Exhibit 10.1.4
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 corporatlon organized under the laws of the state of
California with its principal offices located at 1006 4'h Street - Top Floor,
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 the media brokerage, public relations and production
services business with access to media advertising including, without
limitation, television, billboard, radio, print, Internet or other
advertising.
NOW, THEREFORE in consideration of the mutual promises contained in this
Agreement, the parties agree as follows:
1. Nature of Agreement. Client engages Sivla and Sivla agrees to be engaged
by Client to provide media advertising, public relations and production
services throughout the United States and Canada in exchange for certain
shares of the common stock of Client
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 oftelevision, 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.
c. Public Relations - As it pertains to this Agreement, Public
Relations is the art of inducing the public to have art understanding of and
goodwill towards the Client's products and services. This is accomplished
through myriad means including, without limitation, press releases, event
promotion, provision of information regarding the Client's products and
services to the public in conjunction with sponsorships, and Internet and/or
800 number dial in product conferences.
d. Production Services -Production services includes the development of
creative ideas to sell the Client's products and formatting the creative work
in the proper farm for tile media venue intended (e.g. color separations for
four color process magazine insertions)
3. Effective Date. The Effective Date of this Agreement shall be June 30th
2000 regardless of the date this Agreement becomes fully executed by the
parties hereto.
4. Purpose of Agreement: As stated above, Client engages Sivla and Sivla
agrees to be engaged by Client to provide media advertising, public relations
and, production services throughout the United States and Canada in exchange
fox certain shares of the common stock of Client. This (Section) of the
Agreement sets forth the terms governing the procurement of various media
advertising, public relations and production services 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 to transact up to thirty-eight million ($38,000,000) dollars of
Media Advertising, as defined and valued herein according to standard Rate
Card (Section 2.b.), up to two million ($2,000,000) dollars of Public
Relations, as defined and valued herein, and one hundred and fifty thousand
($150,000) dollars of Production Services in exchange for shares of the common
stock of Client together with a promissory note (see-Exhibit "A" attached
hereto) in the amount of one hundred and fifty thousand ($150,000) dollars for
ancillary production expenses. The obligation represented by the promissory
note attached hereto as Exhibit "A" shall be retired early in the event that
Client raises over one million one hundred fifty thousand ($1,150,000) dollars
of investment capital in net proceeds to Client, in the aggregate on or before
December 31, 7000.
b. Term of Agreement. The parties hereto anticipate transacting the up
to thirty eight million ($38,000,000) dollars of media advertising and up to
two million ($2,000,000) dollars of public relations, both. as valued and
defined previously, for common stock over the course of three (9) years as
more fully described below.
c. Valuation of Client's stock. Client's common stock shall be valued
at two ($2.6666667) dollars per share until such tune as seventy-five (75%)
percent of this $40,000,000 contract has been used (the "First Round"). For
the remaining $10,000,000 of this contract (the "Second Round"), Client's
stock shall be valued upon such terms as Sivla and Client shall mutually agree
upon prior to the start of the Second Round under this Agreement.
d. Periodic Advertising Allotment. Client and Sivla agree to transact
the advertising and public relations in two rounds, The First Round shall
include twenty eight million five hundred thousand ($28,500,000) dollars of
advertising and one million five hundred thousand ($1,500,000) dollars of
public relations, as valued and defined hereinabove. The Second Round shall
include nine million five hundred thousand ($9,500,000) dollars of advertising
and five hundred thousand ($500,000) dollars of public relations as valued and
defined hereinabove.
e. Selection of Advertising. 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 Rata Card
(as defined hereinabove) and the cost of the proposed media advertising. Media
advertising shall he deemed approved if not rejected by Client within three
(3) business days from Clients receipt of Sivla's recommendation, In
recognition of Sivla's expertise in the area of advertising and public
relations, Client grants Sivla certain marketing control subject to the
parameters set forth in Exhibit "B," hereto, entitled "Marketing Control
parameters."
f. Pricing of Advertising. The pareses hereto agree that certain unease
outlets may not publish a Rate Card. In the event that a given media outlet
does riot publish a Rate Card, Sivla shall submit a pricing letter to Client
art such media outlet's recommendation.
g. Delivery of Shares. Within fifteen (15) days of flat above stated
Effective Date, Client shall cause eleven million two hundred fifty thousand
(11,250,0,00) shares of Rule 144 restricted common stock to be delivered to
Sivla, or its designee, (see 4(h), below) in payment fox media advertising,
h. Registration Rights & Restrictions- Client grants to Sivla demand
registration rights with respect to two million two hundred fifty thousand
(2,260,000) shares of the shares transferred hereunder, with such rights to
become effective and exercisable beginning 120 days from the Effective Date of
this Agreement. Notwithstanding these demand registration rights, Client also
grants to Sivla piggyback registration rights with respect to these same
shares, with such rights to become effective and exercisable beginning
immediately upon the Effective Date of this Agreement. With regard to either
or both of the demand and the piggyback registration rights granted to Sivla
in this paragraph, such rights are subject to rights granted to others
previous to the Effective Date of this Agreement. As a farther restriction,
Sivla agrees not to oppose any sale of Client wherein Client shall receive at
least three ($x.00) dollars per share in United States currency, or an
equivalent value in registered common stock of a NASDAQ, American Stock
Exchange ax New York Stock Exchange listed company, for each xxxxxxxx.xxx
share then issued sand outstanding.
i. Verification of Advertising, Sivla shall provide Client with written
verification that Media advertising has run. In the event that any approved
advertising does not run it will be the obligation of Sivla to replace the
advertising with other approved advertising of equal value or issue a credit
for that portion that did not run. Sivla agrees to provide client with a
monthly report within two weeks of the cross of the immediately preceding
month wherein such report shall, include, but not necessarily be limited to
the amounts debited against Client's Media, Public Relations and Production
Services accounts in the prior month, the amounts debited against these same
accounts to data and the amounts that are as estimated to 1e debited against
these accounts for each of the next two months.
j. Termination of Agreement. Either party may elect to terminate this
Agreement prior to tile commencement of the Second Round by serving the other
party with, written notice as required by 9 9, below, at least ninety (90)
days prior to the commencement of the Second Round. The parties expressly
agree that any media advertising previously approved by Client and Sivla shall
be fully funded in accordance with the provisions of the preceding 4.
Similarly, Client's right to verification and Sivla's responsibility to
provide verification or replacement Media advertising shall survive any
termination of this Agreement.
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 arty 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 $9, below, ant, notwithstanding any provision hereof W the
contrary, Client shall remain liable to Xxxxx 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 provision of media
contracted for or in the payment to others for services contracted on behalf
of Client including but not limited to advertising of any sort, 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, public
relations and media services have not been booked hereunder and as subject to
verification under Section 41 hereof.
6. Lack of Representations by Sivla. Sivla will use its best efforts to
recommend Media advertising, which Sivla believes will be beneficial to
Client. Client's execution of this Agreement indicates its acknowledges tent
that Sivla has made no representations, express or implied, regarding the
ultimate success or failure of the Media Advertising to be run pursuant to the
Agreement. However, Sivla warrants and represents that a reasonable auditor
would value the Media Advertising received during the First Round of this
Agreement at no less than five million ($5,000,000) dollars based on generally
accepted accounting principals (GAAP) or generally accepted accounting
standards (GAAS).
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. Thu 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 arid
all confidential information received pursuant hereto.
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, indemnity 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 arid 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.
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 try first
class certified mail, return receipt requested:
If to Client
xxxxxxxx.xxx, Inc.
0000 Xxxxx 000.
Stroudsburg, Pennsylavania 1$3600
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
10. Public Announcements. Except as may be required by law, neither party
shall make any public announcement ox filing with respect to the transactions
provided for herein without the prior consent of the other party.
11. Attorney's Pees. 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.
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 arty rights in third
parties as third party beneficiaries or otherwise. This Agreement shah 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.
13. Force Majueure Whenever a period of tune is herein prescribed for the
taking of any action by either party hereto, such party shall riot be liable
or responsible for any delays due to strikes, riot, acts of Gad, shortages of
labor ox materials, wax, governmental laws and regulations or arty other cause
whatsoever beyond the control of such party.
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 arty provision of this
Agreement shall not operate or be construed as a waiver of any other or
subsequent breach.
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.
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 ifs original meaning
as possible. The invalidity, illegality or unenforceability of any provision
shall riot affect in any manner the other provisions herein contained, which
remain in full force and effect.
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 tit which
used.
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.
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.
20. Entire Agreement. This Agreement contains all of the xxxxx agreed upon
by the parties with respect to the subject matter of this Agreement and
supersede all prior agreements, representations arid warranties of the parties
as too the subject matter of this Agreement.
BY CAUSING THIS AGREEMENT TO B8 EXECUTED HERE BELOW, THE PARTIES IES
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 thus Agreement in multiple
duplicate originals.
AGREED TO & ACCEPTED BY: AGREED TO & ACCEPTED BY:
SIVLA INC. XXXXXXXX.XXX
By:/s/Xxxxxx X. Xxxxx Date 6/28/00 By:/s/Xxxxxx X. Xxxxxx Date:6/28/00
------------------ -------- ------------------- -------
Xxxxxx X. Xxxxx, its President Xxxxxx X. Xxxxxx, its President
and not individually and not individually
/s/Xxxxx Xxxxxx
--------------------- -------------------------
Witness Witness
State of California Commonwealth of Pennsylvania
County of Sacramento Xxxxxx
Xxxxxx F, Xxxxx personally appeared Xxxxxx X. Xxxxxx personally appeared
before me and acknowledged his before me and acknowledged his
execution of the foregoing execution of the foregoing
instrument to be the free act instrument to be the free act
and deed of Sivla,Inc. and deed of thatlook,com, Inc.
Before me, Before me,
/s/Xxxxxxxxxx X. Xxxxxx /s/ Xxxxxxxxx Xxxxx
----------------------- --------------------
Notary Public Notary Public
My Commission expires:5-10-2003 My Commission expires:
Xxxxxxxxxx X.Xxxxxx Notarial Seal
Commission #1219038 Xxxxxxxxx Xxxxx, Notary Public
Notary Public-California Allentown, Lehigh County
Sacramento County My Commission Expires Oct. 2, 2000
My Comm. Expires May 10, 2003
EXHIBIT "A"
PROMISSORY NOTE
FOR VALUE RECEIVED, xxxxxxxx.xxx, Inc., a Nevada business corporation, hereby
promises to pay, to the order of Sivla, Inc, ("Holder") or any subsequent
Holder hereof, the sum of One Hundred and Fifty Thousand ($150,000) Dollars in
United States currency together with interest at the rate of twelve (12%)
percent on the unpaid balance. Said sum shall be repaid in the following
manner:
This Note shall be due and payable on, July 1st 2001. Principal and Interest
totaling One Hundred and Sixty- Eight Thousand ($7.68,000) dollars shall be
repaid in a single payment on or before July 1st 2002.
This Note may be prepaid at any time, in whole or in part, without penalty. To
the extent that this Note is prepaid, the calculation of the Interest due to
the Holder shall be pro rated, based upon the number of days the note has been
outstanding, beginning with June 30, 2000, and based upon a 365 day year. This
Note shall, at the option of any Holder hereof, be Immediately due and payable
upon the failure of any payment to be made within thirty (30) days of its due
date. Upon such failure, this Note shall accelerate and Interest shall accrue
at the rate of eighteen (18%) percent do the entire balance then due until
said failure is remedied or this Note is fully discharged.
In the event this Note shall be fn default and placed with an attorney for
collection, then xxxxxxxx.xxx Inc. agrees to pay all reasonable attorney's
fees and costs of collection. Payment hereunder shall be made to such address
as may from time to time be designated by any Holder hereof.
xxxxxxxx.xxx, Inc. agrees to remain fully bound until this Note is fully paid.
No modification, waiver, or other indulgence shall be binding unless in
writing; and any indulgence on any one occasion shall not operate as an
indulgence for any other or future occasion. Any modification or change of
terms granted by any holder hereof shall be valid arid binding upon the
undersigned. The rights of any holder hereof shall be cumulative and not
necessarily successive. This Note shall take effect and shall be construed,
governed and enforced i" accordance with the laws of the State of New York.
This Note may be executed in multiple counterparts, each of which so executed
and delivered shall constitute an original, but all such counterparts shall
together constitute one and the earns
instrument.
XXXXXXXX.XXX
/S/Xxxxx Xxxxxx By: /s/Xxxxxx X. Xxxxxx
--------------- ----------------------
Witness
/s/Xxxxxx Xxxxxxx
-----------------
Witness
EXHIBIT "B"
MARKETING CONTROL PARAMETERS
Marketing control shall be given to Sivla for a period of five (5) months
commencing on the Effective Date of the Agreement. During this five (5) month
period, Sivla, through its efforts of creative and media selection, must
create an advertising "Cost/Consultation" of two hundred and fifty ($250.00)
dollars or less. The formula for arriving at the "Cost/Consultation" is the
amount of media dollars spent divided by the amount of approved patients who
present at the doctors offices during a given time period. The $250 "Cost/
Consultation" is contingent upon verification of Client's "Cost/Consultation"
of one hundred seventy-five ($175.00) dollars on a year-to-date basis.
Further, during the same five (5) month time period, Sivla must attain a
"Cost/Surgical Event" of twelve hundred and eight ($1,208.00) dollars or less.
The formula for arriving at the "Cost/Surgical Event" is the amount of media
dollars spent divided by the number of surgical events during a given time
period. The $1,208 "Cost/Surgical Event" is contingent upon verification of
Client's "Cost/Surgical Event" of eight hundred and forty-five ($84.00)
dollars on a year-to-date basis.
In the event that Client verifies its above-stated "Cost/Consultation" and
"Cost/Surgical Event" and Sivla fails to attain its stated goals within five
(5) months from, the Effective Date of the Agreement, marketing control shall
revert to Client. Should marketing control revert to Client, Client's
management shall direct the use of the then remaining media and creative. If
necessary, the parties shall effect the transfer of marketing control within
thirty (30) days from the close of the five(5) month period.
For purposes of this exhibit B, the term "Cost" when used as
"Cost/Consultation" and/or "Cost/Surgical Event" shall mean the amount of
expense directly attributable to this Agreement and directly the result of the
services Sivla performs, purchases or otherwise engages on behalf of Client
which is shown on the Client's Income Statement according to Generally
Accepted Accounting Principals and as may be reasonably accepted by the
Client's independent outside auditors for any period under consideration.
