EXHIBIT 4.5
Employment Agreement of Xxxxx Xxxxx
EMPLOYMENT AGREEMENT
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This Employment Agreement, dated February 5th, 2004, ("Agreement") is
between XXXXX XXXXX ("Employee") and USURF America, Inc. ("Employer"). In
consideration of the mutual covenants contained herein, Employee and Employer
agree as follows:
1. Engagement. Employee has certain skills and expertise related to the
telecommunications industry, which Employer desires to utilize in its
telecommunications operations. Therefore, Employee agrees to render services
pursuant to Section 2 and for the period described in Section 3(a), subject to
the terms and conditions set forth herein.
2. Responsibilities of Employee. During the term of this Agreement,
Employee agrees to provide such services (the "Services") as directed by
Employer's Board of Directors.
3. Term.
a. Term. The period of Employee's service under this Agreement shall
commence as of the date of this Agreement and shall terminate one (1) year later
unless this Agreement is terminated earlier pursuant to Section 3(b) ("Term").
b. Termination. This Agreement may be terminated by Employer without
notice if Employee (1) commits any act of gross misconduct or in any way
breaches his obligations under this Agreement; (2) engages in any misconduct
which, in the opinion of Employer, brings him, Employer, or any affiliated
entity into disrepute; (3) is convicted of any felony or any criminal offense
involving theft or financial impropriety; or (4) commits any act of dishonesty
relating to Employer, any affiliated entity, or any of Employer's employees or
agents; Employer shall not terminate this Agreement for any other reasons than
those specified in this sub-section 3b . Except for a violation by Employee of
any of the conduct proscribed under this sub-section 3b, Employee shall not be
required to refund or forfeit any of compensation provided in Section 4.
4. Compensation. As compensation for the Services rendered by Employee
under this Agreement, and as an inducement material to entering into employment
with Employer, Employer shall issue to Employee 120,000 shares of USURF America,
Inc. common stock, which shares shall be represented by a single stock
certificate and issued by February 27, 2004. The Shares to be issued hereunder,
when issued and delivered in accordance with this Agreement, will be duly and
validly issued, fully paid and non-assessable, and will be free and clear of any
liens or encumbrances. Such Shares shall be issued pursuant to an effective Form
S-8 registration statement filed with the U.S. Securities and Exchange
Commission and, when issued, the Shares shall be free of restriction and freely
tradable. Employee may receive such other compensation as mutually agreed to by
Employer and Employee.
5. Employee Status. Employer shall have control over the details and means
of Employee's performance of the Services. This agreement creates an
employer-employee relationship between Employer and Employee.
a. Time and Effort. During the Term of this Agreement, Employee's
shall devote such time and effort as may reasonably be required from
time-to-time to perform the duties under this Agreement as may be requested by
Employer.
b. Expenses. Employer will not be required to reimburse Employee for
any expenses incurred by Employee in rendering the Services under this
Agreement, except to the extent agreed upon by Employer in advance and in
writing.
6. Dispute Resolution. If any dispute arises out of or relates to this
Agreement, or the breach thereof, and if such dispute cannot be settled by the
parties through negotiation, the parties agree to try in good faith to settle
the dispute by mediation. If the dispute cannot be settled by negotiation or
mediation, the dispute shall be settled by final and binding arbitration in
Colorado Springs, Colorado, pursuant to the Commercial Arbitration Rules of the
American Arbitration Association.
7. Notices. Any notice, request, instruction, correspondence or other
document to be given hereunder by either party to the other (collectively called
"Notice") shall be in writing and delivered in person or by courier service
requiring acknowledgment of receipt of delivery or mailed by certified mail,
postage prepaid and return receipt requested, or by telecopier, as follows:
If to Employee, addressed to:
XXXXX XXXXX
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If to Employer, addressed to:
USURF America, Inc.
Attention: Xxx Xxxxxxx
0000 Xxxxxxxxx Xx., Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
Fax: 000.000.0000
Notice given by personal delivery, courier service or mail shall be effective
upon actual receipt. Notice given by telecopier shall be effective upon actual
receipt if received during the recipient's normal business hours, or at the
beginning of the recipient's next business day after receipt if not received
during the recipient's normal business hours. Any party may change any address
to which notice is to be given to it by giving notice as provided above of such
change of address.
8. Entire Agreement: Amendments and Waivers. This Agreement constitutes the
entire agreement between the parties hereto pertaining to the subject matter
hereof and supersedes all prior agreements, understandings, negotiations and
discussions, whether oral or written, of the parties, and there are no
warranties, representations or other agreements between the parties in
connection with the subject matter hereof except as set forth specifically
herein. No supplement, modification or waiver of this Agreement shall be binding
unless executed in writing by the party to be bound thereby. The failure of a
party to exercise any right or remedy shall not be deemed or constitute a waiver
of such right or remedy in the future. No waiver of any of the provisions of
this Agreement shall be deemed or shall constitute a waiver of any other
provision hereof (regardless of whether similar), nor shall any such waiver
constitute a continuing waiver unless otherwise expressly provided.
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9. Binding Effect and Assignment. This Agreement shall be binding upon and
inure to the benefit of the parties and their respective permitted successors
and assigns; but neither this Agreement nor any of the rights, benefits or
obligations hereunder shall be assigned, by operation of law or otherwise, by
any party without the prior written consent of the other party; provided,
however, that Employer may assign its rights and obligation under this Agreement
to any of its affiliated companies, without Employee's prior consent.
10. Severability. If any provision of the Agreement is rendered or declared
illegal or unenforceable by reason of any existing or subsequently enacted
legislation or by decree of a court of last resort, Employer and Employee shall
promptly meet and negotiate substitute provisions for those rendered or declared
illegal or unenforceable, but all of the remaining provisions of this Agreement
shall remain in full force and effect.
11. Nondisclosure of Confidential Information.
a. Employee agrees not to make any unauthorized use, publication, or
disclosure, during or subsequent to Employee's service to the Employer, of any
confidential or proprietary information generated or acquired by Employee during
the course of Employee's service, except to the extent that the disclosure of
the information is necessary to fulfill Employee's responsibilities in its
service to the Employer.
b. Employee understands that "confidential" and/or "proprietary"
information includes information not generally known by or available to the
public, pertaining or belonging to Employer, the Employer's clients or other
entities which Employer may have an obligation to maintain information in
confidence, and that authorization for public disclosure may be obtained only
through Employer's written consent.
c. Employee understands and agrees that the information protected by
this Agreement includes, but is not limited to, information regarding ideas,
discoveries, designs, inventions, improvements, trade secrets, know-how,
manufacturing processes, product formulae, design specifications, writings and
other works of authorship, computer programs, financial figures, marketing
plans, vendor lists and data, customer lists and data, business plans or methods
and the like, which relate in any manner to the actual or anticipated business
of the Employer, or related to its actual or anticipated areas of research and
development.
d. Employee agrees to deliver to Employer, at the request of the
Employer, or at the termination of Employee's service, all correspondence,
memoranda, notes, records, drawings, sketches, plans, customer lists, computer
programs, computer software and data, programming documents and all copies
thereof made, composed or received by Employee, during the term of the
Employee's service.
e. In the event of a breach or attempted breach of the provisions of
this Agreement by Employee, it is understood and agreed that, notwithstanding
the provisions of Section 7 above, Employer shall be entitled to injunctive
relief, as well as any other applicable remedy at law or in equity. Employee
expressly agrees and acknowledges that this Agreement is reasonable and
necessary for the protection of the business of Employer.
12. Headings. The headings of the sections herein are inserted for
convenience of reference only and are not intended to be a part of or to affect
the meaning or interpretation of this Agreement.
13. Governing Law. The provisions of this Agreement shall be governed by
and construed and enforced in accordance with the laws of the State of Colorado.
14. Execution. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original and all of which shall constitute one
instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first written above to be effective as of such date.
EMPLOYEE USURF AMERICA, INC.
_______________________________ By: ________________________________
XXXXX XXXXX
____________________________________
Printed Name
____________________________________
Title
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