This is an amendment and restatement of the AGREEMENT made February 22,
2005 effective as of the 1st day of April 2005 by and between TRANS-LUX
CORPORATION, a Delaware corporation having an office at 00 Xxxxx Xxxxxx,
Xxxxxxx, XX 00000 (hereinafter called "Employer"), and XXXXXXX X. XXXXXXX
residing at 00 Xxxxxxx Xxxx, Xxxxxxx, XX 00000 (hereinafter called, "Employee").
This amended and restated agreement is made effective January 1, 2009.
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 five year period
commencing April 1, 2005 and terminating March 31, 2010.
(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 best 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. 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, and the Vice-Chairman of the Board, provided, however,
that the duties assigned shall be of a character and dignity appropriate to a
senior executive of a corporation and consistent with Employee's background and
experience, 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 vacations, 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. Subject to execution of this Agreement, Employee has
been nominated as a director of Employer for election at Employer's 2005 Annual
Meeting of Stockholders, but Employer cannot guaranty that Employee will be so
elected by the stockholders, and the failure of Employee to be so elected as
director of Employer shall not constitute breach of this Agreement. Employer
agrees that during the Term of this Agreement Employee's principal office of
employment shall be within a sixty (60) mile radius of Norwalk, Connecticut.
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, 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 where 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. 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 during the term of their employment, by any of them.
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
EIGHTY THOUSAND DOLLARS ($280,000) per annum during each of the periods April 1,
2005 to March 31, 2006, April 1, 2006 to March 31, 2007, April 1, 2007 to March
31, 2008, April 1, 2008 to March 31, 2009 and April l, 2009 to March 31, 2010
and subject to the CPI Adjustment, as hereinafter defined, for each future
calendar year subsequent to 2005. The payments to be made to Employee for the
twelve month periods commencing April, 2006, 2007, 2008 and 2009 shall each be
appropriately adjusted upward ("CPI Adjustment") for inflation in the prior
calendar year at the beginning of each such twelve month period based on the
United States Department of Labor Bureau of Labor Statistics, Consumer Price
Index, United States City Average, all items (2006 = 100). 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 him and for its
employees 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. In addition to
the group insurance set forth herein, Employer also agrees to continue to
provide Employee with term life insurance in the amount of $75,000 at the
non-smoking rate during the term of this Agreement, provided Employee is
insurable at standard rates, with Employee paying any excess premium over the
non-smoking rate. The Employer shall transfer such policy to Employee on his
retirement or termination of this Agreement by either party without cause. All
payments under this Agreement are in United States dollars unless otherwise
specified. In the event Employee is non-insurable, then Employer shall pay to
Employee from such determination during the remainder of the Term annually the
amount the premium for the above mentioned $75,000 policy would have been at the
standard rates. Upon termination of this Agreement as a result of expiration of
the Term (without any new agreement), or termination by either party of any
at-will employment basis or either the Employee's retirement or discharge
without cause, Employer agrees to pay for (i) continuation of coverage of
Employee's present $75,000 life insurance for one (1) year and, (ii) unless
Medicare or equivalent is in effect, medical insurance coverage, for Employee
and his present spouse for the period of time coverage is available under COBRA,
not to exceed eighteen (18) months and, thereafter for additional months so that
the maximum time period for medical coverage is three (3) years, provided,
however, any such coverage shall cease at Employee's 65th birthday (or in the
case of his spouse, what would have been Employee's 65th birthday if he dies
during such time period).
(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 being disabled
for four (4) consecutive months (excluding normal vacation time) during the Term
hereof, Employer agrees to pay Employee thereafter for the duration of such
incapacity (i) during the Term, or (ii) 24 months, whichever is greater, 50% of
the base salary which Employee would otherwise have been entitled to receive (in
the same form and on the same schedule) if not for the disability; provided,
however, if such 4(c) shall terminate and Section 7 shall apply. If payments
under Section 7 cease because of Employee's death prior to the end of the 24
month period under this Section 4(c), then the balance of the payments hereunder
will be made, for example, if Employee has received 6 months of disability
payments before the Term expires and dies after receiving 12 months of payments
under Section 7, then Employee's widow or surviving issue will receive the
remaining 6 months of payments under this Section 4(c). If Employee dies during
such 24 month period prior to the end of the Term, then Section 4(e) shall apply
and the payments under this Section 4(c) shall terminate.
For purposes of this Agreement, a Employee shall be considered to be
"disabled" or have a "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.
A 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 Employer's immediately preceding fiscal year for each
of 2006, 2007, 2008, 2009, 2010 and 2011. Such Bonus, if awarded, and unless
otherwise deferred by Employee, shall be paid on the May 31st following the end
of the applicable fiscal year. Employee hereby agrees to defer payment of any
Bonus for any fiscal year commencing with the 2009 fiscal year until the June 1
following the end of the applicable fiscal year. Employee hereby acknowledges
the restrictions on changing such deferral to another date.
Notwithstanding the foregoing, Employer shall pay Employee the Bonus
rate applicable for each level of annual pre-tax consolidated earnings for any
of the fiscal years ending December 31, 2005 (including the period January
1-March 31, 2005 as provided hereafter in Section 13), 2006, 2007, 2008, 2009
and 2010 only, (provided however that the Bonus, if any, for 2010 shall be 25%
of the amount set forth below for such year), in the respective amounts
hereinafter set forth in the event Employer's pre-tax consolidated earnings for
such year determined in accordance with Section 4( d) meet or exceed the
respective amounts hereinafter set forth, not to exceed $150,000 for any year
($37,500 for January 1-March 31, 2010).
Amount of Annual Pre-Tax Bonus Percent Highest Amount
Consolidated Earnings On Amount Pre Level
--------------------- --------- ---------
$ 0 - $ 1,000,000 2 1/2% $ 25,000
$ 1,000,000 - 2,000,000 3 1/4% 32,500
$ 2,000,000 - 4,312,500 4% 92,500
--------
$150,000 (highest aggregate bonus)
No Bonus shall be payable for annual pre-tax consolidated earnings less than
$500,000 or in excess of $4,312,500. 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, (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, or (z) any contractual Bonuses and or contractual profit
participations accrued or paid to Employee and other employees.
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.
Notwithstanding anything to the contrary contained herein, if Employee is
not in the employ of Employer at the end of any aforesaid 2005, 2006, 2007, 2008
and 2009 fiscal years, or on March 31, 2010 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 2006, 2007, 2008, 2009 or 2010, or April 1, 2010 as to 2010,
any Bonus to which he is otherwise entitled for the prior fiscal year or 2010,
as the case may be, shall be paid to his 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. Notwithstanding the
foregoing, any interest expense savings resulting from conversion of the
Employer's 7 1/2 % Convertible Subordinated Notes due 2006 and 8 1/4% Limited
Convertible Senior Subordinated Notes due 2012 may be included or excluded in
such calculation by the Board in its sole discretion. 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 widow or his surviving issue, as the case may be, for twenty-four
(24) months, annual death benefits payable weekly or in accordance with
Employer's payroll practices in an amount equal to 50% of Employee's then annual
base salary rate.
(f) Employer agrees to continue to provide Employee with split dollar
life insurance in the initial face amount of $500,000 with paid-up additions
from dividends for up to the first 20 years of the policy in accordance with
Male Smoker Age 50 Presentation annexed hereto as Exhibit B. In the event and
at such time as Employee stops smoking in accordance with the insurance
company's regulations, any premium reductions resulting there from shall be
utilized to purchase additional life insurance for Employee under separate
policies in accordance with the available offerings. Employee hereby waives all
cash surrender rights under such policy and other benefits, if any, except for
the death benefit payable to beneficiaries.
(g) In addition, Employer agrees to provide to Employee and his
beneficiaries (''Beneficiaries'') as additional supplemental retirement benefits
("ASRB"), an amount so that the aggregate retirement benefits payable to
Employee and Beneficiaries under the Retirement Pension Plan for Employees of
Trans-Lux Corporation and Certain of its Subsidiaries and/or Affiliates
(''Plan'') plus such ASRB will equal the amount which would have been payable to
Employee and Beneficiaries under the Plan but for (i) the limitations on the
maximum annual benefits imposed by Section 415 of the Internal Revenue Code of
1986 (''IRC''), (ii) the limitations on the amount of annual compensation which
may be taken into account under Section 401(a)(17) of the IRC, and (iii) any
further limitations in benefits under the Plan resulting from statutory changes
or from modifications in the Plan required by statutory changes after December
31, 2001. It is understood that the purpose of this paragraph is that (a)
Employee and Beneficiaries shall receive as a result of the ASRB payment, the
full benefit which would otherwise have been payable from the Plan had no Plan
or statutory restrictions been imposed by law, and (b) that any additional taxes
payable by Employee on any ASRB payment as a result of such Plan or statutory
restrictions shall be paid to Employee by Employer grossed up in such manner as
to offset the effect of Employee's state and federal income taxes on such
payments. The obligations of Employer payable pursuant to this subparagraph (g)
are intended to be unfunded for income tax purposes and shall not constitute a
trust fund, escrow amount, amount set apart, or other account credited with
funds for the benefit of Employee or his Beneficiaries.
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 Section 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,
Employee shall not directly or indirectly (i) engage or otherwise he involved in
the recruitment or employment of the Employer's employees or any individual who
was such an employee within one (1) year of any such termination of employment,
(ii) solicit or assist in obtaining business from a customer of the Employer who
was a customer during the two (2) year period prior to termination of
employment, with respect to comments regarding Employer, or (iii) communicate,
publish, or otherwise transmit, in any manner whatsoever, untrue or negative
information or comments regarding Employer.
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 the event Employee separates from the service of the Employer (or
successor to Employer which assumes this Agreement) and all members of the
Corporate Group at the end of the Term or the end of the term of any "proposed
renewal contract" as hereinafter set forth in this Section, then, except as
hereinafter provided, Employer shall pay to Employee weekly or bi-weekly in
accordance with Employer's payroll practices as severance pay, an amount equal
to one hundred percent (100%) of Employee's base salary under Section 4(a) in
effect at time of termination of employment (e.g., at rate of $280,000 plus CPI
Adjustment per annum if termination is April 1, 2010) for a period of three (3)
years, or until Employee reaches age 65 or until Employee's death, whichever
first occurs. The foregoing severance payments shall not apply if (i) Employee
is discharged for cause or (ii) Employee rejects a "proposed renewal contract"
having a term of at least three (3) years and otherwise having at least the same
terms and conditions as in effect on March 31, 2010, or at the end of the term
of any subsequent renewal contract, provided no such renewal contract will
continue past Employee's 65th birthday and will automatically terminate on such
date unless the parties otherwise mutually agree in writing. Furthermore, if
Employee violates the confidentiality clause in Section 3 or violates or
challenges the enforceability of any of the clauses of this Section 7, Employer
may, in addition to all other remedies to which it is entitled, cease the
payments under this Section 7. The severance pay hereunder is not payable in
the event Employee dies during the Term or for any time period following his
death during the above severance pay period. In the event Employee is disabled
at the end of the Term and receiving payments under Section 4(c), then the
payment under this Section 7 shall be at the rate of fifty percent (50%), and
not one hundred percent (100%), of Employee's base salary under Section 4(a) in
effect at time of termination of employment and shall be in lieu of any payments
under Section 4(c) which payments shall terminate so that there is no
duplication of payment; provided, however, if such disability ceases prior to
the end of the two (2) year time period, the payment rate shall be one hundred
percent (100%) so long as any disability does not recur. During the period in
which Employer makes payment to Employee under this Section 7, Employee agrees
to be available for reasonable telephonic consultation as to matters Employee
worked on during the Term.
Notwithstanding the foregoing, no payment shall be made to the Employee on
account of severance prior to the first day of the seventh month following
separation from service. Payments delayed as a result of this provision shall
be made in a lump sum in the first payment of severance that coincides with or
next follows the first day of the seventh month following the Employee's
separation from service.
8. In the event any provision of Section 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. (a) Employee shall have the right to cancel and terminate this
Agreement effective within 75 days following a "Change in Control" as
hereinafter defined provided that Employee give 75 days' prior written notice to
the Employer. Upon such termination becoming effective pursuant to such notice
by Employee, (a) Employer and Employee shall be released from all further
liability and obligations provided for in the Agreement, except that Employee
shall still be subject to and bound by his obligations under Section 7 as
modified herein; (b) Employer shall pay to Employee his Bonus for the prior
calendar year (if not previously paid) as and to the extent provided for in
Section 4 (d); and (c) Employee shall be paid in a lump sum on the effective
date of termination the amount of $1,200,000. If Employee is disabled at the
time of this notice under this Section 9(a), the above payments shall be in lieu
of the payments provided under Section 4(c) which payments shall cease and
terminate at the end of the 75 day notice period. In the event of Employee's
death during the 75 day notice period, any amounts still payable to Employee by
reason of such termination shall be paid to his widow if she shall survive him,
or if she shall predecease him, to his surviving issue, per stirpes and not per
capita. The notice under this Section 9 must be given within 60 days of the
occurrence of the applicable event or be deemed waived. To the extent any such
payments made pursuant to this Section 9(a) above are deemed to be an "excess
parachute payment" under Section 2800 of the Internal Revenue Code of 1986, as
amended (the "Code") and are subject to tax pursuant to Section 4999 of the
Code, such payments shall be grossed up in such a manner as to offset the effect
of such excise tax on such payments. For purpose of this Section 9, the phrase
"Change in Control" shall have the meaning set forth in Section 9(d). For
further purposes of this Section 9(a) or in the event Employer rejects this
Agreement in a proceeding for relief under Chapter 11 of the Bankruptcy Code,
then, in either such case, the restriction in Section 7(ii) shall only apply to
a customer of Employer who was a customer during the six (6) month period prior
to termination of employment with respect to replacing Employer's leased
products with competitor's purchased or leased products or Employer's service
contracts with replacement service contracts for Employer's equipment, as long
as such service or lease agreement is in effect (including continuation of use
or other extension beyond the termination date thereof). The restrictions in
Section 7(i) and (iii) shall continue without modification, but the obligation
to provide telephonic consulting shall terminate.
(b) In the event there is a Change in Control when a change in the
majority of the Board of Directors is approved by Xxxxxxx Xxxxxx (or, in the
event of his death, a majority of Xxxxx Xxxxxx, Xxxxxxx Xxxxxx and Xxxxxx
Xxxxxx) then, notwithstanding such approval, (i) the Term of this Agreement
shall be extended for an additional three (3) years (each an "extended year")
through Xxxxx 00, 0000, (xx) the salary during each such extended year shall be
at the higher of the annual rate of Two Hundred Ninety Five Thousand Dollars
($295,000) or the salary rate in effect on March 31,2010 based on the CPI
Adjustment, (iii) the salary shall continue to be adjusted by the CPI Adjustment
for the last two years of the extended Term based on the increase from April 1,
2010, and (iv) Employee shall be entitled to a Bonus for each such extended year
equal to the greater of the Bonus rate in effect for 2009 or the highest annual
Bonus paid Employee during the five (5) calendar year period preceding such
approved Change in Control. In the event of a Change in Control, services
rendered by Employee for the balance of the Term will be of a type, dignity and
nature appropriate to the President and Chief Executive Officer of the Employer
and of similar responsibility and authority as then being rendered.
(c) In the event of a Change in Control under either (x) Section 9(a),
whether or not Employee terminates this Agreement, or (y) Section 9(b) above,
then Employer shall give Employee, (i) to the extent Employee did not receive
credit for service because a freeze was in effect, additional ASRB under Section
4(g) under the present Plan for the amount of such credit not realized because
of the freeze; and (ii) if the Employer discontinues such Plan, (x) additional
ASRB for the amount of credit for service not realized because of
discontinuance, and (y) ASRB as provided in Section 4(g) as if such Plan had not
been discontinued.
(d) For purpose of this Section 9, the phrase "Change in Control" shall
be deemed to have occurred if both the conditions in (i) and (ii) are satisfied,
such that both the Change in Control requirement in the Agreement prior to its
amendment and restatement and the Change in Control definition specified in the
final 409A regulations must be satisfied for the foregoing rights to be
exercised.
(i) A "Change in Control" shall occur if (x) any person (as such term
is used in Sections l3(d) and 14(d)(2) of the Securities Exchange Act of 1934)
hereafter becomes the beneficial owner, directly or indirectly, of securities of
Employer, representing 25% or more of the combined voting power of the
Employer's then outstanding securities (other than Xxxxxxx Xxxxxx and/or members
of his family, directly or indirectly through trusts or otherwise), and (y)
during any period of two (2) consecutive years, individuals who at the beginning
of such period constitute the Board of Directors of Employer cease by reason of
a contested election to constitute at least a majority thereof; unless Xxxxxxx
Xxxxxx (or, in the event of his death, a majority of Xxxxx Xxxxxx, Xxxxxxx
Xxxxxx and Xxxxxx Xxxxxx) shall have approved such change in the majority. For
further purposes of this Section 9(a) or in the event Employer rejects this
Agreement in a proceeding for relief under Chapter 11 of the Bankruptcy Code,
then, in either such case, the restriction in Section 7(ii) shall only apply to
a customer of Employer who was a customer during the six (6) month period prior
to termination of employment with respect to replacing Employer's leased
products with competitor's purchased or leased products or Employer's service
contracts with replacement service contracts for Employer's equipment, as long
as such service or lease agreement is in effect (including continuation of use
or other extension beyond the termination date thereof). The restrictions in
Section 7(i) and (iii) shall continue without modification, but the obligation
to provide telephonic consulting shall terminate.
(ii) Change in Control means a change in ownership as described in
paragraph (A), a change in effective control as described in paragraph (B), or a
change in ownership of a substantial portion of the assets of (1) the Company or
the member of the Corporate Group for whom the Employee is performing services
at the time of the Change in Control, (2) the corporation that is liable for the
payment of the deferred compensation under the Plan (or all corporations liable
for the payment if more than one corporation is liable) or (3) a corporation
that is a majority shareholder of the corporation identified in (1) or (2), or
any corporation in a chain of corporations in which each corporation is a
majority shareholder of another corporation in the chain, ending in a
corporation identified in (1) or (2) (individually and collectively, the
"Corporation").
(A) Change in Ownership. A change in the ownership occurs on the
date that any one person, or more than one person acting as a
group (as defined in paragraph (D)), acquires ownership of
stock of the Corporation that, together with stock held by such
person or group, constitutes more than 50 percent of the total
fair market value or total voting power of the stock of such
Corporation. However, if any one person or more than one
person acting as a group, is considered to own more than 50
percent of the total fair market value or total voting power of
the stock of the Corporation, the acquisition of additional
stock by the same person or persons is not considered to cause
a change in the ownership of the corporation (or to cause a
change in the effective control of the corporation (as
described in paragraph (B)). An increase in the percentage of
stock owned by any one person, or persons acting as a group, as
a result of a transaction in which the Corporation acquires its
stock in exchange for property will be treated as an
acquisition of stock for purposes of this section. This
paragraph (A) applies only when there is a transfer of stock of
the Corporation (or issuance of stock of the Corporation) and
stock in such Corporation remains outstanding after the
transaction.
(B) Change in the effective control of the Corporation.
Notwithstanding that the Corporation has not undergone a change
in ownership under paragraph (A), a change in the effective
control of a corporation occurs on the date that either -
(1) Any one person, or more than one person acting as a group
(as determined under paragraph (E)), acquires (or has
acquired during the 12-month period ending on the date of
the most recent acquisition by such person or persons)
ownership of stock of the Corporation possessing 30 percent
or more of the total voting power of the stock of such
corporation; or
(2) a majority of members of the Corporation's board of
directors is replaced during any 12-month period by
directors whose appointment or election is not endorsed by
a majority of the members of the Corporation's board of
directors prior to the date of the appointment or election,
provided that for purposes of this paragraph (2) the term
Corporation refers solely to the relevant corporation
identified in paragraph (i) for which no other corporation
is a majority shareholder for purposes of that paragraph.
(3) Multiple Change in Control Events. A change in effective
control also may occur in any transaction in which either
of the two corporations involved in the transaction has a
Change in Control under paragraph (A) or (C).
In the absence of an event described in paragraph (1), (2), or (3) a change in
the effective control of a Corporation will not have occurred. Further, if any
one person, or more than one person acting as a group, is considered to
effectively control a Corporation, the acquisition of additional control of the
Corporation by the same person or persons is not considered to cause a change in
the effective control of the Corporation (or to cause a change in the ownership
of the corporation within the meaning of paragraph (b).
(C) Change in the ownership of a substantial portion of a
Corporation's assets. A change in the ownership of a
substantial portion of a Corporation's assets occurs on the
date that any one person, or more than one person acting as a
group (as determined in paragraph (E)), acquires (or has
acquired during the 12-month period ending on the date of the
most recent acquisition by such person or persons) assets from
the Corporation that have a total gross fair market value equal
to or more than 40 percent of the total gross fair market value
of all of the assets of the Corporation immediately prior to
such acquisition or acquisitions. For this purpose, gross fair
market value means the value of the assets of the Corporation,
or the value of the assets being disposed of, determined
without regard to any liabilities associated with such assets.
(D) Transfers to a related person. Notwithstanding the foregoing,
there is no Change in Control under paragraph (C) when there is
a transfer to an entity that is controlled by the shareholders
of the transferring corporation immediately after the transfer,
as provided in this paragraph (D). A transfer of assets by a
corporation is not treated as a change in the ownership of such
assets if the assets are transferred to -
(1) A shareholder of the Corporation (immediately before the
asset transfer) in exchange for or with respect to its
stock;
(2) An entity, 50 percent or more of the total value or voting
power of which is owned, directly or indirectly, by the
Corporation;
(3) A person, or more than one person acting as a group, that
owns, directly or indirectly, 50 percent or more of the
total value or voting power of all the outstanding stock of
the Corporation; or
(4) An entity, at least 50 percent of the total value or voting power of which
is owned, directly or indirectly, by a person described in paragraph (3).
For purposes of this paragraph (D) and except as otherwise provided, a person's
status is determined immediately after the transfer of the assets. For example,
a transfer to a corporation in which the transferor corporation has no ownership
interest before the transaction, but which is a majority-owned subsidiary of the
transferor corporation after the transaction is not treated as a change in the
ownership of the assets of the transferor corporation.
(e) Persons acting as a group. For purposes of paragraphs (A), (B) and
(C), persons will not be considered to be acting as a group solely because they
purchase or own stock or purchase assets of the same corporation at the same
time, or as a result of the same public offering. However, persons will be
considered to be acting as a group if they are owners of a corporation that
enters into a merger, consolidation, purchase or acquisition of stock, or
similar business transaction with the corporation. If a person, including an
entity, owns stock in both corporations that enter into a merger, consolidation,
purchase or acquisition of stock, or similar transaction, such shareholder is
considered to be acting as a group with other shareholders in a corporation only
with respect to and to the extent of the ownership in that corporation prior to
the transaction giving rise to the change and not with respect to the ownership
interest in the other corporation.
(f) Stock ownership. Code Section 318(a) shall apply for purposes of
determining stock ownership under this Section.
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 Chairman or Chief Financial Officer, 00 Xxxxx Xxxxxx, Xxxxxxx
00000, 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 January 1, 2009 the Agreement between Employer and Employee
dated as of April l, 2005 as amended. 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/ Xxxxxx X. Xxxxx
-------------------------------------
Executive Vice President
/s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxx (as "Employee")
President and Chief Executive Officer
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