AGREEMENT
THIS AGREEMENT is made by between xxxxxxxx.xxx, Inc., a business
corporation organized under the laws of the state of Nevada with its
principal offices located at 0000 Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxxxxxx 00000
("Client"), and Sivla, Inc., a business corporation organized under the laws
of the state of California with its principal offices located at
0000 0xx Xxxxxx Xxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxx 00000 ("Sivla").
WHEREAS Client is a publicly traded company (OTC:BB THAT) offering
elective cosmetic surgery financing across the United States; and
WHEREAS Sivla is in, among others things, the business of buying,
placing and brokering advertising media.
NOW, THEREFORE, in consideration of the mutual promises contained in
this Agreement, the parties agree as follows:
Section 1. Nature of Agreement. Client engages Sivla and Sivla agrees
to act as a marketing consultant to and a media buyer (as this term is
normally used in the advertising trade) on behalf of Client to purchase media
advertising throughout the United States and Canada in exchange for certain
shares of the common stock of Client.
Section 2. Definitions. For the purposes of this agreement, the
following terms, as used in this Agreement, are understood to have the
meanings stated herein:
a. Media Advertising Media Advertising shall consist of any
combination of television, billboard, radio, print, Internet or other
advertising. Media Advertising, as defined herein, is subject to
availability, through Sivla's normal means of procurement, at time of
advertising placement.
b. Rate Card Rate Card refers to the maximum published rate for a
given Media advertising product (also referred to as the published rate
card). In this case, the term "a given Media advertising product"
includes, but is not limited, to the length, time, size, time of
placement, time of running or time of airing of such advertising as
shall govern its maximum published rate.
Section 3. Effective Date. The Effective Date of this Agreement shall
be July 7th, 2000 regardless of the date this Agreement becomes fully executed
by the parties hereto.
Section 4. Purpose of Agreement. As stated above, Client engages Sivla
and Sivla agrees to be engaged by Client as a marketing consultant and to
purchase on behalf of Client media advertising throughout the United States
and Canada in exchange for certain shares of the common stock of Client. This
Section of the Agreement sets forth the terms governing the procurement of
various media advertising by Sivla for Client in exchange for the issuance of
the common stock of Client.
a. Agreement Amount. The parties hereto agree that it is their
intention for Sivla to purchase on behalf of Client thirty million
($30,000,000) dollars of Media Advertising as defined and valued herein
according to standard Rate Card (Section 2.b.).
b. Term of Agreement. The parties hereto anticipate Sivla will
purchase said Media Advertising on behalf of Client over the course of
three (3) years from the Effective Date of this Agreement.
c. Marketing Consulting Services. Sivla shall recommend Media
Advertising to Client by submitting a written description of the Media
Advertising, which includes: demographic information on the recommended
advertising, a Rate Card (as defined hereinabove) and the cost of the
proposed media advertising. Media advertising shall be deemed approved
if not rejected by Client within three (3) business days from Client's
receipt of Sivla's recommendation.
d. Pricing of Advertising. The parties hereto agree that certain
media outlets may not publish a Rate Card. In the event that a given
media outlet does not publish a Rate Card, Sivla shall submit a pricing
letter to Client on such media outlet's recommendation.
e. Delivery of Shares. Within fifteen (15) days of the filing
date of the Form S-8 registration, as defined in Section 4.f. below,
Client shall cause seven hundred fifty thousand (750,000) shares of
registered common stock to be delivered to Sivla, or its designee, (see
Section 4(h), below) in payment for the marketing consulting and media
buying services contracted for herein.
f. Registration Rights & Restrictions. Within seven (7) days of
the Effective Date, Client agrees to instruct its securities counsel to
commence preparing and filing a Form S-8 with the Securities Exchange
Commission to register the aforementioned 750,000 shares to be
transferred to Sivla. Sivla agrees to provide Client's securities
counsel such representations and warranties as said counsel may
reasonably request in order to complete the filing of said Form S-8 on
behalf of the aforementioned 750,000 shares. Sivla agrees not to oppose
any sale of Client wherein Client shall receive at least three ($3.00)
dollars per share in United States currency, or an equivalent value
in registered common stock of a NASDAQ, American Stock Exchange or New
York Stock Exchange listed company, for each xxxxxxxx.xxx share then
issued and outstanding.
g. Verification of Advertising. Sivla shall provide Client with a
timely verification that Media advertising purchased on behalf of Client
has run. In the event that any approved advertising does not run, it
will be the obligation of Sivla to purchase on behalf of Client
replacement advertising of equal value.
Section 5. Defaults.
a. Client's Default. Any default by Client in the payment of any
amount when due under this agreement, or any extension hereof, or any
failure by Client to fulfill any other provisions of this Agreement
shall entitle Sivla, at its sole option, to terminate this Agreement
upon ten (10) days notice in accordance with Section 9, below, and
notwithstanding any provision hereof to the contrary, Client shall
remain liable to Sivla for all loss or damage sustained by Sivla by
reason of any such failure or default.
x. Xxxxx'x Default. Any default by Sivla in the purchasing of media
on behalf of Client, or any failure by Sivla to fulfill any other
provisions of this Agreement shall entitle Client, at its sole option,
to terminate this Agreement upon ten (10) days notice in accordance with
Section 9, below. Notwithstanding any provision hereof to the contrary,
Sivla shall be obligated in the event of such termination to return all
shares issued to it or its designees for which Advertising Media have
not been booked hereunder and subject to verification under Section 4.g.
hereof.
Section 6. Lack of Representations by Sivla. Client's execution of
this Agreement indicates its acknowledgement that Sivla has made no
representations, express or implied, regarding the ultimate success or failure
of the Media advertising to be recommended by Sivla or to be purchased on
behalf of Client by Sivla pursuant to this Agreement.
Section 7. Noncompetition & Noncircumvention. Both parties to this
Agreement agree that each will refrain, directly or indirectly from utilizing
information gained from the other party in any way other than as contemplated
hereunder. Further, neither party will circumvent the other party by
attempting to take advantage of research and development performed by either
party. The parties realize that this noncompete/noncircumvention provision is
an essential and material part of this agreement. At the termination of this
Agreement or any renewals or extensions hereof, each party shall return to the
other any and all confidential information received pursuant hereto.
Section 8. Reciprocal Indemnification.
a. Client's Indemnification. Client shall protect, defend, indemnify
and hold harmless Sivla and its officers, directors, employees,
successors and assigns from and against any losses, damages (including,
without limitation, consequential damages and penalties) and expenses
(including, without limitation, reasonable counsel fees, costs and
expenses incurred in investigating and defending against the assertion
of such liabilities) which may be sustained, suffered or incurred by
Sivla and its officers, directors, employees, successors and assigns
which are related to any breach by Client of its representations and
warranties, or of its covenants, in this Agreement. Further, Client
specifically agrees to protect, defend, indemnify and hold harmless
Sivla from and against any losses, damages and expenses incurred
defending against a shareholder derivative action initiated by
shareholders of Client.
x. Xxxxx'x Indemnification. Sivla shall protect, defend, indemnify
and hold harmless Client, and its officers, directors, employees,
successors and assigns from and against any losses, damages (including,
without limitation, consequential damages and penalties) and expenses
(including, without limitation, reasonable counsel fees, costs and
expenses incurred in investigating and defending against the assertion
of such liabilities) which may be sustained, suffered or incurred by
Client and its officers, directors, employees, successors and assigns
which are related to any breach by Sivla of its representations and
warranties, or of its covenants, in this Agreement.
Section 9. Notices. All necessary notices or correspondence required or
permitted to be given hereunder shall be in writing and shall be deemed to
have been properly given when hand delivered or when mailed postage prepaid by
first class certified mail, return receipt requested:
If to Client:
xxxxxxxx.xxx, Inc.
0000 Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
With a copy : ________________________________
________________________________
________________________________
________________________________
If to Sivla:
Sivla, Inc.
0000 0xx Xxxxxx Xxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxx 00000
With a copy: Xxxxxxx XxXxxx Richmond, Esq.
Xxxxxxx XxXxxx Richmond, P.C.
0 Xxxxxx Xxxxxx
X.X. Xxx #000
Xxxxxx, Xxx Xxxxxxxxx 00000-0000
Section 10. Public Announcements. Except as may be required by law,
neither party shall make any public announcement or filing with respect to the
transactions provided for herein without the prior consent of the other party.
Section 11. Attorney's Fees. If either party hereto shall breach any of
the terms hereof, such party shall pay to the non-defaulting party all of the
non-defaulting party's costs and expenses, including attorneys' fees,
incurred by such party in enforcing the terms of this Agreement.
Section 12. Benefit. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective successors and
assigns. Nothing in this Agreement shall be construed to create any rights in
third parties as third party beneficiaries or otherwise. This Agreement shall
not be assigned to any party without the prior written consent of the other
party, but no such assignment shall relieve the assigning party of its
obligations.
Section 13. Force Majeure. Whenever a period of time is herein prescribed
for the taking of any action by either party hereto, such party shall not be
liable or responsible for any delays due to strikes, riots, acts of God,
shortages of labor or materials, war, governmental laws and regulations or any
other cause whatsoever beyond the control of such party.
Section 14. Amendment and Waiver. This Agreement may be amended, or any
provision of this Agreement may be waived, provided that any amendment or
waiver will be binding on Client only if such amendment or waiver is set forth
in a writing executed by Client, and provided that any amendment or waiver
will be binding upon Sivla only if such amendment or waiver is set forth in a
writing executed by Sivla. The waiver of any party of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of
any other or subsequent breach.
Section 15. Construction & Applicable Law. This Agreement shall be governed
by and construed and enforced in accordance with the laws of the Commonwealth
of Pennsylvania as if the Agreement were fully executed and performed under
the laws of the Commonwealth of Pennsylvania so that the principles of
conflicts of laws would not apply.
Section 16. Severability. Should any provision of this Agreement be
determined to be invalid, illegal or unenforceable by a court of competent
jurisdiction, then such provision shall be amended by the parties hereto so
as to make it valid, legal and enforceable but keeping it as close to its
original meaning as possible. The invalidity, illegality or
unenforceability of any provision shall not affect in any manner the other
provisions herein contained, which remain in full force and effect.
Section 17. Grammatical Usage. Throughout this Agreement, reference to the
neuter gender shall be deemed to include the masculine and feminine, the
singular the plural and the plural the singular, as indicated by the context
in which used.
Section 18. Headings; Context. The headings of the sections and paragraphs
contained in this Agreement are for convenience of reference only and do not
form a part hereof and in no way modify, interpret or construe the meaning of
this Agreement.
Section 19. Counterparts. This Agreement may be executed in numerous
counterparts, all of which shall be considered one and the same agreement.
For purposes of this Agreement only, facsimile signatures shall be considered
original signatures.
Section 20. Entire Agreement. This Agreement contains all of the terms
agreed upon by the parties with respect to the subject matter of this
Agreement and supersede all prior agreements, representations and warranties
of the parties as to the subject matter of this Agreement.
BY CAUSING THIS AGREEMENT TO BE EXECUTED HERE BELOW, THE PARTIES ACKNOWLEDGE
THAT THEY HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY
ITS TERMS AND CONDITIONS.
IN WITNESS WHEREOF, Sivla and Client have executed this Agreement in
multiple duplicate originals.
AGREED TO & ACCEPTED BY: AGREED TO & ACCEPTED BY:
SIVLA, INC. XXXXXXXX.XXX, INC.
By: /s/ Xxxxxx X. Xxxxx Date 6/28/00 By: /s/ Xxxxxx X. Xxxxxx Date 6-28-2000
------------------- ------- -------------------- ---------
Xxxxxx X. Xxxxx, its President Xxxxxx A, Xxxxxx, its President
and not individually and not individually
------------------------------------ /s/ Xxxxx Xxxxxx
----------------
Witness Witness
State of California Commonwealth of Pennsylvania
County of Sacramento, SS. Monroe, SS.
June 28, 2000 June 28, 2000
Xxxxxx X. Xxxxx personally appeared Xxxxxx X. Xxxxxx personally appeared
before me and acknowledged his execution before me and acknowledged his
execution of the foregoing instrument execution of the foregoing instrument
to be the free act to be the free act
and deed of Sivla, Inc. and deed of xxxxxxxx.xxx, Inc.
Before me, Before me,
/s/ Xxxxxxxxxx X. Xxxxxx /s/ Xxxxxxxxx Xxxx
------------------------ ------------------
Notary Public Notary Public
My commission expires: 5-10-2003 My Commission expires: Oct 2., 2000
