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EXHIBIT 10.33
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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 ("Buyer"), CyberHighway of North Georgia, Inc.,
a Georgia corporation ("Seller"), Xxxxxxx Xxxxxxx ("Xxxxxxx") and Xxxxx X.
Xxxxxx, Xx. ("Xxxxxx").
WHEREAS, Buyer and Seller are parties to an Asset Purchase Agreement (the
"Purchase Agreement"); and
WHEREAS, as a condition to the Purchase Agreement and in consideration of
Buyer's entering into the Purchase Agreement, Seller, Xxxxxxx and Xxxxxx
have 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. Seller, Xxxxxxx and Xxxxxx
acknowledge that Seller, as operator of an Internet Service Provider (ISP)
business, and Xxxxxxx and Xxxxxx as owners of Seller have received, or may
receive, information relating to the national and international business
strategies of Buyer and other businesses, units, divisions, subsidiaries or
other entities of Buyer. By virtue of the unique status of Seller, Xxxxxxx
and Xxxxxx in the ISP business, the engagement of Seller, Xxxxxxx and
Xxxxxx in the ISP business as a competitor of Buyer represents a serious
competitive danger to Buyer, and the use of knowledge and information about
the business, strategies and plans of Buyer can and would constitute a
valuable competitive advantage over Buyer. In view of the foregoing and in
consideration of Buyer's entering into the Purchase Agreement, Seller,
Xxxxxxx and Xxxxxx covenant and agree that, for a period of one year after
the closing date under the Purchase Agreement and except as set forth in
Section 2 below, neither of them will 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 Buyer, or any
of its affiliates, existing on the closing date under the Purchase
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. Continued ISP Operations. Buyer acknowledges that, under the
Purchase Agreement, it is to acquire from Seller only a portion of
Seller's ISP business. Buyer specifically agrees that Seller may continue
to operate that portion of its ISP business not being acquired by Buyer
until such other portion of Seller's ISP business shall have been sold to
another person; provided, however, that Seller shall, in any event, be
entitled to continue to so operate its remaining ISP business only until
the close of business December 31, 1999. Should Seller fail to dispose of
its remaining ISP business by such date, Seller shall terminate its
remaining ISP operations as of such date.
Section 3. Injunctive Relief. Seller, Xxxxxxx and Xxxxxx acknowledge
that the violation of the covenants contained in this Agreement would be
detrimental and cause irreparable injury to Buyer and its affiliates which
could not be compensated by money damages. Seller, Xxxxxxx and Xxxxxx
agree 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 Seller, Xxxxxxx and/or Xxxxxx from violating
these provisions in the event there is a finding of his or its 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 Buyer 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 Seller, Xxxxxxx and Xxxxxx 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 Georgia.
Section 6. Other Remedies. The undertakings herein shall not be
construed as any limitation upon the remedies Buyer might, in the absence
of this Agreement, have at law or in equity.
Section 7. Arbitration. In the event of any dispute between the parties
arising out of the performance of this Agreement, each of the parties agree
to settle said dispute through the American Arbitration Association (the
"Association") at the Association's Dallas, Texas, offices, in accordance
with the then-current rules of the Association; the award given by the
arbitrators shall be binding and a judgment can be obtained on any such
award in any court of competent jurisdiction. It is expressly agreed that
the arbitrators, as part of their award, can award attorney's fees to the
prevailing party.
Section 8. Binding Effect. All of the terms of this Agreement shall be
binding upon, inure to the benefit of and be enforceable by the respective
parties, together with their agents, officers, directors, employees,
successors, legal representatives and assigns.
Section 9. Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to its subject matter.
Section 10. Amendments. No modification, amendment, discharge or change
of this Agreement, except as otherwise provided herein, shall be valid
unless the same is in writing and signed by the party against which the
enforcement of such modification, amendment, discharge or change is sought.
Section 11. Notices. All notices, demands, requests and other
communications under this Agreement shall be in writing and shall be deemed
properly served when received if delivered by hand or messenger service
with proof of receipt of the party to whose attention it is directed, or
three business days after deposit in the U.S. Mail, postage prepaid, if
forwarded via registered U.S. Mail:
If to Buyer: USURF America, Inc.
Attention: Xxxxx X. Xxxxxx
0000 Xxxxxxxx Xxxx Xxxx
Xxxxx Xxxxx, Xxxxxxxxx 00000
with a copy to: Xxxxxx & Xxxxxx, Attorneys at Law
000 Xxxxxx Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxx 00000
If to Seller,
Xxxxxxx
or Xxxxxx: CyberHighway of North Georgia, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxx X
Xxxxxxxx, Xxxxxxx 00000
with a copy to: Xxxxxxx X. Xxxxxxx, Xx., Esquire
Xxx Xxxxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
or such other address as may be designated in writing to the other parties
from time to time.
Section 12. Assignment. Neither party hereto may assign this Agreement
or any of their respective rights, nor delegate any of their respective
duties or obligations hereunder, without the prior written consent of the
other party.
INTENDING to be legally bound hereby, Buyer, Seller, Xxxxxxx and Xxxxxx
hereby duly execute this Agreement Not to Compete on the date indicated below.
USURF AMERICA, INC.
Date: December 20, 1999 By: /s/ Xxxxx X.Xxxxxx
Xxxxx X. Xxxxxx
President
CYBERHIGHWAY OF NORTH GEORGIA, INC.
Date: December 20, 1999 By: /s/ Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxx
President
Date: December 20, 1999 /s/ Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxx, individually
Date: December 20, 1999 /s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx, Xx., individually
