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EXHIBIT 10.60
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AGREEMENT NOT TO COMPETE
THIS AGREEMENT NOT TO COMPETE is entered into by and among USURF America,
Inc., a Nevada corporation ("Parent"), USURF America (Alabama), Inc., an
Alabama corporation ("Acquiror"), and Xxxx Xxxxxxx, III ("Shareholder").
WHEREAS, Parent, Acquiror, Net 1, Inc., an Alabama corporation ("Target"),
Xxxx Xxxxxxx and Shareholder are parties to an Agreement and Plan of
Reorganization (the "Reorganization Agreement"); and
WHEREAS, as a condition to the Reorganization Agreement, Shareholder has
agreed to sign and be bound by this Agreement Not to Compete; and
NOW, THEREFORE, for and in consideration of the covenants and agreements
of Parent and Acquiror contained in the Reorganization Agreement and the
agreements executed pursuant thereto, the parties agree as follows:
Section 1. Covenant Not to Compete. Shareholder acknowledges that, as an
owner of Target, Shareholder has been involved, on a high level, in the
development, implementation and management of the business strategies and
plans of Target, and has received information relating to the national and
international business strategies of Parent, Acquiror and the sister
corporation of Acquiror, CyberHighway, Inc., and such other business,
units, divisions, subsidiaries or other entities of Parent and Acquiror.
By virtue of Shareholder's unique and sensitive position and special
background, employment of Shareholder by a competitor of Parent, Acquiror
and/or Target represents a serious competitive danger to Parent and
Acquiror, and the use of Shareholder's talent and knowledge and information
about the business, strategies and plans of Parent can and would constitute
a valuable competitive advantage over Parent, Acquiror and/or Target. In
view of the foregoing, Shareholder covenants and agrees that, for a period
of one year after the closing date under the Reorganization Agreement,
Shareholder will not engage or be engaged, in any capacity, directly or
indirectly, including, but not limited to, as employee, agent, consultant,
manager, executive, owner or stockholder (except as a passive investor
holding less than 1% equity interest in any enterprise the securities of
which are publicly traded) in any business entity engaged in competition
with any business conducted by Parent, Acquiror and/or Target as of the
closing date under the Reorganization Agreement. If any court determines
that this Agreement Not to Compete, or any part hereof, is unenforceable
because the duration or geographic scope of such provision, such court
shall have the power to reduce the duration or scope of such provision, as
the case may be, and, in its reduced form, such provision shall then be
enforceable.
Section 2. Continuing Obligations. Shareholder agrees that, during the
term of this Agreement, Shareholder shall keep Parent informed of the
identification of Shareholder's employer and the nature of such employment
or of Shareholder's self-employment. Parent agrees that, within fifteen
days after receiving notice pursuant to this Section 2 of the
identification of the prospective employer, the nature of the employment or
self-employment or any change therein, Parent will advise Shareholder as to
whether, in the opinion of Parent, such employment constitutes a violation
of Section 1 hereof.
Section 3. Injunctive Relief. Shareholder acknowledges that the
violation of the covenants contained in this Agreement would be detrimental
and cause irreparable injury to Parent, Acquiror and/or Target and their
affiliates which could not be compensated by money damages. Shareholder
agrees that an injunction from a court of competent jurisdiction is the
appropriate remedy for these provisions, and consents to the entry of an
appropriate judgment enjoining Shareholder from violating these provisions
in the event there is a find of their breach.
Section 4. Severability of Covenants. Each of the covenants contained in
this Agreement are independent covenants, which may be available to or
relied upon by Parent, Acquiror and/or Target and their affiliates in any
court of competent jurisdiction. If any one of the separate and
independent covenants shall be deemed to be unenforceable under the laws of
any state of competent jurisdiction, each of the remaining covenants shall
not be affected thereby. Notwithstanding the provisions of this Section 4,
it is understood that every benefit received by Shareholder by virtue of
this Agreement and the Reorganization Agreement is consideration for each
separate covenant contained herein.
Section 5. Governing Law. This Agreement shall be governed by the laws
of the State of Alabama.
Section 6. Other Remedies. The undertakings herein shall not be
construed as any limitation upon the remedies Employer might, in the
absence of this Agreement, have at law or in equity.
INTENDING to be legally bound hereby, Parent, Acquiror and Shareholder
hereby duly execute this Agreement Not to Compete on the date indicated below.
USURF AMERICA, INC.
Date: August 23, 1999 By: /s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
President
USURF AMERICA (ALABAMA), INC.
Date: August 23, 1999 By: /s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Chief Executive Officer
Date: August 23, 1999 /s/ Xxxx Xxxxxxx, III
Xxxx Xxxxxxx, individually
