SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
January 10, 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.
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
<TABLE>
<CAPTION>
SHOWCASE TECHNOLOGIES AND TOPLISTING.COM
Balance Sheet
October 31, 1999
Unaudited
ASSETS
Current assets
<S> <C>
Cash $2,324
Accounts receivable 11,024
Inventory 15,366
28,714
Equipment
Equipment and tooling 1,000
Less: Accumulated depreciation 689
311
Other assets
Patents 3,080
$32,105
LIABILITIES AND PARTNERS' EQUITY
Current liabilities
Notes payable-partner $30,457
Partners' equity 1,648
$32,105
SHOWCASE TECHNOLOGIES AND TOPLISTING.COM
Profit and Loss Statement
October 31, 1999
Unaudited
Net sales $228,330
Cost of goods sold 129,302
Gross profit 99,028
Selling, general and administrative expe 49,963
Net profit $49,065
</TABLE>
B. 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
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: January 10, 2000
BANYAN CORPORATION
BY:__/s/Cameron Yost___
Cameron Yost
President
<PAGE>
Exhibit 10.1
EMPLOYMENT CONTRACT
AGREEMENT made this __ day of October, 1999, between
TopListing.com Corporation (a Colorado Corporation) and it's parent, Banyan
Corporation and it's subsidiary, DoubleCase Corporation, located in Colorado
Springs, Colorado, (hereinafter referred to as "EMPLOYER"), and Alan Hillsberg
(hereinafter referred to as "EMPLOYEE").
WHEREAS, Employer is a corporation developing products and
services for manufacture, sale and e-commerce, and; WHEREAS,
Employee and Employer desire an Employment Contract between
Employee and Employer.
IT IS MUTUALLY covenanted and agreed as follows:
1. EMPLOYMENT: The Employer employees the Employee and the Employee accepts
employment upon the terms and conditions of this Agreement.
2. TERM: The Term shall begin November 1, 1999, and continue for two years or
terminate as provided for below.
3. DUTIES: The Employee shall:
A. Perform to the best of his ability all duties reasonably assigned to
him by the Employer, and carry out all Employer's policies and
directives;
B. Devote his full time and attention to the performance of such duties,
to the exclusion of any other activities;
C. Not become involved in any personal investment or business matters
which adversely affect the Employer.
4. EXTENT OF SERVICES: The Employee shall devote his entire time and attention
to the Employer's business as the Employer may define. During the term of
this Agreement, the Employee shall not engage in any other business
activity, unless approved by Employer, regardless of whether it is pursued
for gain or profit. The Employee, however, may invest his assets in other
companies so long as they do not require the Employee's services in the
operation of their affairs.
<PAGE>
5. DISCLOSURE OF INFORMATION; The employee acknowledges that as a result of
the employment, he will have access to certain information of the Employer
and of DoubleCase Corporation (hereafter "DC") that is confidential and
constitutes valuable, special, and unique property of the Employer and DC.
That property includes, but is not limited to confidential business plans,
pricing policies, marketing strategies, records, technology, propriety
information, customer lists, product design, the use of or disclose all of
which matter or thing might reasonably be construed to be contrary to the
best interest of Employer and DC. The Employee shall not, during and after
the term of his employment, for a period of three years, disclose all or
any part of the above information to any person, firm, corporation,
association, or other entity for any reason or purpose. In the event of the
Employee's breach or threatened breach of this paragraph, the Employer
shall be entitled to a preliminary restraining order and an injunction
restraining and enjoining the Employee from disclosing all or any part of
the Employer's customer list and from rendering any services to any person,
firm, corporation, association, or other entity to whom all or any part of
such list has been, or is threatened to be, disclosed. In addition to or in
lieu of the above, the Employer may pursue all other remedies available to
the Employer for such breach of threatened breach, including the recover of
damages from the employee.
6. COMPENSATION AND BENEFITS: Employee shall receive compensation from the
Employer for his services as follows:
A. Employee shall be paid an annual salary of $116,000.00 which shall be
paid in twenty-four (24) equal installments of $4,833.33 each, with
Employer to withhold the appropriate state, federal and local taxes.
B. a) Employee shall be paid 10% of the Company's net pre-tax profit as
computed under GAAP. Such payment shall be made 45 days after the
close of each calendar quarter for the term of this Agreement.
b) Employee shall be paid 20% of DC's net pre-tax profit as computed
under GAAP. Such payment shall be made 45 days after the close of
each calendar quarter for the term of this Agreement.
Employee's annual salary shall be proportionately distributed
between Employer and DC based upon the time spent with each
company. Such distribution is to fairly impact the true net
pre-tax profit of the Company and DC.
C. Employee shall be granted Options to purchase 235,000 shares of common
stock of Banyan Corporation (Employer parent corporation) at $0.1187
per share (95% of market value October 26, 1999). Said Options shall
vest as follows:
a) 135,000 share Options vest November 1, 2000 - expires three years
after vesting.
b) 100,000 share Options vest November 1, 2001 - expires three years
after vesting.
In the event this Agreement is terminated anytime prior to
November 1, 2000, the Employee shall be entitled to the 135,000
Options vested November 1, 2000, and 50% of the Options vested of
November 1, 2001. Additionally, in the event this Agreement is
terminated anytime after to November 1, 2000, the Employee shall
be entitled to the 100,000 Options vested November 1, 2001.
Vested share Options must bed exercised within one year of
termination or expire. Said Options and underlying shares will
not be registered and will be issued under Rule 144. Banyan will
agree to including said shares in the event Banyan files a
registration statement.
D) Employer shall provide medical insurance for Employee and his family.
E) At such time Employer creates a pension plan, Employee's years of
service prior to the creation of the pension plan shall be credited to
Employee for vesting purposes.
7. FUTURE SALARY INCREASES:
A. A salary increase may be determined by the Board of Directors based on
performance of the company at any time.
B. An annual bonus may be determined by the Board of Directors.
C. In lieu of, or in addition to, a salary increase and bonus as set
forth in subparagraphs A and B above, the Employer and Employee may
substitute, or add, a stock option plan or such other benefit as may
be mutually agreeable.
8. VACATIONS: The Employee shall be entitled to a vacation; Year 1, of two (2)
weeks; Year 2, of three (3) weeks, during which time the compensation shall
be paid in full. The date for the vacation shall be set with approval of
the Employer.
9. DISABILITY: If the Employee is unable to perform his services by reason of
illness or injury for a period of more than 90 days, the compensation
thereafter payable to him during the continued period of such illness or
incapacity shall be reduced by 50%. The Employee's full compensation shall
be reinstated upon his return to full employment and discharge of his full
duties. Notwithstanding anything to the contrary, the Employer may
terminate this Agreement at any time after the Employee is absent from his
employment, for what ever cause, for a continuous period of more than 16
weeks, and all obligations of the Employer shall thereupon terminate.
10. TERMINATION: If the Employee's employment hereunder is terminated without
good cause the Employer shall be immediately required to buy out the
Employee's rights hereunder for an amount equal to the amount of base
salary that the Employee would have earned from the time of termination to
the expiration of the term of this Agreement. Good cause shall exist if the
Employee is engaged in fraud, misappropriation, embezzlement, repeated
substance abuse, or other material criminal conduct involving the Company.
In the event of termination for good cause, no further consideration, buy
out or severance shall be paid.
11. NON-COMPETE: In the event this Agreement is terminated prior to its term
for any reason, Employee will not participate in any manner with the
production, marketing, design or consulting in the business of carrying
cases and other computer accessories for a period of three years from the
date of termination. Additionally, in the event this Agreement is
terminated prior to its term for any reason, Employee will not participate
in any manner with the optimization or design of internet web pages/site
for a period of three years from the date of termination
12. CONSTRUCTION: Nothing contained herein shall obligate the Employer to make
any payment for any period after the death of the Employee or after the
termination of his employment except as set out herein.
13. MODIFICATION: This Agreement may be modified by the parties only by written
supplemental agreement.
14. BINDING EFFECT: This Agreement shall be binding upon the parties, their
heirs, assigns, receivers, trustees in bankruptcy, or any other
representative authorized by this Contract to be a party to this Agreement.
15. APPLICABLE LAW: This Employment Agreement shall be construed under the laws
of the State of Colorado.
16. ENTIRE AGREEMENT: This Agreement supersedes all agreements previously made
between the parties relating to the subject matter of this Agreement. There
are no other understandings or agreements, either oral or written.
17. NON WAIVER: Not delay or failure by any party in exercising any right under
this Agreement, no partial or simple exercise of such right shall
constitute a waiver of any other right.
18. HEADINGS: Headings in this Agreement are for convenience only and shall not
be used to interpret or construe its provisions.
18. ASSIGNMENT: This Agreement may not be assigned by either party, except that
should Employer merge or be purchased, the Employment Agreement is
assignable to the newly created company.
19. TIME: Time is of the essence in the performance of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement
the day and year first above written.
"EMPLOYER" "EMPLOYEE"
TopListing.com Corporation ALAN HILLSBERG
By: /s/ Cameron B. Yost By: /s/Alan Hillsberg
Cameron B. Yost Alan Hillsberg
Director & Secretary
Exhibit 10.2
Page 8 of 5
ASSET PURCHASE AGREEMENT
This AGREEMENT dated this ___ day of October, 1999, by and between
TopListing (a sole proprietorship owned by Alan Hillsberg only), having its
principal place of business at 33 East Merrick Rd., 2nd Floor, Suite 6, Valley
Stream, NY, 11580 (hereafter "TopListing"), 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, TOPLISTING is desirous of selling all its assets to Top.com.
WHEREAS, Top.com is desirous of acquiring all, or substantially all, of the
assets of the TOPLISTING including DesignerStudio.net, an operating subsidiary
of TOPLISTING;
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,
TOPLISTING 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 of TOPLISTING in and
to the business, assets, goodwill, and rights of TOPLISTING in all or
substantially all of its assets, including 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
TOPLISTING under express or implied warranty (as from the suppliers of
TOPLISTING 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 being exchanged with Top.com and all of TOPLISTING's rights, title
and interest in and to each, contract, agreement, purchase order or commitment
to which TOPLISTING is a party or in which TOPLISTING 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. TOPLISTING 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) TOPLISTING will transfer and deliver
to Top.com all other property that TOPLISTING may receive after the Closing Date
in respect of or arising out of the business conducted by TOPLISTING.
1.3 TOPLISTING covenants that between the date hereof and the Closing Date
and, if reasonably requested by Top.com, after the Closing Date, TOPLISTING
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 TOPLISTING 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
TOPLISTING.
3. Closing. The Closing hereunder (the "Closing") shall take place at ___ on
the ___ day of October, 1999 at _________________________ or at such other time
and place as may be agreed by Top.com and TOPLISTING (the "Closing Date").
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 TOPLISTING or its assignees.
5. Representations and Warranties of TOPLISTING. TOPLISTING hereby
represents and warrants as follows:
5.1 TOPLISTING is a sole proprietorship. On or before closing TOPLISTING
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.
TOPLISTING 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 TOPLISTING in the manner heretofore conducted.
5.2 TOPLISTING has one subsidiary, "DesignerStudio.net"
5.3 TOPLISTING is fully empowered to enter into this transaction.
5.4 TOPLISTING has full power and authority, corporate and otherwise, to
enter into this Agreement on behalf of the TOPLISTING and to cause the
TOPLISTING to assume and perform its, his or her obligations hereunder. The
execution and delivery of this Agreement and the performance by TOPLISTING of
its obligations hereunder have been duly authorized by the owner of TOPLISTING,
Alan Hillsberg, and no further action or approval, corporate or otherwise, is
required in order to constitute this Agreement as a binding and enforceable
obligation of TOPLISTING. The execution and delivery of this Agreement and the
performance by TOPLISTING of its obligations hereunder do not and will not
violate any provision of the Certificate of Incorporation or By-Laws of
TOPLISTING 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 TOPLISTING is a party or
which is or purports to be binding upon TOPLISTING 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 TOPLISTING in order to constitute this agreement as a binding
and enforceable obligation of TOPLISTING in accordance with its terms.
5.5 TOPLISTING 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.
5.6 TOPLISTING 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
consultant's.
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 TOPLISTING
BY: /S/CAMERON YOST BY: /S/ ALAN HILLSBERG
CAMERON YOST ALAN HILLSBERG
Director & Secretary Owner
<PAGE>
PROMISSORY NOTE
$80,000.00 November 1, 1999
Colorado Springs, CO
FOR VALUE RECEIVED, the undersigned , DoubleCase Corporation, a
Kansas Corporation, hereby promised to pay to Alan Hillsberg., or holder, the
sum of eighty thousand dollars ($80,000) together with interest thereon at the
rate of six percent (6%) per annum, said interest to commence on the 1st. day of
November, 1999.
The principal sum, together with accumulated interest, shall be due and
payable on or before November 1, 2000
Payments shall be made pursuant to the Asset Purchase Agreement of
October 26, 1999, by and between DoubleCase Corporation and Showcase
Technologies which are: 15% of the gross revenue of DoubleCase Corporation paid
on the 15th of each month on sales of the month prior.
It is further specifically understood and agreed that the maker hereof
shall have the right, without penalty, to prepay prior to its becoming due any
installment due hereunder, or may prepay without penalty, all or any part of the
unpaid balance due hereunder.
All signers, endorsers and parties to this instrument waive
presentment, notice of dishonor, protest and expressly agree that this note, or
any payment thereunder, may be extended from time to time without in any way
affecting the liability of the makers and endorsers hereof; and this note is to
be construed according to the laws of Colorado.
DoubleCase Corporation
BY:________________________
Cameron Yost President
<PAGE>
BULK BILL OF SALE
Pursuant to the Asset Purchase Agreement dated the ___ day of October, 1999,
(hereafter "APA") by and between TopListing, a sole proprietorship owned by Alan
Hillsberg, and TopListing.com Corporation, a Colorado Corporation and a wholly
owned subsidiary of Banyan Corporation, this Bulk Bill of Sale hereby confirms
and perfects the transfer of assets provided by the "APA".
Upon cleared funds from Banyan Corporation check number ______ written on
October 26, 1999, in the amount of $97,500, receipt hereby acknowledged,
combined with a previous deposit of $2,500 which occurred August 17, 1999, (for
a grand total of $100,000 pursuant to paragraph 4.1(a) of the "APA") and with
the receipt of 300,000 shares of Banyan Corporation common stock (pursuant to
paragraph 4.1(b) of the "APA") all of the Assets as contemplated in Paragraph 1
and elsewhere in the "APA" are hereby transferred, assigned and conveyed from
TopListing to TopListing.com.
TopListing.com Corporation TopListing
BY:/S/ CAMERON YOST BY: /s/ALAN HILLSBERG
CAMERON YOST ALAN HILLSBERG
Director & Secretary Owner
Date: Date:
Exhibit 10.3
ASSET PURCHASE AGREEMENT
This AGREEMENT dated this ___ day of October, 1999, by and between Showcase
Technologies, LLC (owned by Alan Hillsberg only), having its principal place of
business at 33 East Merrick Rd., 2nd Floor, Suite 6, Valley Stream, NY 11580
(hereafter "Show"), and DoubleCase Corporation, a Kansas Corporation having its
principal place of business at 4740 Forge Rd., Suite 112, Colorado Springs,
Colorado 80907 (hereafter "DoubleCase").
WHEREAS, SHOW is desirous of selling all its assets to DoubleCase.
WHEREAS, DoubleCase is desirous of acquiring all, or substantially all, of
the assets of the SHOW;
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,
SHOW shall exchange, transfer, convey, assign and deliver to DoubleCase, and
DoubleCase shall receive, acquire and accept on the Closing Date (as such term
is hereinafter defined) all of the rights, title and interest of SHOW in and to
the business, assets, goodwill, and rights of SHOW in all or substantially all
of its assets, including 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 SHOW under express or
implied warranty (as from the suppliers of SHOW with respect to the Assets being
transferred to DoubleCase) , all books and records, correspondence and files of
or relating to the business or Assets of SHOW being exchanged with DoubleCase
and all of SHOW's rights, title and interest in and to each, contract,
agreement, purchase order or commitment to which SHOW is a party or in which
SHOW 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 DoubleCase 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 DoubleCase on the Closing
Date in form sufficient to transfer the Assets as contemplated by this Agreement
and as shall be reasonably requested by DoubleCase. SHOW 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 DoubleCase to transfer
and deliver to DoubleCase or to aid and assist DoubleCase in collecting and
reducing to possession, any and all of the Assets; (ii) DoubleCase, after the
Closing Date, shall have the right and authority to collect, for the account of
DoubleCase, all checks, notes and other evidences of indebtedness or obligations
to make payment of money and other items which shall be transferred to
DoubleCase as provided and to endorse with the name of DoubleCase any such
checks, notes or other instruments received after the Closing Date; and (iii)
SHOW will transfer and deliver to DoubleCase all other property that SHOW may
receive after the Closing Date in respect of or arising out of the business
conducted by SHOW.
1.3 SHOW covenants that between the date hereof and the Closing Date and,
if reasonably requested by DoubleCase, after the Closing Date, SHOW 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 SHOW to DoubleCase hereunder as shall be reasonable requested
by DoubleCase. If any such required consent is not obtained, this Agreement
shall constitute an agreement to assign the instrument relating thereto to
DoubleCase.
2. Assumption of Liabilities. DoubleCase shall assume no liabilities of
SHOW.
3. Closing. The Closing hereunder (the "Closing") shall take place on the
___ day of October, 1999 at _________________________ or at such other time and
place as may be agreed by DoubleCase and SHOW (the "Closing Date").
4. Exchange Terms; Allocation.
4.1 In consideration of the exchange and transfer of the Assets herein
contemplated, on the Closing Date, DoubleCase shall deliver at Closing:
a) $80,000 promissory note, plus the total value of SHOW liabilities
not to exceed $35,000; Terms of the $80,000 Promissory note as follows: -
6% annual interest - Payment Schedule - 15% of gross revenue (less
discounts and returns) Pd the 15th of month following - Unpaid principal
and interest shall become due and payable on the one anniversy
b) 266,667 shares of Banyan Corporation common stock valued at
$200,000 per the closing market price three days before closing, In no
event shall the Banyan common stock be valued less than $0.75 per share.
Said shares shall be issued exempt from registration under Rule 144.
5. Representations and Warranties of SHOW. SHOW hereby represents and
warrants as follows:
5.1 SHOW is a corporation duly organized, validly existing and in good
standing under the laws of New York and has full power and authority to own its
properties and carry on its business as and in the places where such properties
are now owned or such business is now being conducted. On or before closing SHOW
shall establish to the satisfaction of DoubleCase that it has title to the
Assets and authority to convey the same in accordance with the terms of this
Agreement. SHOW has taken no action and has not failed to take any action, which
action or failure would preclude or prevent DoubleCase from conducting the
business of SHOW in the manner heretofore conducted.
5.2 SHOW has no subsidiaries,
5.3 SHOW has obtained written approval of over two-thirds of its
stockholders and is fully empowered by them to enter into this transaction.
5.4 SHOW has full power and authority, corporate and otherwise, to enter
into this Agreement on behalf of the SHOW and to cause the SHOW to assume and
perform its, his or her obligations hereunder. The execution and delivery of
this Agreement and the performance by SHOW of its obligations hereunder have
been duly authorized by the Board of Directors of SHOW and no further action or
approval, corporate or otherwise, is required in order to constitute this
Agreement as a binding and enforceable obligation of SHOW. The execution and
delivery of this Agreement and the performance by SHOW of its obligations
hereunder do not and will not violate any provision of the Certificate of
Incorporation or By-Laws of SHOW 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 SHOW is a party or
which is or purports to be binding upon SHOW 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 SHOW in order to constitute this agreement as a binding and
enforceable obligation of SHOW in accordance with its terms.
5.5 SHOW 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.
5.6 SHOW has not leased or effected any transfer of any of the Assets.
6. Representations and Warranties of DoubleCase. DoubleCase hereby
represents and warrants that on the closing date all of the following will be
true:
6.1 DoubleCase is a corporation duly organized, validly existing and in
good standing under the laws of the state of Kansas
6.2 DoubleCase is a wholly owned subsidiary of Banyan Corporation.
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 inure 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. DoubleCase shall not be liable for the payment of any finder's
or consultant's.
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.
DOUBLECASE CORPORATION SHOWCASE TECHNOLOGIES, LLC
BY:/s/CAMERON YOST BY: /s/ALAN HILLSBERG
CAMERON YOST ALAN HILLSBERG
PRESIDENT PRESIDENT
<PAGE>
BULK BILL OF SALE
Pursuant to the Asset Purchase Agreement dated the ___ day of October, 1999,
(hereafter "APA") by and between Showcase Technologies, LLC, owned by Alan
Hillsberg, and DoubleCase Corporation, a Kansas Corporation and a wholly owned
subsidiary of Banyan Corporation, this Bulk Bill of Sale hereby confirms and
perfects the transfer of assets provided by the "APA".
Upon receipt of 266,667 shares of Banyan Corporation common stock (pursuant to
paragraph 4.1(b) of the "APA") all of the Assets as contemplated in Paragraph 1
and elsewhere in the "APA" are hereby transferred, assigned and conveyed from
Showcase Technologies, LLC to DoubleCase Corporation.
Receipt of a Promissory Note in the amount of $80,000, pursuant to paragraph 4.1
(a) of the "APA" is hereby acknowledged.
DoubleCase Corporation Showcase Technologies, LLC
BY: /S/ CAMERON YOST BY:/S/ ALAN HILLSBERG
CAMERON YOST ALAN HILLSBERG
President Owner and President
Date: Date:
<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>
