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EXHIBIT 10.32
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December 20, 0000
XXXXX Xxxxxxx, Inc.
0000 Xxxxxxxx Xxxx Xxxx
Xxxxx Xxxxx, Xxxxxxxxx 00000
Re: Confidentiality Agreement
Gentlemen:
In connection with the execution of an Asset Purchase Agreement (the
"Purchase Agreement") between CyberHighway of North Georgia, Inc. ("CHNG"),
and USURF America, Inc., together with affiliates, including, without
limitation, Santa Fe Wireless Internet, Inc., USURF America (Alabama),
Inc., CyberHighway, Inc. (collectively, the "Company"), the Company has
furnished, or may furnish, to each of the undersigned certain information
concerning its business, financial position, operations, business contacts,
assets and liabilities, as well as certain items of equipment useful in the
Wireless Internet access business. As a condition to the furnishing of
such information to each of the undersigned and as a condition to the
Company's entering into the Purchase Agreement and in consideration of the
Company's entering into the Purchase Agreement, each of the undersigned
agrees to treat any information concerning the Company (whether prepared by
the Company, its advisors, or otherwise, and irrespective of the form of
communication) which is furnished to each of the undersigned or, in the
future, will be furnished, by or on behalf of the Company (together with
the material described below, herein collectively referred to as the
"Confidential Material") in accordance with the provisions of this letter
agreement, and to take or abstain from taking certain other actions
hereinafter set forth.
Each of the undersigned understands that the term "Confidential Material"
also includes all notes, analysis, compilations, studies, interpretations
or other documents prepared by the Company or its representatives which
contain, reflect or are based upon, in whole or in part, the information
furnished to each of the undersigned. The term "Confidential Material"
does not include information which (A) is or becomes generally available to
the public other than as a result of a disclosure by any of the
undersigned, or (B) was lawfully within the possession of any of the
undersigned, prior to its being furnished to any of the undersigned by or
on behalf of the Company, provided that the source of such information was
not known by any of the undersigned to be bound by a confidentiality
agreement with, or other contractual, legal or fiduciary obligation of
confidentiality to, the Company or any other party with respect to such
information, or (C) is disclosed to any of the undersigned by a third
party, provided that such third party was not known by any of the
undersigned to be bound by a confidentiality agreement with, or other
contractual, legal or fiduciary obligation of confidentiality to, the
Company or any other party with respect to such information.
Each of the undersigned hereby agrees that it will use the Confidential
Material solely in connection with the undersigneds' entering into the
Purchase Agreement, that the Confidential Material will be kept
confidential and that neither of the undersigned will disclose any of the
Confidential Material in any manner whatsoever.
Each of the undersigned hereby agrees that it shall not reverse engineer,
reverse assemble or otherwise attempt to recreate or duplicate any model or
working model capable of performing the functions of any portion or all of
the Company's Wireless Internet access system included in the Confidential
Material.
In addition, each of the undersigned agrees that, without the prior
written consent of the Company, neither of the undersigned will disclose to
any other person the fact that the Confidential Material has been made
available to each of the undersigned, that discussions or negotiations are
taking place concerning a possible transaction involving the Company, or
any of the terms, conditions or other facts with respect thereto (including
the status thereof), unless, in the opinion of the undersigneds' counsel,
such disclosure must be made by any such person in order that any such
person not commit a violation of law. The term "person" as used in this
letter agreement shall be broadly interpreted to include the media and any
corporation, partnership, group, individual or other entity, but shall not
include the Securities and Exchange Commission or the Federal Trade
Commission as to any required filing with either such agency.
In the event that any of the undersigned is requested or required (by oral
questions, written interrogatories, requests for information or documents
in legal proceedings, subpoena, civil investigative demand or other similar
process) to disclose any of the Confidential Material, each of the
undersigned will provide the Company with prompt written notice of any such
request or requirement so that the Company may seek a protective order or
other appropriate remedy and/or waive compliance with the provisions of
this letter agreement. If, in the absence of a protective order or other
remedy or the receipt of a waiver by the Company, any of the undersigned
is, nonetheless, in the opinion of counsel, legally compelled to disclose
Confidential Material, such person may, without liability hereunder,
disclose only that portion of the Confidential Material specifically
required by an order of Court. Additionally, each of the undersigned shall
make every reasonable effort and take every reasonable action, including,
without limitation, by cooperating with the Company, to obtain an
appropriate protective order or other reliable assurance that confidential
treatment will be accorded the Confidential Material.
At any time upon the request of the Company, each of the undersigned will
promptly deliver to the Company or certify destruction of, at the Company's
direction, all Confidential Material (and all copies thereof) furnished to
each of the undersigned by or on behalf of the Company pursuant hereto.
All oral Confidential Material provided to each of the undersigned shall
continue to be held confidential hereunder. Notwithstanding the return or
destruction of the Confidential Material, each of the undersigned will
continue to be bound by obligations of confidentiality hereunder.
Each of the undersigned agrees that the Company, without prejudice to any
rights to judicial relief he or it may otherwise have, shall be entitled to
equitable relief, including injunctive relief and specific performance, in
the event of any breach of the provisions of this letter agreement and that
each of the undersigned will not oppose the granting of such relief. Each
of the undersigned also agrees that he or it will not seek and agrees to
waive any requirement for the securing and posting of a bond in connection
with the Company's seeking or obtaining such relief. In the event of
litigation relating to this letter agreement, if a court of competent
jurisdiction determines that any of the undersigned has breached this
letter agreement, then such breaching party will be liable to pay to the
Company the reasonable legal fees incurred in connection with such
litigation, including any appeal therefrom. Also, in the event a court of
competent jurisdiction determines that neither of the undersigned has
breached this letter agreement, then the Company will be liable to pay to
each of the undersigned the reasonable legal fees incurred in connection
with such litigation, including any appeal therefrom.
This letter agreement is for the benefit of the Company, and shall be
construed (both as to validity and performance) and enforced in accordance
with, and governed by, the laws of the State of Georgia applicable to
agreements made and to be performed wholly within such jurisdiction. This
letter agreement shall remain in full force and effect until terminated by
the Company.
Please confirm your agreement with the foregoing by signing and returning
one copy of this letter to the undersigned whereupon this letter agreement
shall become a binding agreement.
Very truly yours,
CYBERHIGHWAY OF NORTH GEORGIA, INC.
By: /s/ Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxx, President
/s/ Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxx, individually
/s/ Xxxxx X. Xxxxxx, Xx.
Xxxxx X. Xxxxxx, Xx., individually
AGREED AND AFFIRMED:
USURF AMERICA, INC.
By: /s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
President
