10.1 Sivla Consulting Agreement
AGREEMENT
THIS AGREEMENT is made by between ▇▇▇▇▇▇▇▇.▇▇▇, Inc., a business corporation
organized under the laws of the state of Nevada with its principal offices
located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Client"), arid
Sivla, Inc., a business corporation organized under the laws of the state of
California with its principal offices located at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ - ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("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:
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.
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.
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.
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 set's 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 an 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 Clients 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 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 by 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 ▇▇▇▇▇▇▇▇.▇▇▇ 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.
5. Defaults.
a. Clients 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 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.
▇. ▇▇▇▇▇'▇ Default. Any default by Sivla in the purchasing of media on behalf
of Client, or party 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.
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.
7. Non-competition & Non-circumvention. 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 non-compete/non-circumvention 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.
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.
▇. ▇▇▇▇▇'▇ 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.
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:
▇▇▇▇▇▇▇▇.▇▇▇,Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
With a copy
If to Sivla:
Sivla, Inc.
1006 4th sheet - Top Floor
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
With a Copy: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Richmond, Esq.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Richmond, P.C.
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ #▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
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.
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.
12, Benefit. This Agreement shall be binding upon and shall inure by 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.
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 Cod, shortages of
labor or materials, war, governmental laws and regulations or any 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, ltd 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,
$ 15. Construction and 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 its original meaning as
possible. The invalidity, illegality or unenforceability of any provision
shall not affect to 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 in 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 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 AND ACCEPTED BY:
SIVLA INC. ▇▇▇▇▇▇▇▇.▇▇▇
BY: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ BY:/S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇, its President ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇, its president and
not individually and not individually
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Witness Witness
State of California Commonwealth of Pennsylvania
County of Sacremento, ▇▇ ▇▇▇▇▇▇, SS
JUNE 28,2000 JUNE 28,2000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ personally appeared ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ personally
before me and acknowledged his appeared before me and
execution of the foregoing instrument acknowledge his execution of
to be the free act and deed of Sivla, the foregoing instrument to be
Inc. free act and deed of
AMENDMENT
THIS AMENDMENT is to the that certain agreement effective June 30th, 2000
("Principal Agreement" attached hereto as Exhibit "A") made by and between
▇▇▇▇▇▇▇▇.▇▇▇, Inc., a business corporation organized under the laws of the
state of Nevada with its principal offices located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Client"), and ▇▇▇▇▇, Inc., a business
corporation organized under the laws of the state Of California with it's
principal offices located at 1006 ▇▇▇ ▇▇▇▇▇▇- Top Floor, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("▇▇▇▇▇"), (hereinafter referred to collectively as the
"Parties").
WHEREAS certain disagreements have arisen between the Parties to the Principal
Agreement, width is attached hereto ac Exhibit "A"; and
WHEREAS the Parties wish to reconcile these disagreements and resume
performance of their duties and obligations under the Principal Agreement, as
amended hereby
NOW, THEREFORE, in consideration of the mutual promises contained in this
Amendment the Parties agree as follows:
1 "4(h) Registration Rights & Restrictions" is amended insofar as Sivla
formally retracts its demand issued October 30th 2000 for registration of 2.25
million shares of the common stock of the Client. Through the retraction,
Sivla renews its right to demand registration of the 2.25 million shares.
Sivla's renewed demand registration right is exercisable at such time as
Client requests further Media Advertising, it being the understanding of the
Parties that no such further Media Advertising shall be placed until said 2.25
million shares are registered pursuant to a valid registration statement filed
to response to Sivla's demand.
2. Within fourteen (14) days of the date on which this Amendment is fully
executed below, Client agrees to instruct its securities counsel to file an
SB-2 Registration Statement including therein one hundred sixty-six thousand
(166,000) shares of common stock to be transferred to Sivla. Sivla agrees to
provide Client's securities counsel each representations and warranties as
said counsel may reasonably request in order to complete the filing of said
SB-2.
3. Client shall cause an offer to purchase 50,000 shares of its registered
common stock for Sivla each week commencing the week beginning Monday,
November 13th, 2000. The raw share price shall be determined by the closing
bid price of the securities at the time of offer. 0nce the price is fixed by
buyer and seller, the buyer shall receive a further twenty-five (25%)
discount. So long as bona fide weekly offers are made as contemplated in this
Agreement, ▇▇▇▇▇ shall refrain from selling shares in the open market up to
572,000 shares.
4. Client and Sivla, and each of them, acknowledge that neither is in
default under the terms of the Principal Agreement or any agreement between
the Parties. Each party retracts any and all pending allegations of wrong
doing and agrees to resume performance of their duties under the Principal
Agreement, as amended hereby. Further, each party, for itself and on behalf of
its officers, directors, shareholders, affiliates, successors and assigns,
hereby releases and discharges forever each of the entitles named below for
all claims, whatsoever, from time beginning of the world to the date of this
agreement: The ▇▇▇▇▇ ▇ ▇▇▇▇▇▇ Organization, Ins, Venture Capital Media, Inc.
Venture Capital Media, Ltd. sad ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Richmond P.C., together with
each entity's officers, directors and shareholders.
5. Should any provision of this Amendment 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 affect.
6. The Parties agree to accept facsimile signatures as original signatures
In full execution of this Amendment to the Principal Agreement
BY CAUSING THIS DOCUMENT TO BE EXECUTED HERE BELOW, THE PARTIES
ACKNOWLEDGE THAT THEY HAVE READ THIS AMENDMENT, UNDERSTAND IT, AND
AGREE TO BE BOUND BY ITS TERMS AND CONDITION. EACH PARTY CERTIFIES THAT THEY
HAVE HAD TIME TO CONSULT WITH COUNSEL OF THEIR CHOOSING AND ARE NOT SIGNING
THIS AMENDMENT UNDER DURESS.
IN WITNESS WHEREOF, Sivla and. Client have executed this Amendment in multiple
duplicate originals.
AGREED TO & ACCEPTED By:. AGREED TO & ACCEPTED BY:
SIVLA, INC. ▇▇▇▇▇▇▇▇.▇▇▇, INC.
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Date 11/6/00 By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Date 11/15/00
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▇▇▇▇▇▇ ▇ ▇▇▇▇▇ , its President ▇▇▇▇▇▇' ▇. ▇▇▇▇▇▇ its CE0
and not individually and not individually
/s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Witness Witness
State of California Commonwealth of Pennsylvania.
Sacraomento, 55. Monroe, SS.
November ___, 2000 November____2000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ personally appeared before ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ personally
Me and acknowledged his execution to the appeared before us and
Of the foregoing instrument to be the free acknowledged his execution
act and deed of ▇▇▇▇▇,Inc. of the foregoing instrument to be
the free act and deed of
▇▇▇▇▇▇▇▇.▇▇▇,Inc.
Before me, Before me,
/s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Notary Public Notary Public
My commission expires: My commission expires