Exhibit 10.8


 


LICENSE AGREEMENT (“Agreement”), effective
as of February 25, 2008 (the “Effective Date”)


 


BETWEEN


 


Advanced
Cell Technology, Inc., a Delaware corporation with offices located at 381
Plantation Street, Worcester, Massachusetts 01605, the United States of
America, lawfully represented by its director William M. Caldwell, IV (“ACT” or “Licensor”)


 


and


 


Pharming
Technologies B.V., a private limited
liability company incorporated and existing under the laws of
the Netherlands, having its registered office at Darwinweg 24, 2333 CR Leiden, the Netherlands, lawfully represented by its directors Dr. R. Strijker and Dr. B. M.
Giannetti  (“Pharming” or  “Licensee”)


 


(Pharming and ACT
sometimes hereinafter referred to individually as a “Party” and collectively as
the “Parties”).


 


WHEREAS:


 


1.                                       Pharming and Infigen, Inc. (“Infigen”)
previously entered into a License and Settlement Agreement that was executed by
Pharming and Infigen on July 9, 2004 and July 13, 2004, respectively”),
a copy of which is attached hereto as Exhibit A (the “Original
Agreement”).


 


2.                                       Under the Original Agreement, Pharming
obtained certain exclusive and nonexclusive rights to patents owned by Infigen.


 


3.                                       Infigen ceased conducting its business, and
certain of the patents previously owned by Infigen were acquired by ACT
pursuant to a Patent Assignment Agreement (the “Assignment Agreement”) dated February 2,
2007 between ACT and Infigen.


 


4.                                       Under the Assignment Agreement, ACT agreed to
honor the Original Agreement with respect to the Infigen Patents (as defined
herein) and subject to the terms and conditions of the Assignment Agreement;
and


 


5.                                       Pharming and ACT have agreed that the
Original Agreement should be restated to clarify the Parties’ respective rights
and to reflect certain agreements reached by Pharming and ACT concerning the
patent rights previously licensed to Pharming under the Original Agreement.


 

















 


DECLARE THAT THEY HAVE ENTERED INTO AGREEMENT AS FOLLOWS:


 


ARTICLE
1 - DEFINITIONS


 


For
the purposes of this Agreement, the following words and phrases shall have the
following meanings:


 


1.1                               “Infigen Patents” means the patents
and patent applications listed in Exhibit B attached hereto.  The Parties acknowledge and agree that Exhibit B
shall be updated by ACT on a yearly basis to reflect the actual status of the
Infigen Patents.


 


1.2                               “Pharming
Field” means all uses and applications in or related to non-human animals.


 


1.3                               “ACT Field” means all uses and
applications in or related to humans.


 


1.4                               “Territory” means the world.


 


1.5                               “Improvements”  means all improvements or modifications or
adaptations to or, any new application of Infigen Patents or any parts thereof
which may be made or acquired by either Party during this Agreement.


 


For
purposes of this Agreement, except as otherwise expressly provided herein or
unless the context otherwise requires:  (a) the
use herein of the plural shall include the single and vice versa
and the use of the masculine shall include the feminine; (b) unless
otherwise set forth herein, the use of the term “including” or “includes” means
“including [includes] but [is] not limited to”; and (c) the words “herein,”
“hereof,” “hereunder” and other words of similar import refer to this Agreement
as a whole and not to any particular provision. 
Additional terms may be defined throughout this Agreement.


 


ARTICLE 2 – TERMINATION OF THE ORIGINAL AGREEMENT


 


The Original Agreement is hereby terminated by mutual agreement of the
Parties and all of its provisions are hereby superseded in their entirety and
replaced by the provisions of this Agreement, including its Exhibits, provided,
however, that ACT and Pharming acknowledge, understand and agree that the
Original Agreement shall remain in force as between Pharming and Infigen with
respect to all rights, licenses (including the non-exclusive license rights of
Pharming under the Original Agreement not covered by Exhibit B and its
provisions in relation to these non-exclusive license rights) and obligations
relating to any Infigen intellectual property, including without limitation,
any patents and patent applications other than the Infigen Patents (licensed
hereunder) included in the Original Agreement. 
Nothing in this Agreement is intended to terminate or adversely affect
any rights obtained by Pharming from Infigen under the Original Agreement
except to the extent the Original Agreement is terminated by this Agreement.


 


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ARTICLE 3 - 
LICENSE GRANTS AND RETAINED RIGHTS


 


3.1                               License Grant.  ACT
hereby grants to Pharming an exclusive (even excluding ACT),
sublicenseable, world-wide, royalty-free, non-terminable (by ACT) and
irrevocable license under the Infigen Patents, including Improvements, and
including any foreign counterpart applications, together with any and all
patents that have issued or in the case of applications heretofore filed, in
the future issue therefrom or whose priority date is based thereon; and all
related divisionals, continuations, national stage applications or patents
filed under the Patent Cooperation Treaty of 1978, reissues or renewals, of the
foregoing, in the Pharming Field in the Territory, to make, have made, use,
have used, sell, have sold, offer for sale, and import all products covered by
this Agreement and to use and have used the technology covered by the Infigen
Patents.


 


3.2                               Sublicenses.  Pharming shall have the right
to grant further sublicenses to or under the Infigen Patents in the Pharming
Field.


 


3.3                               Retained Rights. 
Pharming acknowledges and agrees that ACT shall retain all rights to
exploit the Infigen Patents in the ACT Field.


 


3.4                               Term of License.  The
license granted under Section 3.1 shall endure until the expiry of the
last of the Infigen Patents.


 


ARTICLE
4 - CONSIDERATION


 


4.1                                     License Fee.  Upon
execution of this Agreement, Pharming shall pay to ACT a one-time payment of
USD $260,000.00 (TWO HUNDRED SIXTY THOUSAND DOLLARS) (the “License Fee”).  The License Fee shall be via wire transfer to
ACT in accordance with the wire instructions set forth in Exhibit C
attached hereto.


 


4.2                               No Additional
Compensation.  ACT is not entitled to any
renumeration, royalty or other compensation other than as provided in Section 4.1.


 


ARTICLE 5 – PAYMENTS AND RECORDS


 


[Intentionally Omitted]


 


ARTICLE 6 - REPRESENTATIONS AND WARRANTIES


 


6.1                               ACT represents and
warrants that from the effective date of the Assignment Agreement it is the
owner of the Infigen Patents and all registration and renewal 


 


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fees with regard to the Infigen Patents have been
paid and will be paid during the duration of this Agreement.


 


6.2                               ACT represents and warrants that from the effective date of the Assignment
Agreement no other patents have been transferred by Infigen to ACT than
the patents listed in Exhibit B of this Agreement.


 


6.3                               ACT represents and
warrants that except as set forth in the disclosure schedule set forth in Exhibit D
attached hereto there exist no any other licenses to use the Infigen
Patents.  ACT further represents and
warrants that it will not grant any further licenses to use Infigen Patents to
any third party


 


6.4                               ACT represents and
warrants that the execution,
delivery and performance of this Agreement by ACT (i) are within its
corporate powers, and (ii) have been duly authorized by all necessary
corporate action on ACT’s part.


 


6.5                               ACT represents to
the best of its knowledge:


 


(a)                                that the Infigen
Patents are valid or remain valid;


 


(b)                               that the practice
of the inventions disclosed in the Infigen Patents do not violate patent or
other rights of third parties;


 


(c)                                that the Infigen
Patents are not subject to any legal proceedings, litigation or interference;


 


(d)                               that since the
acquisition of the Infigen Patents by ACT the Infigen Patents have been
properly maintained and all fees due have been paid.


 


6.6                               Pharming represents
and warrants that the execution,
delivery and performance of this Agreement by Pharming (i) are within its
corporate powers, and (ii) have been duly authorized by all necessary
corporate action on Pharming’s part.


 


6.7                               Pharming hereby represents, warrants and
covenants that it shall comply in all material respects with all local, state,
federal and international laws and regulations relating to the exploitation of
the Infigen Patents, including in connection with the development, manufacture,
use, provision, and sale of products and services covered by the Infigen
Patents.


 


ARTICLE
7:  INTELLECTUAL PROPERTY RIGHTS


 


7.1                               ACT shall take all necessary actions,
including payment of registration and renewal fees, to maintain the patents
licensed hereunder and to obtain patents from pending and future
applications.  ACT shall not abandon any
such patent or allow it to expire without Pharming’s written consent.  If ACT is unable or unwilling to maintain any
patent or 


 


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prosecute
a pending application which is the subject of this Agreement and Pharming does
not consent to any such patent or application being abandoned, ACT will
transfer the patent or patent application in question to Pharming free of
charge.


 


7.2                               The Parties agree to use their best efforts
to notify each other in writing without delay, and provide all relevant
information, of any infringement by a third party of the Infigen Patents or any
third party claim of invalidity or unenforceability of the Infigen
Patents.  Pharming shall have the sole
right, at its discretion and without obligation, to prosecute and defend such
claims in the Pharming Field, under its primary control and it sole expense,
employing counsel of its own choosing. 
ACT shall have the sole right, at its discretion and without obligation,
to prosecute and defend such claims in the ACT Field, under its sole primary
control and it sole expense, employing counsel of its own choosing.  ACT will permit any action or defense
hereunder to be brought in its name if required by law.


 


7.3                               If a Party elects not to exercise its right
to prosecute or take other appropriate action in connection with an
infringement or misappropriation, or elects not to defend any third party claim
of invalidity or unenforceability of, the Infigen Patents, including an
election to abandon any action or defense previously begun, or fails to take
any such action or defense within sixty (60) days of first receiving
notification of such infringement, misappropriation or claim of invalidity or
unenforceability, the other Party may do so at its own expense. In case ACT
shall be the abandoning Party, ACT will transfer the Infigen Patents in
question to Pharming free of charge.


 


7.4.                            In the event of any infringement or
misappropriation suit against a third party brought by either Party pursuant to
this Article, or the defense of any third-party claim of invalidity or
unenforceability, the Party so proceeding shall pay to the other Party all of
its reasonable costs and expenses (but not attorney’s fees) in connection with
such action and such other Party shall join in and reasonably cooperate with
respect to such action to the extent necessary to initiate and maintain it
(e.g., by providing relevant documents, witnesses and testimony, etc.).


 


7.5                               If either Party brings an action or defense
under this Article, any damages or other monetary awards recovered by that
Party shall be applied proportionately first to defray the unreimbursed costs
and expenses (including reasonable attorneys’ fees) incurred by both Parties in
the action or defense.  Any remaining
balance shall be the property of the Party bringing the action or defense.


 


7.6                               No settlement, consent judgment or other
voluntary final disposition of a suit being prosecuted by a Party under this Article may
be entered into without the consent of the other Party if such settlement,
consent judgment or other voluntary final disposition would alter, derogate or
diminish such other Party’s rights under this Agreement or otherwise materially
adversely affect such other Party, which consent shall not be unreasonably
withheld or delayed.


 


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7.7                               Except as set forth in this Article, ACT will
not undertake any action that would adversely affect Pharming’s rights under
the Infigen Patents and/or under Pharming’s intellectual property rights in the
area of generation and use of transgenic cattle without the prior written
consent of Pharming, which consent shall not be unreasonably withheld.  It will not be considered a breach of this Article if
ACT gives truthful information or testimony to a third party reasonably
entitled to request and/or receive such information including, but not limited
to, testimony given in response to a lawful subpoena, requests for information
by a regulatory body, or the like.


 


7.8                               ACT shall, to the extent permitted by the
national law of relevant country(ies) register and record the license granted
hereunder in the official register of the relevant national Patent Office or
the approved authority.


 


ARTICLE
8 - CONFIDENTIALITY


 


8.1                               The Parties shall maintain the
confidentiality in respect of each others confidential information and
confidential information of third parties that is provided by each to the
other, unless the information was in the public domain at the time at which it
was provided or the information was provided to the recipient by a third party
without that third party violating a duty of confidentiality or is known to the
recipient Party and is at its free disposal prior to its receipt from the other
provided that such prior knowledge can be demonstrated by written evidence.


 


8.2                               The
obligations of confidentiality in this Article shall not prevent either
Party disclosing information to the extent required by law, regulatory
purposes, or the requirements of any Stock Exchange, provided prior written
notice is given to the other Party of such disclosure.


 


8.3                               The duty of confidentiality provided for in Section 8.1
of this Agreement shall remain in force following termination of this Agreement
for a period of five (5) years.


 


8.4                               The Parties agree that there is no necessity
to announce the signing of this Agreement in a press release, except in case Section 8.2
of this Agreement shall apply.


 


ARTICLE
9 -  TERMINATION


 


9.1                               Without prejudice to all rights and
obligations, Pharming shall be entitled to terminate this Agreement with
immediate effect by registered letter and without legal intervention if:


 


a)                                      ACT is a debtor in bankruptcy or is or will
be granted suspension of  payment; or


 


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(b)                                 ACT ceases or will cease to exist or is or
will be dissolved.


 


ACT shall notify Pharming in writing promptly after:  (i) the filing by or against ACT of any
petition in bankruptcy or similar filing seeking relief from creditors; (ii) receipt
by ACT of any notice of foreclosure and/or default that could reasonably be
foreseen to have the effect of preventing Pharming from practicing the licenses
granted to it hereunder.


 


In
case Pharming shall elect not to terminate this Agreement for the reasons
mentioned in this Section 9.1 of this Agreement, ACT will transfer the
Infigen Patents to Pharming free of charge.


 


9.2                                 Without prejudice to all rights and obligations,
ACT shall be entitled to terminate this Agreement with immediate effect by
registered letter and without legal intervention if:


 


a)                                      Pharming is a debtor in bankruptcy or is or
will be granted suspension of payment; or


 


(b)                                 Pharming eases or will cease to exist or is
or will be dissolved, except in case Section 11.2 of this Agreement shall
apply.


 


Pharming shall notify ACT in writing promptly after:  (i) the filing by or against Pharming of
any petition in bankruptcy or similar filing seeking relief from creditors; (ii) receipt
by Pharming of any notice of foreclosure and/or default that could reasonably
be foreseen to have the effect of preventing Pharming from practicing the
licenses granted to it.


 


ARTICLE
10 – LIABILITY AND INDEMNITY


 


10.1                                                                          ACT shall
indemnify and hold Pharming and its affiliates harmless against all claims
which are made or brought against or incurred or suffered by Pharming arising
out of or as a result of a breach by ACT of any representation or warranty of
ACT under this Agreement, or any of ACT’s obligations under this Agreement, or
arising out of the negligence or willful misconduct of ACT.


 


10.2                                                                          Pharming shall indemnify and hold ACT and its
affiliates harmless against all claims which are made or brought against or
incurred or suffered by ACT arising from a breach by Pharming of any of its
obligations set forth in this Agreement or arising out of the death or injury
to any person or persons or out of any damage to tangible property resulting
from, or otherwise attributable to, the making, using, development, and/or sale
by Pharming of any products under this Agreement.


 


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10.3                                                                         THIRD PARTY CLAIMS. Each Party shall give the
other Party prompt notice of any claim for which indemnification under this Article 10
is or may be applicable and will cooperate with the indemnifying Party in the
defense or settlement of such claim at the indemnifying Party’s expense.  The indemnifying Party shall be required to
provide and be entitled to control the defense of any claim covered hereunder
(including the right to control settlement discussions) with counsel reasonably
satisfactory to the other Party, which other Party may, at its own expense,
participate in the defense of any claim after the indemnifying Party assumes
control of the defense thereof.  No claim
that is subject to indemnification under this Article 10 shall be settled
or otherwise compromised other than by the Party defending such claim, and then
only with the prior written consent of the other party, which shall not be
unreasonably withheld or delayed; it shall not be unreasonable to withhold
consent if the settlement or compromise either (a) imposes on the
indemnified Party any liability or obligation which cannot be assumed and performed
in full by the indemnifying Party, or (b) materially adversely affects the
indemnified party or its rights hereunder. 
The failure of the indemnified Party to deliver notice to the
indemnifying Party promptly after the commencement of any such action shall not
release the indemnifying Party from any liability to the indemnified Party
under this Article 10 other than any liabilities directly attributable to
such failure.


 


10.4                                                                         LIMITATION
OF LIABILITY.  In no event shall either
Party be liable to the other for any indirect or consequential loss or damages
howsoever caused arising out of or as a result of this Agreement, howsoever the
liability  arises including (but not
limited to) breach of contract, negligence or tort or breach of any statutory
duty.


 


ARTICLE
11 -  MISCELLANEOUS


 


11.1                         Without prior written permission of Pharming
which cannot be unreasonably withheld, ACT is not entitled to transfer all (or
a part) of the rights and obligations arising from this Agreement to third
parties.


 


11.2                         Pharming  is entitled to transfer all (or a part) of the
rights and obligations arising from this Agreement to a company belonging to
the Pharming group and/or to third parties, without the permission of ACT.


 


11.3                         Pharming shall comply in all material
respects with all local, state, federal and international laws and regulations
relating to the development, manufacture, use, provision, and sale of products
under this Agreement.


 


11.4                         If any term or provision of this Agreement is
declared invalid or unenforceable for any reason, such invalidity or
unenforceability shall not affect any other provision of this Agreement, and
the Parties shall negotiate in good faith to modify the Agreement to preserve
(to the extent possible) their original intent. If the Parties fail to reach a
modified agreement within sixty (60) days after the relevant provision is held
invalid or unenforceable, then the court shall be 


 


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authorized
to modify the invalid provision to the extent and in the manner necessary to
render it enforceable.


 


11.5                         This Agreement may be amended, supplemented,
or otherwise modified only by means of a written instrument signed by both
Parties.  The failure of either Party to
assert a right hereunder or to insist upon compliance with any term or
condition of this Agreement shall not constitute a waiver of that right or
excuse a similar subsequent failure to perform any such term or condition by
the other Party.


 


11.6                         This Agreement shall be governed and construed in accordance with the
laws of the Netherlands. Any dispute concerning this Agreement shall be
exclusively judged by the competent court of the city of the Hague, the
Netherlands.


 


11.7                         The licenses granted hereunder are effective
and fully compliant with 11 USC Section 365(n) and 11 USC Section 362
of the United States Bankruptcy code such that Pharming can fully exploit such
the licenses.


 


11.8                         This Agreement is binding upon and shall
inure to the benefit of the respective successors and/or assigns of the Parties
hereto.


 


[The next page is the signature page]


 


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In
witness whereof, drawn up in duplicate and signed by both parties, as of the
Effective Date first mentioned above.


 


 


	
  PHARMING
  TECHNOLOGIES B.V.

  	
   

  	
  ADVANCED
  CELL TECHNOLOGY, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/
  Dr. R. Strijker

  	
   

  	
  /s/
  William M. Caldwell, IV

  
	
  Dr. R.
  Strijker

  	
   

  	
  Mr. William M. Caldwell, IV

  
	
  Chief
  Commercial Officer

  	
   

  	
  Chief
  Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/
  Dr. B.M. Giannetti

  	
   

  	
   

  
	
  Dr. B.M.
  Giannetti

  	
   

  	
   

  
	
  Chief
  Operations Officer

  	
   

  	
   

  



 


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