Exhibit 10.1

Name		Title
Andrew A. Dahl		President and Chief Executive Officer
Philip M. Rice II		Chief Financial Officer

AMENDED CHANGE OF CONTROL AGREEMENT

THIS AMENDED CHANGE OF CONTROL AGREEMENT (this “ Agreement ”), is made on this 21 ^st day of April 2017, by and between Zivo Bioscience, Inc. (the “ Company ”) and (the “ Employee ”).

WHEREAS, the Employee serves as an employee of the Company; and

WHEREAS, the Company desires to establish certain protections for the Employee in the event of the Employee’s termination of employment under the circumstances described herein.

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and promises contained herein, and intending to be bound hereby, the parties agree as follows:

SECTION 1 Definitions . As used herein:

1.1. ‘ Base Salary ” means, as of any given date, the annual base rate of salary payable to the Employee by the Company, as then in effect; provided, however, that in the case of a resignation by the Employee for the Good Reason described in Section 1.7.3, “Base Salary” will mean the annual base rate of salary payable to the Employee by the Company, as in effect immediately prior to the reduction giving rise to the Good Reason.

1.2. “ Board ” means the Board of Directors of the Company.

1.3. “ Cause ” means (i)

Employee’s conviction of a felony or other crime involving moral turpitude (but not automobile related matters); (ii)  Employee’s commission of any act or omission involving dishonesty, fraud, embezzlement, theft, substance abuse or sexual misconduct with respect to the Company, any subsidiary of the Company or any of their respective employees, vendors, suppliers or customers, the specific nature of which shall be set forth in a written notice by the Company to Employee; (iii)  Employee’s substantial and continued neglect of or failure to perform his duties, or failure to follow a “reasonable directive of the Board,” which after written notice from the Board of such neglect or failure, has not been cured within ten (10) days after he receives such notice. For purposes of this Agreement, “reasonable directive of the Board,” shall mean a directive that is applied equitably among the management employees of the Company; (iv) Employee’s gross negligence or willful misconduct in the performance of his duties; or (v)Employee’s misappropriation of funds or assets of the Company or any subsidiary of the Company.

1.4. “ Change of Control ” means the happening of an event, which shall be deemed to have occurred upon the earliest to occur of the following events:

a. the dissolution or liquidation of the Company;

b. the sale or other disposition of all or substantially all of the assets of the Company;

c. the merger or consolidation the Company with or into another corporation, other than, in either case, a merger or consolidation of the Company in which holders of shares of the Company’s voting capital stock immediately prior to the merger or consolidation will have more than 50% of the ownership of voting capital stock of the surviving corporation immediately after the merger or consolidation (on a fully diluted basis), which voting capital stock is to be held in the same proportion (on a fully diluted basis) as such holders ownership of voting capital stock of the Company immediately before the merger or consolidation;

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d. the date any entity, Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act), other than (i) the Company, or (ii) any of its Subsidiaries, or (iii) any employee benefit plan (or related trust) sponsored or maintained by the Company or any of its Subsidiaries, or (iv) any Affiliate (as such term is defined in Rule 405 promulgated under the Securities Act) of any of the foregoing, shall have acquired beneficial ownership of, or shall have acquired voting control over, 50% or more of the outstanding shares of the Company’s voting capital stock (on a fully diluted basis), unless the transaction pursuant to which such Person, entity or group acquired such beneficial ownership or control resulted from the original issuance by the Company of shares of its voting capital stock and was approved by at least a majority of Directors who were either members of the Board on the date that this Plan was originally adopted by the Board or members of the Board for at least twelve (12) months before the date of such approval; or

e. the first day after the date of this Plan when Directors are elected such that there is a change in the composition of the Board such that a majority of Directors have been members of the Board for less than twelve (12) months, unless the nomination for election of each new Director who was not a Director at the beginning of such twelve (12) month period was approved by a vote of at least sixty percent (60%) of the Directors then still in office who were Directors at the beginning of such period.

Notwithstanding the foregoing, the Committee may provide for a different definition of a Change of Control in an Award Agreement if such Award is subject to the requirements of Code Section 409A and the Award will become payable on a Change of Control.

1.5. “ Code ” means Internal Revenue Code of 1986, as amended.

1.6. “ Disability ” means a condition entitling the Employee to benefits under the Company’s long term disability plan, policy or arrangement; provided, however , that if no such plan, policy or arrangement is then maintained by the Company and applicable to the Employee, “Disability” will mean the Employee’s inability, by reason of any physical or mental impairment, to substantially perform the Employee’s regular duties to the Company, as determined by the Board in its sole discretion (after affording the Employee the opportunity to present the Employee’s case), which inability is reasonably contemplated to continue for at least one year from its commencement and at least ninety (90) days from the date of such determination.

1.7. “ Good Reason ” means, without the Employee’s prior written consent, any of the following:

1.7.1. a material diminution in the Employee’s authorities, duties, titles or responsibilities;

1.7.2. the location of the facility at which the Employee is required to perform his or her duties is more than fifty (50) miles from the then current Company headquarters;

1.7.3. a reduction of the Employee’s Base Salary or the amount of the Employee’s Target Bonus of five percent (5%) or more;

1.7.4. the Company’s failure to pay or make available any material payment or benefit due Employee under this Agreement or any other material breach by the Company of this Agreement.

However, the foregoing events or conditions will constitute Good Reason only if (A) such event or condition occurs during the period beginning ninety (90) days immediately preceding a Change of Control and ending twenty-four (24) months thereafter and (B) the Employee provides the Company with written objection to the event or condition within sixty (60) days following the occurrence thereof, the Company does not reverse or otherwise cure the event or condition within thirty (30) days of receiving that written objection and the Employee resigns the Employee’s employment within ninety (90) days following the expiration of that cure period.

1.8. “ Release ” means a release substantially identical to the one attached hereto as Exhibit A.

1.9. “ Target Bonus ” means, with respect to any year, 100% of the target amount of the Employee’s annual bonus opportunity, expressed as a percentage of Base Salary, that would be payable to the Employee with respect to that year, whether under an employment or incentive agreement, under any bonus plan or policy of the Company or otherwise, assuming that all applicable performance goals are met and conditions to the payment of such bonus are satisfied.

1.10. “ Warrant ” means Warrants to purchase the Company’s common stock at a specified price.

1.11. “ Employee Warrants ” means any outstanding and contingent Warrants to purchase the Company’s common shares owned directly or beneficially by the Employee.

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1.12. “ Cashless Exercise ” means if the fair market value of one Warrant Share is greater than the Exercise Price (at the date of calculation as set forth below), in lieu of exercising this Warrant by payment of cash, the Holder may elect to receive shares equal to the value (as determined below) of this Warrant (or the portion thereof being canceled) by surrender of this Warrant at the principal office of the Company together with the properly endorsed Notice of Exercise in which event the Company shall issue to the Holder a number of Warrant Shares computed using the following formula:

X = Y (A-B)

A

Where:

X =

the number of Warrant Shares to be issued to the Holder

Y =

the number of Warrant Shares purchasable under the Warrant or, if only a portion of the Warrant is being exercised, that portion of the Warrant being canceled (at the date of such calculation)

A =

the fair market value of one Warrant Share (using the average of the last reported sale prices of the Common Stock for the five (5) trading days immediately preceding the date of the exercise)

B =

Exercise Price (as adjusted to the date of such calculation)

 

SECTION 2 Certain Terminations Following a Change of Control .

2.1. Severance Events Following a Change of Control . If the Employee’s employment with the Company ceases within the twenty-four (24) month period following the date of a Change of Control as a result of a termination by the Company without Cause, a resignation by the Employee for Good Reason or due to the Employee’s death or Disability, then, subject to Section 3 and Section 5, the Employee will be entitled to the following:

2.1.1. (i) any Base Salary earned through the effective date of termination that remains unpaid, with any such amounts paid on the first regularly scheduled payroll date following the effective date of termination; (ii) any bonus payable with respect to any fiscal year which ended prior to the effective date of the Employee’s termination of employment, which remains unpaid, with such amount paid in the first regularly scheduled payroll date following the effective date of termination or, if later, at the same time the bonus would have otherwise been payable to the Employee; and (iii) any reimbursement or payment due to the Employee on or prior to the date of such termination which remains unpaid to the Employee, with any such payment being made promptly following the effective date of termination (collectively, the “ Accrued Obligations ”);

2.1.2. a lump sum cash payment equal to 500% of the Employee’s Base Salary as in effect on such date (without taking into effect any reduction described in Section 1.7.3 above);

2.1.3. a lump sum cash payment equal to five (5) times his annual Target Bonus as in effect on such date; and

2.1.4. provided that the Employee is eligible for, and timely elects, COBRA continuation coverage, for a period of eighteen (18) months commencing from the date of the Employee’s termination of employment, the Company will reimburse the Employee for the monthly COBRA cost of continued coverage for the Employee, and, where applicable, his spouse and eligible dependents, paid by the Employee under the Company’s group health plan pursuant to section 4980B of the Code, less the amount that the Employee would be required to contribute for such coverage if the Employee were an active employee of the Company. These payments will commence within 30 days following the termination date and will be paid on the first payroll date of each month.

2.1.5. all vested warrants and all contingent warrants share be converted immediately into vested Warrants, with terms as specified in the Warrant, but in no case longer than five (5) years. All such Warrants shall also be deemed to be treated as “cashless warrants”

2.2. Severance Events Preceding a Change of Control . If the Employee’s employment with the Company ceases during the ninety (90) days immediately preceding the date of a Change of Control as a result of a termination by the Company without Cause, a resignation by the Employee for Good Reason or due to the Employee’s death or Disability, then, subject to Section 3 and Section 5, the Employee will be entitled to the following:

2.2.1. the Accrued Obligations;

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2.2.2. the Company will make a lump sum cash payment to the Employee equal to 500% of the Employee’s Base Salary as in effect on such date (without taking into effect any reduction described in Section 1.7.3 above);

2.2.3. a lump sum cash payment equal to five (5) times his annual Target Bonus as in effect on such date; and

2.2.4. provided that the Employee is eligible for, and timely elects, COBRA continuation coverage, for a period of eighteen (18) months commencing from the date of the Employee’s termination of employment, the Company will reimburse the Employee for the cost of the applicable monthly COBRA premium for the Employee, and, where applicable, his spouse and eligible dependents, paid by the Employee under the Company’s group health plan pursuant to section 4980B of the Code, less the amount that the Employee would be required to contribute for such coverage if the Employee were an active employee of the Company. These payments will commence within thirty (30) days following the termination date and will be paid on the first payroll date of each month. If applicable, the Employee will be reimbursed for COBRA premiums paid out-of-pocket for the period following the Employee’s termination date through the date of the Change of Control in an amount equal to the portion of the premium amount paid by the Company toward the applicable premium under its group health plan for active employees during the Employee’s term of employment with the Company; provided that if the Employee or the Employee’s spouse or eligible dependents, as applicable, have not elected (and is no longer eligible to elect) COBRA continuation coverage, no waiver or reimbursement will be made pursuant to this Section 2.2.3.

Notwithstanding the foregoing, if the Company’s obligation to make the payments provided for in Sections 2.1.2, 2.1.3 or Section 2.2.2 and 2.2.3 arises due to the Employee’s death or Disability, the cash payments described in Sections 2.1.2, 2.1.3, 2.2.2 and 2.2.3 will be reduced by the amount of benefits paid or payable to the Employee (or the Employee’s representative(s), heirs, estate or beneficiaries) pursuant to the life insurance or disability plans, policies or arrangements of the Company by virtue of the Employee’s death or Disability (including, for this purpose, only that portion of such life insurance or disability benefits funded solely by the Company or by premium payments made by the Company and not including the portion of such benefits paid for by the Employee). The payments and benefits described in this Section are in lieu of (and not in addition to) any other severance plan, fund, agreement or other arrangement maintained by the Company.

SECTION 3 Timing of Payments Following Termination .

Notwithstanding any provision of this Agreement, the payments and benefits described in Section 2 (other than any Accrued Obligations) are conditioned on the Employee’s execution and delivery to the Company of the Release in a manner consistent with applicable law. The amounts described in Sections 2.1.2, 2.1.3 or Section 2.2.2 and 2.2.3 (as applicable) will be paid in a lump sum, within sixty (60) days following execution and nonrevocation of the Release. Notwithstanding any provision of this Agreement to the contrary, in no event shall the timing of the Employee’s execution of the Release, directly or indirectly, result in the Employee designating the calendar year of payment, and if a payment that is subject to execution of the Release could be made in more than one taxable year, payment shall be made in the later taxable year.

SECTION 4 Parachute Payments .

4.1. The payments and benefits provided under Section 2 shall be made without regard to whether such payments and benefits, either alone or in conjunction with any other payments or benefits made available to the Employee by the Company and its affiliates, will result in the Employee being subject to an excise tax under Section 4999 of the Code (the “ Excise Tax ”) or whether the deductibility of such payments and benefits would be limited or precluded by Section 280G of the Code; provided, however , that if the Total After-Tax Payments (as defined below) would be increased by limitation or elimination of payments or benefits provided under Section 2, then the amounts and benefits payable under Section 2 will be reduced to the minimum extent necessary to maximize the Total After-Tax Payments. For purposes of this Section 4, “ Total After-Tax Payments ” means the total of all “parachute payments” (as that term is defined in Section 280G(b)(2) of the Code) made to or for the benefit of the Employee (whether made under this Agreement or otherwise), after reduction for all applicable taxes (including, without limitation, the Excise Tax). If a reduction to the payments or benefits provided under Section 2 is required pursuant to this Section 4, such reduction shall occur to the payments and benefits in the order that results in the greatest economic present value of all payments and benefits actually made to the Employee.

4.2. All determinations to be made under this Section 4 shall be made by the Company’s independent public accountant (the “ Accounting Firm ”) immediately prior to the Change of Control. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, the Employee may appoint another nationally recognized public accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any determination by the Accounting Firm shall be binding upon the Company and the Employee, except as described in the next Section.

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4.3. As a result of the uncertainty in the application of Section 280G and Section 4999 of the Code at the time of the Change of Control, it is possible that payments and benefits which will not have been made or provided by the Company should have been made (“ Underpayment ”) or payments and benefits are made or provided by the Company which should not have been made (“ Overpayment ”), consistent with the calculations required to be made hereunder. In the event that there is a final determination by the Internal Revenue Service, or a final determination by a court of competent jurisdiction, that an Overpayment has been made, any such Overpayment shall repaid to the Company by the Employee within thirty (30) days of such determination, with interest at the applicable Federal rate provided for in Section 7872(f)(2). In the event that there is a final determination by the Internal Revenue Service, or a final determination by a court of competent jurisdiction, any such Underpayment shall be promptly paid by the Company to or for the benefit of the Employee together with interest at the applicable Federal rate provided for in Section 7872(f)(2) of the Code, within thirty (30) days of such determination.

4.4. The Employee shall take such action (other than waiving the Employee’s right to any payments or benefits) as the Company reasonably requests under the circumstances to mitigate or challenge any tax contemplated by this Section 4. If the Company reasonably requests that the Employee take action to mitigate or challenge, or to mitigate and challenge, any such tax or assessment and the Employee complies with such request, the Company shall provide the Employee with such information and such expert advice and assistance from the Company’s accountants, lawyers and other advisors as the Employee may reasonably request and shall pay for all expenses incurred in effecting such compliance and any related fines, penalties, interest and other assessments.

 

SECTION 5 Restrictive Covenants .

5.1. During the period of the Employee’s employment by the Company and, only if the Employee’s employment with the Company terminates pursuant to Section 2.1 or 2.2 and the Employee begins to receive the payments and benefits provided for under either such Section, for a period of one (1) year beginning on the later of (i) the Employee’s termination of employment and (ii) the date of a Change of Control (the “ Restricted Period ”), except with the written consent of the Board, the Employee will not (except in his capacity as an employee of the Company) do any of the following, directly or indirectly:

5.1.1. the Employee shall not directly or indirectly, own, manage, operate, join, control, finance or participate in the ownership, management, operation, control or financing of, or be connected as an officer, director, employee, partner, principal, agent, representative, stockholder, consultant, investor or otherwise with, or use or permit his name to be used in connection with, any person, business or enterprise which directly or indirectly engages in the development, marketing or sale of products or compounds that are competitive with: (i) those products being marketed by the Company at the time of the Employee’s termination; (ii) those products, product candidates or compounds in clinical development or a clinical research program; or (iii) those products, product candidates or compounds that the Employee was aware were under pre-clinical development by the Company and expected to be in clinical development or in a clinical research program within six (6) months of the Employee’s termination (collectively, the “ Company’s Business ”).

5.1.2. solicit, entice or induce any customer to become a customer of any other person, firm or corporation with respect to the Company’s Business or to cease doing business with the Company or its subsidiaries or affiliates, and the Employee will not approach any such person, firm or corporation for such purpose or authorize or knowingly approve, encourage or assist the taking of such actions by any other person, firm or corporation; or

5.1.3. solicit, recruit or hire any part-time or full-time employee, representative or consultant of the Company or its subsidiaries or affiliates to work for a third party other than the Company or its subsidiaries or affiliates, or engage in any activity that would cause any employee, representative or consultant to violate any agreement with the Company or its subsidiaries or affiliates. The foregoing covenant shall not apply to any person after twelve (12) months have elapsed after the date on which such person’s employment by the Company has terminated.

5.2. The foregoing restrictions shall not be construed to prohibit the Employee’s ownership of less than five percent of any class of securities of any corporation which is engaged in any of the foregoing businesses and has a class of securities registered pursuant to the Securities Exchange Act of 1934, as amended, provided that such ownership represents a passive investment and that neither the Employee nor any group of persons including the Employee in any way, either directly or indirectly, manages or exercises control of any such corporation, guarantees any of its financial obligations, otherwise takes any part in its business, other than exercising the Employee’s rights as a stockholder, or seeks to do any of the foregoing.

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5.3. The Employee acknowledges that the restrictions contained in this Section 5 are reasonable and necessary to protect the legitimate interests of the Company and its affiliates, that the Company would not have entered into this Agreement in the absence of such restrictions, and that any violation of any provision of this Section will result in irreparable injury to the Company. The Employee further represents and acknowledges that (i) he has been advised by the Company to consult his own legal counsel in respect of this Agreement, and (ii) that he has had full opportunity, prior to execution of this Agreement, to review thoroughly this Agreement with his counsel.

5.4. The Employee agrees that the Company shall be entitled to preliminary and permanent injunctive relief, without the necessity of proving actual damages, as well as an equitable accounting of all earnings, profits and other benefits arising from any violation of this Section 5, which rights shall be cumulative and in addition to any other rights or remedies to which the Company may be entitled. In the event that any of the provisions of this Section 5 should ever be adjudicated to exceed the time, geographic, service, or other limitations permitted by applicable law in any jurisdiction, then such provisions shall be deemed reformed in such jurisdiction to the maximum time, geographic, service, or other limitations permitted by applicable law. The Employee agrees to disclose the existence and terms of this Section 5 to any employer that the Employee may work for during the Restricted Period. If the Employee breaches this Section 5 in any respect, the restrictions contained in herein will be extended for a period equal to the period that the Employee was in breach.

SECTION 6 Miscellaneous .

6.1. Section 409A . This Agreement shall be interpreted to avoid any penalty sanctions under Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”). If any payment or benefit cannot be provided or made at the time specified herein without incurring sanctions under Section 409A, then such benefit or payment shall be provided in full at the earliest time thereafter when such sanctions will not be imposed. All payments to be made upon a termination of employment under this Agreement will be made upon a “separation from service” under Section 409A of the Code. For purposes of Section 409A of the Code, each payment made under this Agreement shall be treated as a separate payment. In no event may the Employee, directly or indirectly, designate the calendar year of payment. To the maximum extent permitted under Section 409A of the Code and its corresponding regulations, the cash severance benefits payable under this Agreement are intended to meet the requirements of the short-term deferral exemption under Section 409A of the Code and the “separation pay exception” under Treas. Reg. §1.409A-1(b)(9)(iii). However, if such severance benefits do not qualify for such exemptions at the time of the Employee’s termination of employment and therefore are deemed as deferred compensation subject to the requirements of Section 409A of the Code, then if the Employee is a “specified employee” under Section 409A of the Code on the date of the Employee’s termination of employment, notwithstanding any other provision of this Agreement, payment of severance under this Agreement shall be delayed for a period of six (6) months from the date of the Employee’s termination of employment if required by Section 409A of the Code. The accumulated postponed amount shall be paid in a lump sum payment within ten (10) days after the end of the six (6) month period. If the Employee dies during the postponement period prior to payment of the postponed amount, the amounts withheld on account of Section 409A of the Code shall be paid to the Employee’s estate within sixty (60) days after the date of the Employee’s death. All reimbursements and in-kind benefits provided under this Agreement shall be made or provided in accordance with the requirements of Section 409A of the Code, including, where applicable, the requirement that (i) any reimbursement shall be for expenses incurred during the Employee’s lifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement, or in kind benefits provided, during a calendar year may not affect the expenses eligible for reimbursement, or in kind benefits to be provided, in any other calendar year, (iii) the reimbursement of an eligible expense will be made on or before the last day of the calendar year following the year in which the expense is incurred and (iv) the right to reimbursement or in kind benefits is not subject to liquidation or exchange for another benefit.

6.2. Term of Agreement . This Agreement shall terminate on December 31, 2017 (the “Agreement Termination Date”), to provide time for the Company to enter into new / revised employment agreements; provided, however , that if a Change of Control occurs prior to the Agreement Termination Date, this Agreement shall remain in effect until all of the obligations of the parties hereunder arising out of such Change of Control are satisfied or have expired.

6.3. Successors and Assigns . This Agreement shall inure to the benefit of and be binding upon the Company and the Employee and their respective successors, executors, administrators, heirs and/or permitted assigns; provided, however , that neither the Employee nor the Company may make any assignments of this Agreement or any interest herein, by operation of law or otherwise, without the prior written consent of the other party, except that, without such consent, the Company may assign this Agreement to any successor to all or substantially all of its assets and business by means of liquidation, dissolution, merger, consolidation, transfer of assets, or otherwise.

6.4. Governing Law . This Agreement shall be governed by and construed in accordance with the laws of the State of Michigan without regard to the application of the principles of conflicts of laws.

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6.5. Enforcement . Any legal proceeding arising out of or relating to this Agreement will be instituted in the United States District Court for the Eastern District of Michigan, or if that court does not have or will not accept jurisdiction, in any court of general jurisdiction in the Michigan, and the Employee and the Company hereby consent to the personal and exclusive jurisdiction of such court(s) and hereby waive any objection(s) that they may have to personal jurisdiction, the laying of venue of any such proceeding and any claim or defense of inconvenient forum.

6.6. Waivers; Separability . The waiver by either party hereto of any right hereunder or any failure to perform or breach by the other party hereto shall not be deemed a waiver of any other right hereunder or any other failure or breach by the other party hereto, whether of the same or a similar nature or otherwise. No waiver shall be deemed to have occurred unless set forth in a writing executed by or on behalf of the waiving party. No such written waiver shall be deemed a continuing waiver unless specifically stated therein, and each such waiver shall operate only as to the specific term or condition waived. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision or the effectiveness or validity of any provision in any other jurisdiction, and this Agreement will be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein.

6.7. Notices . All notices and communications that are required or permitted to be given hereunder shall be in writing and shall be deemed to have been duly given when delivered personally or upon mailing by registered or certified mail, postage prepaid, return receipt requested, as follows:

[THIS SPACE INTENTIONALLY LEFT BLANK]

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NOTICES SHALL BE MAILED OR OTHERWISE DELIVERED

If to the Company, to:

Zivo Bioscience, Inc.

2804 Orchard Lake Road

Suite 202

Keego Harbor, MI 48320

Attn: General Counsel

Fax: (610) 458-7830

If to the Employee, to the address on file with the Company, or to such other address as may be specified in a notice given by one party to the other party hereunder.

6.8. Entire Agreement; Amendments . This Agreement and the attached exhibit contain the entire agreement and understanding of the parties relating to the provision of severance benefits upon termination in connection with a Change of Control, and merges and is subordinate to current employment agreements in force.

6.9. Withholding . The Company will withhold from any payments due to the Employee hereunder, all taxes, FICA or other amounts required to be withheld pursuant to any applicable law.

6.10. Headings Descriptive . The headings of sections and paragraphs of this Agreement are inserted for convenience only and shall not in any way affect the meaning or construction of any provision of this Agreement.

6.11. Counterparts and Facsimiles . This Agreement may be executed, including execution by facsimile signature, in one or more counterparts, each of which shall be deemed an original, and all of which together shall be deemed to be one and the same instrument.

6.12. No Duty to Mitigate . The Employee shall not be required to mitigate damages or the amount of any payments provided for under this Agreement by seeking other employment or otherwise.

6.13. Recoupment Policy . The Employee agrees that the Employee will be subject to any compensation clawback or recoupment policies that may be applicable to the Employee as an executive of the Company, as in effect from time to time and as approved by the Board or a duly authorized committee thereof, whether or not approved before or after the effective date of this Amendment.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first above written.

 

	Zivo Bioscience, Inc.
	/s/ Andrew A. Dahl
	By: Andrew A. Dahl
	Title: President, Chief Executive Officer
	EMPLOYEE
	[ ]

 

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EXHIBIT A

RELEASE AND NON-DISPARAGEMENT AGREEMENT

THIS RELEASE AND NON-DISPARAGEMENT AGREEMENT (this “ Release ”) is made as of the day of , by and between (the “ Employee ”) and Zivo Bioscience, Inc. (the “ Company ”).

WHEREAS, the Employee’s employment as an executive of the Company has terminated; and

WHEREAS, pursuant to Section 2 of the Change of Control Agreement by and between the Company and the Employee dated as of , (the “ Change of Control Agreement ”), the Company has agreed to pay the Employee certain amounts and to provide Employee with certain rights and benefits, subject to the execution of this Release.

NOW THEREFORE, in consideration of these premises and the mutual promises contained herein, and intending to be legally bound hereby, the parties agree as follows:

SECTION 1 Consideration . The Employee acknowledges that: (a) the payments, rights and benefits set forth in Section 2 of the Change of Control Agreement constitute full settlement of all of Employee’s rights under the Change of Control Agreement, (b) the Employee has no entitlement under any other severance or similar arrangement maintained by the Company, and (c) except as otherwise provided specifically in this Release, the Company does not and will not have any other liability or obligation to the Employee. The Employee further acknowledges that, in the absence of Employee’s execution of this Release, the payments and benefits specified in Section 2 of the Change of Control Agreement would not otherwise be due to the Employee.

SECTION 2 Release and Covenant Not to Sue . The Employee hereby fully and forever releases and discharges the Company and its parents, affiliates and subsidiaries, including all predecessors and successors, assigns, officers, directors, trustees, employees, agents and attorneys, past and present (the Company and each such person or entity is referred to as a “ Released Person ”), from any and all claims, demands, liens, agreements, contracts, covenants, actions, suits, causes of action, obligations, controversies, debts, costs, expenses, damages, judgments, orders and liabilities, of whatever kind or nature, direct or indirect, in law, equity or otherwise, whether known or unknown, arising through the date of this Release, out of Employee’s employment by the Company or the termination thereof, including, but not limited to, any claims for relief or causes of action under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq ., or any other federal, state or local statute, ordinance or regulation regarding discrimination in employment and any claims, demands or actions based upon alleged wrongful or retaliatory discharge or breach of contract under any state or federal law. The Employee expressly represents that he has not filed a lawsuit or initiated any other administrative proceeding against a Released Person, and that he has not assigned any claim against a Released Person. The Employee further promises not to initiate a lawsuit or to bring any other claim against a Release Person arising out of or in any way related to Employee’s employment by the Company or the termination of that employment. The forgoing will not be deemed to release the Company from (a) claims solely to enforce this Release, (b) claims solely to enforce Section 2 of the Change of Control Agreement, (c) claims for indemnification under the Company’s By-Laws, under any indemnification agreement between the Company and the Employee or under any similar agreement or (d) claims solely to enforce the terms of any equity incentive award agreement between the Employee and the Company. This Release will not prevent the Employee from filing a charge with the Equal Employment Opportunity Commission (or similar state agency) or participating in any investigation conducted by the Equal Employment Opportunity Commission (or similar state agency); provided, however, that any claims by the Employee for personal relief in connection with such a charge or investigation (such as reinstatement or monetary damages) would be barred.

SECTION 3 Restrictive Covenants . The Employee acknowledges that restrictive covenants contained in Section 5 of the Change of Control Agreement will survive the termination of his employment. The Employee affirms that those restrictive covenants are reasonable and necessary to protect the legitimate interests of the Company, that he received adequate consideration in exchange for agreeing to those restrictions and that he will abide by those restrictions.

SECTION 4 Non-Disparagement . The Company (meaning, solely for this purpose, the Company’s directors and executive officers and other individuals authorized to make official communications on the Company’s behalf) will not disparage the Employee or the Employee’s performance or otherwise take any action which could reasonably be expected to adversely affect the Employee’s personal or professional reputation. Similarly, the Employee will not disparage the Company or any of its directors, officers, agents or employees or otherwise take any action which could reasonably be expected to adversely affect the reputation of the Company or the personal or professional reputation of any of the Company’s directors, officers, agents or employees.

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SECTION 5 Cooperation . The Employee further agrees that, subject to reimbursement of Employee’s reasonable expenses, he will cooperate fully with the Company and its counsel with respect to any matter (including litigation, investigations, or governmental proceedings) which relates to matters with which the Employee was involved during Employee’s employment with the Company. The Employee shall render such cooperation in a timely manner on reasonable notice from the Company.

SECTION 6 Rescission Right . The Employee expressly acknowledges and recites that he (a) has read and understands this Release in its entirety, (b) as entered into this Release knowingly and voluntarily, without any duress or coercion; (c) has been advised orally and is hereby advised in writing to consult with an attorney with respect to this Release before signing it; (d) was provided twenty-one (21) calendar days after receipt of the Release to consider its terms before signing it (or such longer period as is required for this Release to be effective under the Age Discrimination in Employment Act or any similar state law); and (e) is provided seven (7) calendar days from the date of signing to terminate and revoke this Release (or such longer period required by applicable state law), in which case this Release shall be unenforceable, null and void. The Employee may revoke this Release during those seven (7) days (or such longer period required by applicable state law) by providing written notice of revocation to the Company at the address specified in Section 6.7 of the Change of Control Agreement.

SECTION 7 Challenge . If the Employee violates or challenges the enforceability of Section 5 of the Change of Control Agreement or this Release, no further payments, rights or benefits under Section 2 of the Change of Control Agreement will be due to the Employee.

SECTION 8 Miscellaneous .

8.1. No Admission of Liability. This Release is not to be construed as an admission of any violation of any federal, state or local statute, ordinance or regulation or of any duty owed by the Company to the Employee. There have been no such violations, and the Company specifically denies any such violations.

8.2. No Reinstatement . The Employee agrees that he will not apply for reinstatement with the Company or seek in any way to be reinstated, re-employed or hired by the Company in the future.

8.3. Successors and Assigns . This Release shall inure to the benefit of and be binding upon the Company and the Employee and their respective successors, executors, administrators and heirs. The Employee may make any assignment of this Release or any interest herein, by operation of law or otherwise. The Company may assign this Release to any successor to all or substantially all of its assets and business by means of liquidation, dissolution, merger, consolidation, transfer of assets, or otherwise.

8.4. Severability . Whenever possible, each provision of this Release will be interpreted in such manner as to be effective and valid under applicable law. However, if any provision of this Release is held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability will not affect any other provision, and this Release will be reformed, construed and enforced as though the invalid, illegal or unenforceable provision had never been herein contained.

8.5. Entire Agreement; Amendments . Except as otherwise provided herein, this Release contains the entire agreement and understanding of the parties hereto relating to the subject matter hereof, and merges and supersedes all prior and contemporaneous discussions, agreements and understandings of every nature relating to the subject matter hereof. This Release may not be changed or modified, except by an Agreement in writing signed by each of the parties hereto.

8.6. Governing Law . This Release shall be governed by, and enforced in accordance with, the laws of the State of Michigan without regard to the application of the principles of conflicts of laws.

8.7. Counterparts and Facsimiles . This Release may be executed, including execution by facsimile signature, in one or more counterparts, each of which shall be deemed an original, and all of which together shall be deemed to be one and the same instrument.

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IN WITNESS WHEREOF, the Company has caused this Release to be executed by its duly authorized officer, and the Employee has executed this Release, in each case as of the date first above written.

 

	Zivo Bioscience, Inc.
	By: Andrew A. Dahl
	Title: President, Chief Executive Officer
	EMPLOYEE

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Exhibit 10.2

LIMITED LICENSE AGREEMENT

This Agreement is entered into by and between ZIVO Bioscience, Inc., a Nevada corporation (“ZIVO”) whose address is 2804 Orchard Lake Road, Suite 202 Keego Harbor, MI 48320 and NutriQuest, LLC, an Iowa limited liability company (“NutriQuest”) whose address is 3782 9th Street South West, Mason City, IA 50401.

WHEREAS, on or about November 28, 2016 the parties entered into a conditional Letter of Intent in connection with a proposed limited exclusive license agreement and the parties now desire to enter this Limited License Agreement (the “Agreement”) to set forth the definitive terms and conditions for said exclusive license agreement.

NOW THEREFORE, in consideration of the above recital and the mutual covenants and the agreements set forth below, and other good and valuable consideration, the receipt and adequacy of which is acknowledged, the parties agrees as follows:

1. Limited License . ZIVO grants to NutriQuest a limited, exclusive license to market, distribute sell and collect the sales proceeds in all ZIVO’s nutrition, feed additive and supplementation applications naturally-derived algal biomass (“Biomass”) and extraction products (collectively the “Products”) for oral administration in livestock and/or poultry species. Said license shall specifically exclude ZIVO’s proprietary isolated bioactive compounds or their isoforms, or any synthetics homologs or isoforms derived thereof (the “Excluded Products”). The license shall further specifically exclude any rights with respect to pet foods, aquaculture, or any medicinal or therapeutic uses or derivations in humans, pet foods or aquaculture.

2. Term . This Agreement remains in force for the entire useful life of the Products, provided the mutually agreed performance and sales minimums are achieved and maintained by NutriQuest and the product volumes delivered and quality standards are achieved and maintained by ZIVO (the “Standards”). The initial Standards for the parties are set forth on Exhibit “A” attached hereto. These Standards will be re-reviewed and mutually agreed upon annually, in writing, within 30 days of the start of each calendar year. In the event that the parties are unable to agree on such standards at any time, this Agreement will be terminated and ZIVO will pay a termination fee to NutriQuest calculated as follows: 3 times NutriQuest’s 50% share of Gross Profit (as defined in Section 4 below) for the most recent 12-month annualized period.

3. Performance .

3.1 NutriQuest Non-Performance . If NutriQuest is unable to meet the mutually agreeable performance and sales minimums, ZIVO can, at its sole discretion, offer a buyout of the exclusive license granted herein within 60 days. The buy-out price shall be calculated as follows: 3 times NutriQuest’s 50% share of Gross Profit (as defined in Section 4 below) for the most recent 12-month annualized period, in total, or by country or region where such expectations have not been met. If the buy-out is by country or region, then ZIVO’s buy-out of the exclusive license granted herein shall only apply to such country or region and ZIVO’s exclusive license granted to NutriQuest shall continue to all remaining countries and regions. Nothing herein shall prevent ZIVO from terminating the entire Agreement subject to the termination fee described herein.

ZIVO shall pay the termination fee in whole within 90 days of the effective termination date with interest accruing on the unpaid principal balance at the applicable federal short term rate.

3.2 ZIVO Non-Performance . In the event ZIVO is unable to supply NutriQuest with the Products or ZIVO has failed to pay the termination fee in the 90-day payment period stated in Section 3.1 above, for a period of 30 days, NutriQuest shall have the option, to require ZIVO to provide NutriQuest, within 45 days of written request, with all the necessary technology, know-how, production and processing agreements, in order that NutriQuest can manufacture its own supply of the Product. In such event, NutriQuest shall not obtain, in any manner, any ownership interest, claim or right to ZIVO’s intellectual property associated, directly or indirectly with the manufacture of the Product. NutriQuest further agrees to return to ZIVO all such technology, know-how, production and processing agreements within 30 days after the termination of this Agreement. Once production resumes, ZIVO will be paid a reduced 8% allocation of the Gross Profit for the term of this Agreement.

3.3 Brand . The NutriQuest brand will apply to and be sold as such brand for any Product under this exclusive license Agreement. Subject to compliance with applicable laws and regulations, logos and packaging design for any Products will include Product names as determined by NutriQuest. All Products shall be packaged and labeled according to NutriQuest’s specifications. Marketing materials, including but not limited to, catalogs, advertising campaigns, brochures, mini-CD’ s/DVD’ s, literature, PowerPoint presentations, web site content and trade-show banners, to assist NutriQuest in marketing, promoting, selling and distributing any Products will be the sole responsibility of NutriQuest.

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3.4 Intellectual Property . In conjunction with Section 8.5, nothing provided herein shall constitute a transfer of ownership of one party’s intellectual property (“IP”, further defined below) to the other party. Any IP developed through the performance of the Agreement, irrespective of possession of such IP, shall be owned solely by the developing party. In the event that IP is jointly developed, it shall be jointly and equally owned by the parties.

3.5 Intellectual Property Defined . Hereinafter “IP”, shall, without limitation, mean all rights, worldwide, both statutory and non-statutory , which are available to protect discoveries, ideas, concepts, designs, inventions (e.g., compositions of matter, machines, processes, formulae, methods of doing business), industrial designs, improvements, mask works, works of authorship (e.g., source code, object code, computer programs and associated documentation, drawings, flow charts, schematics and other works subject to copyright, design right or other like protection), trade secrets, and other intellectual property of any kind, against unauthorized manufacture, use, sale, offer for sale, leasing, copying, distribution , importation , preparation of derivative works, or disclosure by persons other than the owner or authorized user thereof, including, without limitation: U.S. and foreign patents, utility models, inventor certificates, registered designs, mask works, and applications for securing such rights and all rights therein (“Patent Rights”); copyrights, copyright registrations and applications for securing copyright registrations; all trademarks, service marks, logos, designs, or trade names, or other indicia of origin developed; and/or all other rights available to prevent the unlawful use or disclosure of trade secrets and other confidential information.

3.6 Joint and Equal Ownership . Subject to Section 3.4 with respect to each Party’s continuing ownership of their respective IP; all IP associated with any advancements, developments, improvements, and/or modifications to the Product shall be jointly and equally owned by the Parties. Such ownership shall be subject to the rights of the respective Parties as set forth herein.

3.7 Restrictions on IP . Notwithstanding the Parties’ joint and equal ownership of IP, neither Party will (nor shall they have the right to), either directly or through others, make, use, sell, license (or sublicense), continue development, improve upon or otherwise commercialize any jointly owned IP other than as to license rights expressly stated herein or in any separate commercial agreement specifically contemplated hereby or as otherwise expressly approved in writing by both of the Parties.

4. Compensation .

“Gross Profit” means, for a Product and for a particular period of time, the gross monies or the monetary equivalent of all other consideration in any form actually received by NutriQuest for the sale of such Product, whether or not invoiced, billed by or due to NutriQuest; less (i) credits or refunds, not exceeding the original billing or invoice amount; (ii) delivery expenses, (iii) discounts for quantity or “ bundled” purchases, cash payments, prompt payments, wholesalers, and distributors; (iv) taxes, including sales, use, excise, import, export, and other taxes or duties (excluding taxes on income), separately billed or invoiced, and borne by NutriQuest, imposed by a government agency with the authority to do so on such sale and (v) ZIVO full absorption inventory cost, calculated in accordance with generally accepted accounting principles (“GAAP Inventory Cost”) determined on a calendar quarter basis by ZIVO and reported to NutriQuest. NutriQuest shall earn a minimum GP of no less than $1,250 per metric ton.

4.1 Gross Profit Split NutriQuest shall market, distribute and collect revenues from the Biomass/Products’ sales. The Gross Profit shall be equally shared by the parties (50/50 basis) effectively creating a royalty paid by NutriQuest to ZIVO. Such royalties shall be paid by NutriQuest to ZIVO on a monthly basis and by the 10th day of the month following the month upon which the sales were generated. Within 30 days of the end of each calendar quarter, the amount of Gross Profit and applicable profit sharing percentages shall be recomputed based on actual results with any settlement of total adjusted monthly gross profit to be paid by the overcompensated Party to the undercompensated party within 10 days of the parties’ agreement on such recomputation.

4.2 Excluded Product . Should an Excluded Product developed by ZIVO, or derived from intellectual property licensed by ZIVO to others (“Competitive Product’), enter the animal nutrition market, in the event that ZIVO elects not to work with NutriQuest under the terms of this Agreement with such Competitive Product, NutriQuest shall have the right to exercise one of the following options, in its sole discretion within 60 days after ZIVO’s notification to NutriQuest of the Excluded Product entering the animal nutrition market. If NutriQuest first exercises the Market Adjustment Option, it may at any later date exercise the Put Option. Only one option may be exercised at any one time and once a Put Option is exercised the other options are terminated:

a. Market Adjustment Option : ZIVO shall pay NutriQuest a market adjustment that is equal to 15% of the Gross Profit earned by ZIVO on the Competitive Product once that product enters the animal nutrition market.

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b. Put Option : ZIVO shall grant NutriQuest an option (the “Put Option”) that, if exercised, terminates this Agreement and requires ZIVO to pay NutriQuest a termination fee equal to 3 times NutriQuest’s 50% portion of the highest annualized Gross Profit achieved by NutriQuest in any preceding 12 consecutive month period since inception of sales pursuant to this Agreement. ZIVO shall execute a non­secured promissory note to pay NutriQuest said termination fee in six equal consecutive monthly installments commencing 30 days after the effective termination date of this Agreement with interest accruing on the unpaid principal balance at the applicable federal short term rate in effect as of the date of the promissory note. If any of the six installments equals less than $100,000 the payment terms shall be calculated as (amount of termination payment) divided by ($100,000) and rounded down to nearest whole number to equal the number of monthly payments. As an example, if the termination fee is $350,000 the monthly payments shall equal $350,000 /$100,000 equals 3.5 rounded down to 3 consecutive equal monthly payments of $116,666.67 each.

If the Put Option is exercised and consummated, NutriQuest can, in its sole discretion, continue to market the Products on a non-exclusive basis under mutually agreeable terms determined by the parties if ZIVO continues to furnish the Products or is in the position to continue to furnish the Products.

4.3 Records and Audit . Each Party agrees to keep all usual and proper records and books of account and all usual and proper entries relating to the manufacture, storage, sale and distribution of the Products and to permit the other to review such records to the extent necessary to determine compliance with such Party’s obligations under this Agreement. Each Party shall have the annual right to audit, itself or via its appointed agent, the other Party’s accounting records to confirm the accuracy of any payments due under this Agreement. Each Party shall provide access to the other Party or its appointed agent for this purpose within thirty (30) calendar days of a written request. Any discrepancy found under the terms of this Agreement shall be corrected by a payment within fifteen (15) calendar days, including interest based on the prevailing prime rate of interest, calculated from the time that such underpayment occurred through the date that the discrepancy is paid for. If a discrepancy of five percent (5%) or more of any payments are found, the fees of the appointed agent shall be paid by the Party where the discrepancy occurred. Each Party agrees to keep as confidential all of the other Party’ s records disclosed in such audit.

4.4 No Sharing of Losses . As the Parties are not partners, joint venturers or anything similar thereto, each Party shall be solely responsible for its own losses, if any, incurred under this Agreement.

4.5 Warrants . At the signing of this Agreement NutriQuest will be issued warrants equal to 0.50% of the outstanding shares of ZIVO. Such warrants shall have a strike price 10% over current share price and a five-year exercise period. Upon completion of the exercise period the warrants shall expire. All payments upon exercise of the warrants shall be in a lump sum and immediately due with the notice of the warrant exercise.

5. Territory . NutriQuest’s territory under this Agreement shall be the entire world (“Territory”) provided the mutually agreeable performance and sales minimums (Exhibit “l”) are achieved by NutriQuest and both parties can successfully meet regulatory requirements outside the US.

6. ZIVO Responsibilities . ZIVO agrees and is responsible for:

a. growing and processing of the Products and supplying and selling the Product to NutriQuest at ZIVO’s cost (whether produced by ZIVO directly or through others). ZIVO shall have the right to out-source or assign this obligation to a third party, provided that ZIVO will cause the third party to comply with the same quality and manufacturing standards to produce the Product and use the same technical specifications for the third party as if ZIVO had manufactured the Product itself.

b. pursuing regulatory approval on the Products to obtain US GRAS status to NutriQuest’s satisfaction and EU EFSA approval if both NutriQuest and ZIVO agree that such regulatory approvals are warranted.

c. completing a total of three discovery research trials, which may be swine or poultry based, with assistance from NutriQuest in designing the trials and sourcing research facility space.

d. reasonably providing technical knowledge to support and enhance NutriQuest efforts under this Agreement.

e. applying for and prosecuting patent applications including paying all fees associated therewith.

f. pursuing enforcement activities against any third party who infringes upon patent rights on a Product.

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7. NutriQuest Responsibilities . NutriQuest agrees and is responsible for:

a. consulting with ZIVO during their regulatory phase to advise on safety and efficacy trials and review results.

b. consulting with ZIVO on processing of the Products into usable forms for applicable markets.

c. completing a total of three discovery research trials, which may be swine or poultry based in NutriQuest’s facilities, at its cost.

d. completing all additional research necessary to establish value proposition, enhance marketability and application of Products in the Territory.

e. providing all necessary technical service, sales and support to the market for the Products.

f. directing all necessary sales, marketing, branding, communication, advertising and promotion efforts of the Products in the Territory.

g. invoicing, credit and collections for Product sales in the Territory.

h. obtaining all necessary country registrations for the Products in each geography NutriQuest deems worthwhile other than US GRAS and EU EFSA approval, the latter shall be the responsibility of ZIVO.

i. informing ZIVO of all known or suspected infringements, unauthorized use or other interference with ZIVO’s IP.

8. Confidentiality

8.1 Treatment . The Receiving Party will treat the Confidential Information of the other party as strictly confidential and proprietary, and will safeguard its confidential and proprietary nature with at least the same degree of care as it holds its own confidential or proprietary information. Neither party will not reverse engineer or attempt to derive the composition or underlying information, structure or ideas of the Confidential Information. The receiving party may use the Confidential Information only in connection with fulfilling its obligations under this Agreement and for no other purpose whatsoever. The receiving party will not use the Confidential Information for its personal benefit of itself or for the benefit of any third party.

8.2 Forced Disclosure . If the receiving party is requested or required to disclose the Confidential Information or the substance of this Agreement in connection with a legal or administrative proceeding or otherwise to comply with a requirement under applicable law, the receiving party will give the disclosing party prompt notice of such request so that the disclosing party may seek an appropriate protective order or other remedy, or waive compliance with the relevant provisions of this Agreement. If the disclosing party seeks a protective order or other remedy, the receiving party, at disclosing party’s expense, shall promptly cooperate with and reasonably assist the disclosing party in such efforts.

8.3. Internal Disclosure . Each party acknowledges and agrees that it will only disclose the Confidential Information of the other party to its employees, consultants, associates, lab technicians and any and all contractors or subcontractors (collectively “Agents”) who need such Confidential Information to perform the party’s obligations under this Agreement and that these Agents shall be under the same obligation with respect to the Confidential Information as the receiving party.

8.4 Announcements . Neither Party shall issue any public statements, press releases, general advertisements or promotional materials using the name of the other Party without the written consent of the other Party. In no event will the terms and conditions of this Agreement be disclosed except to the extent required by applicable law.

8.5 No Transfer . Neither this Agreement, nor either party’s performance under it, will be assigned, transferred or conveyed in any manner to a third party, or create in any third party, any proprietary right, title, interest or claim in or to any of the disclosing party’s Confidential Information.

9. Miscellaneous .

9.1 Choice of Law ; Dispute Resolution. This Agreement shall be governed by and construed in accordance with the laws of the State of Michigan.

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9.2 Meeting of Chief Executive Officers . The Parties shall attempt to settle amicably any dispute or difference of any kind whatsoever, arising out of or in connection with the validity or invalidity, construction, execution, meaning, operation or effect or breach of this Agreement. If the Parties do not promptly do so, such dispute or difference shall be referred to the Parties’ respective principal or chief executive officer(s) (a “CEO”, or designees), who shall meet together with a view to resolving the same within a period of not more than fifteen (15) days from the date of the submission. Referral of a dispute to the Parties’ respective CEOs (or designees) shall be a condition precedent of instituting the mediation process.

9.2.1 Mediation . If the Parties’ respective CEOs are unable to resolve such dispute or difference within such fifteen (15) day period, the Parties agree to submit the dispute to a mutually agreeable third party who will assist in mediating the dispute to a satisfactory resolution and to conclude such private mediation within thirty (30) days of the filing by a Party of a request for such mediation. The mediation process may be invoked by any Party on written request and shall not be construed to constitute an admission against interest of the Party requesting mediation. Any mediation shall be confidential and non-binding on the Parties and no statements made or information exchanged during mediation will be admissible in any future legal or arbitration proceedings without the written consent of the Parties. If the dispute involves NutriQuest’s obligations under the Agreement, mediation shall take place in Mason City, Iowa; if the dispute involves ZIVO’s obligations under the Agreement mediation shall take place in Keego Harbor, Michigan. The Parties may mutually agree to conduct mediation at another location. Each Party will pay its own costs, plus an equal share of the costs of the mediator and the mediation facilities.

9.2.2 Arbitration . If a dispute between the Parties to this Agreement cannot be resolved by mediation within thirty (30) days as agreed to above, then the Parties shall submit any remaining dispute or difference of any kind between or among the Parties, arising out of in connection with this Agreement during its performance or after termination shall be referred to arbitration in accordance with the Commercial Rules of the American Arbitration Association. Any decision rendered shall be final and binding on the Parties. The arbitration shall be concluded within thirty (30) days of the filing by a Party of a request for such arbitration. If the dispute is initiated by ZIVO, arbitration shall take place in Mason City, Iowa; if initiated by NutriQuest, arbitration shall take place in Keego Harbor, Michigan; or at such other location as the Parties may agree. Costs of arbitration, including attorneys’ fees, shall be awarded by the arbitrators, as they deem equitable. Any award rendered by the arbitrators shall be final, and judgment may be entered thereon in any court having jurisdiction of the Parties, provided, however, that nothing herein shall be construed to confer upon such court authority or jurisdiction to inquire into or review the award on its merits. Except by written consent of the Parties to the arbitration, no one shall be included in the arbitration by consolidation, joinder or otherwise unless they are a Party to this Agreement, unless such third-party consents in writing. This Agreement is subject to the Federal Arbitration Act, 9 U.S.C. § 1-16.

9.2.3 Litigation . After signing this Agreement, each Party understands that it will not be able to bring a lawsuit concerning any dispute that may arise that is covered by this arbitration provision (other than to enforce the arbitration decision). Notwithstanding the foregoing, in the event a Party asserts that it is suffering from an irreparable harm during such dispute resolution process, such party may, in addition to pursuing its other remedies, obtain such equitable and injunctive relief (including, but not limited to, preliminary and permanent injunctions) from any court of competent jurisdiction, as may be necessary to enjoin any violation causing the irreparable harm and no bond or other security shall be required to obtain such relief.

9.3 Entire Agreement . This Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes any prior representations or statements, whether written or oral; no representation, warranty, affirmation of fact, promise, or other statement not specifically in this Agreement set forth will not be binding on any of the parties.

9.4 Anti-Disparagement . The Parties agree that in promoting their services neither Party shall disparage the other Party’s services and/or Products.

9.5 Freedom to Operate . Nothing herein shall limit NutriQuest’s right to distribute, including without limitation all technologies or products which NutriQuest has or shall acquire, license, or otherwise obtain, provided that such products and technologies do not violate the terms of this Agreement.

9.6 Insurance . During the Term, at ZIVO’s sole cost and expense, ZIVO shall procure and maintain commercial general liability insurance with an insurance company of national reputation naming NutriQuest as an additional insured. The insurance policy or policies will include: (i) product liability coverage; (ii) complete operations coverage; and (iii) contractual liability coverage with limits of liability for each type of coverage of not less than two million five hundred thousand dollars ($2,500,000) per occurrence or four million dollars ($4,000,000) in the aggregate. Within ten (10) business days of the Effective Date, ZIVO shall provide to NQ evidence of insurance policy(ies) meeting the requirements of this Section 9.5.

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9.7 Waiver . This Agreement may not be modified, amended, changed, or altered in any respect unless done so in a writing signed by all of the parties and is binding on, and will inure to the benefit of, the parties and their respective successors, assigns, heirs, and personal representatives.

9.8 Assignment . The rights and obligations of the parties hereunder being of a specific and exclusive nature, the rights and obligations hereunder will not be assignable or transferable by either party without the prior written consent of the other party hereto.

9.9 Section Headings . All Section headings in this Agreement have been inserted for convenience only and are not to be construed as part of the Agreement itself.

9.10 Invalid Provision . If any term, covenant, condition or provision of this Agreement is illegal or the application thereof to any person or in any circumstance will, to any extent, be invalid or unenforceable, the remainder of this Agreement, will not be affected thereby, and each term, covenant, condition and provision of this Agreement will be valid and enforceable to the fullest extent provided by law.

9.11 Independent Entities . In the performance of the services to be rendered pursuant to this Agreement, it is mutually understood and agreed that the parties are at all times acting and performing as an independent business entities and not as a joint venturers, partners or employees. The parties acknowledge that each party has independent discretion to make all business judgments relating to the services rendered hereunder, and neither party shall control nor exercise discretion over the manner in which the other party provides services hereunder; provided that each party carries on its professional activities in accordance with currently accepted methods and standards. Neither party shall not have the right or authority to assume or create any obligations, express or implied, on behalf of the other party, or to bind the other party in any way.

IN WITNESS WHEREOF, the parti.es by their duly authorized representatives have executed this Agreement as of the day and year set forth above.

Witnesses

“ZIVO”

ZIVO Bioscience, Inc., a Nevada corporation

By: /s/ Andrew A. Dahl

Andrew A. Dahl

Its: CEO

“NutriQuest”

NutriQuest LLC, an Iowa limited liability company

By: /s/ David Weiss

David Weiss

Its: President

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