Exhibit 10.2
EMPLOYMENT AGREEMENT
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AGREEMENT, dated as of April 1, 2001, between John M. Badke
(hereinafter called "BADKE") and VICON INDUSTRIES, INC., a New York corporation,
having its principal place of business at 89 Arkay Drive, Hauppauge, New York
11788 (hereinafter called the "Company").
WHEREAS, the Company and BADKE mutually desire to assure the
continuation of BADKE'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 BADKE as its Vice
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President of Finance and Chief Financial Officer throughout the term of this
Agreement, and BADKE hereby accepts such employment.
2. Term. The term of this Agreement shall commence as of the
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date of this Agreement and end on September 30, 2003 unless terminated
earlier by the Company.
3. Compensation.
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A. The Company shall pay BADKE 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.
B. BADKE's base salary shall be payable monthly or bi-weekly.
C. BADKE shall also be entitled to participate, if an employee,
in any life insurance, medical, dental, hospital, disability, 401(k) or other
benefit plans as may from time to time be made available to the officers of the
Company, subject to the general eligibility requirements of such plans.
4. Covenant not to Compete.
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BADKE agrees that during the term of this Agreement and for a
period of 12 months 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 video security and surveillance equipment and protection devices
anywhere in the United States and Europe. BADKE 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 BADKE 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. BADKE acknowledges that he may only be released from this covenant
if the Company materially breach's this agreement or provides a written release
of this provision.
5. Severance Payment on Certain Terminations or Events.
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A. If the Company terminates BADKE's employment under this Agreement for
reasons other than "Misconduct" then BADKE, at his option, may elect to receive
severance payments or the balance of the amount owing under this agreement,
whichever is greater, except in the case of disability under paragraph 7,
without reduction for any offset or mitigation. The severance amount shall be
equal to one month of Badke's annual base salary at the time of such termination
for each full year of service up to a maximum of 12 months.
B. "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.
C. BADKE's option to elect to receive severance payments may be exercised
only by written notice delivered to the Company within 30 days following the
date on which BADKE receives actual notice of termination.
D. 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.
E. The severance amount shall be paid in equal monthly payments over the
number of months determined in 5A above.
6. Termination Payment on Change of Control.
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A. Notwithstanding any other provision of this Agreement, if a
"Change of Control" occurs without the consent of the Board of Directors, BADKE,
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 present
valued or extended payments over three years as BADKE 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 then outstanding shares of capital stock of the Company.
C. BADKE's 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 BADKE receives actual notice of a Change of
Control. In selecting this option the Company shall have no obligation to BADKE
for any severance payments under paragraph 5.
7. Death or Disability.
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The Company may terminate this Agreement at its sole option and
determination without liability for severance payments under paragraph 5 if
during the term of this Agreement (a) BADKE dies or (b) BADKE 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.
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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.
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A. 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 BADKE.
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.
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:----------------------
John M.Badke Kenneth M. Darby
CEO
Vicon Industries, Inc.