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EXHIBIT 10.29
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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 ("Parent"), and Xxxx Xxxxxx ("Xxxxxx").
WHEREAS, Parent and Xxxxxx are parties to an Agreement and Plan of
Reorganization (the "Reorganization Agreement") among, Parent, Xxxxxx,
CyberHighway, Inc., and Premier Internet Services, Inc., d/b/a CyberHighway
of Southeast Idaho ("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,
Xxxxxx 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. Xxxxxx acknowledges that Xxxxxx, 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 Xxxxxx'x unique status in the ISP business, the engagement of
Xxxxxx 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,
Xxxxxx 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. Xxxxxx 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. Xxxxxx 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
Xxxxxx 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 Xxxxxx 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 Xxxxxx hereby duly
execute this Agreement Not to Compete on the date indicated below.
USURF AMERICA, INC.
Date: August 30, 1999 By: /s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Its: President
Date: August 30, 1999 /s/ Xxxx Xxxxxx
Xxxx Xxxxxx, individually
