ex10-8.htm


    
      

      

    

    Exhibit
10.8


    
      
        

      



    EXCLUSIVE
LICENSE AGREEMENT FOR

    WICKING
CONDENSATE EVAPORATOR AT AC CONDENSER

    


    
      	
               

            	
              
                U.C.
      Case No.:  2008-399

              

            


    

     

    
      
        

      

    

    


    This
exclusive license agreement (“Agreement”) is effective August 1, 2009
(“Effective Date”), by and between (a) The Regents of the University of
California ("The Regents"), a California corporation, having its statewide
administrative offices at 1111 Franklin Street, 12th Floor, Oakland, California
94607-5200, acting through its Davis Campus Technology Transfer Services, at the
University of California, Davis, 1850 Research Park Drive, Suite 100, Davis, CA
95618-6134  and (b) Octus Energy, Inc. ("Licensee"), a Nevada
corporation having a principal place of business at 803 Second Street, Suite
303, Davis, California 95616.  The Regents and Licensee will be
referred to herein, on occasion, individually as “Party” or collectively as
“Parties”.

     

     

    RECITALS

     

    Whereas,
The Regents has an assignment of title to the invention entitled “Wicking
Condensate Evaporator at AC Condenser” (the "Invention"), as described in The
Regents' Case No. 2008-399, invented by Richard C. Bourne, employed by the
University of California, Davis when the invention was made, and to the patents
and patent applications under Patent Rights as defined below, which are directed
to the Invention;

    


    Whereas,
The Regents and Licensee entered into a Confidentiality Agreement (UC Agreement
Control No. 2009-20-0484) effective February 25, 2009 (“Confidentiality
Agreement”), for the purpose of allowing Licensee to evaluate its interest in a
license agreement covering the Invention;

    


    Whereas,
The Regents and Licensee entered into a Letter Agreement (UC Agreement Control
No. 2009-30-0505) effective March 10, 2009 (“Letter Agreement”), for the purpose
of granting Licensee an exclusive right to negotiate an exclusive license under
Patent Rights;

    


    Whereas,
Licensee has provided The Regents with a commercialization plan for the
Invention and business strategy in order to allow The Regents to evaluate
Licensee’s capabilities;

    


    
      
        
        

      

      
        1

        
          

        

      

      
        
        

      

    

     

    Whereas,
Licensee is a “small entity” as defined in 37 CFR 1.27;

    


    Whereas,
The Regents and Licensee desire to have the Invention developed and
commercialized so that products resulting therefrom may be available for public
use and benefit; and

    


    Whereas,
Licensee desires to acquire, and The Regents desires to grant, a license under
Patent Rights to manufacture, use, sell, offer for sale and import products,
methods and services in accordance with the terms herein.

    


    
      	
               
      

            	
              Now,
      therefore, the Parties agree as
follows:

            


    

     

     

    1.           DEFINITIONS

     

    
      	
              1.1

            	
              "Affiliate"
      of Licensee means any entity that, directly or indirectly, Controls
      Licensee, is Controlled by Licensee, or is under common Control with
      Licensee. "Control" means (i) having the actual, present capacity to elect
      a majority of the directors of such entity, (ii) having the power to
      direct at least forty percent (40%) of the voting rights entitled to elect
      directors of such entity, or (iii) in any country where the local law will
      not permit foreign equity participation of a majority of the outstanding
      stock or voting rights, the ownership or control, directly or indirectly,
      of the maximum percentage of such outstanding stock or voting rights
      permitted by local law.

            


    

    


    1.2           "Licensed
Field of Use" means all uses.

    


    
      	
              1.3

            	
              "Licensed
      Method" means any process or method the use or practice of which, but for
      the license granted pursuant to this Agreement, (a) would infringe, or
      contribute to or induce the infringement of, a Valid Claim of any issued,
      unexpired patent under  Patent Rights, or (b) is covered by a
      claim  in a pending patent application under Patent
      Rights.  As used in subsection (b) of this Paragraph 1.3,
      “covered by a claim in a pending patent application” means that such use
      or practice would, but for the license granted pursuant to this Agreement,
      constitute infringement, or contributory infringement, or inducement of
      infringement of such claim if such claim were
  issued.

            


    

    


    
      	
              1.4

            	
              "Licensed
      Product" means any product, material, kit, or other article of manufacture
      or composition of matter, the manufacture, use, Sale, offer for Sale, or
      import of which (a) would require the performance of Licensed Methods, or
      (b) but for the license granted pursuant to this Agreement, would
      infringe, or contribute to or induce the infringement of a Valid Claim of
      any issued, unexpired patent under Patent Rights, or (c) is covered by a
      claim in a pending patent application under Patent Rights.  As
      used in subsection (c) above of this Paragraph 1.4, “covered by a claim in
      a pending patent application” means that such manufacture, use, Sale,
      offer for Sale or import would, but for the license granted pursuant to
      this Agreement, constitute infringement, or contributory infringement, or
      inducement of infringement of such claim if such claim were
      issued.

            


    

    


    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

       

    

    
      	
              1.5

            	
              “Licensed
      Service” means a service provided using Licensed Products or Licensed
      Methods, including without limitation any such service provided in the
      form of contract research or other research performed by Licensee on
      behalf of a third party.

            


    

    


    
      	
              1.6

            	
              "Licensed
      Territory" means United States of America and its territories and
      possessions, and any foreign countries where Patent Rights
      exist.

            


    

    


    
      	
              1.7

            	
              "Net
      Sales" means the gross invoice price charged by, and the value of non-cash
      consideration owed to, Licensee or a Sublicensee for Sales
      of  Licensed Products and  Licensed Services, less the
      sum of the following actual and customary deductions where
      applicable:  cash, trade or quantity discounts; sales, use,
      tariff, import/export duties or other excise taxes when included in gross
      sales, but not value-added taxes assessed or income taxes derived from
      such sales; transportation charges; and allowances or credits to customers
      because of rejections or returns.  For purposes of calculating
      Net Sales, a Sale to a Sublicensee for end use by the Sublicensee will be
      treated as a Sale at Licensee’s list
price.

            


    

    


    
      	
              1.8

            	
              "Patent
      Rights" means The Regents' rights in the claims of U.S. Patent
      Application, Serial Number 61/154,720, entitled "Wicking Condensate
      Evaporator at AC Condenser" filed on February 23, 2009,  by Dr.
      Richard C. Bourne and assigned to
      The Regents; continuing applications thereof including divisions,
      substitutions, extensions and continuation-in-part applications (only to
      the extent, however, that claims in the continuation-in-part applications
      are entitled to the priority filing date of the above-listed parent patent
      application); any patents issuing on said applications or continuing
      applications including reissues; and any corresponding foreign patents or
      applications.

            


    

    


    
      	
              1.9

            	
              "Sale"
      means, for Licensed Products and Licensed Services, the act of selling,
      leasing or otherwise transferring, providing, or furnishing such product
      or service for any consideration.  Correspondingly, "Sell" means
      to make or cause to be made a Sale, and "Sold" means to have made or
      caused to be made a Sale.

            


    

    


    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

       

    

    
      	
              1.10

            	
              “Sublicense”
      means a sublicense under this
Agreement.

            


    

    


    
      	
              1.11

            	
              “Sublicensee”
      means a sublicensee under this
Agreement.

            


    

    


    
      	
              1.12

            	
              “Sublicense
      Agreement” means a sublicense agreement under this
    Agreement.

            


    

    


    
      	
              1.13

            	
              “Valid
      Claim” means a claim of a patent in any country where the claim (a) has
      not expired and (b) has not been held to be invalid by a final judgment of
      a court of competent jurisdiction from which no appeal can be or is
      taken.

            


    

     

     

    2.           GRANT

     

    
      	
              2.1

            	
              Subject
      to the limitations set forth in this Agreement, including without
      limitation the rights reserved in Paragraph 2.2, The Regents hereby grants
      to Licensee an exclusive license under Patent Rights, in the Licensed
      Field of Use in the Licensed Territory, to make, use, offer for Sale,
      import, and Sell Licensed Products and Licensed Services, and to practice
      Licensed Methods.

            


    

    


    
      	
              2.2

            	
              The
      Regents reserves the right to do any one or more of the
      following:

            


    

    


    
      	
               
      

            	
              (a)

            	
              publish
      any technical data resulting from research performed by The Regents
      relating to the Invention;

            


    

    


    
      	
               
      

            	
              (b)

            	
              make
      and use the Invention and associated technology for educational and
      research purposes;

            


    

    


    
      	
               
      

            	
              (c)

            	
              practice
      Patent Rights in order to make and use products, and to practice methods,
      for educational and research purposes;
and

            


    

    


    
      	
               
      

            	
              (d)

            	
              allow
      other educational and non-profit institutions to do any one or more of the
      activities of Subparagraphs 2.2 (a), (b), and (c) above, for educational
      and research purposes.

            


    

    


    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

       

    

    
      	
              2.3

            	
              Licensee
      will promptly inform The Regents of any change in Licensee’s small entity
      status, as defined in 37 CFR 1.27, or of any Sublicense to an entity which
      does not have small entity status, as defined in 37 CFR
    1.27.

            


    

    


    
      	
              2.4

            	
              This
      Agreement is subject to rights of, and obligations owed to, the U.S.
      Government, if any.

            


    

    


     

    3.           SUBLICENSES

     

    
      	
              3.1

            	
              The
      Regents hereby further grants to Licensee the right to grant to Affiliates
      and to third parties a Sublicense under the rights granted to Licensee
      hereunder, provided that, Licensee has exclusive rights under this
      Agreement at the time of the grant of the Sublicense.  Every
      Sublicense will include:

            


    

    


    
      	
               
      

            	
              (a)

            	
              a
      statement setting forth the date upon which Licensee's exclusive license
      rights hereunder will expire;

            


    

    


    
      	
               
      

            	
              (b)

            	
              a
      provision requiring the performance of all the obligations due to The
      Regents (and, if applicable, the United States Government) under this
      Agreement other than those rights and obligations specified in Article 4
      (License Issue Fee/Maintenance Fees) and Paragraph 5.3 (Minimum Annual
      Royalty);

            


    

    


    
      	
               
      

            	
              (c)

            	
              a
      provision requiring payment of royalties to Licensee in an amount
      sufficient to permit Licensee to meet its royalty obligations to The
      Regents at the rates and bases set forth in this
  Agreement;

            


    

    


    
      	
               
      

            	
              (d)

            	
              a
      prohibition on the grant of further Sublicenses;
  and

            


    

    


    
      	
               
      

            	
              (e)

            	
              the
      same provision for indemnification of The Regents as has been provided for
      in this Agreement.

            


    

    


    
      	
              3.2

            	
              Licensee
      will pay to The Regents twenty-five percent (25%) of any cash
      consideration, and of the cash equivalent of all other consideration,
      which is due to Licensee for the grant of rights under a Sublicense,
      excluding payments due to Licensee as a royalty based on Sales by the
      Sublicensee.  Payment owed to The Regents under this Paragraph
      3.2 is in addition to payments owed by Licensee to The Regents as Earned
      Royalties under Paragraph 5.1 below based on Sales by the
      Sublicensee.

            


    

    


    
      
        
        

      

      
        5

        
          

        

      

      
        
        

      

       

    

    
      	
              3.3

            	
              Licensee
      will notify The Regents of each Sublicense granted hereunder and furnish
      to The Regents a copy of each such Sublicense Agreement and any amendments
      thereof.

            


    

    


    
      	
              3.4

            	
              Affiliates
      of Licensee will have no licenses under Patent Rights except as granted by
      Sublicense pursuant to this
Agreement.

            


    

    


    
      	
              3.5

            	
              For
      the purposes of this Agreement, the operations of all Sublicensees will be
      deemed to be the operations of Licensee, for which Licensee will be
      responsible.

            


    

    


    
      	
              3.6

            	
              Licensee
      will collect and guarantee payment of all monies and other consideration
      due The Regents from Sublicensees, and deliver all reports due The Regents
      and received from Sublicensees.

            


    

    


    
      	
              3.7

            	
              Upon
      termination of this Agreement for any reason, all Sublicenses that are
      granted by Licensee pursuant to this Agreement where the Sublicensee is in
      compliance with its Sublicense Agreement as of the date of such
      termination will remain in effect and will be assigned to The Regents,
      except that The Regents will not be bound to perform any duties or
      obligations set forth in any Sublicenses that extend beyond the duties and
      obligations of The Regents set forth in this
  Agreement.

            


    

    


     

    4.           LICENSE
ISSUE FEE/MAINTENANCE FEES

     

    
      	
              4.1

            	
              Licensee
      will pay to The Regents a non-creditable, non-refundable license issue fee
      (“License Issue Fee”) of two thousand dollars ($2,000.00) due upon signing
      of this Agreement.  The Regents acknowledge the receipt of two
      thousand dollars ($2,000.00) paid by Licensee under the Letter Agreement
      which sum is creditable towards the License Issue Fee due under this
      Paragraph 4.1.  The License Issue Fee is non-refundable and not
      an advance against royalties or other payments due under this
      Agreement.

            


    

    


    
      	
              4.2

            	
              Licensee
      will pay to The Regents a license maintenance fee of two thousand dollars
      ($2,000.00) on the one-year anniversary of the Effective Date and on each
      anniversary of the Effective Date until the year following the year of the
      first Sale of a Licensed Product or Licensed
  Service.

            


    

    


    
      
        
        

      

      
        6

        
          

        

      

      
        
        

      

    

     

    5.           ROYALTIES

     

    


    
      	
              5.1

            	
              Licensee
      will pay to The Regents earned royalties (“Earned Royalties”) as
      follows:

            


    

    


    
      	
               
      

            	
              (a)

            	
              Subject
      to Subparagraphs 5.1(b), 5.1(c), 5.1(d) and 5.1 (e) below, Licensee will
      pay Earned Royalties at the rate of one and one-half percent (11⁄2%) of the
      Net Sales of all Licensed Products and Licensed
  Services.

            


    

    


    
      	
               
      

            	
              (b)

            	
              In
      the event a Licensed Product is Sold by Licensee or a Sublicensee as a
      component (“Component”) of a combination product (“Combination Product”),
      and the Component is separately Sold by Licensee or a Sublicensee with a
      separate list price (“Component List Price”), then the Earned Royalty due
      under this Paragraph 5.1 for Net Sales of the Combination Product will be
      calculated using the Component List Price rather than using the gross
      invoice price charged for the Combination
  Product.

            


    

    


    
      	
               
      

            	
              (c)

            	
              In
      the event a Licensed Product is Sold by Licensee or a Sublicensee as a
      Component of a Combination Product, and the Component is not separately
      Sold by Licensee or a Sublicensee but was previously separately Sold by
      Licensee or a Sublicensee, then the Earned Royalty due under this
      Paragraph 5.1 for Net Sales of the Combination Product will be calculated
      using the Component List Price as previously listed, as multiplied by an
      inflation adjustment factor ("Inflation Adjustment Factor"), rather than
      using the gross invoice price charged for the Combination
      Product.  The Inflation Adjustment Factor will be the ratio of
      the Consumer Price Index ("CPI") at the time of such Net Sales, as
      compared to the CPI at the end of the calendar year in which such
      Component was most recently previously Sold by Licensee or a
      Sublicensee.  In such event, Licensee will at the time of the
      royalty report under Paragraph 7.4 provide The Regents in writing with the
      Inflation Adjustment Factor used.

            


    

    


    
      	
               
      

            	
              (d)

            	
              In
      the event a Licensed Product is Sold by Licensee or a Sublicensee as a
      Component of a Combination Product, and the Component is not, and has not
      previously been, separately Sold by Licensee or a Sublicensee, then the
      Earned Royalty due under this Paragraph 5.1 for Net Sales of the
      Combination Product will be calculated pro rata based on the relative cost
      of manufacture of the Component as compared to the cost of manufacture of
      the Combination Product.  In such event, Licensee will at the
      time of the royalty report under Paragraph 7.4 provide The Regents with
      information in writing on cost of manufacture sufficient to justify the
      calculation under this Subparagraph
5.1(d).

            


    

    


    
      
        
        

      

      
        7

        
          

        

      

      
        
        

      

       

    

    
      	
               
      

            	
              (e)

            	
              In
      the event a Licensed Service is Sold by Licensee or a Sublicensee as part
      of a Sale of services ("Combination Services"), where the Combination
      Services include both Licensed Services and other services, and where such
      Sale of Combination Services is invoiced as a single invoice without
      itemization as to the Licensed Services part of the Combination Services,
      then Licensee will inform The Regents in writing and the Parties will
      agree to an appropriate pro-rata apportionment formula for such Sales of
      Combination Services.

            


    

    


    
      	
              5.2

            	
              Earned
      Royalties accruing to The Regents will be paid to The Regents quarterly
      within sixty (60) days after the end of each calendar quarter as follows:
      May 31 (for first quarter); August 31 (for second quarter), November 30
      (for third quarter), and February 28 (for fourth
  quarter).

            


    

    


    
      	
              5.3

            	
              Beginning
      in the calendar year after the first Sale of a Licensed Product or
      Licensed Service, and in each succeeding calendar year thereafter,
      Licensee will pay to The Regents a minimum annual royalty (“Minimum Annual
      Royalty”) of three thousand dollars ($3,000.00) for the life of this
      Agreement.  The Minimum Annual Royalty will be paid to The
      Regents by February 28 of each year and will be credited against the
      Earned Royalties due and owing for the calendar year for which the Minimum
      Annual Royalty is made.

            


    

    


    
      	
              5.4

            	
              All
      payments due The Regents will be payable in United States
      dollars.  When Licensed Products and Licensed Services, are Sold
      for monies other than United States dollars, Earned Royalties will first
      be determined in the foreign currency of the country in which the Sale was
      made and then converted into equivalent United States
      dollars.  The exchange rate will be that rate quoted in the
      Wall Street
      Journal on the last business day of the reporting
      period.

            


    

    


    
      
        
        

      

      
        8

        
          

        

      

      
        
        

      

       

    

    
      	
              5.5

            	
              Payments
      due for Sales occurring in any country outside the United States will not
      be reduced by any taxes, fees, or other charges imposed by the government
      of such country on the remittance of royalty income.  Licensee
      will also be responsible for all bank transfer
  charges.

            


    

    


    
      	
              5.6

            	
              Licensee
      will make all payments under this Agreement either by check or electronic
      transfer, payable to "The Regents of the University of California" and
      Licensee will forward such payments to The Regents at the address shown in
      Paragraph 23.1 below.

            


    

    


    
      	
              5.7

            	
              If
      any patent or patent application, or any claim thereof, included within
      Patent Rights expires or is held invalid in a final decision by a court of
      competent jurisdiction and last resort and from which no appeal has been
      or can be taken, all obligation to pay Earned Royalties based on such
      patent, patent application or claim, or any claims patentably indistinct
      therefrom will cease as of the date of such expiration or final
      decision.  Licensee will not, however, be relieved from paying
      any Earned Royalties that accrued before such expiration or decision or
      that are based on another valid patent or claim not expired or involved in
      such decision.

            


    

    


     

    
      6.    DILIGENCE

    

     

    
      	
              6.1

            	
              Licensee,
      upon execution of this Agreement, will diligently proceed with the
      development, manufacture, and Sale of Licensed Products, Licensed
      Services, and Licensed Methods, and will diligently market them in
      quantities sufficient to meet the market
demand.

            


    

    


    
      	
              6.2

            	
              In
      addition to its obligations under Paragraph 6.1, Licensee specifically
      commits to achieving the following objectives and milestones in its
      activities under this Agreement:

            


    

    


    
      	
               
      

            	
              (a)

            	
              Milestone
      #1: Funding of Licensee:  $250,000.00 by December 31,
      2010;

            


    

    


    
      	
               
      

            	
              (b)

            	
              Milestone
      #2:  Manufacturing of Licensed Product: begins (including by a
      third party on behalf of Licensee) by May 31,
  2010;

            


    

    


    
      
        
        

      

      
        9

        
          

        

      

      
        
        

      

       

    

    
      	
               
      

            	
              (c)

            	
              Milestone
      #3:  First Sales of Licensed Product or Licensed Services: by
      August 31, 2010; and

            


    

    


    
      	
               
      

            	
              (d)

            	
              Milestone
      #4:  1,000 units of Licensed Product Sold: by August 31,
      2011.

            


    

    


    
      	
              6.3

            	
              If
      Licensee is unable to meet any of its diligence obligations set forth in
      Paragraphs 6.1 and 6.2, then The Regents will so notify Licensee of
      failure to perform. Licensee will have the right and option to extend the
      target date of any such diligence obligation for a period of six (6)
      months upon the payment of five thousand dollars ($5000) within thirty
      (30) days of the date to be extended for each such extension option
      exercised by Licensee.  Licensee may further extend the target
      date of any diligence obligation for an additional six (6) months upon
      payment of an additional five thousand dollars
      ($5000).  Additional extensions may be granted only by mutual
      written agreement of the Parties.  These payments are in
      addition to the Minimum Annual Royalty payments specified in Paragraph
      5.3.  Should Licensee opt not to extend the obligation or fail
      to meet it by the extended target date, then The Regents will have the
      right and option either to terminate this Agreement or to reduce
      Licensee's exclusive license to a non-exclusive license.  This
      right, if exercised by The Regents, supersedes the rights granted in
      Article 2.

            


    

    


    
      	
              6.4

            	
              To
      exercise either the right to terminate this Agreement or to reduce the
      license to a non-exclusive license for lack of diligence under Paragraph
      6.1 or 6.2, The Regents will give Licensee written notice of the
      deficiency.  Licensee thereafter has sixty (60) days to cure the
      deficiency or to request arbitration.  If The Regents has not
      received satisfactory tangible evidence that the deficiency has been cured
      by the end of the sixty (60)-day period, then The Regents may, at its
      option, either terminate the Agreement or reduce Licensee's exclusive
      license to a non-exclusive license by giving written notice to
      Licensee.  These notices will be subject to Article 22
      (Notices).

            


    

    


     

    7.           PROGRESS
AND ROYALTY REPORTS

     

    
      	
              7.1

            	
              For
      the period beginning January 10, 2010, within sixty (60) days of each
      subsequent June 30 and December 31, Licensee will submit to The Regents a
      semi-annual progress report covering Licensee's activities related to the
      development and testing of all Licensed Products, Licensed Services and
      Licensed Methods and the obtaining of necessary governmental approvals, if
      any, for marketing in the United States.  These progress reports
      will be made for all development activities until the first Sale occurs in
      the United States.

            


    

    


    
      
        
        

      

      
        10

        
          

        

      

      
        
        

      

       

    

    
      	
              7.2

            	
              Each
      progress report will be a sufficiently detailed summary of activities of
      Licensee and any Sublicensees so that The Regents may evaluate and
      determine Licensee’s progress in development of Licensed Products,
      Licensed Services, and Licensed Methods, and in meeting its diligence
      obligations under Article 6, and will include (but not be limited to) the
      following: summary of work completed and in progress; current schedule of
      anticipated events and milestones, including diligence milestones under
      Paragraph 6.2; anticipated market introduction dates for the Licensed
      Territory; and Sublicensees’ activities during the reporting
      period.

            


    

    


    
      	
              7.3

            	
              In
      Licensee’s progress report immediately subsequent to the first Sale by
      Licensee or a Sublicensee of Licensed Products or Licensed Services,
      Licensee will report the date of such first
  Sale.

            


    

     

    
      	
              7.4

            	
              After
      the first Sale of a Licensed Product or Licensed Service, Licensee will
      make quarterly royalty reports to The Regents within sixty (60) days after
      the quarters ending March 31, June 30, September 30, and December 31, of
      each year.  Each such royalty report will include at least the
      following:

            


    

    


    
      	
               
      

            	
              (a)

            	
              The
      number of Licensed Products manufactured and the number of Licensed
      Products and Licensed Services Sold, and if applicable, indicating which
      Licensed Products and Licensed Services are Combination Products and
      Combination Services;

            


    

    


    
      	
               
      

            	
              (b)

            	
              Gross
      revenue from Sale of Licensed Products and Licensed
    Services;

            


    

    


    
      	
               
      

            	
              (c)

            	
              Net
      Sales pursuant to Paragraph 1.7;

            


    

    


    
      	
               
      

            	
              (d)

            	
              Total
      Earned Royalties due The Regents;
and

            


    

    


    
      	
               
      

            	
              (e)

            	
              Names
      and addresses of any new Sublicensees along with a summary of the material
      terms of each new Sublicense Agreement entered into during the reporting
      quarter.

            


    

    


    
      	
              7.5

            	
              If
      no Sales have occurred during the report period, a statement to this
      effect is required in the royalty report for that
  period.

            


    

    


    
      
        
        

      

      
        11

        
          

        

      

      
        
        

      

    

     

    8.           BOOKS
AND RECORDS

     

    
      	
              8.1

            	
              Licensee
      will keep full, true, and accurate books of accounts containing all
      particulars that may be necessary for the purpose of showing the amount of
      Earned Royalties payable to The Regents and Licensee’s compliance with
      other obligations under this Agreement.  Said books of accounts
      will be kept at Licensee's principal place of business or the principal
      place of business of the appropriate division of Licensee to which this
      Agreement relates.  Said books and the supporting data will be
      open at all reasonable times during normal business hours upon reasonable
      notice, for five (5) years following the end of the calendar year to which
      they pertain, to the inspection and audit by representatives of The
      Regents for the purpose of verifying Licensee's royalty statement or
      compliance in other respects with this Agreement.  Such
      representatives will be bound to hold all information in confidence except
      as necessary to communicate Licensee's non-compliance with this Agreement
      to The Regents.

            


    

    


    
      	
              8.2

            	
              The
      fees and expenses of The Regents' representatives performing such an
      examination will be borne by The Regents.  However, if an error
      in underpaid royalties to The Regents of more than five percent (5%) of
      the total Earned Royalties due for any year is discovered, then the fees
      and expenses of these representatives will be borne by
      Licensee.

            


    

    


     

    9.           LIFE
OF THE AGREEMENT

     

    
      	
              9.1

            	
              Unless
      otherwise terminated by the operation of law or by acts of the Parties in
      accordance with the terms of this Agreement, this Agreement will be in
      force from the Effective Date and will remain in effect for the life of
      the last-to-expire patent or last-to-be-abandoned patent application
      licensed under this Agreement, whichever is
  later.

            


    

    


    
      
        
        

      

      
        12

        
          

        

      

      
        
        

      

       

    

    
      	
              9.2

            	
              Any
      termination of this Agreement will not affect the rights and obligations
      set forth in the following
articles:

            


    

    


                                                                                 

    
      
        	 	Article
      1	Definitions
	 	Article
      3 	Sublicenses
	 	Article
      8     	Books
      and Records
	 	Article
      9    	Life
      of the Agreement
	
                 
      

              	
                Article
      12

              	
                Disposition
      of Licensed Products Upon
Termination

              


      

    

    
      	
               
      

            	
              Article
      15

            	
              Use
      of Names and Trademarks

            


    

    
      	
               
      

            	
              Article
      16

            	
              Limited
      Warranties

            


    

    
      	
               
      

            	
              Article
      18

            	
              Indemnification

            


    

    
      	
               
      

            	
              Article
      22

            	
              Notices

            


    

    
      	
               
      

            	
              Article
      23

            	
              Payments

            


    

    
      	
               
      

            	
              Article
      25

            	
              Confidentiality

            


    

    
      	
               
      

            	
              Article
      28

            	
              Applicable
      Law; Venue; Attorneys’ Fees

            


    

    
      	
               
      

            	
              Article
      29

            	
              Scope
      of Agreement

            


    

    


    
      	
              9.3

            	
              Any
      termination of this Agreement will not relieve Licensee of its obligation
      to pay any monies due or owing at the time of such termination and will
      not relieve any obligations, of either Party to the other Party,
      established prior to termination.

            


    

    


     

    10.           TERMINATION
BY THE REGENTS

     

    
      	
              10.1

            	
              If
      Licensee should violate or fail to perform any term of this Agreement,
      then The Regents may give written notice of such default ("Notice of
      Default") to Licensee.  If Licensee should fail to repair such
      default within sixty (60) days of the effective date of such notice, The
      Regents will have the right to terminate this Agreement and the licenses
      herein by a second written notice ("Notice of Termination") to
      Licensee.  If a Notice of Termination is sent to Licensee, this
      Agreement will automatically terminate on the effective date of such
      notice.  Such termination will not relieve Licensee of its
      obligation to pay any royalty or license fees owing at the time of such
      termination and will not impair any accrued rights of The
      Regents.  These notices will be subject to Article 22
      (Notices).

            


    

    


    
      	
              10.2

            	
              Notwithstanding
      Paragraph 10.1 above, this Agreement will terminate immediately, upon
      written notice given by The Regents in its sole discretion, if Licensee
      files a claim including in any way the assertion that any portion of The
      Regents’ Patent Rights is invalid or unenforceable, where the filing of
      such claim is by the Licensee, by a third party on behalf of the Licensee,
      or by a third party at the written urging of the
  Licensee.

            


    

    


    
      	
              10.3 

            	
              Notwithstanding
      Paragraph 10.1 above, this Agreement will terminate immediately, upon
      written notice given by The Regents in its sole discretion, in the event
      of the filing of a petition for relief under the United States Bankruptcy
      Code by or against Licensee as a debtor or alleged debtor.
       

            


    

    


    
      
        
        

      

      
        13

        
          

        

      

      
        
        

      

    

     

    11.           TERMINATION
BY LICENSEE

     

    
      	
              11.1

            	
              Licensee
      will have the right at any time to terminate this Agreement in whole or as
      to any portion of Patent Rights by giving notice in writing to The
      Regents.  Such notice of termination will be subject to Article
      22 (Notices) and termination of this Agreement will be effective ninety
      (90) days after the effective date of such
  notice.

            


    

    


    
      	
              11.2

            	
              Any
      termination pursuant to Paragraph 11.1 will not relieve Licensee of any
      obligation or liability accrued hereunder prior to such termination or
      rescind anything done by Licensee or any payments made to The Regents
      hereunder prior to the time such termination becomes effective, and such
      termination will not affect in any manner any rights of The Regents
      arising under this Agreement prior to such
  termination.

            


    

    


     

    12.           DISPOSITION
OF LICENSED PRODUCTS UPON TERMINATION

     

    
      	
              12.1

            	
              Upon
      termination of this Agreement, for a period of one hundred twenty (120)
      days after the date of termination Licensee may complete and Sell any
      partially made Licensed Products and continue to render any previously
      commenced Licensed Services, and continue the practice of Licensed Methods
      only to the extent necessary to do the foregoing; provided that, all such
      Sales will be subject to the terms of this Agreement including, but not
      limited to, the payment of royalties at the rate and at the time provided
      herein and the rendering of reports
thereon.

            


    

    


     

    13.           PATENT
PROSECUTION AND MAINTENANCE

     

    
      	
              13.1

            	
              The
      Regents will diligently prosecute and maintain the United States and
      foreign patent applications and patents under Patent Rights, subject to
      Licensee’s reimbursement of The Regents’ out-of-pocket costs under Article
      13.3 below.  All patent applications and patents under Patent
      Rights will be held in the name of The Regents.  The Regents
      will have sole responsibility for retaining and instructing patent
      counsel.  The Regents will promptly provide Licensee with copies
      of all official patent office correspondence so that Licensee may be
      informed of the continuing prosecution, and Licensee agrees to keep this
      documentation confidential in accordance with Article
      25.  Licensee may comment upon such documentation, provided
      that, if Licensee has not commented upon such documentation in reasonable
      time for The Regents to sufficiently consider Licensee’s comments prior to
      the deadline for filing a response with the relevant government patent
      office, The Regents will be free to respond appropriately without
      consideration of Licensee's
comments.

            


    

    


    
      
        
        

      

      
        14

        
          

        

      

      
        
        

      

       

    

    
      	
              13.2

            	
              The
      Regents will use reasonable efforts to prepare or amend any patent
      application within Patent Rights to include claims reasonably requested by
      Licensee to protect the Licensed Products or Licensed Services
      contemplated to be Sold or Licensed Methods to be practiced under this
      Agreement.

            


    

    


    
      	
              13.3

            	
              Subject
      to Paragraph 13.4, all past, present, and future costs for preparing,
      filing, prosecuting, and maintaining all United States and foreign patent
      applications and patents under Patent Rights (including without limitation
      the cost of interferences, reexaminations, and oppositions) will be paid
      by Licensee, so long as the licenses granted to Licensee herein are
      exclusive.  Such payments by Licensee are due within thirty (30)
      days after receipt of invoice from The Regents.  If, however,
      The Regents reduces the exclusive licenses granted herein to non-exclusive
      licenses pursuant to Paragraphs 6.3 or 6.4, and The Regents grants
      additional license(s), the subsequent costs of preparing, filing,
      prosecuting and maintaining such patent applications and patents will be
      divided equally among the licensed parties from the effective date of each
      subsequently granted license
agreement.

            


    

    


    
      	
              13.4

            	
              Licensee's
      obligation to underwrite and to pay all United States and foreign patent
      filing, prosecution, and maintenance costs for Patent Rights will continue
      for so long as this Agreement remains in effect, provided that, Licensee
      may terminate its obligations with respect to any given patent application
      or patent under Patent Rights in any or all designated countries upon
      three (3) months’ written notice to The Regents.  The Regents
      will undertake to curtail applicable patent costs billable to Licensee
      when such a notice is received from Licensee.  The Regents may
      continue prosecution and/or maintenance of such patent applications or
      patents at its sole discretion and expense, provided that, Licensee will
      have no further right or licenses
thereunder.

            


    

    


     

    14.           MARKING

     

    
      	
              14.1

            	
              Licensee
      will mark all products made, used or Sold under this Agreement, or their
      containers, in accordance with applicable patent marking
    laws.

            


    

    


    
      
        
        

      

      
        15

        
          

        

      

      
        
        

      

    

     

    15.           USE
OF NAMES AND TRADEMARKS

     

    
      	
              15.1

            	
              Nothing
      contained in this Agreement will be construed as conferring any right to
      use in advertising, publicity or other promotional activities any name,
      trademark, trade name, or other designation of either Party by the other
      (including any contraction, abbreviation, or simulation of any of the
      foregoing).  Unless required by law or consented to in writing
      by The Regents, the use by Licensee of the name "The Regents of the
      University of California" or the name of any University of California
      campus in advertising, publicity or other promotional activities is
      expressly prohibited.

            


    

    


     

    16.           LIMITED
WARRANTIES

     

    
      	
              16.1

            	
              The
      Regents warrants to Licensee that it has the lawful right to grant this
      license.

            


    

    


    
      	
              16.2

            	
              This
      license and the associated Invention are provided WITHOUT WARRANTY OF
      MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER WARRANTY,
      EXPRESSED OR IMPLIED.  THE REGENTS MAKES NO REPRESENTATION OR
      WARRANTY THAT THE INVENTION, PATENT RIGHTS, LICENSED PRODUCTS, LICENSED
      SERVICES OR LICENSED METHODS WILL NOT INFRINGE ANY PATENT OR OTHER
      PROPRIETARY RIGHT.

            


    

    


    
      	
              16.3

            	
              IN
      NO EVENT WILL THE REGENTS BE LIABLE FOR ANY INCIDENTAL, SPECIAL OR
      CONSEQUENTIAL DAMAGES RESULTING FROM EXERCISE OF THIS LICENSE OR THE USE
      OF THE INVENTION, PATENT RIGHTS, LICENSED METHODS, LICENSED SERVICES OR
      LICENSED PRODUCTS.

            


    

    


    
      	
              16.4

            	
              Nothing
      in this Agreement is or will be construed
as:

            


    

    


    
      	
               
      

            	
              (a)

            	
              A
      warranty or representation by The Regents as to the validity,
      enforceability or scope of Patent Rights;
or

            


    

    


    
      	
               
      

            	
              (b)

            	
              A
      warranty or representation that anything made, used, or Sold under any
      license granted in this Agreement is or will be free from infringement of
      patents of third parties; or

            


    

    


    
      
        
        

      

      
        16

        
          

        

      

      
        
        

      

       

    

    
      	
               
      

            	
              (c)

            	
              An
      obligation to bring or prosecute actions or suits against third parties
      for patent infringement, except as provided in Article 17;
    or

            


    

    


    
      	
               
      

            	
              (d)

            	
              Conferring
      by implication, estoppel, or otherwise any license or rights under any
      patents of The Regents other than Patent Rights, regardless of whether
      such patents are dominant or subordinate to Patent Rights;
    or

            


    

    


    
      	
               
      

            	
              (e)

            	
              An
      obligation to furnish any know-how not provided in the patents and patent
      applications under Patent Rights.

            


    

    


     

    17.           PATENT
INFRINGEMENT

     

    


    
      	
              17.1

            	
              In
      the event that Licensee learns of the substantial infringement of any
      Patent Rights, Licensee will promptly provide The Regents with notice and
      reasonable evidence of such infringement (“Infringement
      Notice”).  During the period and in a jurisdiction where
      Licensee has exclusive rights under this Agreement, neither Party will
      notify a third party, including the infringer, of the infringement without
      first obtaining consent of the other Party, which consent will not be
      unreasonably withheld.  Both Parties will use diligent efforts,
      in cooperation with each other, to terminate such infringement without
      litigation.

            


    

    


    
      
        	
                17.2

              	
                (a)  If
      such infringing activity has not been abated within ninety (90) days
      following the effective date of the Infringement Notice, Licensee may
      institute suit for patent infringement against the
      infringer.  The Regents may voluntarily join such suit at The
      Regents’ expense, but The Regents may not thereafter separately commence
      suit against the infringer for the acts of infringement that are the
      subject of Licensee’s suit or any judgment rendered in that
      suit.  Licensee may not join The Regents in a suit initiated by
      Licensee without The Regents’ prior written consent.  If, in a
      suit initiated by Licensee, The Regents is involuntarily joined other than
      by Licensee, Licensee will pay any costs incurred by The Regents arising
      out of such suit, including but not limited to, any legal fees of counsel
      that The Regents selects and retains to represent it in the
      suit.

              
	 	 
	 	(b)  If,
      within a hundred and twenty (120) days following the effective date of the
      Infringement Notice, the infringing activity has not been abated and if
      Licensee has not brought suit against the infringer, The Regents may in
      its sole discretion institute suit for patent infringement against the
      infringer.  If The Regents institutes such suit, Licensee may
      not join such suit without The Regents’ consent and may not thereafter
      separately commence suit against the infringer for the acts of
      infringement that are the subject of The Regents’ suit or any judgment
      rendered in that suit.


      

    

     

    
      
        
        

      

      
        17

        
          

        

      

      
        
        

      

       

    

    
      	
              17.3

            	
              Such
      legal action as is decided upon will be at the expense of the Party on
      account of whom suit is brought and all recoveries recovered thereby will
      belong to such Party, provided that legal action brought jointly by The
      Regents and Licensee and participated in by both will be at the joint
      expense of both Parties and all recoveries will be allocated in the
      following order:  a) to each Party reimbursement for its
      attorneys' costs, fees, and other related out-of-pocket expenses to the
      extent each Party paid for such costs, fees, and expenses until all such
      costs, fees, and expenses are consumed for each Party; and b) any
      remaining amount shared jointly by both Parties in proportion to the share
      of expenses paid by each Party, but in no event will The Regents’ share be
      less than twenty-five percent (25%) of such remaining amount if The
      Regents is a Party.

            


    

    


    
      	
              17.4

            	
              Each
      Party will cooperate with the other Party in litigation instituted
      hereunder but at the expense of the Party on account of whom suit is
      brought.  Such litigation will be controlled by the Party
      bringing the action, except that The Regents may be represented by counsel
      of its choice in any suit brought by
Licensee.

            


    

    


    
      	
              17.5

            	
              Any
      agreement made by Licensee for the purposes of settling litigation or
      other dispute will comply with the requirements of Article 3
      above.  In no event may Licensee admit liability or wrongdoing
      on behalf of The Regents without The Regents’ prior written
      consent.

            


    

     

     

    18.           INDEMNIFICATION

     

    
      	
              18.1

            	
              Licensee
      will, and will require its Sublicensees to, indemnify, hold harmless, and
      defend The Regents and its officers, employees, and agents; sponsor(s) of
      the research that led to the Invention; and the inventors of any patents
      and patent applications under Patent Rights and their employers, against
      any and all claims, suits, losses, damages, costs, fees, and expenses
      resulting from or arising out of exercise of this license or any
      Sublicense.  This indemnification will include, but not be
      limited to, any product liability.

            


    

    


    
      
        
        

      

      
        18

        
          

        

      

      
        
        

      

       

    

    
      	
              18.2

            	
              Licensee,
      at its sole cost and expense, will insure its activities in connection
      with any work performed hereunder and will obtain, keep in force, and
      maintain the following insurance:

            


    

    


    
      
        	
                 
      

              	
                (a)

              	
                Commercial
      Form General Liability Insurance (contractual liability included) with
      limits as follows:

              


      

    

    


    Each
Occurrence
......................................................$5,000,000

    Products/Completed
Operations Aggregate....$10,000,000

    Personal
and Advertising Injury ..........................$5,000,000

    General
Aggregate
.................................................$10,000,000

    


    If the
above insurance is written on a claims-made form, it will continue for three (3)
years following termination or expiration of this Agreement. The insurance will
have a retroactive date of placement prior to or coinciding with the Effective
Date of this Agreement; and

    


    
      	
               
      

            	
              (b)

            	
              Worker's
      Compensation as legally required in the jurisdiction in which Licensee is
      doing business.

            


    

    


    
      	
              18.3

            	
              The
      coverage and limits referred to in Subparagraphs 18.2(a) and 18.2(b) above will not in
      any way limit the liability of Licensee under this Article 18. Upon the
      execution of this Agreement, Licensee will furnish The Regents with
      certificates of insurance evidencing compliance with all requirements, and
      Licensee will promptly notify The Regents of any material modification of
      the insurance coverages. Such certificates
will:

            


    

    


    
      	
               
      

            	
              (a)

            	
              provide
      for thirty (30) days' (ten (10) days for non-payment of premium) advance
      written notice to The Regents of any cancellation of insurance
      coverages;

            


    

    


    
      	
               
      

            	
              (b)

            	
              indicate
      that The Regents has been endorsed as an additional insured under the
      coverage described above in Paragraph l8.2;
and

            


    

    


    
      	
               
      

            	
              (c)

            	
              include
      a provision that the coverage will be primary and will not participate
      with, nor will be excess over, any valid and collectable insurance or
      program of self-insurance maintained by The
  Regents.

            


    

    


    
      	
              18.4

            	
              The
      Regents will promptly notify Licensee in writing of any claim or suit
      brought against The Regents for which The Regents intends to invoke the
      provisions of this Article 18.  Licensee will keep The Regents
      informed of its defense of any claims pursuant to this Article
      18.

            


    

    


    
      
        
        

      

      
        19

        
          

        

      

      
        
        

      

    

     

    19.           COMPLIANCE
WITH LAWS/EXPORT CONTROLS

     

    
      	
              19.1

            	
              The
      Licensee will comply with all applicable international, national, state,
      regional, and local laws and regulations in performing its obligations
      hereunder and in Licensee’s use, manufacture, Sale, or import of the
      Licensed Products or Licensed Services, or in Licensee’s practice of
      Licensed Methods.  The Licensee will observe all applicable
      United States and foreign laws and regulations governing the transfer to
      foreign countries of technical data related to Licensed Products,
      including without limitation with respect to the International Traffic in
      Arms Regulations (ITAR) and the Export Administration
      Regulations.

            


    

    


    
      	
              19.2

            	
              Licensee
      understands that The Regents is subject to United States laws and
      regulations (including the Arms Export Control Act, as amended, and the
      Export Administration Act of 1979), controlling the export of technical
      data, computer software, laboratory prototypes and other commodities, and
      The Regents' obligations to Licensee under this Agreement are contingent
      on and subject to compliance with such laws and
      regulations.  The transfer of certain technical data and/or
      commodities may require a license from the cognizant agency of the United
      States Government and/or written assurances by Licensee that Licensee will
      not export such technical data and/or commodities to certain foreign
      countries without prior approval of such agency.  The Regents
      neither represents that such a license will not be required nor that, if
      required, it will be issued.

            


    

    


     

    20.           GOVERNMENT
APPROVAL OR REGISTRATION

     

    
      	
              20.1

            	
              If
      this Agreement or any associated transaction is required by the law of any
      nation to be either approved or registered with any governmental agency,
      Licensee will assume all legal obligations to do so.  Licensee
      will notify The Regents if it becomes aware that this Agreement is subject
      to a United States or foreign government reporting or approval
      requirement.  Licensee will make all necessary filings and pay
      all costs including fees, penalties, and all other out-of-pocket costs
      associated with such reporting or approval
  process.

            


    

     

    
      
        
        

      

      
        20

        
          

        

      

      
        
        

      

       

    

    21.           ASSIGNMENT

     

    
      	
              21.1

            	
              This
      Agreement is binding upon and will inure to the benefit of The Regents,
      its successors and assigns.  This Agreement is personal to
      Licensee and assignable by Licensee only with the written consent of The
      Regents, provided that, Licensee may, on written notice to The Regents,
      assign this Agreement, including without limitation all obligations owed
      to The Regents hereunder, to an acquiror of all or substantially all of
      Licensee's stock or assets.

            


    

     

     

    22.           NOTICES

     

    
      	
              22.1

            	
              All
      notices under this Agreement will be deemed to have been fully given and
      effective when done in writing and delivered in person, or mailed by
      registered or certified U.S. mail, or deposited with a carrier service
      requiring signature by recipient, and addressed as
  follows:

            


    

     

    
      
        
          
            	 	
                    To
      The Regents:

                  	
                    Technology
      Transfer Services

                  
	 	 
      	
                    1850
      Research Park Drive, Suite 100

                  
	 	 
      	
                    Davis,
      CA 95618-6134

                  
	 	 
      	
                    Attn.:  Director
      (UC Case No. 2008-399)

                  
	 	 
      	 
      
	 	
                    To
      Licensee:

                  	
                    Octus
      Energy, Inc.

                  
	 	 
      	
                    803
      Second Street

                  
	 	 
      	
                    Suite
      303

                  
	 	 
      	
                    Davis,
      CA  95616

                  
	 	 
      	
                    Attn.:  John
      Argo

                  


          

        

      

    


    Either
Party may change its address upon written notice to the other
Party.

    


     

    23.           PAYMENTS

     

    
      	
              23.1

            	
              Payments
      to The Regents will be made to the following
  address:

            


    

    


     

    
      
        
          
            
              	 	
                    	The Regents of the University
      of
      California
	 	 
      	1111 Franklin Street, 5th
      Floor
	 	 
      	Oakland, CA
94607-5200
	 	 
      	
                      Attention:  Executive
      Director,

                    
	 	 
      	Research
      Administration and
	 	
                    	Technology Transfer
	 	 
      	
                      Referring
      to: UC Case No.
2008-399

                    


            

          

        

      

    

     

     

    
      
        
        

      

      
        21

        
          

        

      

      
        
        

      

    

    
       

    

    
      	
              23.2

            	
              If
      monies owed to The Regents under this Agreement are not received by The
      Regents when due, Licensee will pay to The Regents interest charges at a
      rate of ten percent (10%) per annum.  Such interest will be
      calculated from the date payment was due until actually received by The
      Regents.  Such accrual of interest will be in addition to, and
      not in lieu of, enforcement of any other rights of The Regents related to
      such late payment.  Acceptance of any late payment will not
      constitute a waiver under Article 24 (Waiver) of this
      Agreement.

            


    

    
 

    24.           WAIVER

     

    
      	
              24.1

            	
              The
      failure of either Party to assert a right hereunder or to insist upon
      compliance with any term or condition of this Agreement will not
      constitute a waiver of that right or excuse a similar subsequent failure
      to perform any such term or condition by the other Party.  None
      of the terms and conditions of this Agreement can be waived except by the
      written consent of the Party waiving
compliance.

            


    

    


     

    25.           CONFIDENTIALITY

     

    
      	
              25.1

            	
              Subject
      to Paragraphs 25.2 and 25.3 below, each Party will hold the other Party's
      proprietary business and technical information, patent prosecution
      material and other proprietary information, including the negotiated terms
      of this Agreement, in confidence and against disclosure to third parties
      with at least the same degree of care as it exercises to protect its own
      data and license agreements of a similar nature.  This
      obligation will expire five (5) years after the termination or expiration
      of this Agreement.

            


    

    


    
      	
              25.2

            	
              Nothing
      contained herein will in any way restrict or impair the right of Licensee
      or The Regents to use, disclose, or otherwise deal with any information or
      data which:

            


    

    


    
      	
               
      

            	
              (a)

            	
              at
      the time of disclosure to a receiving Party is available to the public or
      thereafter becomes available to the public by publication or otherwise
      through no act of the receiving Party;
or

            


    

    


    
      
        
        

      

      
        22

        
          

        

      

      
        
        

      

       

    

    
      	
               
      

            	
              (b)

            	
              the
      receiving Party can show by written record was in its possession prior to
      the time of disclosure to it hereunder and was not acquired directly or
      indirectly from the disclosing Party;
or

            


    

    


    
      	
               
      

            	
              (c)

            	
              is
      independently made available to the receiving Party without restrictions
      as a matter of right by a third party;
or

            


    

    


    
      	
               
      

            	
              (d)

            	
              is
      independently developed by employees of the receiving Party who did not
      have access to the information disclosed by the disclosing Party;
      or

            


    

    


    
      	
               
      

            	
              (e)

            	
              is
      subject to disclosure under the California Public Records Act or other
      requirements of law.

            


    

    


    
      	
              25.3

            	
              The
      Regents will be free to release to the inventors and senior administrators
      employed by The Regents the terms and conditions of this Agreement upon
      their request.  If such release is made, The Regents will inform
      such employees of the confidentiality obligations set forth above and will
      request that they do not disclose such terms and conditions to
      others.  Should a third party inquire whether a license to
      Patent Rights is available, The Regents may disclose the existence of this
      Agreement and the extent of the grant in Articles 2 and 3 to such third
      party, but will not disclose the name of Licensee unless (a) Licensee has
      already made such disclosure publicly, (b) Licensee otherwise consents to
      such disclosure, or (c) such disclosure is required under the California
      Public Records Act or other requirements of
law.

            


    

    


    
      	
              25.4

            	
              Licensee
      and The Regents agree to destroy or return to the disclosing Party
      proprietary information received from the other in its possession within
      fifteen (15) days following the effective date of termination of this
      Agreement.  However, each Party may retain one copy of
      proprietary information of the other solely for archival purposes in
      non-working files for the sole purpose of verifying the ownership of the
      proprietary information, provided such proprietary information will be
      subject to the confidentiality provisions set forth in this Article
      25.  Licensee and The Regents agree to provide each other,
      within thirty (30) days following termination of this Agreement, with a
      written notice that proprietary information has been returned or
      destroyed.

            


    

    


    
      
        
        

      

      
        23

        
          

        

      

      
        
        

      

    

     

    26.           FORCE
MAJEURE

     

    
      	
              26.1

            	
              Except
      for Licensee’s obligation to make any payments to The Regents hereunder,
      and subject to Paragraph 26.2, below, the Parties  will be
      excused from any performance required hereunder if such performance is
      rendered impossible or infeasible due to any catastrophe or other major
      event beyond their reasonable control, including, without limitation, war,
      riot, and insurrection; laws, proclamations, edicts, ordinances, or
      regulations; strikes, lockouts, or other serious labor disputes; and
      floods, fires, explosions, or other natural disasters.  When
      such events have abated, the Parties' respective obligations hereunder
      will resume.

            


    

    


    
      	
              26.2

            	
              Either
      Party to this Agreement will have the right to terminate this Agreement
      upon thirty (30) days’ prior written notice if either Party is unable to
      fulfill its obligations under this Agreement due to any of the causes
      specified in Paragraph 26.1 above for a period of one (1)
      year.

            


    

    


     

    27.           SEVERABILITY

     

    
      	
              27.1

            	
              The
      provisions of this Agreement are severable, and in the event that any
      provision of this Agreement is determined to be invalid or unenforceable
      under any controlling body of law, such invalidity or enforceability will
      not in any way affect the validity or enforceability of the remaining
      provisions hereof.

            


    

    


     

    28.           APPLICABLE
LAW; VENUE; ATTORNEYS’ FEES

     

    
      	
              28.1

            	
              THIS
      AGREEMENT WILL BE CONSTRUED, INTERPRETED, AND APPLIED IN ACCORDANCE WITH
      THE LAWS OF THE STATE OF CALIFORNIA, excluding any choice of law rules
      that would direct the application of the laws of another jurisdiction,
      except that the scope and validity of any patent or patent application
      under Patent Rights will be determined by the applicable law of the
      country of such patent or patent application.  Any legal action
      brought by the Parties relating to this Agreement will be conducted in San
      Francisco, California. The prevailing Party in any legal action under this
      Agreement will be entitled to recover its reasonable attorneys’ fees in
      addition to its costs and necessary
  disbursements.

            


    

    


    
      
        
        

      

      
        24

        
          

        

      

      
        
        

      

    

     

    29.           SCOPE
OF AGREEMENT

     

    
      	
              29.1

            	
              Neither
      Party will use this Agreement as a basis to invoke the CREATE Act, 35
      U.S.C. 103 (c) (2), without the written consent of the other
      Party.

            


    

    


    
      	
              29.2

            	
              This
      Agreement incorporates the entire agreement between the Parties with
      respect to the subject matter hereof and supersedes all previous
      communications, representations or understandings, whether oral or
      written, between the Parties relating to the subject matter
      hereof.  The Confidentiality Agreement and Letter Agreement
      specified in the Recitals above of this Agreement, effective February 25,
      2009, and March 10, 2009, respectively, are hereby
    superseded.

            


    

    


    
      	
              29.3

            	
              This
      Agreement may be altered or modified only by written amendment duly
      executed by the Parties.

            


    

    


    


    


    In
witness whereof, the Parties have executed this Agreement in duplicate originals
by their duly authorized officers or representatives.

     

    
      
        
          
            
              
                
                  	 OCTUS ENERGY,
    INC.	 	
                          THE
      REGENTS OF THE UNIVERSITY 

                          OF
      CALIFORNIA  

                           

                        	 
	By:	
                          /s/
      Christian J. Soderquist

                        	 	 By  	
                          /s/
      David
      R. McGee

                        	 
	
                          Printed
      Name:  Christian J. Soderquist   

                          Title:  President
      & CEO   

                        	 	 	
                          
                            David
      R. McGee

                            Executive
      Director

                            UC
      Davis InnovationAccess

                          

                        	 
	Date:  August
      27, 2009	 	 Date
      	
                           

                        	 


                

              

            

          

        

      



    


    
      
        
        

      

      
        25

        
          

        

      

      
        
        

      

    

    


    


    


    EXCLUSIVE
LICENSE AGREEMENT

    


    BETWEEN

    


    OCTUS
ENERGY, INC.

    


    AND

    


    THE
REGENTS OF THE UNIVERSITY OF CALIFORNIA

    


    FOR

    


    WICKING
CONDENSATE EVAPORATOR AT AC CONDENSER

    


    


    


    


    


    


    


    


    
      


      
        	
                 

              	
                
                  UC
      Case
No.:  2008-399

                

              




    

    
 

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    TABLE OF
CONTENTS

     

     

    
      
        
          
            	
                    RECITALS

                  	
                     

                  	
                    1

                  
	
                    1.

                  	
                    DEFINITIONS

                  	
                    2

                  
	
                    2.

                  	
                    GRANT

                  	
                    4

                  
	
                    3.

                  	
                    SUBLICENSES

                  	
                    5

                  
	
                    4.

                  	
                    LICENSE
      ISSUE FEE/MAINTENANCE FEES

                  	
                    6

                  
	
                    5.

                  	
                    ROYALTIES

                  	
                    7

                  
	
                    6.

                  	
                    DILIGENCE

                  	
                    9

                  
	
                    7.

                  	
                    PROGRESS
      AND ROYALTY REPORTS

                  	
                    10

                  
	
                    8.

                  	
                    BOOKS
      AND RECORDS

                  	
                    12

                  
	
                    9.

                  	
                    LIFE
      OF THE AGREEMENT

                  	
                    12

                  
	
                    10.

                  	
                    TERMINATION
      BY THE REGENTS

                  	
                    13

                  
	
                    11.

                  	
                    TERMINATION
      BY LICENSEE

                  	
                    14

                  
	
                    12.

                  	
                    DISPOSITION
      OF LICENSED PRODUCTS UPON TERMINATION

                  	
                    14

                  
	
                    13.

                  	
                    PATENT
      PROSECUTION AND MAINTENANCE

                  	
                    14

                  
	
                    14.

                  	
                    MARKING

                  	
                    15

                  
	
                    15.

                  	
                    USE
      OF NAMES AND TRADEMARKS

                  	
                    16

                  
	
                    16.

                  	
                    LIMITED
      WARRANTIES

                  	
                    16

                  
	
                    17.

                  	
                    PATENT
      INFRINGEMENT

                  	
                    17

                  
	
                    18.

                  	
                    INDEMNIFICATION

                  	
                    18

                  
	
                    19.

                  	
                    COMPLIANCE
      WITH LAWS/EXPORT CONTROLS

                  	
                    20

                  
	
                    20.

                  	
                    GOVERNMENT
      APPROVAL OR REGISTRATION

                  	
                    20

                  
	
                    21.

                  	
                    ASSIGNMENT

                  	
                    20

                  
	
                    22.

                  	
                    NOTICES

                  	
                    21

                  
	
                    23.

                  	
                    PAYMENTS

                  	
                    21

                  
	
                    24.

                  	
                    WAIVER

                  	
                    22

                  
	
                    25.

                  	
                    CONFIDENTIALITY

                  	
                    22

                  
	
                    26.

                  	
                    FORCE
      MAJEURE

                  	
                    23

                  
	
                    27.

                  	
                    SEVERABILITY

                  	
                    24

                  
	
                    28.

                  	
                    APPLICABLE
      LAW; VENUE; ATTORNEYS’ FEES

                  	
                    24

                  
	
                    29.

                  	
                    SCOPE
      OF AGREEMENT

                  	
                    24

                  


          

        

      

    

    
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