**Exhibit 10.10**

 

**EXECUTION COPY**

** **

**EXCLUSIVE SUBLICENSE AGREEMENT**

** **

**between**

** **

**ADVANCED CELL TECHNOLOGY, INC.,**

** **

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

 

**and**

 

**CYAGRA, INC.**

 

This Exclusive SublicenseAgreement (the “Agreement”) is made and entered into as of this 28thday of June, 2002 (the “Effective Date”) by and between Advanced CellTechnology, Inc., a Delaware corporation with a place of business at OneInnovation Drive, Worcester, Massachusetts 01605 (“ACT”), and A.C.T. Group, Inc.,a Delaware corporation with a place of business at One Innovation Drive,Worcester, Massachusetts 01605 (“ACT GROUP,” together with ACT, the “Licensors”),and Cyagra, Inc., a Delaware corporation with a place of business at OneInnovation Drive, Worcester, Massachusetts 01605 (“CYAGRA,” together with Licensors,the “parties”). As set forth below, the University of Massachusetts (the “University”),Tufts University (“Tufts”) and Dr. Chengyu Liu (“Liu”) have agreed to bebound by certain provisions of this Agreement.

 

**RECITALS**

 

WHEREAS, pursuant to thatcertain Securities Purchase Agreement, of even date herewith (the “SecuritiesPurchase Agreement”), entered into by and among ACT GROUP, ACT, CYAGRA andGoyaike S.A. (“Goyaike”), Goyaike purchased certain shares of CYAGRA held byACT;

 

WHEREAS, Licensors own orhave licensed with a sublicensable interest the ACT Patent Rights and the ACTTechnology (each as defined below), which include certain scientific methodsand techniques for cloning animals that may be valuable in the Fields of Use(as defined below);

 

WHEREAS, CYAGRA desiresto obtain an exclusive license and sublicense from Licensors under the ACTPatents Rights and the ACT Technology to use the ACT Patent Rights and the ACTTechnology for the purpose of developing and selling certain products and performingcertain services in the Fields of Use;

 

WHEREAS, Licensors arewilling to grant such a license and sublicense to CYAGRA upon the terms andconditions set forth below;

 

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

 

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

 

WHEREAS, the sublicenseof ACT GROUP’s rights under the LIU Rights (as defined below) to CYAGRA underthis Agreement shall be subject to the relevant terms of the LIU License (asdefined below).

 

NOW THEREFORE, inconsideration of the mutual covenants, agreements, representations, andwarranties contained in this Agreement, and other good and valuableconsideration, the adequacy and receipt of which are hereby acknowledged,Licensors and CYAGRA agree as follows:

 

**1.**                                      **DEFINITIONS.** As used in this Agreement, the following termsshall have the meanings set forth below.

 

1.1                                 “*Affiliate*”means any corporation, company, partnership, joint venture and/or firmwhich controls, in whatever country organized, is controlled by or is undercommon control with a party. For purposes of this definition, “control” means (a) inthe case of corporate entities, direct or indirect ownership of more than fiftypercent (50%) of the stock or shares entitled to vote for the election ofdirectors; and (b) in the case of non-corporate entities, direct orindirect ownership of more than fifty percent (50%) of the equity interest withthe power to direct the management and policies of such noncorporate entities.

 

1.2                                 “*ConfidentialInformation*” includes, without limitation, any scientific,technical, financial, customer, trade business or other information disclosedby one party to the other, or by CYAGRA to the University, Liu or Tufts,whether directly or through Licensors, which is specifically designated by thedisclosing party as confidential or proprietary, or which, under all of thegiven circumstances, ought reasonably to be treated as confidential informationof the disclosing party; provided, however, that the University’s,Tuft’s or Liu’s obligation to treat information disclosed to the University,Tufts or Liu, as applicable, as confidential shall be limited to informationwhich is specifically designated by the disclosing party as confidential or proprietaryor words of similar import. Such information may be disclosed in oral, visualor written form (including magnetic, optical or other media). Each party’sConfidential Information specifically includes without limitation therespective party’s business plans and business practices, the terms of thisAgreement, scientific knowledge, research and development of 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 otherrecords, biological materials, software, margins, payment terms and salesforecasts, volumes and activities, designs, computer code, technical information,costs, pricing, financing, business opportunities, personnel, and informationof CYAGRA or Licensors, as applicable, relating to the ACT Licensed Property orLicensed Products or Licensed Services. Confidential Information does notinclude information which (a) was known to the receiving party at the time itwas disclosed, other than by previous disclosure by the disclosing party, asevidenced by the written records of the receiving party at the time of disclosure;(b) is at the time of disclosure or later becomes publicly known other thanthrough a breach of this Agreement; (c) is lawfully and in good faith madeavailable to the receiving party

 

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by a third partywho, to the receiving party’s knowledge after inquiry, did not derive it fromthe disclosing party and who imposed no obligation of confidence on thereceiving party; or (d) is developed by the receiving party independent ofany disclosure by the disclosing party, as evidenced by the written records ofthe receiving party.

 

1.3                                 “*ACTDevelopments*” means Developments that are conceived,discovered, invented, developed, created, made or reduced to practice solely byLicensors.

 

1.4                                 “*ACTLicensed Property*” means the ACT Patent Rights and the ACTTechnology.

 

1.5                                 “*ACTPatent Rights*” means all patents, patent applications andinvention disclosures which are owned or controlled by or licensed to Licensorsor on file as of the Effective Date and which are related, useful, necessary orrequired to develop and manufacture cloned, transgenic, non-human animals,excluding avian, and the cells and tissues from such animals, including allpatents, patent applications and invention disclosures identified on Schedule Aattached hereto and the rights thereunder, and all divisionals, continuations, continuations-in-part,reissues, reexaminations, extensions, substitutions, and foreign counterpartsthereof. The parties agree that Schedule A may from time to time beamended after the Effective Date to reflect updates thereto.

 

1.6                                 “*ACTTechnology*” means the following which are owned or controlledby or licensed to Licensors as of the Effective Date and which are related,useful, necessary or required to develop and manufacture cloned, transgenic,non-human animals, excluding avian, and the cells and tissues from suchanimals: confidential information, knowledge and data, including but notlimited to, discoveries, inventions, developments, patent rights, know-how,materials, trade secrets, ideas, designs, drawings, techniques, methodologies,processes, modifications, innovations, improvements, writings, documentation,data, like technical information and other rights (whether or not protectibleunder United States or foreign patent, trade secret, copyright or similarlaws).

 

1.7                                 “*CYAGRADevelopments*” means Developments that are conceived,discovered, invented, developed, created, made or reduced to practice solely byCYAGRA.

 

1.8                                 “*Developments*”means discoveries, inventions, developments, patents, patent applicationsand patent rights, know-how, materials, trade secrets, ideas, designs,drawings, techniques, methodologies, processes, modifications, innovations,improvements, writings, documentation, data and other rights (whether or notprotectible under United States or foreign patent, trade secret, copyright orsimilar laws), that are conceived, discovered, invented, developed, created,made or reduced to practice by Licensors or CYAGRA, as applicable, during theterm of this Agreement.

 

1.9                                 “*EquineField*” means the cloning, development, making, using, selling,offering to sell, importing or exporting of cloned equine animals (as well asany transgenic variants or enhancements thereto) or products that are composedof, made in or derived, extracted or isolated from cells or tissues of suchanimals for nontherapeutic purposes, including but not limited to, for use inagriculture, for use as companion or service animals, or for use as racing or

 

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other equine eventanimals, and the rendering of services or uses that relate to the production ofsuch products. Specifically excluded from the Equine Field is the cloning ofsuch animals, and/or the development, making, using, selling, offering to sell,importing or exporting of products that are composed of, made in or derived,extracted or isolated from cells or tissues of such animals, for all purposesrelated to veterinary or medical therapies, including, but not limited to, theproduction of biopharmaceutical agents, proteins, peptides and polypeptides inmilk for pharmaceutical, nutraceutical or other use; provided, however,CYAGRA may make transgenic cloned equine animals whereby gene therapy has beenemployed to correct a particular medical or health defect in that animal.

 

1.10                           “*Field ofAgriculture*” means the cloning, development, making, using,selling, offering to sell, importing or exporting of cloned non-human animals,excluding avian (as well as any transgenic variants or enhancements thereto) orproducts that are composed of, made in or derived, extracted or isolated fromcells or tissues of such animals for the production of food or fiber, and therendering of services or uses that relate to the production of such products.Specifically excluded from the Field of Agriculture is the cloning of suchanimals for all purposes related to veterinary or medical therapies, including,but not limited to, the production of biopharmaceutical agents, proteins,peptides and polypeptides in milk for pharmaceutical, nutraceutical or otheruse; provided, however, CYAGRA may make transgenic cloned animalswhereby gene therapy has been employed to correct a particular medical orhealth defect in that animal.

 

1.11                           “*Fieldsof Use*” means the Field of Agriculture and the Equine Field.

 

1.12                           “*LicensedProduct*” means any product that (i) cannot be developed,manufactured, used, imported, exported, offered for sale or sold withoutinfringing one or more Valid Claims under the ACT Patent Rights, or (ii) usesor incorporates or is based on some portion of the ACT Technology.  Without limiting the generality of theforegoing, and by way of illustration but not limitation, Licensed Productsinclude cloned cattle, goats, sheep and pigs in the Field of Agriculture andcloned equine animals in the Equine Field, the progeny of such animals andsemen, ova or embryos obtained from such animals.

 

1.13                           “*LicensedService*” means any service that (i) cannot be developedor performed without using at least one process, method or use that infringesone or more Valid Claims under the ACT Patent Rights, or (ii) uses or isbased on some portion of the ACT Technology.

 

1.14                           “*LIULicense*” means the “Terms for Exclusive License Agreement”between ACT GROUP and Dr. Chengyu Liu dated December 20, 2000, a trueand complete copy of which is attached hereto as Schedule B.

 

1.15                           “*LIURights*” means all ACT Patent Rights and ACT Technology thatare owned or controlled by or licensed to, or become owned or controlled by orlicensed to ACT GROUP under the LIU License.

 

1.16                           “*NetSales*” means the total invoice price earned on all sales byCYAGRA (or by any third party on behalf of CYAGRA) of Licensed Products and/orLicensed Services in any country in the Territory after deducting, to theextent not already deducted, normal and

 

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customary trade,dealer, quantity, and cash discounts actually allowed; allowances for creditsgranted on account of rejections, returns, write offs or price reductions;governmental sales taxes and other charges imposed on such sales; and freight,insurance, customs, duties, and other landing charges.

 

In any transfers of Licensed Products between CYAGRA and an Affiliateof CYAGRA, Net Sales shall be calculated based on the final sale of theLicensed Product to an independent third party by such Affiliate. In the eventthat CYAGRA or an Affiliate of CYAGRA or sublicensee receives non-monetaryconsideration for any Licensed Products or Licensed Services, Net Sales shallbe calculated based on the fair market value of such consideration. In the eventthat CYAGRA or its Affiliates or Sublicensees use or dispose of a LicensedProduct in the provision of a commercial service other than a Licensed Service,the Licensed Product shall be considered sold and the Net Sales shall becalculated based on the sales price of the Licensed Product to an independentthird party or, in the absence of such sales, on the fair market value of theLicensed Product as determined by the parties in good faith.

 

1.17                           “*SublicenseIncome*” means consideration that CYAGRA receives for grantinga sublicense pursuant to Section 2 of this Agreement, including withoutlimitation license fees, royalties, milestone payments, equity payments, upfront fees, success fees, and license maintenance fees.

 

1.18                           “*Territory*”means the World.

 

1.19                           “*TUFTSLicense*” means the License Agreement between ACT and Tufts Universitydated May 31, 2001, a true and complete copy of which is attached heretoas Schedule B.

 

1.20                           “*TUFTSRights*” means all ACT Patent Rights and ACT Technology thatare owned or controlled by or licensed to, or become owned or controlled by orlicensed to ACT from Tufts University under the TUFTS License.

 

1.21                           “*UMASSLicense*” means the Exclusive License Agreement between ACTand the University dated April 16, 1996, as amended by the Amendment toExclusive License Agreement dated September 1, 1997 and the SecondAmendment to Exclusive License Agreement dated May 31, 2000, a true andcomplete copy of which is attached hereto as Schedule B.

 

1.22                           “*UMASSRights*” means all ACT Patent Rights and ACT Technology thatare owned or controlled by or licensed to, or become owned or controlled by orlicensed to ACT from the University under the UMASS License.

 

1.23                           “*ValidClaim*” means a claim of an issued patent which has notexpired, lapsed or become abandoned or been declared invalid or unenforceableby a court of competent jurisdiction or an administrative agency from which noappeal can be or has been taken within the time allowed for that appeal.

 

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The use herein of the plural shall include the singular and *vice versa* and the use of the masculine shall include the feminine.Additional terms may be defined throughout this Agreement.

 

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

 

2.1                                 (a) LicenseGrant. (1) Subject to the terms and conditions of this Agreement,Licensors hereby grant to CYAGRA an exclusive (even as to Licensors),royalty-bearing (except with respect to the ACT Licensed Property owned byLicensors, which shall be royalty-free), perpetual license under its rights inthe ACT Licensed Property to develop, make, have made, import, export (tocountries or territories located within the Territory), use and sell LicensedProducts in the Territory in the Fields of Use and to develop and performLicensed Services in the Territory in the Fields of Use; provided, however,that the exclusive nature of the license granted herein shall be subject to therights of the licensees identified in the license agreements described in Schedule Cattached hereto (the “Existing Licenses”). CYAGRA acknowledges, understands andagrees that the Existing Licenses shall remain in effect in accordance with theterms of said agreements. Licensors, CYAGRA, the University, Tufts and Liuacknowledge, understand and agree that the license granted herein includes theright of CYAGRA to grant further sublicenses to or under the ACT LicensedProperty; provided, however, that CYAGRA shall provide ACT, ACTGROUP, the University, Tufts and Liu with a true and complete copy of eachsublicense agreement and amendment thereto, of any sublicense that grant rightsto the ACT Licensed Property, the LIU Rights, the University Rights or theTUFTS Rights, as applicable, within thirty (30) days after each sublicense oramendment has been executed by CYAGRA and the sublicensee.

 

(2)                                  Tothe extent the license granted in 2.1(a)(1) above includes a sublicense of anyUMASS Rights, such sublicense is subject to the relevant terms of the UMASSLicense as 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 CYAGRA hereunder without the prior written consent of CYAGRA,and (ii) in the event of any inconsistency between the UMASS License andSection 2.1(b) hereof, Section 2.1(b) hereof shall govern. Licensorsagree to provide CYAGRA with prior written notice of any amendments to theUMASS License.

 

(3)                                  Tothe extent the license granted in 2.1(a)(1) above includes a sublicense of anyTUFTS Rights, such sublicense is subject to the relevant terms of the TUFTSLicense as may be amended from time to time, providedthat (i) asprovided in Section 2.1(c) below, the TUFTS License may not beamended in a manner that materially and adversely affects the rights andbenefits extended to CYAGRA hereunder without the prior written consent ofCYAGRA, and (ii) in the event of any inconsistency between the TUFTSLicense and Section 2.1(c) hereof, Section 2.1(c) shallgovern.

 

(4)                                  Tothe extent the license granted in 2.1(a)(1) above includes a sublicense of anyLIU Rights, such sublicense is subject to the relevant terms of the LIU Licenseas may be amended from time to time, providedthat (i) asprovided in Section 2.1(d) below, the LIU License may not be amendedin a manner that materially and adversely affects the rights and benefitsextended to CYAGRA hereunder without the prior written consent of CYAGRA, and

 

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(ii) in theevent of any inconsistency between the LIU License and Section 2.1(d) hereof,Section 2.1(d) shall govern.

 

(b) The UMASSLicense. CYAGRA acknowledges that portions of the ACT Licensed Propertylicensed to CYAGRA hereunder are owned by the University and are licensed toACT under the UMASS License. Licensors, the University and CYAGRA agree that,in the event the UMASS License or this Agreement is terminated for any reason, (i) promptlyfollowing such termination of the UMASS License, the University shall directlylicense the UMASS Rights to CYAGRA in a license agreement with the terms ofsuch license agreement no less favorable than the UMASS License and CYAGRA willthereafter make any payments due to ACT directly to the University during theterm of this Agreement; and (ii) CYAGRA shall not be liable for anypayments that may be due and payable to the University by Licensors. LICENSORSAND THE UNIVERSITY ACKNOWLEDGE AND AGREE THAT CYAGRA SHALL BE ENTITLED TOSPECIFIC PERFORMANCE OF THE UNIVERSITY’S OBLIGATIONS UNDER THIS SECTION 2.1(b)(i).Licensors acknowledge that any payments so made by CYAGRA to the Universityshall be credited against any payments due and payable to ACT hereunder. Forthe avoidance of doubt, Licensors and the University agree that the referencesto “Sublicensees” in Section 8.5 of the UMASS License shall not apply toCYAGRA and shall not be construed as vitiating the provisions of this Agreement(including Sections 2.1(a)(1), 2.1(a)(2) and this Section 2.1(b)).Licensors and the University agree that the provisions of Section 2.2 ofthe UMASS License providing for the automatic assignment to the University ofsublicenses granted by ACT under said Section 2.2 shall not apply to thesublicense by Licensors to CYAGRA under this Agreement, and that the provisionsof this Section 2.1(b) shall govern in the event that the UMASSLicense is terminated. Licensors and the University agree that CYAGRA will notbe bound by any amendment to the UMASS License that adversely affects CYAGRA’srights under this Agreement in any material respect, unless CYAGRA agrees inwriting to such amendment.

 

(c) The TUFTS License. CYAGRA acknowledges that portions ofthe ACT Licensed Property licensed to CYAGRA hereunder are owned by Tufts andare licensed to ACT under the TUFTS License. Licensors, Tufts and CYAGRA agreethat, in the event that the TUFTS License or this Agreement is terminated forany reason, (i) promptly following such termination of the TUFTS License,Tufts shall directly license the TUFTS Rights to CYAGRA in a license agreementwith the terms of such license agreement no less favorable than the TUFTSLicense and CYAGRA will thereafter make any payments due to ACT directly toTUFTS during the term of this Agreement; and (ii) CYAGRA shall not beliable for any payments that may be due and payable to Tufts by Licensors.LICENSORS AND TUFTS ACKNOWLEDGE AND AGREE THAT CYAGRA SHALL BE ENTITLED TOSPECIFIC PERFORMANCE OF TUFTS’ OBLIGATIONS UNDER THIS SECTION 2.1(c)(i).Licensors acknowledge that any payments so made by CYAGRA to Tufts shall becredited against any payments due and payable to ACT hereunder. For theavoidance of doubt, Licensors and Tufts agree that references to “Sublicensees”in Sections 2.4 and 8.2 of the Tufts License shall not apply to CYAGRA andshall not be construed as vitiating the provisions of this Agreement(including, Sections 2.1(a)(1), 2.1(a)(3) and this Section 2.1(c)).Licensors and Tufts agree that the provisions of Section 8.2 of the TUFTSLicense providing for termination or assignment of sublicenses to Tufts atTufts’ option shall not apply to the sublicense by Licensors to CYAGRA underthis Agreement, and that the provisions of this Section 2.1 shall governin the event that

 

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the TUFTS Licenseis terminated. Licensors and Tufts agree that CYAGRA will not be bound by anyamendment to the TUFTS License that adversely affects CYAGRA’s rights underthis Agreement in any material respect, unless CYAGRA agrees in writing to suchamendment.

 

(d) The LIU License. CYAGRA acknowledges that portions ofthe ACT Licensed Property licensed to CYAGRA hereunder are licensed to ACTGROUP under the LIU License. Licensors, Liu, and CYAGRA agree that, in theevent that the LIU License or this Agreement is terminated for any reason, (i) promptlyfollowing such termination of the LIU License, Liu shall directly license theLIU Rights to CYAGRA in a license agreement with the terms of such licenseagreement no less favorable than the LIU License and CYAGRA will thereaftermake any payments due to ACT GROUP directly to Liu during the term of thisAgreement; and (ii) CYAGRA shall not be liable for any payments that maybe due and payable to Liu by Licensors. LICENSORS AND LIU ACKNOWLEDGE AND AGREETHAT CYAGRA SHALL BE ENTITLED TO SPECIFIC PERFORMANCE OF LIU’S OBLIGATIONSUNDER THIS SECTION 2.1(d)(i). Licensors acknowledge that any payments somade by CYAGRA to Liu shall be credited against any payments due and payable toLicensors hereunder. Licensors and Liu agree that CYAGRA will not be bound byany amendment to the LIU License that adversely affects CYAGRA’s rights underthis Agreement in any material respect, unless CYAGRA agrees in writing to suchamendment.

 

2.2                                 TechnologyTransfer. In connection with the license granted in Section 2.1(a) above,ACT agrees that it will, promptly after the Effective Date of this Agreement,provide CYAGRA with all information, data and training relating to the ACTLicensed Property as may be reasonably necessary to allow CYAGRA to exploitsaid license.

 

2.3                                 FirstOffer/Negotiation. ACT and CYAGRA each agree, on a periodic basis (not lessfrequently than quarterly) during the term of this Agreement, to provide theother a written report of all ACT Developments or CYAGRA Developments, asapplicable, developed and internally disclosed by each, which reports shall bedeemed Confidential Information subject to the provisions of Section 7 ofthis Agreement. ACT and CYAGRA each hereby grant to the other a right of firstoffer/first negotiation to obtain an exclusive, worldwide license, limited to theField of Agriculture and the Equine Field in the case of CYAGRA and limited tothe fields of use other than the Field of Agriculture and the Equine Field inthe case of ACT, to any such Developments. The option to negotiate with respectto any such Development shall be valid and exercisable for a period of 60 daysafter one party (the “Optionor”) notifies the other party (the “Optionee”) ofthe Development (the “Option Period”). If Optionee exercises the option within theOption Period, then the Optionee shall have 90 days after exercise of theoption (the “Negotiation Period”) within which to execute a license. The 90-dayNegotiation Period may be extended by mutual agreement of the parties.

 

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

 

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

 

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3.2                                 SummaryReports by CYAGRA. CYAGRA shall maintain complete and accurate records ofLicensed Products and Licensed Services that are made, used, sold or performedby CYAGRA (or on behalf of CYAGRA) under this Agreement. Not later than May 1stof each year following the Effective Date, CYAGRA shall furnish Licensors andthe University with an executive summary report on the progress of its effortsduring the prior year to develop and commercialize Licensed Products orLicensed Services, including without limitation research and developmentefforts, efforts to obtain regulatory approval, marketing efforts (includingLicensed Products and Licensed Services made, used, sold or performed) andsales figures, provided that such reports shall be deemed ConfidentialInformation subject to the provisions of Section 7 of this Agreement.

 

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

 

4.1                                 General.The terms of this Agreement shall commence on the Effective Date and shallremain in effect unless sooner terminated as provided herein.

 

4.2                                 Terminationby CYAGRA. This Agreement may be terminated by CYAGRA at any time withoutcause by giving sixty (60) days prior written notice to Licensors. Upon termination,CYAGRA shall have no further obligations to pay any royalties, other than to submita final report and 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. CYAGRA 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 litigation or proceeding before any court or governmentalauthority that such Licensed Product or Licensed Service is alleged to infringethe intellectual property right of any third party.

 

4.5                                 Terminationfor Change in Law. CYAGRA may immediately terminate this Agreement onwritten notice to Licensors in the event that there are any changes in law thatmay have material adverse effect on CYAGRA’s right to develop, make, have made,import, export, use and sell Licensed Products and to develop and performLicensed Services.

 

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

 

4.7                                 Survivalof Obligations; Return of Confidential Information. Notwithstanding anytermination of this Agreement, the obligations of the parties under Sections2.1(b), 2.1(c), 2.1(d), 4, 6, 7, 8, 9, 10 and 12, as well as under any other provisions, which by their natureare intended to survive any such termination, shall survive and continue inforce. Upon any termination of this Agreement, each party shall promptly returnto the other party all written

 

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ConfidentialInformation, and all copies, summaries, notes or extracts thereof, to the otherparty.

 

4.8                                 ExistingStock. In the event that this Agreement terminates or expires, CYAGRA shallretain 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.

 

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

 

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

 

5.1                                 Royalties,Sublicense Income, Reports and Records.

 

(a)                                  Foreach Licensed Product or Licensed Service sold by CYAGRA (or by any third partyon behalf of CYAGRA), CYAGRA shall pay to Licensors on a quarterly basis, as providedin Section 5.5 below, the same royalties that ACT and/or ACT GROUP wouldhave paid to the University, Tufts or Liu, respectively, pursuant to the UMASSLicense, the TUFTS License and/or the LIU License, for the sale of suchLicensed Product or Licensed Services. The Licensors acknowledge and agree thatthe license to Cyagra of any and all ACT Licensed Property owned by theLicensors shall be royalty-free.

 

(b)                                 Theobligation of CYAGRA to pay royalties pursuant to Section 5.1(a) on salesof Licensed Products and Licensed Services shall terminate on acountry-by-country basis concurrently with the expiration or termination of thelast applicable patent within the ACT Patent Rights in the country in which theLicensed Product or Licensed Services is manufactured, sold or performed.

 

(c)                                  IfCYAGRA fails to timely make any payment required under this Section 5.1, suchfailure, not cured within thirty (30) days of receiving a written notice ofsuch failure to make a payment, shall constitute a breach of a materialprovision under this Agreement and Licensors shall have the right to terminatethis Agreement in accordance with Section 4.3 hereof,

 

5.2                                 MinimumRoyalty.

 

(a)                                  Fieldof Agriculture. For the Field of Agriculture, CYAGRA shall be subject tominimum annual royalties equal in an amount to the minimum annual royaltiesthat ACT GROUP and/or ACT pays to the University, Tufts or Liu, respectively,pursuant to the UMASS License, the TUFTS License and/or LIU License.

 

(b)                                 EquineField. For the Equine Field, commencing with the third full calendar yearof this Agreement (i.e., the calendar year 2005), CYAGRA shall be subject tominimum annual royalties for each remaining calendar year of the term of thisAgreement. The amount of the minimum royalty for the Equine Field shall be TenThousand ($10,000) dollars for the 2005 calendar year and shall thereafterincrease at the rate of $10,000 per calendar year, but in no event to exceedFifty Thousand ($50,000) dollars per calendar year. For the avoidance of doubt,the amount of the annual minimum royalty for each calendar year shall be asfollows (payable, as noted below, no later than forty-five (45) days followingthe end of each applicable calendar year):

 

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| **Calendar  Year**                                                              | ** ** | **Amount  of Minimum Royalty Per Year** | ** ** |
|---------------------------------------------------------------------------------|------------|-----------------------------------------|------------|
|                                                                            |       |                                    |       |
| 2005                                                                            |       | $                                       | 10,000.00  |   |
|                                                                            |       |                                    |       |
| 2006                                                                            |       | $                                       | 20,000.00  |   |
|                                                                            |       |                                    |       |
| 2007                                                                            |       | $                                       | 30,000.00  |   |
|                                                                            |       |                                    |       |
| 2008                                                                            |       | $                                       | 40,000.00  |   |
|                                                                            |       |                                    |       |
| 2009 and  throughout the remaining calendar years of the term of this Agreement |       | $                                       | 50,000.00  |   |

 

In the event that the annual royalties paid by CYAGRA for the EquineField for the applicable year Is less than the minimum royalty due for suchyear, CYAGRA shall pay the difference to CYAGRA no later than forty-five (45)days following the end of each applicable calendar year. In the event that the annualroyalties paid by CYAGRA for the applicable year is equal to or greater thanthe minimum royalty due for the Equine Field for such year, then CYAGRA shallhave satisfied the minimum royalty obligations for the Equine Field for suchyear. Waiver of any payment of the minimum annual royalty by CYAGRA shall notbe construed as a waiver of any subsequent payment of the minimum annualroyalty for the Equine Field. If CYAGRA fails to make the payment to satisfythe minimum royalty obligations for the Equine Field hereunder within saidforty-five (45) day period, such failure shall constitute a breach of CYAGRA’sobligations under this Agreement and Licensors shall have the right to convertthe exclusive license granted herein to CYAGRA in the Equine Field to a nonexclusivelicense.

 

5.3                                 ThirdParty Royalties. In the event that CYAGRA is legally required to makeroyalty payments to one or more third parties in order to make, have made, use,import or export or sell Licensed Products or to perform Licensed Services,CYAGRA may offset such third-party payments against any royalty payments thatare due to Licensors in the same royalty period, provided, however, that in noevent shall the royalty payments that are due to Licensors in such royaltyperiod be reduced by more than fifty percent (50%). CYAGRA may carry forwardany unused credits or offsets for use in subsequent royalty periods during theterm of this Agreement.

 

5.4                                 SublicenseIncome. CYAGRA shall pay to Licensors Sublicense Income in an amount equalto the Sublicense Income that ACT GROUP and/or ACT would have to pay to theUniversity, Tufts or Liu, as applicable, if ACT GROUP or ACT had itself enteredinto such sublicense. Except for royalty-based payments, such amounts shall bedue and payable within sixty (60) days after CYAGRA receives the relevantpayment from the sublicensee. Royalty-based payments of Sublicense Income shallbe due and payable as provided in Section 5.6 below.

 

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5.5                                 Paymentsin U.S. Dollars. All payments due under this Agreement shall be paid to ACTin 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 CYAGRA on royalty or Sublicense Income payments under the laws ofany country in the Territory for the account of ACT will be promptly paid byCYAGRA for and on behalf of ACT to the appropriate governmental authority, andCYAGRA will furnish ACT with proof of payment of such tax. Any such taxactually paid on behalf of ACT may be deducted from royalty or Sublicense Incomepayments due ACT to the extent that such taxes, are allowable as a directcredit to ACT against U.S. income taxes levied on such amounts. Conversion offoreign currency to U.S. dollars shall be made at the conversion rate reportedin The Wall Street Journal on the last working day of the calendar quarter towhich the payment relates.

 

5.6                                 Reports

 

(a)                                  CYAGRAshall submit a report, verified once a year by an independent certified publicaccountant reasonably acceptable to ACT, to ACT quarterly within 45 days after theend of each calendar quarter during the term of this Agreement stating in eachsuch report the aggregate sales and payments with respect to Licensed Productsand Licensed Services during the preceding calendar quarter and the royalty andSublicense Income amounts as provided herein. Without limiting the generalityof the foregoing, such reports shall include at least the following:

 

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

 

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

 

(3)                                  deductionsclaimed (as provided in Section 1.16);

 

(4)                                  thenames and addresses of all parties making Licensed Products on behalf ofCYAGRA; and

 

(5)                                  theamount of royalty-based Sublicense Income due to Licensors for the applicableroyalty period from each sublicensee.

 

The payment ofroyalty and royalty-based Sublicense Income amounts shall be made concurrentlywith such reports.

 

(b)                                 CYAGRAshall keep, and shall cause its sublicensees to keep, full, complete, true andaccurate books of account containing all particulars relating to themanufacture and sales with respect to Licensed Products and Licensed Services,and any allowed credits, which may be necessary to ascertain and verify theroyalties and Sublicense Income payable to Licensors. Said books and accountsof CYAGRA shall be kept at CYAGRA’s principal place of business for five yearsfollowing the end of the calendar year to which they pertain.

 

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

 

6.1                                 Ownership.ACT or its licensor(s) shall own the ACT Patent Rights, the ACT Technology andthe ACT Developments. CYAGRA shall own CYAGRA Developments.

 

6.2                                 ACTPatent Rights.

 

(a)                                  Subjectto the terms of the UMASS License, the TUFTS License and the LIU License,Licensors shall be solely responsible for the filing, prosecution andmaintenance of the ACT Patent Rights. The costs of such filing, prosecution andmaintenance (including the payment of all government fees in any given countryrequired to maintain the ACT Patent Rights) shall be borne by Licensors, exceptthat CYAGRA will reimburse Licensors for such costs in accordance with thereimbursement schedule attached hereto as Schedule D. CYAGRA shallalso reimburse ACT for all such costs for any countries where CYAGRA requeststhat ACT maintain patent protection, but where ACT did not otherwise intend tomaintain such protection. Licensors shall submit evidence to CYAGRA uponrequest that fees required to maintain the ACT Patent Rights have been timelypaid. Except as provided above, Licensors and CYAGRA will pay the fees andexpenses of their respective outside patent counsel for the activities describedin this Section 6.2.

 

(b)                                 CYAGRA’spatent counsel shall be given a reasonable opportunity to comment on allproposed patent filings (“Filings”) and responses (“Responses”) to patentoffice actions or other patent office communications (collectively, “OfficeCommunications”) with respect to the ACT Patent Rights. In the case of Filings,and in the case of Office Communications to which Licensors must respond in aperiod of time equal to or exceeding sixty (60) days (including extensions),Licensors shall deliver its proposed Filing or Response to CYAGRA for commentnot later than sixty (60) days prior to the final patent office deadline for suchFiling or Response, and Licensors will not unreasonably refuse to accept anysuggestions of CYAGRA’s patent counsel regarding such Filing or Response,provided that CYAGRA’s patent counsel provides such comments to Licensors’patent counsel not less than thirty (30) days prior to the final patent officedeadline for such Filing or Response. In the case of Office Communications towhich Licensors must respond in less than sixty (60) days, which deadline maynot be extended, Licensors shall deliver its proposed Response to CYAGRA forcomment not later than ten (10) days after Licensors’ receipt of suchOffice Communication, and Licensors will not unreasonably refuse to accept anysuggestions of CYAGRA’s patent counsel regarding such Response, provided thatCYAGRA’s patent counsel provides such comments to Licensors’ patent counsel notless than ten (10) days prior to the final patent office deadline for suchResponse. Licensors will not allow any patent or patent application within theACT Patent Rights to become expired or abandoned without giving (a) priorwritten notice to CYAGRA of such expiration or abandonment, and (b) CYAGRAthe right to assume responsibility for such patent or patent application. IfCYAGRA so elects, ACT will assign such patent or patent application to CYAGRA,and CYAGRA will thereafter assume control thereof and all expenses relatedthereto. With respect to the LIU Rights, the TUFTS Rights and the UMASS Rights,CYAGRA’s rights 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 Liu under the LIU License, and (3) therights of Tufts under the TUFTS License (including Article 6 thereof), as applicable.

 

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(c)                                  Theparties agree to notify each other in writing of any actual or threatened infringementby a third party of the ACT Patent Rights, of any claim of invalidity, unenforceability,or non-infringement of the ACT Patent Rights, or of any actual or threatened misappropriationof the ACT Technology. Licensors shall have the first right to prosecute or defendsuch claims, as applicable, and if Licensors proceed with such prosecution ordefense CYAGRA shall have the right to share in the control of the prosecutionor defense by providing reasonable assistance to Licensors and by sharing 50%of the costs of such prosecution or defense. Licensors shall also have theoption to require CYAGRA to bear an increased share of such costs by paying, inaddition to its 50% share of such costs, an amount equal to the amount ofroyalties or other payments due to Licensors by CYAGRA during the period inwhich such costs are incurred, which amount shall be taken as an offset to theroyalty or other payments due to Licensors.

 

(d)                                 Inthe event that Licensors fail to initiate an infringement action within a reasonabletime after they become aware of the basis for such action, or to answer adeclaratory judgment action within a reasonable time after such action isfiled, CYAGRA shall have the right to prosecute such infringement or answersuch declaratory judgment action, at its sole expense. In the event CYAGRAexercises its rights hereunder to proceed with any such prosecution or defense,CYAGRA 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 ACT 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 CYAGRA abandons such proceedings, then Licensors shallhave the right to take control of any such proceedings at their sole expenseupon notification to CYAGRA, and CYAGRA shall cooperate fully with Licensors insubstituting Licensors for CYAGRA in any such proceeding in the most timely andcost effective manner reasonably possible and shall otherwise cooperate with Licensorsin effecting a smooth transition in any such proceeding. With respect to theLIU Rights, the TUFTS Rights and the UMASS Rights, CYAGRA’s rights under this Section 6.2(d)shall be subject to (I) the rights of the University under the UMASS License(including Section 6 thereof), (2) the rights of Liu under the LIULicense, and (3) the rights of Tufts under the TUFTS License (including Article 7thereof), as applicable.

 

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

 

7.1.                              Useand Nondisclosure of Confidential Information. (a) Licensors, CYAGRA,the University, Tufts or Liu (each a “Receiving Party”) will not disclose ormake available to any person outside its organization the disclosing party’sConfidential Information. The Receiving Party may disclose the other party’sConfidential Information to persons within its organization and that of itsAffiliates to the extent necessary to further the purposes of this Agreement,provided that all such persons are bound to protect the confidentiality of suchConfidential Information. The Receiving 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 protective ordersor other restrictions on disclosure.

 

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(b) Except to theextent expressly authorized by this Agreement or by other prior written consentby the disclosing party, each Receiving Party shall during the term of thisAgreement and thereafter: (i) treat as confidential all ConfidentialInformation of the other party; (ii) not use such Confidential Informationexcept as authorized herein or otherwise authorized in writing, (iii) implementreasonable procedures to prohibit the disclosure, unauthorized duplication,misuse or removal of the other party’s Confidential Information; (iv) notdisclose such Confidential Information to any third party, and (v) onlydisclose the Confidential Information to those of its employees who have needto know such Confidential Information in order to exercise the rights andfulfill the obligations set forth herein. Without limiting the foregoing, eachReceiving Party shall protect the Confidential Information using at least thesame procedures and degree of care that it uses to prevent the disclosure ofits own confidential information of like importance, but in no event less thanreasonable care. Each Receiving Party shall return the Confidential Informationto the other party upon termination of the Agreement or upon the request of theother party. Except as expressly provided in this Agreement, no ownership orlicense right is granted in any Confidential Information.

 

7.2                                 InjunctiveRelief. The Receiving Parties acknowledge and agree that any breach of theconfidentiality obligations imposed by this Section 7 will constituteimmediate and irreparable harm to the party disclosing the ConfidentialInformation and/or its successors and assigns, which cannot adequately andfully be compensated by money damages and will warrant, in addition to allother rights and remedies afforded by law, injunctive relief, specific performance,and/or other equitable relief. The disclosing party’s rights and remedieshereunder are cumulative and not exclusive. The disclosing party shall also beentitled to receive 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 CYAGRAthat:

 

(a)                                  Licensorsown or have a licensable interest in the ACT Licensed Property and have theright to grant to CYAGRA the license set forth above;

 

(b)                                 Licensorshave provided CYAGRA with a copy of the UMASS License, as amended, andLicensors represent and warrant that the said copy is a true and complete copyof the UMASS License as of the Effective Date;

 

(c)                                  Licensorshave provided CYAGRA with a copy of the TUFTS License, and Licensors representand warrant that the said copy is a true and complete copy of the TUFTS Licenseas of the Effective Date;

 

(d)                                 Licensorshave provided CYAGRA with a copy of the LIU License, and Licensors representand warrant that the said copy is a true and complete copy of the LIU

 

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License as of theEffective Date;

 

(e)                                  theexecution of this Agreement and performance of the transactions contemplatedhereby have been approved by the ACT and ACT GROUP Boards 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 Licensorsare parties or by which Licensors are bound, including the UMASS License, TUFTSLicense and LIU License; and

 

(f)                                    Licensorshave obtained all necessary consents to grant to CYAGRA the license set forth above;

 

(g)                                 theACT Licensed Property are valid and enforceable;

 

(h)                                 the exercise of the rights and license granted to CYAGRA under this Agreement,including the manufacture, use or sale of the Licensed Product or LicensedServices shall not infringe or misappropriate the intellectual property rightsof any third party; and

 

(i)                                     Schedule Asets forth a true and complete list of all ACT Patent Rights.

 

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

 

8.3                                 Disclaimer.Except as set forth in Section 8.1 above, Licensors do not make any representationsor warranties that the ACT Licensed Property has any applications, uses orother attributes of any commercial nature, CYAGRA having made its owndetermination as to the usefulness of the ACT Licensed Property to CYAGRA andCYAGRA’s intended application(s) of the Licensed Property and any relatedbusiness based on such due diligence as CYAGRA has deemed necessary.

 

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

 

9.1                                 Indemnificationby Licensors. Licensors shall defend, indemnify and hold harmless CYAGRA,the University, Tufts and Liu, and their Affiliates, trustees, agents,directors, officers and employees, at Licensors’ cost and expense, from andagainst any and all losses, costs, liabilities, licensing fees, damages, feesand expenses, including reasonable attorneys’ fees and expenses incurred orimposed upon any of the indemnified parties in connection with any claims(including third party claims), suits, actions, demands or judgments

 

(a)                                  arisingout of any breach by Licensors of any representation or warranty of Licensorshereunder;

 

(b)                                 arisingout of any third party claim asserted against CYAGRA based on the allegedinfringement of a patent or other protected intellectual property right basedon a Licensed Product or a Licensed Service; and

 

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(c)           arising out of any consequences ofthe patent interference proceedings and opposition proceedings before the U.S.Patent and Trademark Office and similar authorities in the Territory involvingthe ACT Patent Rights.

 

9.2                                 Indemnificationby CYAGRA. CYAGRA shall defend, indemnify and hold harmless Licensors, theUniversity, Tufts and Liu, and their Affiliates, trustees, agents, directors, officersand employees, at CYAGRA’s cost and expense, from and against any and alllosses, costs, liabilities, damages, fees and expenses, including reasonableattorneys’ fees and expenses incurred or imposed upon any of the indemnifiedparties in connection with any claims (including third party claims), suits,actions, demands or judgments:

 

(a)                                  arisingout of any breach by CYAGRA of any representation or warranty of CYAGRAhereunder; or

 

(b)                                 arisingout of the death or injury to any person or persons or out of any damage totangible property resulting from or otherwise attributable to the making,using, development, testing, registration, distribution and/or sale by orthrough CYAGRA of any Licensed Products or Licensed Services under thisAgreement.

 

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 berequired to provide and be entitled to control the defense of any claim coveredhereunder (including the right to settle it at the sole discretion of theindemnifying party) with counsel reasonably satisfactory to the other partywhich may, at its own expense, participate in the defense of any claim afterthe indemnifying party assumes control of the defense thereof. Theindemnification obligations in this Section 9 shall not apply to amountspaid in settlement of such claim if such settlement is effected without theconsent of the indemnifying party, which consent shall not be unreasonably withheldor delayed. The failure of the indemnified party to deliver notice to theindemnifying party promptly after the commencement of any such action, ifmaterially prejudicial to the indemnifying party’s ability to defend suchaction, shall relieve the indemnifying party of any liability to theindemnified 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.

 

9.4                                 PatentInterference Proceeding. In the event that Licensors enter into any settlementsor compromises arising out of any patent interference or opposition proceedingspending before the U.S. Patent and Trademark Office and similar authorities inthe Territory involving the ACT Patent Rights, Licensors shall ensure thatCYAGRA and Goyaike will obtain the benefits of such settlements or compromises.

 

**10.**                               **LIMITATION OF LIABILITY.** IN NO EVENT SHALL ANY PARTY (OR ITS AFFILIATES,SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS) BE LIABLE FOR ANYSPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUTOF OR RELATED TO THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THEPOSSIBILITY OF SUCH

 

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DAMAGES,REGARDLESS OF THE THEORY OF LIABILITY, EXCEPT (I) CLAIMS THAT RESULT FROMEITHER PARTY’S MATERIAL VIOLATION OF SECTION 7 (CONFIDENTIALITY) OF THISAGREEMENT, (II) DAMAGES INCLUDED IN AN AWARD AGAINST EITHER PARTY RESULTINGFROM A THIRD PARTY CLAIM, OR (III) CLAIMS BASED ON GROSS NEGLIGENCE, WILLFULMISCONDUCT OR FRAUD.

 

**11**.                               **INSURANCE.**  Each partyshall obtain and maintain, at all times during the term of this Agreement,general liability insurance with appropriate bodily injury, death and propertydamage limits. Upon request, a party shall furnish a certificate of insurancesigned by an authorized representative of its insurance underwriter evidencingsuch coverage and providing for at least thirty (30) days’ prior written noticeof any cancellation, termination or reduction of coverage.

 

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

 

12.1                           Assignment.This Agreement, and the rights and obligations thereunder, may not be assignedor transferred, in whole or in part, by either party without the prior writtenconsent of the other party; providedthat, CYAGRA shall have theright to assign this Agreement in connection with sale of all or substantiallyall of that portion of CYAGRA’s business to which this Agreement pertains.

 

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 or other communications shall be deemed tohave been properly served to the addressee upon receipt of such written communication.

 

In the case of CYAGRA, the proper address for communications shall be:

 
| Cyagra, Inc.                     |                          |
|---------------------------------------|-------------------------------|
| One Innovation  Drive                 |                          |
| Worcester,  Massachusetts  01605 |                          |
|                                  |                          |
| Telecopy:                             | (54) 3488-436300              |
| Attention:                            | Mr. Alejandro Cantarelli |
|                                  |                          |
| with a copy to:                       |                          |
|                                  |                          |
| Shearman &  Sterling         |                          |
| 599 Lexington  Avenue                 |                          |
| New York, NY  10022                   |                          |
|                                  |                          |
| Telecopy:                             | (212) 848-7179                |
| Attention:                            | Alfred J. Ross, Esq.     |
|                                       |                               |  |

 

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in the case ofA.C.T. GROUP, the proper address for communication shall be:

 
| A.C.T.  Group, 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 ACT,  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.      |
|                                                                          |                                    |  |  |  |

 

12.3                           Choice of Law; Submission to Jurisdiction. This Agreement is subject to and governedby the laws of the Commonwealth of Massachusetts, without regard to principlesof conflicts of law thereof, except that questions affecting the constructionand effect of any patent shall be determined by the law of the country in whichthe patent was granted. The parties irrevocably and expressly submit to theexclusive jurisdiction of the courts (state and federal) of the Commonwealth ofMassachusetts, United States of America and the courts competent to hear appealsfrom those courts for the resolution of any disputes arising in connection withthis Agreement.

 

12.4                           Compliance with Law by CYAGRA. CYAGRA shall comply in all material respects with all material local,state, federal and international laws and regulations relating to thedevelopment, manufacture, use, and sale of Licensed Products and LicensedServices in the Territory. Without limitation of the foregoing, CYAGRA shallcomply with the following:

 

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(a)                                  CYAGRA shall obtain all necessary approvalsfrom any governmental authorities of any foreign jurisdiction in which CYAGRAintends to make, use, or sell Licensed Products or to perform Licensed Servicesin the Territory.

 

(b)                                 CYAGRA shall comply in all material respectswith any and all material applicable local, state, federal and internationallaws and regulations relating to the Licensed Products and Licensed Services,and the ACT Patent Rights and ACT Technology, in the Territory, including withoutlimitation all material export or import regulations and rules now in effector as may be issued from time to time by any governmental authority which has jurisdictionrelating to the export of Licensed Products or Licensed Services and anytechnology relating thereto.

 

12.5                           Counterparts. ThisAgreement may be executed in any number of counterparts, each of which shall bedeemed an original but all of which together shall constitute one and the sameinstrument.

 

12.6                           Headings. Allheadings contained in this Agreement are for convenience of reference only andshall not be considered in construing this Agreement.

 

12.7                           Binding Effect. ThisAgreement shall be binding upon and inure to the benefit of the parties andtheir respective permitted successors and assigns.

 

12.8                           Amendment and Waiver.This Agreement may be amended, supplemented, or otherwise modified only bymeans of a written instrument signed by both parties. Any waiver of any rightsor failure to act in a specific instance shall relate only to such instance andshall not be construed as an agreement to waive any rights or failure to act inany other instance, whether or not similar.

 

12.9                           Severability. In theevent that any one or more of the provisions contained in this Agreement shall,for any reason, be held to be invalid, illegal or unenforceable in any respect,such invalidity, illegality or unenforceability shall not affect any otherprovision of this Agreement, and all other provisions shall remain in fullforce and effect. If any of the provisions of this Agreement is held to beexcessively broad or invalid, illegal or unenforceable in any jurisdiction, itshall be reformed and construed by limiting and reducing it so as to beenforceable to the maximum extent permitted by law in conformance with itsoriginal intent.

 

12.10                     Entire Agreement.This Agreement, together with the UMASS License, TUFTS License, LIU License andSecurities Purchase Agreement constitute the entire agreement of the partieswith regard to its subject matter, and supersede all previous written or oral representations,agreements and understandings between the parties.

 

12.11                     Publicity. Neitherparty, nor any of its Affiliates, shall originate any publicity, news releaseor other public announcement (“Announcements”), written or oral, relating tothis Agreement or the existence of an arrangement between the parties, withoutthe prior written approval of the other party, which approval shall not beunreasonably withheld, except as otherwise required by law. Any references tothe University or Tufts in such Announcements shall be subject to the approvalof the University or Tufts, as applicable. The foregoing notwithstanding,Licensors and CYAGRA shall have the right to make such Announcements

 

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without the consent of the other party, the University or Tufts, asapplicable, in any prospectus, offering memorandum, or other document or filingrequired by securities laws or other applicable law, or regulation, providedthat such party shall have given the other party or the University, asapplicable, at least ten (10) days’ prior written notice of the proposedtext for the purpose of giving the other party or the University, asapplicable, the opportunity to comment on such text.

 

12.12                     No Implied Licenses.No implied licenses are granted pursuant to the terms of this Agreement. Nolicense rights shall be created by implication or estoppel.

 

12.13                     No Agency. Nothingherein shall be deemed to constitute either party as the agent or representativeof the other party, or both parties as joint venturers or partners for any purpose.Each party shall be an independent contractor, not an employee or partner ofthe other party, and the manner in which each party renders its services underthis Agreement shall be within its sole discretion. Neither party shall beresponsible 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”shall include, without limitation, requesting, encouraging, assisting orcausing, directly or indirectly, any such employee or consultant to terminatesuch person’s employment with or consultancy to such party or Affiliate.

 

12.15                     Product Marking. Tothe extent commercially feasible and permitted by law, and consistent withprevailing business practices, all Licensed Products (or the packaging orproduct label of such Licensed Product(s)) manufactured or sold by or throughCYAGRA under this Agreement will be marked with the number of each issuedpatent that applies to such product.

 

12.16                     Effect of Bankruptcy Filing. All rights and licenses granted under orpursuant to this Agreement are, and shall otherwise be deemed to be, forpurposes of Paragraph 365(n) of the U.S. Bankruptcy Code, licenses of rights to“intellectual property” as defined under Paragraph 101(35A) of the U.S.Bankruptcy Code. The parties agree that CYAGRA, as a licensee of such rightsunder this Agreement, shall retain and may fully exercise all of its rights andelections under the U.S. Bankruptcy Code. The parties further agree that, inthe event of the commencement of a bankruptcy proceeding by or against ACTincluding under the U.S. Bankruptcy Code, CYAGRA shall be entitled to acomplete duplicate of (or complete access to, as appropriate) any suchintellectual property and all embodiments of such intellectual property,including the ACT Patent Rights and the ACT Technology, and the same, if notalready in CYAGRA’s possession, shall be promptly delivered to CYAGRA upon anysuch commencement of a bankruptcy proceeding upon written request therefore byCYAGRA.

 

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**IN WITNESS WHEREOF**, the parties hereto and the University, Tufts and Liu have caused thisAgreement to be executed the day and year first written above. The personssigning below warrant their authority to sign the Agreement.

 
| ADVANCED CELL TECHNOLOGY,  INC. | A.C.T. GROUP, INC.           |
|---------------------------------|------------------------------|
|                            |                         |
|                            |                         |
| By:                             |   /s/ Michael West |   | By: |   /s/ Michael West |   |
|                            | *Signature*                  |   |   | *  Signature* |   |
|                            |                         |   |   |   |   |
|                            |   MICHAEL WEST     |   |   |   MICHAEL WEST |   |
|                            | *Printed  Name*              |   |   | *  Printed  Name* |   |
|                            |                         |   |   |   |   |
|                            |   PRESIDENT        |   |   |   PRESIDENT |   |
|                            | *Title*                      |   |   | *  Title* |   |
|                            |                         |   |   |   |   |
|                            |   July 1, 2002     |   |   |   July 1, 2002 |   |
|                            | *Date*                       |   |   | *  Date* |   |

 

 
| CYAGRA, INC. |
|--------------|
|         |
|         |
| By:          |   /s/ Michael West |   |
|         | *Signature* |   |
|         |   |   |
|         |   MICHAEL WEST |   |
|         | *Printed  Name* |   |
|         |   |   |
|         |   PRESIDENT |   |
|         | *Title* |   |
|         |   |   |
|         |   July 1, 2002 |   |
|         | *Date* |   |

 

22

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