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EXHIBIT 10.40
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AGREEMENT NOT TO COMPETE
THIS AGREEMENT NOT TO COMPETE is entered into by and between USURF
America, Inc., a Nevada corporation ("Employer"), and Xxxxxxx Xxxxx
("Employee").
WHEREAS, Employee is employed by Employer as Vice President - U.S.
Internet Operations, pursuant to an employment agreement (the "Employment
Agreement"); and
WHEREAS, as a condition to such employment, Employee has agreed to sign
and be bound by this Agreement Not to Compete; and
NOW, THEREFORE, the parties agree as follows:
Section 1. Covenant Not to Compete. Employee acknowledges that, as a key
management employee of Employer, Employee will be involved, on a high
level, in the development, implementation and management of the national
and international business strategies and plans of Employer, which shall
consist of Employer and such other business units, divisions, subsidiaries
or other entities of Employer as Employer shall determine in its sole
discretion from time to time. By virtue of Employee's unique and sensitive
position and special background, employment of Employee by a competitor of
Employer represents a serious competitive danger to Employer, and the use
of Employee's talent and knowledge and information about Employer's
business, strategies and plans can and would constitute a valuable
competitive advantage over Employer. In view of the foregoing, Employee
covenants and agrees that, if (i) Employee's employment with Employer is
terminated for any reason at any time for just cause or (ii) if Employee
voluntarily resigns from his employment with Employer, then, for a period
of one year after the date of such termination, Employee will not engage or
be engaged as, in any capacity, directly or indirectly, including, but not
limited to, 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
Employer on the date of termination. This Agreement Not to Compete shall
survive the termination or expiration of the Employment 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.
For purposes of this Agreement, "just cause" shall have the same meaning
as set forth in Section VII(B) of the Employment Agreement of even date
between the parties.
Section 2. Continuing Obligations. Employee agrees that, for one year
following (i) his termination of employment with Employer for just cause or
(ii) his resignation as an employee of Employer, Employee shall keep
Employer informed of the identification of Employee's employer and the
nature of such employment or of Employee's self-employment. Employer
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, Employer will
advise Employee as to whether such employment constitutes a violation of
Section 1 hereof.
Section 3. Injunctive Relief. Employee acknowledges that the violation
of the covenants contained in this Agreement would be detrimental and cause
irreparable injury to Employer and its affiliates which could not be
compensated by money damages. Employee 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
Employee 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 Employer and its 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 Employee by virtue of this
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 Louisiana.
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, Employer and Employee hereby duly
execute this Agreement Not to Compete on the date indicated below.
USURF AMERICA, INC.
Date: October 4, 1999 By: /s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
President
Date: October 4, 1999 /s/ Xxxxxxx Xxxxx
Xxxxxxx Xxxxx
