EMPLOYMENT AGREEMENT
AGREEMENT, dated as of October 1, 1999, between XXXXX XXXX
(hereinafter called "Horn") and VICON INDUSTRIES, INC., a New York corporation,
having its principal place of business at 00 Xxxxx Xxxxx, Xxxxxxxxx, Xxx Xxxx
00000 (hereinafter called the "Company").
WHEREAS, Horn has previously been employed by the Company, and
WHEREAS, the Company and Horn mutually desire to assure the
continuation of Horn's services to the Company,
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein set forth, the parties covenant and agree as follows:
1. Employment. The Company shall employ Horn as its Vice President
of Quality Assurance and Compliance throughout the term of this Agreement, and
Horn hereby accepts such employment.
2. Term. The term of this Agreement shall commence as of the date of
this Agreement and end on September 30, 2001, unless terminated earlier by the
Company for cause.
3. Compensation.
A. The Company shall pay Horn a base salary
of $130,000 per annum, subject to periodic adjustment as determined by the
President of the Company with Board of Directors approval, but in any event
shall not be less than the base salary so indicated. Beginning October 1, 1999
to the end of this agreement, the base salary shall be adjusted upward by an
amount at least equal to the Consumer Price Index - All Urban Consumers factor
for the previous twelve months.
X. Xxxx'x base salary shall be payable monthly or bi-weekly.
X. Xxxx shall also be entitled to participate in any life
insurance, medical, dental, hospital, disability or other benefit plans as may
from time to time be made available to non-executive officers of the Company,
subject to the general eligibility requirements of such plans.
4. Covenant not to Compete. Horn agrees that during the term of
this Agreement and for a period thereafter equal to the length of severance as
calculated in paragraph 5A, he shall not directly or indirectly within the
United States or Europe engage in, or enter the employment of or render any
services to any other entity engaged in, any business of a similar nature to or
in competition with the Company's business of designing, manufacturing, and
selling security equipment and protection devices anywhere in the United States
and Europe. Horn further acknowledges that the services to be rendered under
this Agreement by him are special, unique, and of extraordinary character and
that a material breach by him of this section will cause the Company to suffer
irreparable damage; and Horn agrees that in addition to any other remedy, this
section shall be enforceable by negative or affirmative preliminary or permanent
injunction in any Court of competent jurisdiction. Horn acknowledges that he may
only be released from this covenant if the Company materially breech's this
agreement or provides a written release of this provision.
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5. Severance Payment on Certain Terminations.
A. If either this Agreement expires, or the Company terminates
Horn's employment under this Agreement for reasons other than "Gross
Misconduct", then Horn, at his option, may elect to receive severance payments,
without reduction for any offset or mitigation, in an amount equal to (a)
one-twelfth Horn's annual base salary at the time of such termination multiplied
by (b) the number of full years of Horn's employment by the Company up to a
maximum of 24 years.
B. "Gross Misconduct" shall mean (a) a wilful, substantial and
unjustifiable refusal or inability due to drug or alcohol impairment to perform
substantially the duties and services required of his position; (b) fraud,
misappropriation or embezzlement involving the Company or its assets; or (c)
conviction of a felony involving moral turpitude.
Horn's option to elect to receive severance payments may be
exercised only by written notice delivered to the Company within 90 days
following the date on which Horn's receives actual notice of termination or this
Agreement expires, as the case may be.
In the event of an election under this section, payment of such
severance shall be in lieu of any other obligation of the Company for severance
payment or other post-termination compensation under this Agreement if any.
The severance amount shall be paid in equal monthly payments over
a 12 month period.
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6. Termination Payment on Change of Control.
A. Notwithstanding any other provision of this Agreement, if a
"Change of Control" occurs without the consent of the Board of Directors, Horn,
at his option, may elect to terminate his obligations under this Agreement and
to receive a termination payment, without reduction for any offset or
mitigation, in an amount equal to three times his average annual base salary for
the five years preceding the Change of Control, in either lump sum or extended
payments over three years as Horn shall elect.
B. A "Change of Control" shall be deemed to have occurred if any
entity shall directly or indirectly acquire beneficial ownership of 50% or more
of the outstanding shares of capital stock of the Company.
X. Xxxx'x option to elect to terminate his obligations and to
receive a termination payment and to elect to receive a lump sum or extended
payments may be exercised only by written notice delivered to the Company within
90 days following the date on which Horn receives actual notice of Change of
Control.
7. Death or Disability. The Company may terminate this Agreement at its
sole option and determination if during the term of this Agreement (a) Horn dies
or (b) Horn becomes so disabled for a period of six months that he is
substantially unable to perform his duties under this Agreement for such period.
The Company shall be the sole judge of whether Horn is disabled or not.
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8. Arbitration. Any controversy or claim arising out of, or relating to
this Agreement, or the breach thereof, shall be settled by arbitration in the
City of New York in accordance with the rules of the American Arbitration then
in effect, and judgement upon the award rendered be entered and enforced in any
court having jurisdiction thereof.
9. Miscellaneous.
A. Except for stock options previously granted, this Agreement
contains the entire agreement between the parties and supersedes all prior
agreements by the parties relating to payments by the Company upon involuntary
employment termination with or without cause, however, it does not restrict or
limit such other benefits as the President may determine to provide or make
available to Horn.
B. This agreement may not be waived, changed, modified or
discharged orally, but only by agreement in writing, signed by the party against
whom enforcement of any waiver, change, modification, or discharge is sought.
C. This Agreement shall be governed by the laws of New York State
applicable to contracts between New York State residents and made and to be
entirely performed in New York State.
D. If any part of this Agreement is held to be unenforceable by
any court of competent jurisdiction, the remaining provisions of this Agreement
shall continue in full force and effect.
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E. This Agreement shall inure to the benefit of, and be binding
upon, the Company, its successor, and assigns.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement.
VICON INDUSTRIES, INC.
By
Xxxxx Xxxx Xxxxxxx X. Xxxxx
Vice President - Operations President
Vicon Industries, Inc.
Date: Date:
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