EXHIBIT 4.1
USURF AMERICA, INC.
CONSULTING AGREEMENT OF XXXXX X. XXXXXXX
ADVISORY SERVICES AGREEMENT
This Advisory Services Agreement (this "Agreement"), dated as of September
1, 2004, is made by and between USurf America, Inc., a Nevada corporation (the
"Company"), and Xxxxx X. Xxxxxxx, an individual ("Consultant").
WHEREAS, the Company is a publicly traded corporation that currently
provides communications services to customers in Colorado, Texas, and Arizona;
and
WHEREAS, the Company wishes to obtain strategic guidance from Consultant
and assistance creating and implementing a business and marketing plan to
develop the Company and corporate assets; and
WHEREAS, Consultant has experience in creating and implementing business
and marketing plans for public companies; and
WHEREAS, Consultant has been providing guidance and advice to the Company
pursuant to a Letter of Intent ("LOI") on August 26, 2004; and
WHEREAS, Consultant is willing to continue providing such guidance and
advice to the Company in accordance with the terms and conditions of this
Agreement.
NOW, THEREFORE, in consideration of the promises and the mutual agreements
herein contained, the parties hereto, intending to be legally bound hereby,
agree as follows:
1. Engagement.
(a) Upon the terms and subject to the conditions set forth in this
Agreement, the Company hereby retains Consultant to advise it in connection with
the creation and implementation of a plan to develop the Company and its assets,
as well as its business opportunities and operations (collectively, the
"Advisory Services").
(b) All Advisory Services rendered pursuant to this Agreement shall be
rendered to the executive officers of the Company or to the Board of Directors
of the Company.
(c) Consultant agrees, during the term of this Agreement, to provide the
Advisory Services to the Company in a diligent and professional manner.
(d) The Company hereby agrees that Consultant shall have no liability
whatsoever as a result of any Advisory Services provided pursuant to this
Agreement, except to the extent that such liability results from the gross
negligence or willful misconduct of Consultant. The Company agrees that it will
not prosecute any action or proceeding against Consultant or his representatives
or agents except where such claim is based solely on the gross negligence or
willful misconduct of Consultant or such representatives or agents.
(e) The Company hereby agrees to indemnify and hold harmless Consultant
and his representatives and agents from any and all liability, loss, cost,
damage or expense, including, without limitation, reasonable attorneys' fees and
expenses, that any such indemnified party may suffer as a result of any claims,
demands, costs or judgments arising out of the provision of, or failure to
provide, Advisory Services or other services hereunder, in each case except to
the extent that any such losses are primarily the result of gross negligence or
willful misconduct on the part of Consultant or any such indemnified person.
2. Compensation; Expenses.
(a) In consideration for Consultant's agreement to provide the Advisory
Services to the Company hereunder, the Company agrees to pay to Consultant the
following: a warrant for 17,500,000 shares of common stock of Usurf priced at
seven cents ($.07) per share (the "Fee"). A warrant in the full amount of the
Fee shall be delivered to Consultant immediately upon execution of this
Agreement. "Delivery," as used herein, includes approval of this Agreement,
including the Fee, by the Board of Directors of the Company. If the Company does
not deliver the Fee by September 22, 2004, Consultant may terminate this
Agreement without further notice. The shares comprising the Fee shall be
registered by the Company in the Company's next filed Registration Statement,
which is currently anticipated to be a Form SB-2 filing in September, 2004. If
the shares are not registered in full and freely tradeable by Consultant by
January 1, 2005, the Company shall issue free-trading shares to Consultant
pursuant to the Company's then existing Employee Incentive Compensation Plan (or
similar plan). If the then current plan does not contain at least 17,500,000
shares, the Company shall immediately register additional shares under the then
existing plan or, if additional shares cannot be added to the existing plan,
immediately create a new plan sufficient to satisfy the Company's obligations
hereunder.
(b) In addition to the Fee, the Company shall reimburse Consultant for all
out-of-pocket expenses reasonably incurred by Consultant in connection with
providing the Advisory Services hereunder, to be paid within 15 days after
receipt by the Company of an invoice with respect to such amount due hereunder.
For purposes of this Agreement, "out-of-pocket" expenses shall include, but not
be limited to, utilities, telecommunications expenses, business travel and
entertainment expenses, training expenses, consulting expenses, accounting and
legal fees and expenses, and postage, courier and other delivery expenses.
3. Independent Contractor; Other Business Opportunities.
(a) It is the intention of the parties hereto that the relation of the
parties shall be that of independent contractors. Consultant is not by virtue of
this Agreement authorized hereby to act as agent on behalf of the Company to
negotiate or enter into, or amend or waive any provision of, any contract or
commitment or otherwise to bind or obligate the Company in any way, and
Consultant shall not purport to do so.
(b) The doctrine of corporate opportunity shall not apply with respect to
Consultant, and Consultant (which for purposes of this Section 3 shall include
its affiliates, shareholders, directors, officers, employees and agents) may,
without limitation, (i) engage in the same or similar activities or lines of
business as the Company or its subsidiaries or develop or market any products or
services that compete, directly or indirectly, with those of the Company and its
subsidiaries, (ii) invest or own any interest publicly or privately in, or
develop a business relationship with, any person engaged in the same or similar
activities or lines of business as, or otherwise in competition with, the
Company or its subsidiaries; (iii) do business with any current or former client
or customer of the Company or its subsidiaries, or (iv) employ or otherwise
engage a former officer or employee of the Company or its subsidiaries. Neither
the Company nor any of its subsidiaries shall have any right by virtue of this
Agreement in or to, or to be offered any opportunity to participate or invest
in, any venture engaged in by Consultant or any right by virtue of this
Agreement in or to any income or profits derived therefrom.
(c) The Company acknowledges that a conflict of interests between the
Company and Consultant may arise during the term of this Agreement. The Company
expressly waives any and all claims against Consultant that arise out of or
relate to any conflicts of interest between the Company and Consultant.
(d) The Company acknowledges that Consultant may provide services to other
consulting clients (the "Other Clients") and that Consultant may be subject to
the terms of certain agreements with the Other Clients that have provisions
concerning consulting, competition, confidentiality, or intellectual property.
4. Further Negotiations. It is the intention of the Company and Consultant
that the parties shall begin negotiating a mutually acceptable employment
agreement, whereby Consultant shall assume the role of Chief Executive Officer
and Chairman of the Board of Company.
5. Termination.
(a) This Agreement shall continue in force and effect for six months from
the date of this Agreement. Notwithstanding the foregoing, this Agreement may be
terminated by either party on 30 days' prior written notice to the other.
(b) No expiration or termination of this Agreement shall affect any
accrued rights or obligations of the parties hereunder (including, without
limitation, with respect to payments for services performed prior thereto). This
Section 5 and Sections 1(d), 1(e), 4, 5, 7, and 15 shall survive expiration or
termination of this Agreement.
6. No Guarantee of Obligations; No Third Party Rights. This Agreement is not,
and nothing contained herein or done pursuant hereto shall be deemed to
constitute, a direct or indirect guarantee by Consultant of any payment or
performance by the Company of any indebtedness, liability, or obligation of any
kind or character. It is the express intention of the parties hereto that no
creditor of the Company or any of its subsidiaries or any other third party
shall be deemed to be a third party beneficiary of or have any rights under or
by virtue of this Agreement.
7. Notices . All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, overnight air
courier or facsimile transmission to the addresses set forth below:
If to the Company:
USurf America, Inc.
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to:
Crestview Capital Funds
00 Xxxxxx Xxxxx, Xxxxx X
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxx
Facsimile:(000) 000-0000
And
Xxxxxxxx & Xxxxxxxx LLP
0000 Xxxxxxxx Xxxxx
000 Xxxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx Xxxxxx
Facsimile: (303592-1510
If to Consultant:
White Field, Inc.
0000 X Xxxxxxx Xxxxxx Xxxx., #000
Xxxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx
Facsimile: (650337-0383
with a copy (which shall not constitute notice) to:
Dechert LLP 000
Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxxx
Facsimile:(000)000-0000
All such notices and communications shall be deemed to have been duly given:
when delivered by hand, if personally delivered; two business days after being
timely dispatched delivery prepaid, if by overnight air courier; and when
receipt acknowledged, if sent by facsimile transmission. Any of the above
addresses may be changed by notice made in accordance with this Section 7.
8. Governing Law; Forum Selection. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA WITHOUT GIVING
EFFECT TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF. BY EXECUTING THIS
AGREEMENT, EACH PARTY HERETO SUBMITS TO THE JURISDICTION OF THE COURTS OF THE
STATE OF CALIFORNIA SOLELY FOR PURPOSES OF ADJUDICATING ITS RIGHTS OR THE RIGHTS
OF THE OTHER PARTY WITH RESPECT TO THIS AGREEMENT. EACH PARTY HEREBY IRREVOCABLY
WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION, INCLUDING,
WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS
OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF
ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT. EACH
PARTY HEREBY AGREES TO ACCEPT, AT ITS OFFICE AT THE ADDRESS REFERRED TO IN
SECTION 6 HEREOF, SERVICE OF PROCESS IN ANY LEGAL ACTION OR PROCEEDING
INSTITUTED BY ANY PARTY IN THE COURTS OF THE STATE OF CALIFORNIA WITH RESPECT TO
THIS AGREEMENT.
9. Assignment; Successors. No right or obligation under this Agreement may be
assigned or delegated by either party without written consent of the other. This
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective successors and permitted assigns.
10. Counterparts. This Agreement may be signed in counterpart copies, each of
which shall be deemed to be an original document, and all of which shall
together be deemed to constitute a single document. Telecopied signatures on
this Agreement shall have the force and effect of original signatures.
11. Headings. All headings have been inserted for convenience only and shall
in no way modify or restrict any of the terms or conditions hereof.
12. Severability. If any provision of this Agreement is determined by a court
of competent jurisdiction to be unlawful or unenforceable in any jurisdiction,
then such provision will be enforced to the maximum extent permissible under
applicable law, and the remaining provisions of this Agreement will remain in
full force and effect.
13. Amendment; Waiver. This Agreement may not be amended or modified except by
a writing executed by the Company and Consultant. No right under this Agreement
may be waived except by a writing signed by the party waiving such right, and no
waiver of one breach of this Agreement will constitute a waiver of subsequent
breaches of the same or of a different nature.
13. Entire Agreement. No covenants, agreements, representations or warranties
of any kind have been made by any party hereto, except as expressly set forth
herein. This Agreement constitutes the entire agreement between the parties
relating to the subject matter hereof; and all prior discussions, negotiations,
agreements and understandings, written or oral, have been and are merged and
integrated into, and superseded by, this Agreement.
14. No Presumption . This Agreement is the product of negotiation between
the parties and, in interpreting the text of this Agreement, no presumption
against the drafter of any provision may be made.
15. Confidentiality. Each party agrees to maintain the terms of this Agreement
in strict confidence, and that it will not disclose the terms of this Agreement
to any other person, other than the parties' offers, directors, employees, and
professional advisors, unless required by law. The parties expressly acknowledge
that the Company is a public company and may be required to disclose certain
facts regarding this Agreement in its filings with the Securities and Exchange
Commission. Notwithstanding such obligations, the Company shall use all
reasonable efforts to keep the terms of this Agreement confidential.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
USURF AMERICA, INC.
By: /s/ Xxxxxxx XxXxxxxx
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Name: Xxxxxxx XxXxxxxx
Title: President
CONSULTANT
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
