**Exhibit 10.49**

 

**CONSULTING AGREEMENT**

 

Advanced Cell TechnologyHoldings, Inc., and its wholly owned subsidiary, Advance Cell Technology, Inc.(collectively referred to as “ACT”) desire to retain the services of JonathanF. Atzen (“ATZEN”) in the role of consultant; and ATZEN desires to provide hisservices to ACT in that capacity.  Accordingly,for and in consideration of the commitments set forth herein, ACT and ATZENagree as follows;

 

**1.****                                     ****Position****and****Duties**

 

ACT agrees to retain ATZENin the role of consultant.  ATZEN shallalso be appointed Assistant Secretary to ACT.  ATZEN shall report to the Chief ExecutiveOfficer (CEO) of ACT, and shall perform consulting services that are assignedto ATZEN by the CEO of ACT.  In thisconsulting capacity, it is expected that ATZEN shall provide guidance on avariety of matters, including, but not limited to, strategic legal consultingwith respect to corporate governance, financing and general businessconsulting.

 

**2.****                                     ****Compensation**

 

**A.****                                   ****Stock Options**: ACT shall compensate ATZEN for services tobe provided pursuant to this agreement with the granting of an option topurchase common shares of ACT, pursuant to the terms and conditions outlinedbelow under “Stock Options”.

 

**B.****                                   ****Expenses:** ACT shall reimburse ATZEN for reasonabletravel and other business expenses incurred by ATZEN in the performance of hisduties hereunder.

 

**C.****                                   ****Cash Compensation:** ACT and ATZEN have mutually agreed that nocash compensation will be paid in connection with this consulting agreement.  As outlined in the “Duration / Conversion” section below,it is contemplated that ATZEN’s role of consultant may be converted to apermanent employment arrangement at some future date, and any cash compensationrelated to that decision will be finalized in connection with a permanentemployment agreement.

 

**3.****                                    ****Stock Options**

 

Subject to the approval ofthe ACT Board of Directors, ACT will grant ATZEN an option to purchase theCompany’s Common Stock (the ***“Option”****)*under the Company’s employee StockOption Plan (the ***“Plan”****)*in an amount equal to 400,000 of theCompany’s outstanding shares (inclusive of option reserve and warrants).  The Options will have a “strike price” equalto the current fair market value of $.85 per share, and will vest as follows:5% of the shares will be

 

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vested pursuant to thisconsulting agreement, and thereafter 1/48th of the remaining numberof shares will vest at the end of each full month of employment, provided thatATZEN’s consulting agreement is converted into a full-time employment agreement,pursuant to the “Duration / Conversion” section below.  In the event that full-time employment is notoffered to ATZEN, the maximum amount of shares that will vest pursuant to thisconsulting agreement is 5% of the shares granted.  Except as specifically set forth in this Section 4,ATZEN’s rights under the Plan, or any other stock option plan later adopted byACT, shall be governed solely by the terms of the Plan, or the later adoptedstock option plan.

 

**4.****                                     ****Competitive Activities**

 

Duringthe term of ATZEN’s consulting agreement with ACT and for one (1) yearthereafter, ATZEN shall not, for himself or any third party, directly orindirectly (a) divert or attempt to divert from ACT any business of any kind,including, without limitation, the solicitation of or interference with any ofits members, sponsors, employees, volunteers, officers or directors, (b)employ, solicit for employment or recommend for employment any person employedby ACT, or (c) engage in the formation or promotion of, or be employed by, anyentity that is competitive with ACT.  ATZENacknowledges that there is a substantial likelihood that the activitiesdescribed in this Section 4 would involve the unauthorized use ordisclosure of the ACT’s Proprietary Information and that use or disclosurewould be extremely difficult to detect.  ATZENhas accepted the limitations of this Section 4 as a reasonably practicableand unrestrictive means of preventing such use or disclosure.

 

**5.****                                     ****Inventions/IntellectualProperty Belong to ACT**

 

Any and all inventions, discoveries, improvements or intellectualproperty which ATZEN has conceived or made or may conceive or make during theperiod of employment relating to or in any way pertaining to or connected withthe systems, products, apparatus, or methods employed, manufactured,constructed or researched by ACT shall be the sole and exclusive property ofACT.

 

The obligations provided for by this Agreement, except for therequirements as to disclosure in paragraph 6, do not apply to any rights ATZENmay have acquired in connection with an invention, discovery, improvement orintellectual property for which no equipment, supplies, facility, or tradesecret information of the ACT was used and which was developed entirely on theATZEN’s own time and (a) which does not relate directly or indirectly to thebusiness of ACT or to ACT’s actual or demonstrable anticipated research ordevelopment, or (b) which does not result from any work performed by ATZEN forACT.

 

**6.****                                   ****Disclosure of Inventions**

 

ATZEN agrees to disclose promptly to ACT all such improvements,discoveries, or inventions which ATZEN has made or may make solely, jointly, orcommonly with others, and to assign as appropriate such improvements,discoveries, inventions or intellectual property to ACT, where

 

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the rights are the property of ACT, and agrees to execute and sign anyand all applications, assignments, or other instruments which ACT may deemnecessary in order to enable it, at its expense, to apply for, prosecute, andobtain Letters Patent of the United States or foreign countries for saidimprovements, discoveries, inventions or intellectual property, or in order toassign or convey to or vest in ACT the sole and exclusive right, title, andinterest in and to said improvements, discoveries, inventions, or patents.

 

This paragraph is applicable whether or not the invention, discovery,improvement or intellectual property was made under the circumstances describedin paragraph 5.  ATZEN agrees to makesuch disclosures understanding that they will be received in confidence andthat, among other things, they are for the purpose of determining whether ornot rights to the related invention, discovery, improvement or intellectualproperty is the property of ACT.

 

**7.****                                    ****Confidential and ProprietaryInformation**

 

Duringhis consulting, ATZEN will have access to confidential information relating tosuch matters as ACT’s trade secrets, systems, procedures, manuals, products,and clients.  For purposes of this Agreement,“confidential information” means all information and ideas, in any form,relating in any manner to the business of ACT or its clients, unless: (i) theinformation is or becomes publicly known through lawful means; (ii) theinformation was rightfully in ATZEN’s possession prior to his employment withACT; or (iii) the information is disclosed to ATZEN without a confidentialrestriction by a third party who rightfully possesses the information and didnot obtain it, either directly or indirectly, from ACT.

 

ATZEN understands and agrees that all confidential information will bekept confidential by ATZEN both during and after his consulting under thisAgreement.  ATZEN further agrees that hewill not, without the prior written approval by ACT, disclose such confidentialinformation, or use such confidential information in any way, either during theterm of this Agreement or at any time thereafter, except as required in thecourse of his consulting.

 

**8.****                                    ****Duration****/ Conversion**

 

The duration of this consulting agreement is expected to be 90 days.  At the end of 90 days, ACT may, in its solediscretion, elect to extend the consulting agreement or offer ATZEN full-timeemployment at ACT.  In the event that ACTelects to convert ATZEN from a consulting role to the role of full-timeemployee, the terms and conditions of such employment will be separatelynegotiated and summarized in an Employment Agreement between ATZEN and ACT.  This consulting agreement shall not beconstrued to imply an offer of employment at the expiration of the initial 90day period.

 

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**9.****                                    ****Turnover on Termination**

 

ATZEN agrees that on orbefore termination of consulting, he will return to ACT all originals andcopies of all or any part of:

 

a.                                       Lists and sources of clients;

 

b.                                      Proposals to clients or drafts of proposals;

 

c.                                       Reports, job notes, specifications, anddrawings pertaining to clients;

 

d.                                      Any and all other things, equipment, andwritten materials obtained by ATZEN during the course of employment from ACT orany client of ACT.

 

e.                                       Any and all inventions or intellectualproperty developed by ATZEN during the course of employment.

 

**10.****                              ****Arbitration**

 

Except for injunctiveproceedings against unauthorized disclosure of confidential information, anyand all claims or controversies between ACT and ATZEN, including but notlimited to (1) those involving the construction or application of any of theterms, provisions, or conditions of this Agreement; (2) all contract or tortclaims of any kind; and (3) any claim based on any federal, state or local law,statute, regulation or ordinance, including claims for unlawful discriminationor harassment, shall be settled by arbitration in accordance with the thencurrent Employment Dispute Resolution Rules of the American ArbitrationAssociation.  Judgment on the awardrendered by the arbitrator(s) may be entered by any court having jurisdictionthereof.  The location of the arbitrationshall be San Francisco, California.  Unlessthe parties mutually agree otherwise, the arbitrator shall be a retired judgeselected from a panel provided by the American Arbitration Association, or theJudicial Arbitration and Mediation Service (JAMS).

 

ACT shall pay thearbitrators fees and costs.  Each partyshall pay for its own costs and attorneys’ fees, if any.  However, if any party prevails on a statutoryclaim which affords the prevailing party attorneys’ fees, the arbitrator mayaward reasonable attorneys’ fees and costs to the prevailing party.

 

ATZEN UNDERSTANDS AND AGREESTHAT THIS AGREEMENT TO ARBITRATE CONSTITUTES A WAIVER OF HIS RIGHT TO A TRIALBY JURY OF ANY MATTERS COVERED BY THE ARBITRATION AGREEMENT.

 

**II.****                                  ****Severability**

 

In the event that any of theprovisions of this Agreement shall be held to be invalid or unenforceable inwhole or in part, those provisions to the extent enforceable and all otherprovisions shall nevertheless continue to be valid and enforceable as thoughthe invalid or unenforceable parts had not been included in this Agreement.  In the event that any provision

 

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relating to the time periodof restriction shall be declared by a court of competent jurisdiction to exceedthe maximum time period such court deems reasonable and enforceable, then thetime period of restriction deemed reasonable and enforceable by the court shallbecome and shall thereafter be the maximum time period.

 

**12.****                             ****Agreement Read andUnderstood**

 

ATZEN acknowledges that he has carefully read the terms of thisAgreement, that he has had an opportunity to consult with a representative ofhis own choosing regarding this Agreement, that he understands the terms ofthis Agreement, and that he is entering this agreement of his own free will.

 

**13.****                             ****Complete AgreementModification**

 

This Agreement is thecomplete agreement between the parties on the subjects contained herein andsupersedes all previous correspondence, promises, representations, andagreements, if any, either written or oral.  No provision of this Agreement may be modifiedexcept by a written document signed both by the ACT and ATZEN.  ATZEN understands and agrees that he will berequired by the Company to execute a comprehensive Proprietary InformationAgreement.

 

**14.****                             ****Governing Law**

 

This Agreement shall beconstrued and enforced according to the laws of the State of California.

 

 
| Dated: January 14,  2005 | /s/ Jonathan F. Atzen               |   |
|-------------------------------|-------------------------------------|--------|
| ** **                    | **Jonathan  F. Atzen**              |
|                          |                                |
|                          |                                |
| Dated: January 14,  2005 | /s/ William M. Caldwell             |   |
| ** **                    | **A.C.T. Holdings, Inc.**           |
|                          | **Advanced Cell  Technology, Inc.** |
|                          | By: William M. Caldwell             |
|                          | Title: Chief Executive  Officer     |

 

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