Exhibit 10.1
NuWay Medical, Inc.
2603 Main Street, Suite 1150
Irvine, CA 92614
July 25, 2005
Mr. Kenneth R. Code
IOWC Technologies, Inc.
Unit 4, 1780 Glastonbury Blvd NW
Edmonton, AB, Canada T5T 6P9
Re: Letter of Intent for the sale of certain assets of IOWC Technologies
Inc., a Federally Registered Canadian corporation to NuWay Medical,
Inc., a Delaware corporation
Dear Mr. Code:
This letter of intent memorializes the intent of the respective party's
board of directors to consummate the described transaction herein. As a publicly
held company, NuWay's board of directors does not control its shareholder base
and cannot control the outcome of any shareholder vote. NuWay has agreed to seek
shareholder approval as indicated in this agreement, and is bound to do so by
the terms of this agreement. Each party agrees to be bound to consummate the
transaction upon the satisfaction or waiver of the conditions set forth in
paragraphs 4 and 5. The confidentiality paragraph shall be binding on the
parties irrespective of whether the transaction ultimately is consummated.
This letter of intent therefore, contains both binding and non-binding
provisions, as set forth herein.
Key Terms of Agreement
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1. The Purchased Assets: NuWay will purchase from IOWC Technologies Inc.
(and its related individuals, entities and subsidiaries, including yourself,
collectively referred to herein as "IOWC") all rights, title and interest in its
(i) technology, and its (ii) license agreements and/or distributor agreements
(the "License Agreements"). Collectively, the BioLargo Technology and the
License Agreements is referred to herein as the "Purchased Assets". All other
assets will remain the property of IOWC. NuWay will assume no liabilities of
IOWC. The transaction will close once the conditions, set forth herein and in
the definitive documents, have been satisfied (or waived) by each respective
party. The parties anticipate a formal closing date to be set, as soon as
possible, targeting the September or October 2005 time frame, but not later than
December 31, 2005 (the "Closing").
A. BioLargo Technology Defined
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More specifically defined in Exhibit A, the "BioLargo Technology"
represents an intellectual property estate, in the name of Kenneth Reay Code,
that includes two U.S. Patents and several related patents ready for the filing
process. The intellectual property estate relates to a unique process whereby
highly effective disinfecting chemistry is incorporated into absorbent materials
that can be then incorporated into products in multiple industries.
B. Current License Agreements
IOWC has granted exclusive licenses/distributor agreements to two third
parties to market products based on the BioLargo Technology with respect to the
food, medical, and biohazardous material transportation industries. The
medical/bioharzardous material transportation industry license was entered into
in October 2004, with a company operating under the name, BioLargo, LLC. The
food industry license was entered into with Food Industry Technologies, Inc., in
December 2004. Both agreements are subject to minimum performance requirements
and payment of fees. Neither agreement prevents the assignment contemplated by
this transaction.
IOWC will assign to NuWay all of its rights, title and interest, including
the benefits and the burdens, of these two license agreements. With respect to
the medical industry license, IOWC will transfer its 20% ownership interest in
the limited liability company formed by the licensees (BioLargo, LLC) to market
the products.
2. Structure of the Transaction
The transaction will be structured as a sale of the Purchased Assets, or
other structure, subject to legal and tax counsel review. In exchange for the
Purchased Assets, NuWay will issue its common stock to IOWC.
A. Consideration
NuWay shall issue common stock to IOWC in an amount such that, after the
effect of the transaction (and conversion of outstanding convertible promissory
notes), IOWC shall receive 51%, of the outstanding common stock of NuWay. The
exact number of shares of common stock to be issued to IOWC shall be determined
and agreed by the Parties prior to consummation of the purchase.
B. Increase in Authorized Shares, Reverse Stock Split
As set forth in the "Conditions to Closing" paragraphs below, NuWay agrees
to seek stockholder approval to (i) increase the number of shares of common
stock authorized by its Certificate of Incorporation, and (ii) complete or
effect a reverse split of its common stock on the basis of one post-split share
to approximately 100 pre-split shares.
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C. Pro-Forma Capitalization After Closing
Post Closing, subject to the appropriate shareholder approvals, NuWay
shall have approximately 10,000,000 shares of its common stock outstanding. Up
to approximately 5,000,000 additional shares may be issued depending on the
amount and terms upon which new capital is raised.. The parties have agreed to
the allocations of the approximately 10,000,000 of these shares in approximate
amounts as follows:
o 51% to IOWC
o 9.6% to Mr. Calvert, in exchange for the conversion of (i) the New
Millennium note and (ii) accrued but unpaid salary, subject to
shareholder approval, with additional shares awarded subject to his
employment agreement and a vesting schedule.
o 2% to 4.9% to the Augustine Fund II, (conversion of notes to stock
and issued warrants).
o 10% to 13% on a fully diluted basis, to a newly formed employee
option/equity plan.
o 12.1% to 14.9% to the pre-Closing shareholder base.
o 5% to 6.6% to new investors as of the date of this Letter of Intent
The Company will require additional professionals, corporate staff and
outside services, and will likely create additional stock participation programs
to provide incentives for performance for these individuals and companies and
therefore the allocation of the ownership interests are subject to change to
accommodate these business initiatives.
D. Management Team
Mr. Calvert will remain as President and CEO of NuWay under a newly
executed long-term employment agreement. Mr. Code will join NuWay as Chief
Technology Officer pursuant to a long-term employment agreement. NuWay agrees to
submit to its stockholders Mr. Code for election to the board of directors. (Mr.
Code's election to the board is a condition precedent to IOWC's obligation to
close the transaction; see "Conditions to Closing" below).
The Company is in the process of negotiating employment and/or consulting
agreements with third parties, including an interim CFO, marketing and corporate
development professionals.
E. Name Change
In connection with the submission of certain items to its stockholders
with respect to this transaction, NuWay agrees to submit a formal change of its
name to its stockholders from "NuWay Medical, Inc." to "BioLargo Life
Technologies, Inc."
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3. Interim Funding.
Prior to the Closing, NuWay shall provide interim funding to IOWC on a
best efforts basis and in amounts agreed between the parties in an aggregate
amount not to exceed $1,000,000 (the "Advance"). Upon Closing, the aggregate
amount of the Advance shall be forgiven by NuWay. In the event the transaction
does not close, then the aggregate amount of the Advance shall be converted into
stock of IOWC at a price per share of $1.00.
4. Conditions Precedent to IOWC's Obligations. IOWC's obligations to
consummate this transaction are conditioned upon, among other things,
satisfaction, or waiver by IOWC, of the following conditions.
A. NuWay stockholder approval of the following:
i) Approval of the issuance of shares to IOWC as required
pursuant to definitive documents;
ii) Approval of the proposed reverse split of its common stock as
required in the definitive documents;
iii) Election of Kenneth R. Code to its board of directors and
appointment as Chairman of the Board;
iv) Approval of an increase in the number of authorized shares of
common stock;
B. NuWay shall be in good standing with its respective jurisdiction(s).
C. Completion by NuWay of necessary filings with the U.S. Securities
and Exchange Commission ("SEC").
D. Raising sufficient funds by NuWay to cover:
i) the costs of this transaction, and
ii) three months post Closing operating expenses (estimated at a
total of $300,000).
E. The execution of long term employment agreement with Mr. Calvert,
upon the following terms: $14,000 per month for the remainder of
2005, and a 10% increase in salary beginning January 2006, and an
additional 10% each year thereafter, for a period ending five years
from the date of the agreement. The contract is to contain a stock
bonus provision providing for a five year vesting period of a total
of 3% per year of the then issued and outstanding common stock, and
reasonable and customary benefit programs.
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F. The completion and approval by IOWC, its accountants, attorneys and
other advisors of their due diligence investigation of the
financial, business, legal and operational condition of NuWay, its
intellectual property, and its owners. Said review and approval
shall not be construed as a waiver by IOWC of any warranties and
representations made by NuWay or the owners of NuWay.
5. Conditions Precedent to NuWay's Obligations. NuWay's obligations to
consummate this transaction are conditioned upon, among other things,
satisfaction, or waiver by NuWay, of the following conditions.
A. The completion of an independent audit of IOWC, as may be required
for compliance with SEC regulations.
B. Approval of the transaction by IOWC's board of directors and
shareholders.
C. The completion and approval by NuWay, its accountants, attorneys and
other advisors of their due diligence investigation of the
financial, business, legal and operational condition of IOWC, its
intellectual property, and its owners. Said review and approval
shall not be construed as a waiver by NuWay of any warranties and
representations made by IOWC or the owners of IOWC.
D. NuWay shall have received evidence satisfactory to it of IOWC's
title to all of the Purchased Assets, free and clear of any liens,
encumbrances, restrictions on transfers or the like.
E. IOWC shall be in good standing with its respective jurisdiction(s).
F. Mr. Code shall have entered into a written employment agreement with
NuWay.
6. Definitive Documents.
A. The Definitive agreements shall include without limitation:
i) Asset Purchase Agreement.
ii) General Assignment and Assumption Agreement, assigning all
benefits and burdens of the License Agreements to NuWay.
iii) Research and Development Agreement with IOWC
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B. The Definitive agreements shall include, contain or provide:
i) Representations and Warranties. Customary and usual
representations and warranties by the parties.
ii) The definitive agreements shall contain customary and usual
indemnification and hold harmless provisions.
iii) Opinions of Counsel. For the delivery at closing of favorable
opinions of counsel for the corporate parties with respect to
such matters as the parties shall agree, including without
limitation an opinion of counsel of IOWC with respect to the
title of the Purchased Assets.
iv) Financial and Other Information.
(a) The examination and inspection of the books and records
of each of the parties prior to closing;
(b) IOWC shall provide two years audited financial
statements, as necessary and at the request of NuWay,
and un-audited for six months ended June 30, 2005.
v) Conduct of Business of NuWay and IOWC - Pending Closing
Standstill Agreement. Until consummation or termination of
this transaction, the parties will conduct business only in
the ordinary course and none of the assets of the parties
shall be sold or disposed of except in the ordinary course of
business or with the written consent of the other party.
vi) Other.
(a) The transactions which are contemplated herein, to the
extent permitted, shall be governed by and construed in
accordance with the laws of the State of Delaware.
(b) Each party and its agents, attorneys and representatives
shall have full and free access to the properties, books
and records of the other party (the confidentiality of
which the investigating party agrees to retain) for the
purposes of conducting investigations of the other
party.
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(c) The substance of any public or private announcement with
respect to the transaction, other than notices (or SEC
disclosures) required by law, shall be approved in
advance by all parties or their duly authorized
representative.
7. Confidentiality.
NuWay and IOWC understand that in the course of due diligence and in the
negotiation of definitive agreements for this transaction they may require
proprietary and confidential information regarding each other's business,
including, but not limited to, the identity of customers, contract provisions
and other matters. NuWay and IOWC each agree that from the date of this Letter
of Intent it will hold all information concerning the other party and all
information concerning the existence and details of the Transaction, this Letter
of Intent or any other documents involved in the Transaction, in strict
confidence and will not disclose such information to anyone other than its
personnel, accountants, attorneys and other advisors who have a reasonable basis
for needing access to such information in connection with the Transaction.
Except and as required by the rules of the Securities and Exchange Commission,
this confidentiality provision shall remain in effect until the later of three
years from the date (i) of this Letter of Intent if this transaction is not
consummated, or (ii) all obligations under the definitive agreements for this
transaction have been performed and not waived, and neither party owns an equity
interest in the other. The parties agree that it may be difficult to quantify
the damage that may result from the breach of this confidentiality provision
and, therefore, expressly submit to the jurisdiction of a court of equity to
impose a temporary restraining order, injunction or similar restraint upon them
for breaching or threatening to breach this confidentiality provision.
8. Each party will bear its own cost with respect to the transaction.
9. Kenneth Reay Code warrants and represents that he has the authority to
execute this letter of intent on behalf of IOWC and its Board of Directors.
10. Dennis Calvert warrants and represents that he has the authority to
execute this letter of intent on behalf of Nuway Medical, Inc. and its Board of
Directors.
If you are in agreement with the terms of this Letter of Intent, please
sign the letter and the enclosed copy and deliver one original to us.
Sincerely,
NuWay Medical, Inc.
By: /s/
----------------------------------------
Dennis Calvert
President
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Accepted and agreed
/s/
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IOWC Technologies, Inc.
Name: Ken Code
Title: President
Date: July 25, 2005
cc: Counsel for IOWC:
Douglas A. Lynass
Lynass Ferguson & Shoctor
17731-103 Avenue
Edmonton, AB Canada T5S 1N8
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Exhibit A
Definition of BioLargo Technology
1. Patents issued by the United States Patent and Trademark office, numbers
6,146,725 and 6,328,929;
2. Invention disclosures and filings as they relate to the Product, including
the sustained release technology for the disinfectant component;
3. Potassium Iodide and Copper Sulfate formulae, their ratios, etc. and
methods of sourcing and producing them;
4. Composition and sources of the various super-absorbent components that
have been, or may be, incorporated into the Product;
5. All manufacturing specifications and know-how, testing protocols and
methodologies,
6. All future improvements to the Technology;
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