Exhibit 3.4

CERTIFICATE OF MERGER OF

DOMESTIC CORPORATIONS

Pursuant to Title 8, Section 251(c) of the Delaware General Corporation Law, the undersigned corporation executed the following Certificate of Merger:

FIRST: The name of the surviving Delaware corporation is 374Water, Inc., and the name of the Delaware corporation being merged into this surviving corporation is 374Water Acquisition Corp., the constituent corporations.

SECOND: The Agreement and Plan of Merger has been approved, adopted, certified, executed and acknowledged by each of the constituent corporations.

THIRD: The name of the surviving Delaware corporation is 374Water, Inc.

FOURTH: The Certificate of Incorporation of the surviving corporation shall be its Certificate of Incorporation.

FIFTH: The merger is to become effective immediately upon filing of this Certificate of Merger.

SIXTH: The Agreement and Plan of Merger is on file at 12 Upchurch Circle, Durham, NC 27705, the place of business of the surviving corporation.

SEVENTH: A copy of the Agreement and Plan of Merger will be furnished by the surviving corporation on request, without cost, to any stockholder of the constituent corporations.

IN WITNESS WHEREOF, said surviving corporation has caused this certificate to be signed by an authorized officer, the 16^th day of April, 2021.

Exhibit 3.5

CERTIFICATE OF DESIGNATION OF PREFERENCES, RIGHTS

AND LIMITATIONS OF SERIES D CONVERTIBLE PREFERRED STOCK

The undersigned, Richard H. Davis, the Chief Executive Officer of Powerverde, Inc. (the “Corporation”), a corporation organized and existing under the Delaware General Corporation Law (“DGCL”), in accordance with the provisions of Section 151 and Section 242 of the DGCL, does hereby certify:

That pursuant to the authority expressly conferred upon the Board of Directors of the Corporation (the “Board of Directors”) by the Corporation’s Certificate of Incorporation, as amended (the “Certificate of Incorporation”), the Board of Directors by unanimous written consent as of October 30, 2020, adopted the following resolutions in connection with designating shares of stock as Series D Convertible Preferred Stock, none of which shares have been issued:

RESOLVED, that the Board of Directors designates the Series D Convertible Preferred Stock and the number of shares constituting such series, and fixes the rights, powers, preferences, privileges and restrictions relating to such series in addition to any set forth in the Certificate of Incorporation as follows:

Section 1. Designation and Authorized Shares. There shall hereby be created and established a series of preferred stock of the Corporation designated as “Series D Convertible Preferred Stock” (the “Series D Preferred Stock”). The authorized number of shares of the Series D Preferred Stock shall be 1,000,000 shares (the “Preferred Shares”). Each Preferred Share shall have a par value of $.0001.

Section 2. Stated Value. Each Preferred Share shall have a stated value of $15.00 per share (the “Stated Value”).

Section 3. Liquidation Preference. Except as set forth in Section 5(c) below, upon the liquidation, dissolution or winding up of the business of the Corporation, whether voluntary or involuntary, each holder of Preferred Shares (a “Holder”) shall be entitled to receive, for each share thereof, out of assets of the Corporation legally available therefor, before any distribution of assets may be made to the holders of the Corporation’s common stock (the “Common Stock”) or any other class of capital stock or other equity securities of the Corporation, an amount equal to $15.00 per share of Series D Preferred Stock held by such Holder (the “Liquidation Distribution”). After payment of the Liquidation Distribution to each Holder, the Series D Preferred Stock shall be deemed to have been converted to Common Stock and the entire remaining assets of the Corporation available for distribution shall be distributed pro rata to holders of the Common Stock of the Corporation and the former Holders of Series D Preferred Stock in proportion to the number of shares of Common Stock held by them or into which the Series D Preferred Stock shall be deemed to have been converted. If upon any liquidation, dissolution or winding up of the Corporation, the net assets of the Corporation to be distributed among the Holders of the Series D Preferred Stock shall be insufficient to permit payment in full of the Liquidation Distribution to the Holders, then all remaining net assets of the Corporation after the provision for the payment of the Corporation’s external, third party debts shall be distributed ratably among the Holders in proportion to the full amounts to which they would otherwise be entitled to receive.

Section 4. Voting; Dividends. Except as otherwise expressly required by law, each Holder shall be entitled to vote on all matters submitted to stockholders of the Corporation and shall be entitled to the number of votes for each Preferred Share owned at the record date for the determination of stockholders entitled to vote on such matter or, if no such record date is established, at the date such vote is taken or any written consent of stockholders is solicited, equal to the number of shares of Common Stock such Preferred Shares are convertible into at such time. Except as otherwise required by law, the Holders shall vote together with the holders of Common Stock on all matters and shall not vote as a separate class. In the event that the Corporation declares a dividend on its Common Stock, each Preferred Share shall receive a dividend equal to the amount payable with respect to the Common Stock into which the Preferred Stock is convertible.

Section 5. Conversion.

(a)    Conversion Right. At any time or times on or after the Closing Date, each Holder shall be entitled to convert any portion of the outstanding Preferred Shares held by such Holder into validly issued, fully paid and non-assessable shares of Common Stock at the Conversion Rate (as defined below). The Corporation shall not issue any fraction of a share of Common Stock upon any conversion. If the issuance would result in the issuance of a fraction of a share of Common Stock, the Corporation shall round such fraction of a share of Common Stock up to the nearest whole share. The Corporation shall pay any and all transfer, stamp, issuance and similar taxes, costs and expenses (including fees and expenses of the Corporation’s transfer agent that may be payable with respect to the issuance and delivery of Common Stock upon conversion of any Preferred Share).

(b)   Conversion Rate. The number of shares of Common Stock issuable upon conversion of each Preferred Share shall be determined by dividing (x) the Stated Value of such Preferred Share by (y) the Conversion Price (the “Conversion Rate”). Each Preferred Share will convert into Common Stock at a ratio of 50 shares of Common Stock per share of Series D Preferred Stock, reflecting a conversion price per share of Common Stock (the “Conversion Price”) equal to $.30 per share.

(c)    Automatic Conversion. Subject to the provisions of this Section 5 and notwithstanding Section 3 above, in connection with, and on the closing of, a Liquidity Event or a Qualified Public Offering (each as defined in Section 10 below) by the Corporation, all of the outstanding Shares of Series D Preferred Stock (including any fraction of a Share) held by stockholders shall automatically convert into an aggregate number of shares of Common Stock (including any fraction of a Share) as is determined by (i) multiplying the number of Preferred Shares (including any fraction of a Share) to be converted by the Stated Value thereof, and then (ii) dividing the result by the applicable Conversion Price then in effect. If a closing of a Qualified Public Offering occurs, such automatic conversion of all of the outstanding Shares of Series D Preferred Stock shall be deemed to have occurred as of immediately prior to such closing.

(d)   Procedures for Conversion; Effect of Conversion.

(i)                   Procedures for Holder Conversion. In order to effectuate a conversion of Shares of Series D Preferred Stock pursuant to Section 5(a) above, a Holder shall (a) submit a written election to the Corporation that such Holder elects to convert Preferred Shares, the number of Preferred Shares elected to be converted and (b) surrender, along with such written election, to the Corporation the certificate or certificates representing the Preferred Shares being converted, duly assigned or endorsed for transfer to the Corporation (or accompanied by duly executed stock powers relating thereto) or, in the event the certificate or certificates are lost, stolen, or missing, accompanied by an affidavit of loss executed by the Holder. The conversion of such Preferred Shares hereunder shall be deemed effective as of the date of surrender of such Series D Preferred Stock certificate or certificates or delivery of such affidavit of loss. Upon the receipt by the Corporation of a written election and the surrender of such certificate(s) and accompanying materials, the Corporation shall as promptly as practicable (but in any event within 10 days thereafter) deliver to the relevant Holder (a) a certificate in such Holder’s name (or the name of such Holder’s designee as stated in the written election) for the number of shares of Common Stock (including any fractional share) to which such Holder shall be entitled upon conversion of the applicable Shares as calculated pursuant to Section 5(b) and, if applicable (b) a certificate in such Holder’s (or the name of such Holder’s designee as stated in the written election) for the number of Shares of Series D Preferred Stock (including any fractional share) represented by the certificate or certificates delivered to the Corporation for conversion but otherwise not elected to be converted pursuant to the written election. All shares of capital stock issued hereunder by the Corporation shall be duly and validly issued, fully paid, and nonassessable, free and clear of all taxes, liens, charges, and encumbrances with respect to the issuance thereof.

(ii)                Procedures for Automatic Conversion. As of the closing of a Qualified Public Offering or a Liquidity Event, all outstanding Shares of Series D Preferred Stock shall be converted to the number of shares of Common Stock calculated pursuant to Section 5(b) without any further action by the relevant Holder of such Preferred Shares or the Corporation. As promptly as practicable following such closing (but in any event within 5 days thereafter), the Corporation shall send each Holder of Shares of Series D Preferred Stock written notice of such event. Upon receipt of such notice, each Holder shall surrender to the Corporation the certificate or certificates representing the Preferred Shares being converted, duly assigned, or endorsed for transfer to the Corporation (or accompanied by duly executed stock powers relating thereto) or, in the event the certificate or certificates are lost, stolen, or missing, accompanied by an affidavit of loss executed by the Holder. Upon the surrender of such certificate(s) and accompanying materials, the Corporation shall as promptly as practicable (but in any event within 10 days) thereafter) deliver to the relevant Holder (i) in the case of a Qualified Public Offering a certificate in such Holder’s name (or the name of such Holder’s designee as stated in the written election) for the number of shares of Common Stock (including any fractional share) to which such Holder shall be entitled upon conversion of the applicable Preferred Shares or (ii) in the case of a Liquidity Event, payment by check or wire transfer of the cash consideration payable with respect to the Common Stock resulting from such conversion. All shares of Common Stock issued hereunder by the Corporation shall be duly and validly issued, fully paid, and nonassessable, free and clear of all taxes, liens, charges, and encumbrances with respect to the issuance thereof.

Section 6. Other Provisions.

(a)    Reservation of Common Stock. The Corporation shall at all times reserve at least the number of shares of Common Stock as shall from time to time be necessary to effect the conversion of all of the Preferred Shares then outstanding.

(b)   Record Holders. The Corporation shall maintain a register (the “Register”) for the recordation of the names and addresses of the Holders of each Preferred Share and the Stated Value of the Preferred Shares. The entries in the Register shall be conclusive and binding for all purposes absent manifest error. The Corporation and each Holder of the Preferred Shares shall treat each Person whose name is recorded in the Register as the owner of a Preferred Share for all purposes notwithstanding notice to the contrary.

(c)    Transfer of Preferred Shares. A Holder may transfer some or all of its Preferred Shares without the consent of the Corporation, subject to compliance with the Securities Act of 1933, as amended. If any Preferred Shares are to be transferred, the applicable Holder shall surrender the applicable Preferred Share Certificate to the Corporation, whereupon the Corporation will forthwith issue and deliver upon the order of such Holder a new Preferred Share Certificate, registered as such Holder may request, representing the outstanding number of Preferred Shares being transferred by such Holder and, if less than the entire outstanding number of Preferred Shares is being transferred, a new Preferred Share Certificate to such Holder representing the outstanding number of Preferred Shares not being transferred.

(d)   Lost, Stolen or Mutilated Preferred Share Certificate. Upon receipt by the Corporation of evidence reasonably satisfactory to the Corporation of the loss, theft, destruction or mutilation of a Preferred Share Certificate and, in the case of loss, theft or destruction, of any indemnification undertaking by the applicable Holder to the Corporation in customary and reasonable form and, in the case of mutilation, upon surrender and cancellation of such Preferred Share Certificate, the Corporation shall execute and deliver to such Holder a new Preferred Share Certificate representing the applicable outstanding number of Preferred Shares.

Section 7. Restriction and Limitations. Except as expressly provided herein or as required by law, so long as any Preferred Shares remain outstanding, the Corporation shall not, without the vote or written consent of all of the Holders, take any action which would adversely and materially affect any of the preferences, limitations or relative rights of the Series D Preferred Stock.

Section 8. Certain Adjustments. If the Corporation, at any time while any Preferred Shares remain outstanding: (A) shall pay a stock dividend or otherwise make a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable in shares of Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Corporation pursuant to the conversion of the Series D Preferred Stock), (B) subdivide outstanding shares of Common Stock into a larger number of shares, or (C) combine (including by way of reverse stock split) outstanding shares of Common Stock into a smaller number of shares, the Conversion Ratio and Conversion Price shall be adjusted proportionately.

Section 9. Equal Treatment of Holders. No consideration (including any modification of this Certificate of Designation or related transaction document) shall be offered or paid to any person or entity to amend or consent to a waiver or modification of any provision of this Certificate of Designation or transaction document unless the same consideration is also offered to all of the Holders. For clarification purposes, this provision constitutes a separate right granted to each Holder by the Corporation and negotiated separately by each Holder, and is intended for the Corporation to treat all Holders as a class and shall not in any way be construed as such Holders acting in concert or as a group with respect to the purchase, disposition or voting of the Series D Preferred Stock or otherwise.

Section 10. Definitions. For purposes of this Agreement, the following terms shall have the following meanings.

“Liquidity Event” means a merger, sale of all or substantially all of the Corporation’s assets or sale of all of the Corporation’s Common Stock pursuant to which the cash consideration, net of expenses, payable to holders of Common Stock, including the Common Stock underlying the Preferred Shares, is at least $1.20 per share of Common Stock (appropriately adjusted for stock splits, stock dividends, combinations, recapitalizations and the like).

“Qualified Public Offering” means the sale, in a firm commitment underwritten public offering led by a nationally recognized underwriting firm pursuant to an effective registration statement under the Securities Act, of Common Stock of the Corporation having an aggregate offering value (net of underwriters’ discounts and selling commissions) of at least $10 million and a price per share of Common Stock of at least $1.20 (appropriately adjusted for stock splits, stock dividends, combinations, recapitalizations, and the like), following which the Common Stock of the Corporation shall be listed on any national securities exchange registered with the Securities and Exchange Commission under Section 6(a) of the Securities Exchange Act of 1934, as amended.

IN WITNESS THEREOF, this Certificate of Designation is executed on behalf of the Corporation by its Chief Executive Officer as of October 30, 2020.

Exhibit 10.1

AGREEMENT AND PLAN OF MERGER

among

POWERVERDE INC.,

374WATER ACQUISITION CORP.

and

374WATER, INC.

April 16, 2021

TABLE OF CONTENTS

LIST OF EXHIBITS AND SCHEDULES

Exhibits

Parent Disclosure Schedules

AGREEMENT AND PLAN OF MERGER

THIS AGREEMENT AND PLAN OF MERGER is made and entered into as of April 16, 2021, by and among POWERVERDE INC., a Delaware corporation (“Parent”), 374WATER ACQUISITION CORP., a Delaware corporation and wholly-owned subsidiary of Parent (“Acquisition Corp.”), and 374WATER, INC., a Delaware corporation (the “Company”).

W I T N E S S E T H:

WHEREAS, the Board of Directors of each of Acquisition Corp., Parent and the Company have each determined that it is fair to and in the best interests of their respective corporations and shareholders for Acquisition Corp. to be merged with and into the Company (the “Merger”) upon the terms and subject to the conditions set forth herein;

WHEREAS, the Board of Directors of Acquisition Corp. and the Board of Directors of the Company have approved the Merger in accordance with the General Corporation Law of the State of Delaware (the “DGCL”), and upon the terms and subject to the conditions set forth herein and in the Certificate of Merger (the “Certificate of Merger”) attached as Exhibit “A” hereto; and the Board of Directors of Parent has also approved this Agreement and the Certificate of Merger; and

WHEREAS, the requisite Stockholders (as such term is defined in Section 10 hereof) have approved, by written consent pursuant to Sections 228 and 251 of the DGCL, this Agreement and the Certificate of Merger and the transactions contemplated hereby and thereby, including without limitation, the Merger, and Parent, as the sole stockholder of Acquisition Corp., has approved this Agreement, the Certificate of Merger and the transactions contemplated and described hereby and thereby, including without limitation, the Merger.

NOW, THEREFORE, in consideration of the mutual agreements and covenants hereinafter set forth, the parties hereto agree as follows:

1.                   The Merger.

1.1               Merger. Subject to the terms and conditions of this Agreement and the Certificate of Merger, Acquisition Corp. shall be merged with and into the Company in accordance with Section 251 of the DGCL. At the Effective Time (as hereinafter defined), the separate legal existence of Acquisition Corp. shall cease, and the Company shall be the surviving corporation in the Merger (sometimes hereinafter referred to as the “Surviving Corporation”) and shall continue its corporate existence under the laws of the State of Delaware under the name 374Water, Inc.

1.2                Effective Time. The Merger shall become effective on the date and at the time the Certificate of Merger is filed with the Secretary of State of the State of Delaware in accordance with Section 251 of the DGCL. The time at which the Merger shall become effective as aforesaid is referred to hereinafter as the “Effective Time.”

1.3                 Certificate of Incorporation; By-laws, Directors and Officers; Parent Name Change.

(a)                The Certificate of Incorporation of the Company, as in effect immediately prior to the Effective Time, shall be the Certificate of Incorporation of the Surviving Corporation from and after the Effective Time until further amended in accordance with applicable law.

(b)               The By-laws of the Company, as in effect immediately prior to the Effective Time, shall be the By-laws of the Surviving Corporation from and after the Effective Time until amended in accordance with applicable law, the Certificate of Incorporation of the Surviving Corporation and such By-laws.

(c)                The directors and officers listed in Exhibit “B” hereto shall be the directors and officers of the Surviving Corporation and the Parent, and each shall hold his respective office or offices from and after the Effective Time (except, in the case of directors, as described in Section 6.4) until his successor shall have been elected and shall have qualified in accordance with applicable law, or as otherwise provided in the Certificate of Incorporation or By-laws of the Surviving Corporation.

(d)               As soon as practicable following the Effective Time, the Parent shall file a certificate of amendment to its certificate of incorporation changing its name to PowerVerde Solar Corporation.

1.4                 Assets and Liabilities. At the Effective Time, the Surviving Corporation shall possess all the rights, privileges, powers and franchises of a public as well as of a private nature, and be subject to all the restrictions, disabilities and duties of each of Acquisition Corp. and the Company (collectively, the “Constituent Corporations”); and all the rights, privileges, powers and franchises of each of the Constituent Corporations, and all property, real, personal and mixed, and all debts due to any of the Constituent Corporations on whatever account, as well for stock subscriptions as all other things in action or belonging to each of the Constituent Corporations, shall be vested in the Surviving Corporation; and all property, rights, privileges, powers and franchises, and all and every other interest shall be thereafter as effectively the property of the Surviving Corporation as they were of the several and respective Constituent Corporations, and the title to any real estate vested by deed or otherwise in either of the such Constituent Corporations shall not revert or be in any way impaired by the Merger; but all rights of creditors and all liens upon any property of any of the Constituent Corporations shall be preserved unimpaired, and all debts, liabilities and duties of the Constituent Corporations shall thenceforth attach to the Surviving Corporation, and may be enforced against it to the same extent as if said debts, liabilities and duties had been incurred or contracted by it.

1.5                 Manner and Basis of Converting Shares.

(a)                 At the Effective Time:

                                                                                                   (i)                  each share of common stock, $.001 par value, of Acquisition Corp. that shall be outstanding immediately prior to the Effective Time shall, by virtue of the Merger and without any action on the part of the holder thereof, be converted into the right to receive one share of common stock, par value $.001 per share, of the Surviving Corporation, so that at the Effective Time, Parent shall be the holder of all of the issued and outstanding shares of the Surviving Corporation;

                                                                                                  (ii)                 the shares of common stock, par value $.001 per share, of the Company (the “Company Common Stock”), which shares at the Closing will constitute all of the issued and outstanding shares of capital stock of the Company, beneficially owned by the Stockholders listed in the Company Disclosure Schedule (other than shares of Company Common Stock as to which appraisal rights are perfected pursuant to the applicable provisions of the DGCL and not withdrawn or otherwise forfeited), shall, by virtue of the Merger and without any action on the part of the holders thereof, be converted into the right to receive 7,854.32 shares of Parent Common Stock for each share of Company Common Stock, subject to adjustment as set forth in Section 1.5(a)(iii); and

                                                                                                   (iii)                90 days following Closing, Parent and Company shall audit the stock ledgers of Parent and to the extent that there are shares of issued and outstanding Parent capital stock or warrants, options, convertible notes or other securities convertible into the capital stock of Parent, in either case not taken into account in the determination of the number of shares of Parent Common Stock issued under Section 1.5(a)(ii), the number of shares of Parent Common Stock issued to the Stockholders listed in the Company Disclosure Schedule shall be increased to reflect the final capitalization of Parent as determined in any such audit.

(b)                After the Effective Time, there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the shares of Company Common Stock that were outstanding immediately prior to the Effective Time.

1.6                 Surrender and Exchange of Certificates. Promptly after the Effective Time and upon (i) surrender of a certificate or certificates representing shares of Company Common Stock that were outstanding immediately prior to the Effective Time or an affidavit and indemnification in form reasonably acceptable to counsel for the Parent stating that such Stockholder has lost its certificate or certificates or that such have been destroyed and (ii) delivery of a Representation Letter (as described in Section 4 hereof), Parent shall issue to each record holder of the Company Common Stock surrendering such certificate or certificates and Representation Letter, a certificate or certificates registered in the name of such Stockholder representing the number of shares of Parent Common Stock that such Stockholder shall be entitled to receive as set forth in Section 1.5(a)(ii) hereof. Until the certificate, certificates or affidavit is or are surrendered together with the Representation letter as contemplated by this Section 1.6 and Section 4 hereof, each certificate or affidavit that immediately prior to the Effective Time represented any outstanding shares of Company Common Stock shall be deemed at and after the Effective Time to represent only the right to receive upon surrender as aforesaid 7,854.32 shares of Parent Common Stock, subject to adjustment as set forth in Section1.5(a)(iii), for each share of Company Stock previously held or to perfect any rights of appraisal which such holder may have pursuant to the applicable provisions of the DGCL.

1.7                Parent Common Stock. Parent agrees that it will cause the Parent Common Stock into which the Company Common Stock is converted at the Effective Time pursuant to Section 1.5(a)(ii) to be available for such purpose. Parent further covenants that immediately prior to the Effective Time there will be no more than 27,878,060 shares of Parent Common Stock issued and outstanding, and, except as set forth in Schedule 3.4 or in the Parent SEC Documents, that no other common or preferred stock or equity securities or any options, warrants, rights or other agreements or instruments convertible, exchangeable or exercisable into common or preferred stock or other equity securities shall be issued or outstanding.

2.                   Representations and Warranties of the Company. Except as set forth in the Company Disclosure Schedule, the Company hereby represents and warrants to each of Parent and Acquisition Corp. as follows:

2.1                 Organization, Standing, Subsidiaries, Etc.

(a)                 The Company is a corporation duly organized and existing in good standing under the laws of the State of Delaware, and has all requisite power and authority (corporate and other) to carry on its business, to own or lease its properties and assets, to enter into this Agreement and the Certificate of Merger and to carry out the terms hereof and thereof. Copies of the Certificate of Incorporation and By-laws of the Company that have been delivered to Parent and Acquisition Corp. prior to the execution of this Agreement are true and complete and have not since been amended or repealed.

(b)                 The Company has no subsidiaries or direct or indirect interest (by way of stock ownership or otherwise) in any firm, corporation, limited liability company, partnership, association or business.

2.2                 Qualification.  The Company is duly qualified to conduct business as a foreign corporation and is in good standing in each jurisdiction wherein the nature of its activities or its properties owned or leased makes such qualification necessary, except where the failure to be so qualified would not have a material adverse effect on the condition (financial or otherwise), properties, assets, liabilities, business operations, results of operations or prospects of the Company taken as a whole (the “Condition of the Company”).

2.3                Capitalization of the Company. The authorized capital stock of the Company consists of 10,000 shares of Company Common Stock, and the Company has no authority to issue any other capital stock. There are 8,150 shares of Company Common Stock issued and outstanding, and such shares are duly authorized, validly issued, fully paid and nonassessable. The Company has no outstanding warrants, stock options, rights or commitments to issue Company Common Stock or other Equity Securities of the Company, and there are no outstanding securities convertible or exercisable into or exchangeable for Company Common Stock or other Equity Securities of the Company.

2.4                Company Stockholders. The Company Disclosure Schedule contains a true and complete table setting forth the names of the record owners of all of the outstanding shares of Company Common Stock and other Equity Securities of the Company, together with the number and percentage (on a fully-diluted basis) of securities held. To the knowledge of the Company, there is no voting trust, agreement or arrangement among any of the beneficial holders of Company Common Stock affecting the exercise of the voting rights of Company Common Stock.

2.5                 Corporate Acts and Proceedings. The execution, delivery and performance of this Agreement and the Certificate of Merger (together, the “Merger Documents”) have been duly authorized by the Board of Directors of the Company and have been approved by the requisite vote of the Stockholders, and all of the corporate acts and other proceedings required for the due and valid authorization, execution, delivery and performance of the Merger Documents and the consummation of the Merger have been validly and appropriately taken, except for the filing of the Certificate of Merger referred to in Section 1.2.

2.6                 Compliance with Laws and Instruments. To the knowledge of the Company, the business, products and operations of the Company have been and are being conducted in compliance in all material respects with all applicable laws, rules and regulations, except for such violations thereof for which the penalties, in the aggregate, would not have a material adverse effect on the Condition of the Company. Except as set forth in the Company Disclosure Schedule, the execution, delivery and performance by the Company of the Merger Documents and the consummation by the Company of the transactions contemplated by this Agreement: (a) will not require any authorization, consent or approval of, or filing or registration with, any court or governmental agency or instrumentality, except such as shall have been obtained prior to the Closing, (b) will not cause the Company to violate or contravene in any material respect (i) any provision of law, (ii) any rule or regulation of any agency or government, (iii) any order, judgment or decree of any court, or (iv) any provision of the Certificate of Incorporation or By-laws of the Company, (c) will not violate or be in conflict with, result in a breach of or constitute (with or without notice or lapse of time, or both) a default under, any indenture, loan or credit agreement, deed of trust, mortgage, security agreement or other contract, agreement or instrument to which the Company is a party or by which the Company or any of its properties is bound or affected, except as would not have a material adverse effect on the Condition of the Company, and (d) will not result in the creation or imposition of any material Lien upon any property or asset of the Company.

2.7                 Binding Obligations. The Merger Documents constitute the legal, valid and binding obligations of the Company and are enforceable against the Company in accordance with their respective terms.

2.8                Broker’s and Finder’s Fees. No Person has, or as a result of the transactions contemplated herein will have any right or valid claim against the Company or, to the knowledge of the Company, any Stockholder for any commission, fee or other compensation as a finder or broker, or in any similar capacity.

2.9                 Financial Statements. The Company has delivered to Parent its audited Balance Sheet, Statement of Operations, Statement of Stockholders’ Equity and Statement of Cash Flows as of and for the period from January 1, 2019, through December 31, 2020 (the “Balance Sheet Date”). Such financial statements (i) are in accordance with the books and records of the Company, (ii) present fairly in all material respects the financial Condition of the Company as of the dates therein specified and the results of its operations and its cash flows for the periods therein specified and (iii) have been prepared in accordance with generally accepted accounting principles in the United States of America (“US GAAP”) applied on a basis consistent with prior accounting periods.

2.10               Absence of Undisclosed Liabilities. The Company has no material obligation or liability (whether accrued, absolute, contingent, liquidated or otherwise, whether due or to become due), arising out of any transaction entered into at or prior to the Closing, except (a) as disclosed in the Company Disclosure Schedule, (b) to the extent set forth on or reserved against in the Balance Sheet, (c) liabilities incurred and obligations under agreements entered into in the usual and ordinary course of business, none of which (individually or in the aggregate) has had or will have a material adverse effect on the Condition of the Company and (d) by the specific terms of any written agreement, document or arrangement identified in the Company Disclosure Schedule.

2.11              Changes. Since December 31, 2020, except as disclosed in the Company Disclosure Schedule, the Company has not (a) incurred any debts, obligations or liabilities, absolute, accrued, contingent or otherwise, whether due or to become due, except for fees, expenses and liabilities incurred in connection with the Merger and related transactions and current liabilities incurred in the usual and ordinary course of business, (b) discharged or satisfied any Liens other than those securing, or paid any obligation or liability other than, current liabilities shown on the Balance Sheet and current liabilities incurred since December 31, 2020, in each case in the usual and ordinary course of business, (c) mortgaged, pledged or subjected to Lien any of its assets, tangible or intangible, other than in the usual and ordinary course of business, (d) sold, transferred or leased any of its assets, except in the usual and ordinary course of business, (e) cancelled or compromised any debt or claim, or waived or released any right, of material value, (f) suffered any physical damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting the Condition of the Company, (g) entered into any transaction other than in the usual and ordinary course of business, (h) encountered any labor union difficulties, (i) made or granted any wage or salary increase or made any increase in the amounts payable under any profit sharing, bonus, deferred compensation, severance pay, insurance, pension, retirement or other employee benefit plan, agreement or arrangement, other than in the ordinary course of business consistent with past practice, or entered into any employment agreement, (j) issued or sold any shares of capital stock, bonds, notes, debentures or other securities or granted any options (including employee stock options), warrants or other rights with respect thereto, (k) declared or paid any dividends on or made any other distributions with respect to, or purchased or redeemed, any of its outstanding capital stock, (l) suffered or experienced any change in, or condition affecting, the financial Condition of the Company other than changes, events or conditions in the usual and ordinary course of its business, none of which (either by itself or in conjunction with all such other changes, events and conditions) could reasonably be expected to have a material adverse effect on the Condition of the Company, (m) made any change in the accounting principles, methods or practices followed by it or depreciation or amortization policies or rates theretofore adopted, (n) made or permitted any amendment or termination of any material contract, agreement or license to which it is a party, (o) suffered any material loss not reflected in the Company Balance Sheet or its statement of income for the year ended on the Company Balance Sheet Date, (p) paid, or made any accrual or arrangement for payment of, bonuses or special compensation of any kind or any severance or termination pay to any present or former officer, director, employee, stockholder or consultant, (q) made or agreed to make any charitable contributions or incurred any non-business expenses in excess of $100,000 in the aggregate, or (r) entered into any agreement, or otherwise obligated itself, to do any of the foregoing.

2.12              Tax Returns and Audits. All required federal, state and local Tax Returns of the Company have been accurately prepared in all material respects and duly and timely filed, and all federal, state and local Taxes required to be paid with respect to the periods covered by such returns have been paid to the extent that the same are material and have become due, except where the failure so to file or pay could not reasonably be expected to have a material adverse effect upon the Condition of the Company. The Company is not and has not been delinquent in the payment of any Tax. The Company has not had a Tax deficiency assessed against it. None of the Company’s federal income tax returns nor any state or local income or franchise tax returns has been audited by governmental authorities. The reserves for Taxes reflected on the Company’s Balance Sheet are sufficient for the payment of all unpaid Taxes payable by the Company with respect to the period ended on the Company’s Balance Sheet Date. There are no federal, state, local or foreign audits, actions, suits, proceedings, investigations, claims or administrative proceedings relating to Taxes or any Tax Returns of the Company now pending, and the Company has not received any notice of any proposed audits, investigations, claims or administrative proceedings relating to Taxes or any Tax Returns.

2.13              Employee Benefit Plans; ERISA. Schedule 2.13 lists any: (i) “employee benefit plans” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), maintained or contributed to by the Company and covering employees of the Company, including (x) any such plans that are “employee welfare benefit plans” as defined in Section 3(1) of ERISA and (y) any such plans that are “employee pension benefit plans” as defined in Section 3(2) of ERISA (collectively, the “Company Benefit Plans”); or (ii) life and health insurance, hospitalization, savings, bonus, deferred compensation, incentive compensation, holiday, vacation, severance pay, sick pay, sick leave, disability, tuition refund, service award, company car, scholarship, relocation, patent award, fringe benefit and other employee benefit plans, contracts (other than individual employment, consultancy or severance contracts), policies or practices of the Company providing employee or executive compensation or benefits to its employees, other than the Company Benefit Plans (collectively, the “Benefit Arrangements”). Each Company Benefit Plan and Benefit Arrangement has been maintained and administered in all material respects in accordance with applicable law.

2.14              Title to Property and Encumbrances. Except as set forth in the Company Disclosure Schedule, the Company has good, valid and indefeasible marketable title to all properties and assets used in the conduct of its business (except for property held under valid and subsisting leases which are in full force and effect and which are not in default) free of all Liens and other encumbrances, except Permitted Liens and such ordinary and customary imperfections of title, restrictions and encumbrances as do not, individually or in the aggregate, materially detract from the value of the property or assets or materially impair the use made thereof by the Company in its business. Except as set forth in the Company Disclosure Schedule, without limiting the generality of the foregoing, the Company has good and indefeasible title to all of its properties and assets reflected in the Balance Sheet, except for property disposed of in the usual and ordinary course of business since December 31, 2020, and for property held under valid and subsisting leases which are in full force and effect and which are not in default.

2.15            Litigation. There is no legal action, suit, arbitration or other legal, administrative or other governmental proceeding (other than proceedings before the United States Patent and Trademark Office or foreign counterparts thereof) pending or, to the best knowledge of the Company, threatened against or affecting the Company or its properties, assets or business, and after reasonable investigation, the Company is not aware of any incident, transaction, occurrence or circumstance that might reasonably be expected to result in or form the basis for any such action, suit, arbitration or other proceeding. The Company is not in default with respect to any order, writ, judgment, injunction, decree, determination or award of any court or any governmental agency or instrumentality or arbitration authority.

2.16              Patents, Trademarks, Etc. The Company Disclosure Schedule sets forth a list of all United States patents, trademarks, trade names, and applications therefore used by the Company exclusively in and material to the conduct of its business (the “Patent and Trademark Rights”). Except as disclosed in the Company Disclosure Schedule, (a) the Company owns or possesses adequate licenses or other valid rights to use all Patent and Trademark Rights; and (b) to the Company’s knowledge, the conduct of its business as now being conducted does not conflict with any valid patents, trademarks, trade names or copyrights of others in any way which has a material adverse effect on the business or financial condition of the Company or its business.

2.17              Interested Party Transactions. Except as disclosed in the Company Disclosure Schedule, no officer, director or stockholder of the Company or any Affiliate or “associate” (as such term is defined in Rule 405 under the Securities Act) of any such Person or the Company has or has had, either directly or indirectly, (a) an interest in any Person that (i) furnishes or sells services or products that are furnished or sold or are proposed to be furnished or sold by the Company or (ii) purchases from or sells or furnishes to the Company any goods or services, or (b) a beneficial interest in any contract or agreement to which the Company is a party or by which it may be bound or affected.

2.18              Questionable Payments. Neither the Company nor, to the knowledge of the Company, any director, officer, agent, employee or other Person associated with or acting on behalf of the Company, has used any corporate funds for unlawful contributions, gifts, entertainment or other unlawful expenses relating to political activity; made any direct or indirect unlawful payments to government officials or employees from corporate funds; established or maintained any unlawful or unrecorded fund of corporate monies or other assets; made any false or fictitious entries on the books of record of any such corporations; or made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment.

2.19              Obligations to or by Stockholders. Except as disclosed in the Company Disclosure Schedule, the Company has no liability or obligation or commitment to any stockholder of the Company or any Affiliate or “associate” (as such term is defined in Rule 405 under the Securities Act) of any stockholder of Company, nor does any stockholder of Company or any such Affiliate or associate have any liability, obligation or commitment to the Company.

2.20             Assets and Contracts. Except as expressly set forth in the Company Disclosure Schedule, the Company is not a party to any written or oral agreement that is material to the Company. Company does not own any real property. Except as disclosed in the Company Disclosure Schedule, Company is not a party to or otherwise bound by any written or oral (a) agreement with any labor union, (b) agreement for the purchase of fixed assets or for the purchase of materials, supplies or equipment in excess of normal operating requirements, (c) agreement for the employment of any officer, individual employee or other Person on a full-time basis or any agreement with any Person for consulting services, (d) bonus, pension, profit sharing, retirement, stock purchase, stock option, deferred compensation, medical, hospitalization or life insurance or similar plan, contract or understanding with respect to any or all of the employees of Company or any other Person, (e) indenture, loan or credit agreement, note agreement, deed of trust, mortgage, security agreement, promissory note or other agreement or instrument relating to or evidencing Indebtedness for Borrowed Money or subjecting any asset or property of Company to any Lien or evidencing any Indebtedness, (f) guaranty of any Indebtedness, (g) lease or agreement under which Company is lessee of or holds or operates any property, real or personal, owned by any other Person, (h) lease or agreement under which Company is lessor or permits any Person to hold or operate any property, real or personal, owned or controlled by Company, (i) agreement granting any preemptive right, right of first refusal or similar right to any Person, (j) agreement or arrangement with any Affiliate or any “associate” (as such term is defined in Rule 405 under the Securities Act) of Company or any present or former officer, director or stockholder of Company, (k) agreement obligating Company to pay any royalty or similar charge for the use or exploitation of any tangible or intangible property, (1) covenant not to compete or other restriction on its ability to conduct a business or engage in any other activity, (m) distributor, dealer, manufacturer’s representative, sales agency, franchise or advertising contract or commitment, (n) agreement to register securities under the Securities Act, (o) collective bargaining agreement, or (p) agreement or other commitment or arrangement with any Person continuing for a period of more than two months from the Closing Date that involves an expenditure or receipt by Company in excess of $100,000. Except as disclosed in the Company Disclosure Schedule, the Company maintains no insurance policies and insurance coverage of any kind with respect to Company, its business, premises, properties, assets, employees and agents. The Company Disclosure Schedule contains a true and complete list and description of each bank account, savings account, other deposit relationship and safety deposit box of Company, including the name of the bank or other depository, the account number and the names of the individuals having signature or other withdrawal authority with respect thereto. Except as disclosed in the Company Disclosure Schedule, no consent of any bank or other depository is required to maintain any bank account, other deposit relationship or safety deposit box of Company in effect following the consummation of the Merger and the transactions contemplated hereby. Company has furnished to the Parent true and complete copies of all agreements and other documents disclosed or referred to in the Company Disclosure Schedule or the Company Balance Sheet or the notes thereto, as well as any additional agreements or documents, requested by the Parent.

2.21              Employees. Except as disclosed in the Company Disclosure Schedule, other than pursuant to ordinary arrangements of consulting compensation at fair market rates, Company is not under any obligation or liability to any officer, director, employee or Affiliate of Company. The Company has no employment agreements with, or any severance payment obligations to, any of its officers or employees.

3.                   Representations and Warranties of Parent and Acquisition Corp. Parent and Acquisition Corp. jointly and severally represent and warrant to the Company as follows:

3.1                Organization and Standing. Parent is a corporation duly organized and existing in good standing under the laws of the State of Delaware. Acquisition Corp. is a corporation duly organized and existing in good standing under the laws of the State of Delaware. Parent is duly qualified to conduct business as a foreign corporation and is in good standing in each jurisdiction wherein the nature of its activities or its properties owned or leased makes such qualification necessary, except where the failure to be so qualified would not have a material adverse effect on the Condition of the Parent (as defined below). Parent and Acquisition Corp. have heretofore delivered to the Company complete and correct copies of their respective Certificates of Incorporation and By-laws as now in effect. Parent and Acquisition Corp. have full corporate power and authority to carry on their respective businesses as they are now being conducted and as now proposed to be conducted and to own or lease their respective properties and assets. Neither Parent nor Acquisition Corp. has any subsidiaries (except Parent as the sole stockholder of Acquisition Corp. and sole stockholder of PowerVerde Systems, Inc., a Delaware corporation) or direct or indirect interest (by way of stock ownership or otherwise) in any firm, corporation, limited liability company, partnership, association or business. Parent owns all of the issued and outstanding capital stock of Acquisition Corp. free and clear of all Liens, and Acquisition Corp. has no outstanding options, warrants or rights to purchase capital stock or other equity securities of Acquisition Corp., other than the capital stock owned by Parent. Unless the context otherwise requires, all references in this Section 3 to the “Parent” shall be treated as being a reference to the Parent and Acquisition Corp. taken together as one enterprise.

3.2                Corporate Authority. Each of Parent and/or Acquisition Corp. (as the case may be) has full corporate power and authority to enter into the Merger Documents and the other agreements to be made pursuant to the Merger Documents, and to carry out the transactions contemplated hereby and thereby. All corporate acts and proceedings required for the authorization, execution, delivery and performance of the Merger Documents and such other agreements and documents by Parent and/or Acquisition Corp. (as the case may be) have been duly and validly taken or will have been so taken prior to the Closing. Each of the Merger Documents constitutes a legal, valid and binding obligation of Parent and/or Acquisition Corp. (as the case may be), each enforceable against them in accordance with their respective terms.

3.3                 Broker’s and Finder’s Fees. No person, firm, corporation or other entity is entitled by reason of any act or omission of Parent or Acquisition Corp. to any broker’s or finder’s fees, commission or other similar compensation with respect to the execution and delivery of this Agreement or the Certificate of Merger, or with respect to the consummation of the transactions contemplated hereby or thereby. Parent and Acquisition Corp. jointly and severally agree to defend, indemnify and hold Company harmless from and against any and all loss, claim or liability (including attorneys fees, expert fees and all costs of court, whether or not assessable under applicable law) arising out of any such claim from any other Person who claims he, she or it introduced Parent or Acquisition Corp. to, or assisted them with, the transactions contemplated by or described herein.

3.4                 Capitalization of Parent. The authorized capital stock of Parent consists of (a) 200,000,000 shares of common stock, par value $0.0001 per share (the “Parent Common Stock”), of which not more than 27,878,060 shares will be, immediately prior to the Effective Time, issued and outstanding and (b) 50,000,000 shares of preferred stock, par value $0.0001 per share, of which no shares are issued or outstanding. The Parent SEC Documents (as defined in Section 3.7 below) contain a complete and true capitalization table setting forth the Parent common stock holdings of the officers and directors of Parent and the holders of greater than 5% of Parent Common Stock. Except as set forth in the Parent SEC Documents or on Exhibit “C”, Parent has no outstanding options, warrants, rights or commitments to issue shares of Parent Common Stock or any other Equity Security of Parent or Acquisition Corp., and there are no outstanding securities convertible or exercisable into or exchangeable for shares of Parent Common Stock or any other Equity Security of Parent or Acquisition Corp. There is no voting trust, agreement or arrangement among any of the beneficial holders of Parent Common Stock affecting the nomination or election of directors or the exercise of the voting rights of Parent Common Stock. All outstanding shares of the capital stock of Parent are validly issued and outstanding, fully paid and nonassessable, and none of such shares have been issued in violation of the preemptive rights of any person or any applicable law.

3.5                 Acquisition Corp. Acquisition Corp. is a wholly-owned subsidiary and the only subsidiary of Parent that was formed specifically for the purpose of the Merger and that has not conducted any business or acquired any property, and will not conduct any business or acquire any property prior to the Closing Date, except in preparation for and otherwise in connection with the transactions contemplated by this Agreement, the Certificate of Merger and the other agreements to be made pursuant to or in connection with this Agreement and the Certificate of Merger. The authorized capital stock of Acquisition Corp. consists of 1,000 shares of $.001 par value common stock (the “Acquisition Corp. Common Stock”), of which not more than 100 shares will be, prior to the Effective Time, issued and outstanding. Parent does not own, directly or indirectly, any capital stock or other voting securities of or ownership interests in, any Person other than Acquisition Corp and PowerVerde Systems, Inc.

3.6                Validity of Shares. All of the 64,012,734 shares of Parent Common Stock to be issued at the Closing pursuant to Section 1.5(a)(ii) hereof, when issued and delivered in accordance with the terms hereof and the Certificate of Merger, shall be duly and validly issued, fully paid and nonassessable. The issuance of the Parent Common Stock upon the Merger pursuant to Section 1.5(a)(ii) will be (i) exempt from the registration and prospectus delivery requirements of the Securities Act and from the qualification or registration requirements of any applicable state blue sky or securities laws and (ii) not be integrated with the private placement referred to ion Section 7.2(c) of this Agreement so as to cause Parent to lose the applicable federal and state exemptions from registration referred to in clause (i).

3.7                  SEC Reporting and Compliance.

(a)                  Parent has filed with the Commission all forms, reports and documents required to be filed by companies registered pursuant to Section 12(g) of the Exchange Act (collectively, the “Parent SEC Documents”). The Parent SEC Documents (i) were prepared in all material respects in accordance with the requirements of the Securities Act and the Exchange Act, as the case may be, and the rules and regulations thereunder and (ii) did not, at the time they were filed (or at the effective date thereof in the case of registration statements), contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.

(b)                Parent has not filed, and nothing has occurred with respect to which Parent would be required to file, any report on Form 8-K since December 31, 2020. Prior to and until the Closing, Parent will provide to the Company copies of any and all amendments or supplements to the Parent SEC Documents filed with the Commission since December 31, 2020 and any and all subsequent statements, reports and filings filed by the Parent with the Commission or delivered to the stockholders of Parent.

(c)                 Parent is not an investment company within the meaning of Section 3 of the Investment Company Act.

(d)                The shares of Parent Common Stock are quoted on the OTC Bulletin Board under the symbol “PWV1”, and Parent is in compliance in all material respects with all rules and regulations of the OTC Bulletin Board applicable to it and the Parent Stock.

(e)                 Between the date hereof and the Closing Date, Parent shall continue to satisfy the filing requirements of the Exchange Act and all other requirements of applicable securities laws and the OTC Bulletin Board and, as of the Closing Date, the Parent Common Stock shall be listed on the OTC Bulletin Board.

(f)                  Parent has otherwise complied in all material respects with the Securities Act, Exchange Act and all other applicable federal and state securities laws.

(g)                The private placement referred to in Section 7.2(c) of this Agreement will have been conducted in compliance in all material respects with the Securities Act, Exchange Act and all other applicable federal and state securities laws, including being exempt from registration under federal and state securities laws, and all shares of the capital stock of Parent issued in such private placement will be validly issued and outstanding, fully paid and nonassessable, and none of such shares will have been issued in violation of the preemptive rights of any person or any applicable law.

(h)                 Parent has not received any unresolved comment letter from the SEC or the staff thereof or any correspondence from the Financial Industry Regulatory Authority or the staff thereof relating to Parent SEC Documents or the trading of the Parent Common Stock on the OTC Bulletin Board.

3.8                 Financial Statements. The balance sheets, and statements of operations, statements of changes in shareholders’ equity and statements of cash flows contained in the Parent SEC Documents (the “Parent Financial Statements”) (i) have been prepared in accordance with US GAAP applied on a basis consistent with prior periods (and, in the case of unaudited financial information, on a basis consistent with year-end audits), (ii) are in accordance with the books and records of the Parent, and (iii) present fairly in all material respects the financial Condition of the Parent at the dates therein specified and the results of its operations and changes in financial position for the periods therein specified. The financial statements included in the Annual Report on Form 10-K for the fiscal year ended December 31, 2020, are audited by, and include the related report of D. Brooks and Associates CPAs, P.A., Parent’s independent registered public accounting firm. To the knowledge of Parent, D. Brooks and Associates CPAs, P.A. has been at all time since January 1, 2019 (i) a registered public accounting firm (as defined in Section 2(a)(12) of the Sarbanes-Oxley Act, (ii) “independent” with respect to Parent within the meaning of Regulation S-X under the Exchange Act, and (iii) in compliance with subsections (g) through (l) of Section 10A of the Exchange Act and the rules and regulations promulgated by the SEC thereunder.

3.9                 Governmental Consents. All consents, approvals, orders, or authorizations of, or registrations, qualifications, designations, declarations, or filings with any federal or state governmental authority on the part of Parent or Acquisition Corp. required in connection with the consummation of the Merger shall have been obtained prior to, and be effective as of, the Closing.

3.10              Compliance with Laws and Instruments. The execution, delivery and performance by Parent and/or Acquisition Corp. of this Agreement, the Certificate of Merger and the other agreements to be made by Parent or Acquisition Corp. pursuant to or in connection with this Agreement or the Certificate of Merger and the consummation by Parent and/or Acquisition Corp. of the transactions contemplated by the Merger Documents will not cause Parent and/or Acquisition Corp. to violate or contravene (i) any provision of law, (ii) any rule or regulation of any agency or government, (iii) any order, judgment or decree of any court, or (v) any provision of their respective articles or certificate of incorporation or by-laws as amended and in effect on and as of the Closing Date and will not violate or be in conflict with, result in a breach of or constitute (with or without notice or lapse of time, or both) a default under any indenture, loan or credit agreement, deed of trust, mortgage, security agreement or other agreement or contract to which Parent or Acquisition Corp. is a party or by which Parent and/or Acquisition Corp. or any of their respective properties is bound.

3.11              No General Solicitation. In issuing Parent Common Stock in the Merger hereunder, neither Parent nor anyone acting on its behalf has offered to sell the Parent Common Stock by any form of general solicitation or advertising.

3.12              Binding Obligations. The Merger Documents constitute the legal, valid and binding obligations of Parent and Acquisition Corp., and are enforceable against Parent and Acquisition Corp., in accordance with their respective terms.

3.13              Absence of Undisclosed Liabilities. Neither Parent nor Acquisition Corp. has any obligation or liability (whether accrued, absolute, contingent, liquidated or otherwise, whether due or to become due), arising out of any transaction entered into at or prior to the Closing, except (a) as disclosed in the Parent SEC Documents, (b) to the extent set forth on or reserved against in the audited balance sheet of Parent as of December 31, 2020 (the “Parent Balance Sheet”) or the Notes to the Parent Financial Statements, (c) current liabilities incurred and obligations under agreements entered into in the usual and ordinary course of business since December 31, 2020 (the “Parent Balance Sheet Date”), none of which (individually or in the aggregate) materially and adversely affects the condition (financial or otherwise), properties, assets, liabilities, business operations, results of operations or prospects of the Parent or Acquisition Corp., taken as a whole (the “Condition of the Parent”), as disclosed on a Schedule attached to this Agreement, and (e) by the specific terms of any written agreement, document or arrangement attached as an exhibit to the Parent SEC Documents.

3.14              Changes. Since the Parent Balance Sheet Date, except as disclosed in the Parent SEC Documents or on Schedule 3.14, the Parent has not (a) incurred any debts, obligations or liabilities, absolute, accrued or, to the Parent’s knowledge, contingent, whether due or to become due, except for current liabilities incurred in the usual and ordinary course of business, (b) discharged or satisfied any Liens other than those securing, or paid any obligation or liability other than, current liabilities shown on the Parent Balance Sheet and current liabilities incurred since the Parent Balance Sheet Date, in each case in the usual and ordinary course of business, (c) mortgaged, pledged or subjected to Lien any of its assets, tangible or intangible, other than in the usual and ordinary course of business, (d) sold, transferred or leased any of its assets, except in the usual and ordinary course of business, (e) cancelled or compromised any debt or claim, or waived or released any right of material value, (f) suffered any physical damage, destruction or loss (whether or not covered by insurance) which could reasonably be expected to have a material adverse effect on the Condition of the Parent, (g) entered into any transaction other than in the usual and ordinary course of business, (h) encountered any labor union difficulties, (i) made or granted any wage or salary increase or made any increase in the amounts payable under any profit sharing, bonus, deferred compensation, severance pay, insurance, pension, retirement or other employee benefit plan, agreement or arrangement, other than in the ordinary course of business consistent with past practice, or entered into any employment agreement, (j) issued or sold any shares of capital stock, bonds, notes, debentures or other securities or granted any options (including employee stock options), warrants or other rights with respect thereto, (k) declared or paid any dividends on or made any other distributions with respect to, or purchased or redeemed, any of its outstanding capital stock, (l) suffered or experienced any change in, or condition affecting, the financial Condition of the Parent other than changes, events or conditions in the usual and ordinary course of its business, none of which (either by itself or in conjunction with all such other changes, events and conditions) could reasonably be expected to have a material adverse effect on the Condition of the Parent, (m) made any change in the accounting principles, methods or practices followed by it or depreciation or amortization policies or rates theretofore adopted, (n) made or permitted any amendment or termination of any material contract, agreement or license to which it is a party, (o) suffered any material loss not reflected in the Parent Balance Sheet or its statement of income for the year ended on the Parent Balance Sheet Date, (p) paid, or made any accrual or arrangement for payment of, bonuses or special compensation of any kind or any severance or termination pay to any present or former officer, director, employee, stockholder or consultant, (q) made or agreed to make any charitable contributions or incurred any non-business expenses in excess of $50,000 in the aggregate, or (r) entered into any agreement, or otherwise obligated itself, to do any of the foregoing.

3.15              Tax Returns and Audits. All required federal, state and local Tax Returns of the Parent have been accurately prepared in all material respects and duly and timely filed, and all federal, state and local Taxes required to be paid with respect to the periods covered by such returns have been paid to the extent that the same are material and have become due, except where the failure so to file or pay could not reasonably be expected to have a material adverse effect upon the Condition of the Parent. The Parent is not and has not been delinquent in the payment of any Tax. The Parent has not had a Tax deficiency assessed against it. None of the Parent’s federal income tax returns nor any state or local income or franchise tax returns has been audited by governmental authorities. The reserves for Taxes reflected on the Parent Balance Sheet are sufficient for the payment of all unpaid Taxes payable by the Parent with respect to the period ended on the Parent Balance Sheet Date. There are no federal, state, local or foreign audits, actions, suits, proceedings, investigations, claims or administrative proceedings relating to Taxes or any Tax Returns of the Parent now pending, and the Parent has not received any notice of any proposed audits, investigations, claims or administrative proceedings relating to Taxes or any Tax Returns.

3.16              Employee Benefit Plans; ERISA.

(a)                 Except as disclosed in the Parent SEC Documents, there are no “employee benefit plans” (within the meaning of Section 3(3) of ERISA) nor any other employee benefit or fringe benefit arrangements, practices, contracts, policies or programs other than programs merely involving the regular payment of wages, commissions, or bonuses established, maintained or contributed to by the Parent. Any plans listed in the Parent SEC Documents are hereinafter referred to as the “Parent Employee Benefit Plans.”

(b)                 Any current and prior material documents, including all amendments thereto, with respect to each Parent Employee Benefit Plan have been given to the Company or its advisors.

(c)               All Parent Employee Benefit Plans are in material compliance with the applicable requirements of ERISA, the Code and any other applicable state, federal or foreign law.

(d)                 There are no pending, or to the knowledge of the Parent, threatened, claims or lawsuits which have been asserted or instituted against any Parent Employee Benefit Plan, the assets of any of the trusts or funds under the Parent Employee Benefit Plans, the plan sponsor or the plan administrator of any of the Parent Employee Benefit Plans or against any fiduciary of a Parent Employee Benefit Plan with respect to the operation of such plan.

(e)                There is no pending, or to the knowledge of the Parent, threatened, investigation or pending or possible enforcement action by the Pension Benefit Guaranty Corporation, the Department of Labor, the Internal Revenue Service or any other government agency with respect to any Parent Employee Benefit Plan.

(f)                 No actual or, to the knowledge of Parent, contingent liability exists with respect to the funding of any Parent Employee Benefit Plan or for any other expense or obligation of any Parent Employee Benefit Plan, except as disclosed on the financial statements of the Parent or the Parent SEC Documents, and to the knowledge of the Parent, no contingent liability exists under ERISA with respect to any “multi-employer plan,” as defined in Section 3(37) or Section 4001(a)(3) of ERISA.

3.17              Litigation. There is no legal action, suit, arbitration or other legal, administrative or other governmental proceeding pending or, to the knowledge of the Parent, threatened against or affecting the Parent or Acquisition Corp. or their properties, assets or business. To the knowledge of the Parent, neither Parent nor Acquisition Corp. is in default with respect to any order, writ, judgment, injunction, decree, determination or award of any court or any governmental agency or instrumentality or arbitration authority.

3.18              Interested Party Transactions. Except as disclosed in the Parent SEC Documents and on Schedule 3.14, no officer, director or stockholder of the Parent or any Affiliate or “associate” (as such term is defined in Rule 405 under the Securities Act) of any such Person or the Parent has or has had, either directly or indirectly, (a) an interest in any Person that (i) furnishes or sells services or products that are furnished or sold or are proposed to be furnished or sold by the Parent or (ii) purchases from or sells or furnishes to the Parent any goods or services, or (b) a beneficial interest in any contract or agreement to which the Parent is a party or by which it may be bound or affected.

3.19              Questionable Payments. Neither the Parent, Acquisition Corp. nor to the knowledge of the Parent, any director, officer, agent, employee or other Person associated with or acting on behalf of the Parent or Acquisition Corp., has used any corporate funds for unlawful contributions, gifts, entertainment or other unlawful expenses relating to political activity; made any direct or indirect unlawful payments to government officials or employees from corporate funds; established or maintained any unlawful or unrecorded fund of corporate monies or other assets; made any false or fictitious entries on the books of record of any such corporations; or made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment.

3.20              Obligations to or by Stockholders. Except as disclosed in the Parent SEC Documents, the Parent has no liability or obligation or commitment to any stockholder of Parent or any Affiliate or “associate” (as such term is defined in Rule 405 under the Securities Act) of any stockholder of Parent, nor does any stockholder of Parent or any such Affiliate or associate have any liability, obligation or commitment to the Parent.

3.21              Assets and Contracts. Except as disclosed in the Parent SEC Documents or on Schedule 3.21, the Parent is not a party to any written or oral agreement not made in the ordinary course of business that is material to the Parent. Parent does not own any real property. Parent is not a party to or otherwise bound by any written or oral (a) agreement with any labor union, (b) agreement for the purchase of fixed assets or for the purchase of materials, supplies or equipment in excess of normal operating requirements, (c) agreement for the employment of any officer, individual employee or other Person on a full-time basis or any agreement with any Person for consulting services, (d) bonus, pension, profit sharing, retirement, stock purchase, stock option, deferred compensation, medical, hospitalization or life insurance or similar plan, contract or understanding with respect to any or all of the employees of Parent or any other Person, (e) indenture, loan or credit agreement, note agreement, deed of trust, mortgage, security agreement, promissory note or other agreement or instrument relating to or evidencing Indebtedness for Borrowed Money or subjecting any asset or property of Parent to any Lien or evidencing any Indebtedness, (f) guaranty of any Indebtedness, (g) lease or agreement under which Parent is lessee of or holds or operates any property, real or personal, owned by any other Person, (h) lease or agreement under which Parent is lessor or permits any Person to hold or operate any property, real or personal, owned or controlled by Parent, (i) agreement granting any preemptive right, right of first refusal or similar right to any Person, (j) agreement or arrangement with any Affiliate or any “associate” (as such term is defined in Rule 405 under the Securities Act) of Parent or any present or former officer, director or stockholder of Parent, (k) agreement obligating Parent to pay any royalty or similar charge for the use or exploitation of any tangible or intangible property, (1) covenant not to compete or other restriction on its ability to conduct a business or engage in any other activity, (m) distributor, dealer, manufacturer’s representative, sales agency, franchise or advertising contract or commitment, (n) agreement to register securities under the Securities Act, (o) collective bargaining agreement, or (p) agreement or other commitment or arrangement with any Person continuing for a period of more than two months from the Closing Date that involves an expenditure or receipt by Parent in excess of $100,000. Parent has furnished to the Company true and complete copies of all agreements and other documents disclosed or referred to in Schedule 3.21, as well as any additional agreements or documents requested by the Company.

3.22              Employees. Other than pursuant to ordinary arrangements of employment compensation, Parent is not under any obligation or liability to any officer, director, employee or Affiliate of Parent. The Company has no employment agreements with, or any severance payment obligations to, any of its current or former officers or employees.

3.23              Patents, Trademarks, Etc. The Parent SEC Documents disclose all of Parent’s Patent and Trademark rights. Except as disclosed in the Parent SEC Documents, (a) Parent owns or possesses adequate licenses or other valid rights to use all Patent and Trademark Rights; and (b) to Patent’s knowledge, the conduct of its business as now being conducted does not conflict with any valid patents, trademarks, trade names or copyrights of others in any way which has a material adverse effect on the business or financial Condition of the Parent or its business.

3.24              Disclosure. There is no fact relating to Parent that Parent has not disclosed to the Company in writing or disclosed in Parent SEC Documents or in any schedules or exhibits attached hereto or incorporated herein that materially and adversely affects nor, insofar as Parent can now foresee, will materially and adversely affect, the condition (financial or otherwise), properties, assets, liabilities, business operations, results of operations or prospects of Parent. No representation or warranty by Parent herein and no information disclosed in the schedules or exhibits hereto by Parent contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements contained herein or therein not misleading.

3.25              Broker’s and Finder’s Fees. No Person has, or as a result of the transactions contemplated herein will have any right or valid claim against Parent or Acquisition Corp. for any commission, fee or other compensation as a finder or broker, or in any similar capacity.

3.26              Controls and Procedures. Parent maintains internal control over financial reporting that provides assurance that (i) records are maintained in reasonable detail and accurately and fairly reflect the transactions and dispositions of Parent’s assets, (ii) transactions are executed with management’s authorization and (iii) transactions are recorded as necessary to permit preparation of the Parent Financial Statements and to maintain accountability for Parent’s assets. Parent maintains disclosure controls and procedures required by Rules 13a-15 or 15d-15 under the Exchange Act, and such controls and procedures are effective to provide reasonable assurance that material information concerning Parent is made known on a timely basis to management.

4.                   Investment Letter. At or prior to the Closing, Parent shall have received from each of the Company’s shareholders a representation letter in standard form for private placement transactions under the SEC’s Rule 506 (a “Representation Letter”) agreeing that the shares of Parent Common Stock to be issued in the merger are, among other things, being acquired for investment purposes and not with a view to public resale, are being acquired for the shareholder’s own account, and that the shares of Parent Common Stock are restricted and may not be resold without registration, except in reliance on an exemption therefrom under the Securities Act.

5.                   Conduct of Businesses Pending the Merger.

5.1                 Conduct of Business by the Company Pending the Merger. Prior to the Effective Time, unless Parent or Acquisition Corp. shall otherwise agree in writing or as otherwise contemplated by this Agreement or disclosed in any Schedule to this Agreement:

(a)                 the business of the Company shall be conducted only in the ordinary course;

(b)                the Company shall not (i) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (ii) amend its Certificate of Incorporation or By-laws; or (iii) split, combine or reclassify the outstanding Company Common Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock;

(c)                the Company shall not (i) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire any shares of, Company Common Stock; (ii) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business; (iii) incur additional Indebtedness or any other liabilities or enter into any other transaction other than in the ordinary course of business; (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing; or (v) except as contemplated by this Agreement, enter into any contract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business combination;

(d)                the Company shall use its best efforts to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it; and

(e)                 the Company will not enter into any new employment agreements with any of its officers or employees or grant any increases in the compensation or benefits of its officers and employees other than increases in the ordinary course of business and consistent with past practice or amend any employee benefit plan or arrangement.

5.2                 Conduct of Business by Parent and Acquisition Corp. Pending the Merger. Parent represents and warrants to the Company that Acquisition Corp. has never operated any business. Prior to the Effective Time, unless the Company shall otherwise agree in writing or as otherwise contemplated by this Agreement or disclosed in any Schedule to this Agreement:

(a)                 the business of Parent shall be conducted only in the ordinary course and Acquisition Corp. shall conduct no business;

(b)                neither Parent nor Acquisition Corp. shall (i) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (ii) amend its articles or certificate of incorporation or by-laws; or (iii) split, combine or reclassify its capital stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to such stock;

(c)                  neither Parent nor Acquisition Corp. shall (i) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire shares of, its capital stock; (ii) acquire or dispose of any assets other than in the ordinary course of business (except for dispositions in connection with Section 5.2(a) hereof); (iii) incur additional Indebtedness or any other liabilities or enter into any other transaction except in the ordinary course of business; (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing, or (v) except as contemplated by this Agreement, enter into any contract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business contract or enter into any negotiations in connection therewith;

(d)                 neither Parent nor Acquisition Corp. will, nor will they authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by them to, make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraph). Parent will promptly advise the Company orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Parent or Acquisition Corp. or for the acquisition of a substantial equity interest in either of them or any material assets of either of them other than as contemplated by this Agreement. Parent will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any person conducted heretofore with respect to any of the foregoing; and

(e)                 neither the Parent nor Acquisition Corp. will enter into any new or amended employment agreements with any of their respective officers or employees or any other Person or grant any increases in the compensation or benefits of their respective officers or employees.

6.                    Additional Agreements.

6.1                 Access and Information. The Company, Parent and Acquisition Corp. shall each afford to the other and to the other’s accountants, counsel and other representatives full access during normal business hours throughout the period prior to the Effective Time of all of its properties, books, contracts, commitments and records (including but not limited to tax returns) and during such period, each shall furnish promptly to the other all information concerning its business, properties and personnel as such other party may reasonably request; provided, that no investigation pursuant to this Section 6.1 shall affect any representations or warranties made herein. Each party shall hold, and shall cause its employees and agents to hold, in confidence all such information (other than such information which (i) is already in such party’s possession or (ii) is or becomes generally available to the public other than as a result of a disclosure by such party or its directors, officers, managers, employees, agents or advisors, or (iii) becomes available to such party on a non-confidential basis from a source other than a party hereto or its advisors, provided that such source is not known by such party to be bound by a confidentiality agreement with or other obligation of secrecy to a party hereto or another party until such time as such information is otherwise publicly available; provided, however, that (A) any such information may be disclosed to such party’s directors, officers, employees and representatives of such party’s advisors who need to know such information for the purpose of evaluating the transactions contemplated hereby (it being understood that such directors, officers, employees and representatives shall be informed by such party of the confidential nature of such information), (B) any disclosure of such information may be made as to which the party hereto furnishing such information has consented in writing, and (C) any such information may be disclosed pursuant to a judicial, administrative or governmental order or request; provided, however, that the requested party will promptly so notify the other party so that the other party may seek a protective order or appropriate remedy and/or waive compliance with this Agreement and if such protective order or other remedy is not obtained or the other party waives compliance with this provision, the requested party will furnish only that portion of such information which is legally required and will exercise its best efforts to obtain a protective order or other reliable assurance that confidential treatment will be accorded the information furnished). If this Agreement is terminated, each party will deliver to the other all documents and other materials (including copies) obtained by such party or on its behalf from the other party as a result of this Agreement or in connection herewith, whether so obtained before or after the execution hereof.

6.2                Additional Agreements. Subject to the terms and conditions herein provided, each of the parties hereto agrees to use its commercially reasonable best efforts to take, or cause to be taken, all action and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement, including using its commercially reasonable efforts to satisfy the conditions precedent to the obligations of any of the parties hereto to obtain all necessary waivers, and to lift any injunction or other legal bar to the Merger (and, in such case, to proceed with the Merger as expeditiously as possible). In order to obtain any necessary governmental or regulatory action or non-action, waiver, consent, extension or approval, each of Parent, Acquisition Corp. and the Company agrees to take all reasonable actions and to enter into all reasonable agreements as may be necessary to obtain timely governmental or regulatory approvals and to take such further action in connection therewith as may be necessary. In case at any time after the Effective Time any further action is necessary or desirable to carry out the purposes of this Agreement, the proper officers and/or directors of Parent, Acquisition Corp. and the Company shall take all such necessary action.

6.3                 Publicity. No party shall issue any press release or public announcement pertaining to the Merger that has not been agreed upon in advance by Parent and the Company; provided, however, that this provision shall not prevent any party from making any announcement or filing any report required by it to be in compliance with any applicable federal or state securities laws, provided further that such disclosing party shall provide in advance of release a copy of the proposed disclosure to the other party for review and comment.

6.4                 Appointment of Officers and Directors. Parent shall accept the resignation of the current officers and directors of Parent as provided by Section 7.2(e)iii) hereof, and shall cause the persons listed as officers and directors in Exhibit “B” hereto to be elected to such positions, in each case immediately upon the Effective Time. At the first annual meeting of Parent stockholders and thereafter, the election of members of Parent’s Board of Directors (the “Board”) shall be accomplished in accordance with the by-laws of Parent. Notwithstanding the foregoing, for two years following the Closing, one member of the Board shall be either Richard H. Davis or another person designated by a majority consent of the pre-Merger Parent shareholders and holders of Preferred Stock.

6.5               Indemnity Agreements. Parent and Company acknowledge that Parent is a party to certain indemnification agreements (the “Indemnity Agreements”) in favor of Parent’s current and former officers and directors, copies of which have been provided to Company. Parent and Company agree that these Indemnity Agreements shall survive the Merger and any subsequent merger, reorganization or reincorporation of Parent, and that Parent and Company shall take no action which will deprive the beneficiaries of these Indemnification Agreements of the benefits and protections thereof, nor shall Parent or Company take any action intended to or effecting any change, limitation, termination or other modification of the rights and duties of any party under such Indemnity Agreements.

6.6                 Parent Post-Closing Capitalization Table. Attached hereto as Exhibit “C” is a table showing the capitalization of Parent after consummation of the Merger and the transactions contemplated herein, including the issuance of shares of Series D Convertible Preferred Stock (the “Preferred Stock”) at the Effective Time.

6.7                 Form D Filing. Parent shall make any filings required by the private placement of the Parent Common Stock in the Merger, including a Form D, with applicable federal and state securities authorities within the required timeframe.

6.8                 No Integrated Offerings. Neither the Company nor Acquisition Corp. nor any Person acting on its or their behalf has or will, directly or indirectly, made or make any offers or sales of any security or solicited any offers to buy any security, under circumstances that would cause the Parent Common Stock to be issued in the Merger to be integrated with prior offerings by the Company for purposes of the Securities Act which would require the registration of any such shares of Parent Common Stock under the Securities Act.

6.9                 Name Change. Promptly following the Closing, the Surviving Corporation shall change its name to 374Water Systems Inc.”, and Parent shall change its name to “374Water Inc.”.

7.                   Conditions of Parties’ Obligations.

7.1                 Company Obligations. The obligations of Parent and Acquisition Corp. under this Agreement and the Certificate of Merger are subject to the fulfillment at or prior to the Closing of the following conditions, any of which may be waived in whole or in part by Parent.

(a)                 No Errors, etc. The representations and warranties of the Company under this Agreement shall be deemed to have been made again on the Closing Date and shall then be true and correct in all material respects (or, to the extent representations or warranties are qualified by materiality or material adverse change in the Condition of the Company, in all respects).

(b)               Compliance with Agreement. The Company shall have performed and complied in all material respects with all agreements and conditions required by this Agreement to be performed or complied with by it on or before the Closing Date.

(c)                 No Default or Adverse Change. There shall not exist on the Closing Date any Default or Event of Default or any event or condition that, with the giving of notice or lapse of time, or both, would constitute a Default or Event of Default, and since the Balance Sheet Date, there shall have been no material adverse change in the Condition of the Company.

(d)                No Restraining Action. No action or proceeding before any court, governmental body or agency shall have been threatened, asserted or instituted to restrain or prohibit, or to obtain substantial damages in respect of, this Agreement or the Certificate of Merger or the carrying out of the transactions contemplated by the Merger Documents.

(e)                 Supporting Documents. Parent and Acquisition Corp. shall have received the following:

(i)                  Copies of resolutions of the Board of Directors and the Stockholders of the Company authorizing and approving the execution, delivery and performance of the Merger Documents and all other documents and instruments to be delivered pursuant hereto and thereto.

(ii)                 A certificate, dated the Closing Date, executed by the Company’s President and Chief Executive Officer, certifying as to satisfaction of the conditions set forth in Section 7.1(c) and certifying that, except for the filing of the Certificate of Merger: (i) all consents, authorizations, orders and approvals of, and filings and registrations with, any court, governmental body or instrumentality that are required for the execution and delivery of this Agreement and the Certificate of Merger and the consummation of the Merger shall have been duly made or obtained, the approval of the Merger by the Stockholders as required by the DGCL has been received, and all material consents by third parties that are required for the Merger have been obtained; and (ii) no action or proceeding before any court, governmental body or agency has been threatened, asserted or instituted to restrain or prohibit, or to obtain substantial damages in respect of, this Agreement or the Certificate of Merger or the carrying out of the transactions contemplated by the Merger Documents.

(iii)                Evidence as of a date within 10 days of the Effective Time of the good standing and corporate existence of the Company issued by the Secretary of State of the State of Delaware.

(iv)                The Nagar Employment Agreement duly executed by Yaacov Nagar.

(v)                 The Deshusses Employment Agreement duly executed by Marc Deshusses, Ph.D.

(vi)               Such additional supporting documentation and other information with respect to the transactions contemplated hereby as Parent and Acquisition Corp. may reasonably request.

(f)                  Proceedings and Documents. All corporate and other proceedings and actions taken in connection with the transactions contemplated hereby and all certificates, opinions, agreements, instruments and documents mentioned herein or incident to any such transactions shall be reasonably satisfactory in form and substance to Parent and Acquisition Corp. The Company shall furnish to Parent and Acquisition Corp. such supporting documentation and evidence of the satisfaction of any or all of the conditions precedent specified in this Section 7.1 as Parent or its counsel may reasonably request.

7.2                 Parent and Acquisition Corp. Obligations. The obligations of the Company under this Agreement and the Certificate of Merger are subject to the fulfillment at or prior to the Closing of the following conditions, any of which may be waived in whole or in part by the Company:

(a)                 No Errors, etc. The representations and warranties of Parent and Acquisition Corp. under this Agreement shall be deemed to have been made again on the Closing Date and shall then be true and correct in all material respects (or, to the extent representations or warranties are qualified by materiality or material adverse change in the Condition of the Parent, in all respects).

(b)               Compliance with Agreement. Parent and Acquisition Corp. shall have performed and complied in all material respects with all agreements and conditions required by this Agreement and the Certificate of Merger to be performed or complied with by them on or before the Closing Date.

(c)                Closing of Private Placement. Parent shall have closed on a private placement of at least 419,500 shares of Preferred Stock yielding net proceeds to Parent of at least $6,250,000.

(d)                No Default or Adverse Change. There shall not exist on the Closing Date any Default or Event of Default or any event or condition, that with the giving of notice or lapse of time, or both, would constitute a Default of Event of Default, and since the Parent Balance Sheet Date, there shall have been no material adverse change in the Condition of the Parent.

(e)                 Supporting Documents. The Company shall have received the following, each in form and substance reasonably satisfactory to the Company and its counsel:

(i)                   Copies of resolutions of Parent’s and Acquisition Corp.’s respective boards of directors and the sole shareholder of Acquisition Corp., authorizing and approving, to the extent applicable, the execution, delivery and performance of this Agreement, the Certificate of Merger and all other documents and instruments to be delivered by them pursuant hereto and thereto.

(ii)                 A certificate, dated the Closing Date, executed by Richard H. Davis, as Director of each of the Parent and Acquisition Corp., certifying as to satisfaction of the conditions set forth in Section 7.2(c) and certifying that, except for the filing of the Certificate of Merger: (i) all consents, authorizations, orders and approvals of, and filings and registrations with, any court, governmental body or instrumentality that are required for the execution and delivery of this Agreement and the Certificate of Merger and the consummation of the Merger shall have been duly made or obtained, and all material consents by third parties required for the Merger have been obtained; and (ii) no action or proceeding before any court, governmental body or agency has been threatened, asserted or instituted to restrain or prohibit, or to obtain substantial damages in respect of, this Agreement or the Certificate of Merger or the carrying out of the transactions contemplated by any of the Merger Documents.

(iii)                The executed resignations of the Parent’s and Acquisition Corp.’s respective Boards of Directors and Executive Officers, with the resignations to take effect at the Effective Time.

(iv)               Evidence as of a date within 10 days of the Effective Time of the good standing and corporate existence of Parent issued by the Secretary of State of Delaware.

(v)                 Evidence as of a date within 10 days of the Effective Time of the good standing and corporate existence of Acquisition Corp. issued by the Secretary of State of Delaware.

(vi)               The Nagar Employment Agreement duly executed by the Parent.

(vii)              The Deshusses Employment Agreement duly executed by the Parent.

(viii)            Such additional supporting documentation and other information with respect to the transactions contemplated hereby as the Company may reasonably request.

(f)                  No Restraining Action. No action or proceeding before any court, governmental body or agency shall have been threatened, asserted or instituted to restrain or prohibit, or to obtain substantial damages in respect of, this Agreement or the Certificate of Merger or the carrying out of the transactions contemplated by the Merger Documents.

(g)                Proceedings and Documents. All corporate and other proceedings and actions taken in connection with the transactions contemplated hereby and all certificates, opinions, agreements, instruments and documents mentioned herein or incident to any such transactions shall be satisfactory in form and substance to the Company. Parent and Acquisition Corp. shall furnish to the Company such supporting documentation and evidence of satisfaction of any or all of the conditions specified in this Section 7.2 as the Company may reasonably request.

8.                   Survival of Representations and Warranties. The representations and warranties of the parties made in Sections 2 and 3 of this Agreement (including the Schedules to the Agreement which are hereby incorporated by reference) shall survive for 24 months beyond the Effective Time. This Section 8 shall not limit any claim for fraud or any covenant or agreement of the parties which by its terms contemplates performance after the Effective Time.

9.                   Amendment of Agreement. This Agreement and the Certificate of Merger may be amended or modified at any time in all respects by an instrument in writing executed (i) in the case of this Agreement by the parties hereto and (ii) in the case of the Certificate of Merger by the parties thereto.

10.               Definitions. Unless the context otherwise requires, the terms defined in this Section 10 shall have the meanings herein specified for all purposes of this Agreement, applicable to both the singular and plural forms of any of the terms herein defined.

“Acquisition Corp.” means 374WATER ACQUISITION CORP., a Delaware corporation.

“Acquisition Proposal” shall have the meaning assigned to such term in Section 5.2(d) hereof.

“Affiliate” shall mean any Person that directly or indirectly controls, is controlled by, or is under common control with, the indicated Person.

“Agreement” shall mean this Agreement.

“Balance Sheet” and “Balance Sheet Date” shall have the meanings assigned to such terms in Section 2.9 hereof.

“Benefit Arrangements” shall have the meaning assigned to it in Section 2.12 hereof.

“Certificate of Merger” shall have the meaning assigned to it in the second recital of this Agreement. “Closing” and “Closing Date” shall have the meanings assigned to such terms in Section 11 hereof.

“Closing” shall mean the closing of the Merger and the other transactions contemplated by this Agreement, which shall take place at the Effective Time.”

“Code” shall mean the Internal Revenue Code of 1986, as amended.

“Commission” or “SEC” shall mean the U.S. Securities and Exchange Commission.

“Company” shall mean 374Water, Inc., a Delaware corporation.

“Company Common Stock” shall have the meaning assigned to it in Section 1.5(a)(ii).

“Company Benefit Plans” shall have the meaning assigned to it in Section 2.13 hereof.

“Company Disclosure Schedule” shall mean a schedule of exceptions and other information regarding the Company and delivered to Parent by the Company pursuant to Section 2 hereof.

“Condition of the Company” shall have the meaning assigned to it in Section 2.2 hereof.

“Condition of the Parent” shall have the meaning assigned to it in Section 3.13 hereof.

“Constituent Corporations” shall have the meaning assigned to it in Section 1.4 hereof.

“Default” shall mean a default or failure in the due observance or performance of any covenant, condition or agreement on the part of the Company to be observed or performed under the terms of this Agreement or the Certificate of Merger, if such default or failure in performance shall remain unremedied for five days.

“Deshusses Employment Agreement” shall mean a two-year agreement between the Parent and Marc Deshusses, Ph.D (“Deshusses”) for Deshusses to serve on a part time basis as Head of Technology of the Parent at an annual salary of $60,000 and on such other terms and conditions are reasonably acceptable to Parent.

“DGCL” shall have the meaning assigned to it in the second recital hereof.

“Effective Time” shall have the meaning assigned to it in Section 1.2 hereof.

“Equity Security” shall mean any stock or similar security of an issuer or any security (whether stock or Indebtedness for Borrowed Money) convertible, with or without consideration, into any stock or similar equity security, or any security (whether stock or Indebtedness for Borrowed Money) carrying any warrant or right to subscribe to or purchase any stock or similar security, or any such warrant or right.

“ERISA” shall have the meaning assigned to it in Section 2.13 hereof.

“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.

“Event of Default” shall mean (a) the failure of the Company to pay any Indebtedness for Borrowed Money, or any interest or premium thereon, within five days after the same shall become due, whether such Indebtedness shall become due by scheduled maturity, by required prepayment, by acceleration, by demand or otherwise, (b) an event of default under any agreement or instrument evidencing or securing or relating to any such Indebtedness, or (c) the failure of the Company to perform or observe any material term, covenant, agreement or condition on its part to be performed or observed under any agreement or instrument evidencing or securing or relating to any such Indebtedness when such term, covenant or agreement is required to be performed or observed.

“Indebtedness” shall mean any obligation of the Company which under generally accepted accounting principles is required to be shown on the balance sheet of the Company as a liability. Any obligation secured by a Lien on, or payable out of the proceeds of production from, property of the Company shall be deemed to be Indebtedness even though such obligation is not assumed by the Company.

“Indebtedness for Borrowed Money” shall mean (a) all Indebtedness in respect of money borrowed including, without limitation, Indebtedness which represents the unpaid amount of the purchase price of any property and is incurred in lieu of borrowing money or using available funds to pay such amounts and not constituting an account payable or expense accrual incurred or assumed in the ordinary course of business of the Company, (b) all Indebtedness evidenced by a promissory note, bond or similar written obligation to pay money, or (c) all such Indebtedness guaranteed by the Company or for which the Company is otherwise contingently liable.

“Investment Company Act” shall mean the Investment Company Act of 1940, as amended.

“Knowledge” and “know” means, when referring to any person or entity, the actual knowledge of such person or entity of a particular matter or fact, and what that person or entity would have reasonably known after reasonable inquiry. An entity will be deemed to have “knowledge” of a particular fact or other matter if any individual who is serving, or who has served, as an executive officer of such entity has actual “knowledge” of such fact or other matter, or had actual “knowledge” during the time of such service of such fact or other matter, or would have had “knowledge” of such particular fact or matter after reasonable inquiry.

“Lien” shall mean any mortgage, pledge, security interest, encumbrance, lien or charge of any kind, including, without limitation, any conditional sale or other title retention agreement, any lease in the nature thereof and the filing of or agreement to give any financing statement under the Uniform Commercial Code of any jurisdiction and including any lien or charge arising by statute or other law.

“Merger” shall have the meaning assigned to it in the first recital hereof.

“Merger Documents” shall have the meaning assigned to it in Section 2.5 hereof.

“Nagar Employment Agreement” shall mean a two-year agreement between the Parent and Yaacov Nagar (“Nagar”) for Nagar to serve as CEO of the Parent at an annual salary of $200,000 and on such other terms and conditions as are reasonably acceptable to Parent.

“Parent” shall mean PowerVerde, Inc., a Delaware corporation.

“Parent Balance Sheet” and “Parent Balance Sheet Date” shall have the meanings assigned to them in Section 3.13 hereof.

“Parent Common Stock” shall have the meaning assigned to it in Section 3.4 hereof.

“Parent Employee Benefit Plans” shall have the meaning assigned to it in Section 3.16 hereof.

“Parent Financial Statements” shall have the meaning assigned to it in Section 3.8 hereof.

“Parent SEC Documents” shall have the meaning assigned to it in Section 3.7(a) hereof.

“Patent and Trademark Rights” shall have the meaning assigned to it in Section 2.16 hereof.

“Permitted Liens” shall mean (a) Liens for taxes and assessments or governmental charges or levies not at the time due or in respect of which the validity thereof shall currently be contested in good faith by appropriate proceedings; (b) Liens in respect of pledges or deposits under workmen’s compensation laws or similar legislation, carriers’, warehousemen’s, mechanics’, laborers’ and materialmens’ and similar Liens, if the obligations secured by such Liens are not then delinquent or are being contested in good faith by appropriate proceedings; and (c) Liens incidental to the conduct of the business of the Company that were not incurred in connection with the borrowing of money or the obtaining of advances or credits and which do not in the aggregate materially detract from the value of its property or materially impair the use made thereof by the Company in its business.

“Person” shall include all natural persons, corporations, business trusts, associations, limited liability companies, partnerships, joint ventures and other entities and governments and agencies and political subdivisions.

“Preferred Stock” shall have the meaning assigned to it in Section 6.6 hereof.

“Representation Letter” shall have the meaning assigned to it in Section 4 hereof.

“Securities Act” shall mean the Securities Act of 1933, as amended.

“Stockholders” shall mean all of the stockholders of the Company.

“Surviving Corporation” shall have the meaning assigned to it in Section 1.1 hereof.

“Tax” or “Taxes” shall mean (a) any and all taxes, assessments, customs, duties, levies, fees, tariffs, imposts, deficiencies and other governmental charges of any kind whatsoever (including, but not limited to, taxes on or with respect to net or gross income, franchise, profits, gross receipts, capital, sales, use, ad valorem, value added, transfer, real property transfer, transfer gains, transfer taxes, inventory, capital stock, license, payroll, employment, social security, unemployment, severance, occupation, real or personal property, estimated taxes, rent, excise, occupancy, recordation, bulk transfer, intangibles, alternative minimum, doing business, withholding and stamp), together with any interest thereon, penalties, fines, damages costs, fees, additions to tax or additional amounts with respect thereto, imposed by the United States (federal, state or local) or other applicable jurisdiction; (b) any liability for the payment of any amounts described in clause (a) as a result of being a member of an affiliated, consolidated, combined, unitary or similar group or as a result of transferor or successor liability, including, without limitation, by reason of Regulation section 1.1502-6; and (c) any liability for the payments of any amounts as a result of being a party to any Tax Sharing Agreement or as a result of any express or implied obligation to indemnify any other Person with respect to the payment of any amounts of the type described in clause (a) or (b).

“Tax Return” shall include all returns and reports (including elections, declarations, disclosures, schedules, estimates and information returns (including Form 1099 and partnership returns filed on Form 1065)) required to be supplied to a Tax authority relating to Taxes.

“US GAAP” shall have the meaning assigned to it in Section 2.9 hereof.

11.                Closing. The closing of the Merger (the “Closing”) shall occur concurrently with the Effective Time (the “Closing Date”). The Closing shall occur at the offices of Carlton Fields, P.A., 700 NW 1^st Avenue, Suite 1200, Miami, Florida 33136. At the Closing, Parent shall present for delivery to each Stockholder the certificate representing the Parent Common Stock to be issued pursuant to Section 1.5(a)(ii) hereof to them pursuant to Sections 1.6 and 4 hereof. Such presentment for delivery shall be against delivery to Parent and Acquisition Corp. of the certificates, agreements and other instruments referred to in Section 7.1 hereof, and the certificates representing all of the Company Common Stock issued and outstanding immediately prior to the Effective Time. Parent will deliver at such Closing to the Company the officers’ certificate referred to in Section 7.2 hereof. All of the other documents, certificates and agreements referenced in Section 7 will also be executed as described therein. At the Effective Time, all actions to be taken at the Closing shall be deemed to be taken simultaneously.

12.                Termination Prior to and After Closing.

12.1              Termination of Agreement. This Agreement may be terminated at any time prior to the Closing:

(a)                 By the mutual written consent of the Company, Acquisition Corp. and Parent;

(b)                By the Company, if Parent or Acquisition Corp. (i) fails to perform in any material respect any of its agreements contained herein required to be performed by it on or prior to the Closing Date, or (ii) materially breaches any of its representations, warranties or covenants contained herein;

(c)                 By either the Company, on the one hand, or Parent and Acquisition Corp., on the other hand, if there shall be any order, writ, injunction or decree of any court or governmental or regulatory agency binding on Parent, Acquisition Corp. or the Company, which prohibits or materially restrains any of them from consummating the transactions contemplated hereby; or

(d)                By either the Company, on the one hand, or Parent and Acquisition Corp., on the other hand, if the Closing has not occurred on or prior to April 16, 2021, for any reason other then a breach by the terminating party.

12.2            Termination of Obligations. Termination of this Agreement pursuant to this Section 12 shall terminate all obligations of the parties hereunder, except for the obligations under Sections 6.1, 13.3 and 13.9; provided, however, that termination pursuant to paragraphs (b) or (c) of Section 12.1 shall not relieve the defaulting or breaching party or parties from any liability to the other parties hereto.

13.                Miscellaneous.

13.1              Notices. All notices, consents, waivers and other communications required or permitted under this Agreement must be in writing and will be deemed to have been given by a party when delivered (i) by hand; (ii) by a nationally recognized overnight courier service; or (iii) by email to the following addresses or email addresses marked to the attention of the person (by name or title) designated below (or to such other address or person as a party may designate by notice to the other parties)

13.2              Entire Agreement; Assignment. This Agreement, including the schedules and exhibits attached hereto and other documents referred to herein, contains the entire understanding of the parties hereto with respect to the subject matter hereof. This Agreement supersedes all prior agreements and undertakings between the parties with respect to such subject matter, including, but not limited to, the Binding Letter of Intent dated as of September 20, 2020. This Agreement shall not be assigned by any party hereto (whether by operation of law or otherwise) other than with the prior written consent of Parent, Acquisition Corp. and the Company. Any attempted assignment of this Agreement not in accordance with the terms of this Section 13.2 shall be void.

13.3              Expenses. Parent shall bear and pay all of the legal, accounting and other expenses incurred by Parent and by Company in connection with the transactions contemplated by this Agreement.

13.4              Time. Time is of the essence in the performance of the parties’ respective obligations herein contained.

13.5              Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

13.6             Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors, assigns and heirs.

13.7              No Third Parties Benefited. This Agreement is made and entered into for the sole protection and benefit of the parties hereto, their permitted successors, assigns and heirs, and no other Person shall have any right or action under this Agreement.

13.8              Counterparts; Signature by Facsimile. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which, when taken together, shall be deemed to constitute one and the same instrument. The exchange of copies of this Agreement and of signature pages by facsimile transmission shall constitute effective execution and delivery of this Agreement as to the parties and may be used in lieu of the original Agreement for all purposes. Signatures of the parties transmitted by facsimile or by PDF file shall be deemed to be their original signatures for all purposes.

13.9              Governing Law. The laws of the state of Delaware (without giving effect to its conflicts of laws principles) govern all matters arising out of or relating to this Agreement and all of the transactions it contemplates including without limitation, its validity, interpretation, construction, performance, and enforcement.

13.10          Venue; Submission to Jurisdiction. Any action or proceeding arising out of or relating to this Agreement or arising out of or in any manner relating to the relationship between the parties shall only be brought in the state or federal courts in the State of Delaware, and each of the parties hereto submits to the personal jurisdiction of such courts (and of the appropriate appellate courts wherever located) in any such action or proceeding, and selects the courts in the State of Delaware, for proper venue in any such action or proceeding. The prevailing party in any legal dispute shall be entitled to recover its reasonable attorney’s fees and costs, including expert witness fees and all costs of court, whether or not assessable under applicable law.

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be binding and effective as of the day and year first above written.

EXHIBIT “A”

CERTIFICATE OF MERGER OF

DOMESTIC CORPORATIONS

Pursuant to Title 8, Section 251(c) of the Delaware General Corporation Law, the undersigned corporation executed the following Certificate of Merger:

FIRST: The name of the surviving Delaware corporation is 374Water Inc., and the name of the Delaware corporation being merged into this surviving corporation is 374Water Acquisition Corp..

SECOND: The Agreement of Merger has been approved, adopted, certified, executed and acknowledged by each of the constituent corporations.

THIRD: The name of the surviving Delaware corporation is 374Water, Inc.

FOURTH: The Certificate of Incorporation of the surviving corporation shall be its Certificate of Incorporation.

FIFTH: The merger is to become effective immediately upon filing of this Certificate of Merger.

SIXTH: The Agreement of Merger is on file at 12 Upchurch Circle, Durham, NC 27705, the place of business of the surviving corporation.

SEVENTH: A copy of the Agreement of Merger will be furnished by the surviving corporation on request, without cost, to any stockholder of the constituent corporations.

IN WITNESS WHEREOF, said surviving corporation has caused this certificate to be signed by an authorized officer, the ____day of April, 2021.

Exhibit 10.2

EMPLOYMENT AGREEMENT

THIS EMPLOYMENT AGREEMENT (“Agreement”) is made and entered into as of the 16^th day of April, 2021 (the “Effective Date”), and is by and between 374WATER INC., a Delaware corporation f/k/a POWERVERDE, INC. (the “Company”), and YAACOV NAGAR, an individual (the “Employee”).

R E C I T A L S

AGREEMENT

NOW, THEREFORE, in consideration of the premises and mutual covenants set forth herein, the parties agree as follows:

1.                   Employment. The Company hereby agrees to employ the Employee and the Employee hereby agrees to serve the Company on the terms and conditions set forth herein.

2.                   Duties of Employee. During the Employment Period (as defined in Section 3, below), the Employee shall serve as Chief Executive Officer (CEO) of the Company. The Employee shall diligently perform all services reasonably required of him in his capacity as CEO of the Company and shall exercise such power and authority as is customarily associated with the CEO of a comparable company, consistent with applicable law and the authorizations and instructions given from time to time by the Company’s Board of Directors (the “Board”). During the Employment Period, the Employee will faithfully carry out his responsibilities and provide services to the Company on a full time basis. In addition, the Employee shall act in accordance with (i) standing instructions for the position which may be issued by the Company from time to time; (ii) all reasonable and lawful requests, directions and/or restrictions imposed by the Company; and (iii) all policies of the Company as prescribed from time to time. Upon termination of employment, the Employee shall return all Company equipment and other Company property in the Employee’s possession, custody or control. Notwithstanding the foregoing, Employee may continue his affiliation with Duke University consistent with past practice.

3.                  Term. The Employee shall be employed by the Company commencing on the Effective Date of this Agreement. The Employee’s employment by the Company shall continue for a period of two years (the “Initial Term”), unless this Agreement is terminated first pursuant to Section 6 below. If not previously terminated, at the end of the Initial Term the Agreement shall be automatically renewed for an additional term of two years unless either party provides notice of non-renewal at least six months before the end of such term, and it may similarly be renewed for future one-year terms (“Renewal Terms”) until the Agreement is terminated pursuant to Section 6. The entire term of the Agreement (comprised of that part of the Initial Term, and any Renewal Terms, prior to termination) shall be referred to in this Agreement as the “Term” or the “Employment Period.” For all purposes of the Agreement, no termination of the Employee’s employment shall be deemed to have occurred if the Employee is transferred during the Employment Period to any business entity which is an Affiliate of the Company. As used in this Agreement, the term “Affiliate” means, with respect to any specified person or entity (“Person”), any other Person that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such specified Person.

4.                   Compensation; Benefits. The Employee shall receive compensation of $200,000 per year by the Company during the Initial Term (the “Base Salary”), with such Compensation payable in installments consistent with the Company’s normal payroll schedule, subject to applicable withholding and other taxes as shall be required by applicable law. In addition, Employee shall be eligible for (i) bonuses, stock options and/or other incentive compensation in the discretion of the Board, and (ii) health insurance benefits and other employment benefits in accordance with plans established by the Company for its executive employees from time to time.

5.                   Expense Reimbursement. Subject to such reasonable rules and guidelines as the Company may from time to time adopt for its employees generally, the Company shall reimburse the Employee for all reasonable expenses actually paid or incurred by the Employee during the Term of Employment in the course of and pursuant to the business of the Company. The Employee shall account to the Company in writing for all expenses for which reimbursement is sought and shall supply to the Company copies of all relevant invoices, receipts or other evidence reasonably requested by the Company.

6.                                        Termination. Employee’s employment may be terminated in any one of the following ways:

(a)                 Termination by the Company “For Cause.” The Company may terminate the employment upon written notice to Employee “for cause,” which shall be:

(i)                   Employee’s material breach of this Agreement, which is not cured within 30 days following written notice to Employee;

(ii)             Employee’s gross negligence in the performance of his duties hereunder, intentional nonperformance or mis-performance of such duties, or refusal to abide by or comply with the directives of the Board, or with the Company’s policies and procedures, which is not cured within 30 days following written notice to Employee;

(iii)               Employee’s willful dishonesty, fraud, or misconduct with respect to the business or affairs of the Company, or any of its affiliates, that in the judgment of the Company would materially and adversely affect the operations or reputation of the Company;

(iv)               Employee’s conviction of a felony or other crime involving moral turpitude;

(v)                 Employee’s abuse of alcohol or drugs (legal or illegal) that, in the Company’s judgment, materially impairs Employee’s ability to perform his duties hereunder; or

(vi)               Employee’s violation of Company’s personnel policies, which is not cured within 30 days following written notice to Employee.

In the event of a termination “for cause,” as enumerated above, Employee shall have no right to any severance compensation or other compensation accruing after the effective date of termination, no right to bonus not yet due and payable at the time of termination, and no right to monies for accrued and unused paid time off, or other personal time.

(b)                 Termination Without Cause. At any time after the commencement of employment, the Company may, without cause, terminate Employee’s employment, effective 30 days after written notice is provided to Employee. A resignation by Employee following a pay cut, demotion or other material adverse change in Employee’s rights or duties shall be deemed termination by the Company without cause. Should the Company exercise its right to terminate Employee without cause, the Company will provide Employee with compensation (“Severance Compensation”) equal to the Base Salary, plus health insurance benefits, from the effective date of termination through the end of the Term or for 12 months, whichever is greater. Such payments shall be made in accordance with the Company’s regular payroll cycle.

(c)                         Payment Through Termination. Upon termination of Employee’s employment, Employee shall be entitled to receive all of his Base Salary earned and all reimbursements due through the effective date of termination. Additional compensation subsequent to termination, if any, will be due and payable to Employee only to the extent and in the manner expressly provided above in this Section 6. All other rights and obligations of the Company and Employee under this Agreement shall cease as of the effective date of termination, except that Employee’s obligations under Sections 7 and 8 below shall survive such termination in accordance with their terms.

7.                   Restrictive Covenants.

(a)                 Confidentiality. Except as required in the performance of Employee’s work for the Company, Employee will not directly or indirectly use or disclose any Trade Secret Information (as defined below), either during or after employment with the Company for so long as such information remains Trade Secret Information as defined herein. Except as required in the performance of Employee’s work for the Company, during the period of Employee’s employment with the Company and for a period of two years thereafter (the “Restrictive Period”), Employee will not directly or indirectly use or disclose any Confidential Information (as defined below), and will not circumvent, avoid, bypass, or obviate, directly or indirectly, the intent of this Agreement. The Employee further agrees that the Confidential Information is the exclusive property of the Company and in furtherance thereof, the Employee covenants with the Company not to engage in any conversations, negotiations, correspondence or any transactions with respect to the Confidential Information, or take any other actions involving the Confidential Information, whether directly or indirectly, or whether on the account of the Employee or not, which will not be in the best interests of the Company or will not be within the intent of this Agreement, without express written consent of the Company, which consent shall be in the sole discretion of the Company and which consent may be unreasonably withheld.

As used herein, “Trade Secret Information” means any information possessed by the Company which derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use. For purposes of this Agreement, “Trade Secret Information” includes both information disclosed to Employee by the Company, or by its other employees, agents or representatives, and information otherwise acquired or developed by Employee in the course of his employment with the Company. As used herein, “Confidential Information” means any information possessed by the Company which is not readily ascertainable by proper means by other persons, regardless of whether such Confidential Information has independent economic value. Any information that Employee can demonstrate is publicly available through no fault of Employee or others with a duty or other obligation of confidentiality to the Company (contractual or otherwise), is not Trade Secret Information or Confidential Information within the meaning of this Agreement.

Notwithstanding anything else in this Agreement, Trade Secret Information shall include, but is not limited to: (i) information concerning the Company’s management, financial condition, financial operation, purchasing activities, pricing formulas, existing and contemplated products and services, sales activities, marketing research, marketing plans, marketing activities, and business plans; (ii) information acquired or compiled by the Company concerning actual or prospective customers, including, but not limited to, their identities, their business operations, their finances, the identity and quantity of products or services purchased from the Company, and other unpublished information furnished by or about them to the Company; (iii) all designs, plans, data and other information relating to the Company’s systems, products and technology; (iv) the Company’s software (including source code, object code and related documentation), its software requirements and design documentation, its product development plans, its security procedures, methods and vulnerabilities (including, without limitation, all passwords and user ids), the algorithms, methods and procedures used within the Company’s software, and all ideas and proposals, whether generated internally or not, relating to the design, operation, implementation, use and maintenance of the Company’s software, systems and products; (v) all Inventions (as defined in Section 7(c)(2), below), regardless of whether such Inventions have been reduced to practice or are subject to patent protection; and (vi) all other types and categories of information (in whatever form) with respect to which, under all the circumstances, Employee knows or has reason to know that the Company intends or expects secrecy to be maintained and as to which the Company has made reasonable efforts to maintain secrecy.

The Company may, from time to time, inform Employee of restrictions upon the use or disclosure of specified information which has been licensed or otherwise disclosed to the Company by third parties pursuant to license or confidential disclosure agreements which contain restrictions upon the use or disclosure of such information. Employee agrees that such information shall be treated as Confidential Information under this Agreement, and, in addition, Employee agrees to abide by the restrictions upon use and/or disclosure contained in such agreements.

Employee will not use or disclose to the Company any confidential or proprietary information belonging to others, and Employee represents that his employment by the Company does not and will not require the use or disclosure of such information or the violation of any confidential relationship with any third party.

(b)                Other Property of the Company. All documents, encoded media, and other tangible items provided or made accessible to Employee by the Company, or by its other employees, agents or representatives, or prepared, generated or created by Employee or others in connection with any business activity of the Company, are and shall remain the property of the Company.

Upon termination of his employment with the Company, Employee will promptly deliver to the Company all such documents, media, and other items in Employee’s possession, including all complete or partial copies, recordings, abstracts, notes or reproductions of any kind made from or about such documents, media, items or information contained therein.

Employee will neither have nor claim any right, title, or interest in any Invention, patent, copyright, trademark, service mark or trade name (or any application released thereto) owned or used by the Company.

(c)                 Ownership of Developments.

(1)           Work Product. All work, writing, material, copyrights, patents, trade secrets, or other intellectual property rights associated with any ideas, concepts, techniques, Inventions (as defined below), processes, or works of authorship developed or created by Employee during the course of performing work for the Company or its clients, including, but not limited to, supercritical water oxidation (SCWO) systems, Air SCWO Nix system, waste heat systems, Rankine cycle technologies, renewable technologies and power consumption technologies, (collectively, “Work Product”) shall belong exclusively to the Company and shall, to the extent possible, be considered a work made by the Employee for hire for the Company within the meaning of Title 17 of the United States Code. To the extent the Work Product may be considered work made by the Employee for hire for the Company, the Employee hereby assigns all right title and interest the Employee has or may have in such Work Product to the Company, and Employee further agrees to execute any assignments or similar documents requested by the Company in the future to further evidence and document the Company’s rights in and to any Work Product, and to do so without any requirement of further consideration, even if such request is made after this Agreement expires or terminates.

For the purposes of this Section 7(c), “Work Product” shall include, without limitation, all work relating in any way to the business of the Company that is conceived or created, in whole or in part, by the Employee during the Term, regardless of whether such creation is performed during normal working hours or with the use of Company equipment, all copies of such work in any medium whatsoever in the Employee’s control or possession, and all derivative works of such work authored in whole or in part by the Employee.

(2)            Inventions. As used herein, “Invention” means any discovery, improvement, innovation, idea, formula, or shop right (whether or not patentable, whether or not put into writing, and whether or not put into practice) made, generated, or conceived by Employee (whether alone or with others, whether or not patentable, whether or not put into writing, and whether or not reduced to practice) during the Term that relates in any way to the Company’s products, services, systems, markets, business methods, operations or plans. For purposes of this Agreement, any Invention relating to the business of the Company or to the Company’s actual or demonstrably anticipated research or development with respect to which Employee files a patent application within one year after termination of the Term shall be presumed to be an Invention conceived by Employee during the Term, rebuttable only by accurate, written and duly corroborated evidence that such Invention was not first conceived by Employee until after the termination of this Employment Agreement.

Employee further agrees that all Inventions generated, made or conceived by Employee during the Term shall also be solely owned by the Company, and Employee hereby irrevocably assigns to the Company all of his right, title and interest in and to any and all Inventions. Employee shall promptly disclose all Inventions to the Company in writing.

Employee further agrees to execute any assignments or similar documents requested by the Company to further evidence and document the Company’s rights in and to any Inventions, and to cooperate with Company, at the Company’s expense, in obtaining letters patent or equivalent protection for such Inventions in any and all locations and jurisdictions Company may choose in its sole discretion throughout the world, and to do so without any requirement of further consideration, even if such request is made after this Agreement expires or terminates.

(d)                 Definition of Company. Solely for purposes of this Section 7, the term “Company” also shall include any existing or future subsidiaries of the Company.

(e)                 Covenant Not to Compete. (i) During the period of Employee’s employment with the Company and for a period of two years thereafter (the “Restrictive Period”), Employee will not, as an employee, officer, director, contractor, broker, distributor, advisor, consultant, or owner, or in any other capacity, directly or indirectly participate or assist in: (A) the design, development, production, marketing or sales of any product or service competitive with any product or service which the Company markets or plans to market during Employee’s employment or at the time of termination of Employee’s employment with the Company; or (B) the management or financing of a business enterprise engaged in any such activities. The geographic territory within which Employee will refrain from such activities shall be any geographic territory within which the Company or any Company agent or representative markets or plans to market any such products or services during Employee’s employment or at the time of termination of Employee’s employment (“Restricted Area”). For the avoidance of doubt, nothing in this Section 7 will be construed to prohibit or interfere with Employee’s ability to engage in research for academic institutions or other non-profit entities, whether during or after the Employment Period

(f)                  Non-Solicitation of Customers. During the two-year period after the date of termination of Employee’s employment with the Company, Employee will not, directly or indirectly, either (i) solicit, divert, take away or accept, or attempt to solicit, divert, take away or accept, the business of any Restricted Customer (as defined below) for any product or service offered by the Company within the Restricted Area; or (ii) attempt or seek to cause any Restricted Customer to refrain, in any respect, from acquiring from or through the Company any product or services offered by the Company within the Restricted Area. As used herein, the term “Restricted Customer” means any customer to whom or to which goods or services were provided by the Company during the two-year period prior to the date of Employee’s employment, and any potential customer of the Company that the Company solicited during the one-year period prior to the date of termination of Employee’s employment with the Company.

(g)                 Non-Solicitation of Employees/Consultants. During the two-year period after the date of termination of the Employee’s employment with the Company, Employee will not, as to work within the Restricted Area, directly or indirectly solicit, request or induce any employee or consultant of the Company to terminate employment or consultancy with the Company and seek employment or consultancy with another firm other than the Company; provided, however, that a general advertisement in a medium of general public circulation with respect to a particular employment or consultancy position that is not targeted at any one or more the employees of the Company will not violate the covenants of this Section.

(h)               Duty of Loyalty. Employee agrees that during the time that Employee is employed by the Company, Employee will owe the Company a duty of loyalty, and that as part of this duty of loyalty, Employee shall not engage in any form of business activity representing competition against the Company. Similarly, Employee, while employed by the Company, shall not appropriate for Employee’s own use any business opportunity of the Company, or otherwise engage in conduct where Employee’s own business interests are developed instead of the Company’s business interests.

(i)                  Requests for Clarification. In the event Employee is uncertain as to the meaning of any provision of this Agreement or its application to any particular information, item or activity, Employee will inquire in writing to the Chief Financial Officer (CFO) of the Company, specifying any areas of uncertainty. The Company will respond in writing within a reasonable time and will endeavor to clarify any subject of uncertainty, including such things as whether it considers particular information to be its Trade Secret Information or whether it considers any particular activity or employment to be in violation of this Agreement.

(j)                  Acknowledgment by Employee. The Employee acknowledges and confirms that (i) the restrictive covenants contained in this Section 7 are reasonably necessary to protect the legitimate business interests of the Company; and (ii) the restrictions contained in this Section 7 (including, without limitation, the length of the term of the provisions of this Section 7) are not overbroad, overlong, or unfair and are not the result of overreaching, duress or coercion of any kind.

(k)                 Reformation by Court. In the event that a court of competent jurisdiction shall determine that any provision of this Section 7 is invalid or more restrictive than permitted under the governing law of such jurisdiction, then only as to enforcement of this Section 7 within the jurisdiction of such court, such provision shall be interpreted and enforced as if it provided for the maximum restriction permitted under such governing law.

(l)                   Survival. The provisions of this Section 7 shall survive the termination of this Agreement, as applicable.

8.                   Injunction. It is recognized and hereby acknowledged by the parties hereto that a breach by the Employee of any of the covenants contained in Section 7 of this Agreement will cause irreparable harm and damage to the Company, the monetary amount of which may be virtually impossible to ascertain. As a result, the Employee recognizes and hereby acknowledges that the Company shall be entitled to seek an injunction from any court of competent jurisdiction enjoining and restraining any violation of any or all of the covenants contained in Section 7 of this Agreement by the Employee or any of the Employee’s Affiliates, associates, partners or agents, either directly or indirectly, and that such right to injunction shall be cumulative and in addition to whatever other remedies the Company may possess.

9.             Assignment. Neither party shall have the right to assign or delegate the Employee’s rights or obligations hereunder, or any portion thereof, to any other person.

10.                Governing Law. This Agreement is to be construed and enforced according to the laws of the State of North Carolina. The parties agree to accept any service of process by mail and to the exclusive venue of courts of competent jurisdiction located in Durham County, North Carolina, in any dispute arising out of the employment by the Company of the Employee, compensation or any damages in respect thereof.

11.               Entire Agreement; Amendment. This Agreement reflects the entire agreement between the parties hereto with respect to the subject matter hereof and, upon its effectiveness, shall supersede all prior agreements, understandings and arrangements, both oral and written, between the Employee and the Company (or any of its Affiliates) with respect to such subject matter. This Agreement may not be modified in any way unless by a written instrument signed by both the Company and the Employee.

12.                Notices. All notices required or permitted to be given hereunder shall be in writing and shall be personally delivered by courier, sent by registered or certified mail, return receipt requested or sent by confirmed email addressed as set forth herein. All notices shall be deemed given on the date of delivery. Notice shall be sent: (i) if to the Company, addressed to 374Water Inc., 9300 S. Dadeland Blvd., Suite 600, Miami, Florida 33156, Attention: Richard H. Davis, Director, rd@374water.com and (ii) if to the Employee, to the Employee’s address as reflected on the payroll records of the Company, or to such other address as either party hereto may from time to time give notice of to the other.

13.                Benefits; Binding Effect. This Agreement shall be for the benefit of and binding upon the parties hereto and their respective heirs, personal representatives, legal representatives, successors and, where applicable, assigns, including, without limitation, any successor to the Company, whether by merger, consolidation, sale of stock, sale of assets or otherwise.

14.              Severability. The invalidity of any one or more of the words, phrases, sentences, clauses or sections contained in this Agreement shall not affect the enforceability of the remaining portions of this Agreement or any part thereof, all of which are inserted conditionally on their being valid in law.

15.              Waivers. The waiver by either party hereto of a breach or violation of any term or provision of this Agreement shall not operate nor be construed as a waiver of any subsequent breach or violation.

16.              Damages. Nothing contained herein shall be construed to prevent the Company or the Employee from seeking and recovering from the other damages sustained by either or both of them as a result of its or his or her breach of any term or provision of this Agreement. In the event that either party hereto brings suit for the collection of any damages resulting from, or the injunction of any action constituting, a breach of any of the term or provisions of this Agreement, then each party shall pay its own court costs and attorneys’ fees related thereto.

17.               Section Headings. The section headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.

[Signatures Begin on Following Page.]

IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first above written.

Exhibit 10.3

EMPLOYMENT AGREEMENT

THIS EMPLOYMENT AGREEMENT (“Agreement”) is made and entered into as of the 16th day of April, 2021 (the “Effective Date”), and is by and between 374WATER INC., a Delaware corporation f/k/a POWERVERDE, INC. (the “Company”), and MARC DESHUSSES, an individual (the “Employee”).

R E C I T A L S

AGREEMENT

NOW, THEREFORE, in consideration of the premises and mutual covenants set forth herein, the parties agree as follows:

1.                   Employment. The Company hereby agrees to employ the Employee and the Employee hereby agrees to serve the Company on the terms and conditions set forth herein.

2.                   Duties of Employee. During the Employment Period (as defined in Section 3, below), the Employee shall serve as Head of Technology (HoT) of the Company. The Employee shall diligently perform all services reasonably required of him in his capacity as the technology leader of the Company and shall report to and work under the supervision of the Company’s CEO. During the Employment Period, the Employee will faithfully carry out his responsibilities and provide services to the Company on a part-time basis and will dedicate such hours as may be necessary for the Employee to perform effectively the responsibilities of his position In addition, the Employee shall act in accordance with (i) standing instructions for the position which may be issued by the Company from time to time; (ii) all reasonable and lawful requests, directions and/or restrictions imposed by the Company; and (iii) all policies of the Company as prescribed from time to time. Upon termination of employment, the Employee shall return all Company equipment and other Company property in the Employee’s possession, custody or control. Notwithstanding the foregoing, Employee may continue his affiliation with Duke University consistent with past practice.

3.                  Term. The Employee shall be employed by the Company commencing on the Effective Date of this Agreement. The Employee’s employment by the Company shall continue for a period of two years (the “Initial Term”), unless this Agreement is terminated first pursuant to Section 6 below. If not previously terminated, at the end of the Initial Term the Agreement shall be automatically renewed for an additional term of one year unless either party provides notice of non-renewal at least six months before the end of such term, and it may similarly be renewed for future one-year terms (“Renewal Terms”) until the Agreement is terminated pursuant to Section 6. The entire term of the Agreement (comprised of that part of the Initial Term, and any Renewal Terms, prior to termination) shall be referred to in this Agreement as the “Term” or the “Employment Period.” For all purposes of the Agreement, no termination of the Employee’s employment shall be deemed to have occurred if the Employee is transferred during the Employment Period to any business entity which is an Affiliate of the Company. As used in this Agreement, the term “Affiliate” means, with respect to any specified person or entity (“Person”), any other Person that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such specified Person.

4.                   Compensation; Benefits. The Employee shall receive compensation of $60,000 per year by the Company during the Initial Term (the “Base Salary”), with such Compensation payable in installments consistent with the Company’s normal payroll schedule, subject to applicable withholding and other taxes as shall be required by applicable law. In addition, Employee shall be eligible for bonuses, stock options and/or other incentive compensation in the discretion of the Board.

5.                   Expense Reimbursement. Subject to such reasonable rules and guidelines as the Company may from time to time adopt for its employees generally, the Company shall reimburse the Employee for all reasonable expenses actually paid or incurred by the Employee during the Term of Employment in the course of and pursuant to the business of the Company. The Employee shall account to the Company in writing for all expenses for which reimbursement is sought and shall supply to the Company copies of all relevant invoices, receipts or other evidence reasonably requested by the Company.

6.                                        Termination. Employee’s employment may be terminated in any one of the following ways:

(a)                 Termination by the Company “For Cause.” The Company may terminate the employment upon written notice to Employee “for cause,” which shall be:

(i)                   Employee’s material breach of this Agreement, which is not cured within 30 days following written notice to Employee;

(ii)              Employee’s gross negligence in the performance of his duties hereunder, intentional nonperformance or mis-performance of such duties, or refusal to abide by or comply with the directives of the Board, or with the Company’s policies and procedures, which is not cured within 30 days following written notice to Employee;

(iii)               Employee’s willful dishonesty, fraud, or misconduct with respect to the business or affairs of the Company, or any of its affiliates, that in the judgment of the Company would materially and adversely affect the operations or reputation of the Company;

(iv)               Employee’s conviction of a felony or other crime involving moral turpitude;

(v)                 Employee’s abuse of alcohol or drugs (legal or illegal) that, in the Company’s judgment, materially impairs Employee’s ability to perform his duties hereunder; or

(vi)              Employee’s violation of Company’s personnel policies, which is not cured within 30 days following written notice to Employee.

In the event of a termination “for cause,” as enumerated above, Employee shall have no right to any severance compensation or other compensation accruing after the effective date of termination, no right to bonus not yet due and payable at the time of termination, and no right to monies for accrued and unused paid time off, or other personal time.

(b)                 Termination Without Cause. At any time after the commencement of employment, the Company may, without cause, terminate Employee’s employment, effective 30 days after written notice is provided to Employee. A resignation by Employee following a pay cut, demotion or other material adverse change in Employee’s rights or duties shall be deemed termination by the Company without cause. Should the Company exercise its right to terminate Employee without cause, the Company will provide Employee with compensation (“Severance Compensation”) equal to the Base Salary from the effective date of termination through the end of the Term. Such payments shall be made in accordance with the Company’s regular payroll cycle.

(c)                         Payment Through Termination. Upon termination of Employee’s employment, Employee shall be entitled to receive all of his Base Salary earned and all reimbursements due through the effective date of termination. Additional compensation subsequent to termination, if any, will be due and payable to Employee only to the extent and in the manner expressly provided above in this Section 6. All other rights and obligations of the Company and Employee under this Agreement shall cease as of the effective date of termination, except that Employee’s obligations under Sections 7 and 8 below shall survive such termination in accordance with their terms.

7.                    Restrictive Covenants.

(a)                 Confidentiality. Except as required in the performance of Employee’s work for the Company, Employee will not directly or indirectly use or disclose any Trade Secret Information (as defined below), either during or after employment with the Company for so long as such information remains Trade Secret Information as defined herein. Except as required in the performance of Employee’s work for the Company, during the period of Employee’s employment with the Company and for a period of two years thereafter (the “Restrictive Period”), Employee will not directly or indirectly use or disclose any Confidential Information (as defined below), and will not circumvent, avoid, bypass, or obviate, directly or indirectly, the intent of this Agreement. The Employee further agrees that the Confidential Information is the exclusive property of the Company and in furtherance thereof, the Employee covenants with the Company not to engage in any conversations, negotiations, correspondence or any transactions with respect to the Confidential Information, or take any other actions involving the Confidential Information, whether directly or indirectly, or whether on the account of the Employee or not, which will not be in the best interests of the Company or will not be within the intent of this Agreement, without express written consent of the Company, which consent shall be in the sole discretion of the Company and which consent may be unreasonably withheld.

As used herein, “Trade Secret Information” means any information possessed by the Company which derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use. For purposes of this Agreement, “Trade Secret Information” includes both information disclosed to Employee by the Company, or by its other employees, agents or representatives, and information otherwise acquired or developed by Employee in the course of his employment with the Company. As used herein, “Confidential Information” means any information possessed by the Company which is not readily ascertainable by proper means by other persons, regardless of whether such Confidential Information has independent economic value. Any information that Employee can demonstrate is publicly available through no fault of Employee or others with a duty or other obligation of confidentiality to the Company (contractual or otherwise), is not Trade Secret Information or Confidential Information within the meaning of this Agreement.

Notwithstanding anything else in this Agreement, Trade Secret Information shall include, but is not limited to: (i) information concerning the Company’s management, financial condition, financial operation, purchasing activities, pricing formulas, existing and contemplated products and services, sales activities, marketing research, marketing plans, marketing activities, and business plans; (ii) information acquired or compiled by the Company concerning actual or prospective customers, including, but not limited to, their identities, their business operations, their finances, the identity and quantity of products or services purchased from the Company, and other unpublished information furnished by or about them to the Company; (iii) all designs, plans, data and other information relating to the Company’s systems, products and technology; (iv) the Company’s software (including source code, object code and related documentation), its software requirements and design documentation, its product development plans, its security procedures, methods and vulnerabilities (including, without limitation, all passwords and user ids), the algorithms, methods and procedures used within the Company’s software, and all ideas and proposals, whether generated internally or not, relating to the design, operation, implementation, use and maintenance of the Company’s software, systems and products; (v) all Inventions (as defined in Section 7(c)(2), below), regardless of whether such Inventions have been reduced to practice or are subject to patent protection; and (vi) all other types and categories of information (in whatever form) with respect to which, under all the circumstances, Employee knows or has reason to know that the Company intends or expects secrecy to be maintained and as to which the Company has made reasonable efforts to maintain secrecy.

The Company may, from time to time, inform Employee of restrictions upon the use or disclosure of specified information which has been licensed or otherwise disclosed to the Company by third parties pursuant to license or confidential disclosure agreements which contain restrictions upon the use or disclosure of such information. Employee agrees that such information shall be treated as Confidential Information under this Agreement, and, in addition, Employee agrees to abide by the restrictions upon use and/or disclosure contained in such agreements.

Employee will not use or disclose to the Company any confidential or proprietary information belonging to others, and Employee represents that his employment by the Company does not and will not require the use or disclosure of such information or the violation of any confidential relationship with any third party.

(b)                Other Property of the Company. All documents, encoded media, and other tangible items provided or made accessible to Employee by the Company, or by its other employees, agents or representatives, or prepared, generated or created by Employee or others in connection with any business activity of the Company, are and shall remain the property of the Company.

Upon termination of his employment with the Company, Employee will promptly deliver to the Company all such documents, media, and other items in Employee’s possession, including all complete or partial copies, recordings, abstracts, notes or reproductions of any kind made from or about such documents, media, items or information contained therein.

Employee will neither have nor claim any right, title, or interest in any Invention, patent, copyright, trademark, service mark or trade name (or any application released thereto) owned or used by the Company.

(c)                 Ownership of Developments.

(1)           Work Product. All work, writing, material, copyrights, patents, trade secrets, or other intellectual property rights associated with any ideas, concepts, techniques, Inventions (as defined below), processes, or works of authorship developed or created by Employee during the course of performing work for the Company or its clients, including, but not limited to, supercritical water oxidation (SCWO) systems, AirSCWO Nix system, waste heat systems, Rankine cycle technologies, renewable technologies and power consumption technologies, (collectively, “Work Product”) shall belong exclusively to the Company and shall, to the extent possible, be considered a work made by the Employee for hire for the Company within the meaning of Title 17 of the United States Code. To the extent the Work Product may be considered work made by the Employee for hire for the Company, the Employee hereby assigns all right title and interest the Employee has or may have in such Work Product to the Company, and Employee further agrees to execute any assignments or similar documents requested by the Company in the future to further evidence and document the Company’s rights in and to any Work Product, and to do so without any requirement of further consideration, even if such request is made after this Agreement expires or terminates.

For the purposes of this Section 7(c), “Work Product” shall include, without limitation, all work relating in any way to the business of the Company that is conceived or created, in whole or in part, by the Employee during the Term, regardless of whether such creation is performed during normal working hours or with the use of Company equipment, all copies of such work in any medium whatsoever in the Employee’s control or possession, and all derivative works of such work authored in whole or in part by the Employee.

(2)            Inventions. As used herein, “Invention” means any discovery, improvement, innovation, idea, formula, or shop right (whether or not patentable, whether or not put into writing, and whether or not put into practice) made, generated, or conceived by Employee (whether alone or with others, whether or not patentable, whether or not put into writing, and whether or not reduced to practice) during the Term that relates in any way to the Company’s products, services, systems, markets, business methods, operations or plans. For purposes of this Agreement, any Invention relating to the business of the Company or to the Company’s actual or demonstrably anticipated research or development with respect to which Employee files a patent application within one year after termination of the Term shall be presumed to be an Invention conceived by Employee during the Term, rebuttable only by accurate, written and duly corroborated evidence that such Invention was not first conceived by Employee until after the termination of this Employment Agreement.

Employee further agrees that all Inventions generated, made or conceived by Employee during the Term shall also be solely owned by the Company, and Employee hereby irrevocably assigns to the Company all of his right, title and interest in and to any and all Inventions. Employee shall promptly disclose all Inventions to the Company in writing.

Employee further agrees to execute any assignments or similar documents requested by the Company to further evidence and document the Company’s rights in and to any Inventions, and to cooperate with Company, at the Company’s expense, in obtaining letters patent or equivalent protection for such Inventions in any and all locations and jurisdictions Company may choose in its sole discretion throughout the world, and to do so without any requirement of further consideration, even if such request is made after this Agreement expires or terminates.

(d)                 Definition of Company. Solely for purposes of this Section 7, the term “Company” also shall include any existing or future subsidiaries of the Company.

(e)                 Covenant Not to Compete. (i) During the period of Employee’s employment with the Company and for a period of two years thereafter (the “Restrictive Period”), Employee will not, as an employee, officer, director, contractor, broker, distributor, advisor, consultant, or owner, or in any other capacity, directly or indirectly participate or assist in: (A) the design, development, production, marketing or sales of any product or service competitive with any product or service which the Company markets or plans to market during Employee’s employment or at the time of termination of Employee’s employment with the Company; or (B) the management or financing of a business enterprise engaged in any such activities. The geographic territory within which Employee will refrain from such activities shall be any geographic territory within which the Company or any Company agent or representative markets or plans to market any such products or services during Employee’s employment or at the time of termination of Employee’s employment (“Restricted Area”). For the avoidance of doubt, nothing in this Section 7 will be construed to prohibit or interfere with Employee’s ability to engage in research for academic institutions or other non-profit entities, whether during or after the Employment Period

(f)                  Non-Solicitation of Customers. During the two-year period after the date of termination of Employee’s employment with the Company, Employee will not, directly or indirectly, either (i) solicit, divert, take away or accept, or attempt to solicit, divert, take away or accept, the business of any Restricted Customer (as defined below) for any product or service offered by the Company within the Restricted Area; or (ii) attempt or seek to cause any Restricted Customer to refrain, in any respect, from acquiring from or through the Company any product or services offered by the Company within the Restricted Area. As used herein, the term “Restricted Customer” means any customer to whom or to which goods or services were provided by the Company during the two-year period prior to the date of Employee’s employment, and any potential customer of the Company that the Company solicited during the one-year period prior to the date of termination of Employee’s employment with the Company.

(g)                 Non-Solicitation of Employees/Consultants. During the two-year period after the date of termination of the Employee’s employment with the Company, Employee will not, as to work within the Restricted Area, directly or indirectly solicit, request or induce any employee or consultant of the Company to terminate employment or consultancy with the Company and seek employment or consultancy with another firm other than the Company; provided, however, that a general advertisement in a medium of general public circulation with respect to a particular employment or consultancy position that is not targeted at any one or more the employees of the Company will not violate the covenants of this Section.

(h)                 Duty of Loyalty. Employee agrees that during the time that Employee is employed by the Company, Employee will owe the Company a duty of loyalty, and that as part of this duty of loyalty, Employee shall not engage in any form of business activity representing competition against the Company. Similarly, Employee, while employed by the Company, shall not appropriate for Employee’s own use any business opportunity of the Company, or otherwise engage in conduct where Employee’s own business interests are developed instead of the Company’s business interests.

(i)                   Requests for Clarification. In the event Employee is uncertain as to the meaning of any provision of this Agreement or its application to any particular information, item or activity, Employee will inquire in writing to the Chief Financial Officer (CFO) of the Company, specifying any areas of uncertainty. The Company will respond in writing within a reasonable time and will endeavor to clarify any subject of uncertainty, including such things as whether it considers particular information to be its Trade Secret Information or whether it considers any particular activity or employment to be in violation of this Agreement.

(j)                  Acknowledgment by Employee. The Employee acknowledges and confirms that (i) the restrictive covenants contained in this Section 7 are reasonably necessary to protect the legitimate business interests of the Company; and (ii) the restrictions contained in this Section 7 (including, without limitation, the length of the term of the provisions of this Section 7) are not overbroad, overlong, or unfair and are not the result of overreaching, duress or coercion of any kind.

(k)                 Reformation by Court. In the event that a court of competent jurisdiction shall determine that any provision of this Section 7 is invalid or more restrictive than permitted under the governing law of such jurisdiction, then only as to enforcement of this Section 7 within the jurisdiction of such court, such provision shall be interpreted and enforced as if it provided for the maximum restriction permitted under such governing law.

(l)                   Survival. The provisions of this Section 7 shall survive the termination of this Agreement, as applicable.

8.                   Injunction. It is recognized and hereby acknowledged by the parties hereto that a breach by the Employee of any of the covenants contained in Section 7 of this Agreement will cause irreparable harm and damage to the Company, the monetary amount of which may be virtually impossible to ascertain. As a result, the Employee recognizes and hereby acknowledges that the Company shall be entitled to seek an injunction from any court of competent jurisdiction enjoining and restraining any violation of any or all of the covenants contained in Section 7 of this Agreement by the Employee or any of the Employee’s Affiliates, associates, partners or agents, either directly or indirectly, and that such right to injunction shall be cumulative and in addition to whatever other remedies the Company may possess.

9.             Assignment. Neither party shall have the right to assign or delegate the Employee’s rights or obligations hereunder, or any portion thereof, to any other person.

10.                Governing Law. This Agreement is to be construed and enforced according to the laws of the State of North Carolina. The parties agree to accept any service of process by mail and to the exclusive venue of courts of competent jurisdiction located in Durham County, North Carolina in any dispute arising out of the employment by the Company of the Employee, compensation or any damages in respect thereof.

11.               Entire Agreement; Amendment. This Agreement reflects the entire agreement between the parties hereto with respect to the subject matter hereof and, upon its effectiveness, shall supersede all prior agreements, understandings and arrangements, both oral and written, between the Employee and the Company (or any of its Affiliates) with respect to such subject matter. This Agreement may not be modified in any way unless by a written instrument signed by both the Company and the Employee.

12.                Notices. All notices required or permitted to be given hereunder shall be in writing and shall be personally delivered by courier, sent by registered or certified mail, return receipt requested or sent by confirmed email addressed as set forth herein. All notices shall be deemed given on the date of delivery. Notice shall be sent: (i) if to the Company, addressed to 374Water Inc., 3710 Shannon Rd. #51877 Durham NC 27717 Attention: Yaacov Nagar, CEO, kn@374water.com and (ii) if to the Employee, to the Employee’s address as reflected on the payroll records of the Company, or to such other address as either party hereto may from time to time give notice of to the other.

13.                Benefits; Binding Effect. This Agreement shall be for the benefit of and binding upon the parties hereto and their respective heirs, personal representatives, legal representatives, successors and, where applicable, assigns, including, without limitation, any successor to the Company, whether by merger, consolidation, sale of stock, sale of assets or otherwise.

14.              Severability. The invalidity of any one or more of the words, phrases, sentences, clauses or sections contained in this Agreement shall not affect the enforceability of the remaining portions of this Agreement or any part thereof, all of which are inserted conditionally on their being valid in law.

15.              Waivers. The waiver by either party hereto of a breach or violation of any term or provision of this Agreement shall not operate nor be construed as a waiver of any subsequent breach or violation.

16.              Damages. Nothing contained herein shall be construed to prevent the Company or the Employee from seeking and recovering from the other damages sustained by either or both of them as a result of its or his or her breach of any term or provision of this Agreement. In the event that either party hereto brings suit for the collection of any damages resulting from, or the injunction of any action constituting, a breach of any of the term or provisions of this Agreement, then each party shall pay its own court costs and attorneys’ fees related thereto.

17.               Section Headings. The section headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.

[Signatures Begin on Following Page.]

IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first above written.

Exhibit 10.4

Certain identified information in this document has been excluded because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed, and has been marked with “[***]” to indicate where omissions have been made.

LICENSE AGREEMENT

This Agreement is effective as of April 16, 2021 (the “EFFECTIVE DATE”), between 374Water, Inc., (“LICENSEE”) having the address in Article 12 below, and Duke University, a nonprofit educational and research institution organized under the laws of North Carolina (“DUKE”), each a “Party” and together, the “Parties”. LICENSEE and DUKE hereby agree as follows:

ARTICLE 1 – DEFINITIONS

1.1                 “AFFILIATE” means any corporation or non-corporate entity that controls, is controlled by or is under the common control with a party. A corporation or a non-corporate entity, as applicable, is deemed to be in control of another corporation if (a) it owns or directly or indirectly controls at least 50% of the voting stock of the other corporation or (b) in the absence of ownership of at least 50% of the voting stock of a corporation, or in the case of a non- corporate entity, if it possesses directly or indirectly, the power to direct or cause the direction of the management and policies of such corporation or non-corporate entity, as applicable.

1.2                 “COMBINATION PRODUCT” means a LICENSED PRODUCT that is sold, packaged, blended, or otherwise combined with one (1) or more other products or technologies that (i) have significant independent utility, or are (or can serve as the basis of) a separately saleable product, and (ii) are not covered by a VALID CLAIM of the PATENT RIGHTS (such other products or technologies, the “Other Products”).

1.3                 “DUKE,” as used in Articles 8 and 9, shall include its trustees, officers, employees, students, and agents.

1.4           “FIELD OF USE” means water and waste treatment.

1.5                 “FIRST COMMERCIAL SALE” means the first SALE through a bona fide arm’s length transaction of any LICENSED PRODUCT or first NET SALES-generating commercial use of any LICENSED PROCESS by LICENSEE or a SUBLICENSEE, excluding the SALE of a LICENSED PRODUCT or use of a LICENSED PROCESS for use in trials or research, pilot projects, as a sample, or that is of temporary availability.

1.6           “FOUNDATION” means the Bill and Melinda Gates Foundation

1.7                 “GLOBAL ACCESS” means the principal goal of the FOUNDATION to ensure that innovations and solutions (and related rights) are managed and optimized for the purpose of facilitating (i) the broad availability of data and information and (ii) the access to affordable health and sanitation solutions for the benefit of people most in need within TARGET MARKETS.

1.8                 “LICENSED PROCESS(ES)” means any process or method that: (a) but for this Agreement, comprises an infringement (including contributory or inducement), or is covered by, a VALID CLAIM in the country in which such process or method is developed, used, imported, offered for sale or sold; or (b) employs a LICENSED PRODUCT or is based in whole or in part on a LICENSED PRODUCT.

1.9                 “LICENSED PRODUCT(S)” means any product or service that: (a) but for this Agreement, comprises an infringement (including contributory or inducement), or is covered by, a VALID CLAIM in the country in which any such product or product part is made, used, imported, offered for sale or sold; or (b) is manufactured by using a LICENSED PROCESS or is employed to practice a LICENSED PROCESS.

1.10              “NET SALES” means the amount billed or invoiced, and if any amount is not billed or invoiced, the amounts received, on sales, rental or lease, however characterized, by LICENSEE and/or SUBLICENSEES of LICENSED PRODUCTS and uses of LICENSED PROCESSES sold, rented, used, or leased in a country in which such LICENSED PRODUCTS (or the manufacture or use thereof) or LICENSED PROCESSES are covered by one or more VALID CLAIMS in such country, less the following deductions (but only to the extent such deductions are otherwise included in NET SALES and are not obtained in view of other consideration received by LICENSEE):

(a)      cash discounts, rebates, chargebacks, retroactive price reductions, or similar adjustments actually granted to customers for or with respect to SALE of LICENSED PRODUCTS or LICENSED PROCESSES;

(b)      sales taxes, value-added taxes, tariffs, excise taxes, duties, use taxes, or similar governmental charges separately stated in such bills or invoices with reference to particular SALES and actually paid or owed by LICENSEE or a SUBLICENSEE to a governmental unit;

(c)      actual freight expenses between LICENSEE or a SUBLICENSEE (or their agents) and customers, and handling or insurance expenses, to the extent such expenses are not charged to or reimbursed by customers; or

(d)      amounts actually refunded or credited on returns or rejections or for defective or expired LICENSED PRODUCTS.

Where LICENSEE or SUBLICENSEE receives any consideration other than cash for such transactions that would otherwise qualify as NET SALES, fair market cash value for such consideration, reasonably determined and agreed upon in good faith, by DUKE and LICENSEE or SUBLICENSEES, shall be included in NET SALES. Where a product or activity is a LICENSED PRODUCT or LICENSED PROCESS hereunder due to contributory infringement or inducement of infringement, NET SALES shall include SALES of the product or process that constitutes a direct infringement of the applicable PATENT RIGHTS. Notwithstanding anything to the contrary, NET SALES shall not include, and shall be deemed zero with respect to, (i) the distribution of reasonable quantities of promotional samples of LICENSED PRODUCTS or LICENSED PROCESSES, (ii) LICENSED PRODUCTS or LICENSED PROCESSES provided for research, development, or evaluation purposes at a price that is at or below LICENSEE’s, its AFFILIATE’s, or the applicable SUBLICENSEE’s reasonable, documented cost to manufacture, procure, or provide such LICENSED PRODUCTS or LICENSED PROCESSES, calculated in a reasonable, good faith manner consistent with such Party’s standard accounting practices for its other products and services, and (iii) LICENSED PRODUCTS or LICENSED PROCESSES provided by or on behalf of LICENSEE or a SUBLICENSEE for purposes of resale, provided such resale is subject to royalties on which payments are due under Paragraph 3.1(a).

If a COMBINATION PRODUCT is sold in a country, NET SALES for the purposes of calculating royalties due on such COMBINATION PRODUCT shall be calculated by multiplying the actual NET SALES of such COMBINATION PRODUCT in such country by the fraction A/A+B, where A is the weighted average selling price of the LICENSED PRODUCT included within such COMBINATION PRODUCT when sold separately (i.e., not as a COMBINATION PRODUCT) during the ROYALTY PERIOD in question in such country, and B is the weighted average selling price of the Other Product(s) in the COMBINATION PRODUCT when sold separately (i.e., not in combination with any other products) during the ROYALTY PERIOD in question in such country. If neither the LICENSED PRODUCT nor the Other Product(s) B are sold separately in such country during the relevant period, then NET SALES allocable to such COMBINATION PRODUCT in such country during such ROYALTY PERIOD for royalty calculation purposes will be reasonably determined in good faith by mutual agreement between the Parties, such agreement not to be unreasonably withheld, based on an equitable method that takes into account the relative values of the LICENSED PRODUCT and Other Product portions of such COMBINATION PRODUCT.

1.11              “QUALIFYING TRANSFER” means a TRANSFER of a LICENSED PRODUCT OR LICENSED PROCESS as demonstrated by LICENSEE in written reports submitted to and reasonably satisfactory to DUKE: (a) for use in a TARGET MARKET, (b) to process human fecal waste and/or including human fecal waste transported from a wastewater treatment plant, and (c) has been “delivered” to the transferee in accordance with commercially reasonable delivery terms.

1.12              “PATENT RIGHTS” means DUKE’S legal rights under the patent laws of the United States or relevant foreign countries for all of the following:

(a)      the following United States and foreign patent(s) and/or patent application(s), and divisionals, continuations (except continuations-in-part), and foreign counterparts of the same:

(b)      all additions, divisionals, continuations, continuations-in-part (to the extent that the claims thereof are fully supported by another patent or application in the PATENT RIGHTS), substitutions, extensions, registrations, patent term extensions, revalidations, supplementary protection certificates, and renewals of any of the foregoing or claiming priority to any of the foregoing, any foreign counterparts of any of the foregoing, and all United States and foreign patents issued from the applications listed in subparagraph 1.11 (a) above, or this subparagraph 1.12(b), including any reviewed, reissued or reexamined patents based upon the same.

1.13              “ROYALTY PERIOD(S)” means the six-month periods ending on the last days of June and December each year.

1.14              “SALE” means sale, rental, or lease, however characterized, and SOLD means the past tense of SALE.

1.15              “SUBLICENSEE(S)” means any person or entity in writing sublicensed any of the rights under the PATENT RIGHTS granted to LICENSEE under this AGREEMENT, whether such sublicense is granted by LICENSEE, any AFFILIATE thereof, or any preceding SUBLICENSEE.

1.16              “SUBLICENSING REVENUE” means any consideration (subject to Paragraph 6.2) actually received by LICENSEE or any AFFILIATE thereof from a SUBLICENSEE as consideration for the grant of rights under the PATENT RIGHTS (net of any tax or similar withholding obligations imposed by any tax or other government authority(ies) that are not reasonably recoverable by LICENSEE) (e.g., license issue fees, maintenance or annual minimum fees, milestone payments, and the like), provided that SUBLICENSING REVENUE shall exclude (a) sales-based royalties, (b) purchases of equity or debt securities of LICENSEE or any AFFILIATE thereof for a price equal to or less than the fair market value thereof (as reasonably determined in good faith by LICENSEE and agreed to by DUKE, such agreement not to be unreasonably withheld), (c) fair market value payments made in connection with research and development agreements, joint ventures, partnerships, or collaboration agreements, and documented as such in writing, and submitted to DUKE, where LICENSEE or an AFFILIATE of LICENSEE is obligated to perform research and development of any LICENSED PRODUCT or LICENSED PROCESS, and (d) other payments made by a SUBLICENSEE as consideration for performance of services or provision of goods by LICENSEE or an AFFILIATE of LICENSEE.

1.17              “TARGET MARKETS” means the list of countries included in this Agreement as Appendix A.

1.18         “TECHNICAL INFORMATION” means the non-patented intellectual property (or applications therefore) that arose during the work at DUKE performed as part of the FOUNDATION’s grant agreements [***] including any research information, technical information, technical data, Standard Operating Procedures (“SOPs”), or other information (to the extent relating in each case to the PATENT RIGHTS or their use) and was: (a) generated at DUKE by [***] laboratory before the EFFECTIVE DATE, and (b) is otherwise owned by DUKE and invented by [***] or personnel in his laboratory and necessary for practice of the LICENSED PRODUCT or LICENSED PROCESS.

1.19          “TERRITORY” the world.

1.20              “TRANSFER” means the sale, loan, lease, or other transfer of LICENSED PRODUCTS or LICENSED PROCESSES by or on behalf of LICENSEE or its AFFILIATES.

1.21              “VALID CLAIM” means any claim of a pending patent application or issued and unexpired patent, included, in either case, in the PATENT RIGHTS, that (i) has not been held unpatentable, invalid, or unenforceable by a court or other government agency of competent jurisdiction in a decision over which no appeal can or has been taken and (ii) has not been dedicated to the public, abandoned, or admitted to be invalid, unenforceable, or of a scope not covering the subject matter at issue through reissue, re-examination, disclaimer or otherwise; provided, however, that if the relevant holding of such court or agency is later reversed by a court or agency with overriding authority, the claim shall be deemed a VALID CLAIM with respect to NET SALES made after the date of such reversal to the extent such claim otherwise remains a VALID CLAIM under this definition.

ARTICLE 2 – GRANT OF LICENSE

2.1                 DUKE hereby grants to LICENSEE a non-exclusive license under the PATENT RIGHTS and TECHNICAL INFORMATION, with the right to grant sublicenses, subject to the terms and conditions of this Agreement, in the FIELD OF USE and the TERRITORY to make, have made, import, use, market, offer for sale and sell LICENSED PRODUCTS and to sell, use and/or provide LICENSED PROCESSES. During the term of this Agreement, DUKE will not grant licenses under the PATENT RIGHTS or the TECHNICAL INFORMATION to third parties (other than the FOUNDATION) that are more favorable to such third party licensees than this Agreement, except that Section 3.7 and the Equity Transfer Agreement attached as Appendix B will not be considered part of the terms of this Agreement for purposes of this sentence. The rights and licenses granted by DUKE to LICENSEE under this Paragraph 2.1 include the grant of such rights and licenses to any AFFILIATES of LICENSEE provided that (a) LICENSEE promptly notifies DUKE in writing of any such rights and licenses granted to an AFFILIATE; and (b) any such AFFILIATE expressly assumes, in writing, the same obligations as those of LICENSEE. LICENSEE shall be responsible for the performance of all obligations by such AFFILIATES and for such AFFILIATES’ compliance with all terms and conditions of this Agreement. References to LICENSEE under this Agreement shall be deemed to also include references to any such AFFILIATE.

2.2                 This Agreement shall expire as follows: (a) in the TARGET MARKETS, on a country- by-country and LICENSED PRODUCT-by-LICENSED PRODUCT (or LICENSED PROCESS- by-LICENSED PROCESS) basis [***] years after the first date on which there are no VALID CLAIMS in a particular country covering a particular LICENSED PRODUCT (or the manufacture of use thereof) (or LICENSED PROCESS) and (b) in all markets other than the TARGET MARKETS, on a country-by-country and LICENSED PRODUCT-by-LICENSED PRODUCT (or LICENSED PROCESS-by-LICENSED PROCESS) basis on the first date on which there are no VALID CLAIMS in a particular country covering a particular LICENSED PRODUCT (or the manufacture of use thereof) (or LICENSED PROCESS), unless sooner terminated as provided in another specific provision of this Agreement. Notwithstanding the foregoing or anything to the contrary, upon expiration of this Agreement with respect to a country and LICENSED PRODUCT (or LICENSED PROCESS), all rights granted under Paragraph 2.1 with respect thereto shall become royalty-free, fully-paid, perpetual, and irrevocable.

2.3                 The research leading to the PATENT RIGHTS and TECHNICAL INFORMATION was funded in part by the FOUNDATION and is subject to GLOBAL ACCESS. In accordance with GLOBAL ACCESS, including the GLOBAL ACCESS Targets listed in Paragraph 5.2, LICENSEE will use diligent efforts to (a) develop, manufacture, and commercialize LICENSED PRODUCTS and LICENSED PROCESSES for human fecal waste treatment as soon as practicable in the TARGET MARKETS and (b) use diligent efforts to obtain ISO31800 certification for LICENSED PRODUCTS and LICENSED PROCESSES within [***] years from the Effective Date. LICENSEE will use diligent efforts to reduce the costs for the LICENSED PRODUCTS and LICENSED PROCESSES to ensure affordability for the people most in need within the TARGET MARKETS.

2.4                 LICENSEE agrees to mark the LICENSED PRODUCTS sold in the United States with all applicable United States patent numbers as necessary to meet the requirements of 35 U.S.C. 287 so that the full benefits of patent enforcement may be realized. All LICENSED PRODUCTS shipped to or sold in other countries shall be marked to comply with the patent laws and practices of the countries of manufacture, use and SALE.

ARTICLE 3 - CONSIDERATION

3.1                  LICENSEE shall pay the following to DUKE:

(a)    On a country-by-country basis, until expiration of the last VALID CLAIM in the applicable country, Running Royalties equal to [***] percent of NET SALES (the “Running Royalties”). If LICENSEE makes any SALES to any Party affiliated with LICENSEE, or in any way directly or indirectly related to or under the common control with LICENSEE, at a price less than the regular price charged to other parties, the Running Royalties payable to DUKE shall be computed on the basis of the weighted average price charged to other parties for such LICENSED PRODUCT.

(b)   Sublicensing Fees equal to [***] percent of any SUBLICENSING REVENUE received by LICENSEE or any AFFILIATE of LICENSEE.

(c)    In addition to payment of ongoing patent expenses pursuant to Article 7 hereof, LICENSEE shall reimburse DUKE for unreimbursed expenses incurred by DUKE for filing and prosecution of PATENT RIGHTS that have not been reimbursed by third parties as of the EFFECTIVE DATE (“Past Patent Expenses”). LICENSEE shall pay

Past Patent Expenses within [***] days of the EFFECTIVE DATE.

3.2                 LICENSEE is not obligated to pay multiple royalties if any LICENSED PRODUCT or LICENSED PROCESS is covered by more than one claim of PATENT RIGHTS or the same LICENSED PRODUCT is covered by claims in two or more countries.

3.3                 All payments due to DUKE under this Agreement shall be made payable to “Duke University.” Payments drawn directly on a U.S. bank may be made by either check to the address in Article 10 or by wire transfer. Any payment drawn on a foreign bank or foreign branch of a U.S. bank shall be made only by wire transfer. Wire transfers shall be made in accordance with the following or any other instructions as may be specified by DUKE. If payments are made by wire, the wiring instructions below must be followed.

All payments due to DUKE under this Agreement must be paid in United States Dollars in Durham, North Carolina, or at such place as DUKE may reasonably designate consistent with the laws and regulations controlling in any foreign country. If any currency conversion is required in connection with such payments due, such conversion must be made by using the exchange rate prevailing at Wells Fargo Bank (N.A.) (or its successor, as the case may be) on the last business day of the reporting period to which such payments relate.

3.4                 Royalty payments shall be made on a semi-annual basis with submission of the reports required by Article 4. All amounts due under this Agreement, including amounts due for the payment of patent expenses, shall, if overdue, be subject to a charge of interest compounded monthly until payment, at a per annum rate of [***] percent ([***]%) above the prime rate in effect at the JP Morgan Chase Bank, N.A. or its successor bank on the due date (or at the highest allowed rate if a lower rate is required by law). The payment of such interest shall not foreclose DUKE from exercising any other rights it may have resulting from any late payment. LICENSEE shall reimburse DUKE for its reasonable and documented out-of-pocket costs, including reasonable attorney fees, for expenses paid in order to collect any amounts overdue more than [***] days.

3.5                 All payments and fees, including all milestone fees, made under this Agreement are and shall be non-refundable and, except as explicitly set forth herein, non-creditable. DUKE shall have no obligation whatsoever to pay, return, credit, or refund any amounts paid hereunder, except as may be specifically provided herein. By way of example only, notwithstanding the deductions permitted to NET SALES, DUKE shall have no obligation to pay any amounts to LICENSEE even if such deductions should result in a negative amount for NET SALES in any given ROYALTY PERIOD.

3.6                 Should LICENSEE be required under any law or regulation of any government entity or authority to withhold or deduct any portion of the payments on royalties due to DUKE, then the sum payable to DUKE shall be increased by the amount necessary (if any) to ensure that DUKE receives an amount equal to the sum it would have received had no withholdings or deductions been made. DUKE shall cooperate reasonably with LICENSEE or any SUBLICENSEE in the event LICENSEE or SUBLICENSEE elects to assert, at its own expense, any exemption from any such tax or deduction. Additionally, if DUKE is issued or awarded any credit or refund, the amount of any such credit or refund shall be applied against future amounts payable to DUKE under this Agreement.

3.7                 Equity: On the EFFECTIVE DATE, LICENSEE must issue to DUKE shares of LICENSEE’s common stock representing [***] percent ([***]%) of the Total Ownership Interests in LICENSEE as of the EFFECTIVE DATE, pursuant to the terms of the Equity Transfer Agreement attached herein as Appendix B. “Total Ownership Interests” shall mean the total number of issued and outstanding shares of LICENSEE on a fully diluted basis, including, for purposes of such calculation, issued and outstanding shares of LICENSEE’s common stock and other capital stock, all shares of LICENSEE’s capital stock subject to granted, unexercised stock options, all shares of LICENSEE’s capital stock reserved for issuance under LICENSEE’s stock option plan that have not been issued and are not the subject of granted, unexercised stock options, all shares of LICENSEE’s capital stock that can be issued pursuant to the exercise of issued, unexercised warrants, and any other outstanding securities issued by LICENSEE that may become convertible to LICENSEE’s capital stock (all as calculated on an as-converted-into-LICENSEE’s-common-stock-basis, but excluding debt securities).

ARTICLE 4 - REPORTS

4.1                 Until the FIRST COMMERCIAL SALE, by July 31 of each year LICENSEE shall provide to DUKE a written annual report that includes reports on progress since the prior annual report and general future plans regarding, LICENSED PRODUCTS and LICENSED PROCESSES: research and development, regulatory approvals, manufacturing, sublicensing, marketing and SALES. Further, LICENSEE shall specifically report to DUKE the FIRST COMMERCIAL SALE within [***] days following the end of the ROYALTY PERIOD in which it occurs, and provide a brief description of the products or services subject of the SALE, and terms thereof, including whether the SALE or TRANSFER is a QUALIFYING TRANSFER and the applicable TARGET MARKET country.

4.2                 After the FIRST COMMERCIAL SALE, LICENSEE shall provide semi-annual reports to DUKE for each ROYALTY PERIOD. Specifically, by each September 15 and March 15 (i.e., within seventy-five days after each ROYALTY PERIOD closes, including the close of the ROYALTY PERIOD immediately following any termination of this Agreement), LICENSEE shall report to DUKE for the applicable ROYALTY PERIOD:

(a)    number of LICENSED PRODUCTS sold, leased, or distributed, however characterized, by LICENSEE and each SUBLICENSEE.

(b)    NET SALES, excluding the deductions provided therefor, of LICENSED PRODUCTS SOLD by LICENSEE and SUBLICENSEES.

(c)    a description and accounting for all LICENSED PROCESSES SOLD, by LICENSEE and all SUBLICENSEES included in NET SALES, excluding the deductions therefor.

(d)   deductions applicable as provided in the definition for NET SALES above, and an explanation of the rationale(s) therefor.

(e)   Sublicense fees on payments from SUBLICENSEES under Paragraph 3.1(b) above

(f)     foreign currency conversion rate and calculations (if applicable) and total royalties due.

(g)    for each sublicense or amendment thereto completed in the particular ROYALTY PERIOD (including agreements under which LICENSEE will have LICENSED PRODUCTS made by a third party): names, addresses, and U.S.P.T.O. Entity Status (as discussed in Paragraph 6.1) of such SUBLICENSEE; the date of each agreement and amendment; the TERRITORY of the sublicense; the scope of the sublicense; and the nature, timing and amounts of all fees, royalties to be paid to LICENSEE thereunder.

(h)    summary of progress on research and development, regulatory approvals, ISO31800 certification, manufacturing, sublicensing, marketing and SALES, and general plans for the future with respect to LICENSED PRODUCTS and LICENSED PROCESSES, and specifically for application towards human fecal waste treatment.

(i)      the date of FIRST COMMERCIAL SALE of LICENSED PRODUCTS (or results of LICENSED PROCESSES) in each country, to the extent reasonably ascertainable by LICENSEE and clearly summarized in writing to DUKE by LICENSEE.

(j)      the number of QUALIFYING TRANSFERS with supporting documentation, identifying relevant TARGET MARKETS and overall percentage of QUALIFYING TRANSFERS compared to all Transfers.

LICENSEE shall include the amount of all payments due, and the various calculations used to arrive at those amounts, including the quantity, description (nomenclature and type designation as described in Paragraph 4.3 below), country of manufacture and country of SALE or use of LICENSED PRODUCTS and LICENSED PROCESSES.

If no payment is due, LICENSEE shall so report to DUKE that no payment is due. Failure to provide reports as required under this Article 4 shall be a material breach of this Agreement. LICENSEE agrees to reasonably cooperate with DUKE regarding any questions it may have relating to compliance with this Agreement, for example to discuss the information in reports.

4.3                 LICENSEE shall promptly establish and consistently employ a system of specific nomenclature and type designations along with providing an annual list to DUKE of LICENSED PRODUCTS and LICENSED PROCESSES to permit identification and segregation of various types where necessary and shall require SUBLICENSEES to use the same nomenclature and type designations and the names under which they are commercialized.

4.4                 LICENSEE shall keep, and shall require SUBLICENSEES to keep, true and accurate records containing data reasonably required for the computation and verification of payments due under this Agreement and compliance with GLOBAL ACCESS requirements. LICENSEE shall(a) open such records for inspection upon reasonable notice during business hours, and no more than once per year for DUKE and/or the FOUNDATION, by either DUKE auditor(s) or an independent certified accountant selected by DUKE and/or the FOUNDATION and reasonably acceptable to LICENSEE, for the purpose of verifying the amount of payments due and compliance with GLOBAL ACCESS requirements, and shall provide information to such accountant to facilitate such inspection; and (b) retain such records for [***] years from date of origination. LICENSEE shall, upon DUKE’s written request, and subject to the applicable audit provisions of any such SUBLICENSE, exercise its audit rights with respect to royalties payable on LICENSED PRODUCTS under sublicenses granted by LICENSEE and report the results thereof to DUKE. Any such audit findings shall be the CONFIDENTIAL INFORMATION of LICENSEE.

The terms of this Article shall survive any termination of this Agreement. DUKE is responsible for all expenses of such inspection, except that if any inspection reveals an underpayment greater than [***] percent ([***]%) of royalties due DUKE, then LICENSEE shall pay all reasonable and documented out-of-pocket expenses of that inspection and the amount of the underpayment and interest to DUKE within [***]days of written notice thereof. LICENSEE shall also reimburse DUKE for its reasonable documented out-of-pocket expenses required to collect the amount underpaid. Any overpayment revealed by any such inspection shall be credited against future amounts due hereunder.

ARTICLE 5 - DILIGENCE

5.1                 GLOBAL ACCESS Targets. LICENSEE shall use commercially reasonable efforts to develop and commercialize LICENSED PRODUCTS or LICENSED PROCESSES for human fecal waste treatment within the TERRITORY through a thorough, vigorous and diligent program for exploiting the PATENT RIGHTS and/or TECHNICAL INFORMATION and to employ active, diligent marketing efforts throughout the life of this Agreement for such LICENSED PRODUCTS or LICENSED PROCESSES. In particular, LICENSEE will use diligent efforts to develop, manufacture, market and commercialize LICENSED PRODUCTS and LICENSED PROCESSES for human fecal waste treatment in the TARGET MARKETS and will give priority to fulfilling customer demands for QUALIFYING TRANSFERS over other TRANSFERS. For each QUALIFYING TRANSFER, LICENSEE will provide the applicable customer with reasonable support for the initial set-up and on-going use of such LICENSED PRODUCT, including the training and other services.

5.2                 GLOBAL ACCESS Targets. LICENSEE shall use commercially reasonable efforts to meet the following targets:

(a)    Within [***] years from the EFFECTIVE DATE at least [***] percent ([***]%) of all TRANSFERS must be QUALIFYING TRANSFERS.

(b)    Within [***]years from the EFFECTIVE DATE at least [***] ([***]%) of the TRANSFERS must be QUALIFYING TRANSFERS (the foregoing requirements, together, the “GLOBAL ACCESS Targets”).

ARTICLE 6 - SUBLICENSING

6.1                 LICENSEE shall notify DUKE in writing of every sublicense agreement and each amendment thereto within [***] days after their execution, and indicate the name of the SUBLICENSEE, the territory of the sublicense, the scope of the sublicense, and the nature, timing and amounts of all fees and royalties to be paid thereunder, and whether or not the SUBLICENSEE has greater or fewer than 500 employees. Upon request, LICENSEE shall provide DUKE with a copy of sublicense agreements, which LICENSEE may redact in its reasonable discretion to protect the confidentiality of any SUBLICENSEE’s proprietary or confidential information.

6.2                 LICENSEE shall not receive from SUBLICENSEES anything of value other than cash payments in consideration for any sublicense under this Agreement, without the express prior written permission of DUKE.

6.3                 LICENSEE shall require that all sublicenses: (a) be consistent with the terms and conditions of this Agreement, including compliance with GLOBAL ACCESS requirements; (b) contain the SUBLICENSEE’S acknowledgment of the disclaimer of warranty and limitation on DUKE’s liability, as provided by Article 9 below; and (c) contain provisions under which the SUBLICENSEE accepts duties at least equivalent to those accepted by the LICENSEE in the following Paragraphs: 4.4 (duty to keep records), 10.1 (duty to defend, hold harmless, and indemnify DUKE), 10.3 (duty to maintain insurance), 2.4 (duty to properly mark LICENSED PRODUCTS with patent notices), and 15.5 (duty to restrict the use of DUKE’s name).

6.4                 Upon termination of this Agreement, any sublicenses granted by LICENSEE under the PATENT RIGHTS shall, to the extent provided in such sublicense, remain in effect and be deemed to have been assigned by LICENSEE to DUKE prior to such termination provided that: (a) the sublicensing agreement requires the SUBLICENSEE to thereafter pay DUKE any consideration that would have been due to LICENSEE with respect to the rights granted under this Agreement; and (b) LICENSEE remains responsible for all other obligations thereunder to the extent applicable to LICENSEE and in excess of DUKE’s obligations under this Agreement. If any terms of such sublicense agreements fail to comply with the requirements of Article 6 herein relating to sublicensing, or are otherwise inconsistent with this Agreement, and DUKE provides notice thereof to SUBLICENSEE, such inconsistent terms will be renegotiated in good faith between DUKE and the SUBLICENSEE; provided, such sublicense will remain in effect pending resolution and mutual agreement upon such negotiated terms. If after [***] days of such notice from DUKE, SUBLICENSEE and DUKE fail to reach agreement over any such renegotiated terms, DUKE may immeadiately terminate said sublicense agreement. Any sublicense executed by LICENSEE must contain language to implement this Paragraph 6.4 in order for any SUBLICENSEE to enjoy the benefits of this Paragraph 6.4.

ARTICLE 7 - PATENT APPLICATIONS AND MAINTENANCE

7.1                 DUKE shall have the right to control, and will use reasonable efforts to perform, all aspects of filing, prosecuting, and maintaining all of the patents and patent applications that form the basis for the PATENT RIGHTS, including (a) administrative reexaminations and reviews; and (b) disputes (including litigation) regarding inventorship and derivation, and interferences. LICENSEE shall reasonably cooperate with DUKE in activities relating to the PATENT RIGHTS, including said activities. Upon DUKE’s request, to the fullest extent permitted by law, LICENSEE shall use reasonable efforts to apply for and prosecute, or support in any reasonable way DUKE’s application for, a patent term extension for patents included in the PATENT RIGHTS.

7.2                 DUKE shall (i) promptly notify LICENSEE in writing of all information received by DUKE relating to the filing, prosecution and maintenance of the PATENT RIGHTS, and (ii) shall make reasonable efforts to allow LICENSEE to review, comment, and advise upon such information. LICENSEE shall hold such information confidential and to use the information provided by DUKE only for the purpose of advancing DUKE’s PATENT RIGHTS.

7.3                 During the term of this Agreement, LICENSEE shall reimburse DUKE for all documented fees and costs relating to the activities described in this Article. Such reimbursement shall be made within [***] days of receipt of DUKE’s invoice and shall be subject to the interest and other requirements specified in Article 3 above. If DUKE licenses PATENT RIGHTS to a third party, other than the FOUNDATION, future patent expenses shall be paid on a pro-rata basis based on the number of licensees.

7.4                 If LICENSEE provides DUKE with written notification that it will no longer support the filing, prosecution, or maintenance of a specified patent(s) and/or patent application(s) within the PATENT RIGHTS, then LICENSEE’s responsibility for fees and costs related to the filing, prosecution, and maintenance of such subject PATENT RIGHTS will terminate [***] days after DUKE’s receipt of such written notification. At that time, such patents and/or patent applications will no longer be included in the PATENT RIGHTS (and this Agreement is deemed to be so amended accordingly), and LICENSEE surrenders all rights under this Agreement to such patents, patent applications, and any patent or patent applications arising therefrom.

7.5                 LICENSEE shall notify DUKE promptly if, at any time during the term of this Agreement, LICENSEE, its AFFILIATES, or any of its SUBLICENSEES does not qualify as a “small entity” as under section 1.27, as amended, of the Consolidated Patent Rules of the United States Patent and Trademark Office.

ARTICLE 8 – INFRINGEMENT OF THIRD PARTY RIGHTS

8.1                 In the event that DUKE or LICENSEE is charged with infringement of a patent by a third party or is made a party in a civil action as a result of LICENSEE’s practice of the PATENT RIGHTS under this Agreement and/or use of LICENSED PRODUCTS or LICENSED PROCESSES sold by LICENSEE, LICENSEE:

8.2                 DUKE will give LICENSEE assistance, at LICENSEE’s expense, in the defense of any such infringement charge or lawsuit, as may be reasonably required.

8.3                 To the extent that any suit as handled under Article 8 involves a settlement, consent judgement or voluntary final disposition involving (i) the granting of any rights to the PATENT RIGHTS to a third party, (ii) the invalidity or enforcement of the PATENT RIGHTS; or (iii) any stipulated interpretation of the PATENT RIGHTS, no such settlement, consent judgement, or voluntary final disposition may be entered into without the written consent of DUKE.

ARTICLE 9 - NO WARRANTIES; LIMITATION ON DUKE’S LIABILITY

9.1                 DUKE makes no representations or warranties that any claim within the PATENT RIGHTS is or will be held valid, patentable, or enforceable, or that the manufacture, importation, use, offer for SALE, SALE or other distribution of any LICENSED PRODUCTS or LICENSED PROCESSES will not infringe upon any patent or other rights.

9.2                   DUKE MAKES NO REPRESENTATIONS, EXTENDS NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ASSUMES NO RESPONSIBILITIES WHATEVER WITH RESPECT TO DESIGN, DEVELOPMENT, MANUFACTURE, USE, SALE OR OTHER DISPOSITION BY LICENSEE OR SUBLICENSEES OF LICENSED PRODUCTS OR LICENSED PROCESSES. LICENSEE AND SUBLICENSEES ASSUME THE ENTIRE RISK AS TO PERFORMANCE OF LICENSED PRODUCTS AND LICENSED PROCESSES.

9.3                 In no event shall DUKE be responsible or liable for any direct, indirect, special, incidental, or consequential damages or lost profits or other economic loss or damage with respect to LICENSED PRODUCTS, LICENSED PROCESSES, or the PATENT RIGHTS to LICENSEE, SUBLICENSEES, or any other individual or entity regardless of legal or equitable theory.

9.4                 LICENSEE shall not make any statements, representations or warranties whatsoever to any person or entity, or accept any liabilities or responsibilities whatsoever from any person or entity that are inconsistent with any disclaimer or limitation included in this Article 9.

ARTICLE 10 - INDEMNITY; INSURANCE

10.1              LICENSEE shall defend, indemnify and hold harmless and shall require SUBLICENSEES to defend, indemnify and hold harmless DUKE for and against any and all claims, demands, damages, losses, and expenses of any nature (including attorneys’ fees and other litigation expenses) (hereinafter “Claim”), including, but not limited to, death, personal injury, illness, property damage, economic loss or products liability, or errors and omissions, arising from or in connection with, any of the following: (1) Any manufacture, use, SALE or other disposition by LICENSEE, SUBLICENSEES or transferees of LICENSED PRODUCTS or LICENSED PROCESSES; (2) The use by any third party of LICENSED PRODUCTS made, used, sold or otherwise distributed by LICENSEE or SUBLICENSEES; (3) The use or practice by LICENSEE or SUBLICENSEES of any invention or computer software related to the PATENT RIGHTS; and (4) to the extent they are brought as a result of LICENSEE’s or SUBLICENSEE’s activities hereunder or with respect to the PATENT RIGHTS, any Claim of infringement and/or claim of invalidity of any claim(s) of the PATENT RIGHTS.

10.2              DUKE is entitled to participate at its option and expense through counsel of its own selection, and may join in any legal actions related to any such claims, demands, damages, losses and expenses under Paragraph 10.1 above. LICENSEE shall not settle any such legal action with an admission of wrongdoing or non-indemnified liability of DUKE without DUKE’s written approval (which shall not be unreasonably withheld). DUKE may, at its sole discretion, reasonably cooperate with LICENSEE as requested in connection with the foregoing; provided, however, that DUKE will reasonably cooperate with LICENSEE to the extent DUKE’s participation in any such legal action is required for such action to proceed.

10.3              Prior to any distribution or commercial use of any LICENSED PRODUCT or use of any LICENSED PROCESS by LICENSEE, LICENSEE shall purchase and maintain in effect commercial general liability insurance, product liability insurance, and errors and omissions insurance which shall protect LICENSEE and DUKE with respect to the events covered by Paragraph 10.1 and LICENSEE shall require the same of any SUBLICENSEE. Each such insurance policy must provide reasonable coverage for all claims with respect to any LICENSED PROCESS used and any LICENSED PRODUCTS manufactured, used, sold, licensed or otherwise distributed by LICENSEE, or in the case of a SUBLICENSEE’s policy, by said SUBLICENSEE, and must specify DUKE as an additional insured. LICENSEE shall furnish proof of such insurance to DUKE, upon request.

ARTICLE 11 - TERM AND TERMINATION

11.1             This Agreement shall immediately terminate if the LICENSEE enters liquidation, has a receiver or administrator appointed over any assets related to this Agreement, makes any voluntary arrangement with any of its creditors, or ceases to carry on business, or files for bankruptcy or if an involuntary petition is filed against LICENSEE and is not dismissed within [***] days, or any similar event under the law of any foreign jurisdiction. Except as set forth in Paragraph 15.8, this Agreement cannot be assumed or assigned by LICENSEE, any trustee acting on behalf of the assets of LICENSEE, or otherwise, without DUKE’s prior written consent, which may not be unreasonably withheld.

11.2             LICENSEE shall immediately give written notice to DUKE if LICENSEE (i) fails to meet the MILESTONES in Paragraph 5.2; or ii) shall decide to cease to pursue commercial development of the PATENT RIGHTS for a period of time lasting [***] months or more as contemplated herein in any country in the TERRITORY. If, in each case, LICENSEE fails to cure any such failure or cessation within [***] days of its notice to DUKE, or as otherwise set out in reports due hereunder, then the license grants to LICENSEE set forth in Article 2 shall, in the case of item (i) in the preceding sentence, automatically be limited to the sale, offer for sale, distribution and marketing of LICENSED PRODUCTS and LICENSED PROCESSES for QUALIFYING TRANSFERS only, and the development and manufacture of LICENSED PRODUCTS and LICENSED PROCESSES and use of PATENT RIGHTS and TECHNICAL INFORMATION only for such purposes, and in the case of (ii), with respect to that country in the TERRITORY shall automatically terminate without obligation on the part of DUKE to refund any of the fees or royalties which may have been paid by LICENSEE prior to such termination. LICENSEE must provide notice to DUKE immediately in writing if LICENSEE decides to cease to pursue commercial development of the PATENT RIGHTS for a period of time lasting [***] months or more in any specific country in the TERRITORY as contemplated herein.

11.3             If LICENSEE fails to make any payment due to DUKE by the applicable due date therefor, such failure shall be deemed to be a material breach of this Agreement, subject to the notice requirements and cure periods set forth in Paragraph 4.4 or 11.4. Any termination of this Agreement stemming from such breach shall not foreclose DUKE from collection of any amounts remaining unpaid or seeking other legal relief.

11.4             Upon any material breach or default of this Agreement by LICENSEE (other than as specifically provided herein, the terms of which shall take precedence over the handling of any other material breach or default under this Paragraph), DUKE has the right to terminate this Agreement effective on sixty (or, in the case of non-payment, thirty) days’ written notice to LICENSEE. Such termination shall become automatically effective upon expiration of the applicable period unless LICENSEE cures the material breach or default before the period expires.

11.5              LICENSEE has the right to terminate this Agreement at any time on [***] days’ written notice to DUKE. Upon termination pursuant to this Paragraph 11.4, LICENSEE shall:

(a)      pays all amounts due DUKE through the effective date of the termination;

(b)    submits a final report of the type described in Paragraph 4.2;

(c)      returns any patent documentation (including that exchanged under Article 7) and any other Confidential Information or physical materials provided to LICENSEE by DUKE in connection with this Agreement, or, with prior approval by DUKE, destroys such materials, and certifies in writing that such materials have all been returned or destroyed;

(d)      suspends its manufacture, use and SALE of the LICENSED PROCESS(ES) and LICENSED PRODUCT(S);

11.6              Upon any termination of this Agreement, and except as provided herein to the contrary, all rights and obligations of the parties hereunder shall cease, except any previously accrued rights and obligations and further as follows: (a) obligations to pay royalties and other sums, up to the termination date, or to transfer equity or other consideration, accruing hereunder up to the day of such termination, whether or not this Agreement provides for a number of days before which actual payment is due and such date is after the day of termination and whether or not a required funding event or other stock transfer trigger has yet been met; (b) DUKE’s rights to inspect books and records as described in Article 4, and LICENSEE’s obligations to keep such records for the required time; (c) any cause of action or claim of LICENSEE or DUKE accrued or to accrue because of any breach or default by the other Party hereunder; (d) the provisions of Articles 1, 9, 10, and 15; and (e) all other terms, provisions, representations, rights and obligations contained in this Agreement that by their sense and context are intended to survive until performance thereof by either or both parties.

Termination by either Party hereunder shall not alter or affect any other rights or relief that either Party may be entitled to under law.

11.7              If LICENSEE, or any Affiliate thereof, asserts the invalidity or unenforceability of any claim included in the PATENT RIGHTS, including by way of litigation or administrative proceedings, either directly or through any other party, then DUKE shall have the right to immediately terminate this Agreement upon written notice to LICENSEE.

ARTICLE 12 - NOTICES

Any notice, request, or report required or permitted to be given or made under this Agreement by either Party is effective when mailed if sent by recognized overnight carrier, certified or registered mail, or electronic mail followed by confirmation by U.S. mail, to the address set forth below or such other address as such Party specifies by written notice given in conformity herewith. Any notice, request, or report not so given is not effective until actually received by the other Party.

For delivery via nationally/internationally recognized courier

DUKE UNIVERSITY

Office of Licensing & Ventures 2812 Erwin Road, Suite 406

Durham, NC 27705

Attn: Agreement Manager/File No. [***]

For delivery via electronic mail

agreements-olv@duke.edu

Subject: File No. [***]

ARTICLE 13 - CONFIDENTIALITY

13.1              DUKE and LICENSEE will treat any Confidential Information disclosed to it by the other Party with reasonable care and will not disclose such information to any other person, firm or corporation, except AFFILIATES bound by the obligations of confidentiality and restricted use set forth in this Article 13. The receiving Party may not use the disclosing Party’s Confidential Information other than for the benefit of the Parties hereto and for the performance of this Agreement. These obligations of non-disclosure and restricted use remain effect for each subject disclosure of Confidential Information for [***] years from the date of disclosure. However, neither Party is obligated, with respect to Confidential Information disclosed to it, or any part thereof, which:

(a)  is already known to the receiving Party at the time of the disclosure;

(b)  becomes publicly known without the wrongful act or breach of this Agreement by the receiving Party;

(c)  is rightfully received by the receiving Party from a third party on a non- confidential basis;

(d)  is subsequently and independently developed by employees of the receiving Party who had no knowledge of the information, as verified by written records;

(e) is approved for release by prior written authorization of the disclosing Party; or

(f)  is disclosed pursuant to the requirements of applicable law or pursuant to any judicial or government requirement or order, provided that the Party so disclosing takes reasonable steps to provide the other Party sufficient prior notice in order to contest such request, requirement or order and provided that such disclosed Confidential Information otherwise remains subject to the obligations of confidentiality set forth in this Article 13.

Notwithstanding the terms of this Article 13, either Party shall be permitted to disclose the existence and terms of this Agreement to the extent required, in the reasonable opinion of such Party’s legal counsel, to comply with applicable laws, including the rules and regulations promulgated by the SEC or any other Governmental Authority or securities exchange. Notwithstanding the foregoing, before disclosing this Agreement or any of the terms hereof pursuant to this Section 13.1, the Parties will coordinate in advance with each other and in a reasonable manner in order to allow the Party seeking disclosure to make such disclosure within the timelines required by applicable laws (including the rules and regulations promulgated by the SEC or any other Governmental Authority or securities exchange) or as reasonably requested by the Party seeking disclosure, including in connection with the redaction of certain provisions of this Agreement with respect to any filings with the SEC, Nasdaq, or any other stock exchange on which securities issued by a Party or a Party’s Affiliate are traded, and each Party will use commercially reasonable efforts to seek confidential treatment for such terms as may be reasonably requested by the other Party; provided, that each Party will ultimately retain control over what information that Party discloses to the SEC and their relevant exchange

13.2              DUKE and LICENSEE agree that any information to be treated as Confidential Information under this Article 13 must be disclosed in writing or in another tangible medium and must be clearly marked “CONFIDENTIAL.” Confidential Information disclosed orally must be summarized and reduced to writing and communicated to the other Party within [***] days of such disclosure.

13.3              LICENSEE may use and disclose any Confidential Information of DUKE related to the PATENT RIGHTS, or the terms of this Agreement, to investors, prospective investors, banking or lending institutions, acquirors, acquisition or merger targets, employees, consultants, contractors, agents, collaborators, prospective collaborators and other third parties in the chain of manufacturing and distribution, but if and only if LICENSEE obtains from each such recipient a written confidentiality agreement, the provisions of which are at least as protective of DUKE’s Confidential Information as those provided in this Article 13. However, nothing in this Article 13 shall require LICENSEE to obtain a written confidentiality agreement from actual or prospective investors in connection with disclosures made by LICENSEE in response to standard diligence requests or representations or warranties contained in financing or investment documents.

13.4              “Confidential Information” shall mean, with respect to a Party hereto, all information regarding such Party’s technology, products, business, finances, or objectives, that is disclosed to the other Party and shall be marked “CONFIDENTIAL”. Additionally, all information relating to filing, prosecution, maintenance, defense, infringement, and the like regarding the PATENT RIGHTS (no matter how disclosed) is the Confidential Information of DUKE and subject to the provisions of this Article 13. DUKE acknowledges that other than information relating to PATENT RIGHTS, DUKE has not disclosed any Confidential Information to LICENSEE.

ARTICLE 14 – DISPUTE RESOLUTION

14.1              In the event of any dispute, claim, question, or disagreement arising from or relating to this agreement or the breach thereof, the Parties hereto shall use their best efforts to settle the dispute, claim, question, or disagreement. To this effect, they shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties. If they do not reach such solution within a period of [***] days of the first written notice of dispute by either Party to the other, then, upon written request for mediation by either Party to the other, the parties agree to try in good faith to settle the dispute by mediation administered by the American Arbitration Association under its Commercial Mediation Procedures and to be scheduled within [***] days of the written notice requesting mediation. If the parties fail to reach agreement by mediation, then all disputes, claims, questions, or differences shall be finally settled by arbitration administered by the American Arbitration Association in accordance with the provisions of its Commercial Arbitration Rules. The arbitration panel shall consist of three members, selected as follows: one member to be selected by each Party, and those two members are to select a third member who will chair the panel. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof and shall be binding on the parties. The negotiation, mediation, and arbitration described above shall take place at a mutually agreed upon location in Durham, North Carolina.

14.2              Either Party may seek to enforce any written agreement reached by the Parties during mediation, or to confirm and enforce any final award entered in arbitration, in any court of competent jurisdiction, provided that any Party moving to enforce, confirm or vacate any such agreement or award, as the case may be, will file such motion under seal unless prohibited under applicable court rules. Notwithstanding the agreement to such procedures, either Party may seek equitable relief to enforce its rights in any court of competent jurisdiction.

ARTICLE 15 - MISCELLANEOUS PROVISIONS

15.1              This Agreement shall be governed by and construed under the laws of the state of North Carolina without regard for principles of choice of law, except that questions affecting the construction and effect of any patent shall be determined by the law of the country in which the patent was granted.

15.2              DUKE and LICENSEE agree that this Agreement sets forth their entire understanding concerning the subject matter of this Agreement. The parties may amend this Agreement from time to time, such as to add new rights, but no modification will be effective unless both DUKE and LICENSEE agree to it in writing.

15.3              If a court of competent jurisdiction finds any term of this Agreement invalid, illegal or unenforceable, that term will be curtailed, limited or deleted, but only to the extent necessary to remove the invalidity, illegality or unenforceability, and without in any way affecting or impairing the remaining terms.

15.4              No waiver by either Party of any breach of this Agreement, no matter how long continuing or how often repeated, is a waiver of any subsequent breach thereof, nor is any delay or omission on the part of either Party to exercise or insist on any right, power, or privilege hereunder a waiver of such right, power or privilege. In no event shall any waiver be deemed valid unless it is in writing and signed by an authorized representative of each Party.

15.5              LICENSEE shall, and shall require its AFFILIATES and SUBLICENSEES to refrain from using the name, mark, logo, image or any adaption thereof of DUKE or its employees in publicity or advertising without the prior written approval of DUKE, except as required by law, provided that reports in scientific literature and presentations of joint research and development work are not publicity. Notwithstanding this provision, without prior written approval of DUKE, LICENSEE and SUBLICENSEES may state publicly that LICENSED PRODUCTS and PROCESSES were developed by LICENSEE based upon an invention(s) developed at Duke University and/or that the PATENT RIGHTS were licensed from Duke University. However, in no event, shall LICENSEE or SUBLICENSEES represent, either directly or indirectly, that any product or service is a product or service of DUKE.

15.6              LICENSEE agrees to comply with all applicable laws and regulations, including but not limited to all United States laws and regulations controlling the export of commodities and technical data. LICENSEE shall be solely responsible for any violation of such laws and regulations involving LICENSEE or its SUBLICENSEES, and to defend, indemnify and hold harmless DUKE if any legal action of any nature results from any such violation.

15.7              It is expressly understood and agreed that DUKE and LICENSEE are independent contractors. Neither Party is an agent of the other in connection with the exercise of any rights hereunder, and neither has any right or authority to assume or create any obligation or responsibility on behalf of the other. Nothing in this Agreement shall be deemed to create or constitute a partnership or joint venture between DUKE and LICENSEE.

15.8              LICENSEE may not assign this Agreement without the prior written consent of DUKE and shall not pledge any of the license rights granted in this Agreement as security for any creditor. Any attempted pledge of any of the rights under this Agreement or assignment of this Agreement not permitted under this Paragraph 15.8 will be void from the beginning. No assignment by LICENSEE will be effective until the intended assignee agrees in writing to accept all of the terms and conditions of this Agreement. Notwithstanding the foregoing, LICENSEE may, without DUKE’s consent, assign its rights and obligations under this Agreement to a purchaser or assignee (by operation of law, contract, or otherwise) of all or substantially all of LICENSEE’s assets or business (or that portion thereof relating to the subject matter of this Agreement), so long as (a) LICENSEE is not in material breach of this Agreement and (b) such assignee provides a statement in writing to DUKE that it agrees to accept all the terms and conditions of this Agreement (including, to the extent LICENSEE does not remain liable therefor to DUKE, obligations existing as of the time of such assignment) in the place of LICENSEE. The transfer of this Agreement by LICENSEE to an AFFILIATE shall not be considered to be an assignment subject to this Paragraph 15.8.

15.9              If the registration, recordation, or reporting to a national or supranational agency of this Agreement, its terms, or assignment thereof is or becomes required or advisable (e.g., as a prerequisite to enforceability of the Agreement in such nation), LICENSEE shall, at its expense, promptly undertake such action. LICENSEE shall provide prompt notice thereof to DUKE along with copies of relevant documentation.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement in duplicate originals by their duly authorized officers or representatives.

APPENDIX A – TARGET MARKETS

[***]

APPENDIX B - EQUITY TRANSFER AGREEMENT

THIS EQUITY TRANSFER AGREEMENT (the “Agreement”) is made as of April 16, 2021 between 374Water, Inc., a Delaware corporation, having offices at 3710 Shannon Rd #51877 Durham, NC 27717 (the “LICENSEE”), and Duke University, a nonprofit educational and research institution organized under the laws of North Carolina (“DUKE”).

RECITALS

Pursuant to that certain License Agreement (DUKE File No(s): 5116), dated April 14, 2021 (the “License”), between LICENSEE and DUKE, DUKE licensed certain rights to LICENSEE. A copy of the License is attached to this Agreement as Schedule A.

Pursuant to Paragraph 3.7.1 of the License and in consideration thereof, the LICENSEE agreed to transfer to DUKE a specified portion of the equity interest in LICENSEE at the times and on the basis described in such Paragraph.

The obligation of LICENSEE to issue such equity to DUKE has matured.

NOW, THEREFORE, in consideration of the License and this Agreement, LICENSEE and DUKE agree as follows.

1.                    Issuance of Equity.

(a) In partial consideration of the License and in satisfaction of the requirements of Paragraph 3.7 thereof, LICENSEE shall, upon execution of this Agreement, issue DUKE a duly endorsed certificate for [***] shares or units, as applicable, of common stock of LICENSEE (the “DUKE Equity”). The DUKE Equity is subject to the designations, powers, preferences and rights, and qualifications, limitations and restrictions set forth in LICENSEE’s charter or other applicable instrument relating thereto.

2.                    LICENSEE Representations and Warranties. LICENSEE represents and warrants to DUKE that:

(a)     LICENSEE is a legal entity validly existing in good standing in its state of incorporation or organization and has the power and authority to enter into this Agreement and to issue the DUKE Equity as contemplated hereby;

(b)    this Agreement has been duly authorized, executed, and delivered by LICENSEE and is a valid and binding obligation of LICENSEE, enforceable in accordance with its terms, except as limited by laws relating to creditors’ rights and general principals of equity;

(c)    issuance of the DUKE Equity satisfies all of the requirements of Paragraph 3.7 of the License, including with respect to the amount or percentage of shares or units of LICENSEE equity that LICENSEE is obligated to transfer to DUKE under Paragraph 3.7 of the License;

(d)    upon issuance pursuant to this Agreement, the DUKE Equity will be free of any lien, charge or other encumbrance, and will be validly issued, fully-paid and non-assessable;

(e)     issuance of the DUKE Equity does not and will not violate (i) the charter, bylaws or operating agreement, as applicable, of LICENSEE (ii) any rights of preemption, first offer, first refusal, co-sale, registration, dividends or similar rights (collectively, “Equity Rights”), (iii) any agreement by which LICENSEE, its owners, property or assets are bound, or (iv) any Federal or applicable state securities law, rule or regulation;

(f)     the DUKE Equity constitutes [***]% of the Total Ownership Interests of LICENSEE as of the Effective Date. For the purposes of this provision, “Total Ownership Interests” shall have the same meaning as in Paragraph 3.7 of the License.

3.                    DUKE’s Representations and Warranties. DUKE represents and warrants to LICENSEE that (a) DUKE is a nonprofit educational and research institution organized under the laws of North Carolina; (b) this Agreement is a valid and binding obligation of DUKE, enforceable in accordance with its terms, except as limited by laws relating to creditors’ rights and general principals of equity; (c) DUKE has full power and authority to execute and deliver this Agreement; and (d) DUKE is an “accredited investor”, as that term is defined in Rule 501(a) of Regulation D, as promulgated under the Securities Act of 1933, as amended (the “Securities Act”).

4.                    Additional Rights. LICENSEE agrees DUKE shall be entitled as of the date hereof to all the contractual rights granted by LICENSEE to the holders of the same type and class of equity security issued to DUKE pursuant to Paragraph 1 hereof, including, by way of example and not limitation, Equity Rights, any cash flow priority or preference and any reporting obligations; subject, however, to any threshold limitations applied on an equal basis to all holders of such equity security. Notwithstanding any such threshold limitation, for so long as DUKE holds not less than [***]% of the issued and outstanding equity interest of LICENSEE, LICENSEE shall provide to DUKE the highest level of written financial and other information that LICENSEE provides to holders of equity interest in LICENSEE. DUKE agrees to promptly execute and deliver to LICENSEE the documents relating to such contractual rights and to be bound by the provisions thereof; provided, that DUKE shall have no obligation to become Party to any voting agreement or voting trust. To the extent DUKE fails to timely exercise any of such rights, LICENSEE shall be entitled to interpret such failure as a waiver thereof.

5.                    Limited Transferability. DUKE acknowledges that (a) the DUKE Equity will not be registered under the Securities Act, (b) DUKE is taking the DUKE Equity for its own account and not with a view towards resale or redistribution thereof, and (c) the DUKE Equity may not be sold or transferred unless (i) registered under the Securities Act and registered or qualified under applicable state securities laws, or (ii) pursuant to an applicable exemption from such registration or qualification requirements and LICENSEE receives an opinion of counsel reasonably acceptable to LICENSEE to the effect that no such registration or qualification is required. Accordingly, until the DUKE Equity has been registered under the Securities Act or LICENSEE receives an opinion of counsel to DUKE to the foregoing effect or to the effect that the DUKE Equity can be freely transferred under Rule 144 promulgated under the Securities Act, the certificate or other instrument evidencing the DUKE Equity shall bear the following legend:

THE SECURITY REPRESENTED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED PURSUANT TO THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAW. NEITHER THIS SECURITY NOR ANY PORTION HEREOF OR INTEREST HEREIN MAY BE SOLD, ASSIGNED, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF UNLESS THE SAME IS REGISTERED UNDER SUCH ACT AND ANY APPLICABLE STATE SECURITIES LAW, OR UNLESS AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE AND THE ISSUER SHALL HAVE RECEIVED, AT THE EXPENSE OF THE HOLDER HEREOF, EVIDENCE OF SUCH EXEMPTION REASONABLY SATISFACTORY TO THE ISSUER (WHICH MAY INCLUDE, AMONG OTHER THINGS, AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER).

6.             General.

(a)     Assignment. This Agreement is not assignable by LICENSEE.

(b)    Binding Effect. All of the covenants and provisions of this Agreement shall bind and inure to the benefit of successors and permitted assigns and transferees of LICENSEE and DUKE.

(c)     Notices. Any notice, request, claim or other communication hereunder must be in writing and will be deemed to have been duly given if delivered by hand or if sent by certified mail, postage and certification prepaid, to LICENSEE and DUKE at the addresses for each set forth in the introductory paragraph of this Agreement. Either Party may change such address by giving notice to the other in the manner required by this subsection.

(d)    Entire Agreement; Amendments. This Agreement and the License constitute the entire agreement between LICENSEE and DUKE with respect to the subject matter of this Agreement. LICENSEE and DUKE may only amend this Agreement by a written instrument executed by them both.

(e)     Governing Law. This Agreement will be construed and governed by the laws of the state of incorporation of LICENSEE, without giving effect to principals of conflicts of laws.

(f)     Counterparts. This Agreement may be executed in any number of counterparts and by facsimile, each of which will be an original, but all of which together shall constitute one and the same instrument.

LICENSEE and DUKE have executed this EQUITY TRANSFER Agreement as of the date first written above.

26

Exhibit 10.5

Certain identified information in this document has been excluded because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed, and has been marked with “[***]” to indicate where omissions have been made.

EQUITY TRANSFER AGREEMENT

THIS EQUITY TRANSFER AGREEMENT (the “Agreement”) is made as of April 16, 2021 between 374Water, Inc., a Delaware corporation, having offices at 3710 Shannon Rd #51877 Durham, NC 27717 (the “LICENSEE”), and Duke University, a nonprofit educational and research institution organized under the laws of North Carolina (“DUKE”).

RECITALS

Pursuant to that certain License Agreement (DUKE File No(s): [***], dated April 16, 2021 (the “License”), between LICENSEE and DUKE, DUKE licensed certain rights to LICENSEE. A copy of the License is attached to this Agreement as Schedule A.

Pursuant to Paragraph 3.7 of the License and in consideration thereof, the LICENSEE agreed to transfer to DUKE a specified portion of the equity interest in LICENSEE at the times and on the basis described in such Paragraph.

The obligation of LICENSEE to issue such equity to DUKE has matured.

NOW, THEREFORE, in consideration of the License and this Agreement, LICENSEE and DUKE agree as follows.

1.                    Issuance of Equity.

(a) In partial consideration of the License and in satisfaction of the requirements of Paragraph 3.7 thereof, LICENSEE shall, upon execution of this Agreement, issue DUKE a duly endorsed certificate for [***] shares or units, as applicable, of common stock of LICENSEE (the “DUKE Equity”). The DUKE Equity is subject to the designations, powers, preferences and rights, and qualifications, limitations and restrictions set forth in LICENSEE’s charter or other applicable instrument relating thereto.

2.                    LICENSEE Representations and Warranties. LICENSEE represents and warrants to DUKE that:

(a)    LICENSEE is a legal entity validly existing in good standing in its state of incorporation or organization and has the power and authority to enter into this Agreement and to issue the DUKE Equity as contemplated hereby;

(b)     this Agreement has been duly authorized, executed, and delivered by LICENSEE and is a valid and binding obligation of LICENSEE, enforceable in accordance with its terms, except as limited by laws relating to creditors’ rights and general principals of equity;

(c)     issuance of the DUKE Equity satisfies all of the requirements of Paragraph 3.7 of the License, including with respect to the amount or percentage of shares or units of LICENSEE equity that LICENSEE is obligated to transfer to DUKE under Paragraph 3.7 of the License;

(d)     upon issuance pursuant to this Agreement, the DUKE Equity will be free of any lien, charge or other encumbrance, and will be validly issued, fully-paid and non-assessable;

(e)     issuance of the DUKE Equity does not and will not violate (i) the charter, bylaws or operating agreement, as applicable, of LICENSEE (ii) any rights of preemption, first offer, first refusal, co-sale, registration, dividends or similar rights (collectively, “Equity Rights”), (iii) any agreement by which LICENSEE, its owners, property or assets are bound, or (iv) any Federal or applicable state securities law, rule or regulation;

(f)     the DUKE Equity constitutes [***]% of the Total Ownership Interests of LICENSEE as of the Effective Date. For the purposes of this provision, “Total Ownership Interests” shall have the same meaning as in Paragraph 3.7 of the License.

3.                    DUKE’s Representations and Warranties. DUKE represents and warrants to LICENSEE that (a) DUKE is a nonprofit educational and research institution organized under the laws of North Carolina; (b) this Agreement is a valid and binding obligation of DUKE, enforceable in accordance with its terms, except as limited by laws relating to creditors’ rights and general principals of equity; (c) DUKE has full power and authority to execute and deliver this Agreement; and (d) DUKE is an “accredited investor”, as that term is defined in Rule 501(a) of Regulation D, as promulgated under the Securities Act of 1933, as amended (the “Securities Act”).

4.                    Additional Rights. LICENSEE agrees DUKE shall be entitled as of the date hereof to all the contractual rights granted by LICENSEE to the holders of the same type and class of equity security issued to DUKE pursuant to Paragraph 1 hereof, including, by way of example and not limitation, Equity Rights, any cash flow priority or preference and any reporting obligations; subject, however, to any threshold limitations applied on an equal basis to all holders of such equity security. Notwithstanding any such threshold limitation, for so long as DUKE holds not less than [***]% of the issued and outstanding equity interest of LICENSEE, LICENSEE shall provide to DUKE the highest level of written financial and other information that LICENSEE provides to holders of equity interest in LICENSEE. DUKE agrees to promptly execute and deliver to LICENSEE the documents relating to such contractual rights and to be bound by the provisions thereof; provided, that DUKE shall have no obligation to become Party to any voting agreement or voting trust. To the extent DUKE fails to timely exercise any of such rights, LICENSEE shall be entitled to interpret such failure as a waiver thereof.

5.                    Limited Transferability. DUKE acknowledges that (a) the DUKE Equity will not be registered under the Securities Act, (b) DUKE is taking the DUKE Equity for its own account and not with a view towards resale or redistribution thereof, and (c) the DUKE Equity may not be sold or transferred unless (i) registered under the Securities Act and registered or qualified under applicable state securities laws, or (ii) pursuant to an applicable exemption from such registration or qualification requirements and LICENSEE receives an opinion of counsel reasonably acceptable to LICENSEE to the effect that no such registration or qualification is required. Accordingly, until the DUKE Equity has been registered under the Securities Act or LICENSEE receives an opinion of counsel to DUKE to the foregoing effect or to the effect that the DUKE Equity can be freely transferred under Rule 144 promulgated under the Securities Act, the certificate or other instrument evidencing the DUKE Equity shall bear the following legend:

THE SECURITY REPRESENTED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED PURSUANT TO THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAW. NEITHER THIS SECURITY NOR ANY PORTION HEREOF OR INTEREST HEREIN MAY BE SOLD, ASSIGNED, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF UNLESS THE SAME IS REGISTERED UNDER SUCH ACT AND ANY APPLICABLE STATE SECURITIES LAW, OR UNLESS AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE AND THE ISSUER SHALL HAVE RECEIVED, AT THE EXPENSE OF THE HOLDER HEREOF, EVIDENCE OF SUCH EXEMPTION REASONABLY SATISFACTORY TO THE ISSUER (WHICH MAY INCLUDE, AMONG OTHER THINGS, AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER).

6.             General.

(a)     Assignment. This Agreement is not assignable by LICENSEE.

(b)    Binding Effect. All of the covenants and provisions of this Agreement shall bind and inure to the benefit of successors and permitted assigns and transferees of LICENSEE and DUKE.

(c)     Notices. Any notice, request, claim or other communication hereunder must be in writing and will be deemed to have been duly given if delivered by hand or if sent by certified mail, postage and certification prepaid, to LICENSEE and DUKE at the addresses for each set forth in the introductory paragraph of this Agreement. Either Party may change such address by giving notice to the other in the manner required by this subsection.

(d)    Entire Agreement; Amendments. This Agreement and the License constitute the entire agreement between LICENSEE and DUKE with respect to the subject matter of this Agreement. LICENSEE and DUKE may only amend this Agreement by a written instrument executed by them both.

(e)     Governing Law. This Agreement will be construed and governed by the laws of the state of incorporation of LICENSEE, without giving effect to principals of conflicts of laws.

(f)       Counterparts. This Agreement may be executed in any number of counterparts and by facsimile, each of which will be an original, but all of which together shall constitute one and the same instrument.

[Next page is the signature page]

LICENSEE and DUKE have executed this EQUITY TRANSFER Agreement as of the date first written above.

Exhibit 10.6

MBH and 374Water — Binding Memorandum of Understanding

This MEMORANDUM OF UNDERSTANDING (MOU) is dated as of March 30, 2021, between MB Holding Inc., an Indiana corporation (“MBH”) and 374Water Inc., a Delaware corporation (“374Water”).

MBH and 374Water — Binding Memorandum of Understanding

MBH and 374Water — Binding Memorandum of Understanding

SIGNATURES

3