**Exhibit 10.69**

 

Rafael Fissore

 

SPONSORED RESEARCH AGREEMENT

— INVENTIONS AND MATERIALS —

 

This Agreement, effective as of December 1,1999 (the “Effective Date”), is between the University of Massachusetts (“University”),a public institution of higher education of the Commonwealth of Massachusetts,us represented by its Amherst Campus and Advanced Cell Technology, Inc. (“Sponsor”),a Delaware corporation.

 

RECITALS

 

WHEREAS, University and Sponsor previouslyentered into a Research Collaboration Agreement dated April 16, 1996 (the “PriorAgreement”), which expired April 15, 1998; and

 

WHEREAS, University and Sponsor have enteredinto an Exclusive License Agreement as of April 16, 1996 asamended on September 1, 1997 under which Sponsor licenses certain inventionsdeveloped under the Prior Agreement; and

 

WHEREAS, University has several newinventions in the areas of cellular reprogramming and initiation of cellulargrowth which were conceived through independent funding which University wishesto present to Sponsor as an opportunity for further research and development;and

 

WHEREAS, Sponsor has indicated interest infunding the research and development of several projects in the areas of cloning technology and cellular reprogramming tofurther its interest in understanding the role of stem cell differentiationinto desired tissues as seen in this Sponsored research Agreement (SRA); and

 

WHEREAS, University is willing to performresearch and development for Sponsor under different terms and conditions thanunder the Prior Agreement which may lead to the subsequent licensing of newinventions under a new license agreement;

 

NOW, THEREFORE, University and Sponsor herebyagree as follows:

 

1. Definitions.

 

1.1 “Confidential Information” meansany confidential or proprietary information furnished by one party (the “DisclosingParty”) to the other party (the “Receiving Party”) in connection with theperformance of the Research Project, provided that such information isspecifically designated as confidential. Such Confidential Information mayinclude, without limitation, trade secrets, know-how, inventions, technicaldata or specifications, testing methods, and research and developmentactivities.

 

1.2. “Inventions” means anypotentially patentable invention based on the Research Results which is (i)conceived during the term of this Agreement by employees of University orSponsor, or both, and

 

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(ii) reduced to practice either during the term of this Agreement orthereafter within a period of six (6) months.

 

1.3. “Materials” means any tangiblebiological, chemical, or physical materials. In the case of biologicalmaterials, the term “Materials” shall also include tangible materials that areroutinely produced through use of the original materials, including, for example,any progeny derived from a cell line, monoclonal antibodies produced byhybridoma cells, DNA or RNA replicated from isolated DNA or RNA, recombinantproteins produced through use of isolated DNA or RNA, and recombinant proteinsisolated from a cell extract or supernatant by non-proprietary affinitypurification methods.

 

l.4. “Patent Rights” means all UnitedStates and foreign patent applications claiming an Invention, including anydivisional, continuation, continuation-in-part (to the extent that the claimsare directed to an Invention), and foreign equivalents thereof, as well as anypatents issued thereon or reissues or reexaminations thereof. “UniversityPatent Rights” means Patent Rights claiming Inventions that arc conceivedand reduced to practice solely by employees of University, as determined underthe patent laws of the United States, and assigned to University. “JointPatent Rights” means Patent Rights claiming Inventions that are conceivedor reduced to practice jointly by employees of University and employees orconsultants of Sponsor, as determined under the patent laws of the UnitedStates, and assigned to University or Sponsor.

 

1.5. “Principal Investigator” means anemployee of University who has primary responsibility for the performance ofthe Research Project. The Principal Investigator is identified in Section 2.1.below.

 

1.6. “Project Materials” meansMaterials that are discovered or developed in the performance of the ResearchProject.

 

1.7. “Proprietary Materials” means anyproprietary Materials other than Project Materials that are furnished by oneparty (the “Supplier”) to the other party (the “Recipient”) in connection withthe performance of the Research Project.

 

1.8. “Research Project” means theresearch project described on Exhibit A (“Description of ResearchProject”), which University agrees to perform under the terms and conditions ofthis Agreement.

 

1.9. “Research Results” means alldata, test results, laboratory notes, techniques, know-how, and any otherresearch results that arc obtained in the performance of the Research Project.The term “Research Results” shall not include any Project Materials, patentableinventions, copyrighted or copyrightable works, trademarks or service marks, orother intellectual property based on the Research Results. As a matter ofpolicy, University ordinarily will not assert trade secret protection forResearch Results.

 

1.10. “Technical Representative” meansan individual designated by Sponsor as its principal technical representativefor consultation and communications with University and the Principal Investigator.The Technical Representative is identified in Section 2.1. below.

 

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2. Performance of Research Project.

 

2.1. Principal Investigator and TechnicalRepresentative. The Principal Investigator shall be Dr. Rafael Fissore. IfDr. Fissore ceases to serve as Principal Investigator for any reason,University will promptly notify Sponsor, and University and Sponsor shall usegood faith efforts to identify a mutually acceptable replacement within sixty(60) days. If a suitable replacement Principal Investigator cannot be identifiedwithin the sixty-day period, Sponsor shall have right to terminate thisAgreement as provided in Section 6.2. The Technical Representative shall be Dr.Jose B. Cibelli. Sponsor may change its Technical Representative upon thirty(30) days written notice to University.

 

2.2. Performance of Research Project.University shall use reasonable efforts to complete the Research Project;however. University makes no warranties regarding the completion of theResearch Project or the achievement of any particular results. The PrincipalInvestigator shall direct the Research Project and shall control the manner ofits performance. The Technical Representative may consult informally with thePrincipal Investigator, both in person and by telephone, regarding theperformance of the Research Project. The Technical Representative shall havereasonable access to University facilities where the Research Project is beingconducted, but the exact time and manner of such access shall be determined bythe Principal Investigator.

 

2.3. Records, Materials, and Reports.The Principal Investigator will prepare and maintain records containing allResearch Results, including laboratory notebooks maintained in accordance withcustomary academic practice. During the term of this Agreement, and at theconvenience of the Principal Investigator, the Technical Representative shallhave reasonable access to such research records, and the Principal Investigatoragrees to furnish Sponsor, upon request, with reasonable amounts of any ProjectMaterials, subject to availability. Within ninety (90) days after theexpiration or termination of this Agreement, the Principal Investigator shalldeliver to Sponsor a final report describing all significant Research Resultsin reasonable detail; provided, however, that the Principal Investigator mayextend this ninety-day deadline with the consent of Sponsor, which consentshall not be unreasonably withheld.

 

3. Contributions of Sponsor.

 

3.1. Contributions to Research Project.Sponsor shall contribute to the Research Project the financial support,equipment, personnel, technology, and other resources listed on Exhibit B(“Sponsor Contributions”). Sponsor may also furnish University and thePrincipal Investigator with certain Confidential Information and ProprietaryMaterials, which shall remain the property of Sponsor. University and thePrincipal Investigator reserve the right to refuse to accept any ConfidentialInformation or Proprietary Materials offered by Sponsor.

 

3.2. Payments to University. Inconsideration of the performance of the Research Project, Sponsor shall makeperiodic advance payments to University in the amounts listed on Exhibit B(“Sponsor Contributions”). Payments should be made in the name of “Universityof Massachusetts” and sent to Controller’s Office, 408 Goodell Building,University of Massachusetts, Amherst, Massachusetts. If this Agreement isterminated prior to its expiration for any reason other than a material breachby University (as described in Section 6.3.), then on the effective date ofsuch termination, Sponsor shall pay University the entire amount of anyuncancellable financial commitments that University intended to pay through SponsorContributions, including without limitation (i) salaries for appointedemployees for the remainder of their term of appointment (e.g., postdoctoralfellows) and stipends for graduate students and (ii)

 

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University expenses previously incurred for equipment, travel, andassociated indirect costs. Upon the request of Sponsor made within thirty (30)days after the expiration or termination of this Agreement, University shallfurnish Sponsor with a final accounting of all expenses incurred in connectionwith the Research Project and all funds received from Sponsor pursuant to thisSection 3.2., together with a check payable to Sponsor in the amount of anyunexpended and uncommitted funds, failing which University shall retain anyunexpended funds.

 

3.3. Use of Funds. University shallmonitor expenditures, in accordance with its institutional policies, to ensurethat the funds provided by Sponsor arc spent in connection with the performanceof the Research Project.

 

3.4. Ownership of Equipment. Upontermination or expiration of this Agreement, University shall retain title toall equipment purchased or fabricated by University with funds provided bySponsor.

 

4. Confidential Information, ProprietaryMaterials; Publications.

 

4.1. Confidential Information.

 

(a) Designation. ConfidentialInformation that is disclosed in writing shall be marked with a legendindicating its confidential status (such as “Confidential” or “Proprietary”).Confidential Information that is disclosed orally or visually shall bedocumented in a written notice prepared by the Disclosing Party and deliveredto the Receiving Party within thirty (30) days of the date of disclosure; suchnotice shall summarize the Confidential Information disclosed to the ReceivingParty and reference the time and place of disclosure.

 

(b) Obligations. During the term ofthis Agreement and thereafter for a period of five (5) years, the ReceivingParty shall (i) maintain all Confidential Information in strict confidence,except that the Receiving Party may disclose or permit the disclosure of anyConfidential Information to its directors, officers, employees, consultants,and advisors who are obligated to maintain the confidential nature of suchConfidential Information and who need to know such Confidential Information forthe performance of the Research Project; (ii) use all Confidential Informationsolely for the performance of the Research Project; and (iii) allow itsdirectors, officers, employees, consultants, and advisors to reproduce the ConfidentialInformation only to the extent necessary for performance of the ResearchProject, with all such reproductions being considered Confidential Information.

 

(c) Exceptions. The obligations of the Receiving Party underSection 4.l.(b) above shall not apply to the extent that the Receiving Partycan demonstrate that certain Confidential Information (i) was in the publicdomain prior to the time of its disclosure under this Agreement; (ii) enteredthe public domain after the time of its disclosure under this Agreement throughmeans other than an unauthorized disclosure resulting from an act or omissionby the Receiving Party; (iii) was independently developed or discovered by theReceiving Party without use of the Confidential Information; (iv) is or wasdisclosed to the Receiving Party at any time, whether prior to or after thetime of its disclosure under this Agreement, by a third party having nofiduciary relationship with the Disclosing Party and having no obligation of confidentialitywith respect to such Confidential Information; or (v) is required to bedisclosed to comply with applicable laws or regulations, or with a court oradministrative order, provided that the Disclosing

 

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Party receives reasonable prior written notice of such disclosure.

 

(d) Ownership and Return. TheReceiving Party acknowledges that the Disclosing Party (or any third partyentrusting its own information to the Disclosing Party) claims ownership of itsConfidential Information in the possession of the Receiving Party. Upon theexpiration or termination of this Agreement, and at the request of theDisclosing Party, the Receiving Party shall return to the Disclosing Party alloriginals, copies, and summaries of documents, materials, and other tangiblemanifestations of Confidential Information in the possession or control of theReceiving Party, except that the Receiving Party may retain one copy of theConfidential Information in the possession of its legal counsel solely for thepurpose of monitoring its obligations under this Agreement.

 

4.2. Proprietary Materials.

 

(a) Limited Use and Transfer. TheRecipient shall use Proprietary Materials only for the performance of theResearch Project. The Recipient shall use the Proprietary Materials only in compliancewith all applicable federal, state, and local laws and regulations. TheRecipient shall not use the Proprietary Materials in any  in vivo experiments on human subjects. TheRecipient shall not transfer any Proprietary Materials to any third partywithout the prior written consent of the Supplier.

 

(b) Warranty Disclaimer. AnyProprietary Materials that are furnished to a party pursuant to this Agreementare provided for experimental purposes and may have hazardous properties. THESUPPLIER MAKES NO REPRESENTATIONS, AND EXTENDS NO WARRANTIES OF ANY KIND,EITHER EXPRESS OR IMPLIED, WITH RESPECT TO ANY PROPRIETARY MATERIALS. THERE ARENO EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULARPURPOSE, OR THAT THE USE OF PROPRIETARY MATERIALS WILL NOT INFRINGE ANY PATENTRIGHTS OR OTHER PROPRIETARY RIGHTS OF A THIRD PARTY.

 

(c)Ownership and Return. The Recipient acknowledges that the Supplier (orany third party entrusting its Materials to the Supplier) claims ownership ofits Proprietary Materials in the possession of the Recipient. The Recipientagrees to cause its employees to execute and deliver any documents of assignmentor conveyance to effectuate the ownership rights of the Supplier in ProprietaryMaterials. Upon the expiration or termination of this Agreement, the Recipientshall at the instruction of Supplier either destroy or return any unusedProprietary Materials.

 

4.3. Publications. University and itsemployees will be free to publicly disclose (through journals, lectures, orotherwise) the Research Results, provided that the Principal Investigator shallhave provided a copy of the proposed disclosure to Sponsor at least sixty (60)days prior to the submission of any written publication and at least thirty(30) days prior to any oral public disclosure (the “Review Period”) to allow Sponsorto determine whether any Invention or its Confidential Information would bedisclosed. The parties expressly agree that research grantproposals submitted to federal, state, or local agencies or non-profitorganizations shall not be subject to review under this Section. If Sponsorreasonably determines that the proposed disclosure would reveal an Invention orSponsor Confidential Information, then Sponsor shall notify University and thePrincipal Investigator of such determination and its basis prior to the expirationof the Review Period. With respect to disclosure of an Invention, upon receiptof timely notice by Sponsor, the Principal Investigator agrees to delaysubmission of the written publication or presentation of the oral publicdisclosure until one of the following events occurs: (i) Sponsor and

 

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University agree that no patentable Invention exists; (ii) Universityor Sponsor files a patent application claiming the relevant Invention pursuantto Article 5; (iii) Sponsor, University, and Principal Investigator jointlyagree upon deletions that prevent disclosure of any Invention; or (iv) a periodof sixty (60) days elapses commencing with the effective date of notice toUniversity. With respect to disclosure of Sponsor Confidential Information,upon receipt of timely notice by Sponsor, the Principal Investigator agrees todelete such information from any proposed disclosure.

 

5*.*Intellectual Property.

 

5.1. Assignment of Rights in Inventionsand Project Materials. The Principal Investigator agrees to assign toUniversity all rights in Inventions and commercial rights in Project Materials.The Principal Investigator shall certify that every person who may be involvedin the Research Project shall have signed the University ParticipationAgreement, which assigns to University all rights in Inventions and commercialrights in Project Materials. Sponsor represents and warrants that all of itsemployees and consultants who may be involved in the Research Project shallhave agreed to assign to Sponsor all rights in Inventions and all commercialrights in Project Materials.

 

5.2. Ownership of Patent Rights andProject Materials. In accordance with United States patent law, Universityshall have sole ownership of all University Patent Rights and University andSponsor shall have joint, undivided ownership of all Joint Patent Rights.University shall have sole ownership of commercial rights in all ProjectMaterials not claimed in the Patent Rights; however, if a Project Material incorporatesone or more Sponsor Proprietary Materials, University may not exploitcommercial rights in that Project Material without the written consent ofSponsor.

 

5.3. Notice of Inventions and ProjectMaterials. The Principal Investigator shall promptly disclose to Universitythe conception or reduction to practice of any Invention and the development ordiscovery of any commercially valuable Project Material that is not otherwisedisclosed as an Invention. University and Sponsor shall provide prompt writtennotice to the other of the internal disclosure by its employees of anyInvention. University and Sponsor shall discuss whether to Obtain Patent Rightsfor the Invention and whether such Patent Rights would constitute UniversityPatent Rights or Joint Patent Rights. University shall provide prompt writtennotice to Sponsor of the internal disclosure of any commercially valuable ProjectMaterial that is not otherwise disclosed as an Invention.

 

5.4. Responsibility for Patent Rights.

 

(a) Primary Responsibility with University.University shall have primary responsibility, at the expense of Sponsor, forthe preparation, filing, prosecution, and maintenance of all University Patent Rightsand Joint Patent Rights, using patent counsel reasonably acceptable to SponsorUniversity shall consult with Sponsor as to the preparation, filing,prosecution, and maintenance of all such Patent Rights reasonably prior to anydeadline or action with the U.S. Patent & Trademark Office or any foreignpatent office and shall furnish Sponsor with copies of all relevant documentsreasonably in advance of such consultation.

 

(b) Secondary Responsibility with Sponsor.In the event that University desires to abandon any patent or patentapplication within the Patent Rights, or if University declines to assumeresponsibility for obtaining patent protection for any Invention, Universityshall provide Sponsor with reasonable prior

 

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written notice of such intended abandonment or decline ofresponsibility, and Sponsor shall have the right, at its expense, to prepare,file, prosecute, and maintain the relevant Patent Rights.

 

(c) Cooperation. University andSponsor shall cooperate fully in the preparation, filing, prosecution, andmaintenance of all University Patent Rights and Joint Patent Rights. Suchcooperation includes, without limitation, (i) promptly executing all papers andinstruments or requiring employees of University or Sponsor to execute suchpapers and instruments as reasonable and appropriate so as to enable Universityor Sponsor to file, prosecute, and maintain such Patent Rights in any country;and (ii) promptly informing the other party of matters that may affect thepreparation, filing, prosecution, or maintenance of any such Patent Rights.

 

(d) Payment of Expenses. Within thirty(30) days after University invoices Sponsor, Sponsor shall reimburse Universityfor all reasonable patent-related expenses incurred by University pursuant toSubsection 5.4.(a). University shall have no obligation to reimburse Sponsorfor expenses incurred by Sponsor pursuant to Subsection 5.4.(b). Sponsor mayelect, upon sixty (60) days written notice to University, to cease payment ofthe expenses associated with obtaining or maintaining patent protection for oneor more Patent Rights in one or more countries. In such event, Sponsor shalllose all rights under this Agreement with respect to such Patent Rights in suchcountries.

 

5.5. Option for Exclusive License.University hereby grants Sponsor a first option to obtain a worldwide,royalty-bearing, exclusive license (with the right to sublicense) under itscommercial rights in any University Patent Rights and Joint Patent Rights andUniversity Project Materials and Joint Project Materials (the “Option Right”).Sponsor may exercise the Option Right with respect to a particular Patent Rightor Project Material (if any) by written notice to University together withpayment of Ten Thousand Dollars ($10,000.00) license fee for each invention inwhich University claims rights, both of which must be received by Universitynot later than sixty (60) days after the disclosure to Sponsor of the relevantInvention (the “Option Period”). If Sponsor elects not to exercise the OptionRight, or fails to exercise the Option Right during the Option Period,University shall be free to license its commercial rights under the relevantPatent Right to any third party. If Sponsor does elect to exercise the OptionRight, University and Sponsor shall negotiate in good faith a license agreementcontaining commercially reasonable terms and conditions. If University andSponsor are unable to reach agreement within six (6) months after Sponsorexercised the Option Right (the “Negotiation Period”), University may offer itscommercial rights in the relevant Patent Right to any third parties; provided,however, that for a period of one (1) year after the Negotiation Periodexpires, University may only offer such rights to third parties on terms andconditions that are not more favorable than the last offer made by Universityto Sponsor, unless University first provides Sponsor with written notice of themore favorable offer and Sponsor either (i) declines in writing to accept theoffer or (ii) fails to respond to the offer within thirty (30) days afterreceiving such notice.

 

5.6 Use of Research Results and ProjectMaterials. Each party shall have the unrestricted right to use ResearchResults for any purpose and to use Project Materials for internal research (butnot in a commercial product or in connection with a commercial service); provided,however, that in the case of Sponsor, such use does not infringe any claim of apatent application or an issued patent included in the University Patent Rightsfor which Sponsor has failed to obtain a license as provided in Section 5.5.above. If Sponsor desires to obtain a license under the commercial rights ofUniversity in any Project Materials, University agrees to discuss thepossibility of granting such a license, provided that such

 

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commercial rights are available for licensing when Sponsor makes itsrequest.

 

5.7. Copyrightable Works. Universityor its employees shall have sole ownership of any copyrighted or copyrightableworks (including reports and publications) that are created by University employeesin the performance of the Research Project. University and the PrincipalInvestigator hereby grant Sponsor an irrevocable, royalty-free,nontransferable, non-exclusive right to copy and distribute any researchreports furnished to Sponsor under this Agreement and to prepare, copy, and**distributederivative works based on these research reports.

 

6. Term and Termination.

 

6.1. Term. This Agreement shallcommence on the Effective Date and shall remain in effect for a period of three(3) years, unless earlier terminated in accordance with the provisions of thisAgreement.

 

6.2. Loss of Principal Investigator.If the Principal Investigator leaves University or otherwise terminates hisinvolvement in the Research Project, and if University and Sponsor fail toidentify a mutually acceptable substitute as provided in Section 2.1., Sponsormay terminate this Agreement upon sixty (60) days prior written notice toUniversity.

 

6.3. Termination for Default. In theevent that either party commits a material breach of its obligations under thisAgreement and fails to cure that breach within sixty (60) days after receivingwritten notice thereof, the other party may terminate this Agreementimmediately upon written notice to the party in breach.  If the alleged breach involves nonpayment ofany amounts due University under this Agreement, Sponsor shall have only oneopportunity to cure a material breach for which it receives notice as describedabove; any subsequent material breach by Sponsor will entitle University toterminate this Agreement immediately upon written notice to Sponsor, withoutthe sixty-day cure period.

 

6.4. Force Majeure. Neither party will beresponsible for delays resulting from causes beyond the reasonable control ofsuch party, including without limitation fire, explosion, flood, war, strike,or riot, provided that the nonperforming party uses commercially reasonableefforts to avoid or remove such causes of nonperformance and continuesperformance under this Agreement with reasonable dispatch whenever such causesare removed.

 

6.5. Effect of Termination. The followingprovisions shall survive the expiration or termination of this Agreement:Articles 1, 4, and 7; Sections 2.3. (obligation to deliver final report), 3.2.(obligation to deliver final accounting), 6.5., 8.2., 8.3., 8.5., 8.14., and8.15. In addition, the provisions of Article 5 shall survive termination ofthis Agreement, as necessary to effectuate the rights of Sponsor, unlessUniversity has terminated this Agreement because of a material breach bySponsor pursuant to Section 6.3.

 

7.Dispute Resolution.

 

7.1. Procedures Mandatory. The partiesagree that any dispute arising out of or relating to this Agreement shall beresolved solely by means of the procedures set forth in this Article, and thatsuch procedures constitute legally binding obligations that are an essentialprovision of this Agreement; provided, however, that all procedures anddeadlines specified in this Article may be modified by written agreement of theparties. If either party fails to observe the procedures of this Article, asmodified by their

 

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written agreement, the other party may bring an action for specificperformance in any court of competent jurisdiction.

 

7.2. Dispute Resolution Procedures.

 

(a) Negotiation. In the event of anydispute arising out of or relating to this Agreement, the affected party shallnotify the other party, and the parties shall attempt in good faith to resolvethe matter within ten (10) days after the date such notice is received by theother party (the “Notice Date”). Any disputes not resolved by good faithdiscussions shall be referred to senior executives of each party, who shallmeet at a mutually acceptable time and location within thirty (30) days afterthe Notice Date and attempt to negotiate a settlement.

 

(b) Mediation. If the matter remainsunresolved within sixty (60) days after the Notice Date, or if the seniorexecutives fail to meet within thirty (30) days after the Notice Date, eitherparty may initiate mediation upon written notice to the other party, whereuponboth parties shall be obligated to engage in a mediation proceeding under thethen current Center for Public Resources (“CPR”) Model Procedure for Mediationof Business Disputes, except that specific provisions of this Section shalloverride inconsistent provisions of the CPR Model Procedure. The mediator willbe selected from the CPR Panels of Neutrals. If the parties cannot agree uponthe selection of a mediator within ninety (90) days after the Notice Date, thenupon the request of either party, the CPR shall appoint the mediator. Theparties shall attempt to resolve the dispute through mediation until one of thefollowing occurs: (i) the parties reach a written settlement; (ii) the mediatornotifies the parties in writing that they have reached an impasse; (iii) theparties agree in writing that they have reached an impasse; or (iv) the partieshave not reached a settlement within one hundred and twenty (120) days afterthe Notice Date.

 

(c) Trial Without Jury. If the partiesfail to resolve the dispute through mediation, or if neither party elects toinitiate mediation, each party shall have the right to pursue any otherremedies legally available to resolve the dispute, provided, however, that theparties expressly waive any right to a jury trial in any legal proceeding underthis Section.

 

73.**Preservation of Rights PendingResolution.

 

(a) Performance to Continue. Eachparty shall continue to perform its obligations under this Agreement pendingfinal resolution of any dispute arising out or relating to this Agreement;provided, however, that a party may suspend performance of its obligationsduring any period in which the other party fails or refuses to perform itsobligations.

 

(b) Provisional Remedies. Although theprocedures specified in this Article are the sole and exclusive procedures forthe resolution of disputes arising out of relating to this Agreement, either partymay seek a preliminary injunction or other provisional equitable relief if, inits reasonable judgment, such action is necessary to avoid irreparable harm toitself or to preserve its rights under this Agreement.

 

(c) Statute of Limitations. Theparties agree that all applicable statutes of limitation and time-baseddefenses (such as estoppel and laches) shall be tolled while the procedures setforth in Subsections 7.2.(a) and 7.2(b) are pending. The parties shall take anyactions necessary to effectuate this result.

 

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8*.*Miscellaneous.

 

8.1. Compliance with Law and Policies.Sponsor agrees to comply with applicable law and the policies of University inthe area of technology transfer, as set forth on Exhibit C: The Intellectual PropertyPolicy, the Policy on Conflicts of Interests Relating to the IntellectualProperty and Commercial Ventures, and the Policy on Faculty Consulting andOutside Activities. Sponsor shall promptly notify University of any violationthat Sponsor knows or has reason to believe has occurred or is likely to occur.

 

8.2.Indemnification.

 

(a) Indemnity. Sponsor shallindemnify, defend, and hold harmless University and its trustees, officers,faculty, students, employees, and agents and their respective successors, heirsand assigns (the “Indemnitees”), against any liability, damage, loss, orexpense (including reasonable attorneys fees and expenses of litigation)incurred by or imposed upon any of the Indemnitees in connection with anyclaims, suits, actions, demands or judgments arising out of any theory ofliability (including without limitation actions in the form of tort, warranty,or strict liability and regardless of whether such action has any factualbasis) relating to this Agreement or concerning any product, process, orservice that is made, used, or sold pursuant to any right or license grantedunder this Agreement; provided, however, that such indemnification shall notapply to any liability, damage, loss, or expense to the extent directlyattributable to (i) the negligent activities or intentional misconduct of theIndemnitees or (ii) the settlement of a claim, suit, action, or demand byIndemnitees without the prior written approval of Sponsor.

 

(b) Procedures. The Indemnitees agreeto provide Sponsor with prompt written notice of any claim, suit, action,demand, or judgment for which indemnification is sought under this Agreement. Sponsoragrees, at its own expense, to provide attorneys reasonably acceptable toUniversity to defend against any such claim. The Indemnitees shall cooperatefully with Sponsor in such defense and will permit Sponsor to conduct andcontrol such defense and the disposition of such claim, suit, or action (includingall decisions relative to litigation, appeal, and settlement); provided, however,that any Indemnitee shall have the right to retain its own counsel, at theexpense of Sponsor, if representation of such Indemnitee by the counselretained by Sponsor would be inappropriate because of actual or potential differencesin the interests of such Indemnitee and any other party represented by suchcounsel. Sponsor agrees to keep University informed of the progress in thedefense and disposition of such claim and to consult with University withregard to any proposed settlement.

 

8.3. Publicity Restrictions. Sponsorshall not use the name of University or any of its trustees, officers, faculty,students, employees, or agents, or any adaptation of such names, or any termsof this Agreement in any promotional material or other public announcement ordisclosure without the prior written consent of University. The foregoingnotwithstanding, Sponsor shall have the right to disclose such informationwithout the consent of University in any prospectus, offering memorandum, orother document or filing required by applicable securities laws or otherapplicable law or regulation, provided that Sponsor shall have given Universityat least ten (10) days prior written notice of the proposed text for thepurpose of giving University the opportunity to comment on such text.

 

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8.4. Warranty Disclaimer. Universitymakes no express warranties and disclaims any implied warranties as to anymatter relating to this Agreement, including without limitation the performanceor results of the Research Project; the availability of legal protection forany Research Results, Project Materials, Inventions, copyrightable works, or any**otherwork product of the Research Project; or the validity or enforceability of anyPatent Right that may be obtained pursuant to this Agreement. THERE ARE NOEXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULARPURPOSE FOR ANY PROJECT MATERIALS OR RESEARCH RESULTS, OR THAT THE USE OFPROJECT MATERIALS OR RESEARCH RESULTS WILL NOT INFRINGE ANY PATENT RIGHTS OROTHER PROPRIETARY RIGHTS OF A THIRD PARTY.

 

8.5. Notice to Other Investigators.The Principal Investigator shall furnish all investigators involved in theResearch Project, including faculty, staff, students, and post-doctoralfellows, with written notice of their obligations under Articles 4 and 5 ofthis Agreement.

 

8.6. Research Partially Funded by Grants.

 

(a) Federal Government. To the extentthat any Invention has been partially funded by the federal government, thisAgreement and the grant of any rights in such Invention is subject to and governedby federal law as set forth in 35 U.S.C. §§ 201-211, and the regulations promulgated thereunder, as amended, or anysuccessor statutes or regulations. If any term of this Agreement fails toconform with such laws and regulations, the relevant term shall be deemed aninvalid provision and modified by the parties pursuant to Section 8.16.

 

(b) Other Organizations. To the extentthat any Invention has been partially funded by a non-profit organization orstate or local agency, this Agreement and the grant of any rights in such Inventionis subject to and governed by the terms and conditions of the applicableresearch grant. If any term of this Agreement fails to conform with such termsand conditions, the relevant term shall be deemed an invalid provision andmodified by the parties pursuant to Section 8.16. At the request of Sponsor, Universityshall make available to Sponsor the terms and conditions of any research grantsthat will partially fund the Research Project.

 

8.7. Tax-Exempt Status. Sponsoracknowledges that University, as a public institution of the Commonwealth ofMassachusetts, holds the status of an exempt organization under the UnitedStates Internal Revenue Code. Sponsor also acknowledges that certain facilitiesin which the Research Project may be performed were financed through offeringsof tax-exempt bonds. If the Internal Revenue Service determines, or if counselto University reasonably determines, that any term of this Agreement jeopardizesthe tax-exempt status of University or the bonds used to finance Universityfacilities, the relevant term shall be deemed an invalid provision and modifiedby the parties pursuant to Section 8.16.

 

8.8. Relationship of Parties. For thepurposes of this Agreement, each party is an independent contractor and not anagent or employee of the other party. Neither party shall have authority tomake any statements, representations, or commitments of any kind, or to takeany action which shall be binding on the other party, except as may beexplicitly provided for in this Agreement or authorized in writing by the otherparty.

 

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8.9. Counterparts. This Agreement maybe executed in one or more counterparts, each of which shall be deemed anoriginal, and all of which together shall be deemed to be one and the sameinstrument.

 

8.10. Headings. All headings are forconvenience only and shall not affect the meaning of any provision of thisAgreement.

 

8.11. Binding Effect. This Agreementshall be binding upon and inure to the benefit of the parties and theirrespective permitted successors and assigns.

 

8.12. Assignment. This Agreement maynot be assigned by either party without the prior written consent of the otherparty, except that Sponsor may assign this Agreement to an affiliate or to asuccessor in connection with the merger, consolidation, or sale of all orsubstantially all of its assets or that portion of its business to which thisAgreement relates.

 

8.13. Amendment and Waiver. ThisAgreement may be amended, supplemented, or otherwise modified only by means ofa written instrument signed by both parties. Any waiver of any rights orfailure to act in a specific instance shall relate only to such instance andshall not be construed as an agreement to waive any rights or fail to act inany other instance, whether or not similar.

 

8.14. Governing Law. This Agreementshall be governed by and construed in accordance with the laws of theCommonwealth of Massachusetts irrespective of any conflicts of law principles.

 

8.15. Notice. Any notices required orpermitted under this Agreement shall be in writing, shall specifically refer tothis Agreement, and shall be sent by hand, recognized national overnightcourier, confirmed facsimile transmission, confirmed electronic mail, orregistered or certified mail, postage prepaid, return receipt requested, to thefollowing addresses or facsimile numbers of the parties:

 

If to University:

 

University of Massachusetts

Office of Grants & ContractsAdministration

Goodell Building

Amherst, Massachusetts 01003

Attention:      MargaretVidrine, Director

 

Tel: (413) 545-0698

Fax: (413) 545-5888

E-Mail: vidrine@resgs.umass.edu

 

If to Sponsor:

 

Advanced Cell Technology, Inc.

One Innovation Drive

Worcester, MA

Attention: Dr. Jose Cibelli, Vice Presidentof Research

 

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Tel: (508) 756-1212

Fax: (508) 756-0931

E-Mail: jcibelli@advancedcell.com

 

All notices under this Agreement shall be deemed effective uponreceipt. A party may change its contact information immediately upon writtennotice to the other party in the manner provided in this Section.

 

8.16. Severability. In the event thatany provision of this Agreement shall be held invalid or unenforceable for anyreason, such invalidity or unenforceability shall not affect any otherprovision of this Agreement, and the parties shall negotiate in good faith tomodify the Agreement to preserve (to the extent possible) their originalintent. If the parties fail to reach a modified agreement within sixty (60) daysafter the relevant provision is held invalid or unenforceable, then the disputeshall be resolved in accordance with the procedures set forth in Article 7. Whilethe dispute is pending resolution, this Agreement shall be construed as if suchprovision were deleted by agreement of the parties.

 

8.17. Entire Agreement. This Agreementconstitutes the entire agreement between the parties with respect to itssubject matter and supersedes all prior agreements or understandings betweenthe parties relating to its subject matter.

 

IN WITNESS WHEREOF, the parties have causedthis Agreement to be executed by their duly authorized representatives as ofthe date first written above.

 
| UNIVERSITY  OF MASSACHUSETTS  AT AMHERST | ADVANCED  CELL TECHNOLOGY, INC.       |
|------------------------------------------|---------------------------------------|
|                                     |                                  |
|                                     |                                  |
| By:                                      | /s/ Carol P. Sprague                  |   | By: | /s/ Michael D.West |   |
|                                     | Carol P. Sprague                      |   | Michael D.West |
|                                     | Assoc. Director, Office of  Grant and |   | President and CEO |
|                                     | Administration                        |   |
|                                          |                                       |  |  |  |  |  |

 

I hereby acknowledge and agree to the termsof Articles 4 and 5 and Sections 2.2., 2.3., and 8.5. of this Agreement, and Ireaffirm that I will assign to University all of my right, title, and interestin any Inventions and Project Materials.

 
| ACKNOWLEDGED AND AGREED: |
|--------------------------|
|                     |
|                     |
| /s/ Rafael  Fissore      |   |
| Dr. Rafael Fissore       |
| Principal Investigator   |

 

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