Exhibit 10.0
MARKETING CONSULTANT AGREEMENT
BY AND BETWEEN
BANYAN CORP.
AND
XXXXX X. XXXXXXXXXX
Agreement made as of the day and year set forth in the date line on the
last page hereof, by and between Banyan Corp., an Oregon corporation having its
principal executive offices at Suite 500, 0000 Xxxxxxx Xxxx Xxxx, Xxx Xxxxxxx,
XX 00000 (hereinafter referred to as "Banyan Corp."), and Xxxxx X. Xxxxxxxxxx, a
natural person having his business office at 00000 Xxxx Xx. #000, Xxxxxx, Xxxxx
00000 (the "Marketing Consultant").
W I T N E S S E T H:
W H E R E A S, Banyan is a publicly-traded corporation with Class A
Common Stock, no par value (the "Class A Common Stock") traded on the NASDAQ
Over-the-Counter Bulletin Board, a stock trading market, under the symbol BANY;
W H E R E A S, Banyan, through its subsidiary, Chiropractic USA, Inc.
("Chiropractic USA"), is engaged in the business of franchising, acquiring and
operating a chain of chiropractic clinics throughout North America;
W H E R E A S, Chiropractic USA is a leader in the aforesaid business;
W H E R E A S, Banyan desires to expand through the sale of additional
franchises and the acquisition of chiropractic clinics, and believes that the
involvement and participation of the Marketing Consultant in a direct marketing
campaign will significantly aid in such expansion program; and,
W H E R E A S, Marketing Consultant has the requisite knowledge, skill
and ability in the areas of national marketing, business relations,
business-to-business direct marketing, and information technology to make
Banyan's expansion program a success and to meet the marketing objectives of
this agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, and other good and valuable consideration, the adequacy and
receipt of which is hereby acknowledged, the parties hereto agree as follows:
1. Engagement. Banyan hereby engages Marketing Consultant and Marketing
Consultant hereby accepts such engagement upon the terms and conditions hereof.
2. Direct Marketing Agent. Marketing Consultant will function as the
direct marketing agent of Chiropractic USA throughout the United States.
Marketing Consultant may not assign, delegate, or retain others to perform its
duties hereunder; provided, however, that Marketing Consultant, without reducing
its responsibility to Banyan, 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 paragraphs
5 and 8 of this agreement to the same extent as Marketing Consultant.
3. Licensed Marketing Consultant's Duties. Marketing Consultant agrees
to diligently and conscientiously devote such time, attention and best efforts
as may be necessary, proper and advisable to effectuate the purposes of this
agreement and to the discharge of the duties attendant to the expansion program
and direct marketing campaign. Marketing Consultant's duties include: acquiring,
at Banyan's expense, a list or lists of licensed chiropractors and graduates of
chiropractic studies, and other appropriate lists of leads for potential
franchisees and affiliates for Chiropractic USA; designing and developing, with
the advice and consent of Banyan, the necessary and proper materials for a
successful direct marketing campaign, including, but not limited to, brochures,
sales procedures and scripts; contacting, prospecting, and soliciting via direct
mail, facsimile, e-mail or telephone a minimum of one thousand five hundred
(1,500) new leads per week from the aforementioned lists and other appropriate
sources; furnishing marketing materials and other relevant information to
prospective franchisees and affiliates; following up as necessary on all
indications of interest received in response to the direct marketing campaign;
assisting Banyan in its due diligence on potential franchisees and affiliates;
keeping Banyan fully informed of the foregoing activities; and, in general,
cooperating with Banyan in connection with the foregoing activities. Marketing
Consultant will pay all costs, disbursements and out of pocket expenses for the
direct marketing campaign contemplated herein except as otherwise provided in
this Agreement. In performing its duties, Marketing Consultant agrees to adhere
to and to act in accordance with all applicable federal and state laws and the
rules and regulations thereunder (including those relating to the sale of the
Shares, xxxxxxx xxxxxxx, and telemarketing), the policies and procedures of
Banyan in effect from time to time, all written and oral instructions received
from an authorized officer or employee of Banyan, and high ethical standards.
4. Compensation. Promptly upon execution of this agreement, Banyan
shall pay Marketing Consultant a one-time nonrefundable fee of 1,428,571 shares
of its Class A 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. Promptly after the
effective date of said Form S-8, a maximum of seven certificates evidencing the
Shares shall be issued in the name of and delivered to Marketing Consultant
without restrictive legend in such denominations as the Marketing Consultant
shall designate. Banyan will bear the costs of the registration statement and
issuance of the Shares. Marketing Consultant shall be solely responsible for
federal and state personal income taxes arising from his compensation hereunder.
5. Banyan Trade Secrets. Other than information known to the general
public, all information relating to Banyan, Chiropractic USA, the expansion
program, the direct marketing campaign, and the items set forth or mentioned in
paragraph 3 hereof, whether or not set forth in tangible form, shall be treated
as "Trade Secrets and Confidential Information." Marketing 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. Marketing 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
Marketing Consultant's contractors, agents and employees in connection with the
expansion program and direct marketing campaign who need to know such
information, who shall be bound to all of the provisions of this agreement to
the same extent as Marketing Consultant. Marketing 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, Marketing
Consultant agrees to return to Banyan all records of the Trade Secrets and
Confidential Information, including all copies thereof (other than Marketing
Consultant's accounting records). Marketing Consultant agrees to indemnify and
hold harmless Banyan from and against any loss arising out of any breach this
agreement caused or permitted by Marketing Consultant, and its contractors,
agents and employees.
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6. Other Proprietary Information. Unless otherwise provided herein,
Banyan and Marketing Consultant agree to keep in confidence and not disclose to
others all knowledge, information and data furnished to either party by the
other and claimed by such party to be proprietary or confidential information or
trade secrets; provided, however, such knowledge, information and data is given
in writing, or, if given orally, is reduced to writing within thirty days and
such writing is marked to indicate the claims of ownership and/or secrecy.
Neither party shall use, nor reproduce for use in any way, any proprietary or
confidential information of the other except in furtherance of this agreement.
Each party agrees to protect the proprietary and confidential information or
trade secrets of the other with the same standard of care and procedures used by
each to protect its own confidential and proprietary information or trade
secrets of similar importance and using at least a reasonable degree of care.
7. Restrictive Covenants. During the term of this agreement and for a
period of three (3) years from the effective date of Marketing Consultant's
resignation or termination, Marketing Consultant agrees not to offer or sell any
of its services to any of Banyan's competitors or to any other natural person or
corporation or other legal entity engaged in the business of chiropractic care,
or to offer employment thereto or accept employment therefrom.
8. Equitable Relief. The parties agree that the other party would
suffer irreparable harm for which monetary damages would be inadequate and
difficult to ascertain in the event of a breach of paragraphs 5, 6 or 7
including, but not limited to, the loss of potential franchisees and affiliates,
the breach of confidentiality of records and information, and the breach of
trust of customers. Therefore, each party consents to the application to any
court having jurisdiction over the matter for the issuance of a temporary
restraining order without notice or bond or a preliminary or permanent
injunction by or from such court to protect the Trade Secrets and Confidential
Information, to prohibit the breach of paragraphs 5, 6 or 7, and to maintain the
status quo pending the outcome of any legal proceeding which may be initiated.
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9. Term; Resignation and Termination. The term of this agreement shall
commence on the date hereof and continue for one year from the effective date of
Banyan's Registration Statement on Form S-8 to be filed in connection herewith.
Banyan may terminate Marketing Consultant for cause by giving written notice in
the event Marketing 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 Marketing 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.
10. Relationship of Parties. Banyan and Marketing Consultant are acting
only as independent contractors and will not be considered or be deemed to be an
employee, joint venturer or partner of the other party. This agreement does not
create or intend to create any other similar relationship between Banyan and
Marketing Consultant not specifically provided herein.
11. Force Majeure. Each party will be excused from performance under
this agreement for any period, and the time of any performance will be extended
to the extent reasonably necessary under the circumstances, if such party is
prevented from performing, in whole or in part, its obligations under this
agreement, as a result of acts or omissions by the other party or any act of God
or any governmental authority or any outbreak or escalation of hostilities, war,
civil disturbance, court order, labor dispute, third party nonperformance or any
other cause beyond its reasonable control, including, without limitation,
failures or fluctuations in electrical power, heat, light, air conditioning or
telecommunications equipment or lines or other equipment. Such nonperformance on
the part or either party will not be made a ground for Marketing Consultant's
resignation or termination; provided, however, that the party whose performance
has been excused will perform such obligation as soon as is reasonably
practicable after the termination or cessation of such event or circumstance.
12. Notices. All written notices provided for hereunder shall be sent
by first class mail addressed to the parties at the addresses set forth in the
first paragraph of this Agreement. Notice shall be deemed to be given on the
postmark date. Either party may change its address for notices by giving notice
to the other party as provided herein.
13. Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors, assigns and
personal representatives.
14. Waiver. Unless otherwise provided herein, no waiver by either party
of a breach of any provision hereof shall be deemed a waiver of any subsequent
breach of any provision hereof. No failure by either party to assert any right
provided herein shall be deemed a waiver of the right of such party to
subsequently assert any right provided for herein.
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15. Severability. The invalidity or unenforceability of any provision
hereof shall not effect the validity or enforceability of any other provision
hereof, which shall be construed in such event as if such invalid or
unenforceable provision was omitted.
16. Attorney Fees. In the event of any litigation arising from this
agreement, the parties agree that the court shall award to the prevailing party
all reasonably necessary costs and expenses, including reasonable attorney fees.
17. Governing Law; Venue. This agreement shall be governed by and
construed in accordance with the laws of Colorado. Jurisdiction and venue in
either the District Court for the City and County of Denver or the United States
District Court for the District of Colorado is consented to by the parties.
18. Entire Agreement; Amendment. This document states the entire
agreement and understanding of the parties and supersedes all prior agreements
and understandings. This Agreement may be amended only in writing, signed by the
parties hereto.
19. Counterparts. This agreement may be executed separately in
facsimile counterparts, each of which shall be construed to be one and the same
instrument.
IN WITNESS WHEREOF, the parties have signed this agreement the day and
year set forth below.
MARKETING CONSULTANT
/s/ Xxxxx X. Xxxxxxxxxx
----------------------------
Xxxxx X. Xxxxxxxxxx
DATED: August 26, 2003
BANYAN CORP.
By /s/ Xxxxxxx Xxxxxx
----------------------------
DATED: August 26, 2003 Xxxxxxx Xxxxxx
