AGREEMENT NOT TO COMPETE
THIS AGREEMENT NOT TO COMPETE is entered into by and between USURF America,
Inc., a Nevada corporation ("Parent"), and Diggs X. Xxxxx, Xx. ("Xxxxx").
WHEREAS, Parent and Xxxxx are parties to an Agreement and Plan of
Reorganization (the "Reorganization Agreement") among, Parent, Xxxxx,
CyberHighway, Inc., and The Spinning Wheel, Inc., d/b/a CyberHighway of
Bear River Valley ("Target"), an Internet Service Provider (ISP); and
WHEREAS, as a condition to the Reorganization Agreement and in
consideration of Parent's entering into the Reorganization Agreement, Xxxxx
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. Xxxxx acknowledges that Xxxxx, as
owner and operator of Target, has been involved, on a high level, in the
development, implementation and management of the business strategies and
plans of Target, and has received, or may receive, information relating to
the national and international business strategies of Parent and such other
business, units, divisions, subsidiaries or other entities of Parent. By
virtue of Xxxxx' unique status in the ISP business, the engagement of Xxxxx
in the ISP business as a competitor of Parent represents a serious
competitive danger to Parent, and the use of knowledge and information
about the business, strategies and plans of Parent can and would constitute
a valuable competitive advantage over Parent. In view of the foregoing and
in consideration of Parent's entering into the Reorganization Agreement,
Xxxxx covenants and agrees that, for a period of one year after the closing
date under the Reorganization Agreement, he 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, or any
of its affiliates, 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. Injunctive Relief. Xxxxx acknowledges that the violation of
the covenants contained in this Agreement would be detrimental and cause
irreparable injury to Parent and its affiliates which could not be
compensated by money damages. Xxxxx agrees that an injunction from a court
of competent jurisdiction is the appropriate remedy for these provisions,
and consent to the entry of an appropriate judgment enjoining Xxxxx from
violating these provisions in the event there is a finding of his breach.
Section 3. Severability of Covenants. Each of the covenants contained in
this Agreement are independent covenants, which may be available to or
relied upon by Parent 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 3, it is
understood that every benefit received by Xxxxx by virtue of this Agreement
is consideration for each separate covenant contained herein.
Section 4. Governing Law. This Agreement shall be governed by the laws
of the State of Idaho.
Section 5. 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 and Xxxxx hereby duly execute
this Agreement Not to Compete on the date indicated below.
USURF AMERICA, INC.
Date: February 1, 2000 By: /s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Its: President
Date: February 1, 2000 /s/ Diggs X. Xxxxx, Xx.
Diggs X. Xxxxx, Xx., individually
