**Exhibit 10.8**

 

**LICENSE AGREEMENT (“Agreement”),**effectiveas of February 25, 2008 (the “Effective Date”)

 

**BETWEEN**

 

AdvancedCell Technology, Inc., a Delaware corporation with offices located at 381Plantation Street, Worcester, Massachusetts 01605, the United States ofAmerica, lawfully represented by its director William M. Caldwell, IV (“ACT” or “Licensor”)

 

and

 

PharmingTechnologies B.V., a private limitedliability company incorporated and existing under the laws ofthe Netherlands, having its registered office at Darwinweg 24, 2333 CR Leiden, the Netherlands, lawfully represented by its directors Dr. R. Strijker and Dr. B. M.Giannetti  (“Pharming” or  “Licensee”)

 

(Pharming and ACTsometimes hereinafter referred to individually as a “Party” and collectively asthe “Parties”).

 

**WHEREAS****:**

 

1.                                       Pharming and Infigen, Inc. (“Infigen”)previously entered into a License and Settlement Agreement that was executed byPharming and Infigen on July 9, 2004 and July 13, 2004, respectively”),a copy of which is attached hereto as Exhibit A (the “OriginalAgreement”).

 

2.                                       Under the Original Agreement, Pharmingobtained certain exclusive and nonexclusive rights to patents owned by Infigen.

 

3.                                       Infigen ceased conducting its business, andcertain of the patents previously owned by Infigen were acquired by ACTpursuant to a Patent Assignment Agreement (the “Assignment Agreement”) dated February 2,2007 between ACT and Infigen.

 

4.                                       Under the Assignment Agreement, ACT agreed tohonor the Original Agreement with respect to the Infigen Patents (as definedherein) and subject to the terms and conditions of the Assignment Agreement;and

 

5.                                       Pharming and ACT have agreed that theOriginal Agreement should be restated to clarify the Parties’ respective rightsand to reflect certain agreements reached by Pharming and ACT concerning thepatent rights previously licensed to Pharming under the Original Agreement.

 

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**DECLARE THAT THEY HAVE ENTERED INTO AGREEMENT AS FOLLOWS:**

 

ARTICLE1 - DEFINITIONS

 

Forthe purposes of this Agreement, the following words and phrases shall have thefollowing meanings:

 

1.1                               “Infigen Patents” means the patentsand patent applications listed in Exhibit B attached hereto.  The Parties acknowledge and agree that Exhibit Bshall be updated by ACT on a yearly basis to reflect the actual status of theInfigen Patents.

 

1.2                               “PharmingField” means all uses and applications in or related to non-human animals.

 

1.3                               “ACT Field” means all uses andapplications in or related to humans.

 

1.4                               “Territory” means the world.

 

1.5                               “Improvements”  means all improvements or modifications oradaptations to or, any new application of Infigen Patents or any parts thereofwhich may be made or acquired by either Party during this Agreement.

 

Forpurposes of this Agreement, except as otherwise expressly provided herein orunless the context otherwise requires:  (a) theuse herein of the plural shall include the single and *vice versa*and the use of the masculine shall include the feminine; (b) unlessotherwise set forth herein, the use of the term “including” or “includes” means“including [includes] but [is] not limited to”; and (c) the words “herein,”“hereof,” “hereunder” and other words of similar import refer to this Agreementas a whole and not to any particular provision. Additional terms may be defined throughout this Agreement.

 

## ARTICLE 2 – TERMINATION OF THE ORIGINAL AGREEMENT

 

The Original Agreement is hereby terminated by mutual agreement of theParties and all of its provisions are hereby superseded in their entirety andreplaced by the provisions of this Agreement, including its Exhibits, provided,however, that ACT and Pharming acknowledge, understand and agree that theOriginal Agreement shall remain in force as between Pharming and Infigen withrespect to all rights, licenses (including the non-exclusive license rights ofPharming under the Original Agreement not covered by Exhibit B and itsprovisions in relation to these non-exclusive license rights) and obligationsrelating to any Infigen intellectual property, including without limitation,any patents and patent applications other than the Infigen Patents (licensedhereunder) included in the Original Agreement. Nothing in this Agreement is intended to terminate or adversely affectany rights obtained by Pharming from Infigen under the Original Agreementexcept to the extent the Original Agreement is terminated by this Agreement.

 

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ARTICLE 3 - LICENSE GRANTS AND RETAINED RIGHTS

 

3.1                               License Grant.  ACThereby grants to Pharming an exclusive (even excluding ACT),sublicenseable, world-wide, royalty-free, non-terminable (by ACT) andirrevocable license under the Infigen Patents, including Improvements, andincluding any foreign counterpart applications, together with any and allpatents that have issued or in the case of applications heretofore filed, inthe future issue therefrom or whose priority date is based thereon; and allrelated divisionals, continuations, national stage applications or patentsfiled under the Patent Cooperation Treaty of 1978, reissues or renewals, of theforegoing, in the Pharming Field in the Territory, to make, have made, use,have used, sell, have sold, offer for sale, and import all products covered bythis Agreement and to use and have used the technology covered by the InfigenPatents.

 

3.2                               Sublicenses.  Pharming shall have the rightto grant further sublicenses to or under the Infigen Patents in the PharmingField.

 

3.3                               Retained Rights. Pharming acknowledges and agrees that ACT shall retain all rights toexploit the Infigen Patents in the ACT Field.

 

3.4                               Term of License.  Thelicense granted under Section 3.1 shall endure until the expiry of thelast of the Infigen Patents.

 

ARTICLE4 - CONSIDERATION

 

4.1                                     License Fee.  Uponexecution of this Agreement, Pharming shall pay to ACT a one-time payment ofUSD $260,000.00 (TWO HUNDRED SIXTY THOUSAND DOLLARS) (the “License Fee”).  The License Fee shall be via wire transfer toACT in accordance with the wire instructions set forth in Exhibit Cattached hereto.

 

4.2                               No AdditionalCompensation.  ACT is not entitled to anyrenumeration, royalty or other compensation other than as provided in Section 4.1.

 

ARTICLE 5 – PAYMENTS AND RECORDS

 

[Intentionally Omitted]

 

ARTICLE 6 - REPRESENTATIONS AND WARRANTIES

 

6.1                               ACT represents andwarrants that from the effective date of the Assignment Agreement it is theowner of the Infigen Patents and all registration and renewal 

 

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fees with regard to the Infigen Patents have beenpaid and will be paid during the duration of this Agreement.

 

6.2                               ACT represents and warrants that from the effective date of the AssignmentAgreement no other patents have been transferred by Infigen to ACT thanthe patents listed in Exhibit B of this Agreement.

 

6.3                               ACT represents andwarrants that except as set forth in the disclosure schedule set forth in Exhibit Dattached hereto there exist no any other licenses to use the InfigenPatents.  ACT further represents andwarrants that it will not grant any further licenses to use Infigen Patents toany third party

 

6.4                               ACT represents andwarrants that the execution,delivery and performance of this Agreement by ACT (i) are within itscorporate powers, and (ii) have been duly authorized by all necessarycorporate action on ACT’s part.

 

6.5                               ACT represents tothe best of its knowledge:

 

(a)                                that the InfigenPatents are valid or remain valid;

 

(b)                               that the practiceof the inventions disclosed in the Infigen Patents do not violate patent orother rights of third parties;

 

(c)                                that the InfigenPatents are not subject to any legal proceedings, litigation or interference;

 

(d)                               that since theacquisition of the Infigen Patents by ACT the Infigen Patents have beenproperly maintained and all fees due have been paid.

 

6.6                               Pharming representsand warrants that the execution,delivery and performance of this Agreement by Pharming (i) are within itscorporate powers, and (ii) have been duly authorized by all necessarycorporate action on Pharming’s part.

 

6.7                               Pharming hereby represents, warrants andcovenants that it shall comply in all material respects with all local, state,federal and international laws and regulations relating to the exploitation ofthe Infigen Patents, including in connection with the development, manufacture,use, provision, and sale of products and services covered by the InfigenPatents.

 

ARTICLE7:  INTELLECTUAL PROPERTY RIGHTS

 

7.1                               ACT shall take all necessary actions,including payment of registration and renewal fees, to maintain the patentslicensed hereunder and to obtain patents from pending and futureapplications.  ACT shall not abandon anysuch patent or allow it to expire without Pharming’s written consent.  If ACT is unable or unwilling to maintain anypatent or 

 

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prosecutea pending application which is the subject of this Agreement and Pharming doesnot consent to any such patent or application being abandoned, ACT willtransfer the patent or patent application in question to Pharming free ofcharge.

 

7.2                               The Parties agree to use their best effortsto notify each other in writing without delay, and provide all relevantinformation, of any infringement by a third party of the Infigen Patents or anythird party claim of invalidity or unenforceability of the InfigenPatents.  Pharming shall have the soleright, at its discretion and without obligation, to prosecute and defend suchclaims in the Pharming Field, under its primary control and it sole expense,employing counsel of its own choosing. ACT shall have the sole right, at its discretion and without obligation,to prosecute and defend such claims in the ACT Field, under its sole primarycontrol and it sole expense, employing counsel of its own choosing.  ACT will permit any action or defensehereunder to be brought in its name if required by law.

 

7.3                               If a Party elects not to exercise its rightto prosecute or take other appropriate action in connection with aninfringement or misappropriation, or elects not to defend any third party claimof invalidity or unenforceability of, the Infigen Patents, including anelection to abandon any action or defense previously begun, or fails to takeany such action or defense within sixty (60) days of first receivingnotification of such infringement, misappropriation or claim of invalidity orunenforceability, the other Party may do so at its own expense. In case ACTshall be the abandoning Party, ACT will transfer the Infigen Patents inquestion to Pharming free of charge.

 

7.4.                            In the event of any infringement ormisappropriation suit against a third party brought by either Party pursuant tothis Article, or the defense of any third-party claim of invalidity orunenforceability, the Party so proceeding shall pay to the other Party all ofits reasonable costs and expenses (but not attorney’s fees) in connection withsuch action and such other Party shall join in and reasonably cooperate withrespect to such action to the extent necessary to initiate and maintain it(e.g., by providing relevant documents, witnesses and testimony, etc.).

 

7.5                               If either Party brings an action or defenseunder this Article, any damages or other monetary awards recovered by thatParty shall be applied proportionately first to defray the unreimbursed costsand expenses (including reasonable attorneys’ fees) incurred by both Parties inthe action or defense.  Any remainingbalance shall be the property of the Party bringing the action or defense.

 

7.6                               No settlement, consent judgment or othervoluntary final disposition of a suit being prosecuted by a Party under this Article maybe entered into without the consent of the other Party if such settlement,consent judgment or other voluntary final disposition would alter, derogate ordiminish such other Party’s rights under this Agreement or otherwise materiallyadversely affect such other Party, which consent shall not be unreasonablywithheld or delayed.

 

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7.7                               Except as set forth in this Article, ACT willnot undertake any action that would adversely affect Pharming’s rights underthe Infigen Patents and/or under Pharming’s intellectual property rights in thearea of generation and use of transgenic cattle without the prior writtenconsent of Pharming, which consent shall not be unreasonably withheld.  It will not be considered a breach of this Article ifACT gives truthful information or testimony to a third party reasonablyentitled to request and/or receive such information including, but not limitedto, testimony given in response to a lawful subpoena, requests for informationby a regulatory body, or the like.

 

7.8                               ACT shall, to the extent permitted by thenational law of relevant country(ies) register and record the license grantedhereunder in the official register of the relevant national Patent Office orthe approved authority.

 

ARTICLE8 - CONFIDENTIALITY

 

8.1                               The Parties shall maintain theconfidentiality in respect of each others confidential information andconfidential information of third parties that is provided by each to theother, unless the information was in the public domain at the time at which itwas provided or the information was provided to the recipient by a third partywithout that third party violating a duty of confidentiality or is known to therecipient Party and is at its free disposal prior to its receipt from the otherprovided that such prior knowledge can be demonstrated by written evidence.

 

8.2                               Theobligations of confidentiality in this Article shall not prevent eitherParty disclosing information to the extent required by law, regulatorypurposes, or the requirements of any Stock Exchange, provided prior writtennotice is given to the other Party of such disclosure.

 

8.3                               The duty of confidentiality provided for in Section 8.1of this Agreement shall remain in force following termination of this Agreementfor a period of five (5) years.

 

8.4                               The Parties agree that there is no necessityto announce the signing of this Agreement in a press release, except in case Section 8.2of this Agreement shall apply.

 

ARTICLE9 -  TERMINATION

 

9.1                               Without prejudice to all rights andobligations, Pharming shall be entitled to terminate this Agreement withimmediate effect by registered letter and without legal intervention if:

 

a)                                      ACT is a debtor in bankruptcy or is or willbe granted suspension of  payment; or

 

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(b)                                 ACT ceases or will cease to exist or is orwill be dissolved.

 

ACT shall notify Pharming in writing promptly after:  (i) the filing by or against ACT of anypetition in bankruptcy or similar filing seeking relief from creditors; (ii) receiptby ACT of any notice of foreclosure and/or default that could reasonably beforeseen to have the effect of preventing Pharming from practicing the licensesgranted to it hereunder.

 

Incase Pharming shall elect not to terminate this Agreement for the reasonsmentioned in this Section 9.1 of this Agreement, ACT will transfer theInfigen Patents to Pharming free of charge.

 

9.2                                 Without prejudice to all rights and obligations,ACT shall be entitled to terminate this Agreement with immediate effect byregistered letter and without legal intervention if:

 

a)                                      Pharming is a debtor in bankruptcy or is orwill be granted suspension of payment; or

 

(b)                                 Pharming eases or will cease to exist or isor will be dissolved, except in case Section 11.2 of this Agreement shallapply.

 

Pharming shall notify ACT in writing promptly after:  (i) the filing by or against Pharming ofany petition in bankruptcy or similar filing seeking relief from creditors; (ii) receiptby Pharming of any notice of foreclosure and/or default that could reasonablybe foreseen to have the effect of preventing Pharming from practicing thelicenses granted to it.

 

ARTICLE10 – LIABILITY AND INDEMNITY

 

10.1                                                                          ACT shallindemnify and hold Pharming and its affiliates harmless against all claimswhich are made or brought against or incurred or suffered by Pharming arisingout of or as a result of a breach by ACT of any representation or warranty ofACT under this Agreement, or any of ACT’s obligations under this Agreement, orarising out of the negligence or willful misconduct of ACT.

 

10.2                                                                          Pharming shall indemnify and hold ACT and itsaffiliates harmless against all claims which are made or brought against orincurred or suffered by ACT arising from a breach by Pharming of any of itsobligations set forth in this Agreement or arising out of the death or injuryto any person or persons or out of any damage to tangible property resultingfrom, or otherwise attributable to, the making, using, development, and/or saleby Pharming of any products under this Agreement.

 

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10.3                                                                         THIRD PARTY CLAIMS. Each Party shall give theother Party prompt notice of any claim for which indemnification under this Article 10is or may be applicable and will cooperate with the indemnifying Party in thedefense or settlement of such claim 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 control settlement discussions) with counsel reasonablysatisfactory to the other Party, which other Party may, at its own expense,participate in the defense of any claim after the indemnifying Party assumescontrol of the defense thereof.  No claimthat is subject to indemnification under this Article 10 shall be settledor otherwise compromised other than by the Party defending such claim, and thenonly with the prior written consent of the other party, which shall not beunreasonably withheld or delayed; it shall not be unreasonable to withholdconsent if the settlement or compromise either (a) imposes on theindemnified Party any liability or obligation which cannot be assumed and performedin full by the indemnifying Party, or (b) materially adversely affects theindemnified party or its rights hereunder. The failure of the indemnified Party to deliver notice to theindemnifying Party promptly after the commencement of any such action shall notrelease the indemnifying Party from any liability to the indemnified Partyunder this Article 10 other than any liabilities directly attributable tosuch failure.

 

10.4                                                                         LIMITATIONOF LIABILITY.  In no event shall eitherParty be liable to the other for any indirect or consequential loss or damageshowsoever caused arising out of or as a result of this Agreement, howsoever theliability  arises including (but notlimited to) breach of contract, negligence or tort or breach of any statutoryduty.

 

ARTICLE11 -  MISCELLANEOUS

 

11.1                         Without prior written permission of Pharmingwhich cannot be unreasonably withheld, ACT is not entitled to transfer all (ora part) of the rights and obligations arising from this Agreement to thirdparties.

 

11.2                         Pharming  is entitled to transfer all (or a part) of therights and obligations arising from this Agreement to a company belonging tothe Pharming group and/or to third parties, without the permission of ACT.

 

11.3                         Pharming shall comply in all materialrespects with all local, state, federal and international laws and regulationsrelating to the development, manufacture, use, provision, and sale of productsunder this Agreement.

 

11.4                         If any term or provision of this Agreement isdeclared invalid or unenforceable for any reason, such invalidity orunenforceability shall not affect any other provision of this Agreement, andthe Parties shall negotiate in good faith to modify the Agreement to preserve(to the extent possible) their original intent. If the Parties fail to reach amodified agreement within sixty (60) days after the relevant provision is heldinvalid or unenforceable, then the court shall be 

 

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authorizedto modify the invalid provision to the extent and in the manner necessary torender it enforceable.

 

11.5                         This Agreement may be amended, supplemented,or otherwise modified only by means of a written instrument signed by bothParties.  The failure of either Party toassert a right hereunder or to insist upon compliance with any term orcondition of this Agreement shall not constitute a waiver of that right orexcuse a similar subsequent failure to perform any such term or condition bythe other Party.

 

11.6                         This Agreement shall be governed and construed in accordance with thelaws of the Netherlands. Any dispute concerning this Agreement shall beexclusively judged by the competent court of the city of the Hague, theNetherlands.

 

11.7                         The licenses granted hereunder are effectiveand fully compliant with 11 USC Section 365(n) and 11 USC Section 362of the United States Bankruptcy code such that Pharming can fully exploit suchthe licenses.

 

11.8                         This Agreement is binding upon and shallinure to the benefit of the respective successors and/or assigns of the Partieshereto.

 

[The next page is the signature page]

 

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Inwitness whereof, drawn up in duplicate and signed by both parties, as of theEffective Date first mentioned above.

 

 
| PHARMING  TECHNOLOGIES B.V.  |   | ADVANCED  CELL TECHNOLOGY, INC.  |
|------------------------------|--------|----------------------------------|
|                         |   |                             |
|                         |   |                             |
| /s/  Dr. R. Strijker    |   | /s/  William M. Caldwell, IV     |
| Dr. R.  Strijker        |   | Mr. William M. Caldwell, IV |
| Chief  Commercial Officer    |   | Chief  Executive Officer         |
|                         |   |                             |
|                         |   |                             |
| /s/  Dr. B.M. Giannetti |   |                             |
| Dr. B.M.  Giannetti     |   |                             |
| Chief  Operations Officer    |   |                             |

 

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