SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FIRST AMENDMENT TO
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
March 24, 2000
Date of Report (Date of earliest event reported)
BANYAN CORPORATION
(Exact name of registrant as specified in its charter)
OREGON 000-26065 84-1346327
(State or other jur- (Commission (IRS Employer
isdiction of incor- File Number) Identification No.)
poration)
4740 Forge Rd., Bldg. 112, Colorado Springs, Colorado 80907
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (719) 531-5535
(Former name or former address, if changed since last report.)
<PAGE>
Item 1. Change in Control of Registrant
Not applicable.
Item 2. Acquisition of Assets
The Company acquired the assets of Showcase Technologies, ('Showcase') a
partnership in the state of New York, on November 1, 1999. The primary assets of
Showcase were a line of hard and soft carrying cases for notebook computers and
cameras, and what the Company calls a website optimizing service.
Pursuant to the acquisition agreement, the line of hard and soft carrying
cases, which utilize a patented internal rail and track system that holds
objects securely in the cases, is now owned by Doublecase Corp. a Kansas
corporation which is a wholly owned subsidiary of the Company. A copy of the
acquisition agreement is attached hereto as Exhibit 10.3. As part of the
acquisition, the Company has entered into an employment contract with Alan
Hillsberg, hereto attached as Exhibit 10.1
Pursuant to the acquisition agreement, the website optimizing service,
which operates a web site at www.toplisting.com, is now owned by TopListing.com
Corporation, a Colorado corporation which is a wholly owned subsidiary of the
Company. Toplisting.com guarantees that an entites website will be in the top 20
listings of their category at least one of the eight major search engines.See
Financial Statements attached hereto as Exhibit 10.2.
Immediately prior to the acquisition of Showcase and Toplisting, an asset
purchase agreement was entered into between Showcase and Toplisting.com, whereby
Showcase sold all rights, title and interest relating to the product lines known
as TopListing and Designer Studio to Toplisting.com. A copy of this agreement is
attached hereto as Exhibit 10.4
Item 3. Bankruptcy or Receivership
Not applicable.
Item 4. Changes in Registrant's Certifying Public Accountant.
Not applicable.
Item 5. Other events.
The corporation has entered into a two year employment contract with Alan
Hillsberg as a Director, President and COO of Doublecase Corporation and
Toplisting.com Corporation, pursuant to which he will be paid $116,000 per year,
10% of the Company's net pre-tax profit, 20% of DC's net pre-tax profit, and
Options to purchase 235,000 shares of common stock of Banyan Corporation
(Employer parent corporation) at $0.1187 per share. He is also entitled to
medical and dental insurance and such other benefits as received by the other
executive officers.
Item 6. Resignations of Registrant's Directors
Not applicable.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
A. Financial Statements Of Business Acquired
<PAGE>
SHOWCASE TECHNOLOGIES, LLC
FINANCIAL STATEMENTS
December 31, 1997,
December 31, 1998,
& September 30, 1999
<PAGE>
SHOWCASE TECHNOLOGIES, LLC
Financial Statements
TABLE OF CONTENTS
Page
INDEPENDENT AUDITOR'S REPORT ON
THE FINANCIAL STATEMENTS F-1
FINANCIAL STATEMENTS
Balance sheets F-2
Statements of operations F-3
Statements of members' equity F-4
Statements of cash flows F-5
Notes to financial statements F-6
<PAGE>
RONALD R. CHADWICK, P.C.
CERTIFIED PUBLIC ACCOUNTANT
2851 S. PARKER ROAD, SUITE 720
AURORA, COLORADO 80014
----------
TELEPHONE:(303)306-1967
TELECOPIER:(303)306-1944
INDEPENDENT AUDITOR'S REPORT
To the Members
Showcase Technologies, LLC
Colorado Springs, Colorado
I have audited the accompanying balance sheets of Showcase Technologies, LLC as
of December 31, 1997, December 31, 1998, and September 30, 1999 and the related
statements of operations, members' equity and cash flows for the periods then
ended. These financial statements are the responsibility of the Company's
management. My responsibility is to express an opinion on these financial
statements based on my audit.
I conducted my audit in accordance with generally accepted auditing standards.
Those standards require that I plan and perform the audit to obtain reasonable
assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
I believe that my audit provides a reasonable basis for my opinion.
In my opinion, the financial statements referred to above present fairly, in all
material respects, the financial position of Showcase Technologies, LLC as of
December 31, 1997, December 31, 1998, and September 30, 1999 and the results of
its operations and its cash flows for the periods then ended in conformity with
generally accepted accounting principles.
Aurora, Colorado /s/RONALD R. CHADWICK, P.C.
March 16, 2000 RONALD R. CHADWICK, P.C.
F-1
<PAGE>
<TABLE>
<CAPTION>
SHOWCASE TECHNOLOGIES, LLC
BALANCE SHEETS
December 31, December 31, September 30,
1997 1998 1999
-------------- -------------- --------------
ASSETS
Current assets
<S> <C> <C> <C>
Cash $ 27,835 $ 3,716 $ -
-------------- -------------- --------------
Total current assets 27,835 3,716 -
Inventory 15,366 15,366 15,366
Patent 2,772 2,464 2,233
Other 426 311 225
-------------- -------------- --------------
Total Assets $ 46,399 $ 21,857 $ 17,824
============== ============== ==============
LIABILITIES AND MEMBERS' EQUITY
Current liabilities
Bank overdraft $ - $ - $ 5,026
Related party payable 102,503 72,552 31,957
-------------- -------------- --------------
Total current liabilties 102,503 72,552 36,983
-------------- -------------- --------------
Total Liabilities 102,503 72,552 36,983
-------------- -------------- --------------
Members Equity (56,104) (50,695) (19,159)
-------------- -------------- --------------
Total Liabilities and Members' Equity $ 46,399 $ 21,857 $ 17,824
============== ============== ==============
</TABLE>
The accompanying notes are an integral part of the financial statements.
F-2
<PAGE>
<TABLE>
<CAPTION>
SHOWCASE TECHNOLOGIES, LLC
STATEMENTS OF OPERATIONS
Nine Months
Ended
December 31, December 31, September 30,
1997 1998 1999
-------------- -------------- --------------
<S> <C> <C> <C>
Sales $ 269,306 $ 270,954 $ 201,214
Cost of sales 197,072 193,731 119,470
-------------- -------------- --------------
Gross margin 72,234 72,223 81,744
Operating expenses 44,956 71,814 50,208
-------------- -------------- --------------
Income (loss) from operations 27,278 5,409 31,536
Other income (expense) - - -
-------------- -------------- --------------
Income (loss) before 27,278 5,409 31,536
provision for income taxes
Provision for income tax - - -
-------------- -------------- --------------
Net income (loss) 27,278 5,409 31,536
============== ============== ==============
</TABLE>
The accompanying notes are an integral part of the financial statements.
F-3
<PAGE>
<TABLE>
<CAPTION>
SHOWCASE TECHNOLOGIES, LLC
STATEMENTS OF MEMBERS' EQUITY
For the Years Ended December 31, 1997 & 1998,
and the Nine Months Ended September 30, 1999
<S> <C>
Members' equity, January 1, 1997 $( 83,382)
Gain (loss) for the period 27,278
Members' equity, December 31, 1997 $( 56,104)
Gain (loss) for the period 5,409
Members' equity, December 31, 1998 $( 50,695)
Gain (loss) for the period 31,536
Members' equity, September 30, 1999 $( 19,159)
===========
</TABLE>
The accompanying notes are an integral part of the financial statements.
F-4
<PAGE>
<TABLE>
<CAPTION>
SHOWCASE TECHNOLOGIES, LLC
STATEMENTS OF CASH FLOWS
Nine Months
Year Ended Year Ended Ended
Dec. 31, Dec. 31, Sept. 30,
1997 1998 1999
------------ ----------- -------------
Cash Flows From Operating Activities:
<S> <C> <C> <C>
Net income (loss) $ 27,278 $ 5,409 $ 31,536
Adjustments to reconcile net income to
net cash provided by (used for)
operating activities:
Depreciation 192 115 86
Amortization 308 308 231
------------ ----------- -------------
Net cash provided by (used for)
operating activities 27,778 5,832 31,853
------------ ----------- -------------
Cash Flows From Financing Activities:
Payment of related party payable - (29,951) (40,595)
------------ ----------- -------------
Net cash provided by (used for)
financing activities - (29,951) (40,595)
------------ ----------- -------------
Net Increase (Decrease) In Cash 27,778 (24,119) (8,742)
Cash At The Beginning Of The Period 57 27,835 3,716
------------ ----------- -------------
Cash At The End Of The Period $ 27,835 $ 3,716 $ (5,026)
============ =========== =============
</TABLE>
The accompanying notes are an integral part of the financial statements.
F-5
<PAGE>
SHOWCASE TECHNOLOGIES, LLC
NOTES TO FINANCIAL STATEMENTS
NOTE 1. ORGANIZATION, OPERATIONS AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES:
Showcase Technologies, LLC (the "Company"), was organized as a limited liability
company in the state of New York in May, 1995. The Company manufactures and
distributes hard carrying cases for portable notebook computers and data storage
devices.
Cash and cash equivalents
- ----------------------------
The Company considers all highly liquid investments with an original maturity of
three months or less as cash equivalents.
Accounting year and method
- ----------------------------
The Company employs a calendar accounting year, and uses the accrual basis of
accounting.
Use of estimates
- ----------------------------
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions that
affect the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the financial statements and
the reported amounts of revenue and expenses during the reporting period.
Actual results could differ from those estimates.
Organization costs
- ----------------------------
Organization costs are expensed as incurred.
Property and equipment
- ----------------------------
Property and equipment are recorded at cost and depreciation is recorded using
the double declining balance method over the estimated lives of the assets.
Inventory
- ----------------------------
Inventory consists of raw materials and consigned finished goods. Inventories
are valued at the lower of cost or market using the first-in, first-out (FIFO)
method.
F-6
<PAGE>
SHOWCASE TECHNOLOGIES, LLC
NOTES TO FINANCIAL STATEMENTS - Continued
NOTE 1. ORGANIZATION, OPERATIONS AND SUMMARY OF SIGNIFICANT
ACCOUNTING POLICIES (Continued):
Patent
- ----------------------------
Patent work has been recorded at cost and amortized based on the straight line
method over ten years. Amortization expense was $308 in 1997 and 1998, and $231
for the nine months ended September 30, 1999.
Revenue recognition
- ----------------------------
Revenue is recognized by the Company when a product is shipped to a customer.
AICPA Statement of Position 98-5
- ----------------------------
Effective January 1, 1999 the Company has adopted the AICPA Statement of
Position ("SOP") 98-5, which requires nongovernmental entities to expense
startup costs as incurred. The adoption by the Company of SOP 98-5 is not
expected to have a material impact on the Company's financial statements.
Financial Instruments
- ----------------------------
The carrying value of the Company's financial instruments, including cash and
cash equivalents, accounts receivable, accounts payable, and long term debt, as
reported in the accompanying balance sheet, approximates fair value.
Income tax
- ----------------------------
The Company is treated as a partnership for income tax purposes, and therefore
does not accrue or pay income tax at the partnership level.
NOTE 2. RELATED PARTY TRANSACTIONS
The Company has borrowed funds from its general manager to meet working capital
needs, resulting in a related party payable of $120,503, $72,552, and $31,536 at
December 31, 1997, December 31, 1998 and September 30, 1999 respectively. The
related party payable is non-interest bearing and due on demand.
NOTE 3. SUBSEQUENT EVENTS
On November 1, 1999 all the Company's assets were acquired by Banyan Corporation
in a transaction accounted for as a purchase.
F-7
<PAGE>
B. Pro Forma Combines Financial Statements
<PAGE>
<TABLE>
<CAPTION>
BANYAN CORPORATION (and Subsidiary) and
SHOWCASE TECHNOLOGIES, LLC
PRO FORMA COMBINED BALANCE SHEET
December 31, 1998
Banyan Showcase Adjust- End
Corporation Tech., LLC ments Balance
----------- ---------- -------- ----------
ASSETS
Current assets
<S> <C> <C> <C> <C>
Cash $ 30,256 $ 3,716 $ $ 33,972
Accounts receivable 47,495 47,495
Inventory 42,956 15,366 58,322
Prepaid expenses 4,914 4,914
----------- ---------- -------- ----------
Total current assets 25,621 19,082 144,703
----------- ---------- -------- ----------
Fixed assets
Furniture and fixtures 11,043 11,043
Equipment and tooling 5,648 1,000 6,648
16,691 1,000 17,691
less accumulated depreciation (16,105) (689) (16,794)
586 311 897
----------- ---------- -------- ----------
Other assets
Development costs 25,519 25,519
Trademarks and licenses, net 35,227 2,464 37,691
Notes receivable 40,000 40,000
Investment in Anything Internet Corporation 47,039 47,039
Other 4,700 4,700
----------- ---------- -------- ----------
152,485 2,464 154,949
----------- ---------- -------- ----------
Total Assets $ 278,692 $ 21,857 $300,549
=========== ========== ======== ==========
LIABILITIES AND STOCKHOLDERS' DEFICIT
Current liabilities
Accounts payable $ 83,705 $ - $ 83,705
Accrued salaries and related exp. 85,553 85,553
Related party payable 72,552 72,552
Accrued interest 222,242 222,242
----------- ---------- -------- ----------
Total current liabilties 391,500 72,552 464,052
Notes payable 105,234 105,234
----------- ---------- -------- ----------
Total Liabilities 496,734 72,552 569,286
----------- ---------- -------- ----------
Stockholders' Deficit
Preferred stock, Class A: no par value;
500,000 shares authorized; 187,190 issued and out.;
callable at $2.75 per share and converti 334,906 334,906
Common stock, Class A: no par value;
50,000,000 shares authorized;
9,435,699 issued and outstanding 2,942,795 (50,695) 2,892,100
Accumulated deficit (3,495,743) (3,495,743)
-----------
Members' equity (50,695) 50,695
----------- --------- ----------
Total Stockholders' Deficit (218,042) (218,042)
----------- ------- ----------
Total Liabilities and Stockholders' Deficit $ 278,692 $ 21,857 $ $ 300,549
=========== =========== ======= ==========
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
BANYAN CORPORATION (and Subsidiary) and
SHOWCASE TECHNOLOGIES, LLC
PRO FORMA COMBINED BALANCE SHEET
September 30, 1999
Banyan Showcase Adjust- End
Corporation Tech., LLC ments Balance
ASSETS ------------- ---------- -------- --------
Current assets
<S> <C> <C> <C> <C>
Cash $ 28,872 $ $ $ 28,872
Accounts receivable 75,078 75,078
Inventory 36,976 15,366 52,342
Prepaid expenses 7,261 7,261
------------- ---------- -------- --------
Total current assets 148,187 15,366 163,553
------------- ---------- -------- --------
Fixed assets
Furniture and fixtures 11,921 11,921
Equipment and tooling 15,648 1,000 16,648
------------- ---------- -------- --------
27,569 1,000 28,569
less accumulated depreciation (17,175) (775) (17,950)
------------- ---------- -------- --------
10,394 225 10,619
Other assets
Trademarks and licenses, net 26,434 2,233 28,667
Other 7,200 7,200
------------- ---------- -------- --------
33,634 2,233 35,867
------------- ---------- -------- --------
Total Assets $ 192,215 $ 17,824 $ 210,039
============= ========== ======== ========
LIABILITIES AND STOCKHOLDERS' DEFICIT
Current liabilities
Accounts payable $ 121,893 $ - $ 121,893
Bank overdraft 5,026 5,026
Accrued salaries and related exp. 38,026 38,026
Related party payable 31,957 31,957
Accrued interest 230,692 230,692
------------- ---------- -------- --------
Total current liabilties 390,611 36,983 427,594
Notes payable 105,234 105,234
------------- ---------- -------- --------
Total Liabilities 495,845 36,983 532,828
------------- ---------- -------- --------
Stockholders' Deficit
Preferred stock, Class A: no par value;
500,000 shares authorized; 187,190 issued and out.;
callable at $2.75 per share and convertib 334,906 334,906
Common stock, Class A: no par value;
50,000,000 shares authorized;
9,435,699 issued and outstanding 3,327,598 (19,159) 3,308,439
Accumulated deficit (3,966,134) (3,966,134)
------------- --------
Members' equity (19,159) 19,159
------------- ---------- --------
Total Stockholders' Deficit (303,630) (303,630)
------------- ---------- -------- --------
Total Liabilities and Stockholders' Deficit $ 192,215 $ 17,824 $ $ 210,039
============= ========== ======== ========
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
BANYAN CORPORATION (and Subsidiary) and
SHOWCASE TECHNOLOGIES, LLC
PRO FORMA COMBINED STATEMENT OF OPERATIONS
For The Year Ended December 31, 1998
Banyan Showcase Adjust- End
Corporation Tech., LLC ments Balance
----------- ---------- ------- ---------
<S> <C> <C> <C> <C>
Sales, net $ 206,467 $ 270,954 $ - $477,421
Cost of sales 69,006 193,731 262,737
----------- ---------- ------- ---------
Gross margin 137,461 77,223 214,684
Research & development - -
Selling, general and administrative expenses 576,639 71,814 648,453
----------- ---------- ------- ---------
Gain (loss) from operations (439,178) 5,409 (433,769)
Other income (expense)
Interest expense (22,913) (22,913)
Gain (loss) on sale of assets 3,449 3,449
Equity income of Anything Internet (39,590) (39,590)
Corporation ----------- ---------- ------- ---------
Income (loss) before provision (498,232) 5,409 (492,823)
for income taxes
Provision for income tax - - - -
----------- ---------- ------- ---------
Net income (loss) $(498,232 $5,409 $ - $(492,823)
=========== ========== ======= =========
Net income (loss) per share
(Basic and fully diluted) $ (0.06)
===========
Weighted average number of
common shares outstanding 8,359,433
===========
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
BANYAN CORPORATION (and Subsidiary) and
SHOWCASE TECHNOLOGIES, LLC
PRO FORMA COMBINED STATEMENT OF OPERATIONS
For The Nine Months September 30, 1999
Banyan Showcase Adjust- End
Corporation Tech., LLC ments Balance
----------- ---------- ------- ---------
<S> <C> <C> <C> <C>
Sales, net $ 116,497 $ 201,214 $ - $317,711
Cost of sales 43,121 119,470 162,591
----------- ---------- ------- ---------
Gross margin 73,376 81,744 155,120
Research & development - -
Selling, general and administrative expenses 367,156 50,208 417,364
----------- ---------- ------- ---------
Gain (loss) from operations (293,780) 31,536 (262,244)
Other income (expense)
Interest expense (12,767) (12,767)
Equity income of Anything Internet (118,325) (118,325)
Corporation ----------- ---------- ------- ---------
Income (loss) before provision for income (424,872) 31,536 (393,336)
taxes
Provision for income tax - - - -
----------- ---------- ------- ---------
Net income (loss) $(424,872) $ 31,536 $ - $(393,336)
=========== ========== ======= =========
Net income (loss) per share
(Basic and fully diluted) $ (0.04)
===========
Weighted average number of
common shares outstanding 9,586,223
===========
</TABLE>
<PAGE>
C. INDEX TO EXHIBITS
The following exhibits are filed as a part of this disclosure statement:
Exhibit
Number Description
- - ------- -----------
10.1 Employment Agreement With Alan Hillsberg*
10.2 Asset Purchase Agreement For TopListing*
10.3 Asset Purchase Agreement For For Showcase*
10.4 Asset Purchase Agreement between Toplisting.com
and Showcase Technologies
* Incorporated by reference to the Company's Form 8-k dated January 10, 2000.
Item 8. Change in Fiscal Year
Not applicable
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has caused this report to be signed on its behalf the
undersigned hereunto duly authorized.
Date: March 31, 2000
BANYAN CORPORATION
BY:__/s/Cameron Yost___
Cameron Yost
President
<PAGE>
ASSET PURCHASE AGREEMENT
This AGREEMENT dated this 26th day of October, 1999, by and between
Showcase Technologies, LLC, having its principal place of business at 33 East
Merrick Rd., 2nd Floor, Suite 6, Valley Stream, NY, 11580 (hereafter
"SHOWCASE"), and TopListing.com Corporation, a Colorado corporation having its
principal place of business at 4740 Forge Rd., Suite 112, Colorado Springs,
Colorado 80907 (hereafter "Top.com").
WHEREAS, SHOWCASE is desirous of selling all rights, title and interest
relating to the product lines known as TopListing and Designer Studio.
WHEREAS, Top.com is desirous of acquiring all rights, title and interest
relating to the product lines known as TopListing and Designer Studio from
SHOWCASE.
IT IS HEREFORE AGREED that in consideration of the mutual covenants and
agreements hereinafter set forth, the parties hereto agree as follows:
1. Exchange of Assets.
1.1 Subject to the terms and conditions of this Agreement and the
performance by the parties hereto of their respective obligations hereunder,
SHOWCASE shall exchange, transfer, convey, assign and deliver to Top.com, and
Top.com shall receive, acquire and accept on the Closing Date (as such term is
hereinafter defined) all of the rights, title and interest relating to the
product lines known as TopListing and Designer Studio in and to the business,
assets, goodwill, and rights of SHOWCASE in all or substantially all of its
assets, including technology, software, web sites, customer lists, inventory, as
specified in the list of Assets attached hereto as Exhibit I (the "Assets &
Allocation"), as the same shall exist on the Closing Date, including, without
limitation, rights in tradenames, trademarks and copyrights, patent and patent
pendings, all rights relating to or arising out of the business conducted by
SHOWCASE as they relate to TopListing and Designer Studio under express or
implied warranty (as from the suppliers of SHOWCASE with respect to the Assets
being transferred to Top.com) , all books and records, correspondence and files
of or relating to the business or Assets of TopListing and Designer Studio being
exchanged with Top.com and all of SHOWCASE's rights, title and interest in and
to each, contract, agreement, purchase order or commitment to which SHOWCASE is
a party or in which SHOWCASE has rights (all of such assets are collectively
referred to hereinafter as the "Assets"), free and clear of all liabilities,
obligations, liens and encumbrances, except as expressly assumed by Top.com
under Section 2 below.
1.2 The transfer of the Assets as herein provided shall be effected by
bills of sale, endorsements, assignments, drafts, checks, deeds and other
instruments of transfer and conveyance delivered to Top.com on the Closing Date
in form sufficient to transfer the Assets as contemplated by this Agreement and
as shall be reasonably requested by Top.com. SHOWCASE covenants that (i) it
will, at any time and from time to time after the Closing Date, execute and
deliver such other instruments of transfer and conveyance and do all such
further acts and things as may be reasonably requested by Top.com to transfer
and deliver to Top.com or to aid and assist Top.com in collecting and reducing
to possession, any and all of the Assets; (ii) Top.com, after the Closing Date,
shall have the right and authority to collect, for the account of Top.com, all
checks, notes and other evidences of indebtedness or obligations to make payment
of money and other items which shall be transferred to Top.com as provided and
to endorse with the name of Top.com any such checks, notes or other instruments
received after the Closing Date; and (iii) SHOWCASE will transfer and deliver to
Top.com all other property that SHOWCASE may receive after the Closing Date in
respect of or arising out of the business conducted by TopListing and Designer
Studio.
1.3 SHOWCASE covenants that between the date hereof and the Closing Date
and, if reasonably requested by Top.com, after the Closing Date, SHOWCASE shall
use its best efforts to obtain the consent of any parties to any contracts,
licenses, leases, commitments, sales orders, purchase orders or other agreements
being assigned by SHOWCASE to Top.com hereunder as shall be reasonable requested
by Top.com. If any such required consent is not obtained, this Agreement shall
constitute an agreement to assign the instrument relating thereto to Top.com.
2. Assumption of Liabilities. Top.com shall assume no liabilities of
SHOWCASE, TopListing or Designer Studio.
3. Closing. The Closing hereunder (the "Closing") shall take place at ___ on
the 1st day of November 1999, at 33 East Merrick Rd., 2nd Floor, Suite 6, Valley
Stream, NY.
4. Exchange Terms; Allocation.
4.1 In consideration of the exchange and transfer of the
Assets herein contemplated, on the Closing Date, Top.com shall deliver at
Closing:
a) $100,000 US Funds (less deposit of $2,500);
b) 300,000 shares of Banyan Corporation common stock valued at the
previous days closing bid price. Said shares shall be issued
exempt from registration under Rule 144.
to SHOWCASE or its assignees.
5. Representations and Warranties of SHOWCASE. SHOWCASE hereby represents
and warrants as follows:
5.1 SHOWCASE is a LLC. On or before closing SHOWCASE shall establish to the
satisfaction of Top.com that it has title to the Assets and authority to convey
the same in accordance with the terms of this Agreement. SHOWCASE has taken no
action and has not failed to take any action, which action or failure would
preclude or prevent Top.com from conducting the business of SHOWCASE in the
manner heretofore conducted.
5.2 SHOWCASE has two subsidiaries, "Designer Studio " and "TopListing"
5.3 SHOWCASE is fully empowered to enter into this transaction.
5.4 SHOWCASE has full power and authority, corporate and otherwise, to
enter into this Agreement on behalf of TopListing and Designer Studio and to
cause SHOWCASE to assume and perform its, his or her obligations hereunder. The
execution and delivery of this Agreement and the performance by SHOWCASE of its
obligations hereunder have been duly authorized by the shareholders and
directors of SHOWCASE and no further action or approval, corporate or otherwise,
is required in order to constitute this Agreement as a binding and enforceable
obligation of SHOWCASE. The execution and delivery of this Agreement and the
performance by SHOWCASE of its obligations hereunder do not and will not violate
any provision of the Certificate of Incorporation or By-Laws of SHOWCASE and do
not and will not conflict with or result in any breach of any condition or
provision of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any of the Assets by reason
of the terms of any contract, mortgage, lien, lease, agreement indenture,
instrument, judgment or decree to which SHOWCASE is a party or which is or
purports to be binding upon SHOWCASE or which affects or purports to affect any
of the Assets.
5.4 No action, approval, consent or authorization, including but not limited
to any action, approval, consent or authorization by any governmental or
quasi-governmental agency, commission, board, bureau or instrumentality is
necessary as to SHOWCASE in order to constitute this agreement as a binding and
enforceable obligation of SHOWCASE in accordance with its terms.
5.5 SHOWCASE has not incurred any obligation or liability (absolute or
contingent, liquidated or unliquidated, choate or inchoate) except current
obligations and liabilities incurred in the ordinary course of their businesses
which would act as a lien against the Assets being transferred.
5.6 SHOWCASE has not leased or effected any transfer of any of the Assets.
6. Representations and Warranties of Top.com. Top.com hereby represents and
warrants that on the closing date all of the following will be true:
6.1 Top.com is a corporation duly organized, validly existing and in good
standing under the laws of the state of Colorado.
6.2 Top.com is a wholly owned subsidiary of Banyan Corporation.
<PAGE>
7. Miscellaneous.
a) This Agreement shall constitute the entire agreement of the parties
hereto and may not be amended, except by written consent of the parties hereto
in writing executed by them.
b) This Agreement shall be construed according to the laws of the State of
Colorado and shall be enforceable in any court of competent jurisdiction located
in the State of Colorado.
c) This Agreement shall insure to the benefit of the parties and their
successors in interest, if any, but shall not otherwise be assignable.
d) Where in this Agreement one gender or the other is used, of the singular
or the plural is used, and if to effect the intent of the parties hereto the use
of the other gender or number is needed then it is understood that such gender
or both or such number or both is implied.
e) This Agreement may be executed in counterparts and receipt of facsimile
transmission of signatures shall be sufficient to effect acceptance of this
Agreement, although the parties hereto agree to submit within a reasonable time
duplicate original signed copies of this Agreement to each other.
8. Indemnification.
Each party to this Agreement shall indemnify and hold harmless each other
party at all times after the date of closing against and in respect of any
liability, damage or deficiency, all actions, suits, proceedings, demands,
assessments, judgments, costs and expenses, including attorney's fees incident
to any of the foregoing, resulting from any misrepresentation, breach of
covenant or warranty for non-fulfillment of any agreement on the part of such
party under this Agreement, or from any misrepresentation in or omission from
any certificate furnished or to be furnished to a party hereunder. Subject to
the terms of this Agreement, the defaulting party shall reimburse the other
party or parties on demand for any reasonable payments made by said parties at
any time after the date of closing, in respect to any liability or claim to
which the foregoing indemnity relates, if such payment is made after reasonable
notice to the other party to defend or satisfy the same, and such party failed
to defend or satisfy the same.
9. Expenses. Each party shall pay its own expenses.
10. Brokers. Top.com shall not be liable for the payment of any finder's or
consultants.
IN WITNESS WHEREOF THE PARTIES HERETO, CORPORATE PARTIES HAVING BEEN DULY
AUTHORIZED BY THEIR RESPECTIVE BOARDS OF DIRECTORS, HAVE SET THEIR HANDS AND
SEALS ON THE DATE FIRST ABOVE WRITTEN.
TOPLISTING.COM CORPORATION SHOWCASE TECHNOLOGIES, LLC
BY: /s/CAMERON YOST BY: /s/ALAN HILLSBERG
CAMERON YOST ALAN HILLSBERG
Director & Secretary PRESIDENT
<PAGE>
EXHIBIT I
ASSETS & ALLOCATION
CUSTOMER LIST
Name
Address
City, State, zip
Phone
<TABLE>
<CAPTION>
INVENTORY
RAW (MATERIAL)
<S> <C> <C> <C>
Quantity Description Value
FINISHED
Quantity Description Value
TOOLING -PATERNS - DIES
Quantity Description Value
DRAWINGS
Description Value
SPECIFICATIONS
Description Value
PATENTS
Description Value
TRADEMARKS/TRADENAMES/COPYRIGHTS
Description Value
VENDOR LISTS
Name
Address
City, State, zip
Phone
CONTRACTS, AGREEMENTS, PURCHASE ORDERS
Description Value
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from
financial statements for the nine month period ended September 30, 1999 and is
qualified in its entirety by reference to such financial statements.
</LEGEND>
<CIK> 0001086473
<NAME> Banyan Corporation
<MULTIPLIER> 1
<CURRENCY> $
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-2000
<PERIOD-START> JUL-01-1999
<PERIOD-END> SEP-30-1999
<EXCHANGE-RATE> 1
<CASH> 28872
<SECURITIES> 0
<RECEIVABLES> 75078
<ALLOWANCES> 0
<INVENTORY> 36976
<CURRENT-ASSETS> 148187
<PP&E> 27569
<DEPRECIATION> 17175
<TOTAL-ASSETS> 192215
<CURRENT-LIABILITIES> 390611
<BONDS> 0
<COMMON> 3327598
0
334906
<OTHER-SE> 0
<TOTAL-LIABILITY-AND-EQUITY> 192215
<SALES> 52156
<TOTAL-REVENUES> 52156
<CGS> 18191
<TOTAL-COSTS> 171658
<OTHER-EXPENSES> 36948
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 7163
<INCOME-PRETAX> (181804)
<INCOME-TAX> (181804)
<INCOME-CONTINUING> (181804)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (181804)
<EPS-BASIC> (.02)
<EPS-DILUTED> (.02)
</TABLE>
