Exhibit 10.2


 


RESEARCH COLLABORATION AGREEMENT


 


This Research
Collaboration Agreement (“Agreement”) is made as of May 23,
2005 (the “Effective Date”), by and between The Burnham
Institute, a California 501(c)(3) corporation with offices at
10901 North Torrey Pines Road, La Jolla, CA 92037 (hereinafter, “INSTITUTE”),
and Advanced Cell Technology, Inc., a Nevada corporation doing business at 11100
Santa Monica Boulevard, Suite 850, Los Angeles, CA 90025 (“ACT”) and Advanced Cell, Inc., a Delaware
corporation doing business at 381 Plantation Street, Worcester, MA 01605 (“Advanced
Cell”) (ACT and Advanced Cell hereinafter referred to collectively as “COLLABORATOR”).  INSTITUTE or COLLABORATOR may each be
referred to herein singularly as a “Party” or collectively as “Parties” to this
Agreement.


 


WHEREAS, INSTITUTE and
COLLABORATOR are engaged in the field of stem cell research;


 


WHEREAS, the Research
Project (as defined herein) is of mutual interest and benefit to INSTITUTE and
COLLABORATOR and may further the research mission of INSTITUTE in a manner
consistent with its status as a non-profit, tax exempt research institution;


 


WHEREAS, INSTITUTE
intends to conduct the study “Mapping Stem
Cell-Specific Differentiation Markers” in cooperation with
COLLABORATOR;


 


WHEREAS, COLLABORATOR
wishes to be involved in the Research Project,  has biological and other research materials
described herein and has associated know-how and documentation, which may be
useful in the Research Project;


 


WHEREAS, INSTITUTE has
developed biological and other research materials described herein, and has associated
know-how and documentation which may be useful in the Research Project; 


 


WHEREAS, Dr. Erkki
Ruoslahti will coordinate the Research Project for the INSTITUTE, and David
Larocca is designated to coordinate all interests of COLLABORATOR in the
Research Project;


 


WHEREAS, INSTITUTE and
David Larocca previously entered into that certain “Confidentiality, Trade
Secret and Invention Agreement” (Facility User) dated June 2 , 2005 (the “Facility
User Agreement”); and


 


WHEREAS, COLLABORATOR and
INSTITUTE are willing to conduct the Research Project in accordance with the
terms and conditions of this Agreement;


 


NOW, THEREFORE, the
Parties agree as follows:


 


1.                                       RESEARCH
COLLABORATION


 


1.1                                 The
Agreement, Statements of Work and Research Projects.  COLLABORATOR and INSTITUTE desire to
undertake collaborative research activities in the


 


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field of
Mapping Stem Cell-Specific Differentiation Markers as described in the
Statement of Work attached hereto as Attachment A, which is
incorporated herein by reference, or in such other Statements of Work as may be
mutually agreed upon by the parties (the research or other activities described
in the Statements of Work are referred to herein as the “Research Project”).  The Statements of Work, each of which shall
specifically refer to this Agreement and be signed by the duly authorized
representatives of the parties, shall at a minimum include a description of the
Research Project, INSTITUTE Materials or COLLABORATOR Materials, as applicable
(as defined below) to be used in connection with the Research Project, the time
for performing and completing the Research Project, and the respective
contributions of COLLABORATOR and INSTITUTE to the Research Project.  If there is any difference between the terms
and conditions of any Statement of Work and the terms and conditions of this
Agreement, the terms and conditions of this Agreement shall control.  The Research Project, as described in the
Statements of Work shall not exceed the scope of work set forth on the
applicable Statement of Work, provided that the INSTITUTE Principal
Investigator (identified below) and the COLLABORATOR Principal Investigator
(identified below) may agree to modifications of the Statement of Work that do
not alter its scope, as they believe appropriate.  Any significant changes to a Statement of
Work must be in writing and must be approved by COLLABORATOR and INSTITUTE.


 


1.2                                 Principal
Investigators. The Research Project shall be conducted under the guidance of
the INSTITUTE Principal Investigator, Dr. Erkki Ruoslahti, and the
COLLABORATOR Principal Investigator, Dr. David Larocca. 


 


1.3                                 Performance
of Research Project.  Unless
otherwise agreed in a Statement of Work, the Research Project, as described in
the applicable Statement of Work, shall be conducted at and coordinated from
the facilities of INSTITUTE, including from the lab and office space leased by
COLLABORATOR as contemplated in Section 3 of this Agreement, under the
supervision and direction of the Principal Investigators.  The parties agree that any work conducted in
connection with the Research Project shall be performed by personnel (whether
as employees, independent contractors, etc. of the parties) who are required to
assign to COLLABORATOR or INSTITUTE, as applicable, all right, title and
interest in and to any Research Results and/or Joint Patent Rights.  INSTITUTE shall be responsible for the
overall administrative management of the Research Project.  The COLLABORATOR Principal Investigator and the
INSTITUTE Principal Investigator, shall communicate on a regular basis both in
person, by telephone, or by written (electronic or otherwise) communication,
regarding the performance of the Research Project The parties agree that they
will use reasonable commercial efforts to complete the Research Project within
the period of time described in the applicable Statement of Work; however,
neither COLLABORATOR nor INSTITUTE makes any warranties regarding the
completion of the Research Project or the achievement of any particular
results.


 


1.4                                 Access
and Information


 


The INSTITUTE and the COLLABORATOR shall each provide the other on an
ongoing basis with such access to its facilities and research results as may be
reasonably necessary to enable them to review and evaluate the progress of the
Research Project.  Such access shall be
at times mutually agreeable to both Parties. 
Facilities access to INSTITUTE


 


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facilities by COLLABORATOR
representatives other than COLLABORATOR Principal Investigator shall be limited
to only the lab and office space contemplated in Section 3 herein.


 


1.5                                 Reports.  The parties shall cooperate in preparing
written reports (each, a “Report” or collectively, the “Reports”) for the
Research Project, which Reports shall be completed within thirty (30) days
after the end of the Research Project. 
The Reports shall include all research results, including reference to laboratory
notebooks, containing pertinent data, maintained in accordance with customary
practice and issues related to the conduct of the Research Project.  Each party shall be entitled to retain copies
of the Reports.


 


1.6                                 Ownership
of Equipment.  Upon termination or
expiration of this Agreement, INSTITUTE shall retain title to all equipment
purchased or fabricated by INSTITUTE for use in connection with the Research
Project, and COLLABORATOR shall retain title to all equipment purchased or
fabricated by COLLABORATOR for use in connection with the Research Project.


 


1.7                                 Compliance
with Law.  The parties agree that all
studies, research, and testing done under this Agreement shall be performed in
strict compliance with all applicable laws, rules and regulations governing
the conduct of studies, research and testing at the site where such studies,
research and testing are being conducted.


 


1.8                                 Acknowledgment
of Risks Associated with Research Project. 
COLLABORATOR and INSTITUTE acknowledge, understand and agree that the subject
of the Research Project is experimental, that its characteristics and
functionality are not fully understood, and that there may be substantial risks
associated with the unknown properties of the products of the Research Project
or any other associated materials.


 


1.9                                 Third
Party Rights.  The Parties agree that
they shall not use, or acquire for use, any third party materials or funds,
directly or indirectly, in the Research Project, if the use of such materials
or funds would provide such third party with any rights to the Research Project
results without consultation with and written agreement from the other Party.


 


2.                                       COLLABORATION MATERIALS. 
Biological and other research materials, as defined herein, may be
transferred between INSTITUTE and COLLABORATOR in connection with the Research
Project.  COLLABORATOR agrees to provide
INSTITUTE with biological and other research materials, including the materials
described in Attachment B to this Agreement (“COLLABORATOR Material”),
and INSTITUTE agrees to provide COLLABORATOR with biological and other research
materials, including the materials described in Attachment B to
this Agreement (“INSTITUTE Material”), subject to the agreement of the Parties
to the following terms and conditions:


 


(a)                                  The
COLLABORATOR Material, including any and all unmodified descendents and
derivatives of the COLLABORATOR Material, is the property of COLLABORATOR.


 


(b)                                 The
COLLABORATOR Material represents a significant investment on the part of, and
is proprietary to, COLLABORATOR.  The
INSTITUTE will not attempt to obtain a patent claiming the COLLABORATOR
Material.


 


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(c)                                  The
INSTITUTE Material, including any and all unmodified descendents and
derivatives of the INSTITUTE Material, is the property of INSTITUTE.


 


(d)                                 The
INSTITUTE Material represents a significant investment on the part of, and is
proprietary to, INSTITUTE.  COLLABORATOR
will not attempt to obtain a patent claiming the INSTITUTE Material.


 


(e)                                  Except
for the provision of materials between Parties in carrying out the Research
Project, neither Party will transfer any “Material” (which term shall include
INSTITUTE Material and COLLABORATOR Material) of the other Party to (i) any
person who is not under direct supervision of the Party receiving the Material,
nor (ii) any third party without first securing the advance written
permission of the Party that owns the Material. 
Each Party will ensure that all persons it authorizes to use the
Material of the other Party as set forth in this Agreement are aware of, and
agree to abide by all of the terms and conditions of, this Agreement.


 


(f)                                    Any
uses by a Party of the other Party’s Material other than in connection with the
Research Project are expressly prohibited. 
In no event will either Party attempt to reverse engineer, deconstruct
or in any way determine the structure or composition of the other Party’s
Materials provided hereunder.  Each Party
expressly agrees that the provision of the other Party’s Material will not be
construed as a grant of any right or license to make, use, sell, transfer,
offer for sale or import such Material except as set forth herein.


 


(g)                                 Materials
transferred under this Agreement are provided for use in animals or in vitro only and shall not be used in humans.


 


(h)                                 No
rights are granted to either Party under any patents, patent applications,
trade secrets or other proprietary rights of another Party other than the right
to use the COLLABORATOR Material or the INSTITUTE Material in the Research Project,
except as provided in the terms of this Agreement.


 


(i)                                     All
Material provided pursuant to the Research Project will remain the property of
the providing Party, and will be used solely for the purposes of the Research
Project.  Upon termination of this
Agreement, the unused portions of such Material will be returned to the
providing Party or will be disposed of as directed by the providing Party in
writing.


 


3.                                       RESEARCH FUNDING, LEASE. 


 


3.1                                 Each
Party shall pay its own expenses for work performed in the Research Project,
provided that COLLABORATOR agrees to the expenditures for the Research Project
identified in the budget attached to this Agreement as Attachment C,
including monthly reimbursement to the INSTITUTE for fifty percent (50%) of the
salary and employee benefits for the INSTITUTE employee assigned to the
Research Project.  The first monthly
reimbursement of two thousand three hundred twenty-five dollars ($2,325.00) per
Attachment C is due within five (5) days of execution of this
Agreement, and each subsequent payment shall be made on the first day of each
month thereafter.  Payments should be
sent with the payments due under Paragraph 3.3 below to the INSTITUTE contact
listed in Paragraph 9.11 herein.


 


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3.2                                 COLLABORATOR,
at its expense, may utilize INSTITUTE’S Shared Resources as listed and priced
in Attachment D to perform the Research Project.  Prices are subject to change without notice.


 


3.3                                 COLLABORATOR’s
use of general lab supplies during the Project Period will be charged at a
fixed rate of two thousand dollars ($2,000.00) per month for each full time
equivalent as provided in Attachment C.  The first monthly payment of four thousand
dollars ($4,000.00) is due within five (5) days of execution of this
Agreement, and each subsequent payment shall be made on the first day of each
month thereafter.  Payments should be
sent to the INSTITUTE contact listed in Paragraph 9.11 herein.


 


3.4                                 Project
specific supplies will be purchased directly by the COLLABORATOR.


 


3.5                                 COLLABORATOR
will lease lab and office space from the INSTITUTE per the Lease Agreement of
even date herewith attached as Attachment E.


 


4.                                       PROJECT PERIOD.  The
Research Project will commence on the Effective Date and will continue for a
period of one (1) year, unless extended by agreement of the Parties in
writing or sooner terminated as hereinafter provided.


 


5.                                       CONFIDENTIALITY. 
Subject to Section 6, any confidential information exchanged by the
Parties in order to conduct the Research Project will be disclosed in writing
and clearly marked “Confidential” at the time of disclosure to the receiving
Party, or if orally disclosed, reduced to writing within thirty (30) days after
disclosure by the disclosing Party and identified as confidential.  In addition, disclosures of Results and
Inventions (as defined in Section 7 below) and Reports (as defined in Paragraph
1.5) shall be treated as Confidential Information, subject to this Section 5.  In order to avoid disclosure of Confidential
Information, the Parties agree that for a period of five (5) years from
the date of disclosure, they will treat any Confidential Information from the
other Party with the same degree of care that they employ with respect to their
own information, which they do not desire to have published or
disseminated.  Confidential Information
shall only be disclosed to the INSTITUTE Principal Investigator or COLLABORATOR
Representative, who will have the right to refuse or accept any such
information and the responsibility to control its distribution to his/her
laboratory personnel participating in the Research Project.  It is understood that neither Party will be
liable for any unauthorized disclosure unless they fail to safeguard the
Confidential Information with such care; however, neither Party will have any
obligation with respect to Confidential Information which:


 


(a)                                  is
publicly available prior to the date of this Agreement or becomes publicly
available thereafter through no wrongful act of the receiving Party;


 


(b)                                 was
known to the receiving Party prior to the date of disclosure or becomes known
to the receiving Party thereafter from a third party having an apparent bona
fide right to disclose the information;


 


(c)                                  is
disclosed by the receiving Party with the disclosing Party’s prior written
approval;


 


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(d)                                 is
disclosed by the disclosing Party without restriction on further disclosure;


 


(e)                                  is
independently developed by the receiving Party without use of the Confidential
Information provided hereunder;


 


(f)                                    the
receiving Party is obligated to produce pursuant to an order of a court of
competent jurisdiction or a valid administrative or Congressional subpoena,
provided that the receiving Party (a) promptly notifies the disclosing
Party and (b) cooperates reasonably with the disclosing Party’s efforts to
contest or limit the scope of such order and (c) takes all necessary steps
to protect the confidentiality of the Confidential Information including
without limitation filing any documents with the court under seal.


 


6.                                       PUBLICATION.  It is
anticipated the results of the Research Project will be jointly published,
however each Party may publish, or otherwise publicly disclose the results of
their own information and data generated from the conduct of the Research
Project, provided however that in all oral presentations or written
publications concerning the Research Project, the disclosing or publishing
Party agrees that no such publication or disclosure will include any of the
other Party’s Confidential Information without such Party’s prior written
approval.  If a proposed publication or
other form of public disclosure is not a joint publication, the disclosing or
publishing Party shall provide a copy of the proposed publication to the
non-disclosing Party at least thirty (30) days prior to submission thereof for
publication, in order to allow the non-disclosing Party an opportunity to
identify information or intellectual property that should be protected by the
filing of a patent application before public disclosure.  The disclosing Party agrees to delay any
submission for up to an additional thirty (30) days for the purpose of
permitting the other Party to prepare and file appropriate applications. In
accordance with scientific custom, a Party’s provision of its Material will be
noted in all written or oral public disclosures concerning the Research
Project, as is appropriate.


 


7.                                       RESEARCH PROJECT RESULTS, INTELLECTUAL PROPERTY.


 


7.1                                 Research
Results.  Each Party will keep complete
and accurate records of its work on the Research Project and keep the other
Party informed of research results obtained from its work on the Research
Project.  Information shared in
accordance with this Section shall be treated as confidential by the
receiving Party (even if it is not identified as confidential by the disclosing
Party) and shall be handled by the receiving Party in accordance with the
procedures set forth in Section 5 (Confidentiality) until published or
otherwise disclosed publicly in accordance with Section 6 (Publication).


 


7.2                                 Right
to use for Internal Purposes.  Each
Party shall have the unrestricted, royalty-free right, during and following the
term of this Agreement, to use for its own internal research purposes all
research results resulting from the Research Project subject to the obligations
of confidentiality in Section 5 and publication review in Section 6.   


 


7.3                                 Inventions
and Patent Rights.  An “Invention”
means any novel discovery conceived and/or reduced to practice during the
conduct and as a result of the Research Project that may be claimed in a patent
application.  “Patent Rights” shall mean
all right, title and


 


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interest in, to and under patent applications claiming Inventions,
including divisions, continuations or continuations-in-part (but only to the
extent such continuations-in-part are adequately supported in the parent
application) thereof; any corresponding foreign applications thereof; and any
U.S. or foreign patents issued therein or reissues, reexaminations or
extensions thereof, assigned by inventors of Inventions to their respective
institutions.


 


7.4                                 Inventorship
of Inventions.  Inventorship of any
Inventions will be determined in accordance with U.S. Patent Law standards for
determining inventorship.  Disputes
involving inventorship will be resolved by a mutually acceptable third party
patent attorney.  The costs for the third
party patent attorney in resolving such disputes will be shared equally by the
Parties.


 


7.5                                 Assignment
and Ownership of Inventions.  Each
Party represents, warrants and covenants that each of its employees or agents
involved in the Research Project shall be obligated to assign, and shall
assign, all rights in any Inventions, including Patent Rights, developed during
or as a result of the Research Project to such Party.  The Parties agree that, subject to paragraph
7.6 and any rights of the U.S. Government in any Invention, (a) in the
case of Inventions developed solely by the employees or agents of a particular
Party (“Sole Invention”), such Inventions shall be owned by such Party, and (b) in
the case of Inventions developed jointly by employees or agents of both
Parties, including employees or agents employed or engaged by both Parties
(such as an INSTITUTE employee partially supported by COLLABORATOR), such
invention shall be jointly owned by both Parties (“Joint Invention”) and the
Parties shall jointly own all right, title and interest in Joint
Inventions.  Each Party shall notify the
other in writing within thirty (30) days after a disclosure of an Invention is
received by, in the case of INSTITUTE, the Intellectual Property Department,
and in the case of COLLABORATOR, its General Counsel and Director of
Intellectual Property.


 


7.6                                 Patent
Protection.


 


(a)                                  INSTITUTE
Sole Inventions.  In the case of
INSTITUTE Sole Inventions, INSTITUTE shall prepare and file appropriate patent
applications covering INSTITUTE Sole Inventions at its sole discretion and
expense.  If, however, INSTITUTE chooses
not to file a patent application for its Sole Invention, INSTITUTE shall notify
COLLABORATOR to determine if COLLABORATOR wishes to have a patent application
filed at its expense and, if so, will consult with COLLABORATOR in the
preparation of such patent application. 
If COLLABORATOR does not agree in writing to support a patent
application within sixty (60) days after all relevant information regarding an
INSTITUTE Sole Invention has been provided to COLLABORATOR, COLLABORATOR shall
have no further rights in that patent application.


 


(b)                                 Joint
Inventions.  Unless COLLABORATOR
elects not to file and fund a patent application for a Joint Invention, both
Parties shall be responsible for filing the patent application and shall
consult each other in the selection of an appropriate patent attorney and in
preparation of the patent application. 
COLLABORATOR shall be responsible for all expenses incurred for the
patent filing, prosecution and maintenance for Joint Inventions, and in the
event COLLABORATOR elects not to file and fund a patent application for a Joint


 


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Invention, COLLABORATOR
will not receive an option to license the INSTITUTE ownership portion of the
Joint Invention in accordance with 7.7 below.


 


7.7                                 Option
to License INSTITUTE Sole or Joint Inventions.   


 


(a)                                  Option
to License.  The INSTITUTE hereby
grants to COLLABORATOR, an option, exercisable for the term hereof and ninety (90) days
thereafter, to negotiate a license to INSTITUTE Sole Inventions and the
INSTITUTE ownership portion of Joint Inventions resulting from the Research
Project. COLLABORATOR must exercise its option under this paragraph by
providing to the INSTITUTE, within the sixty (60) day period immediately
following the disclosure of the Invention to COLLABORATOR (“Option Period”),
written notice of its desire to negotiate a mutually acceptable license
agreement in connection with such INSTITUTE Sole Invention or Joint Inventions
and any patents issuing thereunder (such Invention shall then be termed an “Elected
Invention”).  Such license shall include
payment of all costs associated with evaluating, prosecuting or maintaining
patent rights, license fees, maintenance fees, milestone payments, sublicensing
terms, and a reasonable royalty on the net sales of a product which results
from or includes any Elected Invention. 
If COLLABORATOR exercises the option within or before the Option Period,
then the Parties shall negotiate in good faith for up to three (3) months
after the exercise of the option (“Negotiation Period”) with the objective of
entering into a license prior to the end of the Negotiation Period.  The Negotiation Period may be extended by
mutual written agreement of INSTITUTE and COLLABORATOR.


 


(b)                                 In
the event COLLABORATOR fails to exercise its option by the end of the Option
Period:


 


(i)                                     In
the case of INSTITUTE Sole Inventions, the INSTITUTE shall be free to license
such Inventions to others with no further obligation to COLLABORATOR; or


 


(ii)                                  In
the case of Joint Inventions, then each Party shall have the right to use the
Joint Invention for any purpose and license its use to others without any
obligation to the other Party.


 


(c)                                  For
Elected Inventions:


 


(i)                                     In
the case of INSTITUTE Sole Inventions, if INSTITUTE and COLLABORATOR are unable
to agree on the terms of a license within the Negotiation Period, then
INSTITUTE shall be free to license such Invention to others with no further
obligation to COLLABORATOR; or


 


(ii)                                  In
the case of Joint Inventions, if the Parties are unable to agree on the terms
of a license for INSTITUTE’s rights to a Joint Invention within the Negotiation
Period, then each Party shall have the right to use the Joint Invention for any
purpose and to license its use to others without any obligation to the other
Party.  However, the Parties may agree to
a joint licensing approach for such Joint Inventions.


 


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8.                                       INDEMNITY AND WARRANTY DISCLAIMER.


 


8.1                                 


 


(a)                                  COLLABORATOR
shall indemnify, defend and hold harmless the INSTITUTE, its board members,
officers, agents, servants, and employees, including the Principal Investigator
(the “COLLABORATOR’s Indemnitees”) from and against any and all liability,
loss, damage, claims, costs, actions, and suits, including costs, expenses, and
attorneys fees, arising out of, resulting from, or directly or indirectly
relating to, any claims, suits, actions, demands or judgments arising out of
COLLABORATOR’s performance under this Agreement, to the extent such liability,
loss, damage or expense is not attributable to the negligent act or omission or
reckless conduct or willful misconduct of COLLABORATOR’s Indemnitees.


 


(b)                                 The
INSTITUTE shall indemnify, defend and hold harmless COLLABORATOR, its board
members, officers, agents, servants and employees (the “INSTITUTE’s Indemnitees”)
from and against any and all liability, loss, damage, claims, costs, actions
and suits, including costs, expenses, and attorneys fees, arising out of,
resulting from, or directly or indirectly relating to, any claims, suits,
actions, demands or judgments arising out of the INSTITUTE’s performance,
respectively, under this Agreement, to the extent such liability, loss, damage
or expense is not attributable to the negligent act or omission or reckless conduct
or willful misconduct of the INSTITUTE’s Indemnitees.


 


8.2                                 NEITHER
PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS, ANY REPRESENTATIONS
OR WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING,
WITHOUT LIMITATION, THE CONDITION, ORIGINALITY, OR ACCURACY OF THE RESEARCH OR
ANY INVENTIONS OR MATERIALS, WHETHER TANGIBLE OR INTANGIBLE, CONCEIVED,
DISCOVERED, OR DEVELOPED UNDER THIS AGREEMENT; OR THE OWNERSHIP,
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THE
MATERIALS PROVIDED HEREUNDER, THE RESEARCH OR ANY SUCH INVENTIONS OR OTHER
MATERIALS.  NEITHER PARTY WILL BE LIABLE
TO THE OTHER PARTY FOR ANY, CONSEQUENTIAL, SPECIAL, INCIDENTAL, EXEMPLARY OR
PUNITIVE DAMAGES RESULTING FROM THE USE OF THE MATERIALS PROVIDED HEREUNDER,
THE RESEARCH OR ANY SUCH INVENTIONS OR OTHER MATERIALS.  NEITHER PARTY MAKES ANY REPRESENTATIONS THAT
THE MATERIALS PROVIDED OR DEVELOPED UNDER THIS AGREEMENT OR ANY INVENTION WILL
NOT INFRINGE ANY PATENT OR PROPRIETARY RIGHTS OF THIRD PARTIES.


 


9.                                       MISCELLANEOUS
PROVISIONS.


 


9.1                                 Compliance
with Laws.  Nothing contained in this
Agreement shall require or permit INSTITUTE or COLLABORATOR to do any act
inconsistent with the requirements of any United States or foreign law,
regulation or executive order as the same may be in effect from time to
time.  


 


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9.2                                 Assignment.  Neither Party may assign, transfer or
encumber this Agreement, in whole or in part, without the prior written
approval of the other Party, which approval shall not be unreasonably withheld.


 


9.3                                 Successors
and Assigns.  This Agreement shall be
binding upon and inure to the benefit of the permitted successors and assigns
of the Parties hereto.


 


9.4                                 Independent
Contractors.  The relationship
between INSTITUTE and COLLABORATOR is that of independent contractors.  INSTITUTE and COLLABORATOR are not joint
venturers, partners, principal and agent, master and servant, employer or
employee, and have no other relationship other than independent contracting
parties.  Neither Party shall have the
power to bind or obligate the other Party in any manner other than as is
expressly set forth in this Agreement.


 


9.5                                 Dispute
Resolution.


 


(a)                                  Mediation.  The Parties agree to first submit any controversy
or claim arising out of or relating to this Agreement, or the breach thereof,
to non-binding mediation in San Diego by a mediator to be selected by the
Parties from among the San Diego American Arbitration Association (“AAA”)
mediation or commercial arbitration panelists. 
The first preference in the selection of a mediator shall be a retired
judge.


 


(b)                                 Arbitration.
Any controversy or claim not resolved by mediation, arising out of or relating
to this Agreement, or the breach thereof, or any rights or materials licensed
hereunder, shall be settled by binding arbitration in accordance with the
Commercial Arbitration Rules (the “Rules”) of the AAA, and the procedures
set forth below.  In the event of any
inconsistency between the Rules of AAA and the procedures set forth below,
the procedures set forth below shall control. 
Judgment upon the award rendered by the arbitrators may be enforced in
any court having jurisdiction thereof.


 


(i)                                     Location.  The location of the mediation and arbitration
shall be in the County of San Diego, California.


 


(ii)                                  Selection
of Arbitrators.  The arbitration
shall be conducted by a neutral arbitrator who is independent and disinterested
with respect to the Parties, this Agreement, and the outcome of the
arbitration.  If the Parties are unable
to agree to an arbitrator, the arbitrator shall be appointed by AAA from among
the San Diego AAA commercial arbitration panelists.  The first preference in the selection of an
arbitrator shall be a retired judge.


 


(iii)                               Case Management.  Prompt resolution of any dispute is important
to both Parties and the Parties agree that the arbitration of any dispute shall
be conducted expeditiously.  The
arbitrator is instructed and directed to assume case management initiative and
control over the arbitration process (including scheduling of events, pre-hearing
discovery and activities, and the conduct of the hearing), in order to complete
the arbitration as expeditiously as is reasonably practical for obtaining a
just resolution of the dispute.


 


(iv)                              Remedies.  The arbitrator may grant any legal or
equitable remedy or relief that the arbitrator deems just and equitable, to the
same extent that remedies or


 


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relief could be granted by a state or federal court, provided however,
that such remedy or relief is consistent with the remedies and limitations set
forth in this Agreement.


 


(v)                                 Expenses.  The expenses of the arbitration, including
the arbitrator’s fees, expert witness fees, and attorneys’ fees, may be awarded
to the prevailing Party, in the discretion of the arbitrator, or may be
apportioned among the Parties in any manner deemed appropriate by the
arbitrator.  Unless and until the
arbitrator decides that one Party is to pay for all (or a share) of such
expenses, or unless otherwise set forth in this Agreement, both Parties shall
share equally in the payment of the arbitrator’s fees as and when billed by the
arbitrator.


 


(vi)                              Confidentiality.  Except as set forth below, the Parties shall
keep confidential the fact of the arbitration, the dispute being arbitrated,
and the decision of the arbitrator. 
Notwithstanding the foregoing, the Parties may disclose information
about the arbitration to persons who have a need to know, such as directors, trustees,
management employees, witnesses, experts, investors, attorneys, lenders,
insurers, and others who may be directly affected.  Additionally, if COLLABORATOR has stock,
which is publicly traded, COLLABORATOR may make such disclosures as are
required by applicable securities laws. 
Further, if a Party is expressly asked by a third party about the
dispute or the arbitration, the Party may disclose and acknowledge in general
and limited terms that there is a dispute with the other Party which is being
(or has been) arbitrated.  Once the
arbitration award has become final, if the arbitration award is not promptly
satisfied, then these confidentiality provisions shall no longer be applicable.


 


9.6                                 Publicity.  Except as otherwise required by law, each
Party agrees not to use or cite in any manner the name of the other, its
employees anything related to the Research Project, INSTITUTE Principal
Investigator or the COLLABORATOR Representative in any commercial or
non-commercial advertising, article, press release or in any other forms of
writing or publication medium without the prior written permission of the Party
or individual whose name or other information is to be used.


 


9.7                                 Governing
Law; Venue; Jurisdiction.  This
Agreement shall be governed by, and construed and enforced in accordance with,
the laws of the United States and the State of California without regard to its
conflict of laws provisions.  The Parties
irrevocably consent to the exclusive personal jurisdiction (except as to
actions for the enforcement of a judgment, in which case the jurisdiction will
be non-exclusive) of the federal and state courts located in San Diego County,
California, and venue in San Diego County, California.


 


9.8                                 Headings.  The headings for each Paragraph in this
Agreement have been inserted for convenience of reference only and are not
intended to limit or expand on the meaning of the language contained in the
particular Paragraph.


 


9.9                                 Severability.  Should any one or more of the provisions of
this Agreement be held invalid or unenforceable by a court of competent
jurisdiction, it shall be considered severed from this Agreement and shall not
serve to invalidate the remaining provisions thereof.  The Parties shall make a good faith effort to
replace any invalid or unenforceable provision with


 


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a valid and enforceable one such that the objectives contemplated by
them when entering this Agreement may be realized.


 


9.10                           No
Waiver.  Any delay in enforcing a
Party’s rights under this Agreement or any waiver as to a particular default or
other matter shall not constitute a waiver of such Party’s rights to the future
enforcement of its rights under this Agreement, excepting only as to an express
written and signed waiver as to a particular matter for a particular period of
time.


 


9.11                           Notices.  Any notices required by this Agreement shall
be in writing, shall specifically refer to this Agreement and shall be sent by
registered or certified airmail via either U.S. Postal Service or reliable
alternative carrier, postage prepaid, or by facsimile, to the respective
addresses set forth below unless subsequently changed by written notice to the
other Party given in accordance with this Paragraph.  Notice shall be deemed delivered upon the earlier
of (a) when received, or (b) the date notice is sent via
facsimile.  Notice shall be conclusively
presumed to have been received when (x) a receipt therefor has been signed
by any person at the address provided for such notice, or (y) facsimile
printout reflects receipt at the address provided for such notice.


 


	
  COLLABORATOR:

  	
  Jon Atzen, General Counsel

  
	
   

  	
  Advanced Cell Technology, Inc.

  
	
   

  	
  11100 Santa Monica Boulevard

  
	
   

  	
  Suite 850

  
	
   

  	
  Los Angeles, CA 90025

  
	
   

  	
   

  
	
  with a copy to:

  	
  Director of Intellectual Property

  
	
   

  	
  Advanced Cell, Inc.

  
	
   

  	
  381 Plantation Street

  
	
   

  	
  Worcester, MA 01605

  
	
   

  	
   

  
	
  INSTITUTE:

  	
  Director, Intellectual
  Property

  
	
   

  	
  Re: ACT Research
  Collaboration

  
	
   

  	
  The Burnham Institute

  
	
   

  	
  10901 North Torrey
  Pines Road

  
	
   

  	
  La Jolla, CA 92037

  



 


9.12                           Force
Majeure.  Neither Party shall be
liable for delay in any performance or for the failure to render any
performance of its obligations under this Agreement (except for a Party’s
payment obligations under this Agreement) when such delay or failure is by
reason of any non-commercial cause or causes beyond its reasonable control,
including without limitation, acts of God, earthquake, flood, fire, epidemic,
labor controversy, civil disturbance, war or armed conflict.  The non-performing Party shall give notice to
the other Party promptly after it learns of the occurrence of said event and of
the adverse results thereof.  Such notice
shall set forth the nature and extent of the event.  The delay or failure shall not be excused
unless such notice is so given.  Anything
in this Paragraph to the contrary notwithstanding, if the non-performing Party
remains in default of a material provision of this Agreement for a period of
six (6) consecutive months by reason of any of the causes herein
described, the other Party may terminate this Agreement.


 


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9.13                           Counterparts;
Entire Agreement; Modification.  This
Agreement may be executed in counterparts, all of which taken together shall
constitute one single agreement between the Parties.  This Agreement sets forth the entire
agreement and understanding between the Parties as to the subject matter set
forth in this Agreement.  There shall be
no amendments or modifications to this Agreement, except by a written document,
which is signed by both Parties.  In the
event of any inconsistency between any of the terms and conditions of this
Agreement and the Facility User Agreement, the terms and conditions of this
Agreement shall control.


 


9.14                           Termination.


 


Except as otherwise provided herein, termination of
this Agreement shall not be construed to release either party from any
obligation hereunder which has matured prior to the date of said
termination.  Notwithstanding anything
herein to the contrary,


 


(a)                                  This
Agreement may be terminated by either Party at any time upon the giving of
thirty (30) days prior written notice to the other Party.  Written notice will be directed to the
appropriate individual named in Paragraph 9.11 (“Notices”) of this Agreement.


 


(b)                                 If
the Research Project and this Agreement are terminated pursuant to Paragraph
9.14(a), Materials received pursuant to this Agreement by a Party shall, at the
request of the other Party, be returned or properly destroyed, such destruction
shall be confirmed in writing. Any jointly developed materials may be retained
by both Parties, provided, however, that neither Party shall have any right to
distribute or transfer to any third party any jointly developed materials that
incorporate the other Party’s Materials without the other Party’s prior written
consent.  Each Party agrees to promptly
inform the other Party when an unauthorized transfer of jointly developed
materials incorporating the other Party’s Materials to a recipient has
occurred, including the name and contact information of the recipient, and to
exercise commercially reasonable efforts to inform the recipient that the
transfer was unauthorized and request immediate return of all such Materials to
COLLABORATOR or INSTITUTE, including any copies, derivatives, or progeny
thereof.


 


(c)                                  Upon
termination under this Paragraph 9.14, all expenses due to the INSTITUTE
pursuant to Section 3 (“Research Funding, Lease”) incurred prior to the
notice of termination but which have not yet been reimbursed by COLLABORATOR,
and any commitments existing at the time the notice of termination is received
shall be paid to the INSTITUTE by COLLABORATOR by the effective date of such
termination.


 


9.15                           Survival.  The provisions of Paragraphs
2 (Material Transfer), 5 (Confidentiality), 6 (Publication), 7 (Research
Project Results, Intellectual Property), 8 (Indemnification and Warranty
Disclaimer)  and 9 (Miscellaneous
Provisions) shall survive termination of this Agreement for any reason.


 


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Agreed by
Authorized Officials:


 


	
  THE BURNHAM
  INSTITUTE

  	
     ADVANCED
  CELL TECHNOLOGY, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Adrienne
  Day, Ph.D.

  	
   

  	
  By:

  	
  /s/ William
  Caldwell, IV

  	
   

  
	
   

  	
  Adrienne Day,
  Ph.D.

  	
      Name:    William
  Caldwell, IV

  
	
   

  	
  Vice President,
  Business Development

  	
      Title:      CEO

  
	
   

  	
   

  
	
   

  	
   

  
	
  Date:

  	
     May
  23, 2005

  	
   

  	
  Date:

  	
     May
  23, 2005

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  ADVANCED CELL, INC.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ William
  Caldwell, IV

  	
   

  	
   

  
	
  Name:

  	
  William
  Caldwell, IV

  	
   

  
	
  Title:

  	
  CEO

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Date:

  	
     May
  23, 2005

  	
   

  	
   

  
										



 


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