ex10_33.htm


     

    Exhibit
10.33


    EXCLUSIVE LICENSE
AGREEMENT

    


    This Exclusive License Agreement
(“Agreement”) is made and entered into as of the 15th day of August, 2008 (the
“Effective Date”), by and between Advanced Cell Technology, Inc., a Delaware
corporation with offices located at 11100 Santa Monica Blvd, Suite 850, Los
Angeles, CA 90025 (“ACT”), Embryome Sciences, Inc., a California corporation
(“LICENSEE”), with offices located at 1301 Harbor Bay Parkway, Suite 100,
Alameda, California 94502.  ACT and LICENSEE are sometimes hereinafter
referred to as the “Parties.”

     

    WITNESSETH

    


    WHEREAS, ACT owns the PATENT RIGHTS,
SUPPLEMENTAL PATENT RIGHTS, and KNOW-HOW; and

    


    WHEREAS, LICENSEE desires to obtain an
exclusive license from ACT to use the PATENT RIGHTS and KNOW-HOW upon the terms
and conditions set forth in this Agreement; and

    


    WHEREAS, ACT is willing to grant such a
license to LICENSEE upon the terms and conditions set forth in this
Agreement;

    


    NOW, THEREFORE, in consideration of the
premises and the mutual covenants contained herein, the Parties hereto agree as
follows:

     

    ARTICLE 1 -
DEFINITIONS

    


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

    


    1.1           “AFFILIATE”
means any corporation, limited liability company, limited partnership or other
entity in control of, controlled by, or under common control with
LICENSEE.

    


    1.2           “COMBINATION
PRODUCT” means a product that contains a LICENSED PRODUCT component and at least
one other component that has independent research, diagnostic or therapeutic
utility, could reasonably be sold separately and has economic value of its
own.

    


    1.3           “CONFIDENTIAL
INFORMATION” means confidential or proprietary information of ACT or LICENSEE
relating to the PATENT RIGHTS, KNOW-HOW, LICENSED PROCESSES, LICENSED SERVICES
or LICENSED PRODUCTS.  CONFIDENTIAL INFORMATION may be in written,
graphic, oral or physical form and may include scientific knowledge, know-how,
processes, inventions, techniques, formulae, products, business operations,
customer requirements, designs, sketches, photographs, drawings, specifications,
reports, studies, findings, data, plans or other records, biological materials,
and/or software.  CONFIDENTIAL INFORMATION shall not
include:  (a) information which is, or later becomes, generally
available to the public through no fault of the recipient; (b) information which
is provided to the recipient by an independent third party having no obligation
to keep the information secret; (c) information which the recipient can
establish by written documentation was previously known to it; or (d)
information which the recipient can establish by written


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    documentation
was independently developed by it without reference to the CONFIDENTIAL
INFORMATION.

    


    1.4           “EXCLUDED FIELD” means
(a) the research,
development, manufacture and selling to third parties of human and non-human
animal cells for commercial research use, including small molecule and other
drug testing and basic research and (b) the manufacture and selling of human
cells for therapeutic and diagnostic use in the treatment of human (i) diabetes,
(ii) liver diseases and (iii) retinal diseases and retinal degenerative
diseases; but EXCLUDED FIELD shall exclude applications involving the use of
cells in the treatment of tumors where the primary use of the cells is the
destruction or reduction of tumors and does not involve regeneration of tissue
or organ function.

    


    1.5           “KIRIN
FIELD” means research, development, manufacture and sale of polyclonal
antibodies in non-human mammals, excluding (1) immunoglobulin in the blood of
Bos taurus or Bos indicus and (ii) production of biopharmaceutical agents in
milk, including but not limited to proteins, peptides and polypeptides for
pharmaceutical, nutraceutical or other use.

    


    1.6           “KNOW-HOW”
means all compositions of matter, techniques and data and other know-how and
technical information including inventions (whether or not patentable),
improvements and developments, practices, methods, concepts, trade secrets,
documents, computer data, computer slide illustrations, computer code,
apparatus, test data, analytical and quality control data, formulation,
manufacturing, patent data or descriptions, development information, drawings,
specifications, designs, plans, proposals and technical data and manuals and all
other CONFIDENTIAL INFORMATION that is owned or controlled by ACT as of the
Effective Date, and that specifically relates to the subject matter described in
or claimed by the PATENT RIGHTS.

    


    1.7           “LICENSED
PROCESS” means any process or method, the  development, use, practice,
or sale of which (1) is covered in whole or in part by, or cannot be performed
without infringing, a VALID CLAIM of the PATENT RIGHTS in the country in which
such LICENSED PROCESS is practiced or sold, or (2) otherwise utilizes the
KNOW-HOW.

    


    1.8           “LICENSED
PRODUCT” means any product, or part thereof or derived therefrom, the
development, manufacture, sale, lease, or use of which (1) is covered in whole
or in part by, or cannot be performed without infringing, a VALID CLAIM of the
PATENT RIGHTS in the country in which any such product or part thereof is
developed, made, used, sold or imported by LICENSEE or (2) otherwise utilizes
the KNOW-HOW.  By way of illustration but not limitation, the Parties
agree that LICENSED PRODUCTS include cells made utilizing the KNOW-HOW or
methods covered by VALID CLAIMS described in the patent applications and patents
included in the PATENT RIGHTS.

     

    1.9           “LICENSED
SERVICES” means any service, the development, use, performance, or sale of which
is covered in whole or in part by, or cannot be performed without infringing, a
VALID CLAIM of the PATENT RIGHTS in the country in which any such service is so
developed, used, performed, sold, offered for sale, imported or exported by
LICENSEE or otherwise utilizes the KNOW-HOW.

    


    1.10          “NET
SALES” means the invoiced amount on sales by LICENSEE or its Affiliates of
LICENSED PRODUCTS, LICENSED SERVICES or LICENSED PROCESSES less (to the
extent


    
      
         


      

      
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    applicable
and appropriately documented) (i) sales, tariff and import duties, use and other
taxes directly imposed with reference to particular sales, (ii) discounts,
rebates, and similar credits and chargebacks actually allowed and taken
(regardless of whether taken or paid at the time of sale or paid or credited to
the buyer at a subsequent date), and (iii) amounts allowed or credited on
returns; provided, any such allowed deductions shall be listed on the invoice
for the applicable LICENSED PRODUCT, LICENSED PROCESS or LICENSED SERVICE or
otherwise documented in the ordinary course of business, and (b) any SUBLICENSE
REVENUE.

    


    In the
case of Combination Products, Net Sales means the total invoice amount earned on
sales of Combination Products by LICENSEE or its Affiliates to any third person
or entity, less, to the extent applicable, the deductions set forth above,
multiplied by a proration factor that is determined as follows:

    


    (i)             
If all components of the Combination Product were sold separately during the
same or immediately preceding calendar quarter, the proration factor shall be
determined by the formula [A/(A+B)], where A is the average invoice amount
earned on the Licensed Product during such period when sold separately in
finished form, and B is the average invoice amount earned on all other active
components of the Combination Product during such period when sold separately in
finished form; or

    


    (ii)           
if all components of the Combination Product were not sold separately during the
same or immediately preceding calendar quarter, the proration factor shall be
determined by the formula [C/(C+D)], where C is the average fully absorbed cost
of the Licensed Product component during the prior quarter and D is the average
fully absorbed cost of all other active components of the Combination Product
during the prior quarter.

    


    1.11          “PATENT
RIGHTS” means the patents and patent applications identified on Exhibit A attached
hereto, and any divisional, continuation or continuation-in-part of those
applications, but only to the extent the claims in said applications are
directed to subject matter specifically described in the patents and patent
applications identified on Exhibit A, as well as
any patents issued on these patent applications, and any reissues,
reexaminations, extensions and substitutions (or the equivalent) thereof and any
foreign counterparts to those patents and patent applications.  The
parties agree that Exhibit A may be
revised from time to time after the EFFECTIVE DATE to reflect changes
thereto.

    


    1.12         
“SUBLICENSEE” means a sublicensee of the rights granted LICENSEE under this
Agreement, as further described in Article 2.

    


    1.13          “SUBLICENSE
REVENUE” means consideration that LICENSEE receives for the sublicense of rights
that are granted LICENSEE under Article 2, including
without limitation license fees, milestone payments, up front fees, success
fees, and license maintenance fees, but not capital contributions, loans, or
payments for costs incurred in research and development.

    


    1.14          “SUPPLEMENTAL
KNOW-HOW” means all compositions of matter, techniques and data and other
know-how and technical information including inventions (whether or not
patentable), improvements and developments, practices, methods, concepts, trade
secrets, documents, computer data, computer slide illustrations, computer code,
apparatus, test data, analytical and quality control data, formulation,
manufacturing, patent data or descriptions, development information, drawings,
specifications, designs, plans, proposals and technical data and manuals and all
other CONFIDENTIAL


    
      
         


      

      
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    INFORMATION
that is owned or controlled by ACT as of the Effective Date, and that
specifically relates to the subject matter described in or claimed by the
SUPPLEMENTAL PATENT RIGHTS.

    


    1.1.5         “SUPPLEMENTAL
PATENT RIGHTS” means the patents and patent applications identified on Exhibit B attached
hereto, and any divisional, continuation or continuation-in-part of those
applications, but only to the extent the claims in said applications are
directed to subject matter specifically described in the patents and patent
applications identified on Exhibit B, as well as
any patents issued on these patent applications, and any reissues,
reexaminations, extensions and substitutions (or the equivalent) thereof and any
foreign counterparts to those patents and patent applications.  The
parties agree that Exhibit B may be
revised from time to time after the EFFECTIVE DATE to reflect changes
thereto.

    


    1.16          “VALID
CLAIM” means (a) a claim of any issued and unexpired United States or foreign
patent included in the PATENT RIGHTS which has not lapsed or become abandoned or
been declared invalid or unenforceable by a court of competent jurisdiction or
an administrative agency from which no appeal can be or has been taken within
the time allowed for such appeal and which has not been disclaimed or admitted
to be invalid or unenforceable through reissue, disclaimer or otherwise, or (b)
to the extent rights are granted by a governmental patent authority thereunder
(i.e., to the extent that the owner would be able to enforce a right to a patent
royalty thereunder under applicable patent law), a claim of a pending patent
application included in the PATENT RIGHTS.

     

    For
purposes of this Agreement, except as otherwise expressly provided herein or
unless the context otherwise requires:  (a) the use herein of the
plural shall include the single and vice versa and the use of the
masculine shall include the feminine; (b) unless otherwise 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 Agreement as a whole and not to any
particular provision.  Additional terms may be defined throughout this
Agreement.

     

    


    ARTICLE 2 – LICENSE
GRANT

    


    2.1           
Grant of
Rights.

    


      
(a)           ACT hereby
grants to LICENSEE, and LICENSEE accepts, subject to the terms and conditions of
this Agreement, a royalty-bearing, worldwide, exclusive license,
with  the right to sublicense, to use the PATENT RIGHTS and KNOW-HOW
to (i) research, develop, make, have made, use, sell, have sold, offer for sale,
have offered for sale, import, have imported, export and have exported LICENSED
PRODUCTS, (ii) research, develop, use, practice, sell, have sold, offer for
sale, have offered for sale, import, have imported, export and have exported
LICENSED PROCESSES, and (iii) develop, use, perform, sell, have sold, offer for
sale, have offered for sale, import, have imported, export and have exported
LICENSED SERVICES.

    


      
(b)           ACT hereby
grants to LICENSEE, and LICENSEE accepts, subject to the terms and conditions of
this Agreement, a royalty-free, fully paid-up, worldwide, non-exclusive
license,  to use the SUPPLEMENTAL PATENT RIGHTS and SUPPLEMENTAL
KNOW-HOW for the purposes


    
      
         


      

      
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    described
in paragraph (a) of this Section and/or the purposes described in the Kirin
Sublicense Agreement (as defined below), but only in conjunction with the use of
the PATENT RIGHTS and/or the patents and patent rights described in the Kirin
License Agreement.

    


      
(c)           The license
granted under this Section 2.1 shall exclude LICENSED PRODUCTS, LICENSED
PROCESSES, and LICENSED SERVICES within the EXCLUDED FIELD so long as that
certain Exclusive License Agreement, dated May 14, 2004, as amended by a First
Amendment to Exclusive License Agreement, dated August 25, 2005; between ACT and
Lifeline Cell Technology, LLC (formerly PacGen Cellco, LLC) remains in effect
and Lifeline Cell Technology, LLC retains an exclusive license of PATENT RIGHTS
under that agreement within the EXCLUDED FIELD.

    


      
(d)           Notwithstanding
the preceding provisions of this Section, the license granted to LICENSEE shall
be non-exclusive within the KIRIN FIELD so long as that certain Non-Exclusive
License Agreement, dated May 9, 2006, between ACT and Kirin Beer Kabushiki
Kaisha, Aurox, LLC, Hematech, LLC, and Kirin SD, Inc. remains in effect and the
licensees under that agreement retain a non-exclusive license of PATENT RIGHTS
under that agreement in the KIRIN FIELD.

    


    2.2           Sublicense
Rights.  LICENSEE shall have the right to grant sublicenses of
its rights under Section 2.1 without the consent or approval of ACT; provided
however, that LICENSEE agrees to provide ACT with (a) a draft copy of any
sublicense agreement to ACT at least thirty (30) days before execution to allow
ACT to comment on the terms of the sublicense if ACT chooses to comment; and (b)
a fully executed copy of all sublicense agreements within thirty (30) days after
execution; and provided, further, that SUPPLEMENTAL PATENT RIGHTS and
SUPPLEMENTAL KNOW-HOW may be sublicensed only to LICENSEE’S SUBSIDIARIES and
AFFILIATES in conjunction with a sublicense of the PATENT RIGHTS.

    


    2.3           Knowledge
Transfer.  Within ten (10) days of the Effective Date, ACT
shall provide, deliver, and transfer to LICENSEE all information and data
relating to the PATENT RIGHTS, SUPPLEMENTAL PATENT RIGHTS, KNOW-HOW and
SUPPLEMENTAL KNOW-HOW as may be reasonably necessary to allow LICENSEE to
exploit the licenses granted hereunder. Such transfer shall be made free and
clear of all liens, security interests, encumbrances, and claims of any kind by
any third party.  ACT shall bear all costs of so delivering the
KNOW-HOW and SUPPLEMENTAL KNOW-HOW to LICENSEE.  ACT shall not retain
any copies (in any format or media) of the KNOW-HOW.

    


    ARTICLE 3 – SUBLICENSE OF
CERTAIN PATENTS AND PATENT APPLICATIONS

    


    3.1           Concurrent
with the execution and delivery of this Agreement, ACT shall execute and deliver
to LICENSEE an Exclusive Sublicense Agreement (the “Kirin Sublicense
Agreement”), in form and substance acceptable to LICENSEE, granting to LICENSEE
a royalty-bearing , exclusive, worldwide sublicense to ACT’s rights to use
certain patents and related patent rights under that certain Exclusive License
Agreement, effective as of May 9, 2006, among ACT, Kirin Beer Kabushiki Kaisha,
Aurox, LLC, Hematech, LLC, and Kirin SD, Inc (the “Kirin License
Agreement”).  LICENSEE’s obligations under this Agreement are
contingent upon ACT executing and delivering to LICENSEE the Kirin Sublicense
Agreement.

    



    
      
         


      

      
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    ARTICLE 4 –
COMMERCIALIZATION OBLIGATIONS


    


    4.1           LICENSEE
intends to use, or to cause its Sublicensees to use, commercially reasonable and
diligent efforts to bring one or more LICENSED PRODUCTS, LICENSED PROCESSES and
LICENSED SERVICES to market through an active and diligent program for
exploitation of the PATENT RIGHTS and KNOW-HOW and to continue active, diligent
marketing efforts for one or more LICENSED PRODUCTS, LICENSED PROCESSES and
LICENSED SERVICES throughout the life of this Agreement.  LICENSEE
makes no representation, guaranty, or warranty that it or its Sublicensees will
be successful in developing or bringing to market any LICENSED PRODUCT, LICENSED
PROCESS or LICENSED SERVICES.

     

    ARTICLE 5 -
CONSIDERATION

    


    5.1           Initial License
Fee.  In partial consideration of the rights and licenses
granted to LICENSEE by ACT in this Agreement, LICENSEE shall pay to ACT on the
Effective Date a license fee equal to  Two Hundred Thousand Dollars
(U.S.) ($200,000) (the “License Fee”).  The License Fee is not
refundable and is not creditable against other payments due to ACT under this
Agreement.  The License Fee shall be paid within two business days
after the Effective Date.

    


    5.2           Royalties and other
Consideration.

    


    (a)           As
additional consideration of the license granted to LICENSEE from ACT in Article
2 of this Agreement, LICENSEE shall pay to ACT a royalty equal to (i) 5%
of  the Net Sales received by LICENSEE and its AFFILIATES for all
LICENSED PRODUCTS, LICENSED PROCESS or LICENSED SERVICE sold, performed, or
leased by LICENSEE or any AFFILIATE, and (ii) 20% of all SUBLICENSE REVENUE
received by LICENSEE and its AFFILIATES.  The obligation of LICENSEE
to pay royalties shall terminate (a) with respect to NET SALES and SUBLICENSE
REVENUE arising in any country concurrently with the expiration or termination
of the last applicable VALID CLAIM within the PATENT RIGHTS in such country in
which the LICENSED PRODUCT, LICENSED PROCESS or LICENSED SERVICE is, (as
applicable), performed, sold, leased, or manufactured, or in which the PATENT
RIGHTS are licensed, and (b) in any and all cases when royalty payments to ACT
by LICENSEE total Six Hundred Thousand Dollars (U.S.) ($600,000.00); provided,
however, that such $600,000 of royalties shall be reduced to $200,000 if
LICENSEE, at LICENSEE’S option, pays ACT $200,000 in cash within thirty (30)
days after the execution of this Agreement in addition to the License fee
payable under Section 5.1 (such that the License Fee, additional $200,000
payment, and potential future royalties will total $600,000).

    


    (b)           No
multiple royalties shall be payable on the basis that any LICENSED PRODUCT,
LICENSED PROCESS or LICENSED SERVICE, its manufacture, use, lease, sale or
performance are or shall be covered by (a) more than one patent or patent
application within the PATENT RIGHTS, or (b) any other patent or know how under
a license or sublicense from ACT.  In the case of the use of patents
or know how licensed or sublicensed by ACT under other agreements, LICENSEE and
ACT’s other licensees or sublicensees shall have the right to credit against the
royalties owing to ACT, under this Agreement and under such other license or
sublicense agreements, any royalty payments received by ACT with respect to the
sale or lease of any product or performance of any service (regardless of
whether LICENSEE or another licensee or sublicensee of ACT patents or know how
pays the royalty), such that in no event shall the total of royalty payments
that are due to ACT in any royalty


    
      
         


      

      
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    period
under this Agreement and under such other license or sublicense agreements
exceed the highest applicable royalty rate among this Agreement and such
other license or sublicense agreements.  By way of example only, if a
product is produced by LICENSEE (alone or with a third party) and that product
uses PATENT RIGHTS under this Agreement and patents licensed under a license or
sublicense agreement between ACT and LICENSEE (or between ACT and the third
party with whom LICENSEE is producing the product), (i) only one royalty would
be paid to ACT on sales of the product, (ii) the royalty rate would be the
higher of the royalty rate applicable under this Agreement or under ACT’s other
license or sublicense agreement with LICENSEE or the third party, and (iii) the
royalty payment (whether paid by LICENSEE or by the third party) will be
credited toward royalties payable under this Agreement and under the other ACT
license or sublicense agreement with LICENSEE or the third party for the sale of
the product.

    


                   
5.3           Payment
Method.  All payments due under this Agreement shall be paid to
ACT in  Los Angeles, California, U.S.A., and shall be made in United
States currency without deduction for taxes, assessments, exchanges, collection
or other charges of any kind. Conversion of foreign currency to U.S. dollars
shall be made at the conversion rate reported in The Wall Street Journal on the
last working day of the calendar quarter to which the payment
relates.

    


                   
5.4           Late
Fee.  LICENSEE shall pay ACT interest on any overdue amounts at
the rate of one percent (1%) per month (twelve percent (12%) per annum), from
the date when such payment should have been made.

    


     5.5           Credit and Right of
Setoff.  LICENSEE shall receive a credit toward, and shall have
a right of setoff against, the payment of royalties due under this Agreement, on
a dollar for dollar basis, for any and all payments made by LICENSEE under the
Exclusive Sublicense Agreement to cure or avoid any default by ACT under the
Kirin License Agreement.

    


    ARTICLE 6 - REPORTS AND
RECORDS

    


     6.1           LICENSEE
shall maintain complete and accurate records of LICENSED PRODUCTS, LICENSED
SERVICES and LICENSED PROCESSES that are sold, performed, or, leased by LICENSEE
or its  AFFILIATES under this Agreement, and all SUBLICENSE REVENUE
received by LICENSEE and its AFFILIATES.  LICENSEE shall keep, and
shall cause its AFFILIATES and SUBLICENSEES to keep, full, true and accurate
books of account containing all particulars that may be necessary for the
purpose of showing the amounts payable to ACT hereunder and LICENSEE’s
compliance with the terms and conditions of this Agreement.  Said
books of account shall be kept at LICENSEE’s principal place of business or at
such other location as may be agreed upon by the parties.  Said books
and the supporting data shall be open upon reasonable advance notice (and no
more frequently than once per calendar year) for three (3) years following the
end of the calendar year to which they pertain, to the inspection of ACT or its
agents for the purpose of verifying LICENSEE’s royalty statement or compliance
in other respects with this Agreement.  If any such audit determines
that the reported payments to ACT were less than ninety percent (95%) of the
actual amount due to ACT for the period in question, LICENSEE shall bear the
cost of such audit (without limiting ACT’s other remedies with respect
thereto).

    


     6.2           After
the first commercial sale of a LICENSED PRODUCT, LICENSED SERVICE
or


    
      
         


      

      
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    LICENSED
PROCESS by LICENSEE any AFFILIATE, or any  SUBLICENSEE, or LICENSEE’S
receipt of any SUBLICENSE REVENUE, LICENSEE, within forty-five (45) days after
March 31, June 30, September 30 and December 31, of each year, shall deliver to
ACT a true and accurate report of all NET SALES and SUBLICENSE REVENUE during
the preceding three-month period under this Agreement as shall be pertinent to a
royalty accounting hereunder.  Each such report shall include at least
the following:

    


    
      	
               
      

            	
              (a)

            	
              number(s)
      and type(s) of LICENSED PRODUCTS, LICENSED PROCESSES and LICENSED SERVICES
      sold, leased, or performed by LICENSEE and/or its
    AFFILIATES;

            


    

    


    
      	
               
      

            	
              (b)

            	
              total
      billings and payments received for LICENSED PRODUCTS, LICENSED PROCESSES
      and LICENSED SERVICES performed, sold, or leased by LICENSEE and its
      AFFILIATES, and/or SUBLICENSE REVENUE received from
      its  SUBLICENSEES; and

            


    

    


    
      	
               
      

            	
              (c)

            	
              deductions
      applicable as provided in Section
1.10;

            


    

    


    6.3           With
each such report submitted, LICENSEE shall pay to ACT the royalties and other
payments due and payable under this Agreement.  If no royalties or
other payments shall be due, LICENSEE shall so report.

    


    6.4           LICENSEE’s
reporting obligations hereunder shall terminate when LICENSEE’S obligation to
pay royalties to ACT terminates.

    


    ARTICLE 7 - PATENT RIGHTS
AND SUPPLEMENTAL PATENT RIGHS

    


    7.1           Responsibility for the
PATENT RIGHTS.  Subject to the terms of this Agreement,
LICENSEE shall be primarily responsible after the Effective Date for the
preparation, filing, prosecution and maintenance of the PATENT RIGHTS listed on
Exhibit A.  The
costs of such filing, prosecution and maintenance (including without limitation
the payment of all government fees in any given country required to maintain the
PATENT RIGHTS) after the Effective Date shall be borne by
LICENSEE.  LICENSEE agrees to use reasonable commercial efforts to
prosecute U.S. patents covering the inventions disclosed in the patent
applications included in the PATENT RIGHTS.  LICENSEE shall not be
obligated to reimburse ACT for any costs or expenses incurred by ACT prior to
the Effective Date with respect to the preparation, filing, and prosecution of
any patent applications.

    


    7.2           ACT’s
Participation.  ACT’s patent counsel shall be given a
reasonable opportunity to comment, at ACT’s expense, on all proposed patent
filings and responses to patent office actions or other patent office
communications that may affect the PATENT RIGHTS, and LICENSEE will not
unreasonably refuse to accept any suggestions of ACT’s patent
counsel; provided, however, that
LICENSEE will have the final decision on the incorporation of any comments of
ACT’s patent counsel.

    


    7.3           Abandonment.  LICENSEE
will not allow any patent or patent application within the PATENT RIGHTS to
become expired or abandoned, or fail to diligently pursue patent protection for
any invention within the PATENT RIGHTS, without giving (a) written notice to ACT
at least thirty (30)


    
      
         


      

      
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    business
days prior to the next due date for any required communication, response to
office action, filing, or payment, failure to meet which would result in
expiration or abandonment, including but not limited to provisional abandonment,
of the patent or patent application, and (b) ACT the right to assume
responsibility for such patent or patent application.  If ACT so
elects, (i) LICENSEE will execute such documents and otherwise perform such acts
and make all filings as may be reasonably required to permit ACT or its
designees to prosecute and maintain such patent or application in such
jurisdiction(s) and transact all matters connected therewith (including, as
necessary, appointing ACT’s patent counsel as associate attorneys of record, and
changing address of the patent attorney of record with the appropriate patent
authorities), (ii) ACT will thereafter assume control thereof and all expenses
(arising thereafter) for such prosecution and maintenance by ACT, and (iii)
LICENSEE’s rights and the licenses granted to LICENSEE with respect to all such
patents and patent applications shall automatically terminate upon ACT’s
assumption of control thereof.

    


    7.4           Enforcement of the PATENT
RIGHTS.  The Parties agree to notify each other in writing of
any actual or threatened infringement by a third party of the PATENT RIGHTS or
of any third-party claim of invalidity or unenforceability of the PATENT RIGHTS,
or of any interference or other proceeding affecting the PATENT
RIGHTS.  LICENSEE shall have the first right to prosecute and defend
such claims under its sole control and at its sole expense.  If
LICENSEE does proceed with such prosecution or defense, ACT shall provide
reasonable assistance to LICENSEE at LICENSEE’s request, provided LICENSEE pays
ACT for the reasonable out-of-pockets costs incurred by ACT in providing such
assistance.  Any recovery obtained in an action under this Section 7.4
shall be distributed as follows, in this order: (i) LICENSEE shall be reimbursed
for any expenses incurred in the action; and (ii) LICENSEE shall receive the
remaining recovery, less a reasonable approximation of the royalties that
LICENSEE would have paid to ACT if LICENSEE had received the amount awarded as
ordinary damages as Net Sales of LICENSED PRODUCTS sold by LICENSEE.


    


    7.5           ACT Rights to
Enforce.  In the event that LICENSEE fails to initiate an
infringement action within a reasonable time (but no more than one hundred
eighty (180) days) after LICENSEE becomes aware of the basis for such action
(e.g., the actual or threatened infringement) or fails to answer a declaratory
judgment action or interference proceeding within a reasonable time (but no more
than ninety (90) days) after LICENSEE receives or becomes aware of such
infringement or action or proceeding, ACT shall have the right, after notifying
LICENSEE in writing, to prosecute such infringement or answer such declaratory
judgment action or interference proceeding, under its sole control and at its
sole expense.  If ACT does proceed with such prosecution or defense,
LICENSEE shall provide reasonable assistance to ACT at ACT’s request, provided
ACT pays LICENSEE for its reasonable out-of-pockets costs incurred in such
assistance.  Any recovery obtained in an action under this Section 7.5
shall be distributed as follows, in this order: (i) ACT shall be reimbursed for
any expenses it incurred in the action; (ii) as to ordinary damages, LICENSEE
shall receive an amount equal to lost profits or a reasonable royalty on the
infringing sales (whichever measure the court applied), less a reasonable
approximation of the royalties that LICENSEE would have paid to ACT if LICENSEE
had received such amount as Net Sales of LICENSED PRODUCTS sold by LICENSEE; and
(iii) as to any additional damages, 100% to ACT, unless LICENSEE joins ACT in
the prosecution at its own expense at which point the parties will share equally
in any award.

    


    7.6.           Cooperation.  ACT
and LICENSEE agree to reasonably cooperate in connection with the preparation,
filing, prosecution, and maintenance of the PATENT
RIGHTS.  Cooperation includes,


    
      
         


      

      
        9

        
          

        

      

      
         


      

    


    without
limitation, (a) promptly executing all papers and instruments or requiring
employees of ACT or LICENSEE to execute papers and instruments as reasonably
appropriate to enable LICENSEE to file, prosecute, and maintain PATENT RIGHTS in
any country; and (b) promptly informing LICENSEE of matters that may affect
preparation, filing, prosecution, or maintenance of PATENT RIGHTS (such as
becoming aware of an additional inventor who is not listed as an inventor in a
patent application).  Additionally, in the event either party
exercises its rights hereunder to proceed with any prosecution of infringement
or defense of the PATENT RIGHTS, such party shall consult with the other party
regarding the course of such proceedings and shall not enter into any
settlement, consent judgment, or other voluntary final disposition of any
infringement action that admits the invalidity or unenforceability of any PATENT
RIGHTS or that would adversely affect the rights of the other party without the
prior written consent of the other party, which consent may not be unreasonably
withheld, conditioned or delayed.  Without limiting the generality of
the provisions of this Section 7.6, concurrently with the execution and delivery
of this Agreement ACT shall execute, acknowledge, and deliver to LICENSEE the
documents attached to this Agreement as Exhibit C.

    


    7.7           New Patents, Inventions, and
Discoveries.  LICENSEE shall have the right to file and
prosecute new patent applications (and to obtain new patents) covering LICENSED
PRODUCTS, LICENSED PROCESSES, AND LICENSED SERVICES, and any other subject
matter, with respect to any KNOW-HOW and any other technology, invention, or
discovery made by LICENSEE or any of its Affiliates or Sublicensees using PATENT
RIGHTS , SUPPLEMENTAL PATENT RIGHTS (as permitted by this Agreement), KNOW-HOW,
and SUPPLEMENTAL KNOW-HOW.  ACT shall acquire no rights with respect
to such new patents, inventions, discoveries, or technology not included within
the PATENT RIGHTS, SUPPLEMENTAL PATENT RIGHTS, KNOW–HOW and SUPPLEMENTAL
KNOW-HOW licensed to LICENSEE by ACT.

    


    7.8           Responsibility for
the
SUPPLEMENTAL
PATENT RIGHTS.  Subject to the terms of this Agreement, ACT
shall be primarily responsible after the Effective Date for the preparation,
filing, prosecution and maintenance of the SUPPLEMENTAL PATENT RIGHTS listed on
Exhibit B.  The
costs of such filing, prosecution and maintenance (including without limitation
the payment of all government fees in any given country required to maintain the
SUPPLEMENTAL PATENT RIGHTS) after the Effective Date shall be borne by
ACT.  ACT agrees to use reasonable commercial efforts to prosecute
U.S. patents covering the inventions disclosed in the patent applications
included in the SUPPLEMENTAL PATENT RIGHTS.  LICENSEE shall not be
obligated to reimburse ACT for any costs or expenses incurred by ACT prior to
the Effective Date with respect to the preparation, filing, and prosecution of
any patent applications.

    


    7.9           Abandonment of SUPPLEMENTAL PATENT
RIGHTS.  ACT will not allow any patent or patent application
within the SUPPLEMENTAL PATENT RIGHTS to become expired or abandoned, or fail to
diligently pursue patent protection for any invention within the SUPPLEMENTAL
PATENT RIGHTS, without giving (a) written notice to LICENSEE at least thirty
(30) business days prior to the next due date for any required communication,
response to office action, filing, or payment, failure to meet which would
result in expiration or abandonment, including but not limited to provisional
abandonment, of the patent or patent application, and (b) LICENSEE the right to
assume responsibility for such patent or patent application.  If
LICENSEE so elects, (i) ACT will execute such documents and otherwise perform
such acts and make all filings as may be reasonably required to permit LICENSEE
or its designees to prosecute and maintain such patent or application in such
jurisdiction(s) and transact all


    
      
         


      

      
        10

        
          

        

      

      
         


      

    


    matters
connected therewith (including, as necessary, appointing LICENSEE’s patent
counsel as associate attorneys of record, and changing address of the patent
attorney of record with the appropriate patent authorities), (ii) LICENSEE will
thereafter assume control thereof and all expenses (arising thereafter) for such
prosecution and maintenance by LICENSEE, and (iii) the licenses granted to
LICENSEE with respect to all such patents and patent applications shall
automatically become exclusive licenses (except as provided in paragraphs (c)
and (d) of Section 2.1) with the right to sublicense without the limitation
under Section 2.2, for all uses upon LICENSEE’s assumption of control
thereof.  In order to facilitate LICENSEE exercising its rights under
this Section 7.9, ACT shall, promptly upon LICENSEE’s request, execute,
acknowledge, and deliver to LICENSEE the a power of attorney in the form of
Exhibit C covering the SUPPLEMENTAL PATENT RIGHTS.

    


    7.10          Enforcement of the
SUPPLEMENTAL
PATENT
RIGHTS.

    


      
(a)           The Parties
agree to notify each other in writing of any actual or threatened infringement
by a third party of the SUPPLEMENTAL PATENT RIGHTS or of any third-party claim
of invalidity or unenforceability of the SUPPLEMENTAL PATENT RIGHTS, or of any
interference or other proceeding affecting the SUPPLEMENTAL PATENT
RIGHTS.  ACT shall prosecute and defend such claims under its sole
control and at its sole discretion and expense.  If LICENSEE shall
provide reasonable assistance to ACT at ACT’s request, provided ACT pays
LICENSEE for the reasonable out-of-pockets costs incurred by LICENSEE in
providing such assistance. Any recovery obtained in an action under this Section
7.10 shall be distributed as follows, in this order: (i) LICENSEE shall be
reimbursed for any expenses it incurred in the action; and (ii) ACT shall
receive the remaining recovery.

    


      
(b)           In the
event that ACT fails to initiate an infringement action described in paragraph
(a) of this Section 7.10 within a reasonable time (but no more than one hundred
eighty (180) days) after ACT becomes aware of the basis for such action (e.g.,
the actual or threatened infringement) or fails to answer a declaratory judgment
action or interference proceeding within a reasonable time (but no more than
ninety (90) days) after ACT receives or becomes aware of such infringement or
action or proceeding, LICENSEE shall have the right, but not the obligation,
after notifying ACT in writing, to prosecute such infringement or answer such
declaratory judgment action or interference proceeding, under its sole control
and at its sole expense.  If LICENSEE does proceed with such
prosecution or defense, ACT shall provide reasonable assistance to LICENSEE at
LICENSEE’s request, provided LICENSEE pays ACT for its reasonable out-of-pockets
costs incurred in such assistance.  Any recovery obtained in an action
under this Section 7.5 shall be distributed as follows, in this order: (i) ACT
shall be reimbursed for any expenses it incurred in the action; and (ii)
LICENSEE shall receive the remaining recovery.

    


    ARTICLE 8 –
INDEMNIFICATION,

    LIMITATION OF LIABILITY AND
INSURANCE

    


    8.1           LICENSEE
shall at all times during the term of this Agreement and thereafter, indemnify,
defend and hold harmless ACT and its affiliates, successors, assigns, agents,
officers, directors, shareholders and employees (each, an “Indemnified Party”),
at LICENSEE’s sole cost and expense, against all liabilities of any kind
whatsoever, including legal expenses and reasonable attorneys’ fees, arising out
of the death of or injury to any person or persons or out of any damage to
property resulting from the production, manufacture, sale, use, lease,
performance, consumption or advertisement


    
      
         


      

      
        11

        
          

        

      

      
         


      

    


    of the
LICENSED PRODUCTS, LICENSED PROCESSES or LICENSED SERVICES or arising from any
obligation, act or omission, or from a breach of any representation or warranty
of LICENSEE hereunder, excepting only claims that result from (a) the willful
misconduct or gross negligence of ACT, (b) any material breach by ACT of its
representations and warranties under this Agreement, and (c) claims alleging
that the use of any of the PATENT RIGHTS, SUPPLEMENTAL PATENT
RIGHTS,  KNOW-HOW, or SUPPLEMENTAL KNOW-HOW infringe upon any
patent, trade secret, or moral right of any third party.  The
indemnification obligations set forth herein are subject to the following
conditions: (i) the Indemnified Party shall notify LICENSEE in writing promptly
upon learning of any claim or suit for which indemnification is sought; (ii)
LICENSEE shall have control of the defense or settlement, provided that the
Indemnified Party shall have the right (but not the obligation) to participate
in such defense or settlement with counsel at its selection and at its sole
expense; and (iii) the Indemnified Party shall reasonably cooperate with the
defense, at LICENSEE’s expense.

    


    8.2           EXCEPT
AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, ACT, ITS DIRECTORS,
OFFICERS, AGENTS, SHAREHOLDERS, EMPLOYEES, AND AFFILIATES MAKE NO
REPRESENTATIONS AND EXTEND NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, VALIDITY OF PATENT RIGHTS CLAIMS, ISSUED OR PENDING, AND THE
ABSENCE OF LATENT OR OTHER DEFECTS, WHETHER OR NOT DISCOVERABLE. NOTHING IN THIS
AGREEMENT SHALL BE CONSTRUED AS A REPRESENTATION MADE OR WARRANTY GIVEN BY ACT
THAT THE PRACTICE BY LICENSEE OF THE LICENSE GRANTED HEREUNDER SHALL NOT
INFRINGE THE PATENT RIGHTS OF ANY THIRD PARTY.  IN NO EVENT SHALL ACT,
ITS DIRECTORS, OFFICERS, AGENTS, SHAREHOLDERS, EMPLOYEES AND AFFILIATES BE
LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING ECONOMIC
DAMAGE OR INJURY TO PROPERTY AND LOST PROFITS, REGARDLESS OF WHETHER ACT SHALL
BE ADVISED, SHALL HAVE OTHER REASON TO KNOW, OR IN FACT SHALL KNOW OF THE
POSSIBILITY OF SUCH DAMAGES.

    


    8.3           LICENSEE
agrees to maintain insurance or self-insurance that is reasonably adequate to
fulfill any potential obligation to the indemnified parties.  LICENSEE
shall continue to maintain such insurance or self-insurance during the term of
this Agreement and after the expiration or termination of this Agreement for a
period of five (5) years.

    


    ARTICLE 9 –
TERMINATION

    


    9.1           This
Agreement shall be effective on the Effective Date and shall extend twenty (20)
years or until the expiration of the last to expire of the PATENT RIGHTS and the
SUPPLEMENTAL PATENT RIGHTS, whichever is later, unless sooner terminated as
provided in this Article 9.

    


    9.2           ACT
may terminate this Agreement and the rights, privileges and license granted
hereunder by written notice upon a breach or default of this Agreement by
LICENSEE, as follows:

    


    
      	
               
      

            	
              (i)

            	
              non-payment
      of any amounts due which is not cured within thirty (30) days of receipt
      of written notice of such non-payment wherein said notice is delivered by
      registered mail; or

            


    


    
      
         


      

      
        12

        
          

        

      

      
         


      

    


    


    
      	
               
      

            	
              (ii)

            	
              breach
      of any obligation which is not cured within thirty (30) days of a written
      request to remedy such breach wherein said request is delivered by
      registered mail, or if the breach cannot be cured within said thirty (30)
      day period, failure of LICENSEE within said thirty (30) day period to
      proceed with reasonable promptness thereafter to cure the
      breach.

            


    

    


    Such
termination shall become automatically effective unless LICENSEE shall have
cured any such material breach or default prior to the expiration of the
applicable cure period.

    


    9.3           LICENSEE
shall have the right to terminate this Agreement at any time on three (3)
months’ prior notice to ACT, and upon payment of all amounts due ACT through the
effective date of the termination.

    


    9.4           Upon
termination of this Agreement for any reason, nothing herein shall be construed
to release either party from any obligation that matured prior to the effective
date of such termination; and Sections 6.1, Article 8, Article 10, and Article
12, and any other Sections or provisions which by their nature are intended to
survive termination, shall survive any such termination.

    


    
      	
               
      

            	
              ARTICLE 10 -
      CONFIDENTIALITY

            


    

    


    10.1          During
the course of this Agreement, ACT and LICENSEE may provide each other with
CONFIDENTIAL INFORMATION.  CONFIDENTIAL INFORMATION may be disclosed
in oral, visual or written form, and includes such information that is
designated in writing as such by the discloser at the time of disclosure, orally
disclosed information that is designated in writing as confidential within 30
days after such oral disclosure, or information which, under all of the given
circumstances ought reasonably be treated as CONFIDENTIAL INFORMATION of the
disclosing party. ACT and LICENSEE each intend to maintain the confidential or
trade secret status of their CONFIDENTIAL INFORMATION.  Each shall
exercise reasonable care to protect the CONFIDENTIAL INFORMATION of the other
from disclosure to third parties; no such disclosure shall be made without the
other’s written permission.  Upon termination or expiration of this
Agreement, ACT and/or LICENSEE shall comply with the other’s written request to
return all CONFIDENTIAL INFORMATION that is in written or tangible
form.  Except as expressly provided herein, neither ACT nor LICENSEE
is granted any license to use the other’s CONFIDENTIAL
INFORMATION.  The obligations of ACT and LICENSEE under this Article
10 shall survive any expiration or termination of this Agreement.

    


    10.2         
The parties agree that the specific terms (but not the overall existence) of
this Agreement shall be considered CONFIDENTIAL INFORMATION; provided, however,
that the parties may disclose the terms of this Agreement to investors or
potential investors, potential business partners, potential Sublicensees and
assignees, potential co-developers, manufacturers, marketers, or distributors of
any LICENSED PRODUCT, LICENSED PROCESS, or LICENSED SERVICE, and in any
prospectus, offering, memorandum, or other document or filing required by
applicable securities laws or other applicable law or regulation.  The
parties may also disclose CONFIDENTIAL INFORMATION that is required to be
disclosed to comply with applicable law or court order, provided that the
recipient gives reasonable prior written notice of the required disclosure to
the discloser and reasonably cooperates with the
discloser’s efforts to prevent such disclosure.


    
      
         


      

      
        13

        
          

        

      

      
         


      

    


    


    ARTICLE 11 - PAYMENTS,
NOTICES, AND OTHER COMMUNICATIONS

    


    Any payment, notice or other
communication required to be given to any party will be deemed to have been
properly given and to be effective (a) on the date of delivery if delivered by
hand, recognized national next business day delivery service, confirmed
facsimile transmission, or confirmed electronic mail, or five (5) days after
mailing by registered or certified mail, postage prepaid, return receipt
requested, to the respective addresses given below, or to another address as it
shall designate by written notice given to the other party in the manner
provided in this Section.

    


    
      
        	              
      In the case of ACT:	Advanced Cell
      Technology, Inc.
	 	11100 Santa Monica
      Blvd, Suite 850
	 	Los Angeles, CA
      90025
	 	Attention: 
      William M. Caldwell, IV


      

    

    


    
      
        	               With
      a copy to:	Pierce Atwood
      LLP
	 	One Monument
      Square
	 	Portland, ME
      0401
	 	Attention: 
      William L. Worden, Esq.


      

                  


    

    
      
        	              
      In the case of LICENSEE	Embryome
      Sciences, Inc.
	
                 
      

              	
                1301
      Harbor Bay Parkway, Suite 100

              


      

    

    
      	
               
      

            	
              Alameda,
      California 94502

            


    

    
      	
               
      

            	
              Attention:  Michael
      D. West

            


    

    


    
      
        	
                              
      With a copy to:

              	
                Richard
      S. Soroko, Esq.

              


      

    

    
      
        	
                 
      

              	
                Lippenberger,
      Thompson, Welch, Soroko & Gilbert
LLP

              


      

    

    
      
        	
                 
      

              	
                201
      Tamal Vista Blvd.

              


      

    

    
      
        	
                 
      

              	
                Corte
      Madera, California 94925

              


      

    

    


    ARTICLE 12 - REPRESENTATIONS
AND WARRANTIES

    


    12.1          LICENSEE
represents and warrants that it has full corporate power and authority to enter
into this Agreement, that this Agreement constitutes the binding legal
obligation of LICENSEE, enforceable in accordance with its terms, and that the
execution and performance of this Agreement by LICENSEE will not violate,
contravene or conflict with any other agreement to which LICENSEE is a party or
by which it is bound or with any law, rule or regulation applicable to LICENSEE,
and that any permits, consents or approvals necessary or appropriate for
LICENSEE to enter into this Agreement have been obtained.

    


    12.2          LICENSEE
is an entity duly incorporated or otherwise organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation or
organization, with the requisite power and authority to own and use its
properties and assets and to carry on its business as currently
conducted.


    
      
         


      

      
        14

        
          

        

      

      
         


      

    


    12.3          ACT
represents and warrants that (a) it owns the PATENT RIGHTS, SUPPLEMENTAL PATENT
RIGHTS, KNOW-HOW, and SUPPLEMENTAL KNOW-HOW, (b) it has the full legal right and
power to grant the licenses granted hereunder, (c) that this Agreement
constitutes the binding legal obligation of ACT, enforceable in accordance with
its terms, (d) the execution, delivery, and performance of this Agreement by ACT
will not violate, contravene or conflict with any other agreement to which ACT
is a party or by which it is bound or with any law, rule or regulation
applicable to ACT, and (e) any permits, consents or approvals necessary or
appropriate for ACT to enter into this Agreement have been
obtained.

    


    12.4          ACT
represents and warrants that, to the best of its knowledge, the use of the
PATENT RIGHTS, SUPPLEMENTAL PATENT RIGHTS,  KNOW-HOW and SUPPLEMENTAL
KNOW-HOW by LICENSEE or any Sublicensee for any purposes contemplated or
permitted by this Agreement, will not infringe in any way any claim under any
patent held by any third party.

    


    12.5          ACT
represents and warrant that the use of the PATENT RIGHTS, SUPPLEMENTAL PATENT
RIGHTS,  KNOW-HOW, and SUPPLEMENTAL KNOW-HOW by LICENSEE or any
Sublicensee for any purposes contemplated or permitted by this Agreement, will
not infringe in any way any claim under any patent held by ACT or under any
patent that may issue from any ACT patent application now pending, or under any
patent that ACT may in the future obtain, or any other intellectual property
rights of ACT.

    


    12.6          ACT
further represents, warrants and agrees, that it shall not make any claim or
demand, or commence any lawsuit or other proceeding, alleging that use of the
PATENT RIGHTS, SUPPLEMENTAL PATENT RIGHTS,  KNOW-HOW, and SUPPLEMENTAL
KNOW-HOW by LICENSEE or any of LICENSEE’S AFFILIATES or any Sublicensees, or by
any third party participating with or providing services for LICENSEE or any of
LICENSEE’S AFFILIATES or Sublicensees, for any purpose contemplated or permitted
by this Agreement infringes in any way any claim under any patent held by ACT or
under any patent that may issue from any ACT patent application now pending, or
under any patent that ACT may in the future obtain, or any other intellectual
property rights of ACT.  The provisions of this Section 12.6 shall
pertain as well to all subsidiaries of ACT and all patents and patent
applications of ACT subsidiaries.  ACT and its subsidiaries shall
cause the provisions of this Section 12.6, as they pertain to refraining from
asserting claims and demands or commencing lawsuits and proceedings, to be
including in all licenses and assignments of ACT’s patents and patent
applications.

    


    12.7          ACT
represents and warrants that all of the patent applications of ACT and its
subsidiaries pertaining to the processes or technology described or related to
processes and technology identified on Exhibit A are listed
on Exhibit A, and that
all of the patent applications of ACT and its subsidiaries pertaining to
the processes or technology described or related to processes and technology
identified on Exhibit
B are listed on Exhibit
B.

    


    12.8         
This Article 12 shall survive expiration or termination of this
Agreement.

    


    ARTICLE 13 - MISCELLANEOUS
PROVISIONS

    


    13.1          Nothing
herein shall be deemed to constitute either party as the agent or representative
of the other
party.


    
      
         


      

      
        15

        
          

        

      

      
         


      

    


    


    13.2          To
the extent commercially feasible, and consistent with prevailing business
practices, all products manufactured or sold under this Agreement will be marked
with the number of each issued patent that applies to such product.

    


    13.3          This
Agreement shall be construed, governed, interpreted and applied in accordance
with the laws of California, without regard to principles of conflicts of law
thereof, except that questions affecting the construction and effect of any
patent shall be determined by the law of the country in which the patent was
granted.

    


    13.4          The
parties hereto acknowledge that this Agreement (including the Exhibits hereto)
sets forth the entire Agreement and understanding of the parties hereto as to
the subject matter hereof, and shall not be subject to any change or
modification except by the execution of a written instrument subscribed to by
the parties hereto.

    


    13.5          The
provisions of this Agreement are severable, and in the event that any provisions
of this Agreement shall be determined to be invalid or unenforceable under any
controlling body of the law, such invalidity or unenforceability shall not in
any way affect the validity or enforceability of the remaining provisions
hereof.

    


    13.6          The
failure of either party to assert a right hereunder or to insist upon compliance
with any term or condition of this Agreement shall not constitute a waiver of
that right or excuse a similar subsequent failure to perform any such term or
condition by the other party.

    


    13.7          Licenses of Intellectual
Property; Bankruptcy Code.  The parties agree that the licenses
granted to LICENSEE to use PATENT RIGHTS, SUPPLEMENTAL PATENT
RIGHTS,  KNOW-HOW and SUPPLEMENTAL KNOW-HOW constitute licenses of
“intellectual property” as defined in the United States Bankruptcy Code (the
“Bankruptcy Code”) and as used in Section 365(n) of the Bankruptcy
Code.  The Parties agree that the KNOW-HOW includes trade
secrets.  The parties also agree that the payments of royalties on Net
Sales and SUBLICENSE REVENUE required to be paid by LICENSEE to ACT under this
Agreement constitute “royalties” under Section 365(n) of the Bankruptcy
Code.

    


    


    


    [The next
page is the signature page]

    


    


    


    


    



    
      
         


      

      
        16

        
          

        

      

      
         


      

    


    IN WITNESS WHEREOF, the parties have
duly executed this Agreement as of the Effective Date set forth
above.

    


    ADVANCED
CELL TECHNOLOGY, INC.

    


    


    By:
  /s/
William M. Caldwell,
IV              

    Printed
Name:  William M. Caldwell, IV

    Title:  Chairman
& CEO

    


    


    By: /s/
William M. Caldwell,
IV                

    Printed
Name: William M. Caldwell, IV

    Title:  Secretary

    


    


    EMBRYOME
SCIENCES, INC.

    


    


    By: /s/
Michael D.
West                             

    Printed
Name: Michael D. West

    Title:
Chief Executive Officer

    


    


    By: /s/
Judith
Segall                                     

    Printed
Name: Judith Segall

    Title:
Secretary

    



    
      
         


      

      
        17

        
          

        

      

      
         


      

    


    


    EXHIBIT
A

    


    PATENT
RIGHTS

    


    


    
      	
              Application

            	
              Title

            
	 
      	 
      
	
              US
      Application # 11/025,893

               

            	
              Method
      of differentiation of morula or inner cell mass cells and method of making
      lineage-defective embryonic stem cells

               

            
	 
      	 
      
	
              PCT/US2005/000103
      Published a WO 2005/068610 A1 US #s 11/028,345, 11/211,174, 11/478,780
       

               

            	
              Novel
      culture systems for ex vivo development

            
	 
      	 
      


    

    


    



    
      
         


      

      
        18

        
          

        

      

      
         


      

    


    EXHIBIT
B

    


    SUPPLEMENTAL PATENT
RIGHTS

    


    
      	
              Application

            	
              Title

            
	 
      	 
      
	
              PCT/US2000/018063,
      Serial No: 09/736,268

              National
      Phase filing of PCT/US2000/018063, Serial No: 10/831,599

              CON
      of 09/736,268

              Filed
      on April 23, 2004

               

            	
              Cytoplasmic
      transfer to de-differentiate recipient cells

            
	 
      	 
      
	
              WO
      01/018236 US #s 10/790,640 and 11/079,930.

            	
              Telomere
      Restoration And Extension Of Cell Life-Span In Animals Cloned From
      Senescent Somatic Cells

            
	 
      	 
      
	
              PCT/US2006/030632

            	
              Improved
      methods of reprogramming animal somatic cells

            
	 
      	 
      
	
              PCT
      Application PCT/US2006/040985 (Published as WO 2007/047894)

               

            	
              Nearly
      totipotent or pluripotent mammalian cells homozygous or hemizygous for one
      or more histocompatibility antigens

            
	 
      	 
      
	
              PCT/US02/26945  (Published
      as WO 03/018760) US# 10/227282

            	
              Screening
      assays for identifying differentiation-inducing agents and production of
      differentiated cells for cell therapy

            
	 
      	 
      
	
              20040018178,
      Serial No: 11/228,549

              CON
      of 20040018178

               

               

            	
              Stem
      cell-derived endothelial cells modified to disrupt tumor
      angiogenesis

            


    

    


    



    
      
         


      

      
        19

        
          

        

      

      
         


      

    


    EXHIIBIT
C

    


    POWERS OF ATTORNEY AND OTHER
AUTHTORIZATIONS RELATING TO PATENT RIGHTS

    


    


     

     

     

    20