Exhibit 99.1
CONSULTING AGREEMENT
This consulting agreement is made and entered into effective the 31st
day of August, 2001, by and between WILLIAM E. K. HATHAWAY, II, managing
director of Olympic Holdings, L.L.C. ("Consultant") and GAMECOM, INC. (the
"Corporation").
I. EMPLOYMENT
It is the desire of the Corporation to engage the services of Consultant
to perform for the Corporation certain consulting services regarding the
identification of potential merger candidates whose business would be
complementary to the business conducted by the Corporation, to provide advice
and direction pertaining to the acquisition of a closely-held corporation or
corporations, and to consult with the Corporation as to changes in the capital
structure needed in connection with such acquisition(s).
II. TERM OF EMPLOYMENT
The respective duties and obligations of the parties to this consulting
agreement shall commence on September 1, 2001, and shall continue thereafter
until August 31, 2002. Upon expiration of this consulting agreement, Consultant
shall return to the Corporation any and all equipment, documents, materials, and
any other "information" (as defined below), which Consultant received from the
Corporation.
III. DUTIES OF CONSULTANT
Duties
Consultant shall diligently seek out an appropriate acquisition
candidate or candidates for the Corporation, consistent with the growth plans
contained within the Corporation's business plan. Consultant shall be available
to consult with the board of directors, the officers, and the administrative
staff of the Corporation at reasonable times concerning the search for such
acquisition candidates, and shall provide strategic business advice with regard
to the negotiation and consummation of acquisition contracts for such
appropriate entities.
Independent Contractor
With respect to the services to be performed by Consultant under this
consulting agreement, Consultant shall be an independent contractor of the
Corporation and shall not be deemed an employee.
Engaging in Other Employment
Consultant shall be available at reasonable times for the services
provided for in this consulting agreement, but shall devote only such time to
the affairs of the Corporation as the Consultant, in his sole judgment, shall
deem necessary. Consultant may represent, perform services for, and be employed
by such additional persons or companies as the Consultant, in his sole
discretion may desire.
IV. WORK FOR HIRE
It is the intention of the parties to this consulting agreement that all
rights, included, without limitation, copyright in any reports, surveys,
marketing, promotional, and collateral materials prepared by Consultant pursuant
to the terms of this consulting agreement, or otherwise, for the Corporation
(the "Work") shall vest in the Corporation. The parties expressly acknowledge
that the Work was specially ordered or commissioned by the Corporation, and
further agree that it shall be considered a "work made for hire" within the
meaning of the copyright laws of the United States, and that the Corporation is
entitled as author to the copyright and all of the rights to the Work,
throughout the world, including, but not limited to, the right to make such
changes in the Work and such uses of the Work, as the Corporation may determine
in its sole and absolute discretion.
V. CONFIDENTIAL INFORMATION
For the purposes of this agreement, "Confidential Information" shall
mean the information described below, which is disclosed by the Corporation to
Consultant in any manner, whether orally, visually, or in tangible form,
including, but not limited to, documents, devices, computer readable media,
trade secrets, formulae, patterns, inventions, processes, customer lists, sales
records, pricing lists, margins, and other compilations of confidential
information, and all copies of such confidential information. Tangible materials
that disclose or embody Confidential Information shall be marked or identified
by the Corporation as "confidential." Confidential Information that is disclosed
orally
or visually shall be identified by the Corporation as confidential at the time
of disclosure.
VI. NON-DISCLOSURE PERIOD
Except as expressly permitted by the terms of this agreement, Consultant
shall maintain in confidence and not disclose the Confidential Information for a
period of three years from the date of disclosure (the "Non-Disclosure Period"),
using a fiduciary degree of care to protect the Confidential Information.
VII. LIMITED DISCLOSURE
Consultant shall disclose the Confidential Information only to those of
its employees, third parties, and agents in the normal course of business who
have a need-to-know such information for the reasonable purposes of this
agreement, and who additionally are under a contractual obligation with
Consultant to protect the Confidential Information.
VIII. LIMITS ON CONFIDENTIAL INFORMATION
For the purposes of this agreement, Confidential Information shall not
include any information which Consultant can prove:
a) was in Consultant's possession, or known to Consultant without
confidentiality restriction, prior to disclosure by the
Corporation,
b) was generally known in the trade or business in which the
Corporation is engaged at the time of disclosure to Consultant,
or becomes generally known in the trade or business after such
disclosure, through no act of Consultant,
c) has come into the possession of Consultant without
confidentiality restrictions from a third-party, and such
third-party is under no obligation to the Corporation to
maintain the confidentiality of such information, or
d) was developed by or for Consultant independently without
reference to the Confidential Information.
If a particular portion or aspect of the Confidential Information shall
become subject to any of
the above-mentioned exceptions, the parties expressly agree that all other
portions or aspects of the Confidential Information shall remain subject to all
of the provisions of this agreement.
IX. NO REPRODUCTION
Consultant agrees not to reproduce or copy the Confidential Information,
by any means whatsoever, except as may be reasonably required to accomplish
Consultant's intended purpose with regard to the Confidential Information. Upon
termination of this agreement, Consultant's right to use the Confidential
Information shall immediately terminate. Further, upon such termination, or upon
written demand by the Corporation at any time, Consultant shall promptly return
to the Corporation, or destroy, at the Corporation's option, all tangible
materials that disclose or embody any Confidential Information.
X. PROPRIETARY RIGHTS LEGEND
Consultant shall not remove any proprietary rights legend from the
Confidential Information, and shall, upon the Corporation's reasonable request,
add any proprietary rights legend to materials disclosing or embodying the
Confidential Information.
XI. COURT-ORDERED DISCLOSURE
In the event that Consultant is ordered to disclose the Corporation's
Confidential Information pursuant to a judicial or governmental request,
requirement, or order, Consultant shall promptly notify the Corporation in
writing and shall take reasonable steps to assist the Corporation in contesting
such request, requirement, or order, or in otherwise protecting the
Corporation's rights prior to such disclosure.
XII. NO WARRANTIES
Consultant acknowledges that the Confidential Information may still be
under development, may be incomplete, and that such information may relate to
products that are under development or are planned for development. THE
CORPORATION MAKES NO WARRANTIES REGARDING THE ACCURACY OF THE CONFIDENTIAL
INFORMATION. THE CORPORATION ACCEPTS NO RESPONSIBILITY FOR EXPENSES, LOSSES, OR
ACTIONS INCURRED OR UNDERTAKEN BY CONSULTANT AS A RESULT OF CONSULTANT'S RECEIPT
OR USE OF THE CONFIDENTIAL INFORMATION. THE CORPORATION MAKES NO WARRANTIES OR
REPRESENTATIONS THAT IT WILL IN FACT INTRODUCE ANY PRODUCT OR SERVICE RELATING
TO THE CONFIDENTIAL INFORMATION.
XIII. NO LICENSE
Except as may be expressly specified within this agreement, the
Corporation grants no license to Consultant under any copyright, patent,
trademarks, trade secret, or other proprietary right, to use, utilize, or
reproduce the Confidential Information.
XIV. SECURITIES LAW
Consultant hereby expressly acknowledges that the Confidential
Information is likely to include material nonpublic information pursuant to the
securities laws of the United States. Being advised that the Corporation is
specifically relying upon Rule 100(b)(2)(ii) of Regulation FD, in providing the
Confidential Information to Consultant, Consultant expressly agrees that he will
not use the Confidential Information in violation of United States securities
laws, and specifically agrees to keep the Confidential Information in
confidence.
XV. COMPENSATION
As compensation for services rendered under the terms of this consulting
agreement, Consultant shall be entitled to receive from the Corporation 700,000
shares of the Corporation's common stock, to be delivered to Consultant as soon
as practicable after registration of those shares on Form S-8 under the
Securities Act of 1933 and delivery of the required prospectus documents.
Consultant shall be responsible for paying its costs and expenses
incurred in connection with
the performance of its duties pursuant to the terms of this consulting
agreement.
In the event that Consultant has failed to bring to the Corporation's
attention a suitable acquisition candidate, at the sole good faith discretion of
the Corporation's board of directors, within the term of this agreement,
Consultant shall be required to and hereby agrees to sell back to the
Corporation 350,000 shares of the Corporation's common stock for the total
consideration of $10.00. Consultant understands that while he will be free to
sell any or all of the shares he is to receive as compensation, sale of the
shares will not relieve him of the obligation in this paragraph, and that as a
result he may be required to purchase all or a portion of those shares in the
open market should the contingency specified in this paragraph occur.
XVI. GENERAL
This agreement shall be construed under and in accordance with the laws
of the State of Texas, and all obligations of the parties created under the
contract are performable in Tarrant County, Texas.
The parties covenant and agree that they will execute such other and
further instruments and documents as are or may become necessary or convenient
to effectuate and carry out the obligations of the parties in accordance with
this agreement.
This agreement shall be binding upon and inure to the benefit of the
parties and their respective heirs, executors, administrators, legal
representatives, successors, and assigns where permitted by this agreement.
This agreement supersedes any prior understandings or oral agreements
between the parties respecting the subject matter contained in this agreement.
All agreements, warranties, representations, and indemnifications
contained in this agreement, specifically including, but not limited to, the
provisions of articles V-XIV above shall survive the termination of this
consulting agreement.
This consulting agreement shall be deemed a personal services contract
with regard to the Consultant, and Consultant may not assign any or all of his
or her interest in this agreement without the written consent of the
Corporation.
EXECUTED this _____ day of September, 2001.
CONSULTANT:
------------------------------------------
WILLIAM E. K. HATHAWAY, II, MANAGING
DIRECTOR OF OLYMPIC HOLDINGS, L.L.C.
1016 Hanson Way
Virginia Beach, Virginia 23454
GAMECOM, INC.
by: ---------------------------------------
L. Kelly Jones, chief executive officer
440 North Center
Arlington, Texas 76011