Advisory Services Agreement between Walker Digital, LLC and IP Navigation Group, LLC (2011)

Exhibit 10.36

January 24, 2011

Walker Digital, LLC

2 High Ridge Park

Stamford, CT 06905

Attention: Jon Ellenthal, authorized representative, or Jay Walker, CEO (the “Company Designee”)

Re: Advisory Services

Gentlemen:

This letter agreement (“Agreement”), dated January 21, 2011 (the “Effective Date”), confirms the agreement of Walker Digital, LLC, a limited liability company organized under the laws of Delaware, having its principal offices at 2 High Ridge Park, Stamford CT 06905 (including its successors, assigns and controlled affiliates formed after the Effective Date and for the purpose of effectuating the Services contemplated herein; the “Company”), to engage IP Navigation Group, LLC (“IPNav”) to provide certain services to the Company on the following terms and conditions:

1. Nature of Services. At and under the sole direction of the Company, IPNav will provide services to the Company limited to the following items, which will be performed on a commercially reasonable basis (“Services”):

The Company and IPNav shall cooperate with each other to permit IPNav to perform the Services on a commercially reasonable basis. The Services will be provided by IPNav from such locations, and at such times, as IPNav shall reasonably determine.

IPNav agrees to provide the Services to the best of its reasonable abilities; IPNav does not guarantee a particular outcome. The Company and IPNav have agreed that any decision to proceed with any strategy, transaction or relationship with any entity will be solely the decision of the Company.

For the avoidance of doubt, IP Rights include only those patents and applications listed on Schedule 1 as well as any continuation, divisional or reissue applications thereto, but IP Rights do not include any inventions with priority dates after the Effective Date. In no circumstances whatsoever shall IPNav receive any fees or compensation under this Agreement other than pursuant to an effectuated Licensing Transaction or Major Transaction involving the patents listed on Schedule 1. Company

2. Fees and Compensation.

2.1 As consideration for IPNav to enter into this Agreement and to provide the Services, the Company shall, with respect to any Licensing Event (as that term is defined below) that constitutes a Licensing Transaction, make payment to IPNav in an amount equal to twenty percent (20%) of the Gross Consideration (as defined below) (the “IPNav Fee”). With respect to five currently pending cases (Walker Digital, LLC v. Capital One Services, LLC et al; Walker Digital, LLC v. Microsoft Corporation et al; Walker Digital, LLC v. Activision, Inc. et al; Walker Digital, LLC v. Facebook, Inc.; Walker Digital, LLC et al. v. Multi-State Lottery Association), IPNav has agreed to reduce the IPNav Fee by up to seventy five (75%) percent (to a level of five (5%) percent) if the Company is not successful in renegotiating its fee arrangement with counsel in these cases, with the exact amount of such reduction to be established by the Company Designee at its sole discretion.

For the purposes hereof, “Gross Consideration” shall mean any consideration collected by the Company in respect of a Licensing Transaction, including without limitation, any licensing fee, litigation settlement fee, payment of damages or other remedies, sale payment, and any other consideration, assets and proceeds payable to the Company, without any deductions.

For the purposes hereof, a “Licensing Event” shall mean any event that constitutes a Licensing Transaction in which the Company realizes consideration, assets or proceeds from the monetization of an IP Right, excluding any event that constitutes a Major Transaction.

2.2 As additional consideration for IPNav to enter into this Agreement and to provide the Services with respect to a transaction that is not a Licensing Transaction and that constitutes a sale, disposition, exclusive license with respect to an IP Right or an effectively similar transaction (a “Major Transaction”), the Company shall compensate IPNav as follows:

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For the purposes hereof, “Gross Major Transaction Consideration” shall mean all consideration paid to the Company and/or any interest holder in connection with the Major Transaction, including without limitation all proceeds, assets, securities and forgiveness of debt.

2.3. The Company agrees that In the event of a direct or indirect transfer, sale, exchange, acquisition or other event Impacting (in any way) title (a “Transfer”) of any IP Right as defined in Section 1 of this Agreement, that the obligations imposed under Section 2 of this Agreement will be assumed in whole or in part (as applicable) by any entities (including any third party or parties) involved in such Transfer, such that the compensation due IPNav after the Transfer is equal to the compensation that would have been due IPNav absent the Transfer. Prior to any Transfer, Company shall offer an entity designated by IPNav transfer terms substantially similar to those of said Transfer, and hold such offer open for a period of ten (10) business days.

All payments required to be made hereunder shall be made within five (5) business days of Company receiving payment pursuant to a Licensing Transaction or a Major Transaction, as applicable, and shall be made (if in cash) by wire transfer to the account specified by IPNav. Any amounts that are not paid in a timely manner (i.e., after such five business day period) will bear interest at the lower of (i) 22% per annum and (ii) the maximum rate permitted by law.

3. IPNav Expenses. IPNav shall pay all of its own travel, lodging, copying, fax, telephone and other ordinary business expenses (specifically excluding costs of any third party) incurred by IPNav in connection with this engagement. The Company will be responsible for any other pre-approved expenses payable to third parties (e.g., fees and expenses of counsel, experts, filings, depositions and any other non-IPNav expenses). Set forth on Exhibit A are various vendor arrangements currently available to IPNav clients as of the Effective Date of this Agreement.

4. Indemnification. To induce IPNav to enter Into this Agreement, the Company shall indemnify, hold harmless and reimburse IPNav, its affiliates, directors, officers, controlling persons, employees, attorneys and agents (“Indemnified Persons”) to the fullest extent lawful against any and all claims, losses, damages, liabilities, expenses, costs, actions, joint or several, of any nature or type whatsoever (“indemnified Expenses”), relating to or arising from this Agreement and the Services provided hereunder, except to the extent (and only to the extent) that a court of competent jurisdiction determines that such Indemnified Expenses arose from such Indemnified Person’s gross negligence, breach of this Agreement, reckless or willful misconduct, or fraudulent or illegal activity.

5. Term. This Agreement shall terminate on the date one year after the last to expire of the patents listed on Schedule 1 (“Term”), but may be terminated earlier

(i) by IPNav upon five (5) business days written notice to the Company,

(ii) by the Company if it fails to receive Gross Consideration and/or Gross Major Transaction Consideration of at least (x) ten million dollars

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($10,000,000) in the aggregate within six (6) months after the Effective Date of this Agreement, or (y) sixty million dollars ($60,000,000) in the aggregate within thirty (30) months after the Effective Date of this Agreement, or (z) one hundred fifty million dollars ($150,000,000) in the aggregate within eighty four (84) months (7 years) after the Effective Date of this Agreement,

(iii) by either party in the event of fraudulent or felonious activity of the other party, or

(iv) by the Company if IPNav enters Into, or Is determined to have entered Into prior to the Effective Date, any agreement that puts IPNav in a position of having a direct conflict of interest with the Company;

provided, however,

For the avoidance of doubt, under no circumstances shall IPNav be entitled to any payments from Company under this Agreement after Company terminates this Agreement pursuant to its terms (except for payment obligations that were outstanding prior to Company’s termination).

This Agreement shall be terminable by mutual written consent of the parties.

6. Miscellaneous. IPNav is being retained by the Company to perform the Services, not as an agent or advisor of any other person, and the Company’s engagement of IPNav will not confer on any other person not a party to this Agreement any rights of any nature or kind whatsoever IPNav is not a law firm and will not provide legal services under this Agreement. IPNav will act as an independent contractor and any duties arising out this engagement shall be owed solely to the Company. IPNav is not a fiduciary for the Company. IPNav is now, and may in the future be, engaged by other entities engaged in businesses similar to and competitive with the Company, provided, however, that (a) in no circumstances may IPNav engage in activities that are directly adverse to an interest of the Company, and (b) IPNav will promptly disclose to Company the nature of its relationships with any defendant or party that may be directly adverse to Company and with any counterparty to the Company in any potential Licensing Event, Licensing Transaction, Major Transaction, Strategic Transaction or Financing. The Company has assessed the risks of these conflicts and potential conflicts and determined that the benefit of engaging an advisor with

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relevant experience outweighs the risks of these actual conflicts and potential conflicts. There are no third-party beneficiaries (other than the Indemnified Persons) under this Agreement. This Agreement shall be binding on and inure to the benefit of the Company, IPNav, the Indemnified Persons and their respective successors, assigns, heirs and representatives. This Agreement may only be modified or amended by a written agreement signed by both parties. This Agreement constitutes the entire agreement between the parties and supersedes any prior written or oral agreements or understandings between the parties hereto. No oral explanation or oral information by either party hereto shall alter the meaning or interpretation of this Agreement. IPNav and the Company agree that this Agreement shall be governed by and construed under the laws of the State of Texas. Any disputes relating to or arising from this Agreement by or among the parties shall be resolved exclusively by arbitration to be conducted exclusively in Dallas, Texas in accordance with the Commercial Rules of the American Arbitration Association. Any court of competent jurisdiction shall be authorized to enforce the provisions of the previous sentence and enforce the remedies imposed by such arbitration.

7. Confidential Information; Common Interest; Non-Circumvention. Both IPNav and the Company shall preserve the confidential nature of any information obtained from the other party during the course of this engagement. From time to time, the parties may share information with each other that is covered by the attorney-client privilege, work product immunity, or other privileges and immunities. Each of this Agreement and the Common interest Agreement memorialize the parties’ intent and understanding that any such communications are covered by a community of interest that exists between them with respect to the Services and to the parties’ relationship. The parties intend that all applicable privileges and immunities have been, are, and will be preserved. Neither party shall take any action that may directly or indirectly circumvent the benefits that are intended to accrue to either party hereunder. Each party shall act in a reasonable manner so as to preserve the goodwill and reputation of each of the parties.

8. Company Designee; Authorized Officer. IPNav will only be required to report to the Company Designee (or a substitute corporate representative of Company acceptable to IPNav). Under no circumstances will IPNav be required to coordinate with, report to or address any other officers, directors, shareholders or employees of Company other than the Company Designee. IPNav may at all times rely on the Company Designee as the official spokesperson and authorized officer of the Company, with full authority to bind the Company.

9. Company Representations and Covenants. As a material inducement to IPNav to enter into this Agreement, the Company represents and covenants that: (i) it has not taken and will not take any action that would adversely impact IPNav’s or the Company’s ability to comply with its obligations under this Agreement, (ii) as of the Effective Date, there is no material indebtedness of the Company that would adversely impact the Company during the Term and (iii) the Company has (and shall retain) full, clear and exclusive title to the IP Rights and its material assets, subject to any and all licenses existing as of the Effective Date.

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******

If the foregoing correctly sets forth our understanding, please sign below and return an executed copy of this Agreement to IP Nav. We look forward to working with you.

Regards,

IP NAVIGATION GROUP, LLC
By:
		Duly Authorized
Accepted and Agreed to:
WALKER DIGITAL, LLC
By:
		Duly Authorized

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EXHIBIT A

Possible Vendor Rates

IPNav has negotiated fees from various vendors at what are believed to be favorable rates. The Company may source these services from other vendors, but these expenses will not constitute Designated Payments.

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Each of the above third party fees quotes are current as of the date hereof. Any of these counsel or vendors may seek to change their rates at any time. IPNav has longstanding relationships with many of these counsel and vendors and regularly recommends new counsel and vendors. IPNav and its affiliates regularly refer business to these counsel or vendors. IPNav or its affiliates may invest in or have other significant relationships with these counsel or vendors. IPNav is not impartial in recommending counsel or vendors that IPNav believes provide superior service. The Company in not required to use any of these counsel or vendors and is encouraged to source as the Company deems appropriate. IPNav has worked and may continue to work with such counsel and vendors and the Company, should it choose to work with such counsel and/or vendors, would be asked to waive, and to sign any required waiver of, any conflict of interests in connection with any services provided by any such counsel and/or vendors.

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SCHEDULE 1

Walker Digital Patent Assets

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