**Exhibit 10.67**

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**SPONSORED RESEARCH AGREEMENT**

 

This SPONSOREDRESEARCH AGREEMENT (“Agreement”) is made as of this 15th day of May, 2000 byand between ADVANCED CELL TECHNOLOGY, INC., a Delaware corporation located atOne Innovation Drive, Worcester, Massachusetts 01605 (“ACT”), and the Carl H.Lindner, Jr. Family Center for Research of Endangered Wildlife, the researchdivision of the Cincinnati Zoo and Botanical Garden, an Ohio nonprofitCorporation located at 3400 Vine Street, Cincinnati, Ohio 45220 (“CREW”)governing research to be conducted in the laboratories of CREW.

 

**EXPLANATORY STATEMENT**

 

WHEREAS, CREW is engaged in research and development of embryotransplant technology in domestic cats and wild felids; and

 

WHEREAS, ACT is engaged in the research, discovery and development ofcloning of mammals; and

 

WHEREAS, ACT possesses unique knowledge and experience in substantivefields relating to cell and molecular biology, superovulation and oocytecollection, embryo manipulation and embryo transfer, of mammals; and

 

WHEREAS, ACT is interested in developing a cloned feline; and

 

WHEREAS, ACT intends to support research of CREW involving themaintenance of research animals and procedures such as superovulation oocyterecovery, embryo transfer, gestation, delivery and rearing of newborn animals;and

 

WHEREAS, ACT desires to fund such research by CREW, and CREW desires toundertake such effort on behalf of ACT;

 

**AGREEMENT**

 

NOW, THEREFORE, in consideration of the Explanatory Statement, which ismade a substantive part hereof and which is incorporated herein by reference,and in further consideration of the mutual covenants, agreements,representations, and warranties contained in this Agreement, and other good andvaluable consideration, the adequacy and receipt of which is herebyacknowledged, ACT and CREW expressly covenant, agree, represent, and warrant asfollows:

 

**1.****             DEFINITIONS**

 

For purposes of this Agreement, the following definitions shall apply:

 

1.01         Theterm “Confidential Information” means the Project Research results, the termsand conditions of this Agreement, and any confidential or proprietaryinformation furnished

 

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by one party (the “Disclosing Party”) to the other party (the “ReceivingParty”) in connection with the performance of the Project Research, which ismarked “Confidential” or “Proprietary,” or which, under all of the givencircumstances, ought reasonably to be treated as confidential information ofthe disclosing party. Such Confidential Information may include, withoutlimitation, trade secrets, know-how, inventions, technical data orspecifications, testing methods, and research and development activities.

 

1.02         Theterm “Parties” shall mean CREW and ACT.

 

1.03         Theterm “Products, Inventions, and Know-how” shall mean any and all products, devices,inventions, processes, methods, discoveries, inventions, know-how, techniques, improvements(including derivatives or analogues), and/or commercially useful research productsor processes, including, but not limited to, materials, whether patentable or unpatentable,whether trade secrets or susceptible to copyright or other forms of protection,that are conceived, made, reduced to practice, and/or developed by CREW as aresult of, or related to, the Project Research performed during the ResearchTerm (including any extensions) and for a period of six (6) monthsthereafter.

 

1.04         Theterm “Project Funds” shall mean those funds paid by ACT to CREW to conduct the ProjectResearch in accordance with this Agreement.

 

1.05         Theterm “Project Research” shall mean the research that CREW agrees to performunder the terms and conditions of this Agreement described more fully in theresearch plan contained in Attachment A, which is incorporated herein byreference and made part of this Agreement, and such modifications of AttachmentA as may be mutually agreed upon in writing by duly authorizedrepresentatives of ACT and CREW.

 

1.06         Theterm “Project Team” shall mean the scientists and research technicians who are supportedin whole or in part by the Project Funds and/or who are participating in the ProjectResearch.

 

1.07         Theterm “Research Term” shall mean the period commencing on May 15, 2000 and terminatingon November 1, 2000 or such earlier date as the Project Research is completed.The Research Term may be extended by the mutual written consent of the dulyauthorized representatives of CREW and ACT.

 

1.08         Otherterms may be defined in particular sections throughout this Agreement andExhibits or Attachments.

 

**2.****             RESEARCHAND REPORTS**

 

2.01**         Conduct of Research**. During the Research Term, CREW shall conduct the ProjectResearch on behalf of ACT in accordance with this Agreement. The ProjectResearch shall commence promptly by May 15, 2000 and all reasonableefforts shall be made to complete it by November 1, 2000.

 

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2.02         **Periodic Meetings.** During the Research Term, and upon thedelivery of the final research report, representatives of ACT and CREW shallmeet from time to time to discuss the planning and progress of the ProjectResearch.

 

2.03         **Research Reports.** CREW shall promptly and continually adviseACT of the results of the Project Research and, at monthly intervals during theResearch Term, provide ACT with written progress reports concerning the ProjectResearch. A final written research report setting forth the results achievedunder and pursuant to the Project Research shall be submitted by CREW to ACTwithin sixty (60) days after the termination of the Project Research. Suchfinal research report shall include a complete summary of the research carriedout and detailed experimental protocols of the research performed in the courseof the Project Research.

 

2.04         **Copies of Data.** CREW shall, throughout the term of thisAgreement and upon delivering the final research report, provide to ACT copiesof all data and other information generated by or on behalf of the Project Termpursuant to this Agreement, including without limitation, all raw data obtainedas a result of studied conducted in the course of Project Research and allexperimental procedures developed under the Project Research in sufficientwritten detail to permit ACT’s personnel to employ such procedures in their ownresearch. ACT shall have full access to all such data and records of CREW andits Project Team. CREW shall maintain copies of all such data and other informationfor at least five (5) years following the termination of the Research Termand shall permit ACT continued access.

 

2.05         **Principal Research Scientists.** The Research at CREW will beconducted by and under the direction of principal research scientists, who, asof the date of this Agreement, shall be Dr. Bill Swanson and Dr. TerriRoth (the “Principal Research Scientists”). During the Research Term, neitherof the Principal Research Scientists will serve as a principal researchscientist for, or participate as a key researcher in, any research, at CREW, orelsewhere, that has the goals of the Project Research, i.e., primarily, toproduce cloned felines by transferring reconstructed embryos into recipientfemales. In the event that either of the Principal Research Scientists are nolonger available or able to continue direction of the Project Research, CREWshall promptly notify ACT and CREW may nominate a replacement satisfactory toACT; if CREW does not nominate a replacement within thirty (30) days or if thatreplacement is unsatisfactory to ACT in its sole discretion, ACT mayimmediately terminate funding of the Project Research, but retain those rightsset forth in Section 7 hereof.

 

2.06         **Qualified Support.** CREW has or has arranged for, and shallmaintain, qualified laboratory, technical, veterinary, clerical, and otherpersonnel that are necessary and desirable to support CREW’s obligations underthis Agreement. CREW will ensure that all personnel supporting CREW’sobligations under this Agreement will adhere to the research plan attachedhereto as Attachment A.

 

2.07         **Use of Funds.** CREW shall use the funds provided under Section 5in support of activities by the principal research scientist and the ProjectTeam in support of the Project

 

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Research. During the Research Term, CREW shall not use funds providedby a commercial entity, other than ACT to support either (a) the principalresearch scientist’s and the Project Team’s activities under this Agreement or (b) activitiesof the principal research scientist and/or the Project Team within the scope ofthe Project Research. CREW has prepared an initial budget to guide CREW’sexpenditures for its research activities during the Research Term. This budgethas been approved by ACT as part of the research plan and has been made a partof Attachment A. If the Research Term is extended, CREW shall preparebudgets consistent with the then agreed upon research plan which shall besubmitted to, and reviewed and approved by, ACT and incorporated in the updatedresearch plans. Title to any equipment purchased by CREW with Project Funds maybe retained by CREW.

 

2.08         **Compliance with Law.** CREW agrees that all studies, research,and testing done by, or on behalf of, ACT under this Agreement shall beperformed in strict compliance with all applicable laws, rules, and regulationsgoverning the conduct of studies, research, and testing at the site where suchstudies, research, and testing are being conducted.

 

2.09         **Acknowledgement of Risks Associated Project Research.** CREWand ACT understand and acknowledge that the Project Research is experimental,that its characteristics and functionality are not fully understood, and thatthere may be substantial risks associated with the unknown properties of theproducts of the Project Research or any other scientific materials.

 

**3.****            ****CONCURRENT RESEARCH**

 

3.01         ACTacknowledges that CREW conducts, and will continue to conduct, research intocertain aspects of feline biology for the benefit of third parties, the subjectmatter of which is not directly related or relevant to the subject matter ofthe Project Research (the “Concurrent Research”). In order to clarify the relationshipof the Concurrent Research to the Project Research, ACT specificallyacknowledges and agrees with respect to the Concurrent Research:

 

(a)   thefindings from the Concurrent Research may incorporate data from specimens thatare involved in the Project Research;

 

(b)   thefindings from the Concurrent Research shall not be deemed results of the ProjectResearch or “Confidential Information” as defined in Section 1.01 of the Agreement;

 

(c)   anyand all products, inventions, and know-how derived from the Concurrent Researchshall not be deemed “Products, Inventions, and Know-how” as defined in Section 1.03of the Agreement;

 

(d)   thePrincipal Research Scientists shall be specifically permitted (without limitationof any existing rights) to serve as the principal research scientists for, or

 

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participate as a key researcher in, the Concurrent Research(notwithstanding any contrary implication of Section 2.05 of theAgreement);

 

(e)   CREWshall be permitted to receive and use third party materials for the ConcurrentResearch (notwithstanding any contrary implication of Section 3.02); and

 

(f)    ACThas no rights with respect to publication of the findings of the Concurrent Researchor the development of intellectual property from the Concurrent Research

 

**4.****             MATERIALS**

 

4.01         **Delivery of Embryos and Other Research Materials.** ACT, atits sole cost and expense, shall provide CREW with reconstructed embryos asdescribed in the research plan described in Attachment A promptly after thesigning of this Agreement and, thereafter to the extent necessary for CREW topursue the Project Research, shall use reasonable and diligent efforts tosupply CREW such reasonable quantities and types of materials (including celllines) in ACT’s possession and control as ACT agrees are required to carry outthe Project Research. Any embryos and other research materials delivered toCREW or its principal research scientist shall remain the property of ACT. UnlessACT shall otherwise give its prior written consent, CREW and its Project Team shallnot use the embryos or other research materials for any purposes other than to conduct(a) the Project Research during the Research Term and (b) followingthe expiration of the Research Term, such other activities as are expresslypermitted under this Agreement; i.e., the use of the embryos andresearch materials to prepare the final research report required by Section 2.03.Any other uses of the embryos or research materials by CREW and its Project Teamshall be strictly prohibited. In no event, without ACT’s prior written consent,may CREW provide any such embryos or materials to any other persons or entities.

 

4.02         **Third Party Materials.** CREW shall not use, or acquire foruse, any third party materials, directly or indirectly, in any Project Researchif the use of such materials would provide such third party with any rights inany Products, Inventions, and Know-how.

 

**5.****             TECHNICALASSISTANCE BY ACT**

 

5.01         ACT’sPresident and Chief Executive Officer (Michael D. West, Ph.D.), its Vice Presidentof Research (Jose Cibelli, Ph.D.), or other appropriate scientific officer, andother designated representatives may, from time-to-time, consult with CREW’sprincipal research scientist regarding the performance of the Project Research.In addition, during the course of the Project Research, CREW shall permitpersons designated by ACT to be present as observers while various researchexperiments, tests, inspections, and other work hereunder is being conducted.It is expressly understood that such persons, whether

 

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ACT’semployees or not, shall not have any supervisory powers over CREW’s principalresearch scientist or other members of the Project Team and that, in allrespects, the performance of the Project Research shall be the obligation ofCREW.

 

**6.****             PAYMENTS**

 

6.01         (a)           Inconsideration of the undertaking of the Project Research by CREW, unless this Agreementis sooner terminated as provided herein, ACT shall make the payments to CREW inthe amounts listed in Attachment A in accordance with the payment schedule setforth in Attachment A.

 

(b)           If the Project Researchhas not been completed by June 2, 2000, CREW shall submit to ACT for itscomment and approval a supplemental research plan. ACT shall provide itscomments within ten (10) days from receipt of CREW’s plan and the partiesshall mutually agree on the final, approved plan. Such approved plan shall beattached and made a part thereof.

 

6.02         **Addressee.** Payments under this Agreement shall be made bycheck payable to:

 

| Name on  check: |   |
|-----------------|--------|
| Tax ID#:        |   |
| Address:        |   |

 

**7.****             CONFIDENTIALINFORMATION AND PUBLICATIONS**

 

7.01         **Obligations.** During the term of this Agreement andthereafter, the Receiving Party shall (i) maintain all ConfidentialInformation in strict confidence, except that the Receiving Party may discloseor permit the disclosure of any Confidential Information to its directors,officers, employees, consultants, attorneys and advisors who are obligated to maintainthe confidential nature of such Confidential Information and who need to know suchConfidential Information for the performance of, or as a necessary incident tothe performance of, the Project Research; (ii) implement reasonableprocedures to prohibit the disclosure, unauthorized duplication, misuse orremoval of the other party’s Confidential Information; (iii) use allConfidential Information solely for the performance of the Project Research;and (iv) allow its directors, officers, employees, consultants, attorneysand advisors to reproduce the Confidential Information only to the extent necessaryfor the performance of the Project Research, with all such reproductions being consideredConfidential Information. Without limiting the foregoing, each of the parties shallprotect the Confidential Information using at least the same procedures anddegree of care that it uses to prevent the disclosure of its own confidentialinformation of like importance, but in no event less than reasonable care.Except as expressly provided in this Agreement, no ownership or license rightis granted in any Confidential Information.

 

7.02         **Exceptions.** The obligations of the Receiving Party under Section 7.01above shall not apply to the extent that the Receiving Party can demonstratethat certain Confidential Information (i) was in the public domain priorto the time of its disclosure under this Agreement; (ii) entered thepublic domain after the time of its disclosure under this

 

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Agreement through means other than an unauthorized disclosure resultingfrom an act or omission by the Receiving Party; (iii) was independentlydeveloped or discovered by the Receiving Party without use of the ConfidentialInformation; (iv) is or was disclosed to the Receiving Party at any time,whether prior to or after the time of its disclosure under this Agreement, by athird party having no fiduciary relationship with the Disclosing Party andhaving no obligation of confidentiality with respect to such ConfidentialInformation; or (v) is required to be disclosed to comply with applicablelaws or regulations, or with a court or administrative order, provided that theDisclosing Party receives reasonable prior written notice of such disclosure.Additionally, ACT shall have the right to disclose the existence and the termsof this Agreement without the consent of CREW in any prospectus, offeringmemorandum, or other document or filing required by applicable securities lawsor other applicable law or regulation, provided that ACT shall have given CREWat least ten (10) days prior written notice of the proposed text for thepurpose of giving CREW the opportunity to comment on such text.

 

7.03         **Ownership and Return.** The Receiving Party acknowledges thatthe Disclosing Party (or any third party entrusting its own information to theDisclosing Party) claims ownership of its Confidential Information in thepossession of the Receiving Party. Upon the expiration or termination of thisAgreement, or at the request of the Disclosing Party at any time, the ReceivingParty shall return to the Disclosing Party all originals, copies, and summariesof documents, materials, and other tangible manifestations of Confidential Informationin the possession or control of the Receiving Party, except that the Receiving Partymay retain one copy of the Confidential Information in the possession of itslegal counsel solely for the purpose of monitoring its obligations under thisAgreement.

 

7.04         **Relief.** The Parties acknowledge and agree that any breach ofthe confidentiality obligations imposed herein will constitute immediate andirreparable harm to the party disclosing the Confidential Information and/orits successors and assigns, which cannot adequately and fully be compensated bymoney damages and will warrant, in addition to all other rights and remediesafforded by law, injunctive relief, specific performance and/or other equitablerelief. The disclosing party’s rights and remedies hereunder are cumulative andnot exclusive. The disclosing party shall also be entitled to receive from thereceiving party the costs of enforcing this paragraph, including reasonableattorneys’ fees.

 

7.05         **Publications.** During the term of this Agreement, ACT andCREW each acknowledge the other party’s interest in publishing certain of itsresults to obtain recognition within the scientific community and to advancethe state of scientific knowledge. Each party also recognizes the mutualinterest in obtaining valid patent protection and maintaining as confidentialany nonpatentable materials or methods which would have commercial value whenundisclosed. Consequently, either party, its employees or consultants wishingto make a publication (including any oral disclosure made without obligation ofconfidentiality) relating to work performed by such party as part of theProject research (the Publishing Party) shall transmit to the other party (theReviewing Party) a copy of the proposed written publication at least sixty (60)days prior to submission for publication, or an outline of such oral disclosureat least thirty (30) days prior to

 

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presentation.The Reviewing Party shall have the right (a) to propose modifications tothe publication for patent or other reasons; and (b) to request a delay inpublication in order to protect patentable information. If the Reviewing Partyrequests such a delay, the Publishing Party shall delay submission orpresentation of the publication for a period of ninety (90) days to enablepatent applications protecting each party’s rights in such information to befiled in accordance with Article 8 below. If the Reviewing Partyreasonably claims that such information, whether or not patentable, may havesignificant commercial value and can be maintained as a trade secret, thePublishing Party shall publish or disclose only such information which wouldnot adversely affect such commercial value. Upon the expiration of sixty (60)days or thirty (30) days from transmission to the Reviewing Party, thePublishing Party shall be free to proceed with the written publication or thepresentation, respectively, unless the Reviewing Party has requested the delaydescribed above. The Parties expressly agree that research grant proposalssubmitted to governmental authorities or non-profit organizations shall not besubject to review under this Section. ACT and CREW agree to recognize eachother in any publications arising out of the Project Research, as appropriate.

 

**8.****            ****INTELLECTUAL PROPERTY AND OFFSPRING**

 

8.01         (a)  **ACTTechnology.** All (i) technology, inventions, trade secrets,know-how, intellectual property, methods, materials, research, techniques orother confidential or proprietary information relating to ACT’s process for thegenetic manipulation and/or modification of cells and the procedures forproducing cloned embryos, (ii) cell lines, organisms or other materialswhich are produced by or incorporate such ACT process, and (iii) modifications,enhancements or improvements to any of the foregoing by ACT (hereinafter the “ACTTechnology”), shall be the sole and exclusive property of ACT. All U.S. andforeign intellectual property rights, including all patent rights and rights topatent applications, relating to the ACT Technology, shall be the sole andexclusive property of ACT.

 

(b)  **CREW Technology.**All (i) technology, inventions, trade secrets, know-how, intellectualproperty, methods, materials, research, techniques or other confidential or proprietaryinformation relating to CREW’s embryo transfer technology, (ii) celllines, organisms or other materials which are produced by or incorporate suchCREW technology, and (iii) modifications, enhancements or improvements toany of the foregoing by CREW (hereinafter the “CREW Technology”), shall be the soleand exclusive property of CREW. All U.S. and foreign intellectual propertyrights, including all patent rights and rights to patent applications, relatingto the CREW Technology, shall be the sole and exclusive property of CREW.

 

(c)  **Joint Discoveries.**In the event that CREW and ACT jointly discover any Products, Inventions, andKnow-how during the term of this Agreement (a “Joint Discovery”), and theparties mutually agree to patent the Joint Discovery, the Parties will jointlyown such Joint Discovery and shall share patent filing, prosecution andmaintenance expenses equally. In the event that one party elects not to jointlypatent the Joint Discovery, the other party shall be free to do so and thefiling party shall pay all expenses associated

 

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with filing, prosecuting, or maintaining the patent application andpatent, and the other party shall fully cooperate, in good faith, with thefiling party.

 

(d)  **CREW Discoveries.**Any Products, Inventions, and Know-how independently discovered by CREW duringthe term of this Agreement (a “CREW Discovery”) shall be owned by CREW. CREWshall promptly disclose such CREW Discoveries to ACT. CREW hereby grants to ACTa first option to obtain an exclusive, worldwide license to any CREWDiscoveries (the “License Option”). ACT may exercise the License Option uponwritten notice to CREW within ninety (90) days after the disclosure of theparticular CREW Discovery to ACT. In the event ACT exercises the LicenseOption, ACT and CREW shall attempt to negotiate in good faith a licenseagreement containing commercially reasonable terms consistent with industrystandards. If the parties are unable to reach agreement within ninety (90) daysafter the date upon which ACT exercised the License Option (the “NegotiationPeriod”), then CREW will be free to offer such rights to third parties;provided, however, that for a period of one (1) year after the NegotiationPeriod, CREW may only offer such rights to third parties on terms which in theaggregate are no more favorable than those last offered to ACT, unless the morefavorable terms have first been offered in writing to ACT and either (i) ACThas declined in writing to accept such terms or (ii) ACT has not respondedafter a period of thirty (30) days from the date of such offer.

 

8.02         **Responsibility for Patents.** ACT shall have primary responsibility, at its own expense, for thepreparation, filing, prosecution, and maintenance of all patents and patent applicationsderived from the ACT Technology. Title to all such patents and patent applicationsshall reside with ACT. CREW shall have primary responsibility, at its own expense,for the preparation, filing, prosecution, and maintenance of all patents and patentapplications derived from the CREW Technology. Title to all such patents and patentapplications shall reside with CREW. ACT shall have full and complete control overall ACT Technology matters, and CREW shall have full and complete control over allCREW. Technology matters. The parties shall cooperate in determining the responsibilityfor the preparation, filing, prosecution, and maintenance of all patents and patentapplications derived from Joint Discoveries.

 

8.03         **Prompt Disclosure.**CREW shall promptly disclose to ACT, in writing and on a confidential basis,all Products, Inventions, and Know-how and regularly advise ACT of potentiallypatentable or unpatentable technology, inventions, know-how, ideas, and the like.CREW will cause its Principal Research Scientist and other past and current membersof the Project Team to work closely with ACT to determine which aspects of theProject Research may be patentable.

 

8.04         **Project Team Cooperation.**In the event that any Products,Inventions, and Know-how arise as a result of any of the work done by employeesof CREW and/or its Principal Research Scientist and the members of the ProjectTeam during the Research Term and for a period of six (6) monthsthereafter, CREW shall require and shall require all such persons to agree inwriting to communicate to CREW any facts known to its Principal ResearchScientist or the members of the Project Team related to the Project Research or

 

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to testify in any legal proceedings, sign all applications for patents,as well as all divisionals, continuations, reissues and foreign applicationsthereon, to make all rightful oaths, and generally, to do everything reasonablyrequired to assist ACT in obtaining and enforcing proper protection for suchrights in all countries.

 

8.05         **Other Filings.** ACT shall also have theresponsibility for filing all applications which may be required by health orregulatory authorities relating to the products arising from the ProjectResearch including, without limitation, filing any application with the U.S. Departmentof Agriculture (“USDA”) or the Food and Drug Administration (“FDA”). All costsand expenses associated with such filings shall be borne solely by ACT. ACT shallown all right, title, and interest in USDA, FDA or other regulatory approvalsthat are obtained by or on behalf of ACT.

 

8.06         **Scientist Cooperation.** CREW, its employees, its PrincipalResearch Scientist, and other members of the Research Team shall fully assistACT with respect to any filings that may be required by appropriate health orregulator authorities and shall execute any documentation required with respectto such filings.

 

8.07         **Offspring.** All offspring resulting from the Project Researchshall be owned as follows. Litters of offspring produced from cell lines ownedor provided by ACT shall be owned by ACT. Litters of offspring produced fromcell lines owned or provided by CREW shall be owned by CREW. In the event thatthe only offspring produced are from cell lines owned or provided by ACT, ACT shallprovide CREW with at least one of such offspring. However, if only one suchoffspring is produced, it shall be owned by ACT, but ACT may in its discretiondonate such offspring to the Cincinnati Zoo and Botanical Garden.

 

**9.****             TERMINATION**

 

9.01         **Termination at Expiration of Research Term.** Unlesspreviously terminated pursuant to Sections 9.02, 9.03 or extended by the mutualwritten consent of the duly authorized representatives of ACT and CREW, thisAgreement shall terminate upon the expiration of the Research Term andsubmission of the final written research report required by Section 2.03hereof.

 

9.02         **“With Cause” Termination.** ACT may terminate this Agreementat any time for cause upon ten (10) business days prior written notice toCREW. “Cause” shall include (a) material breach of this Agreement by CREW wheresuch breach, if curable, is not remedied to ACT’s reasonable satisfactionwithin such ten (10) business day period, or (b) the voluntary orinvoluntary termination of CREW’s relationship with, or the physical or mentalincapacity of, both of its Principal Research Scientist.

 

9.04         **Termination for Failure to Pay.** CREW may terminate thisAgreement only in the event ACT fails to make payments as set forth in Section 6hereof and fails to cure such nonpayment following receipt of the requiredwritten notice and thirty (30) business day cure period.

 

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9.05         **Survivability of Certain Provisions.** Notwithstanding anytermination of this Agreement, the obligations of the Parties under Sections2.03, 2.04, 4, 7, 8, 10 and 11, as well as under any other provisions which bytheir nature are intended to survive any such termination, shall survive thetermination of this Agreement and continue to be enforceable. All payments dueunder Section 6 up to the date of termination shall be made.

 

**10.****          REPRESENTATIONSAND WARRANTIES**

 

10.01       **No Conflict.** Each party warrants and represents to the otherthat it has the legal rights and power to enter into this Agreement and to extendthe rights and licenses granted to the other in this Agreement, that theexecution of, and performance of the efforts contemplated by, this Agreementwill not conflict with or result in any breach of any of the terms, conditions,or provisions of, or constitute a default under, any agreement to which it is aparty or by which it is bound, and that any necessary or appropriate consents orapprovals have been obtained. Each party further represents to the other thatit is not aware of any legal obstacles, including patent rights of others,which could prevent either party from carrying out the provisions of thisAgreement. During the Research Term, CREW and ACT shall not enter into anycollaboration or other agreement arrangement, take any action, or fail to takeany action that would cause those representations and warranties to bebreached.

 

10.02       **Absence of Warranty for Merchantability and Fitness of ProjectResearch.** CREW makes no representations or warranties, express orimplied, concerning the merchantability, or fitness for a particular purpose,of the Project Research or results.

 

10.03       **Absence of Warranty for Merchantability and Fitness of ResearchMaterials.** The materials furnished to CREW by ACT under Section 4of this Agreement are provided for experimental purposes and may have hazardousproperties. ACT MAKES NO REPRESENTATIONS, AND EXTENDS NO WARRANTIES OF ANYKIND, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO ANY SUCH MATERIALS. THERE ARENO EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULARPURPOSE, OR THAT THE USE OF THE MATERIALS WILL NOT INFRINGE ANY PATENT RIGHTSOR OTHER PROPRIETARY RIGHTS OF A THIRD PARTY.

 

10.03       **Existence.** ACT and CREW each represents to the other that itis duly incorporated or organized and validly existing as a corporation, or anOhio nonprofit corporation in the case of CREW, in good standing under the lawsof its jurisdiction.

 

10.04       **Patent Rights.** Patent Validity. Nothing in this Agreementshall be construed as a warranty or representation by either party as to thevalidity or scope of any Patent Rights.

 

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10.05       **Concurrent Research.** CREW represents and warrants that theConcurrent Research is not directly related to or relevant to the Project Researchor the subject matter of the Project Research.

 

**11.****          INDEMNIFICATION ANDLIMITATION OF LIABILITY**

 

11.1         **Indemnification by ACT.** ACT agrees, upon receipt of promptnotice and opportunity to defend, to indemnify and hold CREW harmless, andhereby forever releases and discharges CREW from and against any and all thirdparty claims, demands, liabilities, damages, and expenses (including attorney’sfees) arising out of a breach by ACT of any of its obligations, representationsor warranties hereunder or the negligence of ACT in connection with the workperformed during the Project Research.

 

11.2         **Indemnification by CREW.** CREW agrees, upon receipt of promptnotice and opportunity to defend, to indemnify and hold ACT harmless, andhereby forever releases and discharges ACT from and against any and all thirdparty claims, demands, liabilities, damages, and expenses (including attorney’sfees) arising out of a breach by CREW of any of its obligations,representations or warranties hereunder or the negligence of CREW in connectionwith the work performed during the Project Research.

 

11.3         **Indemnification Claims.** Each party shall give the otherparty prompt notice of any claim for which indemnification under this Section 11is or may be applicable and will cooperate with the indemnifying party in thedefense or settlement of such claim at the indemnifying party’s expense. Theindemnifying party shall be required to provide and be entitled to control thedefense of any claim covered hereunder (including the right to settle it at thesole discretion of the indemnifying party) with counsel reasonably satisfactoryto the other party which may, at its own expense, participate in the defense ofany claim after the indemnifying party assumes control of the defense thereof.The indemnification obligations in this Section 11 shall not apply toamounts paid in settlement of such claim if such settlement is effected withoutthe consent of the indemnifying party, which consent shall not be unreasonablywithheld or delayed. The failure of the indemnified party to deliver notice tothe indemnifying party promptly after the commencement of any such action, ifprejudicial to the indemnifying party’s ability to defend such action, shallrelieve the indemnifying party of any liability to the indemnified party underthis Section 11, but the failure to promptly deliver notice to theindemnifying party will not relieve it of any liability that it may have to theindemnified party other than under this Section 11.

 

11.4**         LIMITATIONOF LIABILITY.** EXCEPT FOR ANY LIABILITY UNDER SECTIONS 7 (CONFIDENTIALITY)AND 11 (INDEMNIFICATION), IN NO EVENT SHALL EITHER PARTY (OR ITS SHAREHOLDERS,DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS) BE LIABLE FOR ANY SPECIAL, INDIRECT,RELIANCE, INCIDENTAL, EXEMPLARY, PUNITIVE, COVER, OR CONSEQUENTIAL DAMAGES,INCLUDING LOSS OF PROFITS AND GOODWILL, EVEN IF SUCH PARTY HAS BEEN ADVISED OFTHE POSSIBILITY OF SUCH DAMAGES, REGARDLESS OF THE THEORY OF LIABILITY.

 

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**12.****          MISCELLANEOUS**

 

12.01       **Publicity Restrictions/Press Releases.** CREW shall not usethe name of ACT or any of its officers, directors, employees, or agents, or anyadaptation of such names, or any terms of this Agreement in any promotionalmaterial or other public announcement or disclosure without the prior writtenconsent of ACT. Any press release relating to this Agreement or the ProjectResearch may be released only upon the prior written approval of the Parties asto content, accuracy and timing.

 

12.02       **Notice to Other Investigators.** The Principal Research Scientists shall furnish all investigatorsinvolved in the Project Research, including faculty, staff, students, post-doctoralfellows and employees, with written notice of their obligations hereunder.

 

12.03       **Governing Law.** The obligations and rights of the Partiesunder this Agreement shall be governed by the laws from time to time enforcedin the Commonwealth of Massachusetts, without regard to principles of conflictsof law. Any controversy or claim arising out of or relating to this contract,or the breach thereof, shall be settled by arbitration at a location mutuallyagreed upon by the parties in accordance with the Commercial Arbitration Rules ofthe American Arbitration Association, and judgment upon the award rendered bythe Arbitrator(s) may be entered in any Court having jurisdiction thereof. Notwithstandingthe foregoing, claims for preliminary injunctive relief or other pre-judgmentremedies may be brought in a state or federal court in the United States withjurisdiction over the subject matter and parties.

 

12.04       **Severability.** If any one or more of the provisions of thisAgreement shall be held to be invalid, illegal, or unenforceable, the validity,legality, or enforceability of the remaining provisions of this Agreement shallnot in any way be affected or impaired thereby.

 

12.05       **Waiver.** The failure of any Party hereto to insist uponstrict performance of any provision of this Agreement or to exercise any righthereunder will not constitute a waiver of that provision or right.

 

12.06       **Notices.** Any notice, communication, or approval required orpermitted to be given or made under this Agreement by one of the Parties to theother shall be in writing and shall be deemed to have been sufficiently given ormade for all purposes if either (a) mailed by certified mail, postageprepaid or (b) sent by nationally recognized international delivery service,if addressed to such other Party at its respective address, as follows:

 

If to CREW:

 

Carl H. Lindner, Jr. Family Center forResearch of Endangered Wildlife

Cincinnati Zoo and Botanical Garden

3400 Vine Street

Cincinnati, Ohio 45220

Attention: Bill Swanson, Ph.D.

 

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If to ACT:

 

Advanced Cell Technology, Inc.

One Innovation Drive

Worcester, Massachusetts 01605

Attention: Jose Cibelli, Ph.D.

 

12.07       **Assignment.** This Agreement may be assigned by ACT providedthat any assignee shall assume all rights and duties of ACT hereunder. ThisAgreement may not be assigned or delegated by CREW.

 

12.08       **Import/Export.** CREW shall comply fully with any and allapplicable local, state, federal and international laws and regulationsrelating to the Products, Inventions, and Know-how, including withoutlimitation all export or import regulations and rules now in effect or asmay be issued from time to time by any governmental authority which hasjurisdiction relating to the export of technology relating to the Products,Inventions, and Know-how.

 

12.09       **Independent Contractors.**ACT and CREW each shall, at alltimes, act as independent parties and nothing contained in this Agreement shallbe construed or implied to create an agency or partnership. No Party shall havethe authority to contract or incur expenses on behalf of the other, except asmay be expressly authorize by ancillary agreements. CREW’s principal researchscientist and members of the Project Team shall not be deemed to be employeesof ACT.

 

12.10       **Force Majeure.** Neither party shall be in default of itsobligations hereunder to the extent that its performance is delayed orprevented by causes beyond its control, including but not limited to, acts ofGod and interruptions in telecommunication services.

 

12.11       **Headings.** Headings used in this Agreement are forconvenience only and shall not be considered in construing or interpreting thisAgreement.

 

12.12       **Entire Agreement.** The terms and conditions herein constitutethe entire agreement between the Parties and shall supersede all previousagreements, proposed term sheets, and discussions, either oral or written,between the Parties with respect to the subject matter of this Agreement. Noamendment, alteration, or modification of this Agreement or any attachments tothis Agreement shall be valid unless executed in writing by authorizedsignatories of the Parties.

 

[The Remainder of this Page Has BeenIntentionally Left Blank]

 

 

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IN WITNESS WHEREOF, ACT andCREW have caused this Agreement to be executed in duplicate counterpartoriginals by their duly authorized officers to be effective as of the datefirst written above.

 
| THE CARL H. LINDNER, JR.   | ADVANCED CELL TECHNOLOGY,  INC. |
|----------------------------|---------------------------------|
| FAMILY CENTER FOR RESEARCH |
| OF ENDANGERED WILDLIFE,    |
| THE RESEARCH DIVISION OF   |
| THE CINCINNATI ZOO AND     |
| BOTANICAL GARDEN           |

 

 
| By:    | /s/ Terri L. Roth    |   | By:          | /s/ Jose Cibelli |   |
|--------|----------------------|--------|--------------|------------------|--------|
| Name:  | Terri L. Roth, Ph.D. | Name:  | Jose Cibelli |
| Title: | Director of Research | Title: | VP Research  |
|        |                      |        |              |                  |        |  |  |  |

 

 

Ihereby acknowledge and agree to the terms of Sections 2, 6 and 7 andSubsections 11.02 of this Agreement, and I reaffirm that I will assign to CREWall of my right, title, and interest in any CREW Discoveries.

 
| ACKNOWLEDGED AND AGREED:      |
|-------------------------------|
|                          |
|                          |
| /s/ Bill Swanson              |   |
| Dr. Bill Swanson         |
| Principal Research  Scientist |
|                          |
|                          |
| /s/ Terri Roth                |   |
| Dr. Terri Roth           |
| Principal Research  Scientist |

 

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