EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Employment Agreement") made and entered
into as of the 30th day of May, 1997, by and between Audio Communications
Network, Inc., a Florida corporation (the "Company"), with its principal place
of business at 1000 Legion Place, Suite 1515, Orlando, Florida 3280 1, and A. J.
Schell ("Schell"), of Winter Park, Florida (together, the "Parties").
WHEREAS, Schell has been a director and officer of the Company prior to
the date of this Employment Agreement and has substantial experience and
knowledge with respect to the business of the Company; and
WHEREAS, the Company desires to employ Schell and Schell desires to
accept employment with the Company on the terms and conditions set forth in this
Employment Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
hereinafter set forth and the mutual benefits derived herefrom, the Parties,
intending to be legally bound, covenant and agree as follows:
1. EMPLOYMENT. The Company hereby employs Schell and Schell hereby
accepts employment under the terms and conditions hereinafter set forth.
2. TERM. The term of this Employment Agreement shall commence as of the
date hereof and except as provided in Sections 4(b), 8 and 9 or in the next
succeeding sentence shall terminate on the third anniversary of the date hereof.
The Company may terminate this Employment Agreement with or without cause, and
Schell may terminate this Employment Agreement for "Good Reason." "Good Reason"
shall mean the breach by the Company of its obligations under the Employment
Agreement after (a) Schell has given written notice of such breach to the
Company and (b) fifteen (15) days has elapsed following such notice and such
breach has not been cured by the Company.
For purposes of this Employment Agreement, any good faith determination
of "Good Reason" made by Schell shall be conclusive.
3. DUTIES. Commencing as of the date of this Employment Agreement and
continuing thereafter during the term thereof, Schell agrees to provide services
to the Company (i) as Chairman of the Board of Directors, (ii) by seeking
potential acquisitions for the Company and assisting with the negotiation of the
same, (iii) counseling as to acquisitions not originated by Schell, (iv)
assisting with the general oversight of franchise managers and corporate staff
relative to the Company's mission, including work in the field and with respect
to personnel matters, (v) assisting with maintaining relations with investors,
financial institutions and the financial community, and (vi) such other general
management duties as may directed from time
to time by the Board of Directors of the Company. The Company acknowledges and
agrees that it will not require Schell to be based at any office or location
other than the Company's principal offices in the metropolitan area of Orlando,
Florida, except for travel reasonably required in the performance of Schell's
responsibilities.
4. COMPENSATION.
(a) (i) The Company shall make a payment to Schell of one hundred
thousand dollars per annum ($100,000.00), payable in equal amounts at intervals
not less frequently than monthly.
(ii) In the event that Schell's employment or this
Employment Agreement is terminated for any reason (including death or
disability), installments not previously paid under this Section 4 and Section 7
shall continue to be payable to Schell (or his estate, as the case may be), and
the benefits provided by Section 4(b) shall continue to be furnished to Schell,
his spouse and any covered dependents, all in accordance with the terms of this
Employment Agreement.
(b) The Company agrees (i) to furnish Schell during the term of
this Employment Agreement with certain benefits, including but not limited to
health insurance and other insurance benefits, target benefit plan or comparable
benefits, automobile allowance (and the reimbursement of automobile related
expenses) and country club dues, all on terms no less favorable than heretofore
granted to Schell by the Company, and (ii) to provide health insurance benefits
to Schell, his spouse and any covered dependents during the term of this
Employment Agreement and until the sixth anniversary of the date of this
Employment Agreement.
(c) The Company agrees to reimburse all expenses incurred by
Schell in furtherance of the business, including, but not limited to, office
expenses, travel and entertainment expenses, and communication expenses,
consistent with the reimbursement policies of the Company at the date of this
Employment Agreement.
5. NON-EXCLUSIVITY OF RIGHTS. Nothing in this Employment Agreement shall
limit or prevent nor require Schell's participation in any welfare plans,
programs, practices or policies provided by the Company or any subsidiary for
which Schell may qualify.
6. NONDISCLOSURE OF CONFIDENTIAL BUSINESS INFORMATION.
Schell acknowledges that he has held a sensitive management position with the
Company and will continue to perform services for the Company as provided in
this Employment Agreement and that, by virtue of having held this position, he
has had access to and has learned (and will continue to have access to and to
learn) the Company's confidential and proprietary information and trade secrets
pertaining to its business operations (the "Confidential Business Information").
Examples of such Confidential Business Information include, but are not limited
to, information as to the Company's products, services, systems, software,
finances (including prices, costs and revenues), marketing plans, programs,
methods of operation, prospective and existing contracts,
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other business arrangements or business plans, procedures, strategies (including
acquisition strategies), customer lists, referral sources, and other information
concerning the Company's practices and procedures. Schell agrees that he will
not, during the term of this Employment Agreement, or for three years after the
termination of this Employment Agreement, disclose such Confidential Business
Information or any part thereof, to any person, firm or corporation, association
or other entity for any reason or purpose whatsoever, except as may be normal
and required in connection with the operation of the business of the Company. In
the event of a breach or a threat to breach by Schell of the provisions of this
Section, the Company shall be entitled to an injunction restraining Schell from
disclosing in whole or in part such Confidential Business Information, or from
rendering any services to the firm, corporation, association or other entity to
whom such Confidential Business Information in whole or in part has been
disclosed, or is threatened to be disclosed. Nothing herein contained shall be
construed as prohibiting the Company from pursuing any other remedies available
to the Company for such breach, or threatened breach, including the recovery of
damages.
7. EFFECT ON PRIOR EMPLOYMENT AGREEMENT. This Employment Agreement
supersedes and terminates the Employment Agreement dated as of July 18, 1989
between the Company and Schell, as amended by the Amendment and Supplement dated
as of September 1, 1993 (the "Former Employment Agreement"). Each party
acknowledges and agrees that the Former Employment Agreement constituted the
legal, valid and binding obligations of such party, and that such Agreement was
approved by a majority of the disinterested directors. In consideration of the
termination of the Former Employment Agreement and the execution and delivery of
this Employment Agreement by Schell, the Company shall make a payment to Schell
of five hundred thousand dollars ($500,000) on each of January 2, 1998, January
4, 1999 and January 3, 2000. Payments hereunder are secured pursuant to the
provisions of the Pledge Agreement annexed hereto as Exhibit A.
8. RESTRICTIVE COVENANT. In addition to the Confidential Business
Information described in Section 6 above, Schell acknowledges that he has
developed and will continue to develop substantial relationships with the
Company's prospective or existing customers as a result of his past and future
employment with the Company. Schell also acknowledges that, contemporaneously
with the execution of this Employment Agreement, Suncom Communications L.L.C., a
Delaware limited liability company ("Suncom") is consummating the purchase of
597,986 shares of the Company's common stock, par value $0.25 per share (the
"Common Stock") from Schell pursuant to a Stock Purchase Agreement by and
between Suncom and Schell dated as of November 19, 1996 (the "Stock Purchase
Agreement"). Schell agrees that a restrictive covenant is necessary to protect
the Company's interests in its Confidential Business Information and customer
relationships, to induce Suncom to enter into and consummate the Stock Purchase
Agreement, and to enable Suncom to protect and preserve the value of the Company
and its assets, capital stock, and good will over which Suncom will gain control
upon the consummation of the Stock Purchase Agreement. Accordingly, Schell
covenants and agrees that he will not, for a period of three years from the
termination of this Employment Agreement within those jurisdictions that the
Company and Suncom, have franchises as of the date of the termination of this
Employment Agreement, directly or
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indirectly, manage, operate, control or be employed or participate in
management, operation or control of any business of the type and character of
business engaged in by the Company and Suncom as of the date of the termination
of this Employment Agreement, or assist any other party with respect to the
foregoing. Schell hereby acknowledges and agrees that any breach of or default
under this Agreement will cause damage to the Company and Suncom in an amount
difficult to ascertain. Accordingly, in addition to any other relief to which
the Company may be entitled, the Company will be entitled, without proof of
actual damages, to such injunctive relief as may be ordered by any court of
competent jurisdiction.
9. STOCK OPTIONS. The options to purchase 30,000 shares of the common
stock, par value $0.25 per share, of the Company which were granted to Schell in
February of 1995 shall vest as a result of the execution and delivery of this
Employment Agreement, and such options shall not be terminated as a result of
the termination of this Employment Agreement and shall remain exercisable in all
cases through the fifth anniversary of the grant thereof.
10. MISCELLANEOUS.
(a) Any failure of either of the parties hereto to comply with
any of its obligations or agreements herein contained may be waived only in
writing by the other party.
(b) All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given upon receipt of. hand
delivery; overnight mail, certified or registered mail, return receipt
requested; or telecopy transmission with confirmation of receipt:
(i) If to Schell, to:
A.J. Schell
1719 Barcelona Way
Winter Park, Florida 32789
Telecopier: (407) 644-7434
(ii) If to the Company, to
1000 Legion Place
Suite 1515
Orlando, Florida 32801
Telecopier: (407) 649-8873
Attention: Mitchell Kleinhandler
David Unger
Such names and addresses may be changed by written notice to each person listed
above.
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(c) This Employment Agreement shall be governed by and construed
in accordance with the laws of the State of Florida, without giving effect to
its principles or rules regarding conflicts of laws.
(d) This Employment Agreement may be executed in two
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
(e) This Employment Agreement may be amended or modified only by
written agreement of the parties hereto.
(f) This Employment Agreement shall inure to the benefit of and
be binding upon the parties hereto and their respective successors and assigns;
nothing in this Employment Agreement, express or implied, is intended to confer
on any person other than the parties hereto and their respective successors and
assigns any rights, remedies, obligations or liabilities under or by reason of
this Employment Agreement.
(g) This Employment Agreement shall not be assignable by any
party hereto other than by operation of law without the prior written consent of
the other party hereto. Any purported assignment in violation of this Section 10
(g) shall be void.
(h) The invalidity or unenforceability of any provision of this
Employment Agreement shall not affect the validity or enforceability of any
other provision of this Employment Agreement.
(i) The Company may withhold from any amounts payable under this
Employment Agreement such Federal, state or local taxes as shall be required to
be withheld pursuant to any applicable law or regulation.
(j) The Company will require any successor (whether direct or
indirect, by purchase of assets, merger, consolidation, share exchange or
otherwise) to all or substantially all of the business and/or assets of the
Company to assume expressly and agree to perform this Employment Agreement in
the same manner and to the same extent that the Company would be required to
perform it if no such succession had taken place. As used in this Employment
Agreement, "Company" shall mean the Company as hereinbefore defined and any
successor to its business and/or assets as aforesaid which assumes and agrees to
perform this Employment Agreement by operation of law or otherwise.
11. WAIVER. Except for the obligations arising out of this Employment
Agreement and except for accrued salary and expense reimbursement obligations
arising under the Former Employment Agreement, Schell hereby waives any and all
claims he has or may have, whether as an officer, director, employee,
shareholder or otherwise, against the Company, arising out of or relating to
events, transactions or occurrences prior to the date hereof.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Employment Agreement as of the date first above written.
AUDIO COMMUNICATIONS NETWORK, INC.
By:
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Name: Mitchell Kleinhandler
Title: President
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A.J. Schell
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