December 31, 2008
Moving Images, LLC
c/o David Brandt
113 Buckingham Road
Upper Montclair, NJ 07043
Gentlemen:
Reference is made to your Consulting Agreement with Trans-Lux
Corporation
("TLX") made as of December 1, 2004 as heretofore amended (the
"Agreement").
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 TLX and Consultant 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
Consultant in order to comply with the 409A Requirements;
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOW:
1. Section 3(f) of the
Agreement, which provides for certain payments to be
made to Consultant while Consultant or Richard Brandt is prevented
from
performing or unable to perform the duties specified by reason of
illness or
other incapacity, is amended such that the reference to such
illness or other
incapacity shall be deemed a reference to "disability" or
"disabled" and subject
to the following definitions:
For
purposes of the Agreement, Richard Brandt shall be considered to
be
"disabled" or have a "disability" if he meets one of the following
requirements:
(A) He 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) He 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 Consultants of the
Company.
He 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 3(f).
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2. Sections 3(b) and
3(c) of the Agreement provide for Consultant to be granted
a Profit Participation and Bonus (herein collectively "Bonus") as
defined
therein under certain circumstances. The 409A Requirements mandate
such
payments either be made by two and one half months following TLX's
fiscal year
end or normally March 15 of following year in absence of leap year,
without any
possibility of further deferral, or the Consultant make an election
to defer the
Bonus in accordance with the 409A Requirements. Accordingly, to enable TLX to
avoid any risk of penalty in the event such March 15 date is not
met, Consultant
agrees to defer payment of any Bonus for any fiscal year commencing
with 2009
until the June 1 following the end of such fiscal year.
Consultant is aware
of
the restrictions on changing such deferral to another date.
The last sentence
of Section 3(b) of such Bonus provision on non-liability is still
applicable to
any delay in finalizing such financial results. Furthermore, the right of
Consultant to receive Common Stock and/or Class A Stock as part or
full payment
of any Bonus in Section 3(d) is deleted.
3. Not used.
4. Sections 4(a) and
4(b) of the Agreement are amended by adding the following
sentence: Consultant
hereby waives all cash surrender rights under any such
insurance policy and other benefits, if any, except for the death
benefits
payable to beneficiaries."
5. Sections 2(b) and
2(c) of the Agreement are amended by adding the following
definition of Change of Control required by the 409A Requirements
as an
additional trigger so that both the Change in Control provision
currently in the
Agreement and the 409A Requirement definition must be satisfied
since the 409A
Requirement definition might enable Consultant to exercise rights
under the
Agreement even though the existing provision is not satisfied.
(i) Change
in Control under the 409A Requirements 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 TLX or the member of the Corporate Group
(i.e. its
subsidiaries or any new parent corporation) for whom the Consultant
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
