary plan
description for this Plan or in such other materials as the Plan
Sponsor or the committee deem suitable under the circumstances.
Investment funds may be added or eliminated at any time by the Plan
Sponsor or the committee. The investment funds may include, but are
not limited to, (1) mutual funds, (2) collective investment funds, (3)
the Lodgian Stock Fund and (4) the Lodgian Warrant Funds A and B
(collectively the "Lodgian Warrant Funds"). Effective as of December
6, 2001, the Lodgian Stock Fund is closed to new investments. The
Lodgian Warrant Funds are frozen investment funds that were
established on December 3, 2002 solely for the purpose of holding
Lodgian Warrants received by the Trust Fund on that date in connection
with the court approved bankruptcy plan of reorganization of the Plan
Sponsor. A Participant whose Account included an investment in the
Lodgian Stock Fund on December 3, 2002, the date the Lodgian Warrants
were received by the Trust Fund, shall automatically have a portion of
his or her Account invested in the Lodgian Warrant Funds in the same
proportion that his interest in the Lodgian Stock Fund bears to the
total amount of all Accounts which are invested in the Lodgian Stock
Fund at that time. The Lodgian Warrant Funds will remain frozen funds
until the U.S. Department of Labor issues a prohibited transaction
exemption which permits the sale and exercise of Lodgian Warrants at
the direction of individual Participants who have an interest in the
Lodgian Warrant Fund. No Lodgian Warrant may be exercised or sold
except as permitted under the terms of such prohibited transaction
exemption, the terms of which are incorporated into the Plan by
reference, and in compliance with applicable securities laws. The
assets of the Plan may be commingled for investment purposes in a
group trust and with the assets of other plans whether or not the
assets of this Plan will be held in a separate investment fund.
2. By amending Section 5.4 by inserting the following paragraph at the
end of such section:
The Plan Administrator may adjust the Accounts of some or all
Participants for Plan administration expenses as of the last Valuation
Date for a calendar quarter as permitted by law and applicable
Internal Revenue Service and U.S. Department of Labor guidance on the
payment of expenses with the Plan assets. The expenses may be charged
to all Accounts or only to those Accounts of vested Participants who
had terminated
employment prior to the last Valuation Date for a calendar quarter. If
the expenses are charged to the Accounts of some or all Participants,
the amount allocated to each Account shall be on a per capita basis
and shall not be allocated on the basis of the Account balance.
3. By amending the first paragraph of Section 8.3 to read as follows:
8.3 Direct Rollover. Notwithstanding any provision of this Plan
to the contrary that would otherwise limit a distributee's election
under this Section 8, a distributee who has a Vested Benefit of $200
or more or has all or a portion of his or her Vested Benefit invested
in the Lodgian Stock Fund may elect, at the time and in the manner
prescribed by the Plan Administrator, to have any portion of an
eligible rollover distribution paid directly to an eligible retirement
plan specified by the distributee in a direct rollover.
4. By amending Section 8.8 (c) to read as follows:
(c) Account Balance. A payment or Forfeiture from an Account may
be delayed pending completion of allocations to the Account if
necessary to avoid underpayment or overpayment. A Vested Benefit of
less than $200 will be paid to a Participant or Beneficiary as soon as
practicable in a cash lump sum payment without income tax withholding
and without the direct rollover opportunity described in Section 8.3,
unless all or any portion of such Participant's Vested Benefit is
invested in the Lodgian Stock Fund.
5. By amending the Plan to add Appendix C, a listing of the Participating
Employers.
Except as herein amended, the provisions of the Plan shall remain in
full force and effect.
IN WITNESS WHEREOF, the Plan Sponsor, on behalf of itself and the
Participating Employers contained in Appendix C of the Plan, as amended from
time, have caused this Amendment No. 1 to be executed by the duly authorized
officer, as of the 12th day of April, 2004.
LODGIAN, INC.
By: /s/ Daniel E. Ellis
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Title: Senior Vice President & General Counsel
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