Exhibit 10.1
License and Services Agreement
This License and Services Agreement (this "Agreement") is entered into
as of the 24th day of September 2002 (the "Effective Date"), by and among Sutton
Trading Solutions, Inc., a publicly traded Nevada corporation ("STS"), Sutton
Online, Inc., a Delaware corporation and wholly owned subsidiary of STS ("SOL"),
Sutton Data Services, s.r.o., a Czech corporation and [wholly owned] subsidiary
of STS ("SDS"), Radek Hulan ("Hulan") and Tiburon Management Limited ("Tiburon"
or with SOL, STS and Hulan, collectively, the "Parties").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, STS, SOL and Tiburon are parties to a Subscription Agreement
dated December 31, 2001 (the "Subscription Agreement") wherein Tiburon
subscribed to purchase an aggregate of 2,600,000 units (collectively, "Units")
of STS and SOL which included, among other things, 2,600,000 shares of SOL's
Series A Preferred Stock (the "Preferred Stock"); and
WHEREAS, pursuant to the terms of the Subscription Agreement, SOL
issued, and Tiburon paid for, 2,600,000 shares of the Preferred Stock; and
WHEREAS, STS owns, or has rights through it subsidiaries SOL and/or SDS
to license, GlobalDAT(TM), SOL's proprietary Direct Access software platform
(the "System"); and
WHEREAS, SOL currently lacks the resources to complete the development,
commercialization and marketing of the System ("System Completion Activities");
and
WHEREAS, Tiburon has the resources and is willing to perform the System
Completion Activities; and
WHEREAS, Hulan is the Chief Executive Officer of SDS and has the
know-how and experience to assist Tiburon in such activities; and
WHEREAS, the Parties hereto desire to set forth by this Agreement the
manner in which the System Completion Activities will be performed.
NOW, THEREFORE, in exchange for the mutual promises and agreements
contained herein, and other good and valuable consideration, the Parties to this
Agreement hereby agree as follows:
1. Grant of License. SOL grants Tiburon a personal,
perpetual, and exclusive license to use the System subject to the terms of this
Agreement, which license shall continue until terminated pursuant to the terms
hereof. The System is deemed to include any and all developments, software
codes, API's, multimedia work and/or other programs produced, collaborated,
invented or otherwise developed by any of the Parties and/or any of their
agents, employees, contractors or representatives, whether know or unknown
including, but not limited to the Global DAT software.
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2. Scope of License. Tiburon may use the System for its
own internal use and for the purpose of performing the System Completion
Activities. In connection therewith, Tiburon shall use its best efforts to
complete the development, commercialization and marketing of the System. The
System shall be delivered in its "as is" condition with no express or implied
warranties. It being clearly understood that the System in its current form is
not ready for market.
3. Transfer of Equipment. In consideration of $15,000
and other good and valuable consideration, STS hereby transfers and conveys to
Tiburon all the rights, title and interest of STS to certain hardware and
equipment set forth on Schedule A (the "Equipment") necessary to perform the
System Completion Activities;
4. Condition of Equipment. It is expressly understood
and agreed among the Parties that the Equipment is delivered "as is" and that
some or all of the Equipment may be leased and/or subject to liens or other
rights of third parties.
5. Services to be Performed by Tiburon. Tiburon shall
use its best efforts to complete the development, commercialization and
marketing of the System. Such efforts include, but are not limited to the
installation of hardware and software in an environment that will provide for
access to the System via the internet for maintenance, demonstrations to
potential purchasers, and future development.
6. Distribution of Proceeds. In the event Tiburon enters
into any agreements to distribute or sublicense the System ("System
Sublicenses"), the fees paid to Tiburon pursuant to such Sublicenses shall be
distributed as follow:
Amount of Fee % to Tiburon % to Sutton
------------- ------------ -----------
$1.00 - $500,000 90% 10%
$500,001 - $800,000 75% 25%
$800,001 - $1,200,000 60% 40%
$1,200,001 or greater 25% 75%
7. Services to be Performed by Hulan. Hulan agrees to
use his best efforts to facilitate the delivery of the System to Tiburon as
contemplated hereunder and to work to develop the System to make it marketable
to third parties.
8. Compensation to Hulan. In the event Tiburon enters
into any System Sublicenses during the term hereof, Tiburon agrees to pay Hulan
from Tiburon's share of the Sublicense fee as follows: (i) an amount equal to
20% of the fee (not to exceed $250,000); or (ii) in the event Hulan introduces
Tiburon to the sublicense, an amount equal to 30% of the Sublicense fee (not to
exceed $400,000).
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9. Releases. In consideration of the foregoing, Hulan
and SDS hereby releases the Company, SOL and their respective officers,
directors, agents and representatives from any and all financial or contractual
obligations any of them my have had to Hulan up to the date hereof.
10. Headings. The descriptive headings used herein are
intended for reference only and shall not affect the construction or
interpretation of this Agreement.
11. Severability. If any provision of this Agreement or
the application thereof to any party or circumstances shall, to any extent, now
or hereafter be or become invalid or unenforceable, the remainder of this
Agreement shall not be affected thereby and every other provision of this
Agreement shall be valid and enforceable to the fullest extent permitted by law.
In addition, in the event this Agreement is not signed by all the Parties, the
remaining Parties agree to be contractually bound to each other with respect to
the promises and agreements affecting the signing Parties.
12. Dispute Resolution. Any dispute between the Parties
arising under or relating to this Agreement shall be submitted to binding
arbitration in New York.
13. Miscellaneous. This Agreement: (i) shall be governed
by and construed in accordance with the laws of the State of New York; (ii)
supercedes , to the extent it purports to be inconsistent with, any written or
verbal agreement between any of the Parties with respect to the subject matter
contained herein; (iii) may not be amended unless in a writing executed by all
the Parties; and (iv) may be executed in counterparts which, taken together,
shall constitute a binding agreement on all the Parties.
The Parties certify by their undersigned authorized
representatives that they have read this Agreement and agree to be bound by its
terms and conditions.
Tiburon Management Limited
By: /s/ VINCENT MONTAGNA
---------------------------
Title: Managing Partner
Sutton Online, Inc. Sutton Trading Solutions, Inc.
By: /s/ GREGORY C. FRANK By: /s/ JONATHAN SIEGEL
--------------------------- ---------------------------
Title: President Title: Chief Executive Officer
Radek Hulan Sutton Data Services, s.r.o.
- ------------------------------- By:
---------------------------
Title:
------------------------
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Schedule A
----------
COMPONENT SERIAL # QUANTITY
--------- -------- --------
Mag 19" Monitor 6
NEC 19" Monitor 11
Dell 19" Monitor 1
Futura 19" Monitor 2
APC 200 UPS 3
APC 700 xl UPS 1
Trip Lite Smart 2200 UPS 6
APC Battery Pack 3
APC 2200 UPS 1
Box of misc. Power Cords 1
Belkin Omniviews 6
Box of misc. Patch Cables 1
Visual Networks Wan devise 1
Cisco 1600 Router 1
Westpost Research Data Reciever 1
Telebit Router 2
3Com SUperStack II 24 Port 060172NV34325B8, 6
060172NV367E298,
040072NV25B8098,
050072NV2B40A38,
030072NV17E84F8,
03007NV213E478
3Com SUperStack II 12 Port KXWV0CC67AF, 5
KXW5008723,
KXWS0086E2,
KXW5009DBC,
KXW5009DAC
HP Surestore DLC 70 Tape Writer 1
NU design SCSI Drive 1
8
Cisco 3620 Routers JAB051481V7, 5
JAB0402803T,
JAB051481TP,
JAB04428CBV,
JAB033951EV
Cisco 1900 Routers 00055ECC2640, 2
00055EFD2CC0
Cisco 2600 Routers JAB0437858A, 6
JAB0445862P,
JAB035280NP,
SNN030301TX,
JMX0528K4DM,
JMX0528K4DN
HP Laserjet 4500 N 1
Toner Cartridge 1
NU Drive SCSI array 1
Sun Netra XI Servers CL15202809 5
Compaq Proliant Servers 2
Slimline 1U Servers 2000071022, 2000071024, 17
2000090105, 2000082225,
2000120112, 2000082224,
2001030080, 2000071025,
2000071037, 2000071039,
2000071018, 2000071020,
2000071031, 2000071021,
2000071035, 2000071033,
2000071055
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