EXHIBIT 10.23
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EMPLOYMENT AGREEMENT
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AGREEMENT, dated as of October 31, 2005, between Bret M. McGowan
(hereinafter called "McGOWAN") 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 McGOWAN mutually desire to assure the continuation
of McGOWAN'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 McGOWAN as its Vice President -
U.S. Sales and Marketing throughout the term of this Agreement, and McGOWAN
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, 2006 unless terminated earlier by the
Company.
3. Compensation.
A. The Company shall pay McGOWAN a base salary of $145,000 per annum,
subject to periodic adjustment as determined by the CEO of the Company with
Board of Directors approval.
B. McGOWAN's base salary shall be payable monthly or bi-weekly.
C. McGOWAN shall also be entitled to participate, if a full time
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 and provisions of such plans.
4. Covenant not to Compete. McGOWAN agrees that during the term of this
Agreement or any replacement Agreement and for a period of two (2) years
thereafter, or at anytime McGowan is receiving Severance or Retirement payments
under Section 5 herein, 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. McGOWAN 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 McGOWAN 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.
McGOWAN acknowledges that he may only be released from this covenant if the
Company materially breach's this Agreement or provides to him a written release
of this provision. This clause shall survive the expiration or termination of
this Agreement.
5. Severance/Retirement Payment on Certain Terminations or Events.
A. If either McGOWAN retires (anytime after attaining the minimum
retirement age of 60) or the Company terminates McGOWAN's employment with
the Company for reasons other than "Misconduct"; or dies while still a full
time employee, or is terminated under paragraph 7 herein, then McGOWAN, or
his survivor shall be entitled to receive severance or retirement payments
as the case may be, without reduction for any offset or mitigation, in an
amount equal to $290,000. This Section 5 shall survive the expiration of
this Agreement. If this Agreement expires and McGOWAN is required to
perform his services outside of Long Island or is required to take any base
salary reduction, then McGOWAN's employment shall be deemed to have been
effectively terminated under this Section 5.
B. "Misconduct" shall mean (a) a refusal or negligence, or inability,
due to drug or alcohol impairment or indifference to perform (in
performing) the duties and responsibilities required of his position; (b)
fraud, misappropriation or embezzlement involving the Company or its
assets; or (c) conviction of a felony involving moral turpitude; or (d) a
violation of the Company's Code of Ethics and Conduct.
C. In the event of payment of severance under this Section 5, such
payments shall be in lieu of any other obligation by the Company for
accrued compensation benefit of any kind at the time of termination. Post
termination stock option exercises in accordance with Plan provisions are
excepted.
D. The severance amount shall be paid in equal monthly payments over a
24-month period. Should McGOWAN be in violation of Paragraph 4, severance
payments shall cease at that time.
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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, McGOWAN,
at his option, may elect to terminate his rights and 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
present value lump sum or extended payments over three years as McGOWAN
shall elect.
B. A "Change of Control" shall be deemed to have occurred if any
entity or person shall directly or indirectly acquire beneficial ownership
of 50% or more of the then outstanding shares of capital stock of the
Company.
C. McGOWAN's option to elect to terminate his obligations and to
receive a termination payment as either a present value lump sum or
extended payments may be exercised only by written notice delivered to the
Company within 90 days following the date on which McGOWAN receives actual
notice of a Change of Control. In selecting this option the Company shall
have no obligation to McGowan for any severance payments under paragraph 5.
7. Death or Disability. The Company may terminate this Agreement and cease
all salary and benefits due thereunder, at its sole option and determination, if
during the term of this Agreement (a) McGOWAN dies or (b) McGOWAN 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
Association then in effect, and judgement upon the award rendered be entered and
enforced in any court having jurisdiction thereof.
9. Miscellaneous.
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 CEO may
determine to provide or make available to McGOWAN.
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
principally 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:________________________
Bret M. McGowan Kenneth M. Darby
CEO
Vicon Industries, Inc.