EXHIBIT
10.1


 


TERMINATION
OF AGREEMENT AND PLAN OF MERGER AND REORGANIZATION


 


This
TERMINATION OF AGREEMENT AND PLAN OF MERGER AND REORGANIZATION, dated as of September 30, 2022 (this “Agreement”),
is entered into by and among by and among the following Parties: Flexible Solutions International Inc., an Alberta, Canada corporation
(“FSI”), FSI Merger Sub I, Inc., a Delaware corporation and a wholly owned subsidiary of FSI (“Merger Sub
I”), FSI Merger Sub II, Inc., a Delaware corporation and a wholly-owned subsidiary of FSI (“Merger Sub II”,
and together with Merger Sub I, the “Merger Subs”), and Lygos, Inc., a Delaware corporation (the “Company”).
Capitalized and other terms used but not defined in this Agreement shall have the respective meanings given to them in the Merger Agreement
(as defined below).


 


RECITALS


 


A.
On April 17, 2022, FSI, Merger Subs, and the Company executed an Agreement and Plan of Merger and Reorganization (as amended by a letter
agreement dated July 24, 2022, the “Merger Agreement”).


 


B.
FSI, Merger Subs, and the Company desire to terminate the Merger Agreement, to abandon the transactions contemplated thereby, and to
be bound by the other provisions set forth below.


 


AGREEMENT


 


NOW,
THEREFORE, in consideration of the foregoing and the representations, warranties and covenants herein contained, and for other good
and valuable consideration, the receipt, adequacy and sufficiency of which are hereby acknowledged, the Parties, intending to be legally
bound, hereby agree as follows:


 


1.
Termination of Merger Agreement. Effective immediately, the Merger Agreement shall be terminated and none of the provisions of
the Merger Agreement shall be of any further force or effect as of such time, including provisions of the Merger Agreement which by their
terms would otherwise have survived the termination of the Merger Agreement. The Parties hereby acknowledge and agree that the Merger
Agreement is terminated pursuant to Section 9.1(a) of the Merger Agreement.


 


2.
Termination of Other Transaction Documents. The Parties acknowledge and agree that the FSI Support Agreement and the Company Stockholder
Support Agreements shall be automatically terminated without further action on the part of the parties thereto and that such agreements
shall not be of any further force or effect.


 




    	 



    	 



    

 


3.
Mutual Release; Covenant Not to Sue.


 


(a)
Each Party, for and on behalf of itself and its Related Parties (as defined below), does hereby unequivocally release and discharge,
and hold harmless, each other Party and any of their respective former, current or future officers, directors, agents, advisors, representatives,
managers, members, partners, shareholders, employees, subsidiaries, financing sources, affiliates (including, without limitation, controlling
persons), officers, directors, members, managers and employees of affiliates (including without limitation, Contributing Stockholders),
principals, and any heirs, executors, administrators, successors or assigns of any said person or entity (the “Related Parties”),
from any and all past, present, direct, indirect, and derivative liabilities, actions, causes of action, cases, claims, suits, debts,
dues, sums of money, attorney’s fees, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements,
promises, variances, trespasses, injuries, harms, damages, judgments, remedies, extents, executions, demands, liens and damages of every
kind and nature, in law, equity or otherwise, asserted or that could have been asserted, under federal or state statute, or common law,
known or unknown, suspected or unsuspected, foreseen or unforeseen, anticipated or unanticipated, whether or not concealed or hidden,
from the beginning of time until the date of execution of this Agreement (collectively, “Actions”), that in any way
arises from or out of, are based upon, or are in connection with or relate to (i) the Merger Agreement, the FSI Support Agreement,
the Company Stockholder Support Agreements and the other agreements and documents contemplated hereby or thereby (collectively, the “Transaction
Documents”), (ii) any breach, non-performance, action or failure to act under the Transaction Documents and (iii)
the proposed Merger, including the events leading to the abandonment of the Merger and the termination of the Merger Agreement or any
other Transaction Documents (collectively, the “Released Claims”); provided, however, that no Party
shall be released from any breach, non-performance, action or failure to act under this Agreement or any commercial agreement or contract
between or among any of them or their Affiliates other than the Transaction Documents or this Agreement.


 


(b)
It is understood and agreed that, except as provided in the proviso to Section 3(a), Section 3(a) is a full and final release
covering all known as well as unknown or unanticipated debts, claims or damages of the Parties and their Related Parties relating to
or arising out of the Transaction Documents. Therefore, each of the Parties expressly waives any rights it may have under any statute
or common law principle under which a general release does not extend to claims which such Party does not know or suspect to exist in
its favor at the time of executing the release, which if known by such Party must have affected such Party’s settlement with the
other. In connection with such waiver and relinquishment, the Parties acknowledge that they or their attorneys or agents may hereafter
discover claims or facts in addition to or different from those which they now know or believe to exist with respect to the Released
Claims, but that it is their intention hereby fully, finally and forever to settle and release all of the Released Claims. In furtherance
of this intention, the releases herein given shall be and remain in effect as full and complete mutual releases with regard to the Released
Claims notwithstanding the discovery or existence of any such additional or different claim or fact. In addition, the Parties and their
Related Parties expressly waive and release any and all rights and benefits under Section 1542 of the California Civil Code (or any analogous
law), which reads as follows: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED
HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”


 




    	 



    	 



    

 


(c)
Except as provided in the proviso to Section 3(a), each Party, on behalf of itself and its Related Parties, hereby covenants to
each other Party and their respective Related Parties not to, with respect to any Released Claim, directly or indirectly encourage or
solicit or voluntarily assist or participate in any way in the filing, reporting or prosecution by such Party or its Related Parties
or any third party of a suit, arbitration, mediation, or claim (including a third party or derivative claim) against any other Party
and/or its Related Parties relating to any Released Claim. The covenants contained in this Section 3 shall survive this Agreement
indefinitely regardless of any statute of limitations.


 


4.
Disclosure. FSI agrees to file with the Securities and Exchange Commission, as promptly as practicable no later than October 3,
2022 (and in any event prior to 11:00 a.m. New York City time) (a) a Current Report on Form 8-K in the form attached to this Agreement
as Exhibit A hereto and (b) a Request for Withdrawal of Registration Statement on Form S-4 in the form attached to this Agreement
as Exhibit B hereto.


 


5.
Non-Disparagement. Except as required by applicable Laws or any Order, each Party agrees that such Party shall not, directly or
indirectly (through such Party’s Related Parties or otherwise), make, publish or cause to be made or published any statement or
remark concerning the subject matter of the Transaction Documents, the participation or involvement of the Parties in the transactions
contemplated by the Transaction Documents or the reasons for or any of the events or circumstances surrounding the termination of the
transactions contemplated by the Merger Agreement that could reasonably be understood as disparaging the business or conduct of the other
Parties or their respective Related Parties or as intended to harm the business or reputation of the other Parties or their respective
Related Parties.


 


6.
Confidentiality. Subject to Section 4, the Parties agree that, for a period of three (3) years after the date hereof, such
Parties shall not, at any time disclose or permit the disclosure by it or its affiliates of, any information (written or oral and regardless
of when furnished to or received by such Party) relating to the Transaction Documents, or the participation or involvement of the Parties
in the transactions contemplated by the Transaction Documents (the “Relevant Information”); provided, however,
that the restriction contained in this Section 6 shall not apply to (a) any information in the public domain other than
by reason of unauthorized disclosure by the party hereto agreeing to maintain such information in confidence, (b) any information
that was received on a non-confidential basis from any third-party source, provided that such source is not known to the disclosing Party
to be subject to a contractual, legal, fiduciary or other obligation of confidentiality with respect to such information or (c)
any information that has been independently acquired or developed by the applicable Party without use of or reference to any confidential
information. Notwithstanding the foregoing, each Party may disclose Relevant Information (i) if authorized to do so by the other
Parties, which authorization shall not be unreasonably withheld, conditioned or delayed; (ii) if authorized or required to do
so pursuant to applicable Law, Order, by a Governmental Authority or by the rules of any stock exchange or other self-regulatory organization;
and (iii) to its Representatives who needed or need to know such Relevant Information in connection with the involvement of the
disclosing Party in the transactions contemplated by the Transaction Documents; provided that the disclosing Party shall be responsible
for any actions taken by its Representatives that would be deemed a breach of this Agreement if the disclosing Party had taken such actions.


 




    	 



    	 



    

 


7.
Representations of the Parties. Each Party, on behalf of itself and its Related Parties, represents and warrants to the other
Parties as follows:


 


(a)
This Agreement has been duly and validly executed and delivered by such Party and (assuming due authorization, execution and delivery
by the other Parties), constitutes the legal, valid and binding obligations of such Party, enforceable against such Party in accordance
with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, or other similar Laws relating to creditors’
rights and general principles of equity.


 


(b)
The execution and delivery of this Agreement by such Party does not, and the performance of this Agreement by such Party, will not, (i)
conflict with, or result in any violation or breach of, any provision of the charter, bylaws or other organizational documents of such
Party; (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both)
a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under,
require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition
of any Encumbrance on such Party’s assets under, any of the terms, conditions or provisions of any agreement, instrument or obligation
to which such Party is a party or by which it or any of its properties or assets may be bound; or (iii) conflict with or violate any
Law or Order applicable to such Party or any of its properties or assets.


 


8.
Notices. Any notice or other communication required or permitted to be delivered to any Party under this Agreement shall be in
writing and shall be deemed properly delivered, given and received when delivered by hand, by registered mail, by courier or express
delivery service or by email address or as set forth in Section 10.9 of the Merger Agreement (or to such other email address as
such Party shall have specified in a written notice given to the other parties hereto as required by such Section 10.9).


 


9.
Waiver; Other Remedies; Specific Performance. No failure on the part of any Party to exercise any power, right, privilege or remedy
under this Agreement, and no delay on the part of any Party in exercising any power, right, privilege or remedy under this Agreement,
shall operate as a waiver of such power, right, privilege or remedy; and no single or partial exercise of any such power, right, privilege
or remedy shall preclude any other or further exercise thereof or of any other power, right, privilege or remedy. No Party shall be deemed
to have waived any claim arising out of this Agreement, or any power, right, privilege or remedy under this Agreement, unless the waiver
of such claim, power, right, privilege or remedy is expressly set forth in a written instrument duly executed and delivered on behalf
of such Party; and any such waiver shall not be applicable or have any effect except in the specific instance in which it is given. The
Parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed
in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the Parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof in any court
of the United States or any state having jurisdiction, this being in addition to any other remedy to which they are entitled at Law or
in equity.


 


10.
Amendment. This Agreement may be amended with the approval of the respective Boards of Directors of the Company and FSI at any
time. This Agreement may not be amended except by an instrument in writing signed on behalf of each of the Company and FSI.


 




    	 



    	 



    

 


11.
Severability. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall
not affect the validity or enforceability of the remaining terms and provisions of this Agreement or the validity or enforceability of
the offending term or provision in any other situation or in any other jurisdiction. If a final judgment of a court of competent jurisdiction
declares that any term or provision of this Agreement is invalid or unenforceable, the Parties hereto agree that the court making such
determination shall have the power to limit such term or provision, to delete specific words or phrases or to replace such term or provision
with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable
term or provision, and this Agreement shall be valid and enforceable as so modified. In the event such court does not exercise the power
granted to it in the prior sentence, the Parties hereto agree to replace such invalid or unenforceable term or provision with a valid
and enforceable term or provision that will achieve, to the extent possible, the economic, business and other purposes of such invalid
or unenforceable term or provision.


 


12.
Governing Law; Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware
applicable to contracts executed in and to be performed in that State. All legal actions and proceedings arising out of or relating to
this Agreement shall be heard and determined exclusively in any Delaware Chancery Court; provided, that if jurisdiction is not then available
in the Delaware Chancery Court, then any such legal action or proceeding may be brought in any federal court located in the State of
Delaware or any other Delaware state court. The Parties hereto hereby (a) irrevocably submit to the exclusive jurisdiction of the aforesaid
courts for themselves and with respect to their respective properties for the purpose of any such action or proceeding arising out of
or relating to this Agreement brought by any Party hereto, and (b) agree not to commence any action or proceeding relating thereto except
in the courts described above in Delaware, other than action or proceeding in any court of competent jurisdiction to enforce any judgment,
decree or award rendered by any such court in Delaware as described herein. Each of the Parties further agrees that notice as provided
herein shall constitute sufficient service of process and the Parties further waive any argument that such service is insufficient. Each
of the Parties hereby irrevocably and unconditionally waives, and agrees not to assert, by way of motion or as a defense, counterclaim
or otherwise, in any action or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby, (x) any
claim that it is not personally subject to the jurisdiction of the courts in Delaware as described herein for any reason, (y) that it
or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through
service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and
(z) that (i) the action or proceeding in any such court is brought in an inconvenient forum, (ii) the venue of such action or proceeding
is improper or (iii) this Agreement, or the subject matter hereof, may not be enforced in or by such courts.


 


13.
WAIVER OF JURY TRIAL. EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY
TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH
PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR
THE TRANSACTIONS CONTEMPLATED HEREBY.


 




    	 



    	 



    

 


14.
No Assignment; Binding Effect. Neither this Agreement nor any right, interest or obligation hereunder may be assigned by any Party
hereto without the prior written consent of the other Parties hereto and any attempt to do so shall be void, except for assignments and
transfers by operation of any laws. Subject to the preceding sentence and Section 15 hereof, this Agreement is binding upon, inures
to the benefit of and is enforceable by the Parties and their respective successors and assigns.


 


15.
Third Party Beneficiaries. Each Party acknowledges and agrees that each Party’s Related Parties are express third party
beneficiaries of the releases of such Related Parties and covenants not to sue such Related Parties contained in Section 3 of
this Agreement and are entitled to enforce rights under such section to the same extent that such Related Parties could enforce such
rights if they were a party to this Agreement. Except as provided in the preceding sentence, there are no third party beneficiaries to
this Agreement.


 


16. Other
Agreements; Counterparts. This Agreement constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, among or between any of the Parties with respect to the subject matter hereof and thereof; provided, however,
that the Confidentiality Agreement shall not be superseded and shall remain in full force and effect in accordance with its terms.
This Agreement may be executed in several counterparts, each of which shall be deemed an original and all of which shall constitute
one and the same instrument. The exchange of a fully executed Agreement (in counterparts or otherwise) by all Parties by facsimile
or electronic transmission via “.pdf” shall be sufficient to bind the Parties to the terms and conditions of this
Agreement.


 


17.
Allocation of Expenses. In accordance with Section 9.3 of the Merger Agreement, each Party shall pay its own expenses incurred
in connection with the Merger Agreement, this Agreement and the transactions contemplated by the Merger Agreement, including all fees
and expenses of counsel, accountants, investment bankers, financial advisors, financing sources, experts and consultants to a Party hereto
or any of its Affiliates, incurred by a Party or on its behalf in connection with or related to the authorization, preparation, negotiation,
execution or performance of the Merger Agreement, this Agreement or any related agreement and all other matters related to the consummation
of the transactions contemplated by the Merger Agreement, this Agreement or any related agreement.


 


18.
General Provisions; Headings. The provisions of Section 10 of the Merger Agreement, to the extent not already set forth
in this Agreement, are incorporated herein by reference and form a part of this Agreement as if set forth herein, mutatis mutandis.
The headings used in this Agreement have been inserted for convenience of reference only and do not define or limit the provisions hereof.


 




    	 



    	 



    

 


IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered as of the date first above written.


 


	 	FLEXIBLE
    SOLUTIONS INTERNATIONAL INC.
	 	 	 
	 	By:	/s/
    Daniel B. O’Brien
	 	Name:	Daniel
    B. O’Brien
	 	Title:	Chief
    Executive Officer
	 	 	 
	 	FSI
    MERGER SUB i, INC.
	 	 	 
	 	By:	/s/
    Daniel B. O’Brien
	 	Name:	Daniel
    B. O’Brien
	 	Title:	Chief
    Executive Officer
	 	 	 
	 	FSI
    MERGER SUB ii, INC.
	 	 	 
	 	By:	/s/
    Daniel B. O’Brien
	 	Name:	Daniel
    B. O’Brien
	 	Title:	Chief
    Executive Officer
	 	 	 
	 	LYGOS,
    INC.
	 	 	 
	 	By:	/s/
    Eric Steen
	 	Name:	Eric
    Steen
	 	Title:	Chief
    Executive Officer


 




    	 



    	 



    

 


EXHIBIT
A


 


[FSI
Current Report on Form 8-K]


 







    	 



    	 



    

 


EXHIBIT
B


 


[Form
of Request for Withdrawal of Registration Statement on Form S-4]