**Exhibit10.71**

 

**TERMSforNONEXCLUSIVE LICENSE AGREEMENTbetweenADVANCED CELL TECHNOLOGY, INC.and**

**IMMERGE BlOTHERAPEUTICS, INC.**

 

ThisTerm Sheet is made and entered into this 23rd day of December, 2000 (the “EffectiveDate”), by and between Advanced Cell Technology, Inc., a Delaware corporationwith offices located at One Innovation Drive, Worcester, Massachusetts 01605 (“ACT”),and Immerge BioTherapeutics, Inc., a Delaware corporation having officeslocated at Building 75, 3rd Avenue, Charlestown, MA 02129 (“IBT”) (ACT and IBT sometimeshereinafter referred to as the “parties”). As indicated below, the Universityof Massachusetts,  a public institutionof higher education of the Commonwealth of Massachusetts (the “University”),has agreed to the terms of this Term Sheet.

 

The following terms are theprincipal terms to be included in a more comprehensive written Non-ExclusiveLicense Agreement (“Agreement”) between ACT and IBT, pursuant to which ACT willnonexclusively license to IBT certain intellectual property that ACT owns orhas licensed with a sublicensable interest, and which will supercede this TermSheet. The parties agree to negotiate in good faith toward the execution of**theAgreement. The parties intend, however, to be bound by this Term Sheet, and ifthe University of Massachusetts signs this Term Sheet and an Agreement is notexecuted sixty (60) days after the signing of this Term Sheet by University ofMassachusetts, this Term Sheet shall continue in full force and effect andshall constitute the parties’ binding agreement with respect to the subjectmatter hereof. The following provisions shall also be in effect pending theexecution of the Agreement.   If theUniversity of Massachusetts does not sign this Term Sheet, and IBT is awardedthe NIST Grant described in Schedule B attached hereto, then IBT shall stillowe ACT the payments set forth hereunder in the Section entitled NIST GrantIssue.

 
| Patent Rights: |   | The patent identified on  Exhibit A attached hereto and all continuations, continuations in-part,  divisionals, and foreign filings related thereto.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   |
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|           |   | ACT hereby grants to IBT a  right of first negotiation to acquire a non-exclusive license to any* *future  patents owned by or licensed to ACT that are necessary to produce Licensed  Products (as defined below) in the Field (as defined below). In the event ACT  acquires any such patents, ACT shall notify IBT in writing of its acquisition  of such patent rights. IBT shall then have a period of thirty (30) days to  notify ACT in writing of its desire to acquire a non-exclusive license to use  such patent rights to* *develop, manufacture, use and  sell Licensed Products in the Field. If IBT so notifies ACT, then IBT and ACT  shall negotiate in good faith for not more than sixty (60) days to reach  agreement on the terms of such license. If, by the end of such sixty (60) day  period IBT and ACT have not reached agreement, ACT shall be free to enter  into such non-exclusive licenses with third parties, provided that if ACT  enters into such a non-exclusive license with a third party, ACT agrees that  it will offer IBT a similar non-exclusive license with financial terms no |

 

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|                       |   | worse than those set forth  in the agreement entered into between ACT and such other third party.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                |
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| License Grant:             |   | A non-exclusive, worldwide,  royalty-bearing license to develop, make, have made, use, sell and have sold  products (“Licensed Products”) (products, the making, using or selling of  which are covered by a valid, issued claim of a patent included in* *the  Patent Rights in the country in which the products are made, used or sold) in  the Field.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         |
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| Field:                     |   | The cloning of swine for  the sole purpose of developing, producing and selling swine-derived organs  (but excluding cells (other than associated immune cells required to induce  tolerance of the organs) and tissues) for transplantation of such organs in  humans.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          |
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| Right of First Negotiation |   | ACT hereby grants to IBT a  right of first negotiation to acquire a non-exclusive or exclusive license  under the Patent Rights to develop, manufacture, use and sell products in the  field of the cloning of swine for the sole purpose of developing, producing  and selling swine-derived tissues or cells for transplantation of such  tissues or cells in humans as follows. ACT shall notify IBT in writing of its  intention to enter* *into negotiations for such a  license with a third party. IBT shall then have a period of thirty (30) days  to notify ACT in writing of its willingness to enter into such a  non-exclusive or exclusive license. If IBT so notifies ACT, then IBT and ACT  shall negotiate in good faith for not more than sixty (60) days to reach  agreement on the terms of the license. If, by the end of such sixty (60) day  period, IBT and ACT have not reached agreement. (1) ACT shall be free to  enter such an exclusive license with a third party but only on terms more  favorable to ACT than those terms firmly offered by IBT, and (2) ACT shall be  free to enter into such non-exclusive licenses with third parties, provided  that if ACT enters into such a non-exclusive license with a third party, ACT  agrees that it will offer IBT a similar non-exclusive license with financial  terms no worse than those set forth in the agreement entered into between ACT  and such other third party. |
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| Sublicenses:               |   | IBT shall not have the  right to grant sublicenses. However, ACT agrees that the license “to have  made” or “to have sold” means that IBT may contract with third parties to  develop, manufacture or sell Licensed Products on* *behalf of  IBT.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       |
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| License Term:              |   | Until expiration of the  last-to-expire patent issued under the Patent Rights.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   |

 

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| Financial Terms:                               |   | IBT shall pay to ACT for  the license the following:                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          |
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|                                           |   | An initial license fee of  $500,000 due and payable as follows: (1) IBT shall pay to ACT $250,000 thirty  (30) days following the signing of this term sheet by University of  Massachusetts (or upon the execution of the Agreement, if earlier) such date  to be referred to as the Agreement Effective Date”; and (2) IBT shall pay to  ACT $250,000 on or before the first anniversary of the Agreement Effective  Date, provided that if the NIST grant described in Schedule B attached hereto  (the “NIST grant”) has not been awarded to IBT or it’s affiliated companies,  as evidenced by the written records of IBT, said second $250,000 fee will not  be due. The* *license fee shall be  non-refundable and is not creditable against any other payments due to ACT  hereunder or under the Agreement. |
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|                                           |   | An  earned royalty, due and payable on a calendar quarterly basis, of 3% on net  sales of Licensed Products by IBT or any party that sells the Licensed  Products on behalf of IBT, provided, however, that in the event that IBT is  legally required to make royalty payments to one or more third parties in  order to make, use or sell Licensed Products, IBT’s* *royalty payment shall be decreased by one-half of one  percent (0.5%) for each one percent (1%) of actual royalty payments made to  third parties under such required licenses. In no case, however, shall the  annual royalty due to ACT be less than 1.0% of net sales.                                                                                                                                                                                    |
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|                                           |   | In no event shall more  than one royalty be due for any Licensed Product sold by IBT or a party on  its behalf,                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               |
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|                                           |   | For purposes of this Term  Sheet or the Agreement, as applicable, “Net Sales” shall mean the amount  billed or invoiced by IBT (or any third party that sells the Licensed  Products on behalf of IBT) for the sale of Licensed Products, less (i)  discounts allowed; (ii) sales taxes, tariff duties, use and other taxes  directly imposed with reference to particular sales; (iii) amounts repaid or  credited by reason of rejection, return of goods, retroactive price reduction  or bad debt; (iv) freight, postage and insurance invoiced to the customer;  (v) third party rebates to the extent actually allowed; and (vi) liabilities  incurred resulting from any governmental (or agency thereof) mandated rebate  program, whether federal, state, municipal or local.                                              |
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| Royalty Reports, Payments,  Records and Audits |   | IBT shall submit a report  to ACT quarterly within 45 days after the end of each calendar quarter during  the term of this Term Sheet or the Agreement, as applicable, stating in each  such report the aggregate sales and payments with respect to Licensed  Products during the preceding calendar quarter and the royalty as provided  herein. Such reports shall also include a statement of                                                                                                                                                                                                                                                                                                                                                                                                                                             |

 

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|                            |   | any credits claimed during  the preceding calendar quarter. The payment of royalty amounts shall be made  concurrently with such reports. IBT shall keep full, complete, true and  accurate books of account containing all particulars relating to the  manufacture and sales with respect to Licensed Products, and any allowed  credits, which may be necessary to ascertain and verify the royalties payable  to ACT. Said books and accounts shall be kept at IBT’s principal place of  business. At the request of ACT, but not more than once in each calendar year  and provided ACT provides IBT with at least ten (10) days prior written  notice, IBT shall permit an independent certified public accountant, selected  by ACT, to have access, during regular business hours of IBT, to such records  to determine, for any calendar quarter commencing not more than two years  prior to the date of such request, the completeness and accuracy of such  books and records, and the accuracy of reports submitted to ACT and/or  payments made to ACT. If any such inspection discloses an error in any  royalty payment, IBT shall pay to ACT, within thirty (30) days of the  discovery of the error, (a) all deficiencies in royalty payments, (b)  interest on such deficiencies from the date such royalty payment was due  until the date paid at the rate equal to one and one-half percent (1 l/2%)  per month, and (c) if such error is in excess of ten percent (10%) of any  royalty payment, the cost of the audit. In all other cases, the costs of the  audit shall be paid for by ACT. All information disclosed pursuant to an  audit shall be treated as confidential information and shall not be disclosed  to any third party or used for any purpose other than to determine the  correctness of the payment |
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| NIST Grant Issue                |   | If the University of  Massachusetts does not sign this Term Sheet and IBT is awarded the NIST  grant, IBT shall pay ACT $250,000 within thirty (30) days of being awarded  the NIST grant and an additional $250,000 upon the one year anniversary of  the date IBT is awarded the NIST grant. In such situation, ACT agrees that it  will use best efforts to obtain the consent of University of Massachusetts to  a license agreement that contains terms as similar to the terms contained in  this Term Sheet as possible.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       |
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| Representations and  Warranties |   | IBT and ACT represent and  warrant that they have full corporate power and authority to enter into this  Term Sheet, that this Term Sheet constitutes the binding legal obligation of  IBT and ACT and that execution and performance of this Term Sheet or the  Agreement, as applicable, by IBT and ACT will not violate, contravene or  conflict with any other agreement to which IBT or ACT is a party or by which  it is bound or with any law, rule or regulation applicable to IBT or ACT.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    |
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| Most  Favored Licensor:         |   | IBT represents and  warrants that it and its Affiliated Companies (a corporation, company,  partnership, joint venture or other entity which controls, is* *controlled  by or is under common                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    |

 

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|                                        |   | control with another  entity) has not entered into any license or other agreement with Infigen or  any* *of its Affiliated  Companies, which is still ongoing and will not, during the term of this Term  Sheet or the Agreement enter into any license or other agreement with Infigen  or any of its Affiliated Companies that grants IBT rights under the current  patents or proprietary technology  of Infigen directed to nuclear transfer to manufacture or sell organs derived  from nuclear transfer produced swine for transplantation in humans on terms  that are more favorable on the whole to Infigen or any of its Affiliated  Companies) than the terms set forth in this Term Sheet. If IBT or any of its  Affiliated Companies enter into any such license or other agreement with  Infigen or any of its Affiliated Companies on terms that are more favorable  on the whole to Infigen than the terms set forth in this Term Sheet, then IBT  will (a) promptly notify ACT of such license, and (b) extend to ACT the terms  of the noticed license, effective as of the date (or dates) on which they  became effective in respect to the noticed license. Such extension of the  terms of the noticed license shall be effective, however, only if ACT shall,  within sixty (60) days of receipt of the notice referred to in provision (a)  above, advise IBT that it accepts all terms of the noticed license. |
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| Obligations Relating to  Commercialization: |   | IBT shall use its  commercially reasonable and diligent efforts to bring one or more Licensed  Products to market.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           |
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|                                        |   | IBT shall maintain  complete and accurate records of Licensed Products that are made, used, sold  or performed by IBT under this Agreement.   Not later than May 1st of each year beginning in 2001, IBT shall furnish ACT with a summary  report on the progress of its efforts during the prior year to develop and  commercialize Licensed Products, including without limitation research and  development efforts, efforts to obtain regulatory approval, marketing efforts  (including Licensed Products made, used, or sold) and sales figures, provided  that such reports shall be deemed confidential information subject to the  confidentiality provisions of the Agreement. If this Term Sheet becomes the Agreement,  then ACT agrees that it will not disclose to any third party (except under  confidentiality to the University of Massachusetts, to the extent required by  the Exclusive License Agreement dated as of April 16, 1996 between ACT and  the University of Massachusetts, as amended) or use for any purpose, other  than to determine diligence, the information provided to it in such reports  except as required by law. This obligation of confidentiality shall not apply  to information that is in the public domain through no act of ACT.                                                                                                                                                   |

 

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| Patents:                 |   | ACT will be responsible for* *the  filing, prosecution, maintenance and enforcement of the patents and patent  applications included in the Patent Rights. ACT will keep IBT informed on a  regular basis of the status of the Patent Rights.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              |
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|                     |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            |
|                     |   | The parties agree to  notify each other in writing of any actual or threatened infringement by a  third party of an issued patent included in the Patent Rights or of any claim  of invalidity, unenforceability, or non-infringement of an issued patent  included in the Patent Rights. ACT shall have the sole responsibility to  prosecute or defend such claims, as applicable. IBT shall if requested  provide reasonable assistance to ACT, at ACT’s expense, in connection with  the prosecution or defense of such claims.                                                                                                                                                                                                                                                                                                                                                        |
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| Indemnity and Insurance: |   | IBT will indemnify,  defend, and hold harmless ACT and its officers, directors, etc. and their  respective successors, heirs and assigns against any liability, damage, loss,  expense (including reasonable attorneys fees and expenses of litigation),  etc. incurred by or imposed upon any of the indemnified parties in connection  with any third party claims, suits, actions, demands, judgments, etc.  concerning any product, process, or service that is made, used, or sold  pursuant to any right or license granted under the Agreement except to the  extent due to the negligence or willful misconduct of any of such indemnified  parties or due to patent infringement on the part of ACT or such indemnified  parties and provided that ACT shall notify IBT promptly in writing of any  such claim and IBT shall control the defense and/or settlement of any such  claim. |
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|                     |   | IBT agrees to maintain  insurance or self-insurance that is reasonably adequate to fulfill any  potential obligation to the indemnified parties, subject to agreed upon  specified minimum levels of insurance.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 |
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| Assignment:              |   | This Term Sheet, or the  Agreement, as applicable, shall not be assignable to another party without  the prior written consent of the other party, which shall not be unreasonably  withheld, but may be assigned by ACT or IBT, without consent of the other  party to an Affiliated Company or to another party in the case of the sale or  transfer to such party of all, or substantially all, of the assets of IBT or  ACT.                                                                                                                                                                                                                                                                                                                                                                                                                                                                |
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| Termination:             |   | Either party may terminate  this Term Sheet or the Agreement, as applicable, for material breach by the  other party open written notice and a 60 day cure period. IBT shall have the  right to terminate this Term Sheet or the Agreement, as applicable, for any  reason upon sixty (60) days written notice to ACT; provided, however, that in  the event IBT so terminates this Term Sheet or the Agreement, as applicable,  prior to the one year anniversary                                                                                                                                                                                                                                                                                                                                                                                                                              |

 

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|   |   | of the Agreement Effective  Date, IBT agrees that it shall, despite such termination, pay to ACT $500,000  on the schedule outlined under Financial Terms or NIST Grant Issue, whichever  occurs first. |
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The parties further agreethat the final form of the Non-Exclusive License Agreement (the “Agreement”),and any sublicense entered into pursuant to the rights of**first negotiationdescribed herein, shall be subject to the approval of the University ofMassachusetts, with the understanding, however, that if the Agreement is notentered into, University of Massachusetts will be bound by the terms of thisTerm Sheet.

 
| Notices: |   | All notices pertaining to  this Term Sheet shall be in writing and sent certified mail, return receipt  requested, or by nationally recognized overnight carrier to the parties at  the following addresses or such other addresses as such party furnishes to  the other party in accordance with this paragraph. Such notice shall be  effective upon receipt. |
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|     |   |                                                                                                                                                                                                                                                                                                                                                             |
|     |   | For ACT:                                                                                                                                                                                                                                                                                                                                                         | Michael D. West, Ph.D. |
|     |   |                                                                                                                                                                                                                                                                                                                                                             | Advanced Cell Technology,  Inc. |
|     |   |                                                                                                                                                                                                                                                                                                                                                             | One Innovation Drive |
|     |   |                                                                                                                                                                                                                                                                                                                                                             | Worcester, MA 01605 |
|     |   |                                                                                                                                                                                                                                                                                                                                                             |
|     |   |                                                                                                                                                                                                                                                                                                                                                             |
|     |   | For IBT:                                                                                                                                                                                                                                                                                                                                                         | Julia Greenstein, Ph.D. |
|     |   |                                                                                                                                                                                                                                                                                                                                                             | Immerge BioTherapeutics,  Inc. |
|     |   |                                                                                                                                                                                                                                                                                                                                                             | Building 75 |
|     |   |                                                                                                                                                                                                                                                                                                                                                             | Third Avenue |
|     |   |                                                                                                                                                                                                                                                                                                                                                             | Charlestown, MA 02129 |

 

IN WITNESS WHEREOF, the parties have causedthis Term Sheet to be executed by their duly authorized representatives as ofthe Effective Date.

 
| ADVANCED CELL TECHNOLOGY,  INC. | IMMERGE BIOTHERAPEUTICS,  INC. |
|---------------------------------|--------------------------------|
|                            |                           |
|                            |                           |
| By:                             | /s/ Michael West               | 12-23-00 |   | By: | /s/ Julia Greenstein | 12/23/00 |   |
| Printed Name:                   | MICHAEL WEST                   |   | Printed Name: | Julia Greenstein |   |
| Its:                            | President                      |   | Its: | President and CEO |   |
|                                 |                                |  |  |  |  |  |  |  |  |  |

 

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