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Maybe I am an A-hole for not selling at higher levels
But whats a few mill shares @ .0004 worth to lose or whats better the potential huge earnings. I can always collect more pop cans to recoupe my loss!
what other lotto tickets are out there?
ROME WASNT BUILT IN A DAY!
any more sellers?
where did u come up with that?
watching
whats happening to the run?
wow checked in just in time to remove my sell orders. whew
Whats happening with this stock? Is it dead and am I screwed with all my shares.
news on tmjg www.icecoldstocks.net
Why dont you read capital maybe you will learn something
BANY INFO READ>>>>>>
As filed with the Securities and Exchange Commission on December 4, 2006
Registration No. 33-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
BANYAN CORPORATION
(Exact name of registrant as specified in charter)
OREGON 84-1346372
(State or other jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
Suite 500, 1925 Century Park East, Los Angeles, CA 91350
(Address of Principal Executive Offices) (Zip Code)
Consulting Agreement between the Registrant and Hans Gassner
Legal Service Agreement between the Registrant and Noel E. Guardi
Legal Service Agreement between the Registrant and Robert D. Schultz
(Full title of the Plan)
Noel E. Guardi, P.O. Box 381, Pinecliffe, CO 80471
(Name and address of agent for service)
(303) 969-8886
(Telephone number, including area code, of agent for service)
COPIES TO:
Noel E. Guardi, Esq.
P.O. Box 381
Pinecliffe, Colorado 80471
(303) 969-8886
CALCULATION OF REGISTRATION FEE
Proposed Proposed
maximum maximum aggregate
Title of securities Amount to be offering offering Amount of
to be registered registered price per unit (1) price (1) registration fee
Common Stock,
No par value,
Under Consulting
Agreement 10,204,082 shares
$.0049
$50,000
$5.35
Common Stock, 10,000,000 shares $.0049 $49.000 $5.24
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No par value,
Under Legal Services
Agreement
Common Stock,
No par value,
Under Legal Services
Agreement 18,000,000 shares
$.0049 $88,200 $9.44
Total 38,204,082 shares $187,200 $20.03
(1) Calculated based on Rule 457(h) based on the closing bid price of $.0049 on December 1, 2006.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I of Form S-8 will be sent or given to participating employees in accordance with Rule 428(b)(1) promulgated by the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”). Such document(s) are not being filed with the Commission pursuant to the introductory Note to Part 1 of Form S-8, but constitute (along with the documents incorporated by reference to the Registration Statement pursuant to Item 3 of Part II hereof) a prospectus that meets the requirements of Section 10(a) of the Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are incorporated by reference in this registration statement and are not required to be filed with this registration statement:
(a) Registrant’s Annual Report on Form 10-KSB for the fiscal year ended December 31, 2005, filed on or about April 17, 2006 pursuant to Section 15(d) of the Securities Exchange Act of 1934, as amended.
(b) Registrant’s quarterly reports on Form 10-QSB, for the fiscal quarters ended March 31, 2006, June 30, 2006, and September 30, 2006 and registrant’s current report on Form 8-K filed on February 15, 2006, as amended December 4, 2006, pursuant to Section 15(d) of the Securities Exchange Act of 1934, as amended.
All documents filed by the registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 after the date of this registration statement and prior to the filing of a post-effective amendment to this registration statement which indicates that all securities offered hereunder have been sold, or which deregisters all securities then remaining unsold under this registration statement, shall be deemed to be incorporated by reference in this registration statement and to be a part hereof from the date of filing of such documents.
Item 4. Description of Securities .
Not applicable.
Item 5. Interest of Named Experts and Counsel.
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Not applicable.
Item 6. Indemnification of Directors and Officers.
Article VII of the registrant's Articles of Incorporation and Article VI of the registrant's Bylaws provide that the registrant shall indemnify a director or officer to the full extent permitted by the Oregon Business Corporation Act as in effect at the time of the conduct by such person. As presently in effect, the general effect of the Oregon Business Corporation Act permits a corporation to indemnify any director or officer against any judgment in connection with any proceeding, after a determination by the registrant, if the director or officer acted in good faith and if the director or officer believed his conduct was in the best interests of the registrant, except in derivative actions: (1) where the director or officer shall be adjudged liable to the Registrant in the performance of such director's or officer's duty to the registrant, unless, and only to the extent, the court shall determine otherwise; (2) of amounts paid in settling or otherwise disposing of a pending action without court approval; or, (3) of expenses incurred in defending a pending action which is settled or otherwise disposed of without court approval. The registrant may advance expenses incurred by a director or officer in any proceeding if he undertakes to repay the advance if it is determined ultimately that the director or officer is not entitled to be indemnified. The registrant shall indemnify a director or officer against expenses in defense of any proceeding to the extent in which the director or officer was successful on the merits in defense. A director or officer may apply to the court or any court of competent jurisdiction for an order of indemnification. If a corporation indemnifies or advances expenses to a director or officer then the corporation shall give written notice to the shareholders prior to the next annual shareholder's meeting.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
Item 7. Exemption from Registration Claimed .
Not applicable.
Item 8. Exhibits.
Exhibit
Number Exhibit
3.1 Articles of Incorporation, as amended (1)
3.2 Bylaws (1)
5.0 Opinion and Consent of Noel Guardi, Esq.
10.24 Legal Service Agreement dated November 30, 2006 between the Registrant and Noel E. Guardi, Esq.
10.25 Legal Service Agreement dated November 30, 2006 between the Registrant and Robert B. Schultz, Esq.
10.26 Consulting Agreement dated November 22, 2006 between the Registrant and Hans Glassner
23.1 Consent of Schwartz Levitsky Feldman LLP
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(1) Incorporated by reference to the registrant’s Form 10KSB filed April 28, 2005, SEC File Number 000-26065.
(2) Incorporated by reference to Exhibit 10.18 of the registrant’s Form S-8 filed December 16, 2005, SEC File Number 333-130388.
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
1. To file, during the period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof), which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement, and,
(iii) to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that paragraphs (a) (1) (i) and (a) (1) (ii) do not apply if the Registration Statement is on Form S-3, Form S-8 or Form F-3, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement.
2. That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
3. To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
4. The undersigned registrant hereby undertakes to deliver or cause to be delivered with the prospectus, to each person to whom the prospectus is sent or given, the latest annual report to security holders that is incorporated by reference in the prospectus and furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of 1934; and, where interim financial information required to be presented by Article 3 of Regulation S-X are not set forth in the prospectus, to deliver, or cause to be delivered to each person to whom the prospectus is sent or given, the latest quarterly report that is specifically incorporated by reference in the prospectus to provide such interim financial information.
5. The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to section 13(a) or section
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15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee pursuant to the plan’s annual report pursuant to section 15(d) for the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
6. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, whereunto duly authorized, in Calgary, Alberta, Canada, on December 4, 2006.
BANYAN CORP.
By: /s/ Michael Gelmon
Michael Gelmon, Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, the registration statement has been signed by the following persons in the capacities and on the dates indicated:
Dated: December 4, 2006 /s/ Michael Gelmon
Michael Gelmon, Chief Executive Officer and
Director
Dated: December 4, 2006 /s/ Cory Gelmon
Cory Gelmon, President, Chief Financial
Officer, Principal Accounting Officer and
Director
--------------------------------------------------------------------------------
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Exhibit 5.0
Noel E. Guardi, Attorney at Law
99 R OCKY R IDGE R OAD , P.O. B OX 381
P INECLIFFE , C OLORADO 80471
T ELEPHONE : 303-969-8886
F AX :303-969-8887
S ECLAWYER @ I ONSKY . COM
December 4, 2006
Banyan Corp.
Suite 500
1925 Century Park East
Los Angeles, California 90067-2400
To the Board of Directors:
I have been engaged as counsel for Banyan Corp., an Oregon corporation (the “Company”) in connection with a proposed offering under the Securities Act of 1933, as amended (the “Act”) of 10,000,000 shares Common Stock, no par value, to the undersigned pursuant to that certain Legal Services Agreement, dated November 30, 2006 (the “Guardi Services Agreement”), 18,000,000 shares of Common Stock, no par value, to Robert D. Schultz pursuant to that certain Legal Services Agreement, dated November 30, 2006 (the “Schultz Services Agreement”), and 10,204,052 shares Common Stock, no par value, to be issued to Hans Gassner pursuant to that certain Consulting Agreement, dated November 22, 2006, as amended (the “Consulting Agreement”) and a registration statement on Form S-8 (the “Registration Statement”) to be filed with the Securities and Exchange Commission (the “Commission”) in connection therewith. The aggregate of 38,204,052 shares to be registered are hereinafter referred to as the “Shares”.
In connection with rendering the opinion as set forth below, I have reviewed and examined the following:
1. the Articles of Incorporation of the Company, as amended;
2. the Bylaws of the Company;
3. Consent to Action in Lieu of Meeting of the Directors of the Company dated November 30, 2006;
4 the Guardi Services Agreement
5. the Schultz Services Agreement;
6. the Consulting Agreement
7. the Registration Statement and exhibits thereto as filed with the Commission on or about this date; and other such documents and legal authorities as I deemed necessary for purposes of rendering this opinion.
--------------------------------------------------------------------------------
Banyan Corp.
November 30, 2006
Page 2
In my examination, I have assumed the genuineness of all signatures, the legal capacity of all persons, the authenticity of all documents submitted as originals, the conformity with the original documents of all documents submitted to me as photocopies or facsimile copies, and the authenticity of the originals of such copies. I have further assumed that the undersigned, Mr. Schultz and Mr. Gassner will have completed the required consulting services and/or provided consideration required under the terms of the Agreement acceptable to the Board of Directors and that any Shares to be issued pursuant to the subject agreements will have been registered in accordance with the Act prior to the issuance of such Shares or exempt from registration.
Based upon the foregoing and in reliance thereon, it is my opinion that, subject to the limitations set forth herein, the Shares, when issued, will be duly and validly authorized, legally issued, fully paid and non assessable shares of the Company’s Common Stock, no par value. This opinion is expressly limited in scope to the Shares and does not cover subsequent issuances of shares.
I consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement. This opinion is not to be used, circulated, quoted or otherwise referred to, in whole or in part, for any other purpose without my prior express written consent. This opinion is based upon my knowledge of the law and facts as of the date hereof. I assume no duty to communicate with you with respect to any matters that come to my attention hereafter.
Very truly yours,
/s/ Noel E. Guardi
Noel E.Guardi, Esq.
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--------------------------------------------------------------------------------
Noel E. Guardi, Attorney at Law
99 R OCKY R IDGE R OAD , P.O. B OX 381
P INECLIFFE , C OLORADO 80471
T ELEPHONE : 303-969-8886
F AX :303-969-8887
S ECLAWYER @ I ONSKY . COM
November 30, 2006
Mr. Michael Gelmon, Chief Executive Officer
Banyan Corporation
Suite 207, 5005 Elbow Drive S.W.
Calgary, Alberta, Canada T2S 2T6
Re: Legal Service Agreement
Dear Mr. Gelmon:
You have asked me to provide legal consulting services to Banyan Corporation (“you” or the “Company“) in connection with certain litigation matters, particularly Parrish. v. Banyan Corporation , in El Paso County, Colorado District Court. In addition, you would like to make a remittance for a balance due for professional services related to SEC reporting and related matters pursuant to our legal service agreement dated November 30, 2005. To avoid misunderstandings, I have prepared this summary of our agreement for your approval.
You agree to pay hourly fees for legal consulting services rendered at my prevailing rate per hour expended on your behalf. Upon signing of this agreement, a fee of 10,000,000 shares of the Company’s Common Stock, no par value (the “Shares”) shall become due and payable. This fee includes a reasonable retainer for services to be rendered. The Company shall file promptly a Registration Statement on Form S-8 with the United States Securities Exchange Commission to cover the resale of the Shares to the public. Promptly after the effective date of said registration statement, the Shares will be delivered without restrictive legend as designated. The Company will bear the costs of the registration and issuance of the Shares.
From time to time, the Shares and/or the proceeds from the sale of the Shares shall be applied from trust to the balance due for professional fees and disbursements, including the balance due for professional fees and disbursements incurred prior to the date hereof. To the extent the Shares and the proceeds from the Shares exceed the balance due for professional fees and disbursements, such excess shall be held in trust for the benefit of the Company. To the extent the Shares and the proceeds from the Shares do not exceed the balance due for professional fees and disbursements the difference shall remain outstanding.
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Mr. Michael Gelmon
Banyan Corporation
November 30, 2006
Page 2
You also agree to pay for disbursements. Disbursements include, among other things, delivery and airfreight charges, postage, photocopying costs, court costs, computer research time, long distance telephone charges, and other costs and expenses advanced on your behalf. In some instances, costs may be billed directly to you or requested in advance and not advanced by me.
I will render monthly statements reflecting the balance due for professional fees and disbursements, the proceeds from the sale of the Shares, and the balance due, if any. The balance due shall be payable upon receipt of the statement. Unpaid balances hereunder shall bear interest at the rate of 12% per annum simple interest.
I agree to use my best efforts to perform all services required in connection with my engagement in a professional, competent and timely manner. You acknowledge that such performance depends, in part, upon the prompt receipt of documentation, information, authorizations and instructions from you, your prompt review and execution of documents, and your cooperation in general.
You may terminate my engagement at any time for any reason. I may terminate the engagement by notifying you in writing if you fail to pay as agreed or do not cooperate with me or for any other just reason. In the event of termination of this agreement, I will promptly remit a statement indicating the then current balance due or remit the credit balance (Shares or cash), if any, in your account.
I appreciate your confidence and look forward to working with you. If the foregoing correctly sets forth our understanding, please sign and return the enclosed copy of this letter.
Very truly yours,
/s/ Noel E. Guardi
Noel E. Guardi, Esq.
Agreed to and accepted this 30th day of November 2006.
BANYAN CORPORATION
/s/ Michael Gelmon
Michael Gelmon, Chief Executive Officer
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Robert B. Schultz, Attorney at Law
9710 W. 82nd Ave
Arvada, CO 80005
Cel and tel 303 456 5565
Fax 303 456 5575
November 30, 2006
Mr. Michael Gelmon, Chief Executive Officer
Banyan Corporation
Suite 207, 5005 Elbow Drive S.W.
Calgary, Alberta, Canada T2S 2T6
Re: Legal Service Agreement
Dear Mr. Gelmon:
You have asked me to provide legal consulting services to Banyan Corporation (“your” or the “Company“) in connection with certain litigation matters, in particular Yost et al. v. Banyan Corporation , in Denver, Colorado District Court. To avoid misunderstandings, I have prepared this summary of our agreement for your approval.
You agree to pay hourly fees for legal consulting services rendered at my prevailing rate per hour expended on your behalf. Upon signing of this agreement, a fee of 18,000,000 shares of the your Common Stock, no par value (the “Shares”), having an anticipated resale price of $.003 per share, shall become due and payable. This fee includes a reasonable retainer for services to be rendered. The Company shall file promptly a Registration Statement on Form S-8 with the United States Securities Exchange Commission to cover the resale of the Shares to the public. Promptly after the effective date of said registration statement, the Shares will be delivered without restrictive legend as designated. The Company will bear the costs of the registration and issuance of the Shares.
From time to time, the Shares and/or the proceeds from the sale of the Shares shall be applied from trust to the balance due for professional fees and disbursements, including the balance due for professional fees and disbursements incurred prior to the date hereof. To the extent the Shares and the proceeds from the Shares exceed the balance due for professional fees and disbursements, such excess shall be held in trust for the benefit of the Company. To the extent the Shares and the proceeds from the Shares do not exceed the balance due for professional fees and disbursements the difference shall remain outstanding.
You also agree to pay for disbursements. Disbursements include, among other things, delivery and airfreight charges, postage, photocopying costs, court costs, computer research time, long distance telephone charges, and other costs and expenses
--------------------------------------------------------------------------------
Mr. Michael Gelmon
Banyan Corporation
November 30, 2006
Page 2
advanced on your behalf. In some instances, costs may be billed directly to you or requested in advance and not advanced by me.
I will render monthly statements reflecting the balance due for professional fees and disbursements, the proceeds from the sale of the Shares, and the balance due, if any. The balance due shall be payable upon receipt of the statement. Unpaid balances hereunder shall bear interest at the rate of 12% per annum simple interest.
I agree to use my best efforts to perform all services required in connection with my engagement in a professional, competent and timely manner. You acknowledge that such performance depends, in part, upon the prompt receipt of documentation, information, authorizations and instructions from you, your prompt review and execution of documents, and your cooperation in general.
You may terminate my engagement at any time for any reason. I may terminate the engagement by notifying you in writing if you fail to pay as agreed or do not cooperate with me or for any other just reason. In the event of termination of this agreement, I will promptly remit a statement indicating the then current balance due or remit the credit balance (Shares or cash), if any, in your account.
The terms of this agreement are effective from the date I first rendered services to Banyan.
I appreciate your confidence and look forward to working with you. If the foregoing correctly sets forth our understanding, please sign and return the enclosed copy of this letter.
Very truly yours,
Robert B. Schultz, Esq.
Agreed to and accepted this 30th day of November 2006.
BANYAN CORPORATION
Michael Gelmon, Chief Executive Officer
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HANS GASSNER
%WALLACE &PARTNERS
1 PORTLAND STREET
LONDON ENGLAND, UNITED KINGDOM
CONSULTING AGREEMENT
CONSULTING AGREEMENT (the “Agreement”) dated as of November 22, 2006 between Hans Gassner (the “Consultant”) and Banyan Corporation (the “Client”).
W I T N E S S E T H:
WHEREAS, Client desires to expand its presence in the European Union (the “EU”, to establish its corporate image in the EU and to increase awareness among the business community and public in the EU, including potential purchasers of diagnostic imaging services and the VT 3000 diagnostic imaging machine, potential area developers, franchisees and patients for Chiropractic USA ™ clinics, and potential customers for Client’s other products or services.
WHEREAS, Client desires to retain the services of Consultant in the EU with the objectives of (1) promoting, positioning and marketing Client‘s corporate image, trademarks, brand names, products and services, (2) identifying potential business development partners, (3) identifying potential acquisition targets and structuring potential business acquisitions (other than any reverse merger), (4) developing new business strategies, and (5) developing marketing and advertising materials, agreements, and other documents in connection with the foregoing (the “Objectives”)
WHEREAS, Consultant has the expertise necessary to accomplish the Objectives.
NOW, THEREFORE, in consideration of the mutual covenants and agreements, and upon the terms and conditions hereinafter set forth, the parties agree as follows:
Section 1. Retention of Consultant . Client engages Consultant to provide consulting services to Client as may be necessary, proper or advisable to achieve the Objectives, and Consultant accepts such engagement, subject to the terms and conditions of this Agreement.
Section 2. Services . Consultant agrees to work diligently and to the best of Consultant’s knowledge, skill and ability to accomplish the Objectives. Consultant may out-source or contract for the performance of certain duties to persons that are competent and qualified to perform such duties and who shall be bound in writing to all of the provisions of this Agreement to the same extent as Consultant. Consultant shall keep Client fully informed of the foregoing activities; and, in general, cooperate with Client in connection with the foregoing activities. Consultant shall not provide any services in connection with the offer or sale of securities in a capital-raising transaction, and Consultant’s services hereunder shall not directly or indirectly promote or maintain a market for Client’s securities. In performing its duties, Consultant agrees to adhere to and to act in accordance with all applicable laws, rules and regulations, the policies and procedures of Client in effect from time to time, all written and oral
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instructions received from an authorized officer or employee of Client, and high ethical standards.
Section 3. Compensation . Promptly upon execution of this agreement, Client shall pay Consultant a one-time nonrefundable fee of $50,000 USD (the “Fee”) payable in the form of shares of its Common Stock, no par value (the “Shares”) and file a Registration Statement on Form S-8 with the United States Securities and Exchange Commission (the “SEC”) to cover the resale of the Shares to the public. The number of Shares shall be determined by dividing the amount of the Fee by the closing bid price for one Share on the last trading day preceding the date the registration statement is filed. Promptly after the effective date of said registration statement, certificates evidencing the Shares shall be issued in the name of and delivered to Consultant without restrictive legend in such denominations, as Consultant shall designate. Client will bear the costs of the registration statement and issuance of the Shares.
Section 4. Trade Secrets . Other than information known to the general public, all information relating to Client, whether or not set forth in tangible form, shall be treated as “Trade Secrets and Confidential Information.” Consultant agrees not to use or to permit any other person to use any of the Trade Secrets and Confidential Information in any manner except for the purposes of this Agreement. Consultant agrees to hold the Trade Secrets and Confidential Information in strict confidence, and not to disclose to any other person the Trade Secrets and Confidential Information, except to only those of Consultant’s contractors, agents and employees in furtherance of the Objectives who need to know such information, who shall be bound to all of the provisions of this agreement to the same extent as Consultant. Consultant agrees to take all other reasonable precautions to protect the Trade Secrets and Confidential Information from disclosure to any unauthorized third party and from any other use not authorized hereby. Upon termination of this Agreement, Consultant agrees to return to Client all records of the Trade Secrets and Confidential Information, including all copies thereof (other than Consultant’s accounting records).
Section 5. Expenses . If Consultant incurs any additional expenses to facilitate the transaction, Consultant shall obtain the consent of Client for any single item of expense. Client’s consent hereunder shall not be unreasonably withheld or delayed.
Section 6. Full Cooperation . In connection with the activities of Consultant on behalf of Client, Client will cooperate with Consultant and will furnish Consultant and Consultant’s representatives with all information and data concerning Client as may be required in connection with Consultant’s services hereunder. Consultant acknowledges the full assistance and cooperation of Med Gen and/or its affiliates acting as consultants to Client.
Section 7. Representations . Client warrants and represents to Consultant that this Agreement does not conflict with any other agreement binding Client. Client warrants and represents to Consultant, that Client is fully authorized to offer and pay Consultant’s compensation referred to in Section 3 above.
Section 8. Indemnification . Client agrees to indemnify and hold harmless Consultant, and any company controlling Consultant or controlled by Consultant, and their respective officers, agents and employees to the full extent lawful, from and against any losses,
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claims, damages or liabilities (including reasonable counsel fees) related to or arising out of this Agreement.
Section 9. Waiver of Breach . The failure by Client to exercise any rights or powers hereunder shall not be construed as a waiver thereof. The waiver by Client of a breach of any provision of this Agreement by Consultant shall not operate nor be construed as a waiver of any subsequent breach by Consultant.
Section 10. Notices . All notices, requests, demands and other communications, which are required or permitted under this Agreement, shall be in writing and shall be deemed sufficiently given upon receipt if personally delivered, faxed, sent by recognized national overnight courier or mailed by certified mail, return receipt requested, to the address of the parties set forth above. Such notices shall be deemed to be given (i) when delivered personally, (ii) one day after being sent by overnight courier carrier of (iii) three days after being mailed, respectively.
Section 11. Term; Resignation and Termination . The term of this Agreement shall commence on the date hereof and continue for sixty (60) days from the effective date of Client’s Registration Statement on Form S-8 to be filed in connection herewith. The term shall be automatically extended for an additional thirty (30) days unless Client shall give written notice to the contrary. Client may terminate Consultant for cause by giving written notice in the event Consultant materially breaches or defaults in any of its duties, covenants or agreements as set forth herein, including a breach or default resulting from the death or disability of Consultant. Either party may terminate this Agreement by giving written notice upon the liquidation, bankruptcy or insolvency of the other party, an assignment for the benefit of creditors for the other party or composition of substantially all of its debts, or the appointment of a trustee or receiver for the business, property or affairs of the other party.
Section 12. Governing Law . This Agreement shall be governed by, and construed in accordance with, the internal laws of the United Kingdom.
Section 13. Entire Agreement: Amendments . This Agreement contains the entire agreement and understanding between the parties and supersedes and preempts any prior understandings or agreements, whether written or oral. The provisions of this Agreement may be amended or waived only with the prior written consent of Client and Consultant.
Section 14. Successors and Assigns . This Agreement shall be binding upon, inure to the benefit of, and shall be enforceable by Consultant and Client and their respective successors and assigns; provided, however, that the rights and obligations of Consultant under this Agreement shall not be assignable.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written.
“Client”
Banyan Corporation
By:
Michael Gelmon. Chairman/CEO
“Consultant”
By:
Hans Gassner
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Schwartz Levitsky Feldman llp
CHARTERED ACCOUNTANTS
TORONTO, MONTREAL, OTTAWA
S L F
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this registration statement of Banyan Corporation on Form S-8 of our report dated April 10, 2006, appearing in the Annual report on Form 10-KSB of Banyan Corporation for the year ended December 31, 2005.
Toronto, Ontario, Canada “SCHWARTZ LEVITSKY FELDMAN LLP”
December 4, 2006 Chartered Accountants
1167 Caledonia Road
Toronto, Ontario M6A 2X1
Tel: 416 785 5353
Fax: 416 785 5663
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Listen to Capital = Capital Loss (QBIT)
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