Exhibit 10.1
AGREEMENT (the "Agreement") made as of the 16th day of February, 2010 by
and between TRANS-LUX CORPORATION, a Delaware corporation having an office at 00
Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxx 00000 (hereinafter called "Employer"), and
Xxxx-Xxxx Xxxxxx residing at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(hereinafter called, "Employee").
W I T N E S S E T H:
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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 February 16, 2010 and terminating February 16, 2012, subject to earlier
termination as provided by Section 2(d) below.
(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 with Employer will 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.
(d) Notwithstanding the term set forth in Section 2(a) above, the
Employer may terminate this Agreement at any time during the Term on written
notice to Employee with or without cause. In the event of such termination,
Employer shall pay Employee four (4) months salary as severance pay at the times
and at the rate set forth in Section 4(a) as full and complete satisfaction of
any and all obligations and liabilities of Employer to Employee except for any
Bonus payments under Section 4(c) to the extent
such Bonus payments have already been earned and vested in Employee in
accordance with its terms at the time of termination. Any indemnification
obligations of Employer for events or acts occurring during the Term of this
Agreement, and any rights of Employee under Employer's Restricted Stock
Agreement ("Stock Agreement") with Employer dated this date shall likewise
terminate. Additionally any and all rights of Employee to Restricted Stock as
defined in the Stock Agreement that has not vested and been released from
restriction as provided in the Stock Agreement as of the date of such notice of
termination shall be forfeited and released by Employee, and Employer shall have
no further obligations or liabilities under the Stock 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 President and Chief Executive Officer of Employer during
the Term of this Agreement. Consistent with its duties and obligations under
Delaware Law, so long as Employee remains an employee of Employer, Employer
shall recommend to the Board of Directors to elect him to the Board of Directors
if and when a seat becomes available; provided, however, if so elected, Employee
agrees he will immediately resign as a director if his employment is terminated
under Section 4(d) of this Agreement. The precise services of Employee may be
designated or assigned to Employee from time to time at the direction of the
Board of Directors, the Chairman of the Board, or the Vice-Chairman of the
Board, of Employer, 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
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
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during the Term of this Agreement to serve as an officer of Employer and of any
affiliate or subsidiary of Employer as Employer may request, and if Employee
serves as such officer he will do so without additional compensation.
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. 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, 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 for such investments that 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.
4. (a) For all services rendered by Employee during the Term of this
Agreement, Employer shall pay Employee a salary at the rate of TWO HUNDRED FIFTY
THOUSAND DOLLARS ($250,000) per annum during the Term. Such salary shall be
payable weekly, or monthly, or otherwise 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 pension,
401K or other retirement plan, group insurance or other benefits which Employer
presently generally provides to its executive employees, or which Employer may
provide in the future for its employees
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generally. 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 shall be made 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) Employer shall pay Employee a one time bonus ("Bonus") in the
amount of fifty thousand dollars ($50,000.00) in the event that the cash flow of
Employer before financing activities and sale of real estate exceeds $2,500,000
for 2010 or 2011 during the Term of Employee's employment.
If Employer's EBITDA for 2010 or 2011 reaches the amount of four million
six hundred thousand dollars ($4,600,000) during the Term of Employee's
employment, the Employee shall receive 10,000 unregistered shares of the common
stock of Employer whose transfer will be subject to restrictions under the
Securities Act of 1933 as amended, and subject to the applicable provisions of
Section 16(b) under the Securities Exchange Act of 1934. For each subsequent
two hundred thousand dollar ($200,000.00) increase in EBITDA over $4,600,000
during the term of Employee's employment, he shall receive an additional 10,000
shares, not to exceed fifty thousand (50,000) shares in the aggregate. Payment
of such Bonus shall be made only once, if earned, and shall be made within one
hundred twenty (120) days after the end of such calendar year 2010 or 2011
during which such Bonus is earned. Delivery of any shares of common stock if
earned shall also be made within such time period.
There shall be excluded from the calculation of EBITDA and cash flow during
the applicable calendar year 2010 or 2011 (i) sales of real estate and (ii) the
amount
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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 items 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 calendar 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.
Notwithstanding anything to the contrary contained herein, if Employee is
not in the employ of Employer at the end of the applicable 2010 or 2011 calendar
year, no Bonus or common stock shall be paid for such year. In the event of
Employee's death after December 31 of such applicable 2010 or 2011 calendar
year, any Bonus and common stock to which the Employee is otherwise entitled for
such year shall be paid to his surviving spouse, if any, or, if not, to his
estate.
The calculation of EBITDA and cash flow shall be fixed and determined by
the independent public accountants regularly employed by Employer. Such
independent public accountants, in ascertaining EBITDA and cash flow, shall
apply all accounting practices, principles, and procedures heretofore applied by
Employer's independent public accountants in arriving at Employer's EBITDA and
cash flow as disclosed in Employer's annual statement for the preceding year of
profit and loss released to its stockholders. The determination by such
independent public accountants of EBITDA and cash flow 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 within ninety
(90) days from the close of such applicable calendar year and to cause said
independent certified
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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.
5. During the Term of this Agreement, Employer will reimburse Employee for
travel 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. In addition, during the
Term, the Employee shall receive fifteen hundred dollars ($1,500.00) per month
as an automobile allowance from which the Employee shall pay for all costs and
expenses associated with driving an automobile, including, but not limited to,
the lease or purchase by Employee of an automobile, insurance, repairs, gas and
maintenance upon presentation of such supporting information.
6. During the Term of this Agreement, Employee shall be entitled to a
fifteen (15) day 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,
and for a period of one year thereafter (the "Restricted Period"), 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
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of Employee by Employer. Employee shall not engage in any such business,
directly or indirectly during the Restricted Period 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 the
termination of employment of Employee for any reason, Employee shall not
directly or indirectly (i) engage or otherwise be involved in the recruitment or
employment of any of Employer's employees 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, furnish, or make accessible to any person, other than Employer, or
otherwise use any information of or regarding Employer, its subsidiaries or
affiliates or any of their businesses, including without limitation,
confidential methods of organization, confidential sources of supply, identity
of employees, customer lists, records (including electronic data), methods of
pricing, methods of bidding and confidential financial information, except on
behalf of Employer. Nor shall Employee at any time during or after his
employment by Employer, communicate, publish, or otherwise transmit, in any
manner whatsoever, untrue information or negative, competitive, personal or
other information or comments regarding Employer or any of its employees. In
addition, Employee agrees that all lists, materials, books, files, reports,
correspondence, records (including electronic data) 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
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otherwise use any information relating to said Employer Materials, to or with
any other party. As used herein the term Employer shall include Employer,
Employer's subsidiaries and affiliates, and the term employee of Employer shall
include 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.
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 any court of competent jurisdiction shall have
the right and authority to construe this Agreement so that the geographic or
business scope or the duration of such provision is 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 UPS 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 Chief Financial Officer, at 00 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxx 00000, in
the case of Employer, or such other address as designated in writing by the
parties.
11. This instrument contains the entire agreement between the parties. It
may not be waived, changed, modified, extended or renewed except by an agreement
in
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writing signed by the party against whom enforcement of any waiver, change,
modification, extension or renewal is sought.
IN WITNESS WHEREOF, this Agreement has been duly executed on the day and
year above written.
TRANS-LUX CORPORATION
By: /s/ Xxxx Xxxxxxxxx
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Chairman of the Board
/s/ Xxxx-Xxxx Xxxxxx
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