Unassociated Document


    CONSULTANT
      AGREEMENT

     

    This
      Consultant Agreement (the “Agreement”)
      is made
      and entered into as of March 26, 2007 (the “Effective
      Date”),
      by
      and between Handheld Entertainment, Inc., a Delaware corporation (the
“Company”),
      and
      Gareth Coote, an individual having an address at 1 Roman Way, March,
      Cambridgeshire, PE 158TY, United Kingdom (“Consultant”).

     

    WHEREAS,
      Dorks LLC, a Washington limited liability company and a wholly-owned subsidiary
      of the Company, has entered into an asset purchase agreement, dated even date
      herewith (the “Purchase
      Agreement”),
      to
      acquire the assets and business of unoriginal.co.uk (the “Business”),
      from
      Consultant; and

     

    WHEREAS,
      the Company desires to engage Consultant to assist the Company with the
      transition of the Business and to advise the Company regarding the Business,
      and
      Consultant desires to be engaged by the Company for such purposes. 

     

    NOW,
      THEREFORE, in consideration of the premises and the mutual covenants and
      agreements contained herein and other good and valuable consideration, the
      receipt and sufficiency of which are hereby acknowledged, the parties hereto
      agree as follows:

     

    1. Engagement
      of Services.
      The
      Company hereby retains Consultant, and Consultant hereby agrees to be retained
      to render services to the Company, upon the terms and conditions set forth
      herein.

     

    2. Services.
      During
      the Term (as defined in Section 12 below), Consultant agrees to devote no less
      than forty (40) hours per week (i) advising the Company regarding the transition
      of the Business; and (ii) managing the Business, which will include, among
      other
      things, updating the unoriginal.co.uk website with media content, maintaining
      link trades, answering user questions, and, in general, ensuring that the
      Business is properly functioning (the “Services”).
      The
      Company and Consultant expect that Consultant will render such services remotely
      (i.e., outside of the United States). However, Consultant agrees to be available
      to render the Services to the Company for a period of no less than one (1)
      week
      per calendar month at the Company’s San Francisco office (the “On-Site
      Services”),
      at
      such times as reasonably requested by the Company. Consultant agrees that in
      performing the Services, he will neither undertake nor cause, nor permit to
      be
      undertaken, any activity which is illegal under any applicable law or would
      have
      the effect of causing the Company to be in violation of any applicable
      laws.

     

    3. Compensation;
      Reimbursement.
      Consultant will be entitled to a consulting fee of $2,000 per calendar month
      for
      each month during the Term (the “Fee”)
      for
      the Services rendered to the Company. The Fee (or pro rata portion thereof
      as
      will have been earned by Consultant at such time) will be payable by the Company
      monthly. The Company will reimburse Consultant for all out-of-pocket business
      expenses reasonably incurred in connection with the performance of the Services
      during the Term within thirty days of submission of evidence of such expenses
      in
      a form satisfactory to the Company. Expenses in excess of $250 in the aggregate,
      incurred in a single month, excluding travel and lodging expenses incurred
      in
      connection with the On-Site Services, will require separate prior written
      approval from the Company. 


    
      
         

      

      
         

        
          

        

      

      
         

      

    


    4. Independent
      Contractor Relationship.
      Consultant will at all times be acting and performing hereunder as an
      independent contractor, and nothing in this Agreement is intended to, or should
      be construed to, create a partnership, agency, joint venture or employment
      relationship. Consultant is not authorized to make any representation, contract
      or commitment on behalf of the Company unless specifically requested or
      authorized in writing to do so by the Company. Consultant will not have any
      authority to bind the Company, nor will the Company be able to bind Consultant
      in any manner nor will either party hereto incur any liability as a result
      of
      the other party’s actions or inactions with respect to any third party.
      Consultant will at all times disclose that he is an independent contractor
      of
      the Company and will not represent to any third party that he is an employee,
      agent, partner, co-venturer or representative of the Company. Consultant will
      not be entitled to any of the benefits which the Company may make available
      to
      its employees, including, but not limited to, group health or life insurance,
      profit-sharing or retirement benefits. The Company will not withhold any funds
      from Consultant for tax or other governmental purposes, and Consultant will
      be
      solely responsible for the payment of same and the filing of all tax returns
      with any U.S. or foreign tax authority. Consultant is solely responsible for
      maintaining adequate records of expenses incurred in the course of performing
      the Services hereunder. 

     

    5. Confidential
      Information; Company Property.
      Consultant recognizes, acknowledges and agrees that secret, proprietary and
      confidential information regarding the Company and its affiliates, including
      without limitation, information relating to or concerning its business,
      products, intellectual property, customers, suppliers, sources of leads,
      financial information, data or condition, market research and development,
      processes, techniques, know-how, business plans and results, strategies,
      pricing, prospects, technology, software and all other business information
      (the
“Confidential
      Information”)
      is a
      valuable, special and unique asset of the Company, and that such Confidential
      Information is received by Consultant in confidence as a fiduciary. Accordingly,
      Consultant will not, at any time, during or after the Term, use or disclose
      to
      any person or entity, and will keep confidential, any and all Confidential
      Information. Consultant agrees upon termination or expiration of this Agreement
      for any reason, to immediately return to the Company all property of the
      Company, in Consultant’s possession, including, but not limited to, all books,
      records, papers, computer disks, thumb drives, equipment, customer lists, sales
      figures and forecasts, designs relating to the business of the Company and
      its
      affiliates. All references to the Company in Sections 5 through 9 hereof will
      include, the Company and its subsidiaries and any future, direct or indirect
      subsidiaries, or successor(s) thereto.

     

    6. Right
      to Inventions.

     

    6.1 Consultant
      will promptly disclose, grant and assign to the Company for its sole use and
      benefit any and all marks, designs, logos, inventions, improvements, technical
      information and suggestions relating in any way to the business conducted by
      the
      Company, and unoriginal.co.uk, which Consultant may develop or which may be
      acquired by Consultant during the Term, together with all trademarks, patent
      applications, letters, patents, copyrights and reissues thereof that may at
      any
      time be granted for or upon any such mark, design, logo, invention, improvement
      or technical information (collectively, "Inventions").
      In
      connection therewith, Consultant will (at the Company’ sole cost and expense)
      take all actions requested by the Company to assign and/or confirm the
      assignment of any Invention to the Company.

     


    
      
         

      

      
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    6.2 To
      the
      extent any of the rights, title and interest in, to and under Inventions cannot
      be assigned by Consultant to the Company, Consultant hereby grants to the
      Company an exclusive, royalty-free, transferable, irrevocable, worldwide license
      (with rights to sublicense through multiple tiers of sublicensees) to practice
      such non-assignable rights, title and interest. To the extent any of the rights,
      title and interest in and to Inventions can neither be assigned nor licensed
      by
      Consultant to the Company, Consultant hereby irrevocably waives and agrees
      never
      to assert such non-assignable and non-licensable rights, title and interest
      against the Company, or any of its affiliates and each of their successors
      in
      interest to such non-assignable and non-licensable rights. Consultant hereby
      grants to the Company or the Company’s designees, a royalty free, irrevocable,
      worldwide license (with rights to sublicense through multiple tiers of
      sublicensees) to practice all applicable patent, copyright, moral right, mask
      work, trade secret and other intellectual property rights relating to any prior
      inventions which Consultant incorporates, or permits to be incorporated, in
      any
      Inventions. Notwithstanding the foregoing, Consultant agrees that he will not
      incorporate, or permit to be incorporated, any prior inventions of Consultant
      in
      any Inventions without the Company’s prior written consent.

     

    7. Future
      Innovations.
      The
      Consultant recognizes that Inventions relating to his activities during the
      Term
      and conceived, reduced to practice, created, derived, developed, or made by
      Consultant, alone or with others, within six (6) months after termination or
      expiration of the Term may have been conceived, reduced to practice, created,
      derived, developed, or made, as applicable, in significant part while in the
      service of the Company. Accordingly, Consultant agrees that such Inventions
      will
      be presumed to have been conceived, reduced to practice, created, derived,
      developed, or made, as applicable, during the Term and will be promptly assigned
      to the Company.

     

    8. Cooperation
      in Perfecting Rights to Proprietary Information and Innovations.

     

    8.1 Consultant
      agrees to perform, during and after the Term, all acts deemed necessary or
      desirable by the Company to permit and assist the Company, at the Company’s
      expense, in obtaining and enforcing the full benefits, enjoyment, rights and
      title throughout the world in the Inventions assigned or licensed to, or whose
      rights are irrevocably waived and will not be asserted against, the Company
      under this Agreement. Such acts may include, but are not limited to, execution
      of documents and assistance or cooperation (i) in the filing, prosecution,
      registration, and memorialization of assignment of any applicable patents,
      copyrights, mask work, or other applications, (ii) in the enforcement of any
      applicable patents, copyrights, mask work, moral rights, trade secrets, or
      other
      proprietary rights, and (iii) in other legal proceedings related to the
      Inventions.

     

    8.2 In
      the
      event that the Company is unable (after reasonable efforts) to secure
      Consultant’s signature to any document required to file, prosecute, register, or
      memorialize the assignment of any patent, copyright, mask work or other
      applications or to enforce any patent, copyright, mask work, moral right, trade
      secret or other proprietary right under any Inventions (including derivative
      works, improvements, renewals, extensions, continuations, divisionals,
      continuations in part, continuing patent applications, reissues, and
      reexaminations thereof), Consultant hereby irrevocably designates and appoints
      the Company and the Company’s duly authorized officers and agents as his agents
      and attorneys-in-fact to act for and on his behalf and instead of him, (i)
      to
      execute, file, prosecute, register and memorialize the assignment of any such
      application, (ii) to execute and file any documentation required for such
      enforcement, and (iii) to do all other lawfully permitted acts to further the
      filing, prosecution, registration, memorialization of assignment, issuance,
      and
      enforcement of patents, copyrights, mask works, moral rights, trade secrets
      or
      other rights under Inventions, all with the same legal force and effect as
      if
      executed by Consultant.

     


    
      
         

      

      
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    9. Covenant
      Not To Compete or Solicit.

     

    9.1 The
      Consultant recognizes that the services to be performed by him hereunder are
      special, unique and extraordinary. The parties hereto agree and acknowledge
      that
      it is necessary for the protection of the Company that the Consultant agree,
      and
      accordingly, the Consultant does hereby agree, that he will not, directly or
      indirectly, at any time during the “Restricted Period” within the “Restricted
      Area” (as those terms are defined in Section 9.5 below):

     

    (a) Engage,
      directly or indirectly, in any line of business in which the Company was engaged
      or plans to engage in during the period of Consultant’s service to the Company,
      including but not limited to the business of owning and operating user-generated
      content entertainment websites, either on his own behalf or as an officer,
      director, stockholder, member, manager, partner, consultant, associate,
      employee, owner, agent, creditor, independent contractor, investor or
      co-venturer of any third party; provided, however, Consultant’s ownership and
      operation of the gamesolo.com website as such website is owned and operated
      as
      of the date hereof to promote online games will not be prohibited by this
      Section 9; or 

     

    (b) solicit
      to employ or engage, for or on behalf of himself or any third party, any
      employee or agent of the Company.

     

    9.2 Consultant
      hereby agrees that he will not, directly or indirectly, for or on behalf of
      himself or any third party, at any time during the Term and during the
      Restricted Period, solicit any customers of the Company.

     

    9.3 If
      any of
      the restrictions contained in this Section 9 are deemed to be unenforceable
      by
      reason of the extent, duration or geographical scope thereof, or otherwise,
      then
      the court making such determination will have the right to reduce such extent,
      duration, geographical scope, or other provisions hereof, and in its reduced
      form this Section 9 will then be enforceable in the manner contemplated
      hereby.

     

    9.4 This
      Section 9 will not be construed to prevent Consultant from owning, directly
      or
      indirectly, in the aggregate, an amount not exceeding one percent (1%) of the
      issued and outstanding voting securities of any class of any corporation whose
      voting capital stock is traded or listed on a national securities exchange
      or
      quoted in the over-the-counter market.  

     

    9.5 The
      term
“Restricted Period,” as used in this Section 9, means the later of the
      expiration of the APA Restricted Period or the Term, plus twelve (12) months
      after the termination or expiration of the Term. The term “Restricted Area” as
      used in this Section 9 means the entire world.

     


    
      
         

      

      
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    10. Observance
      of Company Rules.
      At all
      times while on the Company’s premises, Consultant will observe the Company’s
      rules and regulations with respect to conduct, health and safety and protection
      of persons and property.

     

    11. No
      Conflict of Interest.
      During
      the Term, Consultant will not accept work, enter into an agreement, or accept
      an
      obligation, inconsistent or incompatible with Consultant’s obligations, or the
      scope of services rendered for Company, under this Agreement. Consultant
      represents and warrants to the Company that there is no understanding,
      arrangement or obligation to which Consultant is a party or bound which
      conflicts with or is inconsistent with Consultant’s obligations under this
      Agreement or which violates the rights of any third party. Consultant agrees
      to
      indemnify and hold harmless the Company and its affiliates from any and all
      loss
      or liability incurred by reason of the alleged breach by Consultant of any
      agreement with any third party.

     

    12. Term
      and Termination.

     

    12.1 Term.
      This
      Agreement is effective as of the Effective Date set forth above and will
      continue for eighteen (18) consecutive months thereafter, unless sooner
      terminated pursuant to the provisions of the Agreement (the “Term”).

     

    12.2 Termination
      by Company.
      The
      Company may terminate this Agreement with or without cause, at any time, for
      whatever reason or no reason, upon 30 days prior written notice delivered to
      Consultant of such termination. 

     

    12.3 Survival.
      Neither
      the termination or expiration of this Agreement, nor of Consultant’s engagement
      hereunder, will terminate or affect in any way, any provision of this Agreement
      that is intended by its terms to survive such termination, including without
      limitation, the provisions of Sections 5 through 9.

     

    13. General
      Provisions.

     

    13.1 Successors
      and Assigns.
      The
      provisions of this Agreement will be binding upon, and will inure to the benefit
      of the parties hereto and their respective heirs, legal representatives,
      successors and assigns. Notwithstanding the immediately prior sentence,
      Consultant may not subcontract or otherwise delegate his obligations under,
      or
      assign, this Agreement without the Company’s prior written consent.


     

    13.2 Notices.
      Any
      notice required or permitted by this Agreement will be in writing and will
      be
      delivered as follows, with notice deemed given as indicated: (a) by personal
      delivery, on the date of such delivery; (b) by nationally-recognized overnight
      courier, on the next business day after the date sent; (c) by telecopy or
      facsimile transmission, when sent upon receipt of acknowledgment of receipt
      of
      electronic transmission; or (d) by certified or registered mail, return receipt
      requested, on the fifth business day from the date sent. Notice will be sent
      to
      the addresses set forth in the Purchase Agreement or to such other address
      as
      either party may specify in writing.

     


    
      
         

      

      
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    13.3 Governing
      Law.
      This
      Agreement will be governed by and construed in accordance with the laws of
      the
      State of California without reference to principles of conflicts of laws. Each
      of the parties irrevocably consents to the exclusive personal jurisdiction
      of
      the federal and state courts located in San Francisco County, California, with
      respect to any claim, controversy, or dispute related to the enforcement or
      interpretation of this Agreement.

     

    13.4 Severability.
      If any
      provision of this Agreement is finally determined by a court of competent
      jurisdiction to be illegal, invalid or unenforceable to any extent, then (i)
      such objectionable provision will be deemed amended to the extent necessary
      so
      as to make it legal, valid, and enforceable, and (ii) the legality, validity
      and
      enforceability of the remaining provisions of this Agreement will not be
      affected or impaired thereby.

     

    13.5 Waiver;
      Amendment; Modification.
      No term
      or provision hereof will be considered waived by Company, and no breach excused
      by Company, unless such waiver or consent is in writing signed by Company.
      The
      waiver by Company of, or consent by Company to, a breach of any provision of
      this Agreement by Consultant, will not operate or be construed as a waiver
      of,
      consent to, or excuse of any other or subsequent breach by Consultant. This
      Agreement may be amended or modified only by mutual consent of the parties
      hereto in writing.

     

    13.6 Injunctive
      Relief.
      Consultant acknowledges that Consultant’s breach or threatened breach of any
      provision, representation, warranty or covenant of this Agreement will result
      in
      irreparable and continuing damage to the Company for which there will be no
      adequate remedy at law, and Consultant agrees that, in the event of such breach,
      or threatened breach, the Company will be entitled, in addition to any other
      rights and remedies the Company may have at law or in equity, without posting
      any bond, to an injunction enjoining and restraining the Consultant from doing
      or continuing to do any act which violates this Agreement.

     

    13.7 Entire
      Agreement.
      This
      Agreement and the Purchase Agreement constitute the entire agreement between
      the
      parties with respect to the subject matter hereof and supersedes all prior
      or
      contemporaneous agreements, understandings or arrangements between the parties
      hereto, whether oral or written, between the parties with respect thereto.
      

     

    13.8 Use
      of
      Counsel.
      Each of
      the parties hereto represents that he or it has consulted with competent counsel
      of his or its own choosing in connection with the negotiation and execution
      of
      this Agreement. 

     

    13.10 Counterparts. This
      Agreement may be executed in counterparts, each of which will be deemed an
      original, but all of which together will constitute one and the same
      instrument.

     

    IN
      WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
      the
      date first written above.

     


    
      
         

      

      
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              “Company”

            	
              “Consultant”

            
	
              Handheld
                Entertainment, Inc.

               

               

              By:
                /s/ Jeff
                Oscodar                                                     
                

                    
                Name: Jeff Oscodar

                    
                Title: Chief Executive Officer 

            	
              GARETH
                COOTE

               

               

              /s/
                Gareth
                Coote                                                   
                

            


    

    


     

    
      
         

      

      
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