EMPLOYMENT AGREEMENT EXHIBIT 10.7
AGREEMENT, dated as of October 1, 1997, between XXXX XXXXXX
(hereinafter called "Xxxxxx") and VICON INDUSTRIES, INC., a New York
corporation, having its principal place of business at 000 Xxxxx Xxxxxx Xxxx,
Xxxxxxxx, Xxx Xxxx 00000 (hereinafter called the "Company").
WHEREAS, Xxxxxx has previously been employed by the
Company, and
WHEREAS, the Company and Xxxxxx mutually desire to assure
the continuation of Xxxxxx'x 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 Xxxxxx as its Vice President
of U.S. Sales throughout the term of this Agreement, and Xxxxxx hereby accepts
such employment.
2. Term. The term of this Agreement shall commence as of the date of
this Agreement and end on March 31, 1999.
3. Compensation.
A. The Company shall pay Xxxxxx a base salary of $120,000 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.
X. Xxxxxx'x base salary shall be payable monthly or bi-weekly.
X. Xxxxxx shall also be entitled to participate in any bonus,
profit sharing, life insurance, medical, dental, hospital, disability, 401(k) or
other benefit plans as may from time to time be available to officers of the
Company, subject to the general eligibility requirements of such plans.
4. Covenant not to Compete. Xxxxxx agrees that during the term of
this Agreement and for a period of two years thereafter, 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 CCTV security equipment and protection
devices anywhere in the United States and Europe. Xxxxxx 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 Xxxxxx 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. Xxxxxx acknowledges that he may only be released from
this covenant if the Company materially breach's this agreement or provides to
Xxxxxx 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 Xxxxxx'x employment under this Agreement for reasons other than
"Gross Misconduct", then Xxxxxx, at his option, may elect to receive severance
payments except in the case of disability under paragraph 7, without reduction
for any offset or mitigation, in an amount equal to (a) one-twelfth Xxxxxx'x
annual base salary at the time of such termination multiplied by (b) the number
of full years of Xxxxxx'x employment by the Company which shall be no less than
three years and up to a maximum of 6 years.
B. "Gross Misconduct" shall mean (a) a wilful, substantial and
unjustifiable refusal 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.
Xxxxxx'x 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 Xxxxxx 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.
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The severance amount determined in 5A above shall be paid in equal
monthly payments over the number of full years of Xxxxxx'x employment.
6. Termination Payment on Change of Control.
A. Notwithstanding any other provision of this
Agreement, if a "Change of Control" occurs without the prior written consent of
the Board of Directors, Xxxxxx, 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 or
shorter period of actual employment, in either lump sum or extended payments
over three years as Xxxxxx shall elect.
B. A "Change of Control" shall be deemed to have occurred if (i) any
other entity shall directly or indirectly acquire beneficial ownership of 20%,
or any further amount in excess of 20%, of the outstanding shares of capital
stock of the Company or (ii) a majority of the members of the Board of Directors
of the Company or any successor by merger or assignment of assets or otherwise,
shall be persons other than Directors on the date of this Agreement.
X. Xxxxxx'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 Xxxxxx receives actual notice of Change of
Control.
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7. Death or Disability. The Company may terminate this Agreement without
liability for severance payments under paragraph 5 if during the term of this
Agreement (a) Xxxxxx dies or (b) Xxxxxx 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 such
disability.
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 or Board of Directors may determine
to provide or make available to Xxxxxx.
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.
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C. This Agreement shall be governed by the laws of New York
applicable to contracts between New York residents and made and to be entirely
performed in New York.
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.
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
Xxxx Xxxxxx Xxxxxxx X. Xxxxx
Vice President - U.S. Sales President
Vicon Industries, Inc.
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