**Exhibit 10.2**

 

**RESEARCH COLLABORATION AGREEMENT**

 

This ResearchCollaboration Agreement (“Agreement”) is made as **of May 23,2005** (the “Effective Date”), by and between **The BurnhamInstitute**, a California 501(c)(3) corporation with offices at10901 North Torrey Pines Road, La Jolla, CA 92037 (hereinafter, “INSTITUTE”),and **Advanced Cell Technology****, Inc.**, a Nevada corporation doing business at 11100Santa Monica Boulevard, Suite 850, Los Angeles, CA 90025 (“ACT”) and **Advanced Cell, Inc.,** a Delawarecorporation doing business at 381 Plantation Street, Worcester, MA 01605 (“AdvancedCell”) (ACT and Advanced Cell hereinafter referred to collectively as “COLLABORATOR”).  INSTITUTE or COLLABORATOR may each bereferred to herein singularly as a “Party” or collectively as “Parties” to thisAgreement.

 

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

 

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

 

WHEREAS, INSTITUTEintends to conduct the study **“Mapping StemCell-Specific Differentiation Markers”** in cooperation withCOLLABORATOR;

 

WHEREAS, COLLABORATORwishes to be involved in the Research Project,  has biological and other research materialsdescribed herein and has associated know-how and documentation, which may beuseful in the Research Project;

 

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

 

WHEREAS, Dr. ErkkiRuoslahti will coordinate the Research Project for the INSTITUTE, and DavidLarocca is designated to coordinate all interests of COLLABORATOR in theResearch Project;

 

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

 

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

 

NOW, THEREFORE, theParties agree as follows:

 

# 1.                                       RESEARCHCOLLABORATION

#  

1.1                                 TheAgreement, Statements of Work and Research Projects.  COLLABORATOR and INSTITUTE desire toundertake collaborative research activities in the

 

1

----

 

field ofMapping Stem Cell-Specific Differentiation Markers as described in theStatement of Work attached hereto as Attachment A, which isincorporated herein by reference, or in such other Statements of Work as may bemutually agreed upon by the parties (the research or other activities describedin the Statements of Work are referred to herein as the “Research Project”).  The Statements of Work, each of which shallspecifically refer to this Agreement and be signed by the duly authorizedrepresentatives of the parties, shall at a minimum include a description of theResearch Project, INSTITUTE Materials or COLLABORATOR Materials, as applicable(as defined below) to be used in connection with the Research Project, the timefor performing and completing the Research Project, and the respectivecontributions of COLLABORATOR and INSTITUTE to the Research Project.  If there is any difference between the termsand conditions of any Statement of Work and the terms and conditions of thisAgreement, the terms and conditions of this Agreement shall control.  The Research Project, as described in theStatements of Work shall not exceed the scope of work set forth on theapplicable Statement of Work, provided that the INSTITUTE PrincipalInvestigator (identified below) and the COLLABORATOR Principal Investigator(identified below) may agree to modifications of the Statement of Work that donot alter its scope, as they believe appropriate.  Any significant changes to a Statement ofWork must be in writing and must be approved by COLLABORATOR and INSTITUTE.

 

1.2                                 PrincipalInvestigators. The Research Project shall be conducted under the guidance ofthe INSTITUTE Principal Investigator, Dr. Erkki Ruoslahti, and theCOLLABORATOR Principal Investigator, Dr. David Larocca. 

 

1.3                                 Performanceof Research Project.  Unlessotherwise agreed in a Statement of Work, the Research Project, as described inthe applicable Statement of Work, shall be conducted at and coordinated fromthe facilities of INSTITUTE, including from the lab and office space leased byCOLLABORATOR as contemplated in Section 3 of this Agreement, under thesupervision and direction of the Principal Investigators.  The parties agree that any work conducted inconnection with the Research Project shall be performed by personnel (whetheras employees, independent contractors, etc. of the parties) who are required toassign to COLLABORATOR or INSTITUTE, as applicable, all right, title andinterest in and to any Research Results and/or Joint Patent Rights.  INSTITUTE shall be responsible for theoverall administrative management of the Research Project.  The COLLABORATOR Principal Investigator and theINSTITUTE Principal Investigator, shall communicate on a regular basis both inperson, by telephone, or by written (electronic or otherwise) communication,regarding the performance of the Research Project The parties agree that theywill use reasonable commercial efforts to complete the Research Project withinthe period of time described in the applicable Statement of Work; however,neither COLLABORATOR nor INSTITUTE makes any warranties regarding thecompletion of the Research Project or the achievement of any particularresults.

 

1.4                                 Accessand Information

 

The INSTITUTE and the COLLABORATOR shall each provide the other on anongoing basis with such access to its facilities and research results as may bereasonably necessary to enable them to review and evaluate the progress of theResearch Project.  Such access shall beat times mutually agreeable to both Parties. Facilities access to INSTITUTE

 

2

----

 

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

 

1.5                                 Reports.  The parties shall cooperate in preparingwritten reports (each, a “Report” or collectively, the “Reports”) for theResearch Project, which Reports shall be completed within thirty (30) daysafter the end of the Research Project. The Reports shall include all research results, including reference to laboratorynotebooks, containing pertinent data, maintained in accordance with customarypractice and issues related to the conduct of the Research Project.  Each party shall be entitled to retain copiesof the Reports.

 

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

 

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

 

1.8                                 Acknowledgmentof Risks Associated with Research Project. COLLABORATOR and INSTITUTE acknowledge, understand and agree that the subjectof the Research Project is experimental, that its characteristics andfunctionality are not fully understood, and that there may be substantial risksassociated with the unknown properties of the products of the Research Projector any other associated materials.

 

1.9                                 ThirdParty Rights.  The Parties agree thatthey 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 materialsor funds would provide such third party with any rights to the Research Projectresults without consultation with and written agreement from the other Party.

 

# 2.                                       **COLLABORATION MATERIALS.** Biological and other research materials, as defined herein, may betransferred between INSTITUTE and COLLABORATOR in connection with the ResearchProject.  COLLABORATOR agrees to provideINSTITUTE with biological and other research materials, including the materialsdescribed in Attachment B to this Agreement (“COLLABORATOR Material”),and INSTITUTE agrees to provide COLLABORATOR with biological and other researchmaterials, including the materials described in Attachment B tothis Agreement (“INSTITUTE Material”), subject to the agreement of the Partiesto the following terms and conditions:

#  

### (a)                                  TheCOLLABORATOR Material, including any and all unmodified descendents andderivatives of the COLLABORATOR Material, is the property of COLLABORATOR.

###  

### (b)                                 TheCOLLABORATOR Material represents a significant investment on the part of, andis proprietary to, COLLABORATOR.  TheINSTITUTE will not attempt to obtain a patent claiming the COLLABORATORMaterial.

 

3

----

 

### (c)                                  TheINSTITUTE Material, including any and all unmodified descendents andderivatives of the INSTITUTE Material, is the property of INSTITUTE.

###  

### (d)                                 TheINSTITUTE Material represents a significant investment on the part of, and isproprietary to, INSTITUTE.  COLLABORATORwill not attempt to obtain a patent claiming the INSTITUTE Material.

###  

### (e)                                  Exceptfor the provision of materials between Parties in carrying out the ResearchProject, neither Party will transfer any “Material” (which term shall includeINSTITUTE Material and COLLABORATOR Material) of the other Party to (i) anyperson who is not under direct supervision of the Party receiving the Material,nor (ii) any third party without first securing the advance writtenpermission of the Party that owns the Material. Each Party will ensure that all persons it authorizes to use theMaterial of the other Party as set forth in this Agreement are aware of, andagree to abide by all of the terms and conditions of, this Agreement.

###  

### (f)                                    Anyuses by a Party of the other Party’s Material other than in connection with theResearch Project are expressly prohibited. In no event will either Party attempt to reverse engineer, deconstructor in any way determine the structure or composition of the other Party’sMaterials provided hereunder.  Each Partyexpressly agrees that the provision of the other Party’s Material will not beconstrued 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)                                 Materialstransferred under this Agreement are provided for use in animals or *in vitro*only and shall not be used in humans.

###  

### (h)                                 Norights are granted to either Party under any patents, patent applications,trade secrets or other proprietary rights of another Party other than the rightto use the COLLABORATOR Material or the INSTITUTE Material in the Research Project,except as provided in the terms of this Agreement.

###  

### (i)                                     AllMaterial provided pursuant to the Research Project will remain the property ofthe providing Party, and will be used solely for the purposes of the ResearchProject.  Upon termination of thisAgreement, the unused portions of such Material will be returned to theproviding Party or will be disposed of as directed by the providing Party inwriting.

###  

# 3.                                       **RESEARCH FUNDING, LEASE.**

#  

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

 

4

----

 

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

##  

## 3.3                                 COLLABORATOR’suse of general lab supplies during the Project Period will be charged at afixed rate of two thousand dollars ($2,000.00) per month for each full timeequivalent as provided in Attachment C.  The first monthly payment of four thousanddollars ($4,000.00) is due within five (5) days of execution of thisAgreement, and each subsequent payment shall be made on the first day of eachmonth thereafter.  Payments should besent to the INSTITUTE contact listed in Paragraph 9.11 herein.

##  

3.4                                 Projectspecific supplies will be purchased directly by the COLLABORATOR.

 

3.5                                 COLLABORATORwill lease lab and office space from the INSTITUTE per the Lease Agreement ofeven date herewith attached as Attachment E.

 

# 4.                                       **PROJECT PERIOD.**  TheResearch Project will commence on the Effective Date and will continue for aperiod of one (1) year, unless extended by agreement of the Parties inwriting or sooner terminated as hereinafter provided.

#  

# 5.                                       **CONFIDENTIALITY.** Subject to Section 6, any confidential information exchanged by theParties in order to conduct the Research Project will be disclosed in writingand clearly marked “Confidential” at the time of disclosure to the receivingParty, or if orally disclosed, reduced to writing within thirty (30) days afterdisclosure by the disclosing Party and identified as confidential.  In addition, disclosures of Results andInventions (as defined in Section 7 below) and Reports (as defined in Paragraph1.5) shall be treated as Confidential Information, subject to this Section 5.  In order to avoid disclosure of ConfidentialInformation, the Parties agree that for a period of five (5) years fromthe date of disclosure, they will treat any Confidential Information from theother Party with the same degree of care that they employ with respect to theirown information, which they do not desire to have published ordisseminated.  Confidential Informationshall only be disclosed to the INSTITUTE Principal Investigator or COLLABORATORRepresentative, who will have the right to refuse or accept any suchinformation and the responsibility to control its distribution to his/herlaboratory personnel participating in the Research Project.  It is understood that neither Party will beliable for any unauthorized disclosure unless they fail to safeguard theConfidential Information with such care; however, neither Party will have anyobligation with respect to Confidential Information which:

#  

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

 

### (b)                                 wasknown to the receiving Party prior to the date of disclosure or becomes knownto the receiving Party thereafter from a third party having an apparent bonafide right to disclose the information;

###  

### (c)                                  isdisclosed by the receiving Party with the disclosing Party’s prior writtenapproval;

 

5

----

 

### (d)                                 isdisclosed by the disclosing Party without restriction on further disclosure;

###  

### (e)                                  isindependently developed by the receiving Party without use of the ConfidentialInformation provided hereunder;

###  

### (f)                                    thereceiving Party is obligated to produce pursuant to an order of a court ofcompetent jurisdiction or a valid administrative or Congressional subpoena,provided that the receiving Party (a) promptly notifies the disclosingParty and (b) cooperates reasonably with the disclosing Party’s efforts tocontest or limit the scope of such order and (c) takes all necessary stepsto protect the confidentiality of the Confidential Information includingwithout limitation filing any documents with the court under seal.

###  

# 6.                                       **PUBLICATION.**  It isanticipated the results of the Research Project will be jointly published,however each Party may publish, or otherwise publicly disclose the results oftheir own information and data generated from the conduct of the ResearchProject, provided however that in all oral presentations or writtenpublications concerning the Research Project, the disclosing or publishingParty agrees that no such publication or disclosure will include any of theother Party’s Confidential Information without such Party’s prior writtenapproval.  If a proposed publication orother form of public disclosure is not a joint publication, the disclosing orpublishing Party shall provide a copy of the proposed publication to thenon-disclosing Party at least thirty (30) days prior to submission thereof forpublication, in order to allow the non-disclosing Party an opportunity toidentify information or intellectual property that should be protected by thefiling of a patent application before public disclosure.  The disclosing Party agrees to delay anysubmission for up to an additional thirty (30) days for the purpose ofpermitting the other Party to prepare and file appropriate applications. Inaccordance with scientific custom, a Party’s provision of its Material will benoted in all written or oral public disclosures concerning the ResearchProject, as is appropriate.

#  

# 7.                                       **RESEARCH PROJECT RESULTS, INTELLECTUAL PROPERTY.**

#  

## 7.1                                 ResearchResults.  Each Party will keep completeand accurate records of its work on the Research Project and keep the otherParty informed of research results obtained from its work on the ResearchProject.  Information shared inaccordance with this Section shall be treated as confidential by thereceiving Party (even if it is not identified as confidential by the disclosingParty) and shall be handled by the receiving Party in accordance with theprocedures set forth in Section 5 (Confidentiality) until published orotherwise disclosed publicly in accordance with Section 6 (Publication).

##  

## 7.2                                 Rightto use for Internal Purposes.  EachParty shall have the unrestricted, royalty-free right, during and following theterm of this Agreement, to use for its own internal research purposes allresearch results resulting from the Research Project subject to the obligationsof confidentiality in Section 5 and publication review in Section 6.   

##  

## 7.3                                 Inventionsand Patent Rights.  An “Invention”means any novel discovery conceived and/or reduced to practice during theconduct and as a result of the Research Project that may be claimed in a patentapplication.  “Patent Rights” shall meanall right, title and

 

6

----

 

## interest in, to and under patent applications claiming Inventions,including divisions, continuations or continuations-in-part (but only to theextent such continuations-in-part are adequately supported in the parentapplication) thereof; any corresponding foreign applications thereof; and anyU.S. or foreign patents issued therein or reissues, reexaminations orextensions thereof, assigned by inventors of Inventions to their respectiveinstitutions.

##  

## 7.4                                 Inventorshipof Inventions.  Inventorship of anyInventions will be determined in accordance with U.S. Patent Law standards fordetermining inventorship.  Disputesinvolving inventorship will be resolved by a mutually acceptable third partypatent attorney.  The costs for the thirdparty patent attorney in resolving such disputes will be shared equally by theParties.

##  

## 7.5                                 Assignmentand Ownership of Inventions.  EachParty represents, warrants and covenants that each of its employees or agentsinvolved in the Research Project shall be obligated to assign, and shallassign, all rights in any Inventions, including Patent Rights, developed duringor as a result of the Research Project to such Party.  The Parties agree that, subject to paragraph7.6 and any rights of the U.S. Government in any Invention, (a) in thecase of Inventions developed solely by the employees or agents of a particularParty (“Sole Invention”), such Inventions shall be owned by such Party, and (b) inthe case of Inventions developed jointly by employees or agents of bothParties, including employees or agents employed or engaged by both Parties(such as an INSTITUTE employee partially supported by COLLABORATOR), suchinvention shall be jointly owned by both Parties (“Joint Invention”) and theParties shall jointly own all right, title and interest in JointInventions.  Each Party shall notify theother in writing within thirty (30) days after a disclosure of an Invention isreceived by, in the case of INSTITUTE, the Intellectual Property Department,and in the case of COLLABORATOR, its General Counsel and Director ofIntellectual Property.

 

## 7.6                                 PatentProtection.

##  

## (a)                                  INSTITUTESole Inventions.  In the case ofINSTITUTE Sole Inventions, INSTITUTE shall prepare and file appropriate patentapplications covering INSTITUTE Sole Inventions at its sole discretion andexpense.  If, however, INSTITUTE choosesnot to file a patent application for its Sole Invention, INSTITUTE shall notifyCOLLABORATOR to determine if COLLABORATOR wishes to have a patent applicationfiled at its expense and, if so, will consult with COLLABORATOR in thepreparation of such patent application. If COLLABORATOR does not agree in writing to support a patentapplication within sixty (60) days after all relevant information regarding anINSTITUTE Sole Invention has been provided to COLLABORATOR, COLLABORATOR shallhave no further rights in that patent application.

##  

(b)                                 JointInventions.  Unless COLLABORATORelects not to file and fund a patent application for a Joint Invention, bothParties shall be responsible for filing the patent application and shallconsult each other in the selection of an appropriate patent attorney and inpreparation of the patent application. COLLABORATOR shall be responsible for all expenses incurred for thepatent filing, prosecution and maintenance for Joint Inventions, and in theevent COLLABORATOR elects not to file and fund a patent application for a Joint

 

7

----

 

Invention, COLLABORATORwill not receive an option to license the INSTITUTE ownership portion of theJoint Invention in accordance with 7.7 below.

 

## 7.7                                 Optionto License INSTITUTE Sole or Joint Inventions.   

##  

### (a)                                  Optionto License.  The INSTITUTE herebygrants to COLLABORATOR, an option, exercisable for the term hereof and ninety (90) daysthereafter, to negotiate a license to INSTITUTE Sole Inventions and theINSTITUTE ownership portion of Joint Inventions resulting from the ResearchProject. COLLABORATOR must exercise its option under this paragraph byproviding to the INSTITUTE, within the sixty (60) day period immediatelyfollowing the disclosure of the Invention to COLLABORATOR (“Option Period”),written notice of its desire to negotiate a mutually acceptable licenseagreement in connection with such INSTITUTE Sole Invention or Joint Inventionsand any patents issuing thereunder (such Invention shall then be termed an “ElectedInvention”).  Such license shall includepayment of all costs associated with evaluating, prosecuting or maintainingpatent rights, license fees, maintenance fees, milestone payments, sublicensingterms, and a reasonable royalty on the net sales of a product which resultsfrom 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) monthsafter the exercise of the option (“Negotiation Period”) with the objective ofentering into a license prior to the end of the Negotiation Period.  The Negotiation Period may be extended bymutual written agreement of INSTITUTE and COLLABORATOR.

###  

### (b)                                 Inthe event COLLABORATOR fails to exercise its option by the end of the OptionPeriod:

###  

#### (i)                                     Inthe case of INSTITUTE Sole Inventions, the INSTITUTE shall be free to licensesuch Inventions to others with no further obligation to COLLABORATOR; or

####  

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

####  

### (c)                                  ForElected Inventions:

###  

#### (i)                                     Inthe case of INSTITUTE Sole Inventions, if INSTITUTE and COLLABORATOR are unableto agree on the terms of a license within the Negotiation Period, thenINSTITUTE shall be free to license such Invention to others with no furtherobligation to COLLABORATOR; or

####  

## (ii)                                  Inthe case of Joint Inventions, if the Parties are unable to agree on the termsof a license for INSTITUTE’s rights to a Joint Invention within the NegotiationPeriod, then each Party shall have the right to use the Joint Invention for anypurpose and to license its use to others without any obligation to the otherParty.  However, the Parties may agree toa joint licensing approach for such Joint Inventions.

 

8

----

 

# 8.                                       **INDEMNITY AND WARRANTY DISCLAIMER.**

#  

## 8.1                                 

##  

(a)                                  COLLABORATORshall 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, andattorneys fees, arising out of, resulting from, or directly or indirectlyrelating to, any claims, suits, actions, demands or judgments arising out ofCOLLABORATOR’s performance under this Agreement, to the extent such liability,loss, damage or expense is not attributable to the negligent act or omission orreckless conduct or willful misconduct of COLLABORATOR’s Indemnitees.

 

(b)                                 TheINSTITUTE shall indemnify, defend and hold harmless COLLABORATOR, its boardmembers, officers, agents, servants and employees (the “INSTITUTE’s Indemnitees”)from and against any and all liability, loss, damage, claims, costs, actionsand 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, damageor expense is not attributable to the negligent act or omission or reckless conductor willful misconduct of the INSTITUTE’s Indemnitees.

 

8.2                                 NEITHERPARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS, ANY REPRESENTATIONSOR WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING,WITHOUT LIMITATION, THE CONDITION, ORIGINALITY, OR ACCURACY OF THE RESEARCH ORANY 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 THEMATERIALS PROVIDED HEREUNDER, THE RESEARCH OR ANY SUCH INVENTIONS OR OTHERMATERIALS.  NEITHER PARTY WILL BE LIABLETO THE OTHER PARTY FOR ANY, CONSEQUENTIAL, SPECIAL, INCIDENTAL, EXEMPLARY ORPUNITIVE DAMAGES RESULTING FROM THE USE OF THE MATERIALS PROVIDED HEREUNDER,THE RESEARCH OR ANY SUCH INVENTIONS OR OTHER MATERIALS.  NEITHER PARTY MAKES ANY REPRESENTATIONS THATTHE MATERIALS PROVIDED OR DEVELOPED UNDER THIS AGREEMENT OR ANY INVENTION WILLNOT INFRINGE ANY PATENT OR PROPRIETARY RIGHTS OF THIRD PARTIES.

 

# 9.                                       MISCELLANEOUSPROVISIONS.

#  

## 9.1                                 Compliancewith Laws.  Nothing contained in thisAgreement shall require or permit INSTITUTE or COLLABORATOR to do any actinconsistent with the requirements of any United States or foreign law,regulation or executive order as the same may be in effect from time totime.  

 

9

----

 

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

##  

## 9.3                                 Successorsand Assigns.  This Agreement shall bebinding upon and inure to the benefit of the permitted successors and assignsof the Parties hereto.

##  

## 9.4                                 IndependentContractors.  The relationshipbetween INSTITUTE and COLLABORATOR is that of independent contractors.  INSTITUTE and COLLABORATOR are not jointventurers, partners, principal and agent, master and servant, employer oremployee, and have no other relationship other than independent contractingparties.  Neither Party shall have thepower to bind or obligate the other Party in any manner other than as isexpressly set forth in this Agreement.

##  

## 9.5                                 DisputeResolution.

##  

### (a)                                  Mediation.  The Parties agree to first submit any controversyor 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 theParties 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 retiredjudge.

###  

### (b)                                 Arbitration.Any controversy or claim not resolved by mediation, arising out of or relatingto this Agreement, or the breach thereof, or any rights or materials licensedhereunder, shall be settled by binding arbitration in accordance with theCommercial Arbitration Rules (the “Rules”) of the AAA, and the proceduresset forth below.  In the event of anyinconsistency 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 inany court having jurisdiction thereof.

###  

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

####  

#### (ii)                                  Selectionof Arbitrators.  The arbitrationshall be conducted by a neutral arbitrator who is independent and disinterestedwith respect to the Parties, this Agreement, and the outcome of thearbitration.  If the Parties are unableto agree to an arbitrator, the arbitrator shall be appointed by AAA from amongthe San Diego AAA commercial arbitration panelists.  The first preference in the selection of anarbitrator shall be a retired judge.

####  

#### (iii)                               Case Management.  Prompt resolution of any dispute is importantto both Parties and the Parties agree that the arbitration of any dispute shallbe conducted expeditiously.  Thearbitrator is instructed and directed to assume case management initiative andcontrol over the arbitration process (including scheduling of events, pre-hearingdiscovery and activities, and the conduct of the hearing), in order to completethe arbitration as expeditiously as is reasonably practical for obtaining ajust resolution of the dispute.

####  

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

 

10

----

 

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

####  

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

####  

#### (vi)                              Confidentiality.  Except as set forth below, the Parties shallkeep confidential the fact of the arbitration, the dispute being arbitrated,and the decision of the arbitrator. Notwithstanding the foregoing, the Parties may disclose informationabout 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 arerequired by applicable securities laws. Further, if a Party is expressly asked by a third party about thedispute or the arbitration, the Party may disclose and acknowledge in generaland limited terms that there is a dispute with the other Party which is being(or has been) arbitrated.  Once thearbitration award has become final, if the arbitration award is not promptlysatisfied, then these confidentiality provisions shall no longer be applicable.

####  

## 9.6                                 Publicity.  Except as otherwise required by law, eachParty agrees not to use or cite in any manner the name of the other, itsemployees anything related to the Research Project, INSTITUTE PrincipalInvestigator or the COLLABORATOR Representative in any commercial ornon-commercial advertising, article, press release or in any other forms ofwriting or publication medium without the prior written permission of the Partyor individual whose name or other information is to be used.

##  

## 9.7                                 GoverningLaw; Venue; Jurisdiction.  ThisAgreement 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 itsconflict of laws provisions.  The Partiesirrevocably consent to the exclusive personal jurisdiction (except as toactions for the enforcement of a judgment, in which case the jurisdiction willbe 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 thisAgreement have been inserted for convenience of reference only and are notintended to limit or expand on the meaning of the language contained in theparticular Paragraph.

##  

## 9.9                                 Severability.  Should any one or more of the provisions ofthis Agreement be held invalid or unenforceable by a court of competentjurisdiction, it shall be considered severed from this Agreement and shall notserve to invalidate the remaining provisions thereof.  The Parties shall make a good faith effort toreplace any invalid or unenforceable provision with

 

11

----

 

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

##  

## 9.10                           NoWaiver.  Any delay in enforcing aParty’s rights under this Agreement or any waiver as to a particular default orother matter shall not constitute a waiver of such Party’s rights to the futureenforcement of its rights under this Agreement, excepting only as to an expresswritten and signed waiver as to a particular matter for a particular period oftime.

##  

## 9.11                           Notices.  Any notices required by this Agreement shallbe in writing, shall specifically refer to this Agreement and shall be sent byregistered or certified airmail via either U.S. Postal Service or reliablealternative carrier, postage prepaid, or by facsimile, to the respectiveaddresses set forth below unless subsequently changed by written notice to theother Party given in accordance with this Paragraph.  Notice shall be deemed delivered upon the earlierof (a) when received, or (b) the date notice is sent viafacsimile.  Notice shall be conclusivelypresumed to have been received when (x) a receipt therefor has been signedby any person at the address provided for such notice, or (y) facsimileprintout 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                           ForceMajeure.  Neither Party shall beliable for delay in any performance or for the failure to render anyperformance of its obligations under this Agreement (except for a Party’spayment obligations under this Agreement) when such delay or failure is byreason 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 tothe other Party promptly after it learns of the occurrence of said event and ofthe adverse results thereof.  Such noticeshall set forth the nature and extent of the event.  The delay or failure shall not be excusedunless such notice is so given.  Anythingin this Paragraph to the contrary notwithstanding, if the non-performing Partyremains in default of a material provision of this Agreement for a period ofsix (6) consecutive months by reason of any of the causes hereindescribed, the other Party may terminate this Agreement.

 

12

----

 

## 9.13                           Counterparts;Entire Agreement; Modification.  ThisAgreement may be executed in counterparts, all of which taken together shallconstitute one single agreement between the Parties.  This Agreement sets forth the entireagreement and understanding between the Parties as to the subject matter setforth in this Agreement.  There shall beno amendments or modifications to this Agreement, except by a written document,which is signed by both Parties.  In theevent of any inconsistency between any of the terms and conditions of thisAgreement and the Facility User Agreement, the terms and conditions of thisAgreement shall control.

##  

## 9.14                           Termination**.**

##  

Except as otherwise provided herein, termination ofthis Agreement shall not be construed to release either party from anyobligation hereunder which has matured prior to the date of saidtermination.  Notwithstanding anythingherein to the contrary,

 

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

###  

(b)                                 Ifthe Research Project and this Agreement are terminated pursuant to Paragraph9.14(a), Materials received pursuant to this Agreement by a Party shall, at therequest of the other Party, be returned or properly destroyed, such destructionshall be confirmed in writing. Any jointly developed materials may be retainedby both Parties, provided, however, that neither Party shall have any right todistribute or transfer to any third party any jointly developed materials thatincorporate the other Party’s Materials without the other Party’s prior writtenconsent.  Each Party agrees to promptlyinform the other Party when an unauthorized transfer of jointly developedmaterials incorporating the other Party’s Materials to a recipient hasoccurred, including the name and contact information of the recipient, and toexercise commercially reasonable efforts to inform the recipient that thetransfer was unauthorized and request immediate return of all such Materials toCOLLABORATOR or INSTITUTE, including any copies, derivatives, or progenythereof.

 

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

 

## 9.15                           Survival**.**  The provisions of Paragraphs2 (Material Transfer), 5 (Confidentiality), 6 (Publication), 7 (ResearchProject Results, Intellectual Property), 8 (Indemnification and WarrantyDisclaimer)  and 9 (MiscellaneousProvisions) shall survive termination of this Agreement for any reason.

 

13

----

 

**Agreed byAuthorized 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                   |   |   |
|                        |                                                   |  |  |  |  |  |  |  |  |

 

14

----