AGREEMENT
EXHIBIT
10.1
AGREEMENT
This
Agreement dated as of November 13, 2006 (the “Agreement”) is executed by and
between, in the first part, IOWC Technologies, Inc. (“Optionor”), a federally
registered Canadian corporation, and in the second part, BioLargo Life
Technologies, Inc., (“Optionee”) a California corporation.
RECITALS
WHEREAS,
Optionor and Optionee are parties to an agreement dated December 31, 2005
entitled “Marketing and Licensing Agreement” (“M&L Agreement”), which
provides, in part, that Optionor would assign to Optionee its 20% membership
interest (the “Membership Interest”) in BioLargo, LLC, (“BioLargo LLC”) a
California limited liability company; and
WHEREAS,
the parties desire to provide Optionee the option to purchase the Membership
Interest for nominal consideration.
AGREEMENT
NOW
THEREFORE, in consideration of the mutual agreements and promises set forth
herein, the parties agree as follows:
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1.
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Option
to Purchase Membership
Interest.
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Optionor
hereby grants to Optionee the exclusive right to purchase the Membership
Interest at a price and under the terms and conditions set forth herein, during
the Option Period (defined as the period of time commencing with the Effective
Date of this Agreement, and terminating on December 31, 2013).
A. Purchase
Price. The Membership Interest may be purchased by Optionor for one dollar
($1.00) at any time during the Option Period.
B Exercise
of Option/Closing. The option granted herein shall be exercised by written
notice of exercise of option addressed and mailed by regular mail or personal,
postage prepaid, or by personal delivery, to Optionor prior to the expiration
of
the Option Period.
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2.
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Termination.
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This
Agreement shall terminate concurrently with the termination of the M&L
Agreement. In the event of such termination, the Parties shall each restore
the
other to the conditions they would have held had this Agreement been void from
its inception.
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3.
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Miscellaneous.
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A. Notices.
All
notices, requests, demands and other communications (collectively, “Notices”)
given
pursuant to this Agreement shall be in writing, and shall be delivered by
personal service, courier, facsimile transmission (which must be confirmed)
or
by United States first class, registered or certified mail, postage prepaid,
to
the following addresses:
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TO:
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BLTI
0000
Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx,
XX 00000
Attn:
President
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TO:
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IOWC
Technologies, Inc.
Xxxx
0, 0000 Xxxxxxxxxxx Xxxx XX
Xxxxxxxx,
XX, Xxxxxx X0X 0X0
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Any
Notice, other than a Notice sent by registered or certified mail, shall be
effective when received; a Notice sent by registered or certified mail, postage
prepaid return receipt requested, shall be effective on the earlier of when
received or the third day following deposit in the United States mails. Any
party may from time to time change its address for further Notices hereunder
by
giving notice to the other parties in the manner prescribed in this
Section.
B. Entire
Agreement.
This
Agreement contains the sole and entire agreement and understanding of the
parties with respect to the entire subject matter of this Agreement, and any
and
all prior discussions, negotiations, commitments and understandings, whether
oral or otherwise, related to the subject matter of this Agreement are hereby
merged herein.
C. Assignment.
No
party
may assign this Agreement, and any attempted or purported assignment or any
delegation of any party’s duties or obligations arising under this Agreement to
any third party or entity shall be deemed to be null and void, and shall
constitute a material breach by such party of its duties and obligations under
this Agreement; provided
that the
Purchaser may assign its rights to purchase all or any portion of the Assets
to
a wholly owned subsidiary. This Agreement shall inure to the benefit of and
be
binding upon any successors of each party by way of merger or consolidation.
D. Waiver
and Amendment.
No
provision of this Agreement may be waived unless in writing signed by all the
parties to this Agreement, and waiver of any one provision of this Agreement
shall not be deemed to be a waiver of any other provision. This Agreement
may be amended only by a written agreement executed by all of the parties to
this Agreement.
E. Governing
Law.
This
Agreement has been made and entered into in the State of California and shall
be
construed in accordance with the laws of the State of California without giving
effect to the principles of conflicts of law thereof.
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F. Severability.
Whenever
possible each provision of this Agreement shall be interpreted in such manner
as
to be effective and valid under applicable law, but if any provision of this
Agreement shall be or become prohibited or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition or invalidity
without invalidating the remainder of such provision or the remaining provisions
of this Agreement.
G. Captions.
The
various captions of this Agreement are for reference only and shall not be
considered or referred to in resolving questions of interpretation of this
Agreement.
H. Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed to be an original, but all of which together shall constitute one and
the
same instrument.
I. Costs
and Attorneys’ Fees.
If
any
action, suit, arbitration or other proceeding is instituted to remedy, prevent
or obtain relief from a default in the performance by any party to this
Agreement of its obligations under this Agreement, the prevailing party shall
recover all of such party’s attorneys’ fees incurred in each and every such
action, suit, arbitration or other proceeding, including any and all appeals
or
petitions therefrom. As used in this Section, attorneys’ fees shall be
deemed to mean the full and actual costs of any legal services actually
performed in connection with the matters involved calculated on the basis of
the
usual fee charged by the attorney performing such services and shall not be
limited to “reasonable attorneys’ fees” as defined in any statute or rule of
court.
J. Rights
Cumulative.
No
right
granted to the parties under this Agreement on default or breach is intended
to
be in full or complete satisfaction of any damages arising out of such default
or breach, and each and every right under this Agreement, or under any other
document or instrument delivered hereunder, or allowed by law or equity, shall
be cumulative and may be exercised from time to time.
K. Judicial
Interpretation.
Should
any provision of this Agreement require judicial interpretation, it is agreed
that a court interpreting or construing the same shall not apply a presumption
that the terms hereof shall be more strictly construed against any Person by
reason of the rule of construction that a document is to be construed more
strictly against the Person who itself or through its agent prepared the same,
it being agreed that all parties have participated in the preparation of this
Agreement.
L. Force
Majeure.
If
any
party to this Agreement is delayed in the performance of any of its obligations
under this Agreement or is prevented from performing any such obligations due
to
causes or events beyond its control, including, without limitation, acts of
God,
fire, flood, war, terrorism, earthquake, strike or other labor problem,
injunction or other legal restraint, present or future law, governmental order,
rule or regulation, then such delay or nonperformance shall be excused and
the
time for performance thereof shall be extended to include the period of such
delay or nonperformance.
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M. Dispute
Resolution.
Except
for specific performance and other equitable relief provided for in this
Agreement, if any controversy or claim arising out of this Agreement cannot
be
settled by the parties, the controversy or claim shall be submitted to and
settled by arbitration as hereinafter provided. The parties shall endeavor
to
agree upon a single arbitrator (the “Arbitrator”)
who
shall be a retired judge provided by JAMS or equivalent organization (the
“Provider”)
and
who shall then try all issues, whether of fact or law, and report a finding
or
judgment thereon. If the parties are unable to agree upon the Arbitrator, each
party shall provide the names of five retired judges from the Provider; then
each party shall choose one of the names from the list proposed by the other,
and from those two names the Arbitrator shall be selected by the flip of a
coin.
Prior to commencement of the arbitration proceedings, the Arbitrator shall
make
a full disclosure to the parties of any prior engagement by any of the parties,
or their attorneys or law firms. Any such prior engagement shall be grounds
for
disqualification of the Arbitrator, and upon any such disqualification a
substitute Arbitrator shall be selected as provided herein. The arbitration
proceedings shall be governed by the following:
i. All
hearings and other proceedings shall be in Orange County unless the parties
shall mutually agree in writing to an alternative location;
ii. The
Arbitrator shall follow and apply California law;
iii.
The
California Rules of Evidence shall apply to all proceedings;
iv.
Discovery
shall be limited to two depositions for each party and document production
as
allowed at the discretion of the Arbitrator within the rules of Section 1283.05
of the California Code of Civil Procedure;
v.
The
time
for rendering a decision after hearing shall be in accordance with the published
practices of the Provider;
vi.
Provisional
remedies shall be available to the parties to the arbitration in accordance
with
Section 1281.8 of the California Code of Civil Procedure; and
vii.
The
Purchaser and the Seller shall initially bear the arbitration fees equally;
provided,
however,
the
prevailing party shall be entitled to recover its contribution for such fees
as
an item of recoverable costs in addition to all other costs.
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IN
WITNESS WHEREOF, the parties have executed this Asset Purchase Agreement as
of
the date set forth above.
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BioLargo
Life Technologies, Inc.
/s/Xxxxxx
Xxxxxxx
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IOWC
Technologies, Inc.
/s/Xxxxxxx
X. Code
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By:
Xxxxxx Xxxxxxx
Title:
President
Dated
Signed: November 12, 2006
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By:
Xxxxxxx X. Code
Title:
President
Dated
Signed: November 11, 2006
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