EXCLUSIVE LICENSE AGREEMENT

Exhibit 10.2

[Confidential treatment has been requested with respect to the omitted portions of this exhibit. This copy omits information subject to a confidentiality request filed with the Securities and Exchange Commission. Omissions are designated with the characters [***]. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission along with the request for confidential treatment.]

EXCLUSIVE LICENSE AGREEMENT

This Exclusive License Agreement (“Agreement”), effective as of May 9, 2006 (the “Effective Date”), is between Kirin Beer Kabushiki Kaisha, a Japanese corporation with offices located at 00-0, Xxxxxxxx 0-Xxxxx, Xxxx-Xx, Xxxxx, Xxxxx 104-8288 (“Kirin”), and any of its subsidiaries, including Aurox, LLC, a Delaware limited liability company (“Aurox”), Hematech, LLC, a Delaware limited liability company (“Hematech”), and Kirin SD, Inc., a Delaware corporation, (“Kirin SD”), all with offices located at Hamlet Professional Building, 0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxx Xxxxx, XX 00000, (Kirin, Aurox, Hematech and Kirin SD referred to collectively herein as “Licensor”), and Advanced Cell Technology, Inc., a Delaware corporation with offices located at 0000 Xxxxxx Xxx Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxxxx 00000 (“ACT” or “Licensee”) (Licensee and Licensor sometimes hereinafter referred to individually as a “Party” and collectively as the “Parties”).

R E C I T A L S

WHEREAS, the Patent Rights have been the subject of litigation in Massachusetts Superior Court in the case styled as University of Massachusetts x. Xxxx & Xxxxxx, Xx. 00 0000 XXX0 (Mass. Super. Ct., Suffolk County) (the “Litigation”); and

WHEREAS, pursuant to the terms of the Exclusive License Agreement dated April 1, 2003 between Licensee and the University of Massachusetts (the “UMass License”), Licensee has an exclusive license from the University of Massachusetts to intellectual property that has been the subject of the Litigation; and

WHEREAS, the parties to the Litigation have proposed to settle the Litigation as provided in the Settlement Agreement dated February 3, 2006 between the University of Massachusetts and Drs. Xxxxx Xxxx and Xxxxxxxx Xxxxxx (the “Settlement Agreement”); and

WHEREAS, as a result of the settlement of the Litigation Licensor is the owner by assignment of the Patent Rights; and

WHEREAS, Licensee is a third-party beneficiary of the Settlement Agreement, and the license of the Patent Rights to Licensee as provided in this Agreement is a condition to Licensee not contesting the terms of the Settlement Agreement as an interested party to the Litigation;

WHEREAS, Licensor has agreed to grant Licensee a license to the Patent Rights in accordance with the terms of this Agreement; and

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

ARTICLE 1 - DEFINITIONS

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

1. Definitions.

1.1 “Affiliate” means any corporation, partnership or other legal entity other than a Party, in whatever country organized, controlling, controlled by or under common control with a Party, but only so long as such control continues to exist. For purposes of this Section 1.1, “control” (a) means possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise and (b) “control” shall be assumed if a Party owns, directly or indirectly through one or more Affiliates, of fifty percent (50%) or more of the shares of stock entitled to vote for the election of directors, in the case of a corporation, or fifty percent (50%) or more of the equity interests in the case of any other type of legal entity.

1.2 “Combination Product” means a product that contains a Licensed Product component and at least one other component that has independent therapeutic or diagnostic utility, could reasonably be sold separately and has economic value on its own.

1.3 “Control” or “Controlled” means, with respect to any Patent Rights of Licensor or Confidential Information of the Parties, the possession by Licensor of the ability to grant a license or sublicense of such Patent Rights or the ability of the Parties to disclose such Confidential Information as provided for herein without the payment of additional consideration to, and without violating the terms of any agreement or arrangement with, any third party.

1.4 “Exclusive ACT Field” means research, development, manufacture and sale of therapeutic and diagnostic human cell products, including diagnostic products made in whole or in part of human cells or products made from human cells; provided, however, that the Exclusive ACT Field shall not include the following: (1) cloned or chimeric mosaic non-human animals, tissues, and cells, and the creation and production thereof, both transgenic and non-transgenic; (2) all products or by-products comprised of, made in, produced by, derived from, extracted from or isolated from such non-human animals, tissues, and cells; and (3) all associated uses of, and services relating to, such non-human animals, tissues, cells, products and by-products.

1.5 “Improvement Patents” means any patents and patent applications (other than, and filed subsequent to, the Applications listed in Exhibit A ) (a) owned and Controlled solely by Hematech LLC, Aurox LLC, or Kirin SD or co-owned by Hematech LLC, Aurox LLC, or Kirin SD with any Third Party, so long as the Third Party co-ownership agreement does not prohibit Hematech LLC, Aurox LLC, or Kirin SD from granting such rights as contemplated herein; provided, however, that Hematech LLC, Aurox LLC, and Kirin SD agree not to enter into any Third Party co-ownership agreements for the purpose of prohibiting them from granting such rights as contemplated herein, (b) (i) relating to the specification or claims of the Patent Rights, which are (ii) useful, necessary or required to develop or manufacture Licensed Products or to provide Licensed Services within the Exclusive ACT Field, and (c) the claims of which cover subject matter that could not be practiced without infringing the Patent Rights, together in each case with all related continuation, continuations-in-part, divisional, reissue, renewal, extension,

substitution and reexamination patents and patent applications, and all corresponding foreign or other counterpart patents and patent applications.

1.6 “Licensed Product” means any product, the development, use, manufacture or selling of which would infringe one or more Valid Claims under the Patent Rights, but for the license granted herein.

1.7 “Licensed Service” means any service that cannot be performed without using at least one process that, but for the license granted herein, would infringe one or more Valid Claims under the Patent Rights.

1.8 “Licensee” means Advanced Cell Technology, Inc. and any Affiliate of Advanced Cell Technology, Inc.

1.9 “Net Sales” means the invoiced amount on sales by Licensee or its Affiliates or sublicensees of Royalty-bearing Licensed Products and Royalty-bearing Licensed Services to any person or entity, less, to the extent applicable, the following:

(a) commercially reasonable discounts actually allowed and taken;

(b) sales, tariff and import duties, use and other taxes or governmental charges directly imposed with reference to particular sales to the extent such items are included in the invoiced amount;

(c) packaging, transportation and insurance prepaid or allowed to the extent included in the gross invoiced sales price; and

(d) commercially reasonable amounts repaid, allowed or credited on returns or rejection.

Sales of Royalty-bearing Licensed Products and Royalty-bearing Licensed Services by Licensee, or an Affiliate or sublicensee of Licensee, to any Affiliate or sublicensee which is a reseller thereof shall be excluded, and only the subsequent sale of such Royalty-bearing Licensed Product or Royalty-bearing Licensed Service by such Affiliate(s) or sublicense(s) to a Third Party(s) shall be deemed Net Sales hereunder.

In the case of Combination Products, Net Sales means the total invoice amount earned on sales by Licensee or its Affiliates of Combination Products to any third person or entity (except for an Affiliate of Licensee), 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.

1.10 “Patent Rights” means (a) the patent applications owned and Controlled by Licensor listed in Exhibit A, (“Applications”); (b) any continuations, continuations-in-part, divisionals, renewals, reissues, reexaminations, or extensions thereof, and patents issuing therefrom; (c) any Improvement Patents; and (d) all foreign equivalents of subsections (a), (b), and (c). The Parties acknowledge and agree that Exhibit A may hereafter be amended from time to time to reflect changes to the identification of the Patent Rights.

1.11 “Royalty-bearing Licensed Product” means any product, the development, making, use, manufacture, offer for sale, or selling of which would infringe one or more Valid Claim of any patent included in the Patent Rights derived from U.S. Application Serial No. 10/910,156 or its progeny or foreign counterparts identified in Exhibit A, or Improvement Patents thereof.

1.12 “Royalty-bearing Licensed Service” means any service that cannot be performed without using at least one process that, but for the license granted herein would infringe one or more Valid Claim of any patent included in the Patent Rights derived from U.S. Application Serial No. 10/910,156 or its progeny or foreign counterparts identified in Exhibit A, or Improvement Patents thereof.

1.13 “Territory” means the world.

1.14 “Third Party” means any person or entity other than Licensor, Licensee, a sublicense of Licensee, or an Affiliate of any of them.

1.14 “Valid Claim” means (a) a claim of any issued and unexpired United States or foreign patent within 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 within 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 — GRANT & COMMERCIALIZATION OBLIGATIONS

2.1 License Grant. Subject to the terms and conditions of this Agreement, Licensor hereby grants to Licensee and its Affiliates a worldwide, royalty-bearing (to the extent provided herein), license to the Patent Rights, including the right to sublicense, to the maximum extent permitted by applicable law under its rights in the Patent Rights, to research, develop, make, have made, use, sell, offer for sale, import, export, reproduce, distribute, perform and display, and otherwise dispose of Licensed Products, and to develop and perform Licensed Services, in the Territory in the Exclusive ACT Field. Licensor acknowledges, understands and agrees that under the license granted herein to Licensee, Licensee has the right to utilize the Patent Rights in the conduct of research, preclinical studies or other work in the Exclusive ACT Field or directed to the ultimate development and manufacture of Licensed Products and/or Licensed Services in the Exclusive ACT Field.

2.2 Improvement Patents. Licensor agrees to use commercially reasonable efforts to provide to Licensee a periodic written report of all Improvement Patents, provided that such reports shall be deemed Confidential Information subject to the provisions of Article 7 of this Agreement, and all such Improvement Patents are and shall be considered included in the Patent Rights and automatically licensed to Licensee pursuant to Article 2 of this Agreement.

2.3 Sublicenses to Patent Rights. Subject to the terms of this Agreement, Licensee shall have the right to grant further sublicenses to or under the Patent Rights in the Exclusive ACT Field. Licensee shall provide Licensor with a copy of all sublicense agreements of the Patent Rights promptly after the execution of any such sublicense, which shall be deemed Licensee’s Confidential Information subject to the provisions of Article 7 of this Agreement.

2.4 Retained Rights. Licensee acknowledges that Licensor shall retain the right to exploit the Patent Rights for all applications; provided, however, that with respect to the Exclusive ACT Field, Licensor shall have no right to further sublicense the Patent Rights in the Exclusive ACT Field. Licensee acknowledges, understands and agrees that under the retained rights provided herein, Licensor has the right to engage in contract research and sponsored research directed to commercialization of the Patent Rights by Licensor for all applications.

2.5 Commercialization Obligations. Licensee will exercise commercially reasonable efforts and diligence in developing and commercializing Royalty-bearing Licensed Products and Royalty-bearing Licensed Services in the Exclusive ACT Field, such reasonable efforts and diligence to be in accordance with the efforts and resources Licensee would use for a product candidate owned by it or to which it has rights, which is of similar market potential as the applicable Royalty-bearing Licensed Product or Royalty-bearing Licensed Service, taking into account the competitiveness of the marketplace, the proprietary position of the Royalty-bearing Licensed Product or Royalty-bearing Licensed Service, the relative potential safety and efficacy of the Royalty-bearing Licensed Product or Royalty-bearing Licensed Service and the cost of goods and availability of capacity to manufacture and supply the Royalty-bearing Licensed Product or Royalty-bearing Licensed Service at commercial scale.

ARTICLE 3 - CONSIDERATION

3.1 In partial consideration of the rights and licenses granted to Licensee by Licensor in this Agreement, Licensee agrees to pay to Licensors the sum of [***] within 7 (seven) days after the execution of this Agreement by the Parties.

3.2 Royalties.

(a) In partial consideration of the license rights and licenses granted by Licensor to Licensee in this Agreement, Licensee agrees to pay to Licensor a royalty of [***] percent ([***]%) of the Net Sales of all Royalty-bearing Licensed Products and Royalty-bearing Licensed Services.

For the avoidance of doubt, no multiple royalties shall be payable because any Royalty-bearing Licensed Product or Royalty-bearing Licensed Service is covered by more than one patent or patent application within the Patent Rights.

(b) The obligation of Licensee to pay royalties on sales of Royalty-bearing Licensed Products or Royalty-bearing Licensed Services covered by a Valid Claim of the Patent Rights shall terminate on a country-by-country basis concurrently with the expiration or termination of the last applicable Valid Claim within the Patent Rights in the country in the Territory in which the Royalty-bearing Licensed Product or Royalty-bearing Licensed Service is sold.

3.3 Minimum Annual Royalty. Subject to the terms and conditions of this Agreement, commencing with calendar year 2006, Licensee shall pay to Licensor the following minimum royalty payments:

For calendar year 2006:		$[***]
For calendar year 2007:		$[***]
For calendar year 2008 and each calendar year thereafter during the term of this Agreement:		$[***]

In the event that the annual royalties on Net Sales paid by Licensee for the applicable year is less than the minimum annual royalty due for such year, Licensee shall pay the difference to Licensor no later than forty-five (45) days following the end of each applicable calendar year. In the event that the annual royalties on Net Sales paid by Licensee for the applicable year is equal to or greater than the minimum annual royalty due for such year, then Licensee shall have satisfied the minimum annual royalty obligations for such year. If Licensee fails to make the payment to satisfy the minimum annual royalty obligations hereunder within said forty-five (45) day period, such failure shall constitute a material breach of Licensee’s obligations under this Agreement and Licensor shall have the right, but not the obligation, to terminate this Agreement as set forth in Section 7.2

The obligation of Licensee to pay a minimum annual royalty payment shall terminate concurrently with the expiration or termination of the last applicable Valid Claim within the

Patent Rights in the Territory, or ten (10) years after the Effective Date if no such patents have issued within that ten-year period, whichever is longer.

3.4 Sublicense Income. In the event Licensee or its Affiliate(s) or sublicensee(s) grants any sublicenses under this Agreement to a Third Party(s), or grants a Third Party(s) rights to research, develop, make, have made, use, sell, offer for sale, import, export, reproduce, distribute, perform and display, or otherwise dispose of Licensed Products, or to develop or perform Licensed Services, then in lieu of the royalties set forth in Section 3.2(a), Licensee shall pay Licensor [***] percent ([***]%) of all royalties and other value, including stock, received by Licensee from such Third Party(s) (“Sublicense Income”) in consideration for the grant(s) of such sublicense(s) or other rights, but in no event shall Licensor receive, on a country-by-country basis, less than [***] percent ([***]%) of the aggregate Net Sales of the Licensed Product or Licensed Service in a particular country where such Third Party rights with respect to the Licensed Product or Licensed Service have been granted by Licensee or its Affiliates or sublicensees.

3.5 Third Party Royalties. In the event that Licensee is required to make, and actually does make, royalty payments to one or more third parties for a license to an issued patent or patents (“Third Party Payments”) in order to make, have made, use, import, sell or offer for sale Royalty-bearing Licensed Products or to perform Royalty-bearing Licensed Services, in the absence of which such Royalty-bearing Licensed Product or Royalty-bearing Licensed Service could not legally be used or sold or performed in such country, and the resulting aggregate royalty rate owed by Licensee is [***]% or greater, then, Licensee may reduce the royalties due Licensor pursuant to Section 3.2(a) above for such Royalty-bearing Licensed Product or Royalty-bearing Licensed Service on the same proportionate basis as all other Third Party royalties are reduced in the same royalty period . However, the royalty payments due Licensor under Section 3.2(a) may never be reduced by more than [***] percent ([***]%) in any royalty period.

3.6 Payment Method. All payments due under this Agreement shall be paid to Licensor in Sioux Falls, South Dakota, U.S.A., and shall be made in United States currency without deduction for taxes, assessments, exchanges, collection or other charges of any kind; provided, however, that any withholding tax required to be withheld by Licensee on royalty payments under the laws of any country in the Territory for the account of Licensor will be promptly paid by Licensee for and on behalf of Licensor to the appropriate governmental authority, and Licensee will furnish Licensor with proof of payment of such tax. Any such tax actually paid on behalf of Licensor may be deducted from royalty payments or Sublicense Income due Licensor. 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.

3.7 Late Fee. Licensee shall pay Licensor interest on any overdue amounts at the rate of [***] percent ([***]%) per month and [***] percent ([***]%) per annum, from the date when such payment should have been made.

ARTICLE 4 - REPORTS AND RECORDS

4.1 Licensor Audit Rights. Licensee shall keep and cause its Affiliates and sublicensees to keep full, true and accurate books of account containing all particulars necessary for the purpose of showing the amounts payable to Licensor hereunder. Said books of account shall be kept at Licensee’s principal place of business for three (3) years following the end of the calendar year to which they pertain. Said books and the supporting data shall be open upon reasonable advance notice during Licensee’s normal business hours (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 an independent auditor reasonably acceptable to Licensee for the purpose of verifying Licensee’s royalty statement or compliance with payment obligations under this Agreement. If any such audit determines that the reported payments to Licensor were less than ninety percent (90%) of the actual amount due to Licensor for the calendar year in question, Licensee shall bear the reasonable cost of such auditor’s inspection and pay any undisputed deficit amounts within 30 days. In all other cases, Licensor shall pay the costs of the audit. All information disclosed pursuant to an audit shall be treated as Licensee’s Confidential Information and, other than the amount of any shortfall, which may be disclosed to Licensor, shall not be disclosed to any third party or used for any purpose other than to determine the correctness of Licensee’s royalty statement or payment obligations under this Agreement.

4.2 Licensee Reports. After the first commercial sale of a Royalty-bearing Licensed Product or Royalty-bearing Licensed Service, Licensee, within forty-five (45) days after June 30 and December 31, of each year, shall deliver to Licensor a true and accurate report, giving such particulars of the business conducted by Licensee during the preceding six-month period under this Agreement necessary for the purpose of accounting hereunder. Without limiting the generality of the foregoing, these reports shall include the following:

(a) number of Royalty-bearing Licensed Products manufactured by Licensee, its Affiliates, or sublicensees, or by any third party on Licensee’s behalf;

(b) number of Royalty-bearing Licensed Products sold by Licensee and its Affiliates and sublicensees;

(d) total receipts for all Royalty-bearing Licensed Services sold by Licensee and its Affiliates and sublicensees;

(e) deductions applicable as provided in Section 1.9.

In the event Licensee or an Affiliate grants a sublicense under Section 2.3, such sublicenses shall require the sublicensee to account for and report its Net Sales of Licensed Products or Licensed Services to Licensee on the same basis as if such sales were Net Sales of Licensed Products or Licensed Services by Licensee so that Licensee may use such information to make payments consistent with the requirements of Section 3.4.

4.3 Royalty Report. With each such report submitted, Licensee shall pay to Licensor the royalties due and payable under this Agreement. If no royalties on Net Sales shall be due, Licensee shall so report. All information disclosed in such report shall be Licensee’s Confidential Information.

ARTICLE 5 — PATENT RIGHTS

5.1 Responsibility for the Patent Rights. Subject to the terms of this Agreement and the Settlement Agreement, Licensor shall be responsible for and shall control the preparation, filing, prosecution and maintenance of the Patent Rights. The costs of filing, prosecution and maintenance (including without limitation the payment of all government fees in any given country required to maintain the Patent Rights) shall be borne by Licensor, except as provided in Section 5.2.

5.2 Abandonment. Licensor will not allow any patent or patent application within the Patent Rights to become expired or abandoned without giving (a) written notice to Licensee at least thirty (30) business days prior to the final due date for any required communication, response to office action, filing, or payment, failure to meet which would result in expiration or abandonment of the patent or patent application, and (b) Licensee the right to assume responsibility for payment of costs for such patent or patent application. If Licensee so elects, Licensor shall continue to be responsible for the preparation, filing, prosecution, and maintenance of the Patent Rights, but at Licensee’s direction and at Licensee’s expense. Licensor will execute such documents and otherwise perform such acts as may be reasonably required to permit Licensor to continue, at Licensee’s direction and expense, to prosecute and maintain such patent or application in such jurisdiction(s).

5.3 Enforcement of the Patent Rights. The Parties agree to use their best efforts to notify each other in writing of any actual infringement by a third party of the Patent Rights or of any third-party claim of invalidity or unenforceability of the Patent Rights. Licensor shall have the sole right, at its sole discretion and without obligation, to prosecute and defend such claims under its sole control and at its sole expense. If Licensor does proceed with such prosecution or defense, Licensee shall provide reasonable assistance to Licensor at Licensor’s request, provided Licensor pays Licensee for the reasonable out-of-pockets costs incurred by Licensee in such assistance. Any recovery obtained in an action under this Section 5.3 shall be retained by Licensor.

5.4 Cooperation. Notwithstanding anything to the contrary in Section 5.1 above, Licensor and Licensee agree to reasonably cooperate in connection with the preparation, filing, prosecution, and maintenance of patents and patent applications included in the Patent Rights in accordance with Paragraphs 4 through 8 of the Settlement Agreement, including promptly executing all papers and instruments or requiring employees of Licensor to execute papers and instruments as reasonably appropriate to enable Licensee to file, prosecute, and maintain such patents and patent applications in any country; and promptly informing Licensee of matters that may substantially affect preparation, filing, prosecution, or maintenance of such patent applications (such as becoming aware of an additional inventor who is not listed as an inventor in a patent application). Additionally, in the event Licensor exercises its rights hereunder to proceed with any prosecution of infringement or defense of the Patent Rights, Licensor shall notify and consult with Licensee prior to entering into any settlement, consent judgment, or other voluntary disposition of any such action that admits the invalidity or unenforceability of any Patent Rights or that would adversely affect the rights of Licensee and will reasonably consider Licensee’s comments and suggestions, provided that such comments and suggestions are conveyed to Licensor in a timely manner and do not unreasonably affect or delay Licensor’s ability to conclude such settlement, consent judgment, or other voluntary disposition.

ARTICLE 6 — INDEMNIFICATION; LIMITATION OF LIABILITY

6.1 Indemnification by Licensor. Licensor shall defend, indemnify and hold harmless Licensee and its Affiliates, sublicensees, successors, assigns, trustees, agents, directors, officers, shareholders, partners and employees (each, an “Indemnified Party”), at Licensor’s cost and expense, from and against any and all losses, costs, liabilities, licensing fees, damages, fees and expenses, including reasonable attorneys’ fees and expenses (“Losses”) incurred or imposed upon any of the indemnified Parties in connection with any claims (including third Party claims), suits, actions, demands or judgments (“Claims”):

(a) arising out of any breach by Licensor of any obligation, representation or warranty of Licensor hereunder; or

(b) arising out of the gross negligence or willful misconduct of Licensor.

Licensor’s indemnification under this Section 6.1 shall not apply to any loss, cost, liability, fee, damage, or expense to the extent it is attributable to the gross negligence or intentional misconduct of Licensee or its directors, officers, employees, Affiliates, or sublicensees.

6.2 Indemnification by Licensee. Licensee shall defend, indemnify and hold harmless Licensor and its Affiliates, successors, assigns, trustees, agents, directors, officers, shareholders, partners and employees, at Licensee’s cost and expense, from and against any and all losses, costs, liabilities, damages, fees and expenses, including reasonable attorneys’ fees and expenses incurred or imposed upon any of the indemnified Parties in connection with any claims (including third Party claims), suits, actions, demands or judgments:

(a) arising out of any breach by Licensee of any obligation, representation or warranty of Licensee hereunder,

(b) arising out of the death or injury to any person or persons or out of any damage to tangible property resulting from, or otherwise attributable to, the making, using, development and/or sale by Licensee of any Licensed Products or Licensed Services under this Agreement; or

Licensee’s indemnification under this Section 6.2 shall not apply to any loss, cost, liability, fee, damage, or expense to the extent it is attributable to the gross negligence or intentional misconduct of Licensor or its directors, officers, employees, Affiliates, or sublicensees.

6.3 Indemnification Claims. Each Party shall give the other Party prompt notice of any claim for which indemnification under this Section 6 is or may be applicable and will cooperate with the indemnifying Party in the defense or settlement of such claim at the indemnifying Party’s expense. The indemnifying Party shall be required to provide and be entitled to control the defense of any claim covered hereunder (including the right to control settlement discussions) with counsel reasonably satisfactory to the other Party, which other Party

may, at its own expense, participate in the defense of any claim after the indemnifying Party assumes control of the defense thereof. No claim that is subject to indemnification under this Article 6 shall be settled or otherwise compromised other than by the Party defending such claim, and then only with the prior written consent of the other Party, which shall not be unreasonably withheld or delayed; it shall not be unreasonable to withhold consent if the settlement or compromise either (a) imposes on the indemnified Party any liability or obligation which cannot be assumed and performed in full by the indemnifying Party, or (b) materially adversely affects the indemnified Party or its rights hereunder. The failure of the indemnified Party to deliver notice to the indemnifying Party promptly after the commencement of any such action shall not release the indemnifying Party from any liability to the indemnified Party under this Section 6 other than any liabilities directly attributable to such failure.

6.4 LIMITATION OF LIABILITY. EXCEPT WITH RESPECT TO LIABILITY ARISING AS A RESULT OF A THIRD PARTY CLAIM REFERRED TO IN AND COVERED BY SECTIONS 6.1 OR 6.2 (INDEMNIFICATION), IN NO EVENT SHALL EITHER PARTY (OR ITS DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS) BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, REGARDLESS OF THE THEORY OF LIABILITY.

6.5 Insurance. Licensee shall obtain and maintain, at all times during the term of this Agreement, general liability insurance with appropriate bodily injury, death and property damage limits. Upon request, Licensee shall furnish a certificate of insurance signed by an authorized representative of its insurance underwriter evidencing such coverage and providing for at least thirty (30) days’ prior written notice of any cancellation, termination or reduction of coverage.

ARTICLE 7 — TERM AND TERMINATION

7.1 Term. This Agreement shall commence on the Effective Date and shall remain in effect until (i) the expiration of all Valid Claims of all issued patents within the Patents Rights or (ii) for a period of ten (10) years after the Effective Date if no such patents have issued within that ten-year period, unless earlier terminated in accordance with the provisions of this Agreement.

7.2 Termination for Cause. In the event that either Party commits a material breach of its obligations under this Agreement and fails to cure that breach within sixty (60) days after receiving written notice thereof, the other Party may terminate this Agreement immediately upon written notice to the Party in breach, unless the Party alleged to be in breach delivers a Resolution Notice (pursuant to Section 11.3; provided that the Negotiation Period shall be reduced to ten (10) business days) to the non-breaching Party within five (5) days of such second notice (in which event, such termination shall not be effective unless and until there has been a final mutually agreed resolution by the Parties to terminate or a final decision of the arbitrator that the allegedly breaching Party has materially breached a material provision hereof and that the Agreement should be terminated as a result thereof).

7.3 Automatic Termination. Notwithstanding Section 7.2, breach of any of the representations or warranties set forth in Article 10 by either Party shall constitute grounds for automatic and immediate termination at the election of the non-breaching Party.

7.4 Termination for Convenience. This Agreement may be terminated at any time by Licensee by giving written notice thereof to Licensor, which termination shall be effective immediately upon receipt. For the avoidance of doubt, such termination for convenience will not result in the refund of any portion of the consideration previously paid to Licensor or owed Licensor as of the effective termination date, including accumulated royalties on Net Sales and prorated minimum annual royalties, in accordance with Article 3.

7.5 Existing Stock. Upon expiration, Licensee and its Affiliates and sublicensees shall retain limited rights to sell any Licensed Products existing and to perform Licensed Services related to such existing Licensed Products, subject to the terms of this Agreement provided that upon termination due to breach by Licensee under Section 7.2 or 7.3, no such rights shall be retained.

7.6 Survival. Upon any termination or expiration of this Agreement: nothing herein shall be construed to release either Party from any obligation incurred prior to the effective date of such termination (except as set forth below) of Articles/Sections 1, 6, 7.5, 7.6, 8, 10 and 11, and (only with respect to any action already commenced as of the date of termination notice) the provisions allocating recoveries in 5.3, shall survive and continue in full force and effect; any sublicensee shall have the option to retain its license rights in accordance with the terms of its sublicense granted by Licensee prior to the effective termination date of this Agreement provided that Licensor shall have no obligations under such sublicense that are greater than as agreed to in this Agreement. Upon any termination or expiration of this Agreement, each Party shall promptly return to the other Party, or destroy, all written Confidential Information of the other Party, and all copies, notes or extracts thereof (except to the extent reasonably necessary to exercise the license in the following sentence, if applicable).

ARTICLE 8 — CONFIDENTIALITY AND NON-DISCLOSURE

8.1 Confidential Information; Non-Disclosure. “Confidential Information” shall mean any technical, business, financial, customer or other information disclosed by one Party (“Disclosing Party”) to the other Party (“Receiving Party”) pursuant to this Agreement which, if disclosed in written form, is marked “Confidential” or “Proprietary” or by a similar legend or which, if disclosed orally or visually, is identified as confidential information at the time of disclosure and confirmed by written outline mailed to the other Party within thirty (30) days of the original disclosure. Licensee’s Confidential Information specifically includes the terms of this Agreement and any sublicense agreements and all information, data, reports and statements relating to Licensed Products and Licensed Services. Except to the extent authorized by this Agreement or by other prior written consent by the Disclosing Party, each Party shall during the term of this Agreement and for five (5) years after its termination: (i) not use Confidential Information of the Disclosing Party except for the purposes of fulfilling its obligations or exercising or enforcing its rights under this Agreement, or as otherwise authorized herein or in writing by the Disclosing Party, (ii) disclose the Confidential Information of the Disclosing Party only to those of its employees, directors, and consultants who have need to know or use such Confidential Information for the foregoing purposes or as authorized by the Disclosing Party, provided that the Receiving Party will ensure such disclosees are bound by obligations of confidentiality at least as restrictive as those set forth in this Section 8.1. In addition, the Parties may disclose the Confidential Information of the other Party to its Affiliates (and their

employees, directors and consultants) or permitted sublicensees or distributors for the foregoing purposes or as authorized by the other Party, provided such disclosees are bound by obligations of confidentiality at least as restrictive as those set forth in this Section 8.1. Each of the Parties shall protect the Confidential Information of the Disclosing Party using at least the same procedures and degree of care that it uses to prevent the disclosure of its own confidential information of like importance, but in no event less than reasonable care. Except as expressly provided in this Agreement, no ownership right is granted in any Confidential Information.

8.2 Exclusions. Notwithstanding Section 8.1, Confidential Information excludes information that: (i) was publicly known or available at the time it was disclosed or becomes publicly known or available through no fault, action, or inaction of the Receiving Party; (ii) was known to the Receiving Party at the time of disclosure and can be so proven by written documentation; (iii) is disclosed with the prior written approval of the Disclosing Party; (iv) was independently developed by the Receiving Party without any use of the Confidential Information and can be so proven by written documentation; or (v) is provided to the recipient by an independent third Party having no fiduciary relationship with the Disclosing Party and having no obligation to keep the information secret and can be so proven by written documentation.

8.3 Permitted Disclosures. Notwithstanding any other provision of this Agreement, each Party may disclose Confidential Information of the other Party: (i) to the extent and to the persons and entities required to comply with an applicable governmental law, rule or regulation or court or administrative order; provided, however, that the Party required to disclose Confidential Information shall first have given prompt notice to the other Party hereto to enable it to seek any available exemptions from or limitations on such disclosure requirement and shall reasonably cooperate in such efforts by the other Party; or (ii) as necessary to file or prosecute patent applications, enforce patents, prosecute or defend litigation, or otherwise establish or enforce rights or obligations under this Agreement, but only to the extent that any such disclosure is reasonably necessary and provided that the disclosing Party shall first have given prompt notice to the other Party hereto.

8.4 Financial Disclosure. The Parties agree not to disclose the economic terms of this Agreement to any third Party other than their Affiliates without the prior written consent of the other Party hereto except (a) as required by applicable securities laws or the requirements of any applicable stock exchange, including, without limitation, requirements to file a copy of this Agreement (redacted to the extent reasonably permitted by applicable law); (b) in confidence, to legal counsel; (c) in confidence, to accountants, banks, and financing sources and their advisors; and (d) to the extent necessary to enforce this Agreement or any rights or obligations hereunder.

8.5 Injunctive Relief. Licensor and Licensee acknowledge and agree that any breach of the confidentiality obligations imposed by this Article 8 may constitute immediate and irreparable harm to the Party disclosing the Confidential Information and/or its successors and assigns, which cannot adequately and fully be compensated by money damages and may warrant, in addition to all other rights and remedies afforded by law, injunctive relief, specific performance, and/or other equitable relief.

8.6 Survival. The obligations of Licensor and Licensee under this Article 8 shall survive for five (5) years after the expiration or termination of this Agreement.

ARTICLE 9 - 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 overnight courier, 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 Kirin:		Hamlet Professional Building
		0000 Xxxxxxxx Xxxxxxxxx
		Xxxxx 000
		Xxxxx Xxxxx, XX 00000
		Attn: Xx. Xxxxx X. Xxxx

In the case of Advanced Cell Technology, Inc.:		0000 Xxxxxx Xxx Xxxxxxx
		Xxxxx 000
		Xxxxxxx, Xxxxxxxxxx 00000
		Attn: Xxx Xxxxx, Esq.

With a copy to:		Xxxxxx Xxxxxx LLP
		Xxx Xxxxxxxx Xxxxxx
		Xxxxxxxx, XX 00000
		Attn: Will Xxxxxx, Esq.

ARTICLE 10 - REPRESENTATIONS AND WARRANTIES

10.1 Representations and Warranties by Licensor. Licensor represents and warrants that:

(a) its employees have assigned to Licensor their entire right, title, and interest in the Patent Rights;

(b) Licensor has the full legal right and power to grant to Licensee the licenses granted herein;

(c) the execution, delivery and performance of this Agreement by Licensor, including the grant of rights and licenses herein, do not and will not contravene, conflict, constitute or result in a default under or breach of, and are not and will not be inconsistent with, any law or regulation, any judgment, decree or order, or any term, condition or provision of any contract, agreement, or other undertaking applicable to Licensor or the Patent Rights; and

(d) Licensor has obtained all necessary consents to grant to Licensee the rights and licenses granted herein.

10.2 Representations and Warranties by Licensee. Licensee represents and warrants that:

(a) the execution, delivery and performance of this Agreement by Licensee (i) are within its corporate powers, and (ii) have been duly authorized by all necessary corporate action on Licensee’s part;

(b) the execution, delivery and performance of this Agreement by Licensee do not and will not contravene, conflict, constitute or result in a default under or breach of, and are not and will not be inconsistent with, any judgment, decree or order, or any term, condition or provision of any contract, agreement or other undertaking applicable to Licensee; and

10.3 Disclaimer. EXCEPT AS OTHERWISE SET FORTH IN SECTION 10 OF THIS AGREEMENT, NEITHER LICENSOR NOR LICENSEE, NOR THEIR DIRECTORS, OFFICERS, EMPLOYEES, AND AFFILIATES, MAKE ANY REPRESENTATIONS OR EXTEND ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND VALIDITY OF THE PATENT RIGHTS CLAIMS, ISSUED OR PENDING. SPECIFICALLY, LICENSOR MAKES NO WARRANTY OR REPRESENTATION (I) REGARDING THE VALIDITY OR SCOPE OF THE PATENT RIGHTS, (II) THAT THE EXPLOITATION OF THE PATENT RIGHTS OR ANY LICENSED PRODUCT OR LICENSED SERVICE WILL NOT INFRINGE ANY PATENTS OR OTHER INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, OR (III) THAT ANY THIRD PARTY IS NOT CURRENTLY INFRINGING OR WILL NOT INFRINGE THE PATENT RIGHTS.

ARTICLE 11 - MISCELLANEOUS PROVISIONS

11.1 Assignment. This Agreement may not be assigned by either party without the prior written consent of the other party, which consent may not be unreasonably withheld, delayed or conditioned. Any unauthorized assignment is null and void.

11.2 Choice of Law; Submission to Jurisdiction. This Agreement shall be construed, governed, interpreted and applied in accordance with the laws of the Commonwealth of Massachusetts, U.S.A. without regard to principles of conflicts of law thereof.

11.3 Dispute Resolution. In the event that at any time hereafter there arises any disagreement, controversy, or dispute (“Dispute”) between the Parties hereto with respect to the enforcement, violation, or interpretation of this Agreement, or of the respective rights and liabilities of the Parties hereto, then, upon written demand of any Party hereto, said demand setting forth each matter or matters upon which the Parties do not agree or upon which there is a Dispute, after thirty (30) days written notice, such Dispute shall be settled pursuant to the following procedure:

(a) Informal Resolution. Prior to engaging in any formal dispute resolution with respect to any Dispute, Licensor’s and Licensee’s Chief Executive Officer shall, if either Party provides written notice to the other Party requesting resolution of such Dispute (“Resolution Notice”), attempt to resolve such Dispute through good faith negotiations at a location mutually agreed upon by the Parties. If any Dispute cannot be settled by agreement of the Parties pursuant

to the preceding sentence within thirty (30) days of receipt of the Resolution Notice (“Negotiation Period”), then either Party may, by written notice to the other requesting resolution by alternative means, invoke the dispute resolution provisions of Section 11.3(b) and (c).

(b) Mediation. In the event that any Dispute cannot be resolved pursuant to the informal procedure set forth in 11.3(a), such Dispute shall be submitted to mediation within thirty (30) days of the expiration of the Negotiation Period. The mediation shall be conducted by one mediator in accordance with the Commercial Arbitration Rules of the American Arbitration Association, with such mediation to take place in Boston, Massachusetts.

(c) Arbitration. In the event that the Parties are unable to resolve any Dispute pursuant to the mediation procedure set forth in 11.3(b), the Parties agree to submit the Dispute to binding arbitration before one arbitrator selected as follows: The parties shall use their best efforts to mutually agree upon one (1) arbitrator; provided, however, that if the parties have not done so within ten (10) days after initiation of arbitration hereunder, or such longer period of time as the parties have agreed to in writing, then there shall be three (3) arbitrators, including one nominee of Licensor, one nominee of Licensee, and a third person selected by said nominees. The arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association, shall take place in Boston, Massachusetts, and shall be commenced within seven (7) days following the receipt by one Party of the other Party’s Arbitration Notice. Each Party agrees that the final determination/decision of the arbitrator presiding over the proceeding shall be binding. Notwithstanding the foregoing or anything in this Section 11.3, the Parties may apply to any court of competent jurisdiction for preliminary or interim equitable relief, including such relief for compelling the commencement of the dispute resolution provisions in accordance with Section 11.3, without breach of this arbitration provision. The prevailing Party in any Dispute related hereto, whether in a court of law or in arbitration, shall have its reasonable costs and expenses related to such Dispute, including attorney’s fees, reimbursed by the non-prevailing Party; provided, however, that if the arbitrator rules in favor of one Party on some issues and the other Party on other issues, the arbitrator shall allocate such costs and expenses between the Parties in a manner that bears a reasonable relationship to the outcome of the arbitration. The rulings of the arbitrator and the allocation of fees and expenses shall be binding, non-reviewable, and non-appealable, except as permitted by law, and may be entered as a final judgment in any court having jurisdiction.

(d) Choice of Arbitrators and Governing Rules. Notwithstanding the foregoing, any Dispute involving the construction, scope, or validity of any claim of any patent licensed to either Party hereunder, or the enforceability of any patent licensed to either Party hereunder shall be arbitrated in accordance with the Patent Arbitration Rules of the American Arbitration Association. In either case, the arbitrators shall each be attorneys with expertise in intellectual property law and practice.

11.4 Headings. All headings are for convenience only and shall not affect the meaning of any provision of this Agreement.

11.5 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.

11.6 Entire Agreement. The Parties hereto acknowledge that this Agreement sets forth the entire Agreement and understanding of the Parties hereto as to the subject matter hereof and supercedes all prior agreements or understandings between the Parties relating to its subject matter.

11.7 Severability. In the event that any provision of this Agreement shall be held invalid or unenforceable for any reason, such invalidity or unenforceability shall not affect any other provision of this Agreement, and the 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 a modified agreement within sixty (60) days after the relevant provision is held invalid or unenforceable, then the court shall be authorized to modify the invalid provision to the extent and in the manner necessary to render it enforceable.

11.8 Amendment and Waiver. This Agreement may be amended, supplemented, or otherwise modified only by means of a written instrument signed by both Parties. 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.

11.9 Force Majeure. Neither Party will be responsible for delays resulting from causes beyond the reasonable control of such party, including without limitation fire, explosion, flood, war, strike, or riot, provided that the nonperforming Party uses commercially reasonable efforts to avoid or remove such causes of nonperformance and continues performance under this Agreement with reasonable dispatch whenever such causes are removed.

11.10 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which together shall be deemed to be one and the same instrument.

11.11 Effect of Bankruptcy Filing. The Parties agree and acknowledge that this Agreement is a contract under which Licensor is a licensor to Licensee of rights with respect to intellectual property (including without limitation, “intellectual property” within the meaning of Section 101 of the Bankruptcy Code of the United States (“Bankruptcy Code”)). All rights, licenses, immunities and other rights granted under or pursuant to or otherwise described in this Agreement are, and shall be deemed to be, for purposes of Section 365(n) of the Bankruptcy Code, licenses of rights to “intellectual property” within the meaning of Section 101 of the Bankruptcy Code. The Parties agree that Licensee and its sublicensees, as licensees of such rights under this Agreement, shall retain and may fully exercise all of their rights and elections under the Bankruptcy Code. The Parties further agree that, in the event of the commencement of a bankruptcy proceeding by or against Licensor including under the Bankruptcy Code, Licensee shall be entitled to a complete duplicate of (or complete access to, as appropriate) any such intellectual property and all embodiments of such intellectual property, including without limitation copies of invention disclosures and filings and communications relating to the Patent Rights, and the same, if not already in Licensee’s possession, shall be promptly delivered to Licensee upon any such commencement of a bankruptcy proceeding upon written request therefor by Licensee.

IN WITNESS WHEREOF, the Parties have duly executed this Agreement the day and year first set forth above.

ADVANCED CELL TECHNOLOGY, INC.		AUROX, LLC

By:	/s/ XXXXXXX X. XXXXXXXX, XX	By:	/s/ XXXXX X. XXXX
Name: Xxxxxxx X. Xxxxxxxx, XX		Name: Xxxxx X. Xxxx
Title: Chief Executive Officer		Title: President

KIRIN BEER KABUSHIKI KAISHA		HEMATECH, LLC

By:	/s/ TOSHIFUMI MIKAYAMA	By:	/s/ XXXXX X. XXXX
Name: Toshifumi Mikayama		Name: Xxxxx X. Xxxx
Title: President		Title: President

KIRIN SD, INC.

By:	/s/ TOSHIFUMI MIKAYAMA
Name: Toshifumi Mikayama
Title: President

EXHIBIT A

List of Patents and Applications

Inventors	Name	App. Ser. No.
Xxxxxxxx Xxxxxx Xxxxx X. Xxxx Xxxxx Xxxxxxxx X. Xxxxxxxxxx	Methods for Cloning Mammals Using Reprogrammed Donor Chromatin or Donor Cells	US 10/032,191

Same	Same	PCT/US01/50406	WO02/51997
Same	Same	Canada	2427322
Same	Same	Mexico	2003/005624
Same	Same	Europe	01992386.7
Same	Same	China	01820967.X
Same	Same	Hong Kong	04109008.7
Same	Same	Japan	2002-553478
Same	Same	Korea	2003-7008319
Same	Same	Australia	2002232858
Same	Same	New Zealand	525607
Xxxxxxxx Xxxxxx Xxxxx Xxxx	Methods for Altering Cell Fate	US	10/910,156

Same	Same	PCT/US01/47882	WO 02/057415
Same	Same	Canada	2429954
Same	Same	Europe	01993249.0
Same	Same	Japan	2002-558469
Same	Same	Australia	2002245101

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EXCLUSIVE LICENSE AGREEMENT

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