Exhibit 10.9
FIRST AMENDMENT TO EXCLUSIVE
LICENSE AGREEMENT (ACT IP)
This First Amendment to Exclusive License
Agreement (ACT IP) (“First Amendment”) is made and
entered into as of this 1ST day of August, 2005 (the
“Amendment Effective Date”), by and between Advanced
Cell, Inc. (formerly known as Advanced Cell Technology, Inc.), a
Delaware corporation with offices located at 381 Plantation Street,
Worcester, Massachusetts 01605 (“LICENSOR”), and
Lifeline Cell Technology, LLC (formerly known as PacGen Cellco,
LLC), a California limited liability company with offices located
at 157 Surfview Drive, Pacific Palisades, CA 90272
(“LICENSEE”) (LICENSOR and LICENSEE sometimes
hereinafter referred to individually as a “Party” and
collectively as the “Parties”).
WHEREAS, the Parties previously entered into an
Exclusive License Agreement (ACT IP), dated May 14, 2004 (the
“License Agreement”), which grants LICENSEE defined
rights to use certain intellectual property controlled by LICENSOR;
and
WHEREAS, the Parties also entered into that
certain Agreement to Amend ACT/Cellco License Agreements dated
September 7, 2004 (the “Agreement to Amend”),
which contemplates that the Parties will amend the License
Agreement in certain respects; and
WHEREAS, the Parties have agreed to amend the
License Agreement as provided herein;
NOW, THEREFORE, in consideration of the premises
and terms of this First Amendment, and in consideration of the
payment to LICENSOR by LICENSEE of $84,375, the receipt of which is
hereby acknowledged by LICENSOR, the Parties agree to amend the
License Agreement as follows:
1. Section 1.2 is deleted in its
entirety and replaced with the following:
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1.2
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“FIELD” shall mean
(1) 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 (2) the manufacture and selling of human
cells for therapeutic and diagnostic use in the treatment of human
(a) diabetes, (b) liver diseases and (c) retinal
diseases and retinal degenerative diseases; but 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.
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2. Section 1.3 is deleted in its
entirety and replaced with the following:
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1.3
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“KNOW-HOW” means all
compositions of matter, techniques and data and other know-how and
technical inventions (whether or not patentable), improvements and
developments, practices, methods, concepts, trade secrets,
documents, computer data, computer code, apparatus, clinical and
regulatory strategies, 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
proprietary
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information
that is owned or controlled by LICENSOR as of the Effective Date
that relates to cloning technology or to any of the subject matter
described in or claimed by the PATENT RIGHTS and is relevant to the
FIELD. By way of illustration, but not in limitation, KNOW-HOW
shall include commercial rights in the FIELD to any existing or
potential research products, including reagents, developed by
LICENSOR in the course of its in-house research as more fully
described in Section 15.3 of this Agreement. An example of
this is the proprietary culture medium developed by LICENSOR in the
course of the development of LICENSOR’s proprietary ooplasmic
transfer technology.
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3. Section 1.9 is amended by deleting
the text in Section 1.9 in its entirety and replacing it with
the following: “Intentionally omitted”.
4. Section 2.5 is deleted in its
entirety and replaced with the following:
LICENSEE
acknowledges and agrees that notwithstanding anything to the
contrary in this Agreement, LICENSOR may: (i) practice the
LICENSED TECHNOLOGY and develop and manufacture LICENSED PRODUCTS
within the FIELD for research purposes, provided that LICENSOR may
not market or sell LICENSED PRODUCTS in the FIELD to third parties
in contravention of LICENSEE’S exclusive rights hereunder;
(ii) distribute or otherwise transfer cells or cell lines or
other reagents to collaborators for research purposes, and
commercialize the results of such research (other than media and
other reagents produced for sale to the commercial research market)
outside the FIELD in connection with the research, development,
manufacture or sale of therapeutic products that are not in
contravention of LICENSEE’S exclusive rights hereunder; and
(iii) distribute or otherwise transfer cells or cell lines to
collaborators for the purposes of researching, developing and
commercializing cell based therapeutics for purposes other than
those exclusively licensed to LICENSEE hereunder.
By way of
illustration of subparagraph (ii) of Section 2.5 hereof,
should LICENSOR partner with a biopharmaceutical company in order
to produce skin cells for human therapeuti
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