**Exhibit 10.33**

 

Advanced Cell Technology, Inc.

 

2004 STOCK OPTION PLAN

 

1.                                       Purpose.  Advanced Cell Technology, Inc.(the “Company”), hereby adopts the Advanced Cell Technology, Inc. 2004Stock Option Plan (the “Plan”).  The Planis intended to recognize the contributions made to the Company by employees ofthe Company or any Affiliate, to provide such persons with additional incentiveto devote themselves to the future success of the Company or an Affiliate, andto improve the ability of the Company or an Affiliate to attract, retain, andmotivate individuals upon whom the Company’s sustained growth and financialsuccess depend, by providing such persons with an opportunity to acquire orincrease their proprietary interest in the Company through receipt of rights toacquire the Company’s Common Stock, par value $0.001 per Share (the “CommonStock”).

 

2.                                       Definitions.  Unless the context clearlyindicates otherwise, the following terms shall have the following meanings:

 

(a)                                  “Affiliate” means a corporation which is aparent corporation or a subsidiary corporation with respect to the Companywithin the meaning of Section 424(e) or (f) of the Code.

 

(b)                                 “Board of Directors” means the Board ofDirectors of the company.

 

(c)                                  “Code” means the Internal Revenue Code of 1986,as amended.

 

(e)                                  “Committee” means the Board of Directors, ora committee of the Board of Directors appointed in accordance with Section 3of the Plan, when acting in connection with the administration of the Plan.

 

(f)                                    “Company” means Advanced Cell Technology, Inc.,a Delaware corporation.

 

(g)                                 “Disability” shall have the meaning set forthin Section 22(c)(3) of the Code.

 

(h)                                 “Fair Market Value” shall have the meaningset forth in Subsection 8(b) of the Plan.

 

(i)                                     “ISO” means an Option granted under the Planthat is intended to qualify as an “incentive stock option” within the meaningof Section 422(b) of the code.

 

(j)            “Non-qualified Stock Option” meansan Option granted under the Plan which is not intended to qualify, or otherwisedoes not qualify, as an “incentive stock option” within the meaning of Section 422(b) ofthe Code.

 

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(k)                                  “Option” means either an ISO or aNon-qualified Stock Option granted under the Plan.

 

(1)                                  “Optionee” means a person to whom an optionhas been granted under the Plan, which Option has not been exercised and hasnot expired or terminated.

 

(m)                               “Option Document” means the documentdescribed in Section 8 of the Plan, which sets forth the terms andconditions of each grant of Options.

 

(n)                                 “Option Price” means the price at whichShares may be purchased upon exercise of an Option, as calculated pursuant toSubsection 8(b) of the Plan.

 

(o)                                 “Rule 16b-3” means Rule 16b-3promulgated under the Securities Exchange Act of 1934, as amended.

 

(p)                                 “Shares” means the shares of Common Stock ofthe Company that are the subject of Options.

 

3.                                       Administration of the Plan.  ThePlan shall be administered by the Board of Directors of the Company; however,the Board of Directors maydesignate a committee composed of at least two non-employee Directors withinthe meaning of Rule 16b-3(3) to operate and administer the Planin its stead (the “Committee”).

 

(a)                                  Meetings.  The Committee shall holdmeetings at such times and places as it may determine.  Acts approved at a meeting by a majority of themembers of the Committee or acts approved in writing by unanimous consent ofthe members of the Committee shall be the valid acts of the Committee.

 

(b)                                 Grants.  The Committee shall from timeto time at its discretion direct the Company to grant Options pursuant to theterms of the Plan.  The Committee shallhave plenary authority to (i) determine the Optionees to whom, the timesat which, and the price at which Options shall be granted, (ii) determinethe type of Option to be granted and the number of Shares subject thereto, and (iii) approvethe form and terms and conditions of the Option Documents; all subject,however, to the express provisions of the Plan.  In making such determinations, the Committeemay take into account the nature of the Optionee’s services andresponsibilities, the Optionee’s present and potential contribution to theCompany’s success and such other factors, as it may deem relevant.  The interpretation and construction by theCommittee of any provisions of the Plan or of any Option granted under it shallbe final, binding and conclusive.

 

(c)                                  Exculpation.  No member of the Board ofDirectors shall be personally liable for monetary damages for any action takenor any failure to take any action in connection with the administration of thePlan or the granting of Options under the Plan, provided that this Subsection 3(c) shallnot apply to (i) any breach of such member’s duty of loyalty to theCompany or its stockholders, (ii) acts or omissions not in good faith orinvolving intentional misconduct or a knowing violation of law, (iii) actsor omissions that would result in liability

 

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underSection 174 of the General Corporation Law of the State of Delaware, asamended, and (iv) any transaction from which the member derived animproper personal benefit.

 

(d)                                 Indemnification.  Serviceon the Committee shall constitute service as a member of the Board of Directorsof the Company.  Each member of theCommittee shall be entitled without further act on his part to indemnity fromthe Company to the fullest extent provided by applicable law and the Company’sCertificate of Incorporation and/or By-laws in connection with or arising outof any action, suit or proceeding with respect to the administration of thePlan or the granting of Options thereunder in which he or she may be involvedby reason of his or her being or having been a member of the Committee, whetheror not he or she continues to be such member of the Committee at the time ofthe action, suit or proceeding.

 

4.                                       Grants under the Plan.  Grantsunder the Plan may be in the form of a Non-qualified Stock Option, an ISO or acombination thereof, at the discretion of the Committee.

 

5.                                       Eligibility.  All employees shall beeligible to receive Options hereunder.

 

6.                                       Shares Subject to Plan.  Theaggregate maximum number of Shares for which Options may be granted pursuant tothe Plan is Two Million Eight Hundred Thousand (2,800,000) Shares, subject toadjustment as provided in Section 9 of the Plan.  The Shares shall be issued from authorized andunissued Common Stock or Common Stock held in or hereafter acquired for thetreasury of the Company.  If an Optionterminates or expires without having been fully exercised for any reason, theShares for which the Option was not exercised may again be the subject of oneor more Options granted pursuant to the Plan.

 

7.                                       Term of the Plan.  ThePlan is effective as of August 12, 2004, the date on which it was adoptedby the Board of Directors of the Company.  No Option may be granted under the Plan after August 12,2014.

 

8.                                       Option Documents and Terms.  EachOption granted under the Plan shall be a Non-qualified Stock Option unless theoption shall be specifically designated at the time of grant to be an ISO.  If any Option designated an ISO is determinedfor any reason not to qualify as an Incentive Stock Option within the meaningof Section 422 of the Code, such Option shall be treated as aNon-qualified Stock Option for all purposes under the provisions of the Plan.  Options granted pursuant to the Plan shall beevidenced by the Option Documents in such form as the Committee shall from timeto time approve, which Option Documents shall comply with and be subject to thefollowing terms and conditions and such other terms and conditions as theCommittee shall from time to time require which are not inconsistent with theterms of the Plan.

 

(a)                                  Number of Option Shares.  EachOption Document shall state the number of Shares to which it pertains.  An Optionee may receive more than one Option,which may include Options which are intended to be ISO’s and options which arenot intended to be ISO’s, but only on the terms and subject to the conditionsand restrictions of the Plan.

 

(b)                                 Option Price.  EachOption Document shall state the Option Price which, for a Non-qualified StockOption, may be less than, equal to or greater than the Fair Market Value of theShares on the date the Option is granted and, for an ISO, shall be at least100% of

 

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the Fair Market Value of theShares on the date the option is granted as determined by the Committee inaccordance with this Subsection 8(b); provided, however, that if an ISO isgranted to an Optionee who then owns, directly or by attribution under Section 424(d) ofthe Code, shares possessing more than ten percent of the total combined votingpower of all classes of stock of the Company or an Affiliate, then the OptionPrice shall be at least 110% of the Fair Market Value of the Shares on the datethe Option is granted.  If the CommonStock is traded on the OTC Bulletin Board, any similar electronic quotationsystem or on a nationally recognized stock exchange, then the Fair Market Valueper share shall be, if the Common Stock is listed on a national securitiesexchange or included in the NASDAQ National Market System, the last reportedsale price thereof on the relevant date or, if the Common Stock is not solisted or included, the average of the last reported “bid” and “asked” pricesthereof on the relevant date, as reported on NASDAQ or, if not so reported, asreported by the National Quotation Bureau, Inc., or as reported in acustomary financial reporting service, as applicable and as the Committeedetermines.  At any time at which theCommon Stock is not traded on the OTC Bulletin Board, any similar electronicquotation system or on a nationally recognized stock exchange, then the FairMarket Value per share shall be determined by the Board of Directors, acting ingood faith, and such determination shall be final and binding for all purposesof this Plan.

 

(c)                                  Exercise.  No Option shall be deemed tohave been exercised prior to the receipt by the Company of written notice ofsuch exercise and of payment in full of the Option Price for the Shares to bepurchased.  Each such notice shallspecify the number of Shares to be purchased and (unless the Shares are coveredby a then current registration statement or a Notification under Regulation Aunder the Securities Act of 1933 (the “Act”)) shall contain the Optionee’sacknowledgment in form and substance satisfactory to the Company that (a) suchShares are being purchased for investment and not for distribution or resale(other than a distribution or resale which, in the opinion of counselsatisfactory to the Company, may be made without violating the registrationprovisions of the Act), (b) the Optionee has been advised and understandsthat (i) the Shares have not been registered under the Act and are “restrictedsecurities” within the meaning of Rule 144 under the Act and are subjectto restrictions on transfer and (ii) the Company is under no obligation toregister the Shares under the Act or to take any action which would makeavailable to the Optionee any exemption from such registration, (c) suchShares may not be transferred without compliance with all applicable federaland state securities laws, and (d) an appropriate legend referring to theforegoing restrictions on transfer and any other restrictions imposed under theOption Documents may be endorsed on the certificates.  Notwithstanding the foregoing, if the Companydetermines that issuance of Shares should be delayed pending (A) registrationunder federal or state securities laws, (B) the receipt of an opinion ofcounsel satisfactory to the Company that an appropriate exemption from suchregistration is available, (C) the listing or inclusion of the Shares onany securities exchange or an automated quotation system or (D) theconsent or approval of any governmental regulatory body whose consent orapproval is necessary in connection with the issuance of such Shares, theCompany may defer exercise of any Option granted hereunder until any of theevents described in this sentence has occurred.

 

(d)                                 Medium of Payment.  AnOptionee shall pay for Shares (i) in cash, (ii) by certified, bank orcashier’s check payable in clearing house funds to the order of the Company, or(iii) by such other mode of payment as the Committee may approve,including payment

 

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througha broker in accordance with procedures permitted by Regulation T of the FederalReserve Board.  Furthermore, theCommittee may provide in an Option Document that payment may be made in wholeor in part in shares of the Company’s Common Stock held by the Optionee.  If payment is made in whole or in part inshares of the Company’s Common Stock, then the Optionee shall deliver to theCompany certificates registered in the name of such Optionee representing theshares owned by such Optionee, free of all liens, claims and encumbrances ofevery kind and having an aggregate Fair Market Value on the date of deliverythat is at least as great as the Option Price of the Shares (or relevantportion thereof) with respect to which such Option is to be exercised by thepayment in shares of Common Stock, endorsed in blank or accompanied by stockpowers duly endorsed in blank by the Optionee, In the event that certificatesfor shares of the Company’s Common Stock delivered to the Company represent anumber of shares in excess of the number of shares required to make payment forthe Option Price of the Shares (or relevant portion thereof) with respect towhich such Option is to be exercised by payment in shares of Common Stock, thestock certificate issued to the Optionee shall represent the Shares in respectof which payment is made, and an additional certificate shall be issued to theOptionee for such excess number of shares.

 

(e)                                  Termination of Options.

 

(i)                                     No Option shall be exercisable after thefirst to occur of the following:

 

(A)                              Expiration of the Option term specified inthe Option Document, which shall not occur after (10) ten years from thedate of grant, or (2) five years from the date of grant of an ISO if theOptionee on the date of grant owns, directly or by attribution under Section 424(d) ofthe Code, shares possessing more than ten percent (10%) of the total combinedvoting power of all classes of stock of the Company or of an Affiliate.

 

(B)                                A Finding by the Committee, after full considerationof the facts presented on behalf of both the Company and the Optionee, that theOptionee has breached his employment or service contract with the Company or anAffiliate, or has been engaged in disloyalty to the Company or an Affiliate,including, without limitation, fraud, embezzlement, theft, commission of afelony or proven dishonesty in the course of his employment or service, or hasdisclosed trade secrets or confidential information of the Company or anAffiliate, In such event, in addition to immediate termination of the option,the Optionee shall automatically forfeit all Shares for which the Company hasnot yet delivered the share certificates upon refund by the Company of theOption Price.  Notwithstanding anythingherein to the contrary, the Company may withhold delivery of share certificatespending the resolution of any inquiry that could lead to a finding resulting ina forfeiture.

 

(C)                                 The date, if any, set by the Board ofDirectors as an accelerated expiration date in the event of the liquidation ordissolution of the Company.

 

(ii)                                  Notwithstanding the foregoing, the Committeemay extend the period during which all or any portion of an Option may beexercised to a date no later than the Option term specified in the OptionDocument pursuant to Subsection 8(e)(i)(A), provided that

 

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anychange pursuant to this Subsection 8(e)(ii) which would cause an ISOto become a Non-qualified Stock Option may be made only with the consent of theOptionee.  The Committee may also grantOptions with shorter periods during which the Options may be exercised.

 

(f)                                    Transfers.  No Option granted under thePlan may be transferred, except by will or by the laws of descent anddistribution.  During the lifetime of theperson to whom an option is granted, such Option may be exercised only by him.  Notwithstanding the foregoing, a Non-qualifiedStock Option may be transferred pursuant to the terms of a “qualified domesticrelations order,” within the meaning of Sections 401(a)(13) and 414(p) of theCode or within the meaning of Title I of the Employee Retirement IncomeSecurity Act of 1974, as amended.

 

(g)                                 Limitation on ISO Grants.  Inno event shall the aggregate fair market value of the shares of Common Stock(determined at the time the ISO is granted) with respect to which incentivestock options under all incentive stock option plans of the Company or itsAffiliates are exercisable for the first time by the Optionee during anycalendar year exceed $100,000.

 

(h)                                 Other Provisions.  Subjectto the provisions of the Plan, the Option Documents shall contain such otherprovisions including, without limitation, provisions authorizing the Committeeto accelerate the exercisability of all or any portion of an option grantedpursuant to the Plan, additional restrictions upon the exercise of the optionor additional limitations upon the term of the Option, as the Committee shalldeem advisable.

 

(i)                                     Amendment. Subject to the provisions of the Plan,the Committee shall have the right to amend Option Documents issued to anOptionee, subject to the Optionee’s consent if such amendment is not favorableto the Optionee, except that the consent of the Optionee shall not be requiredfor any amendment made pursuant to Subsection 8(e)(i)(C) or Section 9of the Plan, as applicable.

 

9.                                       Adjustments on Changes in Capitalization.  Theaggregate number of Shares and class of shares as to which Options may begranted hereunder, the number and class or classes of shares covered by eachoutstanding Option and the Option Price thereof shall be appropriately adjustedin the event of a stock dividend, stock split, recapitalization or other changein the number or class of issued and outstanding equity securities of theCompany resulting from a subdivision or consolidation of the Common Stockand/or, if appropriate, other outstanding equity securities or arecapitalization or other capital adjustment (not including the issuance ofCommon Stock on the conversion or exchange of other securities of the Companywhich are convertible into or exchangeable for Common Stock) affecting theCommon Stock which is effected without receipt of consideration by the Company. The Committee shall have authority todetermine the adjustments to be made under this Section, and any suchdetermination by the Committee shall be final, binding and conclusive;provided, however, that no adjustment shall be made which will cause an ISO tolose its status as such without the consent of the Optionee.

 

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10.                                 Amendment of the Plan.  TheBoard of Directors of the Company may amend the Plan from time to time in suchmanner as it may deem advisable.  Nevertheless,the Board of Directors of the Company may not change the class of individualseligible to receive an ISO or increase the maximum number of shares as to whichOptions may be granted without obtaining approval, within twelve months beforeor after such action, by vote of a majority of the votes cast at a duly calledmeeting of the stockholders at which a quorum representing a majority of alloutstanding voting stock of the Company is, either in person or by proxy,present and voting on the matter.  Noamendment to the Plan shall adversely affect any outstanding Option, however,without the consent of the Optionee.

 

11.                                 No Commitment to Retain.  Thegrant of an Option pursuant to the Plan shall not be construed to imply or toconstitute evidence of any agreement, express or implied, on the part of theCompany or any Affiliate to retain the Optionee in the employ of the Company oran Affiliate and/or as a member of the Company’s Board of Directors or in anyother capacity.

 

12.                                 Withholding of Taxes.  Wheneverthe Company proposes or is required to deliver or transfer Shares in connectionwith the exercise of an Option, the Company shall have the right to (a) requirethe recipient to remit or otherwise make available to the Company an amountsufficient to satisfy any federal, state and/or local withholding taxrequirements prior to the delivery or transfer of any certificate orcertificates for such Shares or (b) take whatever other action it deemsnecessary to protect its interests with respect to tax liabilities.  The Company’s obligation to make any deliveryor transfer of Shares shall be conditioned on the Optionee’s compliance, to theCompany’s satisfaction, with any withholding requirement.

 

13.                                 Interpretation.  ThePlan is intended to enable transactions under the Plan with respect todirectors and officers (within the meaning of Section 16(a) under theSecurities Exchange Act of 1934, as amended) to satisfy the conditions of Rule 16b-3or its successors; to the extent that any provision of the Plan would cause aconflict with such conditions or would cause the administration of the Plan asprovided in Section 3 to fail to satisfy the conditions of Rule 16b-3,such provision shall be deemed null and void to the extent permitted byapplicable law.  This Section shallnot be applicable if no class of the Company’s equity securities is thenregistered pursuant to Section 12 of the Securities Exchange Act of 1934,as amended.

 

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