License Agreement - Game Factory Publishing, LTD.

Exhibit 10.9


DATED 4th August 2005
---------------------


(1) Gizmondo Europe Limited


(2) Game Factory Publishing Limited


________________________________________________________________________________


GAME CONCEPT LICENCE AGREEMENT
(WITH DEVELOPMENT SERVICES) ________________________________________________________________________________


MANCHES
Manches LLP
Aldwych House
81 Aldwych
London
WC2B 4RP


THIS AGREEMENT is made the 4th day of August 2005.


BETWEEN:


(1) GIZMONDO EUROPE LIMITED a company incorporated in England and Wales with
company registration number 04620348 and whose registered office is at 1
Meadow Gate Avenue, Farnborough Business Park, Farnborough, Hampshire,
GU14 6RG (the "Gizmondo"); and


(2) GAME FACTORY PUBLISHING LIMITED (a company registered in England and
Wales under company number 04470659), whose registered office is at 6
Albermarle Street, London W15 4HG ("Gamefactory").


RECITALS:


(A) Gizmondo is engaged in the business of, among other things, publishing,
developing, marketing, distributing and selling wireless interactive
entertainment software products.


(B) Gamefactory has produced the Concept (as defined in clause 1 below) and
the Concept Materials (as defined in clause 1 below).


(C) Gizmondo desires to obtain an exclusive licence of and the Gamefactory
desires so to grant such a licence of the Concept and Concept Materials
to Gizmondo on the terms and conditions of this Agreement.


(D) Gamefactory will provide Gizmondo with certain development services in
respect of certain of Games comprising the Concept, on the terms and
conditions set out herein.


IT IS AGREED:


1. DEFINITIONS


In this Agreement:


1.1. except where the context otherwise requires, the following
capitalised words shall have the following meanings:


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"Agreement" means this agreement and any schedules attached to it;


"Business Day" means a day on which banks in England are generally open
for business, other than a Saturday and Sunday;


"Code" means both machine readable programming statements (commonly
referred to as object code, which can be directly executed by a computer
without translation by other computer programs) and human readable
programming statements (commonly referred to as source code, which is
computer code that is sufficient to enable a reasonably skilled person
to assess, analyse, review, complete, maintain and/or enhance the
program to which that code relates, without the help of any other person
or reference to any other program or materials), including without
limitation any and all code, other programs or materials which are
essential for enabling the use of the same on any Gizmondo Device;


"Commencement Date" means the date of this Agreement;


"Competing Game" means any Game which: (a) is the same or similar to the
Gizmondo Game Product; or (b) which uses or is related to, concerns,
embodies, derives from or is otherwise associated with the Concept, the
Concept IP and/or the Concept Materials;


"Concept" means Gamefactory's ideas (whether or not fully developed) for
a number of Games, as more particularly described and set out in
Schedule One to this Agreement;


"Concept IP" means any and all Intellectual Property Rights throughout
the Territory subsisting in the Concept and/or the Concept Materials;


"Concept Materials" means any and all Content, Documentation, Code and
other materials which use, relate to, concern, embody, derive from or
are otherwise associated with the Concept, including without limitation
all those matters set out in Schedule Two to this Agreement;


"Confidential Information" means information about Gizmondo and/or
Gizmondo's Affiliates' business or activities which it or they consider
proprietary and confidential, including without limitation, this
Agreement, the Licence of the Concept, the Concept IP, the Concept
Materials, any Gizmondo Game Product prior to its publication and issue
to the public with Gizmondo's consent, any Gizmondo Game Product Sequels
prior to their publication and issue to the public with Gizmondo's
consent, any Merchandise prior to its issue to the public with
Gizmondo's consent, any of Gizmondo's and/or Gizmondo's Affilites'
Intellectual Property Rights, and all related business, financial and
technical information, identities of customers, clients or licensees,
proprietary software code (whether object, source or otherwise) and any
other information whether oral or written which is not generally known
or available to the public;


"Content" means in whatever medium, and without limitation, any and all
artwork, drawings, sketches, text, sound, graphic and/or music files,
audio visual elements and/or displays, user interfaces, designs, brands,
trade dress, packaging, logos, trade and/or service marks, characters
and names, titles, scenes, settings and features, dialog, scripts,
themes, story and/or plot lines and any and all other data;


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"Development Fee" means the development fee of one hundred and thirty
five thousand pounds sterling payable in accordance with Schedule Five
in respect of each Gizmondo Game Product to which the development
services in Schedule Four applies;


"Documentation" means in whatever medium, and without limitation, any
and all documentation, manuals, reports, papers, disks and other storage
devices, specifications, diagrams, tables, indices and other workings,
including without limitation any and all which relate to the Content
and/or the Code;


"End-Users" means any person or entity that purchases or licences for
its use a Gizmondo Game Product pursuant to a signed purchase order,
enduser license agreement or other similar agreement;


"Force Majeure Event" has the meaning given to it in clause 13.2; "Game"
means an entertainment and/or video game;


"Gamefactory's Associates" means, as the context shall require, any and
all directors, officers, employees, agents, servants and/or other
associates of the Gamefactory;


"Gamefactory's Software" means Gamefactory's generic modules,
algorithms, processes, methodologies, and games engines, including the
source code embodying the foregoing, that: (a) were independently
developed by or for the Developer without reference to or reliance on
any of Gizmondo's or Gizmondo's Affiliates' Intellectual Property
Rights; and (b) do not contain any of Gizmondo's or Gizmondo's
Affiliates' Intellectual Property Rights;


"Gizmondo Affiliates" means the company Gizmondo Europe Limited itself,
its Affiliates, and Gizmondo Europe Limited group (where such a term
"group" includes all worldwide holding and subsidiary companies in which
Gizmondo Europe Limited or a successor in interest (or one of its
holding or subsidiary companies) owns at least fifty percent (50%) or
more of the shares or over which Gizmondo EuropeLimited (or one of its
holding or subsidiary companies) exercises direct or indirect management
control, even though it may own less than fifty percent (50%) of the
shares and is prevented by law from owning a greater shareholding);


"Gizmondo Device" means the GIZMONDO handheld multi-entertainment gaming
device, and licensed or re-branded variants of the same, and any
adaptations, replacements or new versions thereof, and/or any of the
same manufactured or licensed for manufacture from Gizmondo or any
Gizmondo Affiliates;


"Gizmondo Game Product" means a Game created by or on behalf of Gizmondo
for use on a Gizmondo Device and which is directly developed and derived
from the Concept, the Concept Materials and the Concept IP, pursuant to
the operation of this Agreement;


"Gizmondo Game Product Sequel" means any Game created by or on behalf of
Gizmondo and which is developed and derived from the Gizmondo Game
Product and/or any Content of the Gizmondo Game product (including
without limitation any spin-off and/or tie-in).


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"Intellectual Property Rights" means any and all rights in or to any
intellectual property rights, whether currently in existence or
otherwise and whether vested or contingent, in any and all medium
(whether in existence now or created in the future), including without
limitation copyright, rights in databases, database rights, moral and
publicity rights, design rights, registered designs, patents, trade
marks, service marks, trade names, trade dress, logos, signs, business
or trading names or other designations, domain names, confidential data
or information or trade secrets, utility models and mask works,
inventions, ideas, discoveries and know-how, and all similar and
associated rights, whether registered or which may be capable of
registration or otherwise (including without limitation any and all
applications for, rights to apply for and rights to sue for past
infringement of any of the foregoing, all whether vested now or arising
in the future), and in each case for their full term including without
limitation all extensions, reversions, revivals and renewals thereof,
throughout the world;


"Initial Term" means two years from the Commencement Date;


"Licence" means the exclusive licence and related rights to reproduce,
prepare derivative works, publicly display, publicly perform and
distribute the Game, including, without limitation, the Concept, Concept
IP, the Concept Materials and any Game name comprising any of the same,
and any improvements of any of the foregoing, in connection with the
development, manufacture, marketing, sale, lease, rental, licensing,
sublicensing, distribution, and other use or exploitation of any and all
versions of the same in such formats and/or media as are compatible with
any mobile, handheld, portable and/or wireless device or product (or any
successor or derivative product) throughout the Territory during the
term of this Agreement;


"Licence Fee" means the licence fee provisions set out in Schedule Three
to this Agreement;


"Merchandise" means any and all goods and/or services which uses or is
related to, concerns, embodies, derives from or is otherwise associated
with the Gizmondo Game Product and/or any Gizmondo Game Product Sequels
and/or any Intellectual Property Rights subsisting in either or both of
them, including without limitation: (a) stationary, books, magazines,
guides and other publications (in whatever medium), cartoons and other
animations or drawings, programmes, television or means of the
dissemination of material, films and motion pictures, video and other
recordings, audio, theatrical and/or other entertainment productions or
features; (b) toys, games, gift and novelty items, figures and figurines
and other playthings, trinkets, souvenirs, fabrics, furniture and
furnishings, clothing and apparel, headwear, footwear, jewellery and
fashion accessories, health and beauty aids, household and domestic
goods, food, drinks; and (c) goods relating to the Gizmondo Game Product
that are produced as give-away items or prizes in connection with
promotions, and in each case of (a) to (c) all their packaging, and all
goods other than those listed in (a) to (c) of a similar or dissimilar
nature;


"Net Receipts" means the gross revenue actually received in cleared
funds by Gizmondo from its exploitation (or exploitation which Gizmondo
has authorised) of the Gizmondo Game Product, to the extent only that
such a Gizmondo Game Product has been published and released to the


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public with Gizmondo's consent, (excluding without limitation any funds
received from any exploitation of the Gizmondo Game Product by way of
Merchandise and/or any exploitation whatsoever of any Gizmondo Game
Product Sequels) after deducting: (a) the Payment; (b) any amounts
payable to any wireless network, transmission and/or communications
platform owner, provider and/or operator; (c) taxes and other
governmental charges and fees (including without limitation any
withholding tax and VAT); (d) any sums payable to any relevant third
party Gizmondo; (e) the development costs associated with the Gizmondo
Game Product; (f) the costs associated with marketing and otherwise
advertising the Gizmondo Game Product; (g) any returns and bad debts;
and (h) any other costs, fees and expenses which should reasonably be
deducted so as to derive the actual net receipts from the exploitation
of the Gizmondo Game Product, This definition shall not include any
funds derived or collected from the distribution of the Gizmondo Game
Product to End-Users by any third parties, but shall include only those
funds actually received by and cleared for use by Gizmondo from such
third parties after such third parties have retained, deducted or
otherwise withheld any mark-ups, revenue share amounts, or license or
other fees due to them pursuant to the terms of Gizmondo's agreements
with such third parties;


"Payment" means the sum of one million five hundred thousand pounds
sterling;


"Term" means that period of time from the Commencement Date until this
Agreement is terminated in accordance with clauses 11.3 or 11.5 of this
Agreement; and


"Territory" means the world.


1.2. the headings are for convenience only and shall not affect its
construction.


1.3. in the event of any inconsistency between the terms of this
Agreement and the schedules hereto, the terms of the body of
this Agreement shall take precedence.


1.4. references to any clause, sub-clause or schedules are to a
clause or subclause of, or schedule to, this Agreement and
references to the parties are to the parties of this Agreement
and shall, where relevant, be deemed to be references to or to
include, as appropriate, their respective successors, assignees
or transferees.


1.5. if any obligation, including an obligation to make payment,
falls to be performed on any day which is not a Business Day,
the obligation shall be performed on the next succeeding
Business Day.


1.6. references to any statutory provision shall be deemed to include
such provisions as amended from time to time whether before, on,
or (in the case of re-enactment or consolidation only) after the
date of this Agreement.


1.7. references to a "person" include any individual, company,
corporation, firm, partnership, association, organisation,
institution, trust or agency, whether or not having a separate
legal personality.


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1.8. save where otherwise expressly stated, the words "company",
"subsidiary undertaking" and "holding company" have the meanings
given to them by the Companies Act 1985.


2. LICENCE OF RIGHTS


2.1. In consideration of the payment by Gizmondo to the Gamefactory
of the Payment (the sufficiency of which is hereby acknowledged
by the Gamefactory), to be paid in accordance with paragraph 6
of Schedule Three, the Gamefactory hereby grants a Licence to
Gizmondo of:


2.1.1. the Concept;


2.1.2. the Concept IP; and


2.1.3. the Concept Materials.


2.2. By virtue of the operation of clause 2.1 the Gamefactory hereby
acknowledges and agrees that:


2.2.1. all right, title and interest in and to the Concept, the
Concept IP and the Concept Materials is hereafter
licensed Gizmondo throughout the Territory on the terms
of the Licence;


2.2.2. it no any right to either itself or license others the
Concept, the Concept IP and the Concept Materials in any
manner contrary to the Licence and nothing in this
Agreement gives it any right (or any right to authorise
or procure third parties) to use, deal with and/or
exploit any of the same contrary to such a Licence or
any of Gizmondo's or Gizmondo's Affiliates' Intellectual
Property Rights. Without limitation, a breach of this
clause shall be considered to be a material breach of
this Agreement by the Gamefactory;


2.2.3. it shall execute and/or do such acts and shall cause
Gamefactory's Associates to execute and/or do such acts
as may be requested by Gizmondo to perfect and/or
evidence Gizmondo's right, title and interest as
referred to in clause 2.2.1; and


2.2.4. Gizmondo shall be free to use, deal with and exploit the
Licence in respect of the Concept, the Concept IP and
the Concept Materials as it sees fit (including without
limitation the matters set out in or envisaged by this
Agreement and the development, production, manufacture,
maintenance, localise, promotion, advertising,
marketing, publishing, sale, rental, lending,
distribution, issue to the public by whatever means
(whether in existence now or created in the future),
license and other exploitation of any Gizmondo Game
Product and/or any Gizmondo Game Product Sequel) without
reference to the Gamefactory and that nothing herein
shall or is intended to restrict any such use, dealings
or exploitation.


3. DELIVERY OF CONCEPT MATERIALS


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3.1. On the execution of this Agreement (or to the extent not
reasonably possible, within two Business Days), Gamefactory
shall at its cost and expense deliver or cause to be delivered
to such address within the Territory as Gizmondo shall stipulate
all the Concept Materials.


4. FUTURE OPTIONS AND EXCLUSIVITY


4.1. During the Initial Term, Gamefactory shall offer Gizmondo first
refusal to obtain a licence on the same or similar terms of the
Licence over any and all Games and/or concepts for any such
Games, which Gamefactory and/or Gamefactory's Associates intend
to and/or may develop. In the event that any such Games and/or
concepts therefor are so developed, Gamefactory shall notify
Gizmondo immediately of the same (such a notice to be in such
detail as may be reasonably adequate to enable Gizmondo to
consider the same fully).


4.2. In the event that Gizmondo receives such a notice pursuant to
clause 4.1, it shall have three months from Gizmondo's receipt
of such a notice to consider the same. Should Gizmondo wish to
acquire any such Games and/or concepts therefor which are
specified in such a notice, then Gizmondo shall notify
Gamefactory within such a three month period and the parties
shall as soon as reasonably practicable enter into an agreement
in respect of the same on terms which are similar to those of
this Agreement.


4.3. Prior to notifying Gizmondo pursuant to clause 4.1 and during
Gizmondo's consideration of the subject matter of such
notification pursuant to clause 4.2, Gamefactory shall not
itself use, deal with or exploit, or disclose, notify, engage in
discussions with, enter into an agreement with or otherwise
transfer, sell, assign or licence to any third party any such
Games and/or concepts therefore, Without limitation, breach of
this clause shall be considered to be a material breach of this
Agreement by Gamefactory.


4.4. Notwithstanding clauses 4.1 to 4.3, during the Initial Term or,
should it occur, for one year from the date the Gizmondo Game
Product has been published and released to the public with
Gizmondo's consent in all its intended release territories
(whichever period is the shorter), the Gamefactory shall not
directly or indirectly market, sell or issue to the public any
Competing Game.


5. CONCEPT DEVELOPMENT


5.1. Gizmondo shall consider in good faith the Concept, the Concept
IP and the Concept Materials with a view to developing a
Gizmondo Game Product from the same (whether in whole or in
part) in its exclusive discretion and at its exclusive option,
and without (if Gizmondo so determines) any reference to or
input from whatsoever or howsoever from the Gamefactory.


5.2. Notwithstanding clauses 5.1 and 11.4, the Gamefactory
acknowledges and agrees that:


5.2.1. all right, title and interest in and to any Gizmondo
Game Product, Gizmondo Game Product Sequels and any
Merchandise shall, as between the parties, be owned by
Gizmondo


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throughout the Territory and that as a consequence
nothing in this Agreement gives it any right (or any
right to authorise or procure third parties) to use,
deal with and/or exploit any of the same. Without
limitation, a breach of this clause shall be considered
to be a material breach of this Agreement by
Gamefactory; and


5.2.2. nothing in this clause 5 or this Agreement requires or
creates any obligation on or expectation for Gizmondo to
so create any such a Gizmondo Game Product (or any
Gizmondo Game Product Sequel or Merchandise) or to
expend any time, resources or funds in respect of the
same, or to publish and release to the public any of the
same.


5.3. Gamefactory shall provide certain development services to
Gizmondo for Gizmondo Game Products in respect of the matters
licensed to Gizmondo pursuant to clause 2.1 above, on the terms
of Schedule Four.


6. PRODUCTION, MARKETING, SALE AND PROMOTION


6.1. Gizmondo, as the licensee of the Concept, the Concept IP, the
Concept Materials on the terms of the Licence, the Gizmondo Game
Product (if any) and the Gizmondo Game Product Sequels shall
have the exclusive right, in its exclusive discretion and at its
exclusive option, and without (if Gizmondo so determines) any
reference to or input from whatsoever or howsoever from
Gamefactory, to:


6.1.1. without limitation, pursuant to Gizmondo's rights which
arise by virtue of the operation of clause 2.1, develop,
localise, produce, manufacture, maintain, promote,
advertise, market, publish, sell, rent, lend,
distribute, promote, communicate and issue to the public
by whatever means (whether in existence now or created
in the future), any Gizmondo Game Product and/or
...