Exhibit 10.9


 


LICENSE
AGREEMENT


 




BETWEEN


 




BREATHING TECHNOLOGIES, INC.



AND


 


THE
REGENTS OF THE UNIVERSITY OF CALIFORNIA


 




FOR


 




CASE NO. SD2010-344


 






    	



    	 



    

 


LICENSE
AGREEMENT


 


This agreement
("Agreement") is made by and between Breathing Technologies, Inc., a Delaware corporation having an address at 1650
Spruce Street, Suite 500, Riverside, CA. 92507 ("LICENSEE") and The Regents of the University of California, a California
corporation having its statewide administrative offices at 1111 Franklin Street, Oakland, California 94607-5200 ("UNIVERSITY"),
represented by its San Diego campus ("UCSD") having an address at University of California, San Diego, Technology Transfer
Office, Mail Code 0910, 9500 Gilman Drive, La Jolla, California 92093-0910.


 


This Agreement is effective as
of October 21, 2013 ("Effective Date").


 


RECITALS


 


WHEREAS, the invention disclosed
in UCSD Disclosure Docket No. SD2010-344 and titled "A New Supplemental Oxygen Delivery System with Automated Adaptive Control"
("Invention") was made in the course of research at UCSD by Dr. Steven Roberts and Dr. David Lischer (hereinafter and
collectively, the "Inventors") and is covered by Patent Rights as defined below;


 


WHEREAS, the Inventors are
employees of UCSD, and they are obligated to assign all of their right, title and interest in the Invention to UNIVERSITY;


 


WHEREAS, UNIVERSITY is desirous
that the Invention be developed and utilized to the fullest possible extent so that its benefits can be enjoyed by the general
public;


 


WHEREAS, as of the Effective
Date, UNIVERSITY is in the process of conducting a patient safety and efficacy demonstration of the Invention utilizing monetary
support from the University of California Proof of Concept Grant, award #13-PC-267462, with a period of performance of August
1, 2013 through August 31, 2014 (the, "POC Grant");


 


WHEREAS, the intent of the POC
Grant is to mitigate some of the commercialization risk in bringing the Invention to market by generating patient data which may
later be leveraged for regulatory clearance of the Invention via the US Food and Drug Administration or equivalent foreign authority.
While no warranties are expressed or implied by UNIVERSITY regarding the outcome of the POC Grant or the quality or utility of
the data realized therefrom, the UNIVERSITY'S support of the POC Grant is hereby acknowledged as material to LICENSEE'S decision
to enter into this Agreement;


 






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WHEREAS, LICENSEE
is desirous of obtaining certain rights from UNIVERSITY for commercial development, use, and sale of the Invention, and the UNIVERSITY
is willing to grant such rights.


 


NOW, THEREFORE, the parties hereby
agree as follows:


 


ARTICLE
1. DEFINITIONS


 


The terms, as defined herein, shall
have the same meanings in both their singular and plural forms.


 





	1.1          
    "Affiliate" means any corporation or other business entity which is bound in writing by LICENSEE to the terms set
    forth in this Agreement and in which LICENSEE owns or controls, directly or indirectly, at least fifty percent (50%) of the
    outstanding stock or other voting rights entitled to elect directors, or in which LICENSEE is owned or controlled directly
    or indirectly by at least fifty percent (50%) of the outstanding stock or other voting rights entitled to elect directors;
    but in any country where the local law does not permit foreign equity participation of at least fifty percent (50%), then
    an "Affiliate" includes any company in which LICENSEE owns or controls or is owned or controlled by, directly or
    indirectly, the maximum percentage of outstanding stock or voting rights permitted by local law.
	 
	1.2          
    "Field" means Oxygen therapy devices and methods with and without Pulse Oximetry Feedback.
	 
	1.3          
    "IRB" means Institutional Review Board and is understood to be the committee within a research institution charged
    with reviewing, approving and overseeing medical research using human subjects.
	 
	1.4          
    "IRB Approval" means the receipt of approval by an IRB for a research proposal involving human subjects.
	 
	1.5          
    "Licensed Method" means any method that is claimed in one or more Patent Rights (as defined below), the use of which
    would constitute, but for the license granted to LICENSEE under this Agreement, an infringement, an inducement to infringe
    or contributory infringement, of any pending or issued claim within Patent Rights.
	 
	1.6          
    "Licensed Product" means any service, composition or product that is claimed in one or more Patent Rights, or that
    is produced by the Licensed Method, or the manufacture, use, sale, offer for sale, or importation of which would constitute,
    but for the license granted to LICENSEE under this Agreement, an infringement, an inducement to infringe or contributory infringement,
    of any pending or issued claim within the Patent Rights.







  






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	1.7          
    "Net Sales" means the total of the gross invoice prices of Licensed Products sold or leased by LICENSEE, Sublicensee,
    Affiliate, or any combination thereof, less the sum of the following actual and customary deductions where applicable and
    separately listed: cash, trade, or quantity discounts or rebates (as allowed under applicable law); sales, use, tariff, import/export
    duties or other excise taxes imposed on particular sales (except for value-added and income taxes imposed on the sales of
    Licensed Product in foreign countries); transportation charges; or credits to customers because of rejections or returns.
    Net Sales shall not include Licensed Product samples, transferred at or below LICENSEE'S cost of manufacture, for business
    development purposes such as marketing and media demonstration units ("Samples"). For purposes of calculating Net
    Sales, transfers to a Sublicensee or an Affiliate of Licensed Product under this Agreement for (i) end use (but not resale)
    by the Sublicensee or Affiliate shall be treated as sales by LICENSEE at the average selling price of Licensed Products sold
    by LICENSEE during the previous six (6) months, or (ii) resale by a Sublicensee or an Affiliate shall be treated as sales
    at the average selling price of Licensed Products sold by the Sublicensee or Affiliate during the previous six (6) months.
	 
	1.8          
    "Patent Costs" means all expenses for the preparation, filing, prosecution, and maintenance of all United States
    and foreign patents included in Patent Rights. Patent Costs shall also include out-of-pocket expenses for patentability opinions,
    inventorship determination, preparation and prosecution of patent application, re-examination, re-issue, interference, and
    opposition activities related to patents or applications in Patent Rights.
	 
	1.9          
    "Patent Rights" means UNIVERSITY's rights in any of the following:
	 
	the
    US patent application (serial number 13/814,934 titled "Automated Fluid Delivery System and Method");
	the
    European patent application (serial number 11816942.2 titled "Automated Fluid Delivery System and Method"; and
	the
    China patent application (serial number 201180045992.4 titled "Automated Fluid Delivery System and Method",
	disclosing
    and claiming the Invention, filed by Inventors and assigned to UNIVERSITY; and continuing applications thereof including divisions,
    substitutions, and continuations-in-part (but only to the extent the claims thereof are entirely supported in the specification
    and entitled to the priority date of the parent application); any patents issuing on said applications including reissues,
    reexaminations and extensions; and any corresponding foreign applications or patents.
	 
	1.10        
    "Sublicense" means an agreement into which LICENSEE enters with a third party that is not an Affiliate for the purpose
    of (i) granting certain rights; (ii) granting an option to certain rights; or (iii) forbearing the exercise of any rights,
    granted to LICENSEE under this Agreement. "Sublicensee" means a third party with whom LICENSEE enters into a Sublicense.
	 
	1.11        
    "Term" means the period of time beginning on the Effective Date and ending on the expiration date of the longest-lived
    Patent Rights.







  






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	1.12	"Territory" means where
    Patent Rights exist.







 





ARTICLE
2. GRANTS


 





	2.1           License.
    Subject to the limitations set forth in this Agreement, UNIVERSITY hereby grants to LICENSEE, and LICENSEE hereby accepts,
    an exclusive option and license under Patent Rights to make and have made, to use and have used, to sell and have sold, to
    offer for sale, and to import and have imported Licensed Products and to practice Licensed Methods, in the Field within the
    Territory and during the Term.



 


The exclusive
option period shall commence as of the Effective Date and expire the sooner of six (6) months or upon receipt of IRB Approval
under the POC Grant. Should IRB Approval be received by UNIVERSITY under the POC Grant within six (6) months of the Effective
Date, this Agreement will automatically convert to an exclusive license for Patent Rights in the Territory and all terms and conditions
as contained herein shall apply. Should UNIVERSITY fail to receive IRB Approval under the POC Grant within six (6) months of the
Effective Date, LICENSEE shall notify UNIVESITY whether it intends to terminate this Agreement, per Article 7, or renegotiate
the terms of this Agreement including the identification of an alternate clinical partner and revised schedule of due diligence
milestones under Paragraph 3.3(a), to be negotiated by separate written amendment.


 





	2.2	Sublicense.



 


(a)      The
license granted in Paragraph 2.1 includes the right of LICENSEE to grant Sublicense to third parties during the Term but only
for as long the license granted to LICENSEE under Paragraph 2.1 above is exclusive.


 


(b)      With
respect to Sublicense granted pursuant to Paragraph 2.2(a), LICENSEE shall:


 


(i) not receive,
or agree to receive, anything of value in lieu of cash as consideration from a third party under a Sublicense granted pursuant
to Paragraph 2.2(a) without the express written consent of UNIVERSITY;


 


(ii) to the
extent applicable, include all of the rights of and obligations due to UNIVERSITY and contained in this Agreement;


 


(iii) promptly
provide UNIVERSITY with a copy of each Sublicense issued; and


 






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(iv)
collect and guarantee payment of all payments due, directly or indirectly, to UNIVERSITY
from Sublicensees and summarize and deliver all reports due, directly or indirectly, to UNIVERSITY from Sublicensees.


 


(c)      Upon
termination of this Agreement for any reason, LICENSEE shall assign to UNIVERSITY and UNIVERSITY shall accept any and all Sublicenses,
in good standing, where the Sublicensee agrees to accept, in writing, all of the terms and conditions of this Agreement and agrees
to perform any applicable obligations required of LICENSEE under this Agreement, without creating any new obligations of UNIVERSITY
not already embodied herein. Upon such assignment, UNIVERSITY shall have a direct contractual relationship with the Sublicensee.


 





	2.3	Reservation of Rights. UNIVERSITY
    reserves the right to:



 


		(a)	use the Invention and Patent
                                         Rights for educational and research purposes;



 


		(b)	publish
                                         or otherwise disseminate any information about the Invention at any time for educational
                                         and research purposes; and
	 	 	 
	 	(c)	allow other nonprofit
                           institutions to use and publish or otherwise disseminate any information about Invention and Patent
                           Rights for educational and research purposes.



 


ARTICLE
3. CONSIDERATION


 





	3.1         Fees
    and Royalties. The parties hereto understand that the fees and royalties payable by LICENSEE to UNIVERSITY under this
    Agreement are partial consideration for the license granted herein to LICENSEE under Patent Rights. LICENSEE shall pay UNIVERSITY:



 


a)       in
recognition of LICENSEE being a startup business and partially in lieu of cash, a license issue fee in the form of five
percent (5%) of the initially issued common stock of the of the LICENSEE as provided for in the Stock Purchase Agreement attached
as Exhibit 1. UNIVERSITY shall be entitled to certain rights and preferences with regard to said stock, such rights and preferences
being outlined in the Stock Purchase Agreement attached as Exhibit 1. The stock shall be delivered to UNIVERSITY within thirty
(30) days of UNIVERSITY'S notification to LICENSEE approving the acceptance of said stock, in the name of "Shellwater &
Co." a nominee of The Regents of the University of California.


 


The acceptance of LICENSEE's common
stock in this paragraph is subject to the final approval of the Office of the President of the University of California. In the
event that such an approval is not granted, this Agreement shall remain in effect and LICENSEE and UCSD shall renegotiate for
and agree to a substitution of similar value for consideration within ninety (90) days of written notice by the UNIVERSITY.


 






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(b)       a
license maintenance fee due on the first anniversary of the Effective Date and each anniversary
thereafter, and ending on the date of a first sale of a Licensed Product, in accordance with the following schedule:


 


	 	Anniversary	 	Amount  	 
	 	first	 	$10,000.00	 
	 	second	 	$15,000.00	 
	 	third	 	$15,000.00	 
	 	fourth	 	$15,000.00	 
	 	fifth	 	$30,000.00	 
	 	thereafter	 	$30,000.00	 


 


(c)     
an earned royalty of three percent (3.0%) on Net Sales of Licensed Products by LICENSEE and/or its Affiliate(s);


 


(d)     
a Sublicense fee equal to fifty percent (50%) of fees received by LICENSEE from its Sublicensees that are not earned royalties,
said percentage being reduced upon LICENSEE'S successful completion of the due diligence requirements of Paragraph 3.3(a) below,
as follows:


 


		●	forty-five percent (45%)
                                         upon completion of Due Diligence item 3.3(a)(ii);



 


		●	forty
                                         percent (40%) upon completion of Due Diligence item 3.3(a)(iv);



 


		●	thirty-five percent (35%)
                                         upon completion of Due Diligence item 3.3(a)(v);



 


		●	thirty percent (30%) upon
                                         completion of Due Diligence item 3.3(a)(vi);



 


		●	twenty
                                         percent (20%) upon receipt of US Food and Drug Administration clearance to market Licensed
                                         Products in the United States of America; and



 


		●	fifteen percent (15%) upon
                                         receipt of approval to market Licensed Products in one of either Europe or The People's
                                         Republic of China.



 


For clarity,
fees paid to LICENSEE by a third party for research and development efforts towards realization of License Product(s) shall not
be subject to this paragraph unless the third party qualifies as a Sublicensee, as defined above, in which case LICENSEE shall
remit UNIVERSITY'S portion of the net Sublicense fee after deducting LICENSEE's direct costs for such research and development,
including, but not limited to, all salaries, bonuses, taxes and expenses for the full time equivalent employees in research and
product development, or contractors performing such research and development; amounts paid for laboratory or similar space in
which such research and development is performed; and laboratory supplies. LICENSEE's direct costs for such research and development
shall specifically exclude all executive salaries. Likewise, paid-in capital for stock equity purchased
by a third-party at an arms-length valuation shall not be subject to this paragraph;


 






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(e)      on
each and every Sublicense royally payment received by LICENSEE from its Sublicensees on sales of Licensed Product by Sublicensee,
royalties based on the royalty rate in Paragraph 3.1(c) as applied to Net Sales of Sublicensee. For clarity, in no event will
LICENSEE be required to pay both the earned royalty under Paragraph 3.1(c) and the Sublicense royalty under this Paragraph 3.1(e)
with respect to the sale of the same unit of Licensed Product.


 


(f)       beginning
the calendar year of commercial sales of the first Licensed Product, excluding Samples, by LICENSEE, its Sublicensee, or an Affiliate
and if the total earned royalties paid by LICENSEE under Paragraphs 3.1(c), (d) and (e) to UNIVERSITY in any such year cumulatively
amounts to less than the following ("Minimum Annual Royalty"):


 





	 	Year	 	Minimum
    Annual Royalty
	 	first	 	$25,000.00
	 	second	 	$37,500.00
	 	third	 	$50,000.00
	 	thereafter	 	$50,000.00







 


LICENSEE shall pay to UNIVERSITY
the difference between the Minimum Annual Royalty and the total earned royalty paid by LICENSEE to UNIVERSITY for such year under
Paragraphs 3.1(c), (d) and (e); provided, however, that for the year of commercial sales of the first Licensed Product, the amount
of minimum annual royalty payable shall be pro-rated for the number of months remaining in that calendar year. Payment under this
provision shall be made on or before February 28 following the last quarter of a year in which total earned royalties amount to
less than the Minimum Annual Royalty.


 


All fees and royalty payments specified
in Paragraphs 3.1(a) through 3.1(f) above shall be paid by LICENSEE pursuant to Paragraph 4.3 and shall be delivered by LICENSEE
to UNIVERSITY as noted in Paragraph 10.1.


 





	3.2	Patent Costs.



  


(a)      Subject
to Paragraph 5.1 below, LICENSEE shall reimburse UNIVERSITY all future (on or after the Effective Date) Patent Costs within thirty
(30) days following the date an itemized invoice is sent from UNIVERSITY to LICENSEE. In University's discretion, for Patent Costs
anticipated to exceed $20,000 ("Anticipated Costs"), UNIVERSITY will inform LICENSEE no less than thirty (30) days prior
to the date when Anticipated Costs are incurred. UNIVERSITY may, at its discretion and in accordance with Paragraph 5.1(c), require
full advance payment of Anticipated Costs at least fifteen (15) business days before required filing dates ("Advance Payment
Deadline"). In the event UNIVERSITY has provided LICENSEE with a thirty (30) days' notice of
Anticipated Costs, and LICENSEE does not pay the Anticipated Costs on or before the Advance Payment Deadline, UNIVERSITY will
act at its sole discretion with regard to filing, prosecution and maintenance of those Patent Rights associated with the thirty
(30) days' notice. In the event that the Anticipated Costs paid by LICENSEE is greater than the actual cost, the excess amount
is creditable against future Patent Costs. Any excess amount credited against future patent costs that remains on the books of
the University for more than 90 days, shall be refunded to the Licensee within 30 days of LICENSEE'S written request. In the event
that the actual costs exceed the Anticipated Costs paid in advance by LICENSEE, LICENSEE shall pay such excess costs within thirty
(30) days following the date an itemized invoice is sent as set forth in Paragraph 4.3.


 






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(b)      LICENSEE
shall reimburse UNIVERSITY past Patent Costs of nineteen thousand eight hundred and seven dollars and fifty cents (US$19,807.50)
in five (5) equal quarterly payments beginning three (3) months from the Effective Date.


 





	3.3	Due Diligence.



 


(a)     LICENSEE
shall directly or through its Affilitate(s) and/or Sublicensee(s);


 


(i)          diligently proceed
with the development, manufacture and sale of Licensed Products;


 


(ii)         provide a manufacturability
assessment of a Licensed Product within one-hundred eighty (180) days following the Effective Date. Said assessment shall include
but not be limited to, the bill-of-materials, schematic diagrams and cost-of-goods for the intended embodiment of the Licensed
Product that will be presented for regulatory clearance;


 


(iii)        provide a written
quote from a contract manufacturer capable of producing the Licensed Product identified in Paragraph 3.3(a)(ii), at scale and
in compliance with all regulations governing the manufacture of medical devices for sale into the United States of America, within
two-hundred seventy (270) days following the Effective Date;


 


(iv)        provide a written
strategy document for the regulatory approval of a Licensed Product through the US Food and Drug Administration, within one (1)
year of the Effective Date;


 


(v)        demonstrate construction
of three (3) prototype Licensed Products in the form that will be submitted for US Food and Drug Administration clearance within
one (1) year of the Effective Date;


 


(vi)        submit for 510(k)
clearance with the US Food and Drug Administration within six (6) months of the conclusion of the POC Grant;


 






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(vii)        market Licensed Products in the United States of America within six (6) months of receiving regulatory approval to market such
Licensed Products;


 


(viii)       achieve a first
commercial sale of a Licensed Product within one (1) year of receiving regulatory approval to market such Licensed Products in
the United States of America;


 


(ix)          achieve a first
commercial sale of a Licensed Product in China or Europe within three (3) years of receiving regulatory approval to market Licensed
Products in the United States of America subject to export approval, as needed;


 


(x)           use commercially
reasonable efforts to fill the market demand for Licensed Products following commencement of marketing at any time during the
term of this Agreement, where commercially reasonable shall not include shelving a Licensed Product or otherwise ceasing to develop,
manufacture, sell and fill the market demand for Licensed Products for a period greater than six (6) months during the Term; and


 


(xi)          be responsible
that all necessary governmental approvals are obtained for the manufacture, use and sale of Licensed Products.


 


(b)      If
LICENSEE fails to perform any of its obligations specified in Paragraphs 3.3(a)(i)-(xi), then UNIVERSITY shall have the right
and option to either terminate this Agreement in accordance with section 7.1 (a) or change LICENSEE's exclusive license to a nonexclusive
license. This right, if exercised by UNIVERSITY, supersedes the rights granted in Article 2. Notwithstanding the foregoing, in
the event that LICENSEE anticipates a failure to meet an obligation set forth in section 3.3(a)(i-xi), LICENSEE will promptly
(but not less than sixty (60) days prior to the due date for the obligation set forth in section 3.3(a)(i-xi)) advise UNIVERSITY
in writing, and representatives of each party will meet to review the reasons for the anticipated failure and discus in good faith
a potential revision to the diligence schedule. LICENSEE and UNIVERSITY will enter into a written amendment to this agreement
with respect to any mutually agreed upon change(s) to the relevant obligation.


 


ARTICLE
4. REPORTS, RECORDS AND PAYMENTS


 





	4.1	Reports.



  


(a)       Progress
Reports. Beginning six months after Effective Date and ending on the date of first commercial sale of a Licensed Product in
the United States; LICENSEE shall report to UNIVERSITY progress covering LICENSEE's (and Affiliate's and Sublicensee's) activities
for the preceding six months to develop and test all Licensed Products and obtain governmental approvals
necessary for marketing the same. Such semi-annual reports shall be due within sixty days of the reporting period and include
a summary of work completed, summary of work in progress, current schedule of anticipated events or milestones, market plans for
introduction of Licensed Products, and summary of resources (dollar value) spent in the reporting period.


 






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(b)      Royalty
Reports. After the first commercial sale of a Licensed Product anywhere in the world, LICENSEE shall submit to UNIVERSITY
quarterly royalty reports on or before each February 28, May 31, August 31 and November 30 of each year. Each royalty report shall
cover LICENSEE's (and each Affiliate's and Sublicensee's) most recently completed calendar quarter and shall show:


 


(i)the date
of first commercial sale of a Licensed Product in each country;


 


(ii)the
gross sales, deductions as provided in Paragraph 1.5 (Net Sales), and Net Sales during the most recently completed calendar quarter
and the royalties, in US dollars, payable with respect thereto;


 


(iii)the
number of each type of Licensed Product sold;


 


(iv)Sublicense
fees and royalties received during the most recently completed calendar quarter in US dollars, payable with respect thereto;


 


(v)the method
used to calculate the royalties; and


 


(vi)the
exchange rates used.


 


If no sales of Licensed Products
have been made and no Sublicense revenue has been received by LICENSEE during any reporting period, LICENSEE shall so report.


 


(c)      Timely
Reports. LICENSEE acknowledges the important value that timely reporting provides in the UNIVERSITY's effective management
of its rights under this Agreement. LICENSEE further acknowledges that failure to render the reports required under this Paragraph
4.1 may harm UNIVERSITY's ability to manage its rights under this Agreement. As such, reports not submitted by the required due
date under this Paragraph 4.1 will cause to be due by LICENSEE to UNIVERSITY a late reporting fee of five hundred dollars (US$500.00)
per quarter until such report, compliant with the requirements of this Paragraph 4.1, is received by UNIVERSITY. Payment of this
fee is subject to Paragraph 4.3, Paragraph 7.1 and Paragraph 10.1 herein.


 






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	4.2	Records & Audits.



 


(a)      LICENSEE
shall keep, and shall require its Affiliates and Sublicensees to keep, accurate and correct records of all Licensed Products manufactured,
used, and sold, and Sublicense fees received under this Agreement. Such records shall be retained by LICENSEE for at least five
(5) years following a given reporting period.


 


(b)      All
records shall be available during normal business hours for inspection at the expense of UNIVERSITY by UNIVERSITY's Internal Audit
Department or by a Certified Public Accountant selected by UNIVERSITY and in compliance with the other terms of this Agreement
for the sole purpose of verifying reports and payments or other compliance issues. Such inspector shall not disclose to UNIVERSITY
any information other than information relating to the accuracy of reports and payments made under this Agreement or other compliance
issues. In the event that any such inspection shows an under reporting and underpayment in excess of five percent (5%) for any
twelve-month (12-month) period, then LICENSEE shall pay the cost of the audit as well as any additional sum that would have been
payable to UNIVERSITY had the LICENSEE reported correctly, plus an interest charge at a rate of ten percent (10%) per year. Such
interest shall be calculated from the date the correct payment was due to UNIVERSITY up to the date when such payment is actually
made by LICENSEE. For underpayment not in excess of five percent (5%) for any twelve-month (12-month) period, LICENSEE shall pay
the difference within thirty (30) days without interest charge or inspection cost. Any overpayment shall be credited against amounts
due UNIVERSITY in the next report, without interest.


 





	4.3	Payments.



 


(a)      All
fees, reimbursements and royalties due UNIVERSITY shall be paid in United States dollars and all checks shall be made payable
to "The Regents of the University of California", referencing UNIVERSITY's taxpayer identification number, 95-6006144,
and sent to UNIVERSITY according to Paragraph 10.1 (Correspondence). When Licensed Products are sold in currencies other than
United States dollars, LICENSEE shall first determine the earned royalty in the currency of the country in which Licensed Products
were sold and then convert the amount into equivalent United States funds, using the exchange rate quoted in the Wall Street Journal
on the last business day of the applicable reporting period.


 


(b)      Royalty
Payments.


 


(i)Royalties
shall accrue when Licensed Products are invoiced, or if not invoiced, when delivered to a third party or Affiliate.


 






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(ii)
LICENSEE shall pay earned royalties quarterly on or before February 28, May 31, August 31 and November 30 of each calendar year.
Each such payment shall be for earned royalties accrued within LICENSEE's most recently completed calendar quarter.


 


(iii)Royalties
earned on sales occurring or under Sublicense granted pursuant to this Agreement in any country outside the United States shall
not be reduced by LICENSEE for any taxes, fees, or other charges imposed by the government of such country on the payment of royalty
income, except that all payments made by LICENSEE in fulfillment of UNIVERSITY's tax liability in any particular country may be
credited against earned royalties or fees due UNIVERSITY for that country. LICENSEE shall pay all bank charges resulting from
the transfer of such royalty payments.


 


(iv)If at
any time legal restrictions prevent the prompt remittance of part or all royalties by LICENSEE with respect to any country where
a Licensed Product is sold or a Sublicense is granted pursuant to this Agreement, LICENSEE shall convert the amount owed to UNIVERSITY
into US currency and shall pay UNIVERSITY directly from its US sources of fund for as long as the legal restrictions apply.


 


(v)In the
event that any patent or patent claim within Patent Rights is held invalid in a final decision by a patent office from which no
appeal or additional patent prosecution has been or can be taken, or by a court of competent jurisdiction and last resort and
from which no appeal has or can be taken, all obligation to pay royalties based solely on that patent or claim or any claim patentably
indistinct therefrom shall cease as of the date of such final decision. LICENSEE shall not, however, be relieved from paying any
royalties that accrued before the date of such final decision, that are based on another patent or claim not involved in such
final decision.


 


(vi)Royalty
payments under Article 3, recoveries and settlements under Article 5, and royalty reports under 4.1(b) shall be rendered for any
and all Licensed Products even if due after expiration of the Agreement. If no applicable Patent Rights existed in the Territory
at the time of any making, use, sale, offer for sale, or import, then no royalty payments or royalty reports shall be due.


 


(c)      Late
Payments. In the event royalty, reimbursement and/or fee payments are not received by UNIVERSITY when due, LICENSEE shall
pay to UNIVERSITY interest charges at a rate of ten percent (10%) per year. Such interest shall be calculated from the date payment
was due until actually received by UNIVERSITY.


 






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ARTICLE
5. PATENT MATTERS


 





	5.1	Patent Prosecution and Maintenance.



 


(a)       Provided
that LICENSEE has reimbursed UNIVERSITY for Patent Costs pursuant to Paragraph 3.2, UNIVERSITY shall diligently maintain Patent
Rights using counsel of its choice. For purposes of clarity, if LICENSEE is not current in reimbursing UNIVERSITY for such patent
costs as defined in section 3.2, UNIVERSITY shall have no obligation to incur any new Patent Costs under this Agreement or to
further prosecute Patent Rights or file any new patents under Patent Rights. UNIVERSITY shall provide LICENSEE with copies of
all relevant documentation relating to such prosecution and LICENSEE shall keep this documentation confidential. The counsel shall
take instructions only from UNIVERSITY, and all patents and patent applications in Patent Rights shall be assigned solely to UNIVERSITY.
UNIVERSITY shall in any event control all patent filings and all patent prosecution decisions and related filings (e.g. responses
to office actions) shall be at UNIVERSITY's final discretion (prosecution includes, but is not limited to, interferences, oppositions
and any other inter parties matters originating in a patent office).


 


(b)      LICENSEE
shall have the opportunity to review and comment on all patent prosecution matters relating to patents and applications in Patent
Rights. UNIVERSITY shall in good faith consider presenting arguments reasonably requested by LICENSEE, and shall amend any patent
applications in Patent Rights to include amendments and/or additional claims reasonably requested by LICENSEE to protect the products
contemplated to be sold by LICENSEE under this Agreement.


 


(c)       LICENSEE
may elect to terminate its reimbursement obligations with respect to any patent application or patent in Patent Rights upon three
(3) months' written notice to UNIVERSITY. UNIVERSITY shall use reasonable efforts to curtail further Patent Costs for such application
or patent when such notice of termination is received from LICENSEE. UNIVERSITY, in its sole discretion and at its sole expense,
may continue prosecution and maintenance of said application or patent, and LICENSEE shall have no further license with respect
thereto. Non-payment of any portion of Patent Costs or Anticipated Costs with respect to any application or patent may be deemed
by UNIVERSITY as an election by LICENSEE to terminate its reimbursement obligations with respect to such application or patent.
The University is not obligated to file, prosecute, or maintain Patent Rights where LICENSEE is not paying patent costs at any
time or to file, prosecute, or maintain Patent Rights to which LICENSEE has terminated its license hereunder.


 






    	-14-



    	 



    

 





	5.2	Patent Infringement.



  


(a)       In
the event that UNIVERSITY (to the extent of the actual knowledge of the licensing professional responsible for the administration
of this Agreement) or LICENSEE learns of infringement of potential commercial significance of any patent licensed under this Agreement,
the knowledgeable party will provide the other (i) with written notice of such infringement and (ii) with any evidence of such
infringement available to it (the "Infringement Notice"). During the period in which, and in the jurisdiction where,
LICENSEE has exclusive rights under this Agreement, neither UNIVERSITY nor LICENSEE will notify a third party (including the infringer)
of infringement or put such third party on notice of the existence of any Patent Rights without first obtaining consent of the
other. If such consent is not obtained from UNIVERSITY and UNIVERSITY is sued in declaratory judgment, UNIVERSITY shall have the
right to terminate this Agreement immediately without the obligation to provide 60 days' notice as set forth in Paragraph 7.1
if LICENSEE notifies a third party of infringement or puts such third party on notice of the existence of any Patent Rights with
respect to such infringement without first obtaining the written consent of UNIVERSITY. Both UNIVERSITY and LICENSEE will use
their diligent efforts to cooperate with each other to terminate such infringement without litigation.


 


(b)      If
infringing activity of potential commercial significance by the infringer has not been abated within ninety (90) days following
the date the Infringement Notice takes effect, LICENSEE may institute suit for patent infringement against the infringer. UNIVERSITY
may voluntarily join such suit at its own expense, but may not thereafter 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 UNIVERSITY in
a suit initiated by LICENSEE without UNIVERSITY'S prior written consent. If, in a suit initiated by LICENSEE, UNIVERSITY is involuntarily
joined other than by LICENSEE, LICENSEE will pay any costs incurred by UNIVERSITY arising out of such suit, including but not
limited to, any legal fees of counsel that UNIVERSITY selects and retains to represent it in the suit.


 


(c)       If,
within a hundred and twenty (120) days following the date the Infringement Notice takes effect, infringing activity of potential
commercial significance by the infringer has not been abated and if LICENSEE has not brought suit against the infringer, UNIVERSITY
may institute suit for patent infringement against the infringer. If UNIVERSITY institutes such suit, LICENSEE may not join such
suit without UNIVERSITY'S consent and may not thereafter commence suit against the infringer for the acts of infringement that
are the subject of UNIVERSITY'S suit or any judgment rendered in that suit.


 






    	-15-



    	 



    

 


(d)      Any
recovery or settlement received in connection with any suit will first be shared by UNIVERSITY and LICENSEE proportionally to
cover the litigation costs each incurred. In any suit initiated by LICENSEE, any recovery in excess
of litigation costs will be shared between LICENSEE and UNIVERSITY as follows: (i) for any recovery other than amounts paid for
willful infringement: (A) UNIVERSITY will receive fifteen percent (15%) of the recovery if UNIVERSITY was not a party in the litigation
and did not incur any litigation costs; (B) UNIVERSITY will receive twenty-five percent (25%) of the recovery if UNIVERSITY was
a party in the litigation, but did not incur any litigation costs, including the provisions of Paragraph 5.2(b) above, or (C)
UNIVERSITY will receive fifty percent (50%) of the recovery if UNIVERSITY incurred any litigation costs in connection with the
litigation; and (ii) for any recovery for willful infringement, UNIVERSITY will receive fifty percent (50%) of the recovery. In
any suit initiated by UNIVERSITY, any recovery in excess of litigation costs will belong to UNIVERSITY. UNIVERSITY and LICENSEE
agree to be bound by all determinations of patent infringement, validity, and enforceability (but no other issue) resolved by
any adjudicated judgment in a suit brought in compliance with this Section 5.2.


 


(e)       Any
agreement made by LICENSEE for purposes of settling litigation or other dispute shall comply with the requirements of Section
2.2 (Sublicenses) of this Agreement.


 


(f)       Each
party will cooperate with the other in litigation proceedings instituted hereunder but at the expense of the party who initiated
the suit (unless such suit is being jointly prosecuted by the parties).


 


(g)      Any
litigation proceedings will be controlled by the party bringing the suit, except that UNIVERSITY may be represented by counsel
of its choice in any suit brought by LICENSEE.


 





	5.3         Patent
    Marking. LICENSEE shall mark all Licensed Products made, used or sold under the terms of this Agreement, or their containers,
    in accordance with the applicable patent marking laws. LICENSEE shall be responsible for all monetary and legal liabilities
    arising from or caused by (i) failure to abide by applicable patent marking laws and (ii) any type of incorrect or
    improper patent marking.



 


ARTICLE
6. GOVERNMENTAL MATTERS


 





	6.1         Governmental
    Approval or Registration. 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 shall assume all legal obligations to do so. LICENSEE shall
    notify UNIVERSITY if it becomes aware that this Agreement is subject to a United States or foreign government reporting or
    approval requirement. LICENSEE shall 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.



 






    	-16-



    	 



    

 





	6.2         Export
    Control Laws. LICENSEE shall observe all applicable United States and foreign laws with respect to the transfer of Licensed
    Products and related technical data to foreign countries, including, without limitation, the International Traffic in Arms
    Regulations and the Export Administration Regulations.



 


ARTICLE
7. TERMINATION OR EXPIRATION OF THE AGREEMENT


 





	7.1	Termination by UNIVERSITY.



 


(a)      If
LICENSEE fails to perform or violates any term of this Agreement, then UNIVERSITY may give written notice of default ("Notice
of Default") to LICENSEE. If LICENSEE fails to cure the default within sixty (60) days of the Notice of Default, UNIVERSITY
may terminate this Agreement and the license granted herein by a second written notice ("Notice of Termination") to
LICENSEE. If a Notice of Termination is sent to LICENSEE, this Agreement shall automatically terminate on the effective date of
that notice. Termination shall not relieve LICENSEE of its obligation to pay any fees owed at the time of termination and shall
not impair any accrued right of UNIVERSITY. During the term of any such Notice of Default or period to cure, to the extent the
default at issue is a failure to pay past or ongoing patent costs as provided for under this Agreement, UNIVERSITY shall have
no obligation to incur any new patent costs under this Agreement and shall have no obligation to further prosecute Patent Rights
or file any new patents under Patent Rights.


 


(b)    This
Agreement will terminate immediately, without the obligation to provide 60 days' notice as set forth in Paragraph 7.1(a), if LICENSEE
files a claim including in any way the assertion that any portion of UNIVERSITY's Patent Rights is invalid or unenforceable where
the filing is by the LICENSEE, a third party on behalf of the LICENSEE, or a third party at the written urging of the LICENSEE.


 





	7.2	Termination by LICENSEE.



 


(a)      LICENSEE
shall have the right at any time and for any reason to terminate this Agreement upon a ninety (90)-day written notice to UNIVERSITY.
Said notice shall state LICENSEE's reason for terminating this Agreement.


 


(b)      Any
termination under Paragraph 7.2(a) shall not relieve LICENSEE of any obligation or liability accrued under this Agreement prior
to termination or rescind any payment made to UNIVERSITY or action by LICENSEE prior to the time termination becomes effective.
Termination shall not affect in any manner any rights of UNIVERSITY arising under this Agreement prior to termination.


 






    	-17-



    	 



    

 





	7.3         Survival
    on Termination or Expiration. The following Paragraphs and Articles shall survive the termination or expiration of this
    Agreement:



  


(a)Article
4 (REPORTS, RECORDS AND PAYMENTS);


 


(b)Paragraph
7.4 (Disposition of Licensed Products on Hand);


 


(c)Article
8 (LIMITED WARRANTY AND INDEMNIFICATION);


 


(d)Article
9 (USE OF NAMES AND TRADEMARKS);


 


(e)Paragraph
10.2 hereof (Secrecy);


 


(f)Paragraph
10.5 (Failure to Perform); and


 


(g)Paragraph
10.6 (Governing Laws).


 





	7.4         Disposition
    of Licensed Products on Hand. Upon termination of this Agreement, LICENSEE may dispose of all previously made or partially
    made Licensed Product within a period of one hundred and twenty (120) days of the effective date of such termination provided
    that the sale of such Licensed Product by LICENSEE, its Sublicensees, or Affiliates shall be subject to the terms of this
    Agreement, including but not limited to the rendering of reports and payment of royalties required under this Agreement.



 


ARTICLE
8. LIMITED WARRANTY AND INDEMNIFICATION


 





	8.1	Limited Warranty.



 


(a)       The
license granted herein is provided "AS IS" and without WARRANTY OF MERCHANTABILITY or WARRANTY OF FITNESS FOR A PARTICULAR
PURPOSE or any other warranty, express or implied. UNIVERSITY makes no representation or warranty that the Licensed Product, Licensed
Method or the use of Patent Rights will not infringe any other patent or other proprietary rights.


 


(b)      UNIVERSITY
WILL NOT BE LIABLE FOR ANY LOST PROFITS, COSTS OF PROCURING SUBSTITUTE GOODS OR SERVICES, LOST BUSINESS, ENHANCED DAMAGES FOR
INTELLECTUAL PROPERTY INFRINGEMENT, OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR OTHER SPECIAL DAMAGES
SUFFERED BY LICENSEE, SUBLICENSEES, JOINT VENTURES, OR AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ALL CAUSES OF
ACTION OF ANY KIND (INCLUDING TORT, CON TRACT, NEGLIGENCE, STRICT LIABILITY AND BREACH OF WARRANTY) EVEN IF UNVIERSITY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ALSO, UNIVERSITY WILL NOT BE LIABLE FOR ANY DIRECT DAMAGES SUFFERED BY LICENSEE, SUBLICENSEES,
JOINT VENTURES, OR AFFILIATES ARISING OUT OF OR RELATED TO PATENT RIGHTS TO THE EXTENT ASSIGNED, OR OTHERWISE LICENSED, BY UNIVERSITY'S
INVENTORS TO THIRD PARTIES.


 






    	-18-



    	 



    

 


(c)       Nothing
in this Agreement shall be construed as:


 


(i)a warranty
or representation by UNIVERSITY as to the validity or scope of any Patent Rights;


 


(ii)a warranty
or representation that anything made, used, sold or otherwise disposed of under any license granted in this Agreement is or shall
be free from infringement of patents of third parties;


 


(iii)an
obligation to bring or prosecute actions or suits against third parties for patent infringement except as provided in Paragraph
5.2 hereof;


 


(iv)conferring
by implication, estoppel or otherwise any license or rights under any patents of UNIVERSITY other than Patent Rights as defined
in this Agreement, regardless of whether those patents are dominant or subordinate to Patent Rights; or


 


(v)an obligation
to furnish any know-how not provided in Patent Rights.


 





	8.2	Indemnification.



 


(a)      LICENSEE
will, and will require Sublicensees to, indemnify, hold harmless, and defend UNIVERSITY and its officers, employees, and agents;
the sponsors of the research that led to the Invention; and the inventors of patents or 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, the exercise of this license or any Sublicense. This indemnification will include, but will not be limited to, any product
liability.


 






    	-19-



    	 



    

  


(b)      LICENSEE,
at its sole cost and expense, shall insure its activities in connection with the work under this Agreement and obtain, keep in
force and maintain insurance:


 


(i)
comprehensive or commercial general liability insurance (contractual liability included)
with limits of at least: (A) each occurrence, five-hundred thousand dollars (US$500,000.00); (B) products/completed operations
aggregate, one-million dollars (US$1,000,000.00); (C) personal and advertising injury, five-hundred thousand dollars (US$500,000.00);
and (D) general aggregate (commercial form only), one-million dollars (US$1,000,000.00). If the above insurance is written on
a claims-made form, it shall continue for three (3) years following termination or expiration of this Agreement. The insurance
shall have a retroactive date of placement prior to or coinciding with the Effective Date;


 


(ii)prior
to the first sale of a Licensed Product subject to clearance by the US Food and Drug Administration; comprehensive or commercial
general liability insurance (contractual liability included) with limits of at least: (A) each occurrence, one-million dollars
(US$1,000,000.00); (B) products/completed operations aggregate, five-million dollars (US$5,000,000.00); (C) personal and advertising
injury, one-million dollars (US$1,000,000.00); and (D) general aggregate (commercial form only), five-million dollars (US$5,000,000.00).
If the above insurance is written on a claims-made form, it shall continue for three (3) years following termination or expiration
of this Agreement. The insurance shall have a retroactive date of placement prior to or coinciding with the first sale of a Licensed
Product subject to clearance by the US Food and Drug Administration;


 


(iii)Worker's
Compensation as legally required in the jurisdiction in which the LICENSEE is doing business; and


 


(iv)the
coverage and limits referred to above shall not in any way limit the liability of LICENSEE.


 


(c)       LICENSEE
shall furnish UNIVERSITY with certificates of insurance showing compliance with all requirements. Such certificates shall: (i)
provide for thirty (30) day advance written notice to UNIVERSITY of any modification; (ii) indicate that UNIVERSITY has been endorsed
as an additionally insured party under the coverage referred to above; and (iii) include a provision that the coverage shall be
primary and shall not participate with nor shall be excess over any valid and collectable insurance or program of self-insurance
carried or maintained by UNIVERSITY.


 


(d)      UNIVERSITY
shall notify LICENSEE in writing of any claim or suit brought against UNIVERSITY in respect of which UNIVERSITY intends to invoke
the provisions of this Article. LICENSEE shall keep UNIVERSITY informed on a current basis of its defense of any claims under
this Article. LICENSEE will not settle any claim against UNIVERSITY without UNIVERSITY's written consent, where (a) such settlement
would include any admission of liability or admission of wrong doing on the part of the indemnified party, (b) such settlement
would impose any restriction on UNIVERSITY/indemnified party's conduct of any of its activities, or (c) such settlement would
not include an unconditional release of UNIVERSITY/indemnified party from all liability for claims that are the subject matter
of the settled claim.


 






    	-20-



    	 



    

 


ARTICLE
9. USE OF NAMES AND TRADEMARKS


 


9.1        Nothing
contained in this Agreement confers any right to use in advertising, publicity, or other promotional activities any name, trade
name, trademark, or other designation of either party hereto (including contraction, abbreviation or simulation of any of the
foregoing). Unless required by law, the use by LICENSEE of the name, "The Regents of the University of California" or
the name of any campus of the University Of California, is prohibited, without the express written consent of UNIVERSITY.


 


9.2         UNIVERSITY
may disclose to the Inventors the terms and conditions of this Agreement upon their request. If such disclosure is made, UNIVERSITY
shall request the Inventors not disclose such terms and conditions to others.


 


9.3         UNIVERSITY
may acknowledge the existence of this Agreement and the extent of the grant in Article 2 to third parties, but UNIVERSITY shall
not disclose the financial terms of this Agreement to third parties, except where UNIVERSITY is required by law to do so, such
as under the California Public Records Act. LICENSEE hereby grants permission for UNIVERSITY (including UCSD) to include LICENSEE's
name and a link to LICENSEE's website in UNIVERSITY's and UCSD's annual reports and on UNIVERSITY's (including UCSD's) websites
that showcase technology transfer-related stories.


 


ARTICLE
10. MISCELLANEOUS PROVISIONS


 


10.1       Correspondence.
Any notice or payment required to be given to either party under this Agreement shall be deemed to have been properly given
and effective:


 


(a)on
the date of delivery if delivered in person, or


 


(b)five
(5) days after mailing if mailed by first-class or certified mail, postage paid, to the respective addresses given below, or to
such other address as is designated by written notice given to the other party.


 






    	-21-



    	 



    

 





If
sent to LICENSEE: 


Breathing Technologies,
Inc. 


1650 Spruce
Street, Suite 500 


Riverside, CA
92507


Attn: Amro Albanna


Phone 951-824-8669


Fax951-846-1755 


e-mail aalbanna@iecrowd.com


 


If sent
to UNIVERSITY by mail: 


University of
California, San Diego


Technology Transfer
Office


9500 Gilman
Drive, Mail Code 0910


La Jolla, CA
92093-0910


Attention: Assistant
Vice Chancellor


 


If sent
to UNIVERSITY by courier: 


University of California,
San Diego


Technology Transfer Office


10300 North Torrey Pines
Road


Torrey Pines Center North,
Third Floor


La Jolla, CA 92037


Attention: Assistant Vice
Chancellor


 


10.2       Secrecy.


 


(a)      "Confidential
Information" shall mean information, relating to the Invention and disclosed by UNIVERSITY to LICENSEE during the term of
this Agreement, which if disclosed in writing shall be marked "Confidential", or if first disclosed otherwise, shall
within thirty (30) days of such disclosure be reduced to writing by UNIVERSITY and sent to LICENSEE:


 


(b)     
 LICENSEE shall:


 


(i)use the
Confidential Information for the sole purpose of performing under the terms of this Agreement;


 


(ii)safeguard
Confidential Information against disclosure to others with the same degree of care as it exercises with its own data of a similar
nature;


 






    	-22-



    	 



    

 


(iii)not
disclose Confidential Information to others (except to its employees, agents or consultants who are bound to LICENSEE by a like
obligation of confidentiality) without the express written permission of UNIVERSITY, except that LICENSEE shall not be prevented
from using or disclosing any of the Confidential Information that:


 


		(A)	LICENSEE
                                         can demonstrate by written records was previously known to it;



 


		(B)	is
                                         now, or becomes in the future, public knowledge other than through acts or omissions
                                         of LICENSEE;



 


		(C)	is
                                         lawfully obtained by LICENSEE from sources independent of UNIVERSITY; or



 


		(D)	is
                                         required to be disclosed by law or a court of competent jurisdiction; and



 


(c)       The
secrecy obligations of LICENSEE with respect to Confidential Information shall continue for a period ending five (5) years from
the termination date of this Agreement.


 


10.3       Assignability.
This Agreement may be assigned by UNIVERSITY, but is personal to LICENSEE and assignable by LICENSEE only with the written
consent of UNIVERSITY. Such written consent of UNIVERSITY shall not be required if assignment of this Agreement is in conjunction
with any merger or sale of all or substantially all of LICENSEE's assets to which this Agreement pertains.


 


10.4       No
Waiver. No waiver by either party of any breach or default of any covenant or agreement set forth in this Agreement shall
be deemed a waiver as to any subsequent and/or similar breach or default.


 


10.5       Failure
to Perform. In the event of a failure of performance due under this Agreement and if it becomes necessary for either party
to undertake legal action against the other on account thereof, then the prevailing party shall be entitled to reasonable attorney's
fees in addition to costs and necessary disbursements.


 


10.6       Governing
Laws. THIS AGREEMENT SHALL BE INTERPRETED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, but the scope
and validity of any patent or patent application shall be governed by the applicable laws of the country of the patent or patent
application.


 






    	-23-



    	 



    

  


10.7       Force
Majeure. A party to this Agreement may be excused from any performance required herein if such performance is rendered impossible
or unfeasible due to any catastrophe or other major event beyond its 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 non-performing party's obligations
herein shall resume.


 


10.8       Headings.
The headings of the several sections are inserted for convenience of reference only and are not intended to be a part of or
to affect the meaning or interpretation of this Agreement.


 


10.9       Entire
Agreement. This Agreement embodies the entire understanding of the parties and supersedes all previous communications, representations
or understandings, either oral or written, between the parties relating to the subject matter hereof


 


10.10     Amendments.
No amendment or modification of this Agreement shall be valid or binding on the parties unless made in writing and signed
on behalf of each party.


 


10.11     Severability.
In the event that any of the provisions contained in this Agreement is held to be invalid, illegal, or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Agreement, and this Agreement
shall be construed as if the invalid, illegal, or unenforceable provisions had never been contained in it.


 


IN WITNESS WHEREOF, both
UNIVERSITY and LICENSEE have executed this Agreement, in duplicate originals, by their respective and duly authorized officers
on the day and year written.


 





	BREATHING
                                         TECHNOLOGIES, INC


	THE REGENTS OF THE UNIVERSITY OF CALIFORNIA:
	 	 	 	 	 	 
	By:		 	By:	/s/ Jane Moores	 
	 	Signature	 	 	Signature	 
	 	 	 	 	 	 
	Amro Albanna 	 	Jane Moores, Ph.D.	 
	CEO	 	Assistant Vice Chancellor Technology Transfer	 
	 	 	 	 	 
	Date:	 	Date: 10/21/13	 


 






    	-24-



    	 



    

  


10.7       Force
Majeure. A party to this Agreement may be excused from any performance required herein if such performance is rendered impossible
or unfeasible due to any catastrophe or other major event beyond its 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 non-performing party's obligations
herein shall resume.


 


10.8       Headings.
The headings of the several sections are inserted for convenience of reference only and are not intended to be a part of or
to affect the meaning or interpretation of this Agreement.


 


10.9       Entire
Agreement. This Agreement embodies the entire understanding of the parties and supersedes all previous communications, representations
or understandings, either oral or written, between the parties relating to the subject matter hereof


 


10.10     Amendments.
No amendment or modification of this Agreement shall be valid or binding on the parties unless made in writing and signed
on behalf of each party.


 


10.11     Severability.
In the event that any of the provisions contained in this Agreement is held to be invalid, illegal, or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Agreement, and this Agreement
shall be construed as if the invalid, illegal, or unenforceable provisions had never been contained in it.


 


IN WITNESS WHEREOF, both
UNIVERSITY and LICENSEE have executed this Agreement, in duplicate originals, by their respective and duly authorized officers
on the day and year written.


 





	BREATHING
                                         TECHNOLOGIES, INC:


	THE REGENTS OF THE UNIVERSITY OF CALIFORNIA:
	 	 	 	 	 	 
	By:	/s/ Amro Albanna	 	By:		 
	 	(Signature)	 	 	(Signature)	 
	 	 	 	 	 	 
	Amro Albanna	 	Jane Moores, Ph.D.	 
	CEO	 	Assistant Vice Chancellor Technology Transfer	 
	 	 	 	 	 
	Date: October 21, 2013	 	Date: _________________	 


 


 





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