This is an amendment and restatement of the AGREEMENT made as of the 1st
day of April, 2008 by and between TRANS-LUX CORPORATION, a Delaware corporation
having an office at 00 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxx 00000 (hereinafter
called "Employer"), and XX XXXXXX residing at 00 Xxxx Xxx Xxxx, Xxxxxxx,
Xxxxxxxxxxx 00000 (hereinafter called, "Employee"). This amendment and
restatement is effective as of April 1, 2008.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Employer and Employee have entered into the Agreement; and
WHEREAS, Section 409A of the Internal Revenue Code, and regulations and guidance
issued thereunder, including IRS Notice 2007-34 (the "409A Requirements")
require deferred compensation arrangements as defined therein to be in
compliance by December 31, 2008 and Employer and Employee desire to enter into
this Amendment to satisfy such 409A Requirements, it being understood nothing
contained in this Amendment is intended to increase any compensation or other
benefits to Employee in order to comply with the 409A Requirements;
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. Employer hereby employs Employee, and Employee hereby accepts
employment, upon the terms and conditions hereinafter set forth.
2. (a) The term ("Term") of the Agreement shall be the period
commencing on April l, 2008 and terminating March 3l, 2009.
(b) In the event that Employee remains or continues in the employ
of Employer after the Term, such employment, in the absence of a further
written agreement, shall be on an at-will basis, terminable by either party
hereto on thirty (30) days' notice to the other and, upon the 30th day
following such notice the employment of Employee shall terminate.
(c) Upon expiration of the Term of this Agreement, neither party
shall have any further obligations or liabilities to the other except as
otherwise specifically provided in this Agreement.
3. Employee shall be employed in an executive capacity of Employer
(and such of its affiliates, divisions and subsidiaries as Employer shall
designate). Employer shall use its reasonable efforts to cause Employee to be
elected and continue to be elected an Executive Vice President of Employer
during the Term of this Agreement. The precise services of Employee may be
designated or assigned from time to time at the direction of the Board of
Directors, the Chairman of the Board, the Vice-Chairman of the Board or
President and Chief Executive Officer, and all of the services to be rendered
hereunder by Employee shall at all times be subject to the control, direction
and supervision of the President and Chief Executive Officer and the Board of
Directors of Employer, to which Employee does hereby agree to be bound.
Employee shall devote his entire time, attention and energies during usual
business hours (subject to Employer's policy with respect to holidays and
illnesses for comparable executives of Employer) to the business and affairs of
Employer, its affiliates, divisions and subsidiaries as Employer shall from time
to time direct. Employee further agrees during the Term of this Agreement to
serve as an officer or director of Employer or of any affiliate or subsidiary of
Employer as Employer may request, and if Employee serves as such officer or a
director he will do so without additional compensation, other than director's
fees or honoraria, if any.
During the Term of this Agreement and during any subsequent
employment of Employee by Employer, Employee shall use his best efforts,
skills and abilities in the performance of his services hereunder and to
promote the interests of Employer, its affiliates, divisions and
subsidiaries. Employee shall not, during the Term and during any
subsequent employment of Employee by Employer, be engaged in any other
business activity, whether or not such business activity is pursued for
gain, profit or other pecuniary advantage, except for current real estate
ventures disclosed to Employer concurrently with the signing of this
Agreement. The foregoing shall not be construed as preventing Employee
from investing his assets in such form or manner as will not require any
services on the part of Employee in the operation of the affairs of the
companies in which such investments are made, provided, however, that
Employee shall not, either directly or indirectly, be a director of or make
any investments in any company or companies which are engaged in businesses
competitive with those conducted by Employer or by any of its subsidiaries
or affiliates except which such investments are in stock of a company
listed on a national securities exchange, and such stock of Employee does
not exceed one percent (1%) of the outstanding shares of stock of such
listed company.
Employee shall not at any time during or after the Term of this
Agreement use (except on behalf of Employer), divulge, furnish or make
accessible to any third person or organization any confidential information
concerning Employer or any of its subsidiaries or affiliates or the
businesses of any of the foregoing including, without limitation,
confidential methods of operations and organization, confidential sources
of supply, identity of employees, customer lists and confidential financial
information.
4. (a) For all services rendered by Employee during the Term of this
Agreement, Employer shall pay Employee a salary at the rate of ONE HUNDRED
FIFTY SEVEN THOUSAND DOLLARS ($157,000) per annum during the period April
l, 2008 to September 30, 2008; and at the rate of ONE HUNDRED SIXTY-ONE
THOUSAND FIVE HUNDRED DOLLARS ($161,500) per annum during the period
October 1, 2008 to March 31, 2009. Such salary shall be payable weekly, or
monthly, or in accordance with the payroll practices of Employer for its
executives. The Employee shall also be entitled to all rights and benefits
for which he shall be eligible under any stock option plan, bonus,
participation or extra compensation plans, pensions, group insurance or
other benefits which Employer presently provides, or may provide for his
and for its employees generally. Such rights and benefits currently
include a performance bonus and sales override plan, the terms of which are
subject to revision by the Employer each year during the Term of this
Agreement. The performance bonus and sales override target amount of
earnings shall be $45,000 for 2008 and $11,250 for the period January
1-March 31, 2009. The maximum earnings under this plan shall not exceed
two times the target amount for any of the full calendar year 2008 and
$11,250 for January 1-March 31, 2009. This Agreement shall not be deemed
abrogated or terminated if Employer, in its discretion, shall determine to
increase the compensation of Employee for any period of time, or if the
Employee shall accept such increase.
All payments under this Agreement are in United States dollars
unless otherwise specified.
(b) Employer may make appropriate deductions from the said payments
required to be made in this Section 4 to Employee to comply with all
governmental withholding requirements.
(c) If, during the Term of this Agreement and if the Employee is
still in the employ of Employer, Employee shall be prevented from
performing or be unable to perform, or fail to perform, his duties by
reason of disability for four (4) consecutive months (excluding normal
vacation time) during the Term hereof, Employer agrees to pay Employee
thereafter during the Term for the duration of such incapacity, but in no
event less than ninety (90) days, 40% of the base salary which Employee
would otherwise have been entitled to receive if not for the illness or
other incapacity. For purposes of this Agreement, an Employee shall be
considered to be "disabled" or have "disability" if the Employee meets one
of the following requirements:
(A) The Employee is unable to engage in any substantial gainful
activity by reason of any medically determinable physical or mental
impairment that can be expected to result in death or can be expected to
last for a continuous period of not less than 12 months.
(B) The Employee is, by reason of any medically determinable
physical or mental impairment expected to last for a continuous period of
not less than 12 months, receiving income replacement benefits for a period
of not less than three months under an accident and health plan covering
employees of the Company.
An Employee will be deemed to be disabled if determined to be totally
disabled by the Social Security Administration or in accordance with a
disability insurance program that applies a definition of disability that
is at least as restrictive as the foregoing description in this Section
4(c).
(d) The Board upon the recommendation of the Compensation Committee
of the Board shall consider the grant of a bonus ("Bonus") to Employee
based on Employer's performance for the immediately preceding fiscal years
2008 and 2009, respectively. Notwithstanding the foregoing, based on
Employer's annual pre-tax consolidated earnings for the applicable fiscal
year, Employer shall pay Employee a Bonus at the rate of one-half of one
percent (1/2 of 1%) of the annual pre-tax consolidated earnings for the
fiscal years ending December 31, 2008 and 2009 (including the period
January 1-March 31, 2009 as herewith provided in Section 12) only, in the
event Employer's pre-tax consolidated earnings for such year determined in
accordance with Section 4(d) exceeds $500,000, provided that this Bonus
shall not exceed $40,000 for 2008, and the Bonus, if any, for January
1-March 31, 2009 shall be 25% of the amount for the year 2009, not to
exceed $10,000).
There shall be excluded from the calculation of pre-tax
consolidated earnings during the Term of this Agreement the amount by which
(x) any item or items of unusual or extraordinary gain in the aggregate
exceeds 20% of the Employer's net book value as at the end of the immediate
preceding fiscal year or (y) any item of unusual or extraordinary loss in
the aggregate exceeds 20% of the Employer's net book value as at the end of
the immediate preceding fiscal year, in each case in (x) and (y) above as
determined in accordance with generally accepted accounting principles and
items of gain and loss shall not be netted against each other for purpose
of the above 20% calculation.
Provided Employee is not in default of the Agreement, the Board
may, in any event, even if any of the aforesaid pre-tax consolidated
earnings levels are not exceeded, grant the Employee the aforesaid Bonus or
any portion thereof for such year based on his performance.
Employee hereby agrees to defer payment of any Bonus based on
the attainment of annual objectives (including those set forth in separate
bonus plans) for any fiscal year commencing with the 2009 fiscal year until
June 1 following the end of the applicable fiscal year. Employee hereby
acknowledges the restrictions on changing the deferral to another date.
Notwithstanding anything to the contrary contained herein, if
Employee is not in the employ of Employer at the end of the aforesaid 2008
fiscal year or March 31, 2009, no Bonus shall be paid for such fiscal year
or part thereof as to 2009. In the event of Employee's death on or after
January 1 of 2009 or March 31, 2009 as to 2009, any Bonus to which he is
otherwise entitled for the prior fiscal year shall be paid to his surviving
spouse widow if she shall survive him or if she shall predecease him to his
surviving issue per stirpes and not per capita.
Such pre-tax consolidated earnings shall be fixed and
determined by the independent certified public accountants regularly
employed by Employer. Such independent certified public accountants, in
ascertaining such pre-tax consolidated earnings, shall apply all accounting
practices and procedures heretofore applied by Employer's independent
certified public accountants in arriving at such annual pre-tax
consolidated earnings as disclosed in Employer's annual statement for that
year of profit and loss released to its stockholders. The determination by
such independent certified public accountants shall be final, absolute and
controlling upon the parties. Employer undertakes to use reasonable
efforts to cause said accountants to prepare and furnish such statements
promptly following the close of each such fiscal year and to cause said
independent certified public accountants, concomitantly with delivery of
such statement by accountants to it, to deliver a copy of such statement to
Employee. The Employer shall not have any liability to Employee arising
out of any delays with respect to the foregoing.
(e) In the event Employee dies during the Term of this Agreement
while the Employee is still in the Employ of Employer, Employer shall pay
to Employee's surviving spouse or his surviving issue, as the case may be,
for the balance of the Term of the Agreement, annual death benefits payable
weekly or in accordance with Employer's payroll practices in an amount
equal to 40% of Employee's then annual base salary rate.
5. During the Term of this Agreement, Employer will reimburse Employee
for traveling or other out-of-pocket expenses and disbursements incurred by
Employee with Employer's approval in furtherance of the businesses of Employer,
its affiliates, divisions or subsidiaries, upon presentation of such supporting
information as Employer may from time to time request.
6. During the Term of this Agreement, Employee shall be entitled to a
vacation during the usual vacation period of Employer in accordance with such
vacation schedules as Employer may prescribe.
7. Both parties recognize that the services to be rendered by Employee
pursuant to this Agreement are extraordinary and unique. During the Term of
this Agreement, and during any subsequent employment of Employee by Employer,
Employee shall not, directly or indirectly, enter into the employ of or render
any services to any person, partnership, association or corporation engaged in a
business or businesses in any way, directly or indirectly, competitive to those
now or hereafter engaged in by Employer or by any of its subsidiaries during the
Term of this Agreement and during any subsequent employment of Employee by
Employer and Employee shall not engage in any such business, directly or
indirectly on his own account and, except as permitted by paragraph 3 of this
Agreement, Employee shall not become interested in any such business, directly
or indirectly, as an individual, partner, shareholder, director, officer,
principal, agent, employee, trustee, consultant, or in any other relationship or
capacity. For a period of two (2) years following termination of employment for
any reason, Employee shall not directly or indirectly (i) engage or otherwise be
involved in the recruitment or employment of any Employer employee or, (ii)
solicit or render any service directly or indirectly to any other person or
entity with regard to soliciting any customer of the Employer during the two (2)
year period prior to termination of employment with respect to products or
services competitive with products or services of Employer. Employee shall at
no time during or after employment disclose to any person, other than Employer,
or otherwise use any information of or regarding Employer except on behalf of
Employer, nor communicate, publish, or otherwise transmit, in any manner
whatsoever, untrue information or negative, competitive, personal or other
information or comments regarding Employer. In addition, Employee agrees that
all lists, materials, books, files, reports, correspondence, records and other
documents and information ("Employer Materials") used, prepared or made
available to Employee, shall be and shall remain the property of Employer. Upon
the termination of employment of Employee or the expiration of this Agreement,
whichever is earlier, all Employer Materials shall be immediately returned to
Trans-Lux Corporation, and Employee shall not make or retain any copies thereof,
nor disclose or otherwise use any information relating to said Employer
Materials to any other party. As used herein the term Employer shall include
Employer, Employer's subsidiaries and affiliates, and any individuals employed
or formerly employed by any of them. Employer shall be entitled, if it so
elects, to institute and prosecute proceedings in any court of competent
jurisdiction, either in law or in equity, to obtain damages for any breach of
this Agreement, or to enjoin Employee from any breach of this Agreement, but
nothing herein contained shall be construed to prevent Employer from pursuing
such other remedies as Employer may elect to invoke. In addition to the
obligations of the Employee contained in this Agreement, Employee agrees to be
bound by the provisions contained in Exhibit A to this Agreement.
8. In the event any provision of paragraph 7 of this Agreement shall
be held invalid or unenforceable by reason of the geographic or business scope
or the duration thereof, such invalidity or unenforceability shall attach only
to such provision and shall not affect or render invalid or unenforceable any
other provision of this Agreement, and this Agreement shall be construed as if
the geographic or business scope or the duration of such provision had been more
narrowly drawn so as not to be invalid or unenforceable.
9. The waiver by Employer of a breach of any provision of this
Agreement by Employee shall not operate or be construed as a waiver of any
subsequent breach by Employee.
10. Any notice required or permitted to be given under this Agreement
shall be sufficient if in writing and served personally or sent by United States
certified or registered mail, return receipt requested, or overnight courier
such as Federal Express or Airborne to his address as stated on Employer's
records, in the case of Employee, or to the office of Trans-Lux Corporation,
attention of the President and Chief Executive Officer, at the address set forth
above, in the case of Employer, or such other address as designated in writing
by the parties.
11. This Agreement shall be construed in accordance with the laws of
the State of New York.
12. This instrument contains the entire agreement between the parties
and supersedes as of April 1, 2008 the Agreement between Employer and Employee
dated as of April 1, 2005, as amended except any amounts which accrued as of
such date and are unpaid, but excluding the Bonus for the period January 1-March
31, 2008 which is covered by Section 4(d) hereof. It may not be changed,
modified, extended or renewed orally except by an agreement in writing signed by
the party against whom enforcement of any waiver, change, modification,
discharge or extension is sought.
IN WITNESS WHEREOF, this Agreement has been duly executed on this 31st
----
day of December, 2008.
TRANS-LUX CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------
President
/s/ Xx Xxxxxx
----------------------
Xx Xxxxxx
