**Exhibit10.9**

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**NONEXCLUSIVESUBLICENSE AGREEMENT**

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**between**

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**CYAGRA,INC.,**

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**ADVANCEDCELL TECHNOLOGY, INC.,**

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**A.C.T.GROUP, INC.**

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**and**

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**GOYAIKE,S.A.**

 

This Nonexclusive Sublicense Agreement (the “Agreement”)is made and entered into as of this 20th day of November,2001 (the “Effective Date”) by and between Cyagra, Inc., a Delawarecorporation with a place of business at One Innovation Drive, Worcester,Massachusetts 01605 (“CYAGRA”), Advanced Cell Technology, Inc., a Delawarecorporation with a place of business at One Innovation Drive, Worcester,Massachusetts 01605 (“ACT INC”), A.C.T. Group, Inc., a Delawarecorporation with a place of business at One Innovation Drive, Worcester,Massachusetts 01605(“ACT GROUP,” together with CYAGRA, ACT INC and respectivecurrent and future Affiliates, the “Licensors”) and Goyaike, S.A., an Argentinacorporation with a place of business at Av, do Mayo 701, Piso 16, 1084 BuenosAires, Argentina (“GOYAIKE,” together with Licensors, the “parties”).  As set forth below, the University ofMassachusetts (the “University”) has agreed to be bound by certain provisionsof this Agreement.

 

**RECITALS**

 

WHEREAS, Licensors own or have licensed witha sublicensable interest the CYAGRA Patent Rights and the CYAGRA Technology (asdefined below), which includes certain scientific methods and techniques forcloning animals that may be valuable in the Field of Agriculture (as definedbelow);

 

WHEREAS, GOYAIKE desires to obtain anon-exclusive license and sublicense from the Licensors under the CYAGRAPatents Rights and the CYAGRA Technology to use the CYAGRA Patent Rights andthe CYAGRA Technology for the purpose of developing and selling certainproducts and performing certain services in the Field of Agriculture;

 

WHEREAS, Licensors are willing to grant sucha license and sublicense to GOYAIKE upon the terms and conditions set forthbelow;

 

WHEREAS, the sublicense of ACT INC’s andCYAGRA’s rights under the UMASS Rights (as defined below) to GOYAIKE under thisAgreement shall be subject to the relevant terms of the UMASS License (asdefined below);

 

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WHEREAS, the sublicense of ACT INC’s andCYAGRA’s rights under the TUFTS Rights (as defined below) to GOYAIKE under thisAgreement shall be subject to the relevant terms of the TUFTS License (asdefined below); and

 

WHEREAS, the sublicense of ACT GROUP’s rightsunder the LIU Rights (as defined below) to GOYAIKE under this Agreement shallbe subject to the relevant terms of the LIU License (as defined below).

 

NOW THEREFORE, in consideration of the mutualcovenants, agreements, representations, and warranties contained in thisAgreement, and other good and valuable consideration, the adequacy and receiptof which is hereby acknowledged, Licensors and GOYAIKE agree as follows:

 

**1.**                                      **DEFINITIONS.**  As usedin this Agreement, the following terms shall have the meanings set forth below.

 

1.1                                 *“Affiliate”* means any corporation, company,partnership, joint venture and/or firm which controls, in whatever countryorganized, that is controlled by or is under common control with a party.  For purposes of this definition, “control”means (a) in the case of corporate entities, direct or indirect ownershipof more than fifty percent (50%) of the stock or shares entitled to vote forthe election of directors; and (b) in the case of non-corporate entities,direct or indirect ownership of more than fifty percent (50%) of the equityinterest with the power to direct the management and policies of suchnoncorporate entities.

 

1.2                                 *“ConfidentialInformation”* includes,without limitation, any scientific, technical, financial, customer, tradebusiness or other information disclosed by one party to the other, or by GOYAIKEto the University, whether directly or through CYAGRA, which is specifically designatedby the disclosing party as confidential or proprietary, or which, under all ofthe given circumstances, ought reasonably to be treated as confidentialinformation of the disclosing party; provided, however, that the University’sobligation to treat information disclosed to the University as confidentialshall be limited to information which is specifically designated by the disclosingparty as confidential or proprietary or words of similar import.  Such information may be disclosed in oral,visual or written form (including magnetic, optical or other media).  Each party’s Confidential Informationspecifically includes without limitation the respective party’s business plansand business practices, the terms of this Agreement, scientific knowledge, researchand development or know-how, processes, inventions, techniques, formulae,products and product plans, business operations, customer requirements,designs, sketches, photographs, drawings, specifications, reports, studies,findings, data, plans or other records, biological materials, software,margins, payment terms and sales forecasts, volumes and activities, designs, computercode, technical information, costs, pricing, financing, business opportunities,personnel, and information of CYAGRA or GOYAIKE, as applicable, relating to theCYAGRA Licensed Property or Licensed Products or Licensed Services.  Confidential Information does not includeinformation which (a) was known to the receiving party at the time it wasdisclosed, other than by previous disclosure by the disclosing party, asevidenced by the written records of the receiving party at the time ofdisclosure; (b) is at the time of disclosure or later becomes publiclyknown other than through a breach of this Agreement; (c) is lawfully andin good faith made available to the receiving party by a third party who, tothe receiving party’s knowledge

 

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after inquiry,did not derive it from the disclosing party and who imposed no obligation ofconfidence on the receiving party; or (d) is developed by the receivingparty independent of any disclosure by the disclosing party, as evidenced bythe written records of the receiving party.

 

1.3                                 *“CYAGRA Developments”* means the following that areconceived, discovered, invented, developed, created, made, reduced to practiceby, acquired by or licensed to Licensors during the term of this Agreement andwhich are related, useful, necessary or required to develop or manufacturecloned, transgenic, non-human animals, and the cells and tissues from those animals,excluding avian and equine species; discoveries, inventions, developments,patents, patent applications and patent rights, know-how (including know-howrelated to the production of cloned transgenic cattle, goats, sheep, pigs andany other future transgenic non-human animal, and the cells and tissues fromthose animals, excluding avian and equine species), materials, trade secrets,ideas, designs, drawings, techniques, methodologies, processes, modifications, innovations,improvements, writings, documentation, data and other rights (whether or not protectibleunder United States or foreign patent, copyright or similar laws), butexcluding any such rights or technology that are hereafter acquired byLicensors subject to a restriction that would prevent or prohibit the licensingthereof to GOYAIKE: provided, however, that Licensors agree that (a) Licensorsshall exercise reasonable efforts to avoid any such restrictions in any futureacquisition of such rights or technology and (b) Licensors shall notifyGOYAIKE in writing prior to entering into such restrictions.

 

1.4                                 *“CYAGRA LicensedProperty”* means theCYAGRA Patent Rights, CYAGRA Developments and the CYAGRA Technology.

 

1.5                                 *“CYAGRA Patent Rights”* means all patents and patentapplications which are owned or controlled by or licensed to Licensors whichare related, useful, necessary or required to develop or manufacture cloned,transgenic, non-human animals, excluding avian and equine species, and thecells and tissues from those animals, including, but not limited to, thepatents and patent applications identified on Schedule A attached heretoand the rights thereunder, all divisionals, continuations,continuations-in-part, reissues, reexaminations, extensions, substitutions, andforeign counterparts thereof.  Theparties agree that Schedule A may from time to time be amended after theEffective Date to reflect updates thereto.

 

1.6                                 *“CYAGRA Technology”* means the following which are owned or controlled by orlicensed to Licensors which are related, useful, necessary or required todevelop or manufacture cloned, transgenic, non-human animals and the cells andtissues from those animals, excluding avian and equine species: confidentialinformation, knowledge and data, including but not limited to, inventions,trade secrets, ideas, designs, drawings, know-how (including know-how relatedto the production of cloned transgenic cattle, goats, sheep, pigs and any otherfuture transgenic non-human animal, and the cells and tissues from thoseanimals, excluding avian and equine species), materials, processes, techniques,methodologies, like technological information and other rights (whether or notprotectible under United States or foreign patent, copyright or similar laws).

 

1.7                                 *“Field of Agriculture”* means the production of food orfiber, and rendering of services or uses that relate to the production of suchproducts.  Specifically excluded from theField of Agriculture are all purposes related to medical therapies, including,but not limited to,

 

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the productionof biopharmaceutical agents, proteins, peptides and polypeptides in milk forpharmaceutical, nutraceutical or other use.

 

1.8                                 *“Licensed Product”* means any product that (i) cannot be developed, manufactured,used, or sold without infringing one or more Valid Claims under the CYAGRA PatentRights, or (ii) uses or incorporates some portion of the CYAGRA Technologyor the CYAGRA Developments.  Withoutlimiting the generality of the foregoing, and by way of illustration but notlimitation, Licensed Products include cloned cattle, goats, sheep and pigs in theField of Agriculture, the progeny of such animals and semen, ova or embryosobtained from such animals.

 

1.9                                 *“Licensed Service”* means any service that (i) cannot be developed orperformed without using at least one process, method or use that infringes oneor more Valid Claims under the CYAGRA Patent Rights or (ii) uses someportion of the CYAGRA Technology or the CYAGRA Developments.

 

1.10                           *“LIU License”* means the “Terms for Exclusive License Agreement” between ACTGROUP and Dr. Chengyu Liu dated December 20, 2000.

 

1.11                           *“LIU Rights**”*means CYAGRA Patent Rights and CYAGRA Technology that are owned or controlledby or licensed to, or become owned or controlled by or licensed to ACT GROUPunder the LIU License.

 

1.12                           *“Net Sales”* means the total invoice price earned on all sales by GOYAIKE(or by any third party on behalf of GOYAIKE) of Licensed Products and/orLicensed Services in any country in the Territory after deducting, to theextent not already deducted, normal and customary trade, dealer, quantity, andcash discounts actually allowed; allowances for credits granted on account ofrejections, returns, or price reductions; governmental sales taxes and othercharges imposed on such sales; and freight, insurance, customs, duties, andother landing charges.  In the event anyproduct is sold as a component of a combination of functional elements, netsales price for purposes of determining royalty payments on such combinationshall be calculated by multiplying the average per unit net sales price of theLicensed Product portion of the combination when sold separately in theapplicable country in the Territory during the accounting period in which thesale was made by the number of units of product sold as part of suchcombination product.  In addition, NetSales shall include the amount of any milestone payment received based on theperformance of GOYAIKE in connection with the development of Licensed Productsand/or Licensed Services.

 

In any transfers of Licensed Products betweenGOYAIKE and an Affiliate, Net Sales shall be calculated based on the final saleof the Licensed Product to an independent third party by such Affiliates.  In the event that GOYAIKE or an Affiliate orSublicensee receives non-monetary consideration for any Licensed Products orLicensed Services, Net Sales shall be calculated based on the fair market valueof such consideration.  In the event thatGOYAIKE or its Affiliates or Sublicensees use or dispose of a Licensed Productin the provision of a commercial service other than a Licensed Service, theLicensed Product shall be considered sold and the Net Sales shall be calculatedbased on the sales price of the Licensed Product to an independent third partyor, in the absence of such sales, on the fair market value of the Licensed

 

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Product asdetermined by the parties in good faith.

 

1.13                           *“Territory”* means the countries and jurisdictions located in South America.

 

1.14                           *“TUFTS License”* means the License Agreement between CYAGRA’s parent ACT INC andTufts University dated May 31, 2001.

 

1.15                           *“TUFTS Rights”* means Cyagra Patent Rights and CYAGRA Technology that are ownedor controlled by or licensed to, or become owned or controlled by or licensedto ACT INC (and as an “Affiliate” of ACT INC under the TUFTS License, toCYAGRA) from Tufts University under the TUFTS License.

 

1.16                           *“UMASS License”* means the Exclusive License Agreement between CYAGRA’s parentACT INC and the University dated April 16, 1996, as amended by theAmendment to Exclusive License Agreement dated September 1, 1997 and theSecond Amendment to Exclusive License Agreement dated May 31, 2000.

 

1.17                           *“UMASS Rights”* means CYAGRA Patent Rights and CYAGRA Technology that are ownedor controlled by or licensed to, or become owned or controlled by or licensedto ACT INC (and, as an “Affiliate” of ACT INC under the UMASS License, toCYAGRA) from the University under the UMASS License.

 

1.18                           *“Valid Claim”* means a claim of an issued patent which has not expired, lapsedor become abandoned or declared invalid or unenforceable by a court ofcompetent jurisdiction or an administrative agency from which no appeal can beor has been taken within the time allowed for that appeal.

 

The use herein of the plural shall includethe singular and *vice versa* and the use of the masculine shallinclude the feminine.  Additional termsmay be defined throughout this Agreement.

 

**2.**                                      **GRANT OF RIGHTS.**

 

2.1                                 (a) LicenseGrant. (1) Subject to the terms of this Agreement, the Licensorshereby grant to GOYAIKE a nonexclusive, royalty-bearing, perpetual licenseunder its rights in the CYAGRA Licensed Property to develop, make, have made,import, export (to countries or territories located within the Territory), useand sell Licensed Products in the Territory in the Field of Agriculture and todevelop and perform Licensed Services in the Territory in the Field ofAgriculture.  The parties acknowledge,understand and agree that the license granted herein does not include the rightto grant further sublicenses to or under the CYAGRA Licensed Property; provided,however, GOYAIKE shall have the right to grant a sublicense to a thirdparty to develop and manufacture the Licensed Products and to develop andperform Licensed Services on behalf of GOYAIKE.  The parties further acknowledge, understandand agree that purchasers (i.e., end users) of Licensed Products shallhave the right to use the Licensed Products.

 

(2)                                  Tothe extent the license granted in 2.1(a) above includes a sublicense of

 

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any UMASSRights, such sublicense is subject to the relevant terms of the UMASS Licenseas it may be amended from time to time, providedthat (i) asprovided in Section 2.1(b) below, the UMASS License may not beamended in a manner that materially and adversely affects the rights andbenefits extended to GOYAIKE hereunder without the prior written consent ofGOYAIKE and (ii) in the event of any inconsistency between the UMASSLicense and Section 2.1(b) hereof, Section 2.1(b) hereofshall govern.  Licensors agree to provideGOYAIKE with prior written notice of any amendments to the UMASS License.

 

(3)                                  Tothe extent the license granted in 2.1(a) above includes a sublicense of anyTUFTS Rights, such sublicense is subject to the relevant terms of the TUFTSLicense as it may be amended from time to time, provided that the TUFTS Licensemay not be amended in a manner that materially and adversely affects the rightsand benefits extended to GOYAIKE hereunder without the prior written consent ofGOYAIKE.

 

(4)                                  Tothe extent the license granted in 2.1(a) above includes a sublicense of anyLIU Rights, such sublicense is subject to the relevant terms of the LIU Licenseas it may be amended from time to time, provided that the LIU License may notbe amended in a manner that materially and adversely affects the rights andbenefits extended to GOYAIKE hereunder without the prior written consent ofGOYAIKE.

 

(b) The UMASS License. GOYAIKEacknowledges that portions of the CYAGRA Licensed Property licensed to GOYAIKEhereunder are owned by the University and are licensed to CYAGRA and ACT INCunder the UMASS License.  Licensors andthe University represent and warrant to GOYAIKE and GOYAIKE agrees that, in theevent CYAGRA ceases to be an “Affiliate” of ACT INC as that term is defined inthe UMASS License, (i) GOYAIKE will thereafter make any payments due toCYAGRA directly to ACT INC, and (ii) promptly following such change instatus of CYAGRA under the UMASS License, the parties will amend this Agreementto reflect ACT INC’s status as the sole sublicensor of the UMASS Rightshereunder.  CYAGRA, ACT INC and theUniversity further represent and warrant to GOYAIKE, and GOYAIKE agrees that,in the event the UMASS License is terminated for any reason pursuant to theprovisions of the UMASS License, (i) GOYAIKE will thereafter make anypayments due to CYAGRA directly to the University during the Term of thisAgreement, and (ii) promptly following such termination of the UMASSLicense, Licensors, GOYAIKE and the University shall take all necessary stepsfor GOYAIKE to directly license the CYAGRA Licensed Property from theUniversity in a license agreement that reflects the applicable terms of thisAgreement and the UMASS License.  Licensorsacknowledge that any payments so made by GOYAIKE to the University shall becredited against any payments due and payable to CYAGRA hereunder.  For the avoidance of doubt, CYAGRA, ACT INC andthe University agree that the references to “Sublicensees” in Section 8.5of the UMASS License shall not apply to GOYAIKE and shall not be construed asvitiating the provisions of this Section 2.1(b), CYAGRA, ACT INC and theUniversity agree that the provisions of Section 2.2 of the UMASS Agreementproviding for the automatic assignment to the University of sublicenseesgranted by CYAGRA under said Section 2.2 shall not apply to the sublicenseby CYAGRA to GOYAIKE under this Agreement, and that the provisions of this Section 2.1(b) shallgovern in the event that CYAGRA ceases to be an “Affiliate” of ACT INC (as thatterm is defined in the UMASS License) or the UMASS License is terminated.  CYAGRA, ACT INC and the University agree thatGOYAIKE will not be bound by any amendment to the UMASS License

 

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that adverselyaffects GOYAIKE’s rights under this Agreement in any material respect, unlessGOYAIKE agrees in writing to such amendment.

 

(c) The TUFTS License. GOYAIKEacknowledges that portions of the CYAGRA Licensed Property licensed to GOYAIKEhereunder are owned by TUFTS University and are licensed to CYAGRA and ACT INCunder the TUFTS License.  ACT INC andCYAGRA represent and warrant to GOYAIKE and GOYAIKE agrees that, in the eventCYAGRA ceases to be an “Affiliate” of ACT INC as that term is defined in theTUFTS License, (i) GOYAIKE will thereafter, subject to Section 2.1(c)(ii),make any payments due to CYAGRA directly to ACT INC, and (ii) promptlyfollowing such change in status of CYAGRA under the TUFTS License, the partieswill amend this Agreement to reflect ACT INC’s status as the sole sublicensorof the TUFTS Rights hereunder.  GOYAIKEacknowledges and understands that in the event the TUFTS License is terminatedpursuant to the provisions of the TUFTS License, GOYAIKE’s sublicense of theTUFTS Rights shall, at the option of Tufts University, terminate or be assignedto Tufts University pursuant to the terms and conditions of the TUFTS License.

 

2.2                                 CYAGRADevelopments. Licensors agree, on a periodic basis (not less than semiannually) during the term of this Agreement, to provide to GOYAIKE a writtenreport of all CYAGRA Developments, provided that such reports shall be deemedConfidential Information subject to the provisions of Section 7 of thisAgreement, and all such CYAGRA Developments, whether or not patentable, relatedto the Field of Agriculture, are and shall be considered CYAGRA LicensedProperty and automatically licensed to GOYAIKE pursuant to Section 2.1(a).

 

2.3                                 TechnologyTraining. (a) In connection with the license granted in Section 2.1(a)above, CYAGRA agrees that it will, promptly after the Effective Date of thisAgreement, provide GOYAIKE with all information, data and training relating tothe CYAGRA Licensed Property as may be reasonably necessary to allow GOYAIKE toexploit said license.  Training (the “TechnologyTraining Program”) will be provided to GOYAIKE as follows: (1) Two GOYAIKEscientists will visit CYAGRA’s facilities in Worcester, Massachusetts, USA, forup to six weeks at a time mutually agreed upon by the parties, for training inthe use of the CYAGRA Licensed Property.  Travel and lodging (including meals and localtransportation) expenses incurred by the GOYAIKE scientists will be paid byGOYAIKE; the costs associated with the training of the scientists will be paidby CYAGRA. (2) Subsequent to the training described in (1) above, andat a time mutually agreed upon by the parties, at least one CYAGRA scientist ortechnician trained in the field of nuclear transfer (expected to be Dr. Cibelli)will spend up to two weeks at GOYAIKE’s facilities to complete training ofGOYAIKE personnel in the use of the CYAGRA Licensed Property.  Travel, lodging and all other reasonable expensesincurred by the CYAGRA scientist or technician in connection with providing thetraining will be paid by GOYAIKE. (3) GOYAIKE agrees that it will,consistent with the technical advice of CYAGRA’s scientists and technicians,upgrade its laboratory facilities to permit the practice of the CYAGRA LicensedProperty. It is anticipated that the upgrade of GOYAIKE’s laboratory facilitieswill include at a minimum the purchase of two micro-manipulator microscopes.

 

(b) The Technology Training Program willbe completed upon completion of the foregoing.  CYAGRA agrees, however, to continue to providereasonable additional training to GOYAIKE personnel at GOYAIKE’s expense, fromtime to time in the United States or at

 

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GOYAIKE’sfacilities as mutually agreed upon by the parties, subject to CYAGRA’s priorbusiness needs and obligations, in connection with GOYAIKE’s use of the CYAGRATechnology.

 

**3.**                                      **OBLIGATIONS RELATING TO COMMERCIALIZATION.**

 

3.1                                 GOYAIKEDiligence Requirements. GOYAIKE shall use reasonable efforts to developLicensed Products or Licensed Services and to introduce Licensed Products orLicensed Services into the commercial market; thereafter, GOYAIKE shall makeLicensed Products or Licensed Services reasonably available to the public.

 

3.2                                 SummaryReports by GOYAIKE. GOYAIKE shall maintain complete and accurate records ofLicensed Products and Licensed Services that are made, used, sold or performedby GOYAIKE (or on behalf of GOYAIKE) under this Agreement.  Not later than May 1st of eachyear following the Effective Date, GOYAIKE shall furnish Licensors and the Universitywith an executive summary report on the progress of its efforts during theprior year to develop and commercialize Licensed Products or Licensed Services,including without limitation research and development efforts, efforts toobtain regulatory approval, marketing efforts (including Licensed Products andLicensed Services made, used, sold or performed) and sales figures, provided thatsuch reports shall be deemed Confidential Information subject to the provisionsof Section 7 of this Agreement.

 

**4.**                                      **TERM AND TERMINATION.**

 

4.1                                 General.The license granted by Licensors to GOYAIKE under Section 2.1(a) willcommence on the Effective Date and shall remain in effect unless soonerterminated as provided herein.

 

4.2                                 Terminationby GOYAIKE. This Agreement may be terminated by GOYAIKE at any time withoutcause by giving sixty (60) days prior written notice to the Licensors.  Upon termination, GOYAIKE shall have nofurther obligations to pay any royalties, other than to submit a final reportand to pay any royalty payments that may be due and payable at termination.

 

4.3                                 Terminationfor Cause. This Agreement may be terminated by either party at any time inthe event that the other party is in default or breach of any materialprovision of this Agreement, by giving thirty (30) days prior written notice tothe other party specifying the cause of the termination; provided, however,that if the breach is cured within the thirty (30) day period, the notice shallbe withdrawn and shall be of no effect.

 

4.4                                 Terminationfor Infringement. GOYAIKE may immediately terminate this Agreement withrespect to any Licensed Product or Licensed Service on written notice toLicensors in the event that such Licensed Product or Licensed Service becomessubject to any claim that such Licensed Product or Licensed Service infringesthe intellectual property right of any third party.

 

4.5                                 Terminationfor Change in Law. GOYAIKE may immediately terminate this Agreement onwritten notice to Licensors in the event that there are any changes in law thatmay

 

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have materialadverse effect on GOYAIKE’s right to develop, make, have made, import, export,use and sell Licensed Products and to develop and perform Licensed Services.

 

4.6                                 Terminationof UMASS License, TUFTS License or LIU License. GOYAIKE may immediatelyterminate this Agreement on written notice to Licensors in the event that the UMASSLicense, TUFTS License or LIU License is terminated.

 

4.7                                 Terminationof TUFTS Rights or LIU Rights. GOYAIKE may immediately terminate itssublicense of the TUFTS Rights or the LIU Rights at any time on written noticeto Licensors.

 

4.8                                 Survivalof Obligations; Return of Confidential Information. Notwithstanding anytermination of this Agreement, the obligations of the parties under Section 7,as well as under any other provisions which by their nature are intended tosurvive any such termination, shall survive and continue in force.  Upon any termination of this Agreement, eachparty shall promptly return to the other party all written ConfidentialInformation, and all copies, summaries, notes or extracts thereof, to the otherparty.

 

4.9                                 ExistingStock. In the event that this Agreement terminates or expires, GOYAIKEshall retain limited rights to sell any Licensed Products existing or underproduction at the time of termination or expiration and to provide any LicensedServices related to such Licensed Products, subject to the terms of thisAgreement.

 

4.10                           AdditionalTermination Provisions. The foregoing termination rights are in addition toany termination rights that may be provided elsewhere in this Agreement.

 

**5.**                                      **PAYMENTS.**

 

5.1                                 LicenseFee. GOYAIKE shall pay to CYAGRA an initial license fee of TWO HUNDREDFIFTY THOUSAND DOLLARS ($250,000.00) (the “Initial License Fee”), one hundredpercent (100%) of which payment shall be deemed earned and shall be due andpayable to CYAGRA on the Effective Date.  The License Fee is not refundable and is notcreditable against other payments due to CYAGRA under this Agreement.

 

5.2                                 Royalties,Reports and Records.

 

(a) For each Licensed Product orLicensed Service sold by GOYAIKE (or by any third party on behalf of GOYAIKE),GOYAIKE shall pay to CYAGRA on a quarterly basis, as provided in Section 5.5(a) below,the royalties described in this Section 5.2(a), or the royalty set forthbelow in Section 5.2(b), as applicable:

 

(1) In the event that there is a ValidClaim under any CYAGRA Patent Right in a country within the Territory, GOYAIKEshall pay five and one-half percent (51/2%) of the NetSales of Licensed Products or Licensed Services sold by GOYAIKE (or by anythird party on behalf of GOYAIKE) in such country; or

 

(2) In the event that there is no ValidClaim under any CYAGRA Patent Right in a country within the Territory, GOYAIKEshall pay five percent (5%) of the Net Sales

 

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of LicensedProducts or Licensed Services sold by GOYAIKE (or by any third party on behalfof GOYAIKE) in such country that incorporates or utilizes CYAGRA Technology.

 

(b) In the case of a pending patentapplication, royalties shall be paid at the royalty rate set forth in Section 5.2(a)(2). Upon issuance of the patent royaltiesshall be payable at the royalty rate set forth in Section 5.2(a)(1).

 

(c) The obligation of GOYAIKE to payroyalties pursuant to Section 5.2(a)(1) on sales of Licensed Products andLicensed Services shall terminate on a country-by-country basis concurrentlywith the expiration or termination of the last applicable patent within theCYAGRA Patent Rights in the country in which the Licensed Product or LicensedServices is manufactured, sold or performed.

 

(d) If GOYAIKE fails to timely make anypayment required under this Section 5.2, such failure, not cured within thirty(30) of receiving a written notice of such failure to make a payment, shallconstitute a breach of a material provision under this Agreement and CYAGRA shallhave the right to terminate this Agreement in accordance with Section 4.2hereof.

 

5.3                                 MinimumRoyalty. Commencing on the fifth full calendar year of this Agreement (i.e.,the calendar year 2007), GOYAIKE shall be subject to minimum annual royaltiesfor each remaining calendar year of the term of this Agreement.  The amount of the minimum royalty shall be OneHundred Fifty Thousand ($150,000) dollars for the 2007 calendar year and shallthereafter increase at the rate of $50,000 per calendar year, but in no eventto exceed Five Hundred Thousand ($500,000) dollars per calendar year.  For the avoidance of doubt, the amount of theannual minimum royalty for each year calendar year shall be as follows(payable, as noted below, no later than forty-five (45) days following the endof each applicable calendar year):

 
| **Calendar  Year**                                                              | ** ** | **Amount of Minimum Royalty Per Year** | ** ** |
|---------------------------------------------------------------------------------|------------|----------------------------------------|------------|
|                                                                            |       |                                   |       |
| 2007                                                                            |       | $                                      | 150,000.00 |   |
|                                                                            |       |                                   |       |
| 2008                                                                            |       | $                                      | 200,000.00 |   |
|                                                                            |       |                                   |       |
| 2009                                                                            |       | $                                      | 250,000.00 |   |
|                                                                            |       |                                   |       |
| 2010                                                                            |       | $                                      | 300,000.00 |   |
|                                                                            |       |                                   |       |
| 2011                                                                            |       | $                                      | 350,000.00 |   |
|                                                                            |       |                                   |       |
| 2012                                                                            |       | $                                      | 400,000.00 |   |
|                                                                            |       |                                   |       |
| 2013                                                                            |       | $                                      | 450,000.00 |   |
|                                                                            |       |                                   |       |
| 2014 and throughout the remaining calendar  years of the term of this Agreement |       | $                                      | 500,000.00 |   |

 

In the event that the annual royalties paidby GOYAIKE for the applicable year is less

 

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than theminimum royalty due for such year, GOYAIKE shall pay the difference to CYAGRAno later than forty-five (45) days following the end of each applicablecalendar year.  In the event that theannual royalties paid by GOYAIKE for the applicable year is equal to or greaterthan the minimum royalty due for such year, then GOYAIKE shall have satisfiedthe minimum royalty obligations for such year.  Waiver of any payment of the minimum annualroyalty by CYAGRA shall not be construed as a waiver of any subsequent paymentof the minimum annual royalty.  IfGOYAIKE fails to make the payment to satisfy the minimum royalty obligationshereunder within said forty-five (45) day period, such failure shall constitutea breach of GOYAIKE’s obligations under this Agreement and CYAGRA shall havethe right to terminate this Agreement in accordance with Section 4.3hereof.

 

5.4                                 Paymentsin U.S. Dollars. All payments due under this Agreement shall be paid toCYAGRA in Worcester, Massachusetts, U.S.A., and shall be made in United States currencywithout deduction for taxes, assessments, exchanges, collection or othercharges of any kind; provided, however, that any withholding tax required to bewithheld by GOYAIKE on royalty payments under the laws of any country in theTerritory for the account of CYAGRA will be promptly paid by GOYAIKE for and onbehalf of CYAGRA to the appropriate governmental authority, and GOYAIKE willfurnish CYAGRA with proof of payment of such tax.  Any such tax actually paid on behalf of CYAGRAmay be deducted from royalty payments due CYAGRA to the extent that such taxesare allowable as a direct credit to CYAGRA against U.S. income taxes levied onsuch amounts.  Conversion of foreigncurrency to U.S. dollars shall be made at the conversion rate reported in TheWall Street Journal on the last working day of the calendar quarter to whichthe payment relates.

 

5.5                                 Reports

 

(a) GOYAIKE shall submit a report,verified once a year by an independent certified public accountant reasonablyacceptable to CYAGRA, to CYAGRA quarterly within 45 days after the end of eachcalendar quarter during the term of this Agreement stating in each such reportthe aggregate sales and payments with respect to Licensed Products and LicensedServices during the preceding calendar quarter and the royalty amounts asprovided herein.  Without limiting thegenerality of the foregoing, such reports shall include at least the following:

 

(1)                                  numberof Licensed Products manufactured, used, sold or imported by or on behalf ofGOYAIKE;

 

(2)                                  totalbillings for Licensed Products sold and Licensed Services performed by GOYAIKE;

 

(3)                                  deductionsclaimed (as provided in Section 1.10); and

 

(4)                                  thenames and addresses of all parties making Licensed Products on behalf ofGOYAIKE.

 

The payment ofroyalty amounts shall be made concurrently with such reports.

 

(b)                                 GOYAIKEshall keep full, complete, true and accurate books of account

 

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containing allparticulars relating to the manufacture and sales with respect to LicensedProducts and Licensed Services, and any allowed credits, which may be necessaryto ascertain and verify the royalties payable to CYAGRA.  Said books and accounts shall be kept atGOYAIKE’s principal place of business for the five years next following the endof the calendar year to which they pertain.

 

5.6                                 MostFavored Licensee. Licensors acknowledge and agree that the prices and othereconomic terms herein (when taken as a whole) are and will be at least asfavorable as the prices and other economic terms (when taken as a whole)offered by Licensors to any Similar Licensee.  In the event that Licensors enter into anagreement with a Similar Licensee that is inconsistent with Section 5 above,then this Agreement shall be deemed appropriately and immediately amended toprovide price and economic terms to GOYAIKE that are at least as favorable tothe terms provided to such Similar Licensee.  Licensors shall provide GOYAIKE with a trueand correct copy of all agreements entered into with Similar Licensees forpurposes of verifying the statements and covenants set forth in this Section andamending this Agreement in accordance herewith.  For purposes of this Section, “SimilarLicensee” shall mean any person or entity under license from the Licensors,other than GOYAIKE, that makes, uses or sells any Licensed Products or providesLicensed Services in the Territory in a manner similar to the manner in whichGOYAIKE makes, uses or sells any Licensed Products or performs the LicensedServices, in each case, in the Territory and in the Field of Agriculture.

 

**6.**                                      **PROPRIETARY RIGHTS.**

 

6.1                                 Ownership.CYAGRA or its licensor(s) shall own the CYAGRA Patent Rights, the CYAGRATechnology and the CYAGRA Developments.

 

6.2                                 CYAGRAPatent Rights.

 

(a) Subject to the terms of the TUFTS License; (1) Licensorsshall be solely responsible for the continued prosecution of pending patentapplications included in the CYAGRA Patent Rights and the issuance of suchapplications after allowance; (2) the prosecution, filing and maintenanceof all patents and applications shall be the responsibility of Licensors; and (3) Licensorsshall pay all government fees in any given country required to maintain theCYAGRA Patent Rights, and shall submit evidence to GOYAIKE upon request that suchfees have been timely paid.

 

(b) In the event that Licensors desire to abandon any CYAGRAPatent Rights within the CYAGRA Licensed Property, Licensors shall provideGOYAIKE with reasonable prior written notice of such abandonment or decline ofresponsibility, and GOYAIKE shall have the right, at its expense, to prepare,file, prosecute and maintain the relevant CYAGRA Patent Rights in thejurisdiction selected by GOYAIKE.  Withrespect to the LIU Rights, the TUFTS Rights and the UMASS Rights, GOYAIKE’srights under this Section 6.2(b) shall be subject to (1) therights of the University under the UMASS License (including Section 6thereof), (2) the rights of Chengyu Liu under the LIU License, and (3) therights of Tufts University under the TUFTS License (including Article 6thereof), as applicable.

 

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(c) In the event that the Licensors decline to assume theresponsibility for obtaining protection for any new invention that may beuseful to GOYAIKE, CYAGRA shall provide GOYAIKE with reasonable prior writtennotice of such abandonment or decline of responsibility.

 

(d) The parties agree to notify each other in writing of anyactual or threatened infringement by a third party of the CYAGRA Patent Rights,of any claim of invalidity, unenforceability, or non-infringement of the CYAGRAPatent Rights, or of any actual or threatened misappropriation of the CYAGRATechnology or the CYAGRA Developments.  Licensorsshall have the sole responsibility to prosecute or defend such claims, asapplicable.  GOYAIKE shall if requestedprovide reasonable assistance to Licensor at Licensor’s expense, in connectionwith the prosecution or defense of such claims.

 

(e) In the event that Licensors fail to initiate an infringementaction within a reasonable time after they become aware of the basis for suchaction, or to answer a declaratory judgment action within a reasonable timeafter such action is filed, GOYAIKE shall have the right to prosecute suchinfringement or answer such declaratory judgment action, at its sole expense.  In the event GOYAIKE exercises its rightshereunder to proceed with any such prosecution with any such prosecution ordefense, GOYAIKE shall keep Licensors fully informed of the status of any suchproceedings, shall consult with Licensors regarding the course of suchproceedings and shall not enter into any settlement agreements, consent ordersor agreements, judgments or other arrangements or understandings of any naturerelating to such proceedings that admits the invalidity, unenforceability ornon-infringement of any CYAGRA Licensed Property or that would adversely effectthe then current or future rights of Licensors without the express priorwritten consent of Licensors, such consent not to be unreasonably withheld ordelayed.  In the event GOYAIKE abandonssuch proceedings, then Licensors shall have the right to take control of anysuch proceedings at their sole expense upon notification to GOYAIKE, andGOYAIKE shall cooperate fully with Licensors in substituting Licensors for GOYAIKEin any such proceeding in the most timely and cost effective manner reasonably possibleand shall otherwise cooperate with Licensors in effecting a smooth transitionin any such proceeding.  With respect tothe LIU Rights, the TUFTS Rights and the UMASS Rights, GOYAIKE’s rights underthis Section 6.2(e) shall be subject to (1) the rights of theUniversity under the UMASS License (including Section 6 thereof), (2) therights of Chengyu Liu under the LIU License, and (3) the rights of TuftsUniversity under the TUFTS License (including Article 7 thereof), asapplicable.

 

**7.**                                      **CONFIDENTIAL INFORMATION AND PUBLICATIONS.**

 

7.1. Use and Nondisclosure of ConfidentialInformation. (a) Neither party or the University will disclose or makeavailable to any person outside its organization the disclosing party’sConfidential Information.  Each party maydisclose the other party’s Confidential Information to persons within itsorganization and that of its Affiliates to the extent necessary to further thepurposes of this Agreement, provided that all such persons are bound to protectthe confidentiality of such Confidential Information.  Each party may disclose the other party’sConfidential Information if required by law or governmental authority, providedthat prior notice of any such disclosure is given to the other party and thatthe disclosing party cooperates with the other party in seeking protectiveorders or other restrictions on disclosure.

 

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(b) Except to the extent expressly authorized by this Agreement orby other prior written consent by the disclosing party, each party shall duringthe term of this Agreement and thereafter: (i) treat as confidential allConfidential Information of the other party; (ii) not use suchConfidential Information except as authorized herein or otherwise authorized inwriting, (iii) implement reasonable procedures to prohibit the disclosure,unauthorized duplication, misuse or removal of the other party’s ConfidentialInformation; (iv) not disclose such Confidential Information to any thirdparty, and (v) only disclose the Confidential Information to those of itsemployees who have need to know such Confidential Information in order toexercise the rights and fulfill the obligations set forth herein.  Without limiting the foregoing, each of theparties shall protect the Confidential Information using at least the sameprocedures and degree of care that it uses to prevent the disclosure of its ownconfidential information of like importance, but in no event less thanreasonable care.  Each party shall returnthe Confidential Information to the other party upon termination of theAgreement or upon the request of the other party.  Except as expressly provided in thisAgreement, no ownership or license right is granted in any ConfidentialInformation.

 

7.2                                 InjunctiveRelief. The parties acknowledge and agree that any breach of the confidentialityobligations imposed by this Section 7 will constitute immediate andirreparable harm to the party disclosing the Confidential Information and/orits successors and assigns, which cannot adequately and fully be compensated bymoney damages and will warrant, in addition to all other rights and remediesafforded by law, injunctive relief, specific performance, and/or otherequitable relief.  The disclosing party’srights and remedies hereunder are cumulative and not exclusive.  The disclosing party shall also be entitled toreceive from the receiving party the costs of enforcing this Section 7,including reasonable attorneys’ fees and expenses of litigation.

 

7.3                                 Survival.The obligations of the parties under this Section 7 shall survive any expirationor termination of this Agreement.

 

**8.**                                      **REPRESENTATIONS AND WARRANTIES.**

 

8.1                                 Representationsand Warranties by Licensors. Licensors represent and warrant to GOYAIKEthat:

 

(a) Licensors own or have a licensable interest in the CYAGRALicensed Property and have the right to grant to GOYAIKE the license set forthabove;

 

(b) Licensors have provided GOYAIKE with a copy of the UMASSLicense, as amended, with certain terms redacted, and Licensors represent andwarrant that the said copy is a true and complete (except as redacted) copy ofthe UMASS License as of the Effective Date;

 

(c) Licensors have provided GOYAIKE with a copy of the TUFTSLicense, and Licensors represent and warrant that the said copy is a true andcomplete copy of the TUFTS License as of the Effective Date;

 

(d) Licensors have provided GOYAIKE with a copy of the LIULicense, and Licensors represent and warrant that the said copy is a true andcomplete copy of the LIU

 

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License as ofthe Effective Date;

 

(e) the execution of this Agreement and performance of thetransactions contemplated hereby have been approved by the CYAGRA Board ofDirectors and will not conflict with or result in any breach of any of theterms, conditions or provisions of, or constitute a default under, anyagreement to which Licensors are parties or by which Licensors are bound, includingthe UMASS License, TUFTS License and LIU License.

 

(f) Licensors have obtained all necessary consents to grant toGOYAIKE the license set forth above;

 

(g) the CYAGRA Licensed Property are valid and enforceable; and

 

(h) the exercise of the rights and license granted to GOYAIKEunder this Agreement, including the manufacture, use or sale of the LicensedProduct or Licensed Services shall not infringe or misappropriate theintellectual property rights of any third party.

 

8.2                                 Representationand Warranty by GOYAIKE. GOYAIKE represents and warrants to CYAGRA that theexecution of this Agreement and performance of the transactions contemplated bythis Agreement have been approved by the GOYAIKE Board of Directors and willnot conflict with or result in any breach of any of the terms, conditions orprovisions of, or constitute a default under, any agreement to which GOYAIKE isa party or by which GOYAIKE is bound or any laws or regulations to whichGOYAIKE is subject.

 

8.3                                 Disclaimer.Except as set forth in Section 8.1 above, Licensors do not make any representationsor warranties that the Licensed Property has any applications, uses or other attributesof any commercial nature, GOYAIKE having made its own determination as to the usefulnessof the Licensed Property to GOYAIKE and GOYAIKE’s intended application(s) of theLicensed Property and any related business based on such due diligence asGOYAIKE has deemed necessary.

 

**9.**                                      **INDEMNIFICATION.**

 

9.1                                 Indemnificationby Licensors. Licensors shall defend, indemnify and hold harmless GOYAIKE,the University, Tufts University and Chengyu Liu, and their Affiliates, trustees,agents, directors, officers and employees, at Licensors’ cost and expense, fromand against any and all losses, costs, liabilities, damages, fees and expenses,including reasonable attorneys’ fees and expenses incurred or imposed upon anyof the indemnified parties in connection with any claims (including third partyclaims), suits, actions, demands or judgments

 

(a) arising out of any breach by Licensors of any representationor warranty provisions; or

 

(b) arising out of any third party claim asserted against GOYAIKEbased on the alleged infringement of a patent or other protected intellectualproperty right based on a Licensed Product or a Licensed Service.

 

9.2                                 Indemnificationby GOYAIKE. GOYAIKE shall defend, indemnify and hold

 

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harmlessLicensors, the University, Tufts University and Chengyu Liu, and theirAffiliates, trustees, agents, directors, officers and employees, at GOYAIKE’scost and expense, from and against any and all losses, costs, liabilities,damages, fees and expenses, including reasonable attorneys’ fees and expensesincurred or imposed upon any of the indemnified parties in connection with anyclaims (including third party claims), suits, actions, demands or judgments:

 

(a) arising out of any breach by GOYAIKE of any representation orwarranty provisions; or

 

(b) arising out of the death or injury to any person or persons orout of any damage to tangible property resulting from or otherwise attributableto the making, using, development, testing, registration, distribution and/orsale by or through GOYAIKE of any Licensed Products or Licensed Services underthis Agreement.

 

9.3                                 IndemnificationClaims. Each party shall give the other party prompt notice of any claimfor which indemnification under this Section 9 is or may be applicable andwill cooperate with the indemnifying party in the defense or settlement of suchclaim at the indemnifying party’s expense.  The indemnifying party shall be required toprovide and be entitled to control the defense of any claim covered hereunder(including the right to settle it at the sole discretion of the indemnifyingparty) with counsel reasonably satisfactory to the other party which may, atits own expense, participate in the defense of any claim after the indemnifyingparty assumes control of the defense thereof.  The indemnification obligations in this Section 9shall not apply to amounts paid in settlement of such claim if such settlementis effected without the consent of the indemnifying party, which consent shallnot be unreasonably withheld or delayed.  The failure of the indemnified party todeliver notice to the indemnifying party promptly after the commencement of anysuch action, if materially prejudicial to the indemnifying party’s ability todefend such action, shall relieve the indemnifying party of any liability tothe indemnified party under this Section 9, but the failure to promptlydeliver notice to the indemnifying party will not relieve it of any liabilitythat it may have to the indemnified party other than under this Section 9.

 

**10.**                               **LIMITATION OF LIABILITY.** IN NO EVENT SHALL ANY PARTY (OR ITSAFFILIATES, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS) BE LIABLEFOR ANY SPECIAL, INDIRECT, RELIANCE, INCIDENTAL, EXEMPLARY, COVER, ORCONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS AND GOODWILL, EVEN IF SUCHPARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, REGARDLESS OF THETHEORY OF LIABILITY.

 

**11.**                               **INSURANCE.** Each party shall obtain and maintain, at alltimes during the term of this Agreement, general liability insurance withappropriate bodily injury, death and property damage limits.  Upon request, a party shall furnish acertificate of insurance signed by an authorized representative of itsinsurance underwriter evidencing such coverage and providing for at least thirty(30) days’ prior written notice of any cancellation, termination or reductionof coverage.

 

**12.**                               **MISCELLANEOUS.**

 

12.1                           Assignment.This Agreement, and the rights and obligations thereunder, may not

 

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be assigned ortransferred, in whole or in part, by either party without the prior writtenconsent of the other party, except that (a) Licensors may freely assigntheir rights under this Agreement, including without limitation CYAGRA’s rightsto receive payments required to be made by GOYAIKE, providedthat,upon GOYAIKE receiving written notice to make payments to a third party,GOYAIKE shall have no further obligation to make such payments to CYAGRA, andCYAGRA shall indemnify and hold GOYAIKE harmless from and against any lossesbased on claims by such third party other than claims based on non-payment ofundisputed amounts owed to such third party, (b) Licensors may assign thisAgreement to an Affiliate, provided that Licensors remain primarily liableand/or responsible for the performance of such obligations, and providedfurther that such Affiliate agrees to be bound to the terms and conditions ofthis Agreement, and (c) either party may assign this Agreement inconnection with the sale of all or substantially all of the assets of suchparty which pertain to the subject matter of this Agreement; provided, however,that any assignment by GOYAIKE pursuant to this clause (c) shall besubject to the consent of the University, which consent shall not beunreasonably withheld or delayed.

 

12.2                           Notices.Any payment, notice or other communication required or otherwise given pursuantto this Agreement shall be in writing and delivered by internationallyrecognized overnight delivery service, or by facsimile confirmed by prepaidcertified air mail addressed to the parties at the following addresses or suchother addresses as a party may furnish to another party in accordance with thisparagraph.  Such notices, payments orother communications shall be deemed to have been properly served to theaddressee upon receipt of such written communication.

 
|   | In the case of GOYAIKE, the proper address for communications shall  be: |
|--------|--------------------------------------------------------------------------|
|   |                                                                     |
|   |                                                                     | Goyaike, S.A. |
|   |                                                                     | Av, do Mayo 701, Piso 16 |
|   |                                                                     | Buenos Aires, Argentina |
|   |                                                                     | Attn: |
|   |                                                                     | Fax: |
|   |                                                                     |   |
|   | with a copy to:                                                          |
|   |                                                                     |   |
|   |                                                                     | Shearman & Sterling |
|   |                                                                     | 599 Lexington Avenue |
|   |                                                                     | New York, NY 10022 |
|   |                                                                     |   |
|   |                                                                     | Telecopy: (212) 848-7179 |
|   |                                                                     | Attention: Alfred J. Ross, Esq. |
|        |                                                                          |  |  |

 

in the case of A.C.T. GROUP, the proper address for communication shallbe:

 
|   |   | A.C.T. Group, Inc.                      |
|--------|--------|----------------------------------------------|
|   |   | One Innovation Drive                         |
|   |   | Worcester, Massachusetts 01605               |
|   |   | Telecopy: 508-756-0931                       |
|   |   | Attention: Michael D. West, Ph.D., President |

 

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|   | with a copy to: |
|--------|-----------------|
|   |            |   |
|   |            | Pierce Atwood |
|   |            | One Monument Square |
|   |            | Portland, Maine 04101 |
|   |            |   |
|   |            | Telecopy: (207) 791-1350 |
|   |            | Attention: William L. Worden, Esq. |

 

in the case of ACT INC, the proper address for communications shall be:

 
|   |            | Advanced Cell Technology, Inc.          |
|--------|-----------------|----------------------------------------------|
|   |            | One Innovation Drive                         |
|   |            | Worcester, Massachusetts 01605               |
|   |            |                                         |
|   |            | Telecopy: 508-756-0931                       |
|   |            | Attention: Michael D. West, Ph.D., President |
|   |            |                                         |
|   | with a copy to: |
|   |            |                                         |
|   |            | Pierce Atwood                                |
|   |            | One Monument Square                          |
|   |            | Portland, Maine 04101                        |
|   |            |                                         |
|   |            | Telecopy: (207) 791-1350                     |
|   |            | Attention: William L. Worden, Esq.      |

 

and in the case of CYAGRA, the proper address for communications andall payments shall be:

 
|   |            | Cyagra, Inc.                       |
|--------|-----------------|-----------------------------------------|
|   |            | One Innovation Drive                    |
|   |            | Worcester, Massachusetts 01605          |
|   |            | Attn: Michael D. West, Ph.D., President |
|   |            | Fax:  508-756-0931                 |
|   |            |                                    |
|   | with a copy to: |
|   |            |                                    |
|   |            | Pierce Atwood                           |
|   |            | One Monument Square                     |
|   |            | Portland, Maine 04101                   |
|   |            | Attn: William L. Worden, Esq.      |
|   |            | Fax:  207-791-1350                 |

 

12.3                           Choiceof Law; Submission to Jurisdiction. This Agreement is subject to and

 

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governed bythe laws of the Commonwealth of Massachusetts, without regard to principles ofconflicts of law thereof, except that questions affecting the construction andeffect of any patent shall be determined by the law of the country in which thepatent was granted.  The partiesirrevocably and expressly submit to the exclusive jurisdiction of the courts(state and federal) of the Commonwealth of Massachusetts, United States ofAmerica and the courts competent to hear appeals from those courts for theresolution of any disputes arising in connection with this Agreement.

 

12.4                           Compliancewith Law by GOYAIKE. GOYAIKE shall comply in all material respects with allmaterial local, state, federal and international laws and regulations relatingto the development, manufacture, use, and sale of Licensed Products andLicensed Services in the Territory.  Withoutlimitation of the foregoing, GOYAIKE shall comply with the following:

 

(a) GOYAIKE shall obtain all necessary approvals from anygovernmental authorities of any foreign jurisdiction in which GOYAIKE intendsto make, use, or sell Licensed Products or to perform Licensed Services in theTerritory.

 

(b) GOYAIKE shall comply in all material respects with any and allmaterial applicable local, state, federal and international laws and regulationsrelating to the Licensed Products and Licensed Services, and the CYAGRA PatentRights, Technology and Developments in the Territory, including withoutlimitation all material export or import regulations and rules now ineffect or as may be issued from time to time by any governmental authoritywhich has jurisdiction relating to the export of Licensed Products or LicensedServices and any technology relating thereto.

 

12.5                           Counterparts.This Agreement may be executed in any number of counterparts, each of whichshall be deemed an original but all of which together shall constitute one andthe same instrument.

 

12.6                           Headings.All headings contained in this Agreement are for convenience of reference onlyand shall not be considered in construing this Agreement.

 

12.7                           BindingEffect. This Agreement shall be binding upon and inure to the benefit ofthe parties and their respective permitted successors and assigns.  The parties acknowledge that (1) theUniversity is a third party beneficiary of the applicable provisions ofSections 2.1, 3.2, 5.5, 9.1, 9.2, 12.4, 12.6, 2.11 and 12.15 hereof, with theright to enforce such provisions against the applicable party, (2) TuftsUniversity is a third party beneficiary of Sections 2.1, 3.2, 5.5, 9.1, 9.2,12.4,12.6, 2.11 and 12.15 hereof with the right to enforce such provisionsagainst the applicable party, and (3) Chengyu Liu is a third partybeneficiary of Sections 2.1, 3.2, 5.5, 9.1, 9.2, 12.4, 12.6, and 12.15 hereof.

 

12.8                           Amendmentand Waiver. This Agreement may be amended, supplemented, or otherwisemodified only by means of a written instrument signed by both parties.  Any waiver of any rights or failure to act ina specific instance shall relate only to such instance and shall not be construedas an agreement to waive any rights or failure to act in any other instance,whether or not similar.

 

12.9                           Severability.In the event that any one or more of the provisions contained in this

 

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Agreementshall, for any reason, be held to be invalid, illegal or unenforceable in anyrespect, such invalidity, illegality or unenforceability shall not affect anyother provision of this Agreement, and all other provisions shall remain infull force and effect.  If any of the provisionsof this Agreement is held to be excessively broad or invalid, illegal orunenforceable in any jurisdiction, it shall be reformed and construed bylimiting and reducing it so as to be enforceable to the maximum extentpermitted by law in conformance with its original intent.

 

12.10                     EntireAgreement. This Agreement, together with the UMASS License, constitute theentire agreement of the parties with regard to its subject matter, andsupersedes all previous written or oral representations, agreements andunderstandings between the parties.  Theparties acknowledge and agree that there are no representations, warranties,arrangements, promises or agreements outstanding between them, whether oral orin writing, other than those contained or referred to in this Agreement or theUMASS License.

 

12.11                     Publicity.Neither party, nor any of its Affiliates, shall originate any publicity, newsrelease or other public announcement (“Announcements”), written or oral,relating to this Agreement or the existence of an arrangement between theparties, without the prior written approval of the other party, which approvalshall not be unreasonably withheld, except as otherwise required by law.  Any references to the University or TuftsUniversity in such Announcements shall be subject to the approval of theUniversity or Tufts University, as applicable.  The foregoing notwithstanding, Licensors andGOYAIKE shall have the right to make such Announcements without the consent ofthe other party, the University or Tufts University, as applicable, in anyprospectus, offering memorandum, or other document or filing required bysecurities laws or other applicable law or regulation, provided that such partyshall have given the other party or the University, as applicable, at least ten(10) days’ prior written notice of the proposed text for the purpose ofgiving the other party or the University, as applicable, the opportunity tocomment on such text.

 

12.12                     No ImpliedLicenses. No implied licenses are granted pursuant to the terms of thisAgreement.  No license rights shall becreated by implication or estoppel.

 

12.13                     No Agency.Nothing herein shall be deemed to constitute either party as the agent orrepresentative of the other party, or both parties as joint venturers or partnersfor any purpose.  Each party shall be anindependent contractor, not an employee or partner of the other party, and themanner in which each party renders its services under this Agreement shall be withinits sole discretion.  Neither party shallbe responsible for the acts or omissions of the other party, and neither partywill have authority to speak for, represent or obligate the other party in anyway without prior written authority from the other party.

 

12.14                     Non-Solicitation.During the term of this Agreement and for a period of one (1) year thereafter,neither party may solicit any person who is employed by or a consultant to the otherparty or any Affiliate of such party to terminate such person’s employment byor consultancy to such party or such Affiliate.  As used herein, the term “solicit” shallinclude, without limitation, requesting, encouraging, assisting or causing,directly or indirectly, any such employee or consultant to terminate suchperson’s employment with or consultancy to such party or Affiliate.

 

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12.15                     ProductMarking. To the extent commercially feasible and permitted by law, andconsistent with prevailing business practices, all Licensed Products (or thepackaging or product label of such Licensed Product(s)) manufactured or sold byor through GOYAIKE under this Agreement will be marked with the number of eachissued patent that applies to such product.

 

 

[THE REMAINDER OF THIS PAGE HAS INTENTIONALLYBEEN LEFT BLANK]

 

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**IN WITNESS WHEREOF,**the parties hereto and the University have caused this Agreement to be executedthe day and year first written above.  Thepersons signing below warrant their authority to sign the Agreement.

 

 
| GOYAIKE, S.A.       | GOYAIKE, S.A.                      |
|---------------------|------------------------------------|
|                |                               |   |   |
|                |                               |   |   |
| By:                 |   /s/ Richard Hösel |   | By: |   /s/ Alejandro Cantarelli |
| * *            | *Signature*                        | * * | * * | *Signature* |
| * *            | * *                           | * * | * * | * * |
|                | RICHARD HÖSEL                 |   |   |   ALEJANDRO CANTARELLI |
| * *            | *Printed Name*                     | * * | * * | *Printed Name* |
| * *            | * *                           | * * | * * | * * |
|                |   Attorney In Fact       |   |   |   ATTORNEY IN FACT |
| * *            | *Title*                            | * * | * * | *Title* |
| * *            | * *                           | * * | * * | * * |
|                |   11.20.01               |   |   |   11.20.01 |
| * *            | *Date*                             | * * | * * | *Date* |
|                |                               |   |   |   |
|                |                               |   |   |   |
| CYAGRA, INC.        |                               | ADVANCED  CELL TECHNOLOGY, INC. |
|                |                               |   |   |   |
|                |                               |   |   |   |
| By:                 |   /s/ Michael West       |   | By: |   /s/ Michael West |
| * *            | *Signature*                        | * * | * * | *Signature* |
| * *            | * *                           | * * | * * | * * |
|                |   MICHAEL WEST           |   |   |   MICHAEL WEST |
| * *            | *Printed Name*                     | * * | * * | *Printed Name* |
| * *            | * *                           | * * | * * | * * |
|                |   PRESIDENT              |   |   |   PRESIDENT |
| * *            | *Title*                            | * * | * * | *Title* |
| * *            | * *                           | * * | * * | * * |
|                |   11-20-01               |   |   |   11-20-01 |
| * *            | *Date*                             | * * | * * | *Date* |
|                |                               |   |   |   |
|                |                               |   |   |
| A.C.T.  GROUP, INC. |                               |   |   |
|                |                               |   |   |   |
|                |                               |   |   |   |
| By:                 | /s/ Michael West                   |   |   |   |
| * *            | *Signature*                        | * * | * * | * * |
| * *            | * *                           | * * | * * | * * |
|                | MICHAEL WEST                       |   |   |   |
| * *            | *Printed Name*                     | * * | * * | * * |
| * *            | * *                           | * * | * * | * * |
|                | PRESIDENT                          |   |   |   |
| * *            | *Title*                            | * * | * * | * * |
| * *            | * *                           | * * | * * | * * |
|                | 11-20-01                           |   |   |   |
| * *            | *Date*                             | * * | * * | * * |

 

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**CONSENT****AND AGREEMENT**

 

For value received, the University hereby (a) consents to thesublicense by ACT INC and CYAGRA to GOYAIKE of the UMASS Rights under thisAgreement, and (b) agrees to be bound by the applicable provisions ofSections 2.1, 3.2 and 7.1 hereof.

 

THE UNIVERSITY OF MASSACHUSETTS

 

 
| By:    |   /s/ Joseph F. X. McGuirl |   |   |   |
|--------|--------------------------------------|--------|--------|--------|
|   | *Signature*                          |   |   |   |
|   |                                 |   |   |   |
|   |   Joseph F. X. McGuirl     |   |   |   |
|   | *Printed Name*                       |   |   |   |
|   |                                 |   |   |   |
|   |   Executive Director, CVIP |   |   |   |
|   | *Title*                              |   |   |   |
|   |                                 |   |   |   |
|   |   November 19, 2001   |   |   |   |
|   | *Date*                               |   |   |   |

 

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