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EXHIBIT 10.38
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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made by and between USURF
America, Inc., a duly organized Nevada corporation ("Employer"), and
Xxxxxxx Xxxxx, a resident of the State of Louisiana ("Employee").
W I T N E S S E T H:
WHEREAS, Employer is in need of persons with expertise in computer
hardware and the operations of an Internet Service Provider; and
WHEREAS, Employee has a substantial amount of expertise in computer
hardware and the operations of an Internet Service Provider; and
WHEREAS, Employee is willing to be employed by Employer, and Employer is
willing to employ Employee, on the terms, covenants and conditions
hereinafter set forth; and
WHEREAS, Employer and its affiliates have accumulated valuable and
confidential information, including, without limitation, trade secrets and
know-how relating to technology, equipment, marketing plans, acquisition
plans, sources of supply, business strategies and other business records; and
WHEREAS, the giving of the covenants contained herein is a condition
precedent to the employment of Employee by Employer and Employee
acknowledges that the execution of this Agreement and the entering into of
these covenants is an express condition of his employment by Employer and
that said covenants are given in consideration for such employment and the
other benefits conferred upon him by this Agreement; and
WHEREAS, Employer and Employee desire that this Agreement replace
Employee's current Employment Agreement with Santa Fe Wireless Internet,
Inc., a New Mexico corporation, a wholly-owned subsidiary of Employer; and
NOW, THEREFORE, in consideration of such employment and other valuable
consideration, the receipt and adequacy of which is hereby acknowledged,
Employer and Employee hereby agree as follows:
SECTION I. EMPLOYMENT OF EMPLOYEE
Employer hereby employs, engages and hires Employee as Vice President -
U.S. Internet Operations of Employer, and Employee hereby accepts and
agrees to such hiring, engagement and employment, subject to the general
supervision and pursuant to the orders, advice and direction of the Board
of Directors of Employer. Employee shall perform duties as are customarily
performed by one holding such position in other, same or similar businesses
or enterprises as that engaged in by Employer, and shall also additionally
render such other and unrelated services and duties as may be assigned to
him from time to time by Employer.
Employee shall devote his full-time efforts to the performance of his
duties as Vice President - U.S. Internet Operations of Employer.
SECTION II. EMPLOYEE'S PERFORMANCE
Employee hereby agrees that he will, at all times, faithfully,
industriously and to the best of his ability, experience and talents,
perform all of the duties that may be required of and from him pursuant to
the express and implicit terms hereof, to the reasonable satisfaction of
Employer.
SECTION III. COMPENSATION OF EMPLOYEE
Employer shall pay Employee, and Employee shall accept from Employer, in
full payment for Employee's services hereunder, compensation as follows:
A. Bonus. In consideration of Employee's executing this Employment
Agreement, Employer shall issue to Employee, as a bonus, 10,000 shares of
its $.0001 par value common stock. It is agreed by Employer and Employee
that such bonus shares shall be valued at $3.00 per share, or $30,000, in
the aggregate.
B. Salary. Employee shall be paid as and for a salary the sum of $75,000
per year, which salary shall be payable in equal installments on the 1st
and 15th days of each calendar month, in arrears, subject to deduction of
all lawful and required withholding; provided, however, that Employee shall
receive a cost of living increase as follows:
Commencing on the first annual anniversary of this Agreement and
continuing on the like day of each year thereafter during the term of this
Agreement (hereinafter the "adjustment date"), the annual salary set forth
herein shall be Employee's prior year's salary increased by the percentage
of the All Item Index, Southwest Region VI, All Urban Consumers, U.S. City
Average as published by the United States Department of Labor in its
publication "The Consumer Price Index" (hereinafter the "CPI") representing
the increases during the period from the thirteenth (13th) immediately
preceding the pertinent adjustment date through the second month of
immediately preceding the pertinent adjustment date. For example, if the
CPI had increased by 5% during said 12 month period, Employee's annual
salary would be $78,750 for the next year of employment.
C. Insurance and Other Benefits. As further consideration for the
covenants contained herein, Employer will provide Employee with such
insurance, welfare, sick leave and other benefits as may be established by
Employer from time to time with respect to its employees in accordance with
Employer's established procedures. Employee shall be entitled to
Directors' and Officers' indemnification insurance coverage to the same
extent as is provided to other persons employed as officers of Employer.
D. Other Compensation Plans. Employee shall be entitled to participate,
to the same extent as is provided to other persons employed by Employer, in
any future stock bonus plan, stock option plan or employee stock ownership
plan of Employer.
E. Expenses. It is acknowledged that, during the term of employment,
Employee will be required to incur ordinary and necessary business expenses
on behalf of Employer in connection with the performance of his duties
hereunder. Employer shall reimburse Employee promptly the amount of all
such expenses upon presentation of itemized vouchers or other evidence of
those expenditures. Any single expense item in excess of $100.00 shall be
approved by Employer prior to the incurrence of such expense.
F. Vacations. Employee shall be entitled to three (3) weeks paid vacation
each year for the term of this Agreement. Such vacations shall be taken at
such times as Employer designates as to time-of-year. Vacation time can be
accumulated year-to-year up to three years maximum.
SECTION IV. COMPANY POLICIES
Employee agrees to abide by the policies, rules, regulations or usages
applicable to Employee as established by Employer from time to time and
provided to Employee in writing.
SECTION V. CONFIDENTIALITY AGREEMENT; NON-COMPETITION AGREEMENT
A. In consideration of Employer's executing this Agreement, Employee shall
have executed, prior to the execution of this Agreement, a Confidentiality
Agreement (the "Confidentiality Agreement"), in the form attached hereto as
Exhibit "A".
B. In consideration of Employer's executing this Agreement, Employee
agrees, effective as of the date hereof, to sign and be bound by the
obligations of an Agreement Not to Compete (the "Non-Competition
Agreement"), in the form attached hereto as Exhibit "B".
C. The obligations under the Confidentiality Agreement and the
Non-Competition Agreement shall survive the termination of this Agreement.
SECTION VI. RELEASE
In the event Employee becomes entitled to payment pursuant to Section
VII(B) hereof, Employee shall, as a condition to such payments being made,
execute and deliver to Employer a general release in such form as is
reasonably satisfactory to Employer.
SECTION VII. TERM AND TERMINATION
A. Term. The term of this Agreement shall be a period of three years,
commencing on the date hereof. At the expiration date, this Agreement
shall be renewed for additional one-year periods, provided neither party
hereto submits a written notice of termination within sixty (60) days prior
to the termination of either the initial term hereof or any renewal term.
B. Termination. Employer agrees not to terminate this Agreement except
for "just cause", and agrees to give Employee written notice of its belief
that acts or events constituting "just cause" exist. Employee has the
right to cure, within thirty (30) days of Employer's giving of such notice,
the acts, events or conditions which led to Employer's notice. For
purposes of this Agreement, "just cause" shall mean (1) the willful failure
or refusal of Employee to implement or follow the written policies or
directions of Employer's Board of Directors, provided that Employee's
failure or refusal is not based upon Employee's belief in good faith, as
expressed to Employer in writing, that the implementation thereof would be
unlawful; (2) conduct which is inconsistent with Employee's position with
Employer and which results in a material adverse effect (financial or
otherwise) or misappropriation of assets of Employer; (3) conduct which
violates the provisions contained in the Confidentiality Agreement or the
Non-Competition Agreement; (4) the intentional causing of material damage
to Employer's physical property; and (5) any act involving personal
dishonesty or criminal conduct against Employer.
Although Employer retains the right to terminate Employee for any reason
not specified above, Employer agrees that if it discharges Employee for any
reason other than just cause, as is solely defined above, Employee will be
entitled to full compensation, including participation in all benefit
programs, for six (6) months or the remainder of the current term, original
or renewal, as the case may be, of employment, whichever is more.
If Employee should cease his employment hereunder voluntarily for any
reason, or is terminated for just cause, all compensation and benefits
payable to Employee shall thereupon, without any further writing or act,
cease, lapse and be terminated. However, all defined compensation,
benefits and reimbursements which accrued prior to Employee's ceasing
employment or termination, will become immediately due and payable.
Should Employee voluntarily cease his employment, Employee retains the
right to participate for the period of this Agreement in Employee's medical
insurance plan and will be responsible for 100% of the cost of participation.
SECTION VIII. COMPLETE AGREEMENT
This Agreement contains the complete agreement concerning the employment
arrangement between the parties hereto and shall, as of the effective date
hereof, supersede all other agreements between the parties. The parties
hereto stipulate that neither of them has made any representation with
respect to the subject matter of this Agreement or any representations
including the execution and delivery hereof, except such representations as
are specifically set forth herein and each of the parties hereto
acknowledges that he or it has relied on his or its own judgment in
entering into this Agreement. The parties hereto further acknowledge that
any payments or representations that may have heretofore been made by
either of them to the other are of no effect and that neither of them has
relied thereon in connection with his or its dealings with the other.
Employer and Employer both acknowledge and agree that, upon the mutual
execution of this Agreement, Employee's existing employment agreement with
Santa Fe Wireless Internet, Inc., a New Mexico corporation, Employer's
wholly-owned subsidiary, shall be terminated.
SECTION IX. WAIVER; MODIFICATION
The waiver by either party of a breach or violation of any provision of
this Agreement shall not operate as, or be construed to be, a waiver of any
subsequent breach hereof. No waiver or modification of this Agreement or
of any covenant, condition or limitation herein contained shall be valid
unless in writing and duly executed by the party to be charged therewith
and no evidence of any waiver or modification shall be offered or received
in evidence of any proceeding or litigation between the parties hereto
arising out of, or affecting, this Agreement, or the rights or obligations
of the parties hereunder, unless such waiver or modification is in writing,
duly executed as aforesaid, and the parties further agree that the
provisions of this Section IX may not be waived except as herein set forth.
SECTION X. SEVERABILITY
All agreements and covenants contained herein are severable, and in the
event any one of them, with the exception of those contained in Sections I,
III, IV and V hereof, shall be held to be invalid in any proceeding or
litigation between the parties, this Agreement shall be interpreted as if
such invalid agreements or covenants were not contained herein.
SECTION XI. NOTICES
Any and all notices will be sufficient if furnished in writing, sent by
registered mail to his last known residence, in case of Employee, or, in
case of Employer, to its principal office address.
SECTION XII. CORPORATE AUTHORITY OF EMPLOYER
The execution of this Agreement by Employer has been approved by the
Executive Committee of the Board of Directors of Employer have been so
approved and authorized.
SECTION XIII. REPRESENTATIONS OF EMPLOYEE
Employee hereby represents to Employer:
A. No Legal Disability. Employee is under no legal disability with respect
to his entering into this Agreement.
B. Receipt of Disclosure. Employee hereby represents and warrants that he
has received and reviewed (1) Employer's Annual Report on Form 10-KSB, as
filed with the Securities and Exchange Commission ("SEC"), (2) Employer's
Quarterly Reports on Form 10-QSB, as filed with the SEC, (3) Employer's
Current Reports on Form 8-K, as amended and as filed with the SEC. With
respect to such information, Employee further represents and warrants that
he has had an opportunity to ask questions of, and to receive answers from,
the officers of Employer.
C. Representations Relating to Employer Common Stock. Employee represents
and warrants to Employer that the shares of Employer common stock being
acquired pursuant to this Employment Agreement are being acquired for his
own account and for investment and not with a view to the public resale or
distribution of such shares and further acknowledges that the shares being
issued have not been registered under the Securities Act or any state
securities law and are "restricted securities", as that term is defined in
Rule 144 promulgated by the SEC, and must be held indefinitely, unless they
are subsequently registered or an exemption from such registration is
available.
D. Consent to Legend. Employee consents to the placement of a legend
restricting future transfer on the share certificates representing the
Employer common stock delivered hereunder, which legend shall be in the
following, or similar, form:
"THE STOCK REPRESENTED BY THIS CERTIFICATE HAS BEEN ISSUED IN RELIANCE
UPON THE EXEMPTION FROM REGISTRATION AFFORDED BY SECTION 4(2) OF THE
SECURITIES ACT OF 1933, AS AMENDED. THE STOCK MAY NOT BE TRANSFERRED
WITHOUT REGISTRATION EXCEPT IN TRANSACTIONS EXEMPT FROM SUCH REGISTRATION."
SECTION XIV. COUNTERPARTS
This Agreement may be executed in duplicate counterparts, each of which
shall be deemed an original and, together, shall constitute one and the
same agreement, with one counterpart being delivered to each party hereto.
SECTION XV. BENEFIT
The provisions of this Agreement shall extend to the successors, surviving
corporations and assigns of Employer and to any purchaser of substantially
all of the assets and business of Employer. The term "Employer" shall be
deemed to include Employer, any joint venture, partnership, limited
liability company, corporation or other juridical entity, in which Employer
shall have an interest, financial or otherwise.
SECTION XVI. ARBITRATION
The parties agree that any dispute arising between them related to this
Agreement or the performance hereof shall be submitted for resolution to
the American Arbitration Association for arbitration in the Dallas, Texas,
office of the Association under the then-current rules of arbitration. The
Arbitrator or Arbitrators shall have the authority to award to the
prevailing party its reasonable costs and attorneys fees. Any award of the
Arbitrators may be entered as a judgment in any court competent jurisdiction.
Notwithstanding the provisions contained in the foregoing paragraph, the
parties hereto agree that Employer may, at its election and without
delivering the notice to Employee required in Section VII(B) hereof, seek
injunctive or other equitable relief from a court of competent jurisdiction
for a violation or violations by Employee of the Confidentiality Agreement
or the Non-Competition Agreement.
SECTION XVII. LEGAL REPRESENTATION
Employer and Employee both acknowledge that each has utilized separate
legal counsel with respect to this Agreement. Specifically, Employee
acknowledges that the law firm of Xxxxxx & Xxxxxx has drafted this
Agreement on behalf of Employer. EMPLOYEE IS ADMONISHED TO SEEK HIS OWN
LEGAL COUNSEL.
SECTION XVIII. GOVERNING LAW
It is the intention of the parties hereto that this Agreement and the
performance hereunder and all suits and special proceedings hereunder be
construed in accordance with and under and pursuant to the laws of the
State of Louisiana, and that, in any action, special proceeding or other
proceeding that may be brought arising out of, in connection with or by
reason of this Agreement, the laws of the State of Louisiana shall be
applicable and shall govern to the exclusion of the law of any other forum,
without regard to the jurisdiction in which any such action or special
proceeding may be instituted.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the 4th day of October, 1999.
USURF AMERICA , INC.
By: /s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
President
/s/ Xxxxxxx Xxxxx
Xxxxxxx Xxxxx
