EMPLOYMENT AND DEFERRED COMPENSATION AGREEMENT EXHIBIT 10.5
AGREEMENT, dated as of October 1, 1997, between KENNETH M. DARBY
(hereinafter called "Darby") 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, Darby has previously been employed by the
Company, and
WHEREAS, the Company and Darby mutually desire to assure
the continuation of Darby'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 Darby as its Chief Executive
Officer and President throughout the term of this Agreement, and Darby accepts
such employment.
2. Term. The term of this Agreement shall commence as of the date of
this Agreement and end on September 30, 2002.
3. Compensation.
A. The Company shall pay Darby a base salary of $225,000 per
annum, subject to adjustment as provided in subsection B.
B. Prior to September 15 of each succeeding year, Darby's base
salary shall be reviewed by the Compensation Committee of the Board of Directors
and shall be fixed for the year commencing October 1 of such year by agreement
between Darby and the Board of Directors, but in any event shall not be less
than the
base salary for the one year period then ending.
C. Darby's base salary shall be payable monthly or bi-weekly.
D. Darby shall also be entitled to participate in any pension,
profit sharing, life insurance, medical, dental, hospital, disability or other
benefit plans as may from time to time be available to officers of the Company.
4. Extent and Places of Services; Vacation A. Darby shall establish
operating policy and
direct, supervise and oversee the operations of the Company. He shall advise and
report to the Board of Directors. Darby shall also assume and perform such
additional reasonable responsibilities and duties as the Board of Directors and
he may from time to time agree upon.
B. Darby shall devote his full time, attention, and energies to
the business of the Company.
C. Darby shall not be required to perform his services outside
the Hauppauge, New York area or such other area on Long Island, New York as
shall contain the location of the Company's headquarters.
D. The Company shall provide Darby will office space, secretary,
telephones and other office facilities appropriate to his duties.
E. Darby shall be entitled to one month's vacation per annum.
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5. Covenant not to Compete. Darby agrees that during the term of
this Agreement and for a period of three 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. Darby 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 Darby 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.
6. Termination Payment on Change of Control.
A. Notwithstanding any provision of this Agreement,
if a "Change of Control" occurs without the prior written consent of the Board
of Directors, Darby, 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 Darby shall elect.
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B. A "Change of Control" shall be deemed to have occurred if (i)
any entity shall directly or indirectly acquire a beneficial ownership of 20%
(or in the case of Chugai Boyeki Co., Ltd. and its affiliates 35%) or more 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.
C. Darby'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 Darby receives actual notice of Change of
Control.
D. If Darby elects to receive lump sum payment, such payment
shall be made within 30 days of the Company's receipt of Darby's notice of
election.
7. Severance Payment on Certain Terminations.
A. If either (i) this Agreement expires, or (ii)
the Company terminates Darby's employment under this Agreement for reasons other
than "Gross Misconduct",or (iii) with the consent of the Board of Directors a
Change of Control as defined in paragraph 6 B. shall occur, or (iv) the Company
executes a "Company Sale Agreement" then Darby, at his option, may elect to
receive a severance payment, without reduction for any offset or mitigation,
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in an amount equal to (a) one-twelfth his annual base salary at the time of such
termination multiplied by (b) the number of full years of his employment to the
end of this Agreement by the Company up to a maximum of 24 years, payable in
either lump sum or extended payments as Darby shall elect.
B. "Company Sales Agreement" means an agreement to which the
Company is a party that contemplates that more than half of the assets of the
Company are transferred to another entity or that upon consummation of the
transactions contemplated by such agreement, a Change of Control as defined in
paragraph 6 shall occur or have occurred.
C. In the event of an election under paragraph 7, payment of such
severance payment shall be in lieu of any obligation of the Company for
termination payment or other post- termination compensation under this
Agreement, if any.
D. "Gross Misconduct" shall mean (a) a wilful, substantial and
unjustifiable refusal to perform substantially the duties and services required
by this Agreement to be performed; (b) fraud, misappropriation or embezzlement
involving the Company or its assets; or (c) conviction of a felony involving
moral turpitude.
E. Darby's option to elect to receive severance payment and to
elect to receive lump sum or extended payments may be exercised only by written
notice delivered to the Company within 90 days following the date on which this
Agreement expires or on
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which Darby receives actual notice of the existence of any other condition
referred to in paragraph 7A, except that, in the case of the Company's execution
of a Company Sale Agreement, Darby's option may be exercised at any time prior
to the closing under such agreement and such termination shall be effective as
of such closing.
F. If Darby elects to receive lump sum payment, such payment
shall be made within 30 days of the Company's receipt of Darby's notice of such
election, except that, in the case of the Company's execution of a Company Sale
Agreement, the payment shall be made no later than the time of closing under
such agreement.
G. Payment of termination or severance payment shall not affect
the Company's obligations under any other agreement with Darby.
8. Deferred Compensation.
A. 45,952 shares of the Company's stock now held by the Company
as treasury shares (the "Deferred Compensation Shares") shall be set aside and
held by the Company for future distribution to Darby under this paragraph.
B. As deferred compensation, and in addition to all other
compensation payable to Darby, the Deferred Compensation Shares shall become the
property of Darby, and the Company shall deliver the certificates for the
Deferred Compensation Shares to Darby (or his executor or administrator), on the
Transfer Date, registered in Darby's name, within 10 days thereafter. The
Transfer Date shall be the earliest of (i) the date of Darby's
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death; (ii) the date as of which Darby's employment by the Company involuntarily
terminates; (iii) the date of execution of a Company Sale Agreement as defined
in paragraph 7; (iv) the occurrence of a Change of Control as defined in
paragraph 6; or (v) expiration of this Agreement (including any replacement
agreement).
C. Notwithstanding any other provision of this paragraph, Darby
shall not be entitled to any Deferred Compensation Shares if the Company
terminates this Agreement for Gross Misconduct as defined in paragraph 7.
D. Prior to the Transfer Date, Darby's rights to the Deferred
Compensation Shares shall not be transferrable and the Treasury Shares shall be
the property of the Company.
E. Darby represents that he will be acquiring the Deferred
Compensation Shares for investment only and without a view to the distribution
thereof and that the Deferred Compensation Shares, when delivered to him, may
constitute restricted stock under the Securities Act of 1933, and the
regulations thereunder, and that the certificates therefor shall bear such
legend relating to this subparagraph as the Company shall reasonably require.
9. Death or Disability. The Company may terminate this Agreement if
during the term of this Agreement (a) Darby dies or (b) Darby becomes so
disabled for a period of six months that he is substantially unable to perform
his duties under this Agreement for such period. Such termination shall not
release the Company from any liability to Darby for compensation earned, or for
termination or severance due in accordance with paragraph 7 herein.
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Agreement termination under this paragraph shall not be deemed a termination of
employment for Gross Misconduct.
10. 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.
11. Miscellaneous.
A. Except for any deferred compensation agreement, retirement
plan or stock options previously granted, this Agreement contains the entire
agreement between the parties and supersedes all prior agreements by the parties
relating to the term of Darby's employment by the Company, however, it does not
restrict or limit such other benefits as the Board of Directors may determine to
provide or make available to Darby.
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
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
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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
Kenneth M. Darby Peter F. Neumann
Chairman
Compensation Committee
Date:
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