Marketing and Licensing Agreement
This Marketing and Licensing Agreement ("Agreement"), is executed by
and between, in the first part, IOWC Technologies, Inc. ("IOWC"), a federally
registered Canadian corporation, and Kenneth Reay Code ("Code"), an individual,
(collectively referred to as "BioLargo"), and in the second part, NuWay Medical,
Inc. ("NuWay"), a Delaware corporation, and BioLargo Life Technologies, Inc., a
California corporation ("BLTI") and wholly owned subsidiary of NuWay.
WHEREAS, IOWC and NuWay entered into a letter of intent in which NuWay
would acquire from IOWC certain assets ("Assets"), including patents filed in
the United States (the "Patents"), as well as existing distribution/license
agreements with third parties, and in exchange issue to IOWC an agreed upon
amount of its common stock;
WHEREAS, the parties desire that NuWay, through its subsidiary, acquire
certain rights prior to the formal transfer of the Patents to allow NuWay to
utilize its resources to develop, market, sell and distribute the products
based upon the Patents and technology currently in development; and
WHEREAS, NuWay has formed a wholly owned subsidiary, BLTI, for the
purposes of entering into this agreement and managing the marketing and
development efforts related to the technology developed by Mr. Code and IOWC.
NOW THEREFORE, in consideration of the mutual agreements and promises
set forth herein, the parties agree as follows:
DEFINITIONS
1. Definitions. In addition to terms otherwise defined herein, the
following terms shall have the following meanings:
A. "BioLargo Technology" shall mean generally the intellectual
property estate primarily developed by Code, that includes two U.S.
Patents and several related patents ready for the filing process, and
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. "BioLargo Party" shall mean either IOWC or Code, individually or
collectively.
C. "BioLargo Products" shall mean shall refer to any product
designed, manufactured, conceived or contemplated, either at the
present time, or in the future, based on the BioLargo Technology or any
derivation thereof.
D. "Effective Date" shall mean January 1, 2006.
E. "Patents" shall mean United States Patent numbers 6,146,725 and
6,328,929.
BioLargo/NuWay Agreement
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RIGHTS GRANTED
2. License Granted to BLTI. It is the intent of the parties that BLTI
be granted a license, with respect to the BioLargo Technology and the BioLargo
Products, to further develop the technology, to further develop existing and new
products based on that technology, and to produce, market, sell and distribute
any such products, through its own means, or by contract or assignment to third
parties or otherwise. The parties intend that the rights granted hereto shall be
interpreted broadly and inclusively, and shall include, without limitation, the
rights as described below:
A. Technology Development Rights. Subject to all terms, conditions,
and limitations of this Agreement, BioLargo hereby grants to BLTI the
exclusive worldwide right to expand and improve upon the existing
BioLargo Technology, to conduct research and development activities
based on the BioLargo technology, and to contract with third parties
(such as IOWC USA, Inc.) for such research and development activities.
Any improvements on the BioLargo Technology, or any new technology
resulting such efforts of BLTI, shall be owned solely by BLTI.
B. Product Development Rights. Subject to all terms, conditions,
and limitations of this Agreement, BioLargo hereby grants to BTLI the
exclusive worldwide right to expand and improve upon the existing
BioLargo Products, to conduct research and development activities to
create new products for market, and to contract with third parties for
such research and development activities. Any new products created by
BLTI resulting from these efforts shall be owned solely by BLTI.
C. Marketing Rights. Subject to all the terms, conditions, and
limitations set forth in this Agreement, BioLargo hereby grants to BTLI
the worldwide exclusive right to market, advertise, and promote the
BioLargo Technology and the BioLargo Products in any market and in any
manner it deems commercially reasonable.
D. Manufacturing Rights. Subject to all terms, conditions, and
limitations of this Agreement, BioLargo hereby grants to BTLI a
transferable, worldwide exclusive right to manufacture, or have
manufactured, BioLargo Products.
E. Selling Rights. Subject to all terms, conditions, and
limitations of this Agreement, BioLargo hereby grants to BTLI a
transferable, worldwide exclusive right to sell BioLargo Technologies
and BioLargo Products.
F. Distribution Rights. Subject to all terms, conditions, and
limitations of this Agreement, BioLargo hereby grants to BTLI a
transferable, worldwide exclusive right to inventory and distribute
BioLargo Products.
G. Licensing Rights. Subject to all terms, conditions, and
limitations of this Agreement, BioLargo hereby grants to BTLI a
transferable, worldwide exclusive right to license BioLargo
Technologies and BioLargo Products to third parties.
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H. Intellectual Property Rights. Subject to all terms, conditions,
and limitations of this Agreement, BioLargo hereby grants to BTLI the
right to file any document to establish or enforce any and all
intellectual property rights, in the United States or abroad,
concerning the name "BioLargo", or any derivation thereof, or of the
BioLargo Technology, the Assets, the License Agreements, or any other
materials, trade marks, service marks, copyrights, patents, or other
intellectual property. BioLargo agrees to assist BLTI and cooperate in
the completion of any documents, filings or notices necessary to be
filed with any state or federal governmental agencies to effect the
assignment or transfer of ownership in the Marks. The rights granted in
this subparagraph shall include enforcement rights in any state,
Federal or foreign court.
3. Assignment of License Agreements. IOWC has entered into two
agreements and a letter of intent governing the marketing of products based on
the BioLargo Technology in the food, medical, and biohazardous material
transportation industries. Pursuant to the paragraphs below, IOWC shall assign
its rights and obligations in those two agreements to BLTI.
A. BioLargo, LLC. BioLargo hereby assigns to BTLI all of its
rights, title and interest, including the benefits and the burdens, of
the October 15, 2004 agreement by and between Kenneth R. Code, IOWC,
Inc., BioLargo Technologies, Inc., or IOWC's assigns and Craig
Sundheimer and Lloyd M. Jarvis (the "BLLCC Contract"). By this
assignment, BTLI will have all rights granted to IOWC pursuant to the
BLLLC Contract, including the rights to receive any payment of fees,
royalties, or income, generated pursuant to the Agreement.
B. FIT Agreement. BioLargo hereby assigns to BTLI all of its
rights, title and interest, including the benefits and the burdens, of
the January 15, 2005 agreement by and between Kenneth R. Code and IOWC,
Inc. and Food Technologies, Inc. (the "FIT Contract"). By this
assignment, BTLI will have all rights granted to IOWC pursuant to the
FIT Agreement, including the rights to receive any payment of fees,
royalties, or income generated pursuant to the Agreement.
C. GTS Agreement. BioLargo hereby assigns to BTLI all of its
rights, title and interest, including the benefits and the burdens, of
the November 2004 letter of intent by and between Kenneth R. Code and
IOWC and GTS Research, Inc. (the "GTS Agreement"). By this assignment,
BTLI will have all rights granted to IOWC pursuant to the GTS
Agreement, including the rights to receive any payment of fees,
royalties, or income generated pursuant to the Agreement.
D. Collectively, the BLLLC Agreement, the FIT Agreement, and the
GTS Agreement are referred to herein as the "Assigned Contracts." From
and after the Effective Date, BLTI will assume all of IOWC's rights and
obligations arising after the Effective Date under the Assigned
Contracts. It is expressly understood and agreed that neither BLTI or
NuWay will be liable for any of the debts, obligations, or liabilities
of IOWC relating to the Assigned Contracts incurred prior to the
Effective Date.
BioLargo/NuWay Agreement
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CONSIDERATION
4. Stock Consideration. As full payment for IOWC's obligations set
forth herein, NuWay will deliver to IOWC the following common stock (the "Stock
Consideration") upon the approval of such issuances by NuWay's stockholders,
which amounts shall be based upon the total outstanding common stock after the
issuances of this stock consideration, as well as the conversion into common
stock of any existing debt:
A. Licensing Rights. As full payment for the license granted to
BLTI pursuant to paragraph 2 (and its subparagraphs), NuWay will
deliver to IOWC twenty-nine percent (29%) of its outstanding common
stock, issued to "IOWC Technologies, Inc."
B. Assigned Contracts. As full payment for the assignment of the
contracts pursuant to paragraph 3 above, NuWay will deliver to IOWC
nine percent (9%) of its outstanding common stock, issued to "IOWC
Technologies, Inc."
C. Research and Development Agreement. For Code's commitments to
NuWay pursuant to the R&D Agreement, he shall receive 17.6% of the
outstanding common stock of NuWay less any shares issued to Code
pursuant to his employment agreement.
D. The total common stock issued to IOWC and Code, collectively,
for all components of this transaction, including the shares issued in
this Agreement, the asset purchase agreement, the R&D Agreement, and
those issued to Code pursuant to his Employment Agreement, shall total
fifty-six point six percent (56.6%) of NuWay's total outstanding common
stock as calculated on a fully diluted basis following the conversion
of all outstanding notes and debts (as of the date of this Agreement)
of NuWay into shares of common stock.
5. Escrow. NuWay is required to obtain the approval of its stockholders
prior to the issuance of the Stock Consideration to IOWC. As such, the rights
acquired by NuWay and its subsidiary BLTI shall be held in escrow subject to the
issuance of the Stock Consideration after a stockholder's meeting, to be held as
soon as practicable after the execution of this Agreement. NuWay and BLTI shall
have full authority to execute and act upon the rights granted to it in this
Agreement during the escrow and prior to the stock issuance. In the event that
NuWay's stockholders do not approve the stock issuance, this Agreement shall
terminate and all rights granted to NuWay and its subsidiary BLTI shall revert
to IOWC and Code.
REPRESENTATION AND WARRANTIES
6. Representations and Warranties of IOWC and Code. IOWC and Code
represent and warrant as follows:
BioLargo/NuWay Agreement
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A. Organization, Standing and Corporate Power. IOWC is a
corporation duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization and has all requisite
power and authority to own, lease and operate its properties and assets
and to carry on its business as now being conducted.
B. Authority; Enforceability; Effect of Agreement. IOWC has full
power and authority to enter into, execute and deliver this Agreement
and perform its obligations hereunder. This Agreement has been duly
authorized by all necessary corporate action of IOWC. This Agreement
has been duly executed and delivered by IOWC and, assuming this
Agreement is duly executed and delivered by BLTI and NuWay, constitutes
a valid and legally binding obligation of IOWC and Code, enforceable
against each in accordance with its terms.
C. No Conflict. The execution and delivery by each BioLargo Party
of this Agreement does not, and compliance by each BioLargo Party with
the provisions of this Agreement will not, (i) conflict with or result
in a breach or default under any of the terms, conditions or provisions
of any contract to which any BioLargo Party is a party or otherwise
bound, or to which any property or asset of any BioLargo Party is
subject; (ii) violate any Law applicable to any BioLargo Party; or
(iii) result in the creation or imposition of any Lien on any asset of
any BioLargo Party.
D. Assigned Contracts. True and correct copies of each Assigned
Contract, including all amendments and modifications thereof and
waivers thereunder, have been delivered to BLTI or its counsel. The
Assigned Contracts constitute all contracts pursuant to which IOWC
receives (or may receive) income, royalties or revenues. Each Assigned
Contract is a valid, binding contract, and fully enforceable by or
against IOWC.
E. Litigation and Proceedings. There is no pending or, to the best
knowledge of IOWC or Code, threatened legal action (or basis for any
legal action) to which IOWC or Code is or may be a party or involving
the Assigned Rights or the Assigned Contracts which could materially
effect (i) any IOWC or Code's ability to execute and deliver this
Agreement and perform the transactions contemplated hereby, or (ii)
BLTI's ability to perform its obligations assumed in the Assigned
Contracts.
F. No Consents Required. There are no approvals, authorizations,
consents, orders or other actions of, or filings with, any person that
are required to be obtained or made by BioLargo in connection with the
execution of, and the consummation of the transactions contemplated
under, this Agreement, including, without limitation, the effective
transfer to BLTI of the Assets, including the Assigned Contracts.
G. Material Misstatements and Omissions. No representations and
warranties by IOWC or Code in this Agreement, nor any exhibit, schedule
or certificate furnished by IOWC or Code to BLTI or NuWay pursuant to
this Agreement, contains or will contain any untrue statement of
material fact or omits or will omit to state any material fact
necessary to make the statements made therein, in light of the
circumstances under which they were made, not misleading.
BioLargo/NuWay Agreement
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7. Representations and Warranties of NuWay. NuWay represents and
warrants to BioLargo as follows:
A. Organization, Standing and Corporate Power. NuWay is a
corporation duly organized, validly existing and in good standing under
the laws of the State of Delaware and has all requisite power and
authority to own, lease and operate its properties and assets and to
carry on its business as now being conducted.
B. Authority; Enforceability; Effect of Agreement. NuWay has full
power and authority to enter into, execute and deliver this Agreement
and perform its obligations hereunder. This Agreement has been duly
authorized by all necessary action of NuWay. This Agreement has been
duly executed and delivered by NuWay and constitutes a valid and
legally binding obligation of NuWay and is enforceable against NuWay.
C. No Consents Required. There are no approvals, authorizations,
consents, orders or other actions of, or filings with, any Person that
are required to be obtained or made by NuWay in connection with the
execution of, and the consummation of the transactions contemplated
under, this Agreement.
8. Representations and Warranties of BLTI. BLTI represents and warrants
to BioLargo as follows:
A. Organization, Standing and Corporate Power. BLTI is a
corporation duly organized, validly existing and in good standing under
the laws of the State of California and has all requisite power and
authority to own, lease and operate its properties and assets and to
carry on its business as now being conducted.
B. Authority; Enforceability; Effect of Agreement. BLTI has full
power and authority to enter into, execute and deliver this Agreement
and perform its obligations hereunder. This Agreement has been duly
authorized by all necessary action of BLTI. This Agreement has been
duly executed and delivered by BLTI and constitutes a valid and legally
binding obligation of BLTI and is enforceable against BLTI.
C. No Consents Required. There are no approvals, authorizations,
consents, orders or other actions of, or filings with, any Person that
are required to be obtained or made by BLTI in connection with the
execution of, and the consummation of the transactions contemplated
under, this Agreement.
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COVENANTS OF THE PARTIES
9. Agreements. The parties covenant and agree to enter into the
following agreements:
A. An asset purchase agreement, in which NuWay shall issue to IOWC
1% of its then outstanding common stock, in exchange for the two United
States patents held by IOWC;
B. A research and development agreement ("R&D Agreement") with an
entity to be owned and managed by Code, in order to further develop the
BioLargo Technology and products based on the technology;
C. An employment agreement with Code, effective January 1, 2006,
whereby Code will become an employee of BLTI, to include the issuance
of 12,411,875 shares of NuWay's common stock;
D. Documentation effecting the transfer of IOWC's ownership of
BioLargo LLC to NuWay.
GENERAL PROVISIONS
10. Entire Agreement; Waivers. This Agreement constitutes the entire
agreement among the parties and supersedes any prior agreement or understanding
among them, and may not be modified or amended in any manner other than as
provided herein; and no waiver of any breach or condition of this Agreement
shall be deemed to be a waiver of any subsequent breach or condition of a like
or different nature.
11. Severability. If any term or provision of this Agreement is found
to be invalid, illegal or unenforceable under present or future laws effective
during the term of this Agreement, then and, in that event (i) the performance
of the offending term or provision (but only to the extent its application is
invalid, illegal or unenforceable) shall be excused as if it had never been
incorporated in to this Agreement, and, in lieu of such excused provision, there
shall be added a provision as similar in terms and amount to such excused
provision as may be possible and be legal, valid and enforceable, and (ii) the
remaining part of this Agreement shall not be affected thereby and shall
continue in any jurisdiction, then such term shall be enforced to the maximum
extent permitted by law, rather than voided, and the remaining terms of this
Agreement shall remain in full force and effect to the fullest extent provided
by law.
12. Preparation of Agreement. It is acknowledged by each party that
such party either had separate and independent advice of counsel or the
opportunity to avail itself or himself of same. In light of these facts it is
acknowledged that no party shall be construed to be solely responsible for the
drafting hereof, and therefore any ambiguity shall not be construed against any
party as the alleged draftsman of this Agreement.
13. Notices. All notices, requests, demands, and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given (i) on the date of service if served personally on the party to whom
notice is to be given, (ii) by private airborne/overnight delivery service or on
the fifth day after mailing if mailed to the party to whom notice is to be
given, by first class mail, registered or certified, postage prepaid, and
properly addressed as follows:
BioLargo/NuWay Agreement
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December 31, 2005
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TO: NuWay Medical, Inc. / BLTI
2603 Main Street, Suite 1155
Irvine, CA 92614
Attn: President
TO: IOWC Technologies, Inc.
Unit 4, 1780 Glastonbury Blvd NW
Edmonton, AB, Canada T5T 6P9
TO: Kenneth R. Code
Unit 4, 1780 Glastonbury Blvd NW
Edmonton, AB, Canada T5T 6P9
Any party may change his/her or its address for purposes of this paragraph
by giving written notice of the new address to each of the other parties in the
manner set forth above.
14. Attorneys' Fees and Costs. In the event that any legal proceeding
is brought to enforce or interpret any of the rights or obligations under
provisions of this Agreement, the prevailing party shall be entitled to recover
reasonable attorneys' fees, costs and disbursements in addition to any other
relief to which the prevailing party may be entitled whether or not the action
or proceeding proceeds to final judgment.
15. Governing Law; Venue. This Agreement shall be governed by and
construed in accordance with the laws of the State of California. Venue for any
legal or equitable action relating to this Agreement shall be in the state or
federal courts of the county of Orange, State of California.
16. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same instrument.
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BioLargo/NuWay Agreement
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It witness whereof, the parties hereto have executed this Marketing and
License Agreement as of the date indicated.
NuWay Medical, Inc. IOWC Technologies, Inc.
By: /s/ By: /s/
------------------------------ ---------------------------------
Dennis Calvert, President Kenneth R. Code, President
Date Executed: 12/31/05 Date Executed: 12/31/05
BioLargo Life Technologies, Inc. Kenneth R. Code, an individual
By: /s/ By: /s/
------------------------------ ---------------------------------
Dennis Calvert, President Date Executed: 12/31/05
Date Executed: 12/31/05
BioLargo Life Technologies, Inc.
By: /s/
------------------------------
Kenneth R. Code, Board Member
Date Executed: 12/31/05