RESTRICTED STOCK AWARD AGREEMENT



 






EXHIBIT 10.2




Lodgian, Inc.




RESTRICTED STOCK AWARD AGREEMENT




     THIS AGREEMENT (the “Agreement”) is made and entered into as of March 1, 2006 (the “Award
Date”), by and between Lodgian, Inc. (the “Company”), a Delaware corporation and James A. MacLennan
(the “Recipient”).



W I T N E S S E T H:




     WHEREAS, the Company has adopted the Amended and Restated 2002 Stock Incentive Plan of
Lodgian, Inc. (the “Plan”); and



     WHEREAS, the Board of Directors of the Company (the “Board”) or a committee thereof has
authorized the grant to Recipient of a restricted stock award under the Plan of the common stock of
the Company (“Common Stock”), and the Company and Recipient wish to confirm herein the terms,
conditions, and restrictions of the restricted stock award;



     NOW, THEREFORE, in consideration of the premises, the mutual covenants contained herein, and
other good and valuable consideration, the parties hereto agree as follows:



SECTION 1

AWARD OF SHARES




     1.1 Award of Shares. Subject to the terms, restrictions, limitations, and conditions stated
herein, in that certain Executive Employment Agreement between the Recipient and the Company dated
March 1, 2006 (the “Employment Agreement), and in the Plan, the Company hereby awards to Recipient
35,000 shares of Common Stock (the “Award Shares”). This award represents the compensation to be
paid to Recipient pursuant to Section 3(C) of the Employment Agreement.



     1.2 Vesting of Award Shares. Recipient shall become vested in a percentage of the Award
Shares shown below based upon the Continuous Service (as defined below) of the Recipient from the
Award Date of the Award Shares (as noted hereon) and subject to the rights and limitations as
contained in the Employment Agreement.



	 	 	 
	Vesting Schedule:
	Percentage Vested:	 	Continuous Service from Award Date:
	0%

	 	Less than 1 year
	331/3
%

	 	At least 1 year, but less than 2 years
	662/3
%
	 	At least 2 years, but less than 3 years
	100%

	 	At least 3 years





If the above calculation of vested Shares would result in a fraction, any fraction will be rounded
to zero. For purposes of this Agreement, “Continuous Service” means a period of continuous




 









 







performance of services by Recipient for the Company or an affiliated company, as determined by the
Committee in its sole and absolute discretion. The Award Shares which have become vested pursuant
to the Vesting Schedule or due to acceleration as provided for in the Employment Agreement are
herein referred to as the “Vested Award Shares” and all Award Shares which are not Vested Award
Shares are sometimes herein referred to as the “Unvested Award Shares.”




     1.3 The Award Recipient shall become vested in a portion of the Award Shares based upon the
terms and conditions of this Agreement and subject to the further rights and limitations as
contained in the the Employment Agreement. In the event of any ambiguity in this Restricted Stock
Award Agreement or in the terms of the Employment Agreement which relate to the Award Shares, the
good faith interpretation of the Compensation Committee of the Company’s Board of Directors shall
in all cases control. If the calculation of vested Shares in accordance with the Employment
Agreement would result in a fraction of a share, any such fraction will be rounded to zero.
Notwithstanding the foregoing, the Board of Directors may, in its sole discretion, accelerate the
vesting of the Award Shares in whole or in part.



     1.4 Additional Condition to Award Shares. In order not to forfeit the Award Shares, Recipient
must deliver to the Company, within the ten day period (the “Withholding Period”) commencing on the
date of occurrence of an event pursuant to which some or all of the Award Shares become
“substantially vested” within the meaning of Section 83 of the Internal Revenue Code of 1986, as
amended, either a check payable to the Company in the amount of all withholding or other tax
obligations (whether federal, state or local) imposed on the Company by reason of the vesting of
the Award Shares, or the Withholding Election described in Section 1.4. Upon receipt of payment in
full of all withholding tax obligations, the Company shall cause a certificate representing the
Award Shares which are the Vested Award Shares to be issued and delivered by the Share Custodian to
the Recipient pursuant to the instructions of Recipient. Recipient acknowledges and agrees
that he has been fully advised to consult with his own tax consultants regarding the applicability
of his making a Code §83(b) election with respect to the Award Shares.



     1.5 Optional Withholding Election. In lieu of paying the withholding tax obligation in cash,
as described in Section 1.3, Recipient may elect to have the actual number of Vested Award Shares
reduced by the smallest number of whole shares of Common Stock which, when multiplied by the fair
market value of the Common Stock on the Vesting Date as determined by the Board of Directors, is
sufficient to satisfy the amount of the withholding tax obligations imposed on the Company by
reason of the vesting of the Award Shares (the “Withholding Election”). Recipient may make a
Withholding Election only if all of the following conditions are met:




     (a) the Withholding Election must be made on or prior to the end of the Withholding
Period by executing and delivering to the Company a properly completed Notice of Withholding
Election, in substantially the form of Exhibit A attached hereto;




     (b) any Withholding Election made will be irrevocable; and



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     (c) If Recipient is an Insider (an individual who is, on the relevant date, an officer,
director or ten percent (10%) beneficial owner of any class of the Company’s equity
securities that is registered pursuant to Section 12 of the Exchange Act, all as defined
under Section 16 of the Exchange Act), then a Withholding Election may only be made to the
extent that such withholding of Shares (1) has met the requirements of an exemption under
Rule 16b-3 promulgated under the Exchange Act, or (2) is a subsequent transaction the terms
of which were provided for in a transaction initially meeting the requirements of an
exemption under Rule 16b-3 promulgated under the Exchange Act.



     1.6 Investment Representations. Recipient hereby represents, warrants, covenants, and agrees
with the Company as follows:




     (a) The Award Shares being acquired by Recipient will be acquired for Recipient’s own
account without the participation of any other person, with the intent of holding the Award
Shares for investment and without the intent of participating, directly or indirectly, in a
distribution of the Award Shares and not with a view to, or for resale in connection with,
any distribution of the Award Shares, nor is Recipient aware of the existence of any
distribution of the Award Shares;




     (b) Recipient is not acquiring the Award Shares based upon any representation, oral or
written, by any person with respect to the future value of, or income from, the Award Shares
but rather upon an independent examination and judgment as to the prospects of the Company;




     (c) The Award Shares were not offered to Recipient by means of publicly disseminated
advertisements or sales literature, nor is the Recipient aware of any offers made to other
persons by such means;




     (d) Recipient is able to bear the economic risks of the investment in the Award Shares,
including the risk of a complete loss of Recipient’s investment therein;




     (e) The Award Shares cannot be offered for sale, sold or transferred by Recipient other
than (A) in a transaction in compliance with the 1933 Act; and (B) upon presentation of
evidence satisfactory to the Company of compliance with the applicable securities laws of
other jurisdictions. The Company shall be entitled to rely upon an opinion of counsel
satisfactory to it with respect to compliance with the above laws;




     (f) The Company will be under no obligation to register the Award Shares for resale or
to comply with any exemption available for sale of the Award Shares without registration or
filing, and the information or conditions necessary to permit routine sales of securities of
the Company under Rule 144 of the 1933 Act are not now available and no assurance has been
given that it or they will become available. The Company is under no obligation to act in
any manner so as to make Rule 144 available with respect to the Award Shares; and



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     (g) The agreements, representations, warranties, and covenants made by Recipient herein
extend to and apply to all of the Award Shares of the Company issued to Recipient pursuant
to this restricted stock award. Acceptance by Recipient of the certificate representing
such Award Shares shall constitute a confirmation by Recipient that all such agreements,
representations, warranties, and covenants made herein shall be true and correct at that
time.



SECTION 2

FORFEITURE OF AWARD SHARES




     Any Unvested Award Shares that are held for the benefit of the Recipient, at and after the
termination of employment of the Recipient by the Company, shall, unless the Employment Agreement
otherwise expressly provides, be forfeited by the Recipient at such time and returned, marked
“cancelled,” to the Company. Until an Award Share has been released to the Recipient, or cancelled
and returned to the Company as provided herein or in the Employment Agreement, it shall be held by
the General Counsel of the Company, acting as share custodian (the “Share Custodian”), for the
benefit of the Recipient, and subject to the terms and conditions of this Agreement and the
Employment Agreement.



SECTION 3

GENERAL PROVISIONS




     3.1 Change in Capitalization. If the number of outstanding shares of the Common Stock shall
be increased or decreased by a change in par value, split-up, stock split, reverse stock split,
reclassification, distribution of common stock dividend, or other similar capital adjustment, an
appropriate adjustment shall be made by the Board of Directors in the number and kind of Award
Shares, such that Recipient’s proportionate interest shall be maintained as before the occurrence
of the event. No fractional shares shall be issued in making such adjustment. All adjustments
made by the Board of Directors under this Section shall be final, binding, and conclusive.



     3.2 Legends. Each certificate representing the Award Shares shall be endorsed with the
following legend and Recipient shall not make any transfer of the Award Shares without first
complying with the restrictions on transfer described in such legend:



transfer is restricted





the securities evidenced by this certificate are subject to restrictions on transfer set
forth in a restricted stock award agreement dated March 1, 2006, a copy of which is
available from the company.




The securities evidenced by this certificate may not be sold, transferred, assigned, or
hypothecated unless (1) the transfer is made in compliance with rule 



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 144 promulgated under the securities act of 1933, or (2) the issuer receives
an opinion of counsel, reasonably satisfactory to the company, stating that such sale,
transfer, assignment or hypothecation is exempt from the registration requirements of such
act.


Recipient agrees that the Company may also endorse any other legends required by applicable federal
or state securities laws. The Company need not register a transfer of the Award Shares, and may
also instruct its transfer agent, if any, not to register the transfer of the Award Shares unless
the conditions specified in the foregoing legends are satisfied.




     3.3 Removal of Legend and Transfer Restrictions. The restrictions described in the second
sentence of the legend set forth in Section 3.2 may be removed at such time as permitted by Rule
144(k) promulgated under the Securities Act.



     3.4 Governing Laws. This Agreement shall be construed, administered and enforced according to
the laws of the State of Delaware.



     3.5 Successors. This Agreement shall be binding upon and inure to the benefit of the heirs,
legal representatives, successors, and permitted assigns of the parties.



     3.6 Notice. Except as otherwise specified herein, all notices and other communications under
this Agreement shall be in writing and shall be deemed to have been given if personally delivered
or if sent by registered or certified United States mail, return receipt requested, postage
prepaid, addressed to the proposed recipient at the last known address of the recipient. Any party
may designate any other address to which notices shall be sent by giving notice of the address to
the other parties in the same manner as provided herein.



     3.7 Severability. In the event that any one or more of the provisions or portion thereof
contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable
in any respect, the same shall not invalidate or otherwise affect any other provisions of this
Agreement, and this Agreement shall be construed as if the invalid, illegal or unenforceable
provision or portion thereof had never been contained herein.



     3.8 Entire Agreement. Subject to the terms and conditions of the Plan and the Employment
Agreement, this Agreement expresses the entire understanding and agreement of the parties with
respect to the subject matter. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which shall constitute one and the same instrument.



     3.9 Violation. Any transfer, pledge, sale, assignment, or hypothecation of Unvested Award
Shares or any portion thereof shall be a violation of the terms of this Agreement and shall be
null, void and without effect ab initio.



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     3.10 Headings. Paragraph headings used herein are for convenience of reference only and shall
not be considered in construing this Agreement.



     3.11 Specific Performance. In the event of any actual or threatened default in, or breach of,
any of the terms, conditions and provisions of this Agreement, the party or parties who are thereby
aggrieved shall have the right to specific performance and injunction in addition to any and all
other rights and remedies at law or in equity, and all such rights and remedies shall be
cumulative.



     3.12 No Employment Rights Created. Neither the establishment of the Plan nor the award of
Award Shares hereunder shall be construed as giving Recipient the right to continued employment
with the Company.



     3.13 Capitalized Terms. All capitalized terms used in this Agreement shall have the meanings
given to them herein or in the Plan.



     3.14 No Disclosure Duty. The Recipient and the Company acknowledge and agree that neither the
Company nor its directors, officers or employees have any duty or obligation to disclose to the
Recipient any material information regarding the business of the Company or affecting the value of
the Award Shares, other than as required under the law with respect to the Company’s duty to its
other shareholders.



     IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first set
forth above.



	 	 	 	 	 	 	 
	Company:	 	Recipient:	 	 
	Lodgian, Inc.:	 	 	 	 
	 

	 	 	 	      /s/ James A. MacLennan
 

	 	 
	By:

	 	     /s/ Daniel E. Ellis	 	 	 	 
	 

	 	 	 	 	 	 
	Its: Senior Vice President, General
Counsel & Secretary	 	 	 	 







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EXHIBIT A

Notice of Withholding Election




	 	 	 
	TO: Lodgian, Inc.

	 	Restricted Stock Agreement:
	 

	 	Restricted Stock Agreement between
                     and Lodgian, Inc. (the
“Company”)
	FROM:

	 	Date      of       Agreement:
	                                                            
	 	 
	 

	 	                                        
	 

	 	Total Number of Restricted Shares:
	RE: Withholding Election

	 	                    






TO:     Lodgian, Inc.

FROM:               

RE:     Withholding Election with respect to Restricted Stock Agreement Noted Above




 




This election relates to                     shares of Common Stock of the Company vesting on
                    . I hereby certify that:




     i. My correct name and social security number and my current address are set forth at the end
of this document.



     ii. I am (check one, whichever is applicable):



	 	 	 
	o

	 	the original recipient of the Restricted Stock Grant.
	o

	 	the legal representative of the estate of the original recipient of the Restricted Stock Grant.
	o

	 	a legatee of the original recipient of the Restricted Stock Grant.
	o

	 	the legal guardian of the original recipient of the Restricted Stock Grant.






     iii. In connection with any future vesting of the Restricted Stock Grant with respect to the
Restricted Shares, I hereby elect to have certain of the shares issuable pursuant to the exercise
withheld by the Company for the purpose of having the value of the shares applied to pay federal,
state, and local, if any, taxes arising from the exercise. The shares to be withheld shall have,
as of the tax date applicable to the exercise, a fair market value equal to the minimum statutory
tax-withholding requirement under federal, state, and local law in connection with the exercise.



     iv. This Withholding Election is made prior to the tax date and is otherwise timely made
pursuant to the Agreement.



     v. I understand that this Withholding Election may not be revised, amended or revoked by me
but is subject to the disapproval of the Board.



     vi. I further understand that the Company shall withhold from the Vested Restricted Shares a
number of shares of Common Stock having the value specified in Paragraph iii above.



     vii. I have read and understand the Restricted Stock Agreement and I have no reason to believe
that any of the conditions therein to the making of this Withholding Election have not been met.
Capitalized terms used in this Notice of Withholding Election without definition herein shall have
the meanings given to them in the Restricted Stock Agreement.



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	Dated this ___day of
                    , 20___.
	 	 
	 	 	 
	Address:

	 	Signature
	 
	 	 
	 	 	 
	 	 	 
	 

	 	Printed Name
	 	 	 
	 
	 	 
	 	 	 
	 

	 	Social Security Number







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