EXHIBIT 10.24
EMPLOYMENT AGREEMENT
AGREEMENT, dated as of August 7, 2006, 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, 2007 unless terminated earlier by
the Company for "Misconduct".
3. Compensation.
A. The Company shall pay McGOWAN a base salary of $155,000 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, benefits, or
perquisites (customarily provided) 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.
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, (excluding liability under
Section 5) 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.
/s/ Bret M. McGowan By: /s/ Kenneth M. Darby
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Bret M. McGowan Kenneth M. Darby
CEO
Vicon Industries, Inc.