ex101.htm


    OPERATING
AGREEMENT

    


    This
First Amended Operating Agreement (the “Agreement”), is made on October 1, 2009
(the “Effective Date”) between Shrink Nanotechnologies, Inc., a Delaware
corporation, (hereinafter referred to as the “Company”) and BCGU, LLC, a Nevada
limited liability company (the “Consultant”).

    


    WHEREAS, on May 29, 2009, a
wholly owned subsidiary of the Company and the Consultant executed an operating
agreement (the “Initial Operating Agreement”), and the same First Operating
Agreement provided for certain defined services in exchange for
compensation;

    


    WHEREAS, the parties hereby
agree to mutually terminate the Initial Operating Agreement;

    


    WHEREAS, the Company now
requires the Services (as defined herein) and as set forth herein;

    


    WHEREAS, Consultant is
qualified to provide the Company with the Services and is desirous to perform
such Services for the Company; and

    


    WHEREAS, the Company wishes to
induce Consultant to provide the Services and wishes to contract with the
Consultant regarding the same and compensate Consultant in accordance with the
terms herein;

    


    NOW, THEREFORE, in
consideration of the mutual covenants hereinafter stated, it is agreed as
follows:

    


    1.           APPOINTMENT.  The Company
hereby engages Consultant and Consultant agrees to render the Services to the
Company as a consultant upon the terms and conditions hereinafter set
forth.

    


    2.           TERM.  Subject to
Section 8(a), the term of this Consulting Agreement shall begin as of the
Effective Date, and shall terminate 36 months thereafter (hereinafter, the
"Term").

    


    3.           SERVICES.  During the term
of this Agreement, Consultant shall provide the Company with the following
“Services.”  Services shall be limited to making recommendations and
offering advice to the Company’s Officers, Directors and other key Company
personnel.    Consultant will rely upon the Company’s
management and board of directors to, in the Company’s sole discretion, accept
or reject its recommendations.  Under no circumstances, even in the
event that Consultant is to perform onsite analysis, shall Consultant be
responsible for making any decisions on behalf of the Company.

    


    a.           Company
wishes for Consultant to:

     

            § Provide
day-to-day management services;

            § Provide
controller and bookkeeping services for the Company and
itssubsidiaries;

            § Provide
administrative support staff, reception, clerical and filing;

            § Provide
support and staffing to prepare the Company’s SEC filings
andReports.

    


    b.           Consultant
agrees to provide the Services on a timely basis via: meetings with Company
representatives which may include other professionals; conferences calls with
Company representatives and other professionals; and/or written correspondence
and documentation.  Consultant cannot guarantee the results on behalf
of the Company, but shall pursue all avenues that it deems reasonable through
its network of contacts.

    


    4.           COMPENSATION.    In
connection with this Agreement, the foregoing shall be referred to as
“Compensation.”  All Compensation due to be delivered and/or paid to
Consultant pursuant to this Agreement shall be deemed completely earned, due,
payable and non-assessable as of the date the Compensation is due to or vested
in Consultant.  Compensation shall consist of US $30,000 cash payable
on the 1st day of
every month (the “Monthly Fee”).  Unpaid amounts of the Monthly Fee
shall accrue until the last day of a calendar year, and any unpaid and accrued
amounts of Monthly Fees for a calendar year shall be resolved for that period at
the time the Company makes a 10% interest bearing convertible note (convertible
into Company common shares) payable to the Consultant for the unpaid and accrued
Monthly Fees, if any, and delivers the same convertible note to the
Consultant.  In consideration for agreeing to the terms of this
Agreement and to provide the day-to-day services required presently, the
Consultant shall be paid a signing bonus of $270,000 (the “Signing
Bonus”).  Unpaid amounts of the Signing Bonus shall accrue until the
last day of the 2009 calendar year, and any unpaid and accrued amounts of the
Signing Bonus shall be resolved for that period at the time the Company makes a
10% interest bearing convertible note (convertible into Company common shares)
payable to the Consultant for the unpaid and accrued Signing Bonus monies, if
any, and delivers the same convertible note to the Consultant.

    


    5.           REPRESENTATIONS
AND WARRANTIES OF COMPANY.

    


     The
Company hereby represents, warrants and agrees as follows:

     

    a.           This
Agreement has been authorized, executed and delivered by the Company and, when
executed by the Consultant will constitute the valid and binding agreement of
the Company enforceable against the Company in accordance with its terms, except
as enforcement thereof may be limited by bankruptcy, insolvency or
reorganization, moratorium or other similar laws relating to or affecting
creditors’ rights generally or by general equitable principles.

     

    b.           The
financial statements, audited and unaudited (including the notes thereto)
provided to Consultant, (the “Financial Statements”), will present fairly the
financial position of the Company as of the dates indicated and the results of
operations and cash flows of the Company for the periods specified. Such
Financial Statements will be prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the periods
involved except as otherwise stated therein.

    


    c.           The
Company is validly organized, existing and with active status under the laws the
State of Nevada.

    


    d.           The
securities to be issued to Consultant, if any, have all been authorized for
issuance and when issued, delivered and tendered to the Consultant by the
Company will be validly issued, fully paid and non-assessable.

     

    e.           Since
date of the most recent of the Financial Statements, there has not been any (A)
material adverse change in the business, properties, assets, rights, operations,
condition (financial or otherwise) or prospects of the Company, (B) transaction
that is material to the Company, except transactions in the ordinary course of
business, (C) obligation that is material to the Company, direct or contingent,
incurred by the Company, except obligations incurred in the ordinary course of
business, (D) change that is material to the Company or in the common shares or
outstanding indebtedness of the Company, or (E) dividend or distribution of any
kind declared, paid, or made in respect of the common shares.

    


    f.           The
Company shall be deemed to have been made a continuing representation of the
accuracy of any and all facts, material information and data which it supplies
to Consultant and acknowledges its awareness that Consultant will rely on such
continuing representation in disseminating such information and otherwise
performing its advisory functions.  Consultant in the absence of
notice in writing from the Company, will rely on the continuing accuracy of
material, information and data supplied by the Company.  Consultant
represents that he has knowledge of and is experienced in providing the
aforementioned services.

    


    6.           INDEMNIFICATION.                                                        The
Company agrees to indemnify the Consultant and hold it harmless against any
losses, claims, damages or liabilities incurred by the Consultant, in connection
with, or relating in any manner, directly or indirectly, to the Consultant
rendering the Services in accordance with the Agreement, unless it is determined
by a court of competent jurisdiction that such losses, claims, damages or
liabilities arose out of the Consultant’s breach of this Agreement, sole
negligence, gross negligence, willful misconduct, dishonesty, fraud or violation
of any applicable law.  Additionally, the Company agrees to reimburse
the Consultant immediately for any and all expenses, including, without
limitation, attorney fees, incurred by the Consultant in connection with
investigating, preparing to defend or defending, or otherwise being involved in,
any lawsuits, claims or other proceedings arising out of or in connection with
or relating in any manner, directly or indirectly, to the rendering of any
Services by the Consultant in accordance with the Agreement (as defendant,
nonparty, or in any other capacity other than as a plaintiff, including, without
limitation, as a party in an interpleader action).  The Company
further agrees that the indemnification and reimbursement commitments set forth
in this paragraph shall extend to any controlling person, strategic alliance,
partner, member, shareholder, director, officer, employee, agent or
subcontractor of the Consultant and their heirs, legal representatives,
successors and assigns.  The provisions set forth in this Section
shall survive any termination of this Agreement.

    


    7.           COMPLIANCE
WITH SECURITIES LAWS.  The Company
understands that any and all compensation outlined in this Agreement shall be
paid solely and exclusively as consideration for the aforementioned consulting
efforts made by Consultant on behalf of the Company as an independent
contractor.  The Parties to be performing the services outlined in
this Agreement are natural persons.  Consultant has been engaged to
provide the Company with traditional “public company” business, technical and
related business services.  Consultant’s engagement does not involve
the marketing of any Company securities nor is Consultant being hired to raise
money for the Company.

    


    8.           MISCELLANEOUS.

    


    a.           Termination:  This
Agreement may be terminated by either Party for any reason at any time
(hereinafter referred to as a “Termination”).

    


    b.           Modification:  This
Agreement sets forth the entire understanding of the Parties with respect to the
subject matter hereof.  This Agreement may be amended only in writing
signed by both Parties.

    


    c.           Notices:  Any
notice required or permitted to be given hereunder shall be in writing and shall
be mailed or otherwise delivered in person to the Parties at the addresses set
forth above.

    


    d.           Waiver:  Any
waiver by either party of a breach of any provision of this Agreement shall not
operate as or be construed to be a waiver of any other breach of that provision
or of any breach of any other provision of this Agreement.  The
failure of a party to insist upon strict adherence to any term of this
Consulting Agreement on one or more occasions will not be considered a waiver or
deprive that party of the right thereafter to insist upon adherence to that term
of any other term of this Consulting Agreement.

    


    e.           Assignment:  Compensation
under this Agreement is assignable at the sole discretion of the
Consultant.

    


    f.           Severability:  If
any provision of this Agreement is invalid, illegal, or unenforceable, the
balance of this Consulting Agreement shall remain in effect.  If any
provision is inapplicable to any person or circumstance, it shall nevertheless
remain applicable to all other persons and circumstances.  If any
compensation provision is deemed unenforceable or illegal, then in the case of
the delivery of common stock to the Consultant, Consultant shall be entitled to
receive a cash benefit equal to the value of the common stock that would have
been tendered had such a provision not been illegal or
unenforceable.

    


    g.           Arbitration:  Any
dispute or other disagreement arising from or out of this Agreement shall be
submitted to arbitration under the rules of the American Arbitration Association
and the decision of the arbiter(s) shall be enforceable in any court having
jurisdiction thereof.  Arbitration shall occur only in San Diego
County, CA.  The interpretation and the enforcement of this Agreement
shall be governed by California Law as applied to residents of the State of
California relating to contracts executed in and to be performed solely within
the State of California.

    


    h.           Governing
Law:  The subject matter of this Agreement shall be governed by
and construed in accordance with the laws of the State of California (without
reference to its choice of law principles), and to the exclusion of the law of
any other forum, without regard to the jurisdiction in which any action or
special proceeding may be instituted.  EACH PARTY HERETO AGREES TO
SUBMIT TO THE PERSONAL JURISDICTION AND VENUE OF THE STATE AND/OR FEDERAL COURTS
LOCATED IN THE COUNTY OF SAN DIEGO, CALIFORNIA FOR RESOLUTION OF ALL DISPUTES
ARISING OUT OF, IN CONNECTION WITH, OR BY REASON OF THE INTERPRETATION,
CONSTRUCTION, AND ENFORCEMENT OF THIS AGREEMENT, AND HEREBY WAIVES THE CLAIM OR
DEFENSE THEREIN THAT SUCH COURTS CONSTITUTE AN INCONVENIENT FORUM.  AS
A MATERIAL INDUCEMENT FOR THIS AGREEMENT, EACH PARTY SPECIFICALLY WAIVES THE
RIGHT TO TRIAL BY JURY OF ANY ISSUES SO TRIABLE.   If it becomes
necessary for any party to institute legal action to enforce the terms and
conditions of this Agreement, the prevailing party shall be awarded reasonable
attorneys fees, expenses and costs.

    


    i.           Specific
Performance:  The Company and the Consultant shall have the
right to demand specific performance of the terms, and each of them, of this
Agreement.

    


    j.           Execution of the
Agreement:  The Company, the party executing this Agreement on
behalf of the Company, and the Consultant, have the requisite corporate power
and authority to enter into and carry out the terms and conditions of this
Agreement, as well as all transactions contemplated hereunder. All corporate
proceedings have been taken and all corporate authorizations and approvals have
been secured which are necessary to authorize the execution, delivery and
performance by the Company and the Consultant of this Agreement.  This
Agreement has been duly and validly executed and delivered by the Company and
the Consultant and constitutes a valid and binding obligation, enforceable in
accordance with the respective terms herein.  Upon delivery of this
Agreement, this Agreement, and the other agreements and exhibits referred to
herein, will constitute the valid and binding obligations of Company, and will
be enforceable in accordance with their respective terms.  Delivery
may take place via facsimile transmission.

    


    k.           Joint Drafting and Reliance
on Independent Counsel.  This Agreement shall be deemed to have
been drafted jointly by the Parties hereto, and no inference or interpretation
against any one party shall be made solely by virtue of such party allegedly
having been the draftsperson of this Agreement.  The Parties have each
conducted sufficient and appropriate due diligence with respect to the facts and
circumstances surrounding and related to this Agreement.  The Parties
expressly disclaim all reliance upon, and prospectively waive any fraud,
misrepresentation, negligence or other claim based on information supplied by
the other Party, in any way relating to the subject matter of this
Agreement.  Company
was apprised of conflicts of interest between Mark L. Baum, Esq. (“Baum”) and
James B. Panther II and their related controlled entities.  Baum is
also a licensed attorney in the State of California.  Pursuant to the
California Rules of Professional Conduct, Company was advised by Baum to have
independent legal counsel review the Agreement prior to its execution by the
Company.  The Company did in fact take advantage of the advice of
legal counsel other than Baum prior to executing this Agreement.


    


    l.           Acknowledgments and
Assent.  The Parties acknowledge that they have been given at
least ten (10) days to consider this Agreement and that they were advised to
consult with an independent attorney prior to signing this Agreement and that
they have in fact consulted with counsel of their own choosing prior to
executing this Agreement.  The Parties may revoke this Agreement for a
period of three (3) days after signing this Agreement, and the Agreement shall
not be effective or enforceable until the expiration of this three (3) day
revocation period.  The Parties agree that they have read this
Agreement and understand the content herein, and freely and voluntarily assent
to all of the terms herein.

     

     

    
 

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

     

     

    SIGNATURE
PAGE

    


    IN
WITNESS WHEREOF, this Agreement has been executed by the Parties as of the date
first above written.

    


    


    
      	
               SHRINK
      NANOTECHNOLOGIES, INC.

               

               

              /s/
      Mark L. Baum

              _________________________________

              By:  Mark
      L. Baum

                 Its:  CEO

            	
              BCGU,
      LLC

               

               

              /s/
      James B. Panther, II

              ___________________________________

              By:  James
      B. Panther, II

              Its:   Managing
      Director

            


    

    


    


    


    A FACSIMILE COPY OF THIS AGREEMENT
SHALL HAVE THE SAME LEGAL EFFECT AS AN ORIGINAL OF THE SAME.