Agreements

• Home
• Agreements

This Consortium Agreement (this “Agreement”) is dated and made effective as of May 1, 2018 (“Effective Date”) by and between the Foundation for Food and Agriculture Research (“FFAR”), a District of Columbia nonprofit corporation, and:

Bayer Crop Science LP, a Delaware limited partnership, having its principal place of business at 2 TW Alexander Drive, Research Triangle Park, NC 27709 (“Bayer Crop Science LP”);

Biogemma S.A.S, a French corporation, having its principal place of business at 1 rue Edouard Colonne, 75001 Paris, France (“ BioGemma”);

Centro Internacional de Mejoramiento de Maíz y Trico, a nonprofit research and training institution, having its principal place of business at Km.45 Carretera México-Veracruz, El Batán, Texcoco, Estado de México, C.P. 56237, MEXICO (“CIMMYT”);

Fundação de Amparo à Pesquisa do Estado de São Paulo, a research foundation, having its principal place of business at R. Pio XI, 1500 - Alto da Lapa - CEP 05468-901 São Paulo/SP - Brasil (“FAPESP”);

KWS SAAT SE, a company organized under the laws of Germany and having its principal place of business at Grimsehlstrasse 31, Postfach 1463, 3755 Einbeck, Germany (“KWS”);

Precision Biosciences, Inc., a Delaware corporation, having its principal place of business at 302 E. Pettigrew St., Dibrell Building, Suite A-100, Durham, NC 27701 (“Precision”);

Rijk Zwaan Zaadteelt en Zaadhandel B.V., a Dutch limited liability corporation, having its principal place of business at Burgmeester Crezéelaan 40, 2678 KX De Lier, the Netherlands (“Rijk Zwaan”).

Recitals

1. FFAR has developed a collaborative consortium, the Crops of the Future Collaborative, hereinafter referred to as the “ Crops of the Future Collaborative”, or the “Consortium.”

2. The Consortium will consist of FFAR, the Participants set forth above and additional members of the food and agriculture industry, members of commodity groups, and members of non-profits that join the Consortium (hereinafter referred to as “Participants,” as defined below).

3. Purpose. The purpose of the Consortium is to: 

a. Identify physiological, biochemical, and molecular pathways and mechanisms that contribute to traits responsible for specified crop characteristics, with an emphasis on complex characteristics; and

b. Adapt and develop the tools and technology required to accelerate discovery of physiological, biochemical, and molecular pathways and mechanisms as they relate to traits of potential agricultural importance; and

c. Promote and encourage the advancement of agricultural science that benefits the public good by timely release of the knowledge and materials created from the public private partnerships.

NOW, THEREFORE, in view of the mutual covenants, representations, warranties and other terms and conditions contained herein, the parties hereto agree as follows:

Article I. Definitions

1.1 “Affiliates” means, with respect to a Party, any person or entity controlling, controlled by, or under common control with that Party, control meaning in this context the direct or indirect ownership of at least fifty percent (50%) (or such lesser percentage which is the maximum allowed to be owned by a foreign entity in a particular jurisdiction) of the voting stock/shares of a company, or the power to nominate at least half of the directors, or the power otherwise to determine the policy of a company or organization.

1.2 “Confidential Information” has the meaning set forth in Section 10.1.

1.3 “Crop Characteristics” means characteristics of a whole plant’s ability to endure abiotic and biotic stresses and produce nutritious products, rather than specific morphological, physiological, and biochemical processes. Crop Characteristics include, but are not limited to, traits such as disease resistance, heat stress tolerance, drought tolerance, and others. These characteristics are generally influenced by multiple morphological traits, physiological processes, and biochemical processes.

1.4 “Crop-Specific Program” means a scientific program focused on identifying physiological, biochemical, and molecular pathways and mechanisms that contribute to traits responsible for specified crop characteristics, with an emphasis on complex characteristics with respect to a single crop or group of related crops.

1.5 “Cross-crop Technology Program” means a scientific program focused on research tools, methods and data benefitting or applicable to multiple crops.

1.6 “Executive Committee” means the committee with responsibility for the overall governance and guidance of the Consortium (and the specific responsibilities set forth in this Agreement).

1.7 “Intellectual Property” means all forms of intellectual property rights, including patents, patent applications, utility models, plant variety protection rights, know-how, trade secrets, and copyrights.

1.8 “Results” means inventions, data, know-how, information, materials and other results of the Project(s)s.

1.9 “Participant” means any company, industrial firm, commodity group, producer association, public institutions, non-profit organization, federal research and development organizations, foreign organizations and/or governmental agency, that has joined and been accepted by the Consortium and has agreed, accepted, and signed the Crops of the Future Collaborative Consortium Agreement and paid the agreed contribution, if applicable. For clarity, Participant shall be deemed to include FFAR.

1.10 “Project” means a specific research program within the scope of a Scientific Program with specific aims and goals related to either a specific crop characteristic or research and technologies applicable to multiple crops.

1.11 “Project Agreement” has the meaning set forth in Section 8.3.

1.12 “Project Funder” means a Participant participating in a Project through funding or in-kind contribution, subject to the term of the applicable Project Agreement. FFAR shall be deemed a Project Funder for each Project, regardless of whether FFAR funds a Project, and shall be represented by the Consortium Director.

1.13 “Project Team” means each Project Funder’s [scientific] personnel participating in a Project pursuant to a Project Agreement.

1.14 “Project-specific Inventions” has the meaning set forth in Section 8.3.

1.15 “Research Institution” means a third party (other than a Participant) performing services on behalf of a particular Project (e.g., a research institution or university, under a sponsored research agreement).

1.16 “Scientific Program(s)” means a Crop-specific Program or a Cross-crop Technology Program. Scientific Programs consist of multiple Projects, where each Project for a Crop-Specific Scientific Program relates to one or more specific crop characteristics.

1.17 “Subsidiary” means, with respect to a Party, any person or entity controlled by that Party, control meaning in this context the direct or indirect ownership of at least fifty percent (50%) (or such lesser percentage which is the maximum allowed to be owned by a foreign entity in a particular jurisdiction) of the voting stock/shares of a company, or the power to nominate at least half of the directors, or the power otherwise to determine the policy of a company or organization.

Article II. Participant Contributions; Roles

2.1 Participant Contributions, Annual Dues. Each Participant (other than FFAR) will contribute annual dues (unless waived as provided below) and will support Scientific Program(s), described in more detail below, except in special circumstances as outlined below.

a. Annual Dues: Annual dues are used to fund the overall administrative costs of the Crops of the Future Collaborative, including without limitation costs of FFAR employees allocated to managing the Consortium. After paying the administrative costs of the Consortium, FFAR agrees to allocate any excess funds to funding Project(s) among the Cross-crop Technology Program.

b. Annual Dues Costs: Annual dues are calculated based on the Participant’s annual research and development budget, to be determined with public information, if available, and if not so available, shall be disclosed by such Participant at the time it joins the Consortium and upon renewal each year (including Participant and all of its Subsidiaries).

• $1 billion+ : $100,000/year

• $500 million to $1 billion: $75,000/year

• $100 million - $500 million: $50,000/year

• $50 million to $100 million: $25,000/year

• Under $50 million: $10,000/year

If a Participant pays three years of annual dues in advance, then the annual dues will be discounted by ten percent (10 %) from the rates listed above. As of the Effective Date, the Participants’ annual dues will be due and payable by August 1 of each year for the period July 1 to June 30 of each year. FFAR will send an annual reminder of such dues prior to June 30. The annual dues may be adjusted from time-to-time by FFAR and agreement of the Executive Committee; provided, however, that the annual dues for a Participant will not increase beyond the structure set forth above, without Participant’s prior written consent.

As of the Effective Date, the Founding Participant’s annual dues are:

Founding Participant	Initial Annual Dues
Bayer CropScience LP	$ 100,000 ($50k 2017/$50k early 2018)
BioGemma	$ 10.000
CIMMYT	None ((in-kind))
FAPESP	$ 27,000 (committed for 3 years)
KWS	$ 50,000
Precision	$ 10,000
Rijk Zwaan	$ 50,000

Participants also will bear all costs and expenses for any of its employees attending or participating in Consortium meetings, including meetings of the Executive Committee.

2.2 Waiver of Annual Dues: With agreement of the Executive Committee, FFAR may admit a Participant to the Consortium:

a. waiving all or a portion of, the annual dues for such a potential Participant;

b. such a Participant may contribute all of their support for a Project as an in-kind contribution;

c. contributions to Project must be equivalent to other Project Funders’ contribution levels; and

d. provided such Participant has signed the Consortium Agreement in the form set forth on Exhibit A.

As of the Effective Date, the Participants have agreed to waive the Annual Dues for CIMMYT. 

2.3 Participant Contributions, Projects. 

a. Participants (other than FFAR) must invest (through cash and in-kind contributions) in at least one Project of such Participant’s choosing, and be actively participating in a Project within one (1) year after becoming a Participant; however, a Participant may refrain from investing in a Project for any twelve (12) month period and still remain in the Consortium as long such Participant continuously pays annual dues. The requirement to invest in one or more Projects extends to any Participant that has had its annual dues waived pursuant to Section 2.2, provided that such Participant may make its contribution to a Project through in-kind support as provided in the next paragraph. If a Participant does not actively invest in a Project within thirty (30) days after such twelve (12) month period, then the Executive Committee shall have the right to terminate this Agreement with respect to such Participant provided that if such Participant is a member of the Executive Committee, such Participant shall not be entitled to vote in such decision.

b. In-kind Support. Each Project Funder may contribute up to 50% of its contribution to a Project as in-kind support, with the value of such in-kind support to be agreed by the Project Funders in the applicable Project Agreement. A Participant may contribute more than 50% of its contribution through in-kind support, upon agreement of the other Project Funders: (i) if the Annual Dues for a Participant are waived pursuant to Section 2.2, or (ii) with Executive Committee approval based on the capability of the Participant to provide substantial value to the Project.

2.4 Participant Roles & Benefits. Participants in the Consortium will have specific roles and benefits depending on partnership level elected by or applicable to such Participant, as follows:

a. Founding Participants. Founding Participants are the initial Participants of the Crops of the Future Collaborative, being Bayer CropScience LP, Biogemma, CIMMYT, FAPESP, FFAR, KWS, Precision Biosciences, and Rijk Zwaan. Dues-paying Founding Participants will have all the benefits of Executive Committee Participants, in addition to:

• Permanent voting privileges (a single vote) on the Executive Committee for as long as such Participant maintains its partnership in the Consortium, such voting privilege to be exercised by a designated voting member, or such member’s proxy.

• Access (including during the Embargo Period) and a non-exclusive, royalty free license to Intellectual Property and Results developed through any of the Projects within the Consortium, without requiring unanimous consent of the Project Funders of such Project, for internal research use by such Founding Participant and its Subsidiaries (and, in the case of any Founding Participant paying Annual Dues at the highest tier, such Founding Participant’s Affiliates), including use by: (i) third parties performing research on behalf of such Founding Participant and its Subsidiaries’ (or Affiliates’, if applicable) and (ii) Founding Participant’s and its Subsidiaries’ (or Affiliates’, if applicable) bona fide research collaborators.

• An option to a worldwide, non-exclusive license to Intellectual Property and Results developed in a Project in which such a Participant has not participated for commercial use on terms and conditions to be agreed upon and negotiated between the Participant owning such Intellectual Property and the Founding Participant in good faith. Such option will expire if the Founding Participant is no longer a Participant of the Consortium.

b. Executive Committee Participants. Participants that join the Consortium after July 31, 2017 and pay the highest tier in Annual Dues will be considered Executive Committee Participants. Other Participants may pay twice (2X) their Annual Dues per Section 2.1(b) (not to exceed the highest tier amount) and upon payment of such increased amount, will be considered Executive Committee Participants for so long as such Participant pays at the higher level. Dues-paying Executive Committee Participants have all the benefits of Basic Participants, in addition to:

• Voting privilege (a single vote) on the Executive Committee for the period during which such Participant is paying Annual Dues at the highest tier, such voting privilege to be exercised by a designated voting member, or such member’s proxy;

• Appointing a single member to any Advisory Committee; and

• During the Embargo Period, early knowledge of the Results developed in a Project in which such a Participant has not participated (and in each case that was developed after the time such Participant became an Executive Committee Participant), and as a consequence of having such early knowledge enabling early evaluation of their interest in the Results, an option to a worldwide, non-exclusive license to such Results and any corresponding Intellectual Property for research and/or commercial use on terms and conditions to be agreed upon and negotiated between the Participant owning such Intellectual Property and the Executive Committee Participant in good faith, subject to the veto right set forth in Section 2.4(c). Such option will expire if the Executive Committee Participant is no longer a Participant of the Consortium or is no longer paying Annual Dues at the level required to be an Executive Committee Participant.

c. Basic Participants. Participants that join the Consortium after July 31, 2017, and pay Annual Dues based on the annual dues as provided in Section 2.1(b) (or for which annual fees are waived pursuant to Section 2.2) will be considered Basic Participants. If a Participant’s Annual Dues would be at the highest tier as provided in Section 2.1(b), such Participant has the option to pay reduced Annual Dues of $75,000 if it does not wish to be an Executive Committee Participant. Basic Participants will have the following roles and benefits:

• Appoint one or more scientists from its organization as a member of the Project Teams to Projects being funded by the Basic Participant;

• Receive early access to all Results developed from Projects funded by such Basic Participant;

• Receive a worldwide, non-exclusive license to Intellectual Property and Results generated from the Projects funded by the Participant for research use, and an option to obtain a commercial license, subject to the terms of the applicable Project Agreement (as to be negotiated under Section 8.5); and

• Each Project Funder will have veto power regarding licensing Intellectual Property generated in a Project funded by such Project Funder to any organization (including other Participants) that is not a Project Funder for the given Project and is not a Founding Participant.

d. Non-voting Executive Committee members. In addition to the Founding Participants and the Executive Committee Participants, the Executive Committee also will include one or more Basic Participants as non-voting members representing non-profit or public institutions, to comprise up to 30% of the Executive Committee membership, to be selected by the Executive Committee. The Executive Committee may appoint such non-voting Basic Participants as members of the Executive Committee for two (2) year terms upon agreement by the Executive Committee. Such Basic Participants may be institutions for which annual dues have been waived pursuant to Section 2.2. CIMMYT will be a permanent non-voting member of the Executive Committee for so long as CIMMYT is a Participant. 

Article III. Organization/Governance

3.1 The Consortium shall be governed by the:

a. Executive Committee;

b. Consortium Director; and

c. Project Funders with respect to applicable Projects among the Scientific Programs.

3.2 Executive Committee Responsibilities. The Executive Committee is responsible for:

a. Determining Scientific Program areas;

b. Evaluating Consortium Director performance;

c. Determining Consortium Director tenure;

d. Determining the overall scientific scope for each Project within the Cross-crop Technology Program in conjunction with the Consortium Director;

e. Guiding the Consortium’s strategic direction; and

f. Providing broad guidelines used to govern the Scientific Programs, including:

1. Embargo period time frame for publication of results of a Project or Scientific Program;

2. Approving any Scientific Programs which include an embargo period outside of the guidelines;

3. Each Project Funder must contribute an equivalent amount of resources to Projects they fund (including any in-kind support as provided in Section 2.3(b); and

4. Recruitment of Project Funders.

3.3 Meetings of the Executive Committee. The Executive Committee will meet at least once per calendar quarter. Meetings of the Executive Committee can be by teleconference, videoconference or in-person, provided that the Executive Committee will meet in-person at least once per calendar year. A meeting of the executive committee will require that at least two-thirds of the voting members of the Executive Committee are in attendance.

3.4 Decisions of the Executive Committee. All decisions of the Executive Committee will be made by consensus agreement of the Executive Committee voting members present at a given meeting. Each Executive Committee Participant will recuse itself from any discussions and votes related to funding such Executive Committee Participant to perform research under any Project or to initiate a Project that would provide such funding.

3.5 Project Funder Responsibilities. Project Funders are responsible for:

a. Determining crop characteristics (Projects) of focus for Crop-specific Programs and Cross-crop Technology Programs;

b. Determining Project plan and budgets;

c. Decisions regarding allowing additional Project Funders for Projects that have been developed and initiated, subject to Executive Committee approval;

d. Decisions regarding Project steering committees; and

e. With regards to a Project that it funds, decisions regarding members of the Project Teams selected to conduct research, within the guidelines set by the Executive Committee

3.6 Consortium Director Responsibilities. The Consortium Director will be an individual, hired as a paid employee of FFAR, to manage the Consortium in accordance with the overall scientific direction set by the Executive Committee. The Consortium Director is responsible for:

a. Recruiting new Participants for the Consortium and recruiting Participants to Participate in Project and Scientific Programs in conjunction with the other Participants and the Executive Committee;

b. Facilitating resolution of conflicts between the Participants that impact the Consortium and its Scientific Programs;

c. Managing the day-to-day operations of the Consortium;

d. Determining potential synergies between Scientific Programs;

e. Determining the scope of Scientific Programs in conjunction with the Executive Committee and Project Funders;

f. Negotiating Agreements with any Research Institutions;

g. Determining Project deliverables and ensuring Project deliverables are met; and

h. Managing data-sharing platforms.

3.7 The Executive Committee may form advisory committees of individuals who may or may not be employed by any Participant to provide advice to the Executive Committee from time-to-time (such committees “ Advisory Committees”). The Advisory Committees shall only serve in an advisory capacity and shall have no decision making authority with respect to the Consortium or any Project Agreement.

3.8 The governance mechanism, including the decision-making processes, can only be changed by consensus agreement of the voting members of the Executive Committee.

Article IV. New Participant Organizations

4.1 New companies, industrial firms, commodity groups, producer associations, public institutions, or non-profit organizations, federal research and development organizations, foreign organizations and/or governments, may join the Consortium as a Participant with the approval of the Executive Committee. These new organizations may join upon signature of a Consortium Agreement in the form set forth on Exhibit A and payment of the prorated Annual Dues applicable to such entity unless such payment has been waived by the Executive Committee in accordance with this Agreement. Each of the Participants to this Agreement agrees that any new Participant added through the mechanism of this Section 4.1 shall be deemed party to this Agreement and shall be subject to all the terms and conditions of this Agreement, including all rights and obligations applicable to such Participant. 

4.2 Participants may join Projects after the initial Project start date with the following conditions:

a. Each such late-joining Project Funder agrees to be bound in writing to the terms and conditions of the Project Agreement for such Project, and may only join with the consent of the other Project Funders for such Project and approval of the Executive Committee, so consents and approvals to be provided or withheld on fair and reasonable grounds;

b. Any late-joining Project Funder will be entitled to the same rights to Intellectual Property and Results generated under the Project as the existing Project Funders, including to all Intellectual Property and Results generated prior to such late-joining Project Funder joining the Project; 

c. Each such late-joining Project Funder will be required to pay: (i) 50% of the amounts paid by the existing Project Funders (whether in cash or through in-kind contributions; and (ii) a pro-rata amount to be paid by an existing Project Funder for continued support of the existing Project, plus 20%. Any funds in excess of the amount spent on the Project may be used by FFAR for the support of other Projects, including any Cross-crop Technology Programs. For example, if a Project had existed for 2 years prior to a late-joining Project Funder joining, and each of the existing 4 Project Funders had paid $250K per year toward the Project in each of the first two years (i.e., the total budget was $1M per year) and were due to pay an additional $250K for two additional years, then as a condition of joining the Project, the late-joining Project Funder would be obligated to pay $250K, representing 50% of the amount already contributed by each of the other Project Funders. Each of the original Project Funders would then be obligated to pay $200K per year ($1M divided by 5 Project Funders) for the two remaining years and the late-joining Project Funder would pay $240K per year for each of the two remaining years ($200K + 20%). In each case, the calculations will be subject to approved in-kind contributions, approved by the Project Funders.

Article V. Scientific Programs

5.1 Focus of Scientific Programs.

a. Crop-specific Programs. The focal point for each Project within a Crop-specific Program will be on Crop Characteristics of the specified crop or group of related crops. Each Project will have a budget of at least $1,000,000, unless otherwise agreed by the Executive Committee.

b. Cross-crop Technology Programs. The focal point for each Project within a Cross-crop Technology Program will be on research tools, methods and data benefitting or applicable to multiple crops.

c. Decisions regarding budgets and the scientific focus of a Project will require consensus support of Project Funders for the applicable Project.

d. Project Funders within each Project are responsible for selection of the Crop Characteristics of focus for each specific crop within the Project.

Article VI. FFAR Roles and Responsibilities 

6.1 FFAR will administer the Consortium, and will bear all of its costs and expenses for its employees’ activities in administering the Consortium, including the salary and benefits of the Consortium Director.

6.2 FFAR and the Consortium Director will lead negotiations with Research Institutions for the performance of research activities in a Project, and will use its reasonable efforts to negotiate agreements with such Research Institutions that are consistent with this Agreement and the Consortium Agreements with additional Participants. The Project Funders for each Project will be parties to any such agreements with Research Institutions for the applicable Project, and will have the right to review and comment on the applicable Project Agreement before it is consummated. Research Institutions will be selected by either a direct bid or a competitive process, with the approval of the Executive Committee.

6.3 If contract negotiations with a Research Institution for the performance of research activities in a Project is not consistent with the rights provided under this Agreement, the Executive Committee together with the Project Funders for such Project will have the final decision whether they want to continue with contract negotiations with the Research Institution.

6.4 FFAR will participate as a Project Funder in each Project, at a level to be determined by FFAR in its sole discretion. As of the Effective Date, FFAR anticipates that it will match the funding of each Project at a level at least equal to the amounts being contributed by the other Project Funders. As of the Effective Date, FFAR has agreed to contribute a total of ten million dollars ($10,000,000) into the Consortium over the initial term, and including contributions to individual Projects.

Article VII. Publication Embargo 

7.1 All Results gained in a Project will be made publicly available through publications and appropriate data-sharing mechanisms, including publication by the research institutes participating in any Project. Each Project Agreement will include an embargo period of at least 12 months, from the time all such data are provided in writing to each of the Project Funders, during which period no publications will be allowed. The embargo period may be varied for a particular Project as determined by Project Funders and approved by the Executive Committee, and in accordance with the applicable Project Agreement. For clarity, any embargo period outside of the guidelines set by the Executive Committee requires approval of the Executive Committee. As used in this Section 7.1, the term "publication" shall extend to any form of public release, including but not limited to posters and oral presentations. All publications to be made by any Research Institution or any Project Funder under a Project Agreement will be subject to review by the other Project Funders to determine if any of such Project Funder’s Confidential Information is disclosed, and if there are any inventions disclosed. All publications will be provided for review at least 30 days prior to publication, and will be subject to a delay of up to an additional 60 days to facilitate filing for patent protection on any such Intellectual Property. The publishing party also will remove any of the Project Funders’ Confidential Information on such Project Funder’s request.

Article VIII. Intellectual Property 

8.1 Background IP. Each party shall retain all right, title and interest in and to its data, know-how, information, materials, and any Intellectual Property rights related thereto (together the “ Background IP”) that are owned by it before the Effective Date, or that are developed by it outside of its activities in the Consortium. Participants will not use any such Background IP of such Participant in its performance of activities under the Consortium without the agreement of the Executive Committee, if such use would require a license to the other Participants for the use of exploitation of the Inventions (as defined below). Participant is not required to grant access to any of its Intellectual Property to the other Participants. If a Participant agrees to contribute its Background IP to a particular Project, then such providing Participant may condition the provision of such Background IP on improvements to such Background IP (as to be defined in the applicable Project Agreement) being assigned to the providing Participant.

8.2 The Parties do not anticipate that any substantial Intellectual Property will be generated under this Agreement, but anticipate that any Intellectual Property will be generated under the Project Agreements. Ownership in any patent applications made under this Agreement will be determined in accordance with the rules regarding inventorship under United States patent law.

8.3 The Project Funders shall agree to Intellectual Property terms in a written agreement to be entered into by the Project Funders for a specific Project (the “Project Agreement”) provided they are consistent with the terms of this agreement applicable to Participants not funding the applicable Project. The Executive Committee will develop a form Project Agreement for use by the Participants as a template. Unless otherwise approved by the Executive Committee, under each Project Agreement, all inventions made solely by such Project Funder’s personnel participating on a Project Team for the applicable Project will be assigned to such Project Funder, and any inventions made jointly by such Project Funder’s personnel together with the personnel of another Project Funder or Research Institution participating in such Project will be assigned jointly to such Project Funder and such other Project Funders or Research Institution (the “ Project-specific Inventions”). Any Project Funder would be responsible for any remuneration due its personnel. The Project Funder owning a Project-specific Invention will have the right to file for patent protection, prosecute, maintain and enforce such Project-specific Invention solely owned by it, and the Project Agreement will include provisions to allocate responsibility for any jointly-owned Project-specific Inventions. If a Project Funder determines not to file for patent protection for any Project-specific Invention, the other Project Funders will be entitled to file for, prosecute and maintain such Project-specific Invention as to be further specified in the applicable Project Agreement.

8.4 Licenses to Project-specific Inventions.

a. To Project Funders. With respect to any Project-specific Invention under a Project Agreement, each Project Funder agrees to grant to each other Project Funder with respect to such Project, an irrevocable, non-exclusive, royalty-free license for the Project-specific Invention for research and commercial use.

b. To Founding Participants. With respect to any Project-specific Invention under a Project Agreement, each Project Funder agrees to grant to each Founding Participant (and its Subsidiaries and, in the case of any Founding Participant paying Annual Dues at the highest tier, such Founding Participant’s Affiliates), an irrevocable, nonexclusive license for internal research use, and an option to obtain a nonexclusive license for commercial use on terms and conditions to be negotiated in good faith between the applicable Project Funder and such Founding Participant. Each Founding Participant will be a third party beneficiary of the Project Agreement.

c. To Executive Committee Participants. Under such Project Agreement, the Project Funder also will grant an option to each Executive Committee Participant (other than a Founding Participant) and its Subsidiaries, and, in the case of any Executive Committee Participant paying Annual Dues at the highest tier, its Affiliates, to obtain a nonexclusive license for research and commercial use, on terms and conditions to be negotiated by such Project Funder and the applicable Executive Committee Participant; provided, however, that such option may only be exercised by the Executive Committee Participant with the unanimous approval of each of the Project Funders for the applicable Project. Each Executive Committee Participant will be a third party beneficiary of the Project Agreement.

8.5 Negotiation of Project Agreements. If any Project Agreement includes a Research Institution, FFAR will use commercially reasonable efforts to negotiate with such Research Institution, that such Research Institution will assign, exclusively license to, or exclusively option to the applicable Project Funders any Intellectual Property and Results made by such Research Institution in its performance of the Project, in a manner that preserves the ability to grant rights to the Founding Participants and the Executive Committee Participants in accordance with the preceding Section. All such agreements with a Research Institution will be subject to approval by each of the applicable Project Funders and the Executive Committee.

Article IX. Term and Termination 

9.1 This Agreement will have an initial term of five (5) years, and will automatically renew for additional one (1) year periods, unless the Executive Committee agrees not to renew the term at least sixty (60) days prior to the start of any renewal term. This Agreement will terminate automatically and immediately without any further notice with respect to a Participant if Participant has not paid the Annual Dues of a previous agreement year by August 1 of the following agreement year.

9.2 Termination by Participant. Each Participant may terminate this Agreement with respect to such Participant at-will upon ninety (90) days’ written notice sent to the Consortium Director. Participant’s termination of this Agreement pursuant to this Section 9.2 will not terminate any Project Agreements to which such Participant is a party, and such terminating Participant will remain liable for its obligations under any Project Agreements then in force. Any such termination by a Participant in accordance with this Section 9.2 will not terminate this Agreement with respect to any other Participants.

9.3 Termination for Material Breach. FFAR may terminate this Agreement with respect to any Participant for material breach of this Agreement by such Participant on sixty (60) days’ written notice, unless such breach is cured within such 60-day period. FFAR agrees not to terminate this Agreement pursuant to this Section 9.3 without the approval of the Executive Committee (with the breaching Participant abstaining). FFAR’s termination of this Agreement pursuant to this Section 9.3 with respect to a Participant will not terminate any Project Agreements to which such Participant is a party, and such terminated Participant will remain liable for its obligations under any Project Agreements then in force, unless such Project Agreement is itself terminated under its terms.

9.4 Termination by Executive Committee. FFAR may terminate this Agreement with respect to a particular Participant if the Executive Committee (other than the affected Participant) determines in good faith that Participant’s involvement in the Collaboration would be materially detrimental to the Collaboration’s purpose or reputation, as a result of any significant ethical or legal issue affecting the Participant.

9.5 Effect of Termination. Except for a termination under the preceding Section 9.4, any unpaid annual dues for the current contract year will immediately be due and payable upon termination for any reason. No annual dues will be refunded. All future rights and privileges are forfeited upon termination, however, rights obtained up to and including the effective date of termination will be retained, including without limitation any licenses granted to such Party prior to such termination pursuant to Article 8. 

Article X. Confidentiality; Materials; Compliance; Export  

10.1 General. Any and all information disclosed or submitted orally, in writing or in other tangible form under confidentiality to one party (the “Receiving Party”) by any other party (the “Disclosing Party”) shall hereinafter be referred to as the “ Confidential Information” of the Disclosing Party. For clarity, all information disclosed by one Participant to another Participant that is related to a Project (including any disclosure of a Participant’s Background IP) shall be deemed Confidential Information of the Disclosing Party. Each party shall receive and maintain the Disclosing Party’s Confidential Information in strict confidence, and shall not disclose any Confidential Information of any other party to any third party. No party shall use the Confidential Information of any other party for any purpose other than as required to perform or exercise its rights hereunder. The Receiving Party may disclose the Disclosing Party’s Confidential Information to the Receiving Party’s and its Affiliates’ employees and consultants requiring access thereto for the purposes of this Agreement, provided, however, that prior to making any such disclosures, each such employee or consultant shall be bound by written agreement, on terms consistent with this Agreement, to maintain Confidential Information in confidence and not to use such information for any purpose other than in accordance with the terms and conditions of this Agreement. Each Receiving Party agrees to take all steps necessary to ensure that the Disclosing Party’s Confidential Information shall be maintained in confidence including (without limitation) such steps as it takes to prevent the disclosure of its own proprietary and confidential information of like character. All Confidential Information is and shall remain the sole and exclusive property of the Disclosing Party. The foregoing obligations of confidentiality and non-use shall survive, and remain in effect for a period of five (5) years from, the termination or expiration of this Agreement. The terms of this article shall be consistent with each individual Project Agreement.

10.2 Exclusions from Nondisclosure Obligation. The nondisclosure and nonuse obligations in Section 10.1 shall not apply to any Confidential Information to the extent that the Receiving Party can establish by competent written proof that it: (i) at the time of disclosure is in the public domain; (ii) after disclosure, becomes part of the public domain by publication or otherwise, except by breach of this Agreement by such party; (iii) was in such party or any of its Affiliates’ possession in documentary form at the time of disclosure hereunder; (iv) is received by such party or any of its Affiliates from a Third Party who has the lawful right to disclose the Confidential Information and who shall not have obtained the Confidential Information either directly or indirectly from the Disclosing Party; or (v) is independently developed by such party or any of its Affiliates without use of or reference to Disclosing Party’s Confidential Information.

10.3 Required Disclosures. If any party is required, pursuant to a governmental law, regulation or order, to disclose any Confidential Information of any other party, the Receiving Party (i) shall give advance written notice to the Disclosing Party, (ii) shall make a reasonable effort to assist the other party obtain a protective order or other confidential treatment requiring that the Confidential Information so disclosed be used only for the purposes for which the law or regulation required and (iii) shall use and disclose the Confidential Information solely to the extent required by the law or regulation.

10.4 Remedies. Receiving Party acknowledges that the unauthorized use or disclosure of the Disclosing Party’s Confidential Information may give rise to irreparable injury to the Disclosing Party and that such injury may not be adequately compensated by damages; that the promises contained in this Agreement have been given for the benefit of the Disclosing Party, and that, accordingly, the Disclosing Party may seek injunctive relief against the Receiving Party or any individual or entity furnished Confidential Information by the Receiving Party hereunder, without the posting of bond or other security, to prevent the breach or threatened breach of any promise made in this Agreement, in addition to any other legal remedies which may be available to the Disclosing Party.

10.5 Materials. The parties agree not to exchange any materials, including any plant materials, to each other or to any other Participant in connection with the activities under this Agreement, without entering into an applicable material transfer agreement or applicable Project Agreement covering such exchange.

10.6 Compliance with Laws. Each party shall perform or cause to be performed, any and all of its activities under this Agreement in compliance with all federal, state, local, national and supra-national laws, statutes, rules, and regulations, including any rules, regulations, guidelines, or other requirements of any regulatory authorities, major national securities exchanges or major securities listing organizations, that may be in effect from time to time during the term and applicable to a particular activity or country or other jurisdiction hereunder (“Applicable Law”).

10.7 Export Control. This Agreement is made subject to any restrictions concerning the export of products or technical information from the United States or other countries that may be imposed on the parties from time to time. Each party agrees that it will not export, directly or indirectly, any technical information acquired from any other party under this Agreement or any products using such technical information to a location or in a manner that at the time of export requires an export license or other governmental approval, without first obtaining the written consent to do so from the appropriate agency or other governmental entity in accordance with Applicable Law. 

Article XI. Warranties; Disclaimer; Limitation of Liability  

11.1 No Warranties. No party makes any representations or warranties hereunder, either express or implied, including (but not limited to) any warranties of merchantability or fitness for a particular purpose.

11.2 Limitation of Liability. In no event shall any party have any liability to any other party to this Agreement or to any Participant for any consequential, indirect, incidental or special damages, however caused and on any theory of liability, arising out of or related to this Agreement or the Consortium. In no event will any party’s aggregate liability to the other parties under this Agreement exceed $100,000. Nothing in this Section 11.2 shall limit any party’s liability for any willful misconduct or any breach of its confidentiality obligations under Article X. 

Article XII. Miscellaneous 

12.1 Each party is an independent contractor and no party’s personnel are employees or agents of any other party for federal, state or other taxes or any other purposes whatsoever, and are not entitled to compensation or benefits of the other. Except for the specific obligations set forth in this Agreement, nothing hereunder shall be deemed to constitute, create, give effect to or otherwise recognize a joint venture, legal partnership or business entity of any kind, nor shall anything in this Agreement be deemed to constitute any party the agent or representative of any other party to this Agreement or any other Participant.

12.2 Any waiver of any obligation under this Agreement must be in writing. The failure of any party to enforce at any time any provision of this Agreement shall not be construed to be a waiver of such provision or any other provision, and shall not affect the right of such party to enforce such provision or any other provision. No waiver of any breach hereof shall be construed to be a waiver of any other breach.

12.3 This Agreement and the rights of the parties hereunder may not be assigned by any party to this Agreement without the prior written consent of the other Participants; provided, however, this Agreement or the rights granted hereunder may be assigned by FFAR or by a Participant without such consent: (a) by such party to an Affiliate (provided the Affiliate pays the Annual Dues applicable to such Affiliate) or to a Subsidiary; or (b) by Participant to a third party as part of a merger, consolidation, sale or other transfer of all or substantially all the assets of the business of a Participant to which this Agreement relates, or a similar reorganization. Subject to the foregoing, the respective obligations of the parties hereto shall bind, and the respective rights of the parties shall inure to the benefit of, the parties’ respective assignees and successors.

12.4 This Agreement and all matters arising out of or relating to this Agreement shall be governed by the internal laws of the State of New York without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of New York to the rights and duties of the parties. In the event of any controversy, claim or dispute between the parties arising out of or relating to this Agreement, such controversy, claim or dispute may be tried solely in a state or federal court located in New York, New York and the parties hereby irrevocably consent to the jurisdiction and venue of such courts.

12.5 If for any reason a provision of this Agreement, or portion thereof, is finally determined to be unenforceable under applicable law, that provision, or portion thereof, shall nonetheless be enforced, as to circumstances, persons, places and otherwise, to the maximum extent permissible by applicable law so as to give effect to the intent of the parties, and the remainder of this Agreement shall continue in full force and effect.

12.6 The headings and captions used in this Agreement are for convenience only and shall not be considered in construing or interpreting this Agreement.

12.7 This Agreement has been negotiated by all parties, and each party has been advised by competent legal counsel. This Agreement shall be interpreted in accordance with its terms and without any construction in favor of or against any party.

12.8 This Agreement may be executed in counterparts, each of which shall be deemed an original, but which collectively shall constitute one and the same instrument.

In Witness whereof, the parties have caused this Agreement to be executed by their duly authorized representatives: 

Foundation for Food and Agriculture Research

Bayer CropScience LP

CIMMYT

FAPESP

KWS

Precision

Rijk Zwaan Zaadteelt en Zaadhandel b.v.

 

Exhibit A – Form of Consortium Agreement for Additional Participants

This Participant Agreement (this “Agreement”) is dated and made effective as of _______________ (“Effective Date”) by and between the Foundation for Food and Agriculture Research (“FFAR”), a District of Columbia nonprofit corporation, and:

__________________________ a __________ corporation, having its principal place of business at _______________________ (“New Participant”)

Recitals:

A. The Crops of the Future Collaborative (the “Consortium”) was formed pursuant to that certain Consortium Agreement dated May 1, 2018 among FFAR and the Founding Participants (the “Consortium Agreement ”);

B. New Participant desires to join the Consortium; and

C. The Executive Committee of the Consortium has approved New Participant to join the Consortium, and FFAR on behalf of itself and the other Participants to the Consortium desires for New Participant to join the Consortium.

NOW, THEREFORE, in view of the mutual covenants, representations, warranties and other terms and conditions contained herein, the parties hereto agree as follows:

1. New Participant hereby agrees to be bound by the terms and conditions of the Consortium Agreement, shall be deemed a “Participant” as defined in the Consortium Agreement, and shall be entitled to all rights as a Participant under the Consortium Agreement, either as an Executive Committee Participant or other Participant, as determined by the Annual Dues payable by such Participant, and shall be bound by all obligations as a Participant of the Consortium Agreement.

2. Upon execution of this Agreement, New Participant shall pay to FFAR a prorated portion of the Annual Dues set forth in Section 3 of this Agreement based on the whole and partial months remaining prior to and including June, unless such payment has been waived by the Executive Committee in accordance with this Agreement. For clarity, if the annual fee for a New Participant is $100,000 and the New Participant joins on February 13, then dues would be payable for February through June, or 5 /12 of $100,000, or $41,666.67.

3. As of the Effective Date, New Participant’s annual dues are: ___________, which dues will be payable on ___________.

In Witness whereof, the parties have caused this Agreement to be executed by their duly authorized representatives:

Foundation for Food and Agriculture Research 

[NEW PARTICIPANT]

 

---