Exhibit 10.10


 


CONVERTIBLE PROMISSORY NOTE

$1,200,000 PLUS INTEREST DUE & PAYABLE

DOCUMENT B-02152008


 


THIS
NOTE AND THE SHARES ISSUABLE UPON CONVERSION OF THIS NOTE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED THIS NOTE AND THE SHARES
ISSUABLE UPON CONVERSION OF THIS NOTE MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
OR APPLICABLE EXEMPTION OR SAFE HARBOR PROVISION.


 


FOR
VALUE RECEIVED, on the
Effective Date, as defined below,
Advanced Cell Technology Inc. as
Obligor (“Borrower,” or “Obligor”), hereby promises to pay to the Lender (“Lender”
or “ Holder”), as defined below, the Principal Sum, as defined below, along
with the Interest Rate, as defined below, according to the terms herein


 


	
  The
  “Effective Date” shall be;

  	
   

  	
  February 15,
  2008

  
	
   

  	
   

  	
   

  
	
  The
  “Lender” shall be:

  	
   

  	
  JMJ
  Financial / Its Principal, or Its Assignees

  
	
   

  	
   

  	
   

  
	
  The
  “Principal Sum” shall be:

  	
   

  	
  $1,200,000
  (one million two hundred thousand) US Dollars or so much as may be paid
  towards the balance of Document

  C-02152008; Subject to the following; accrued, unpaid interest shall be added
  to the Principal Sum.

  
	
   

  	
   

  	
   

  
	
  The
  “Consideration” shall be:

  	
   

  	
  $1,000,000
  (one million) dollars in the form of the Secured & Collateralized Promissory
  Note Document C-02152008 (including Security & Collateral
  Agreement).

  
	
   

  	
   

  	
   

  
	
  The
  “Interest Rate” shall be:

  	
   

  	
  10%
  one-time interest charge on the Principal Sum.  No interest or principal payments are
  required until the Maturity Date, but both principal and interest may be
  included in conversion prior to maturity date.

  
	
   

  	
   

  	
   

  
	
  The
  “Conversion Price” shall be the following price:

  	
   

  	
  As
  applied to the Conversion Formula set forth in 22, the lesser of (a) $0
  38 or (b) 80% (eighty
  percent) of the average of the 3 (three) lowest trade prices in the 20 trading days previous to the conversion; as
  applies to Advanced Cell
  Technology Inc. voting common stock.

  
	
   

  	
   

  	
   

  
	
  The
  “Maturity Date” is the date upon which the Principal Sum of this Note, as
  well as any unpaid interest shall be due and payable, and that date shall be:

  	
   

  	
  February 15,
  2010

  
	
   

  	
   

  	
   

  
	
  The
  “Prepayment Terms” shall
  be:

  	
   

  	
  See
  Section 1.2

  



 

















 


ARTICLE 1 PAYMENT-RELATED
PROVISIONS


 


1.1. Interest Rate. Subject to the Holder’s right to convert, interest
payable on this Note will accrue interest at the Interest Rate and shall be
applied to the Principal Sum.


 


1.2. Prepayment Terms. Prepayment is permitted as
set forth under the follow options. For the first 150 days after the Effective
Date, the maximum prepayment amount is $500,000 as set forth below. From and
after the 150th day from the Effective Date, prepayment may be made
in full as set forth below.


 


(a) Prepayment By Cash or Other Negotiated Form. Prepayment is
permitted at any time by payment in the form of either of the following: (1) cash,
or (2) other negotiated form of payment mutually agreed to in writing. In
this event, the original issue discount of $200,000 and the one-time interest
charge of $60,000 will be struck from the principal balance of this Note.


 


(b) Prepayment By Surrender of Document C-02152008. Prepayment is
permitted by surrender of the Secured & Collatetalized Promissory Note
Document C-02152008, as set forth below.


 


(i)    Prior to Holder Making
Payments To Document C-02152008, Prepayment by surrender of Document C-02152008 is
permitted at any time prior to Holder making payment towards the outstanding
balance of Document C-02152008. In this event, this Document B-02152008
original issue discount of $200,000 and the one-time interest charge of $60,000
will be struck from the principal balance of this Note Document B-02152008.
Concurrently, all interest charges and all other charges will be struck from
Document C-02152008.


 


(ii)   After Holder Making
Payments To Document C-02152008. Prepayment by surrender of Document C-02152008
is permitted at any time after Holder making payment towards the outstanding
balance of Document C-02152008. In this event, the remaining original issue
discount premium (OIDP) will be proportionately adjusted for  this Document B-02152008 at the rate of 20%, and the remaining one-time
interest charge will be proportionately adjusted at the rate of 10%. The
remaining balance is payable in cash or convertible into stock as set forth in
this agreement. This prepayment scenario is demonstrated in the attached
Prepayment Adjustment Example.


 


ARTICLE 2 CONVERSION RIGHTS


 


The Holder will have the right to convert the
Principal Sum and accrued interest under this Note into Shares of the Borrower’s
Common Stock as set forth below.


 


2.1 Conversion Rights and Cashless Exercise.  Subject to the terms set forth in Section 2.7,
the Holder will have the right at its election from and after the Effective
Date, and then at any time, to convert all or part of the outstanding and
unpaid Principal Sum and accrued interest into shares of fully paid and
nonassessable shares of common stock of Advanced Cell Technology Inc. (as such
stock exists on the date of issuance of this Note, or any shares of capital
stock of Advanced Cell Technology Inc.  into which such stock is hereafter changed or


 

















 


reclassified,
the “Common Stock”) as per the Conversion Formula set forth in Section 2.2.
Any such conversion shall be cashless, and shall not require further payment
from Holder. Unless otherwise agreed in writing by both the Borrower and the
Holder, at no time will the Holder convert any amount of the Note into common
stock that would result in the Holder owning more than 4.99% of the common
stock outstanding of Advanced Cell Technology Inc. Shares from any such conversion
will be delivered to Holder within 2 (two) business days of conversion notice
delivery (see 3.1) via 10:30am priority overnight delivery service (see Section 2.6)


 


2.2.
Conversion Formula. The number of shares issued through conversion is the conversion
amount divided by the conversion price.


 


#
Shares = Conversion
Amount


Conversion
Price


 


2.3
This Section 2.3 intentionally left blank.


 


2.4.
Adjustment Upon Dilutive Offers, Agreements, or Sales. If the Borrower, at any
time while this Note is outstanding, enters into an agreement under which it
issues or agrees to issue either its common stock, options, or warrants to
purchase or convert to its common stock at a price or exercise price or
conversion price (a “Subsequent Share Price”), as the case may be, that is less than the conversion price or subsequent conversion formula
result set forth in Section 2.2, then the conversion price set forth in Section 2.2.
shall be automatically adjusted to equal the Subsequent Share Price.
Circumstances that are exempt from adjustment as set forth in this Section 2.4 include:


 


(a) options to employees, officers, directors or consultants pursuant
to any stock or option plan currently in effect or hereafter duly adopted by a
majority of the non-employee members of the board of directors of the Borrower
or a majority of the members of a committee of non-employee directors
established for such purpose, provided that the exercise price of such options
shall not be less than the Conversion Price on the trading day immediately
prior to the grant of such option,


 


(b) securities issued upon the exercise or conversion of any
securities, convertible securities, options or warrants issued and outstanding
on the date of this Note, or any agreements to issue the same in existence as
of the date of this Note, and


 


(c) securities issued pursuant to acquisitions or strategic
transactions, provided any such issuance shall only be made in connection with
a transaction involving a person or entity which is, itself or through its
subsidiaries, an operating company in a business synergistic with the business
of the Borrower and in which the Borrower receives benefits in addition to the
investment of funds, but shall not include a transaction in which the Borrower is issuing securities primarily for the purpose of
raising capital or to an entity whose primary business is investing in
securities.


 


2.5
Reservation of Shares. As of the issuance date
of this Note and for the remaining period
during which the conversion right exists, the Borrower will reserve from its
authorized and unissued Common Stock a sufficient number of shares to provide
for the issuance of


 

















 


Common
Stock upon the full conversion of this Note. The Borrower represents that upon
issuance, such shares will be duly and validly issued, fully paid and
non-assessable.  The Borrower agrees that
its issuance of this Note constitutes full authority to its officers, agents
and transfer agents who are charged with the duty of executing and issuing
stock certificates to execute and issue the necessary certificates for shares
of Common Stock upon the conversion of this Note.


 


2.6.
Delivery of Conversion Shares. Shares from any such conversion will be
delivered to Holder within 2 (two) business days of conversion notice delivery
(see 3.1) via 10:30am priority overnight delivery service (see “Share Delivery”
attachment). If those shares are not delivered in accordance with this timeframe
stated in this Section 2.6, at any time for any reason prior to offering
those shares for sale in  a private transaction or in the public market
through its broker, Holder may rescind that particular conversion to have the
conversion amount returned to the note balance with the conversion shares
returned to the Borrower.


 


2.7.
Discharge By Payment. Conversions under this Convertible Promissory Note Document B-02152008 are available only after
the Conversion Amount described herein is discharged by payment of equal or
greater value from the Secured & Collateralized Promissory Note
Document C-02152008 by either, at the Holder’s choice, cash payment, or
surrender of security/collateral, or other negotiated form of payment mutually
agreed to in writing.


 


ARTICLE
3 MISCELLANEOUS


 


3.1.
Notices. Any notice required or permitted hereunder must be in writing and
either personally served, sent by facsimile or email transmission, or sent by
overnight courier. Notices will be deemed effectively delivered at the time of
transmission if by facsimile or email, and if by overnight courier the business
day after such notice is deposited with the courier service for delivery.


 


3.2.
Amendment Provision. The term “Note” and all reference thereto, as used
throughout this instrument, means this instrument as originally executed, or if
later amended or supplemented, then as so amended or supplemented.


 


3.3.
Assignability. This Note will be binding upon the Borrower and its successors
and permitted assigns, and will inure to the benefit of the Holder and its
successors and permitted assigns, and may be assigned by the Holder.


 


3.4.
Governing Law. This Note will be governed by, and construed and enforced in accordance, with the laws  of the State of Florida, without regard to
the conflict of laws principles thereof.


 


3.5.
Maximum Payments. Nothing contained herein may be deemed to establish or
require the payment of a rate of interest or other charges in excess of the
maximum permitted by applicable law. In the event that the rate of interest
required to be paid or other charges hereunder exceed the maximum permitted by
such law, any payments in excess of such maximum will be credited against
amounts owed by the Borrower to the Holder and thus refunded to the Borrower.


 


3.6.
Attorney Fees. In the event any attorney is employed by either party to this
Note with regard to any legal or equitable action, arbitration or other
proceeding brought by such party for


 

















 


the
enforcement of this Note or because of an alleged dispute, breach, default or
misrepresentation in connection with any of the provisions of this Note, the
prevailing party in such proceeding will be entitled to recover from the other
party reasonable attorneys’ fees and other costs and expenses incurred, in
addition to any other relief to which the prevailing party may be entitled.


 


3.7.
No Public Announcement. Except as required by applicable securities law, no
public announcement may be made regarding this Note, payments, or conversions
without written permission by both Borrower and Holder.


 


3.8.
Opinion of Counsel. In the event that an opinion of counsel is needed for any
matter related to this Note, Holder has the right to have any such opinion
provided by its counsel. Holder also has the right to have any such opinion
provided by Borrower’s counsel.


 


3.9.
Effective Date. This Note will become effective only upon occurrence of the
three following events: the Effective Date of February 15, 2008 has been
reached, execution by both parties, and delivery of valid payment by the Lender
in the form of the Secured & Collateralized Promissory Note Document
C-02152008 (including Security & Collateral Agreement)..


 


3.10.
Director’s Resolution. Once effective, Borrower will execute and deliver to
Holder a copy of a Board of Director’s resolution resolving that this note is
validly issued, paid, and effective.


 


3.11.
Use of Proceeds. As further described, promised, and agreed in the attached Use
of Proceeds Agreement, Borrower promises that use of the funds will not go
towards stem cell research or development related to embryonic stem cells in
any manner, and that 100% of the use of proceeds is to go the company’s adult
stem cell research and development of the Mytogen program. Borrower understands
that Holder has entered into this transaction in reliance upon that promise,
understanding, and use of proceeds as memorialized in the attached Use of
Proceeds Agreement.


 


3.12.
Adjustment of Conversion Price. In the event that Borrower enters into an
additional financing agreement with another investor subsequent to the closing
of this transaction, Borrower may adjust the Conversion Price percentage set
forth herein as to satisfy the terms of any future financing transaction. In
the event of such adjustment, as shown in the Adjustment of Conversion Price
Example attachment, Borrower will make a one-time cash payment to Holder at the
time of adjustment for the dollar difference that would result in the Conversion
Price percentage adjustment.


 


	
  BORROWER[S]:

  	
  LENDER/HOLDER:

  	
  NOTARY PUBLIC-STATE OF FLORIDA

  
	
   

  	
   

  	
  

  	
  Christie Barrocas   

  
	
   

  	
   

  	
  Commission # DD735899

  
	
   

  	
   

  	
  Expires:  Nov. 19, 2011

  
	
   

  	
   

  	
  BONDED
  THRU-ATLANTIC BONDING CO., INC.

  



 


 


 




	
  /s/
  William M. Caldwell, IV

  	
   

  	
  /s/
  Justin Keener

  
	
  William
  Caldwell

  	
   

  	
  JMJ
  Financial / Its Principal

  	
   

  
	
  Chairman &
  CEO

  	
   

  	
   

  
	
  Advanced
  Cell Technology Inc.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Dated:

  	
  2/14/08

  	
   

  	
  Dated:

  	
  2/14/08

  
						






 

















 


AMENDMENT

MARCH 17, 2007


CONVERTIBLE PROMISSORY NOTE

$1,200,000 PLUS INTEREST DUE & PAYABLE

DOCUMENT B-02152008 EXECUTED 2/14/08


 


The
Convertible Promissory Note by and between Advanced Cell Technology Inc. and
JMJ Financial, duly executed on February 14, 2008, is hereby amended as
follows.


 


Section 1.2
Prepayment Terms. Prepayment is permitted as set forth under the follow
options. For the first 270 days after the Effective Date, the maximum
prepayment amount is $300,000 as set forth below. From and after the 270th
day from the Effective Date, prepayment may be made in full as set forth below.


 


The
effective date of this amendment is March 17, 2008.


 


ALL
OTHER TERMS AND CONDITIONS OF THE ORIGINAL CONVERTIBLE PROMISSORY NOTE DOCUMENT
B-02152008 REMAIN IN FULL FORCE AND EFFECT.


 


Please
indicated acceptance and approval of this amendment by signing below:


 


 




	
  /s/
  William M. Caldwell, IV

  	
   

  	
  /s/
  Justin Keener

  
	
  William
  Caldwell

  	
   

  	
  JMJ
  Financial/Its Principal

  
	
  Chairman &
  CEO

  	
   

  	
   

  
	
  Advanced
  Cell Technology Inc.