exv10w17






Exhibit 10.17



Pages where confidential treatment has been requested are stamped ‘Confidential Treatment
Requested and the Redacted Material has been separately filed with the Commission,’ and the
confidential section has been marked as follows: [***].




EVALUATION, PRODUCTION AND LICENSE AGREEMENT





 









 








Table of contents




	 	 	 	 	 

	1. DEFINITIONS
	 	 	3	 
	2. EVALUATION, ASSESSMENT AND DEVELOPMENT
	 	 	5	 
	3. EVALUATION EXPENSES
	 	 	6	 
	4. VARIETY OPTIONS
	 	 	7	 
	5. LICENSE
	 	 	8	 
	6. INTELLECTUAL PROPERTY RIGHTS
	 	 	9	 
	7. LICENSED VARIETY CONSIDERATION
	 	 	10	 
	8. DENOMINATIONS, VARIETY NAMES, TRADE MARKS AND BRAND INTEGRITY
	 	 	13	 
	9. PRODUCTION ACTIVITIES BY NOBLE
	 	 	13	 
	10. QUALITY AND PERFORMANCE REGULATIONS
	 	 	14	 
	11. DILIGENCE
	 	 	15	 
	12. BOOKS, RECORDS AND RIGHT OF AUDIT
	 	 	15	 
	13. ABATEMENT OF INFRINGEMENT
	 	 	16	 
	14. TERM AND TERMINATION
	 	 	17	 
	15. MANAGEMENT COMMITTEE
	 	 	19	 
	16. CONFIDENTIALITY AND PUBLICATIONS
	 	 	19	 
	17. PAYMENTS (GENERALLY)
	 	 	20	 
	18. NOTICES
	 	 	20	 
	19. WARRANTIES
	 	 	21	 
	20. DISCLAIMERS
	 	 	21	 
	21. INDEMNIFICATION
	 	 	22	 
	22. PUBLICITY AND USE OF NAMES
	 	 	22	 
	23. DISPUTE RESOLUTION AND APPLICABLE LAW
	 	 	23	 
	24. GENERAL
	 	 	25	 
	EXHIBIT A — LICENSED VARIETY
	 	 	28	 
	EXHIBIT B — EVALUATION PLAN
	 	 	29	 
	EXHIBIT C — NON-BINDING MARKETING PLAN FOR NF/GA993
	 	 	31	 
	EXHIBIT C — NON-BINDING MARKETING PLAN FOR NF/GA993
	 	 	31	 
	EXHIBIT D — (MODEL) SUBCONTRACTOR EVALUATION AGREEMENT
	 	 	35	 
	EXHIBIT E — COPIES OF UGARF-NOBLE LICENSE AGREEMENTS FOR THE LICENSED VARIETY
	 	 	37	 






	 	 	 

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EVALUATION, PRODUCTION AND LICENSE AGREEMENT




     THIS AGREEMENT is made this 19th day of May, 2006 (“Effective Date”), by and between THE
SAMUEL ROBERTS NOBLE FOUNDATION, INC. (“NOBLE”), an Oklahoma nonprofit corporation, and CERES,
INC., a Delaware corporation (“CERES”).



     WHEREAS, NOBLE and the University of Georgia Research Foundation (“UGARF”) entered into a
MATERIAL TRANSFER, TESTING, and PARENTAL CROSSING AGREEMENT, dated 1 May 2004, that permits NOBLE
to use, breed and improve certain germplasm developed at the University of Georgia, including
NF/GA991, NF/GA992, NF/GA993, NF/GA001 and NF/GA002, and grants NOBLE an option to license the
same;



     WHEREAS, NOBLE and UGARF entered into a TESTING AND EVALUATION AGREEMENT, dated 15 May 2006
(“UGARF TESTING AGREEMENT”), that grants NOBLE an exclusive license to test and evaluate NF/GA991,
NF/GA992, NF/GA001 and NF/GA002 with an exclusive option to obtain an exclusive, world-wide
license, with the right to sublicense, to produce, use, sell and commercially exploit the same;



     WHEREAS, NOBLE and UGARF entered into a VARIETY LICENSE AGREEMENT, dated 15 May 2006 (“UGARF
NF/GA993 LICENSE”), that grants NOBLE an exclusive, world-wide license, with the right to
sublicense, to produce, use, sell and commercially exploit NF/GA993 seed;



     WHEREAS, CERES and NOBLE entered into a MASTER RESEARCH AGREEMENT, concurrently with this
Agreement (“MRA”), that contemplates a long-term research relationship by and between the parties
for the enhancement and improvement of SWITCHGRASS for a biomass crop;



     WHEREAS, NOBLE has the personnel, expertise and ability to develop and to breed new varieties
of SWITCHGRASS for at least the United States and wishes for such varieties to be commercialized;



     WHEREAS, CERES wishes to commercialize SWITCHGRASS varieties;



     WHEREAS, CERES has committed to develop the capability to assume production of and to
commercialize SWITCHGRASS and wishes to receive an exclusive option for an exclusive, world-wide
license to produce, use, sell and commercially exploit SWITCHGRASS developed under this Agreement;



     WHEREAS, CERES and NOBLE recognize that the rights intended to be granted hereunder can be a
strong incentive for CERES to risk money and other resources needed to produce, use, sell and
commercially exploit SWITCHGRASS for wide public enjoyment;



     WHEREAS, NOBLE wishes to grant such option, and when exercised, such license(s), to CERES to
enable commercialization of SWITCHGRASS developed under this Agreement for broad public
dissemination;




	 	 	 

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     NOW THEREFORE, in consideration of the premises and of the mutual covenants and agreements
contained herein and of other good and valuable consideration, the parties have agreed and do
hereby agree as follows:


1. DEFINITIONS.




     1.1 “SWITCHGRASS” shall mean the species Panicum virgatum.



     1.2 “NF/GA001” means the SWITCHGRASS variety GA001 developed by the University of Georgia and
named as such by the University of Georgia and/or UGARF.



     1.3 “NF/GA002” means the SWITCHGRASS variety GA002 developed by the University of Georgia and
named as such by the University of Georgia and/or UGARF.



     1.4 “NF/GA991” means the SWITCHGRASS variety GA991 developed by the University of Georgia and
named as such by the University of Georgia and/or UGARF.



     1.5 “NF/GA992” means the SWITCHGRASS variety GA992 developed by the University of Georgia and
named as such by the University of Georgia and/or UGARF.



     1.6 “NF/GA993” means the SWITCHGRASS variety GA993 developed by the University of Georgia and
named as such by the University of Georgia and/or UGARF.



     1.7 “RELEASE DATE” means the date that the MANAGEMENT COMMITTEE (Paragraph 15) determines that
NF/GA001, NF/GA002, NF/GA991, NF/GA992 or NF/GA993 is ready for release, wherein upon such
decision, such variety will be formally released jointly by NOBLE and UGARF.



     1.8 “LICENSED VARIETY” means one or more of the optioned SWITCHGRASS varieties from the group
of NF/GA001, NF/GA002, NF/GA991, NF/GA992 and NF/GA993, licensed by CERES pursuant to the terms of
this Agreement (i.e., subject to Article II of this Agreement) and added by an amendment to
EXHIBIT A to this Agreement.



     1.9 “LICENSE COMMENCEMENT DATE” means the respective date on which each variety from the group
of NF/GA001, NF/GA002, NF/GA991, NF/GA992 and NF/GA993 is licensed by CERES pursuant to the terms
of this Agreement (i.e., subject to Article II of this Agreement) and added by an amendment to
EXHIBIT A to this Agreement.



     1.10 “LICENSED TERRITORY” means the United States of America and all other countries of the
world.



     1.11 “LICENSED PRODUCTION TERRITORY” means the United States of America and all other
countries of the world.



     1.12 “BREEDER SEED” means seed of a LICENSED VARIETY that (a) is identified by NOBLE as being
of a suitable standard of physical and genetic purity to produce FOUNDATION SEED and (b) resulted
from the final breeding of the LICENSED VARIETY.




	 	 	 

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     1.13 “FOUNDATION SEED” means seed produced from plants grown directly from BREEDER SEED,
cultivated according to certification regulations and that meets the specifications of the official
seed certifying agency of the jurisdiction in which said seed is/was produced.



     1.14 “REGISTERED SEED” means seed produced from plants grown directly from FOUNDATION SEED,
cultivated according to certification regulations and that meets the specifications of the official
seed certifying agency of the jurisdiction in which the seed is/was produced.



     1.15 “CERTIFIED SEED” means seed produced from plants grown directly from FOUNDATION SEED or
REGISTERED SEED, cultivated according to certification regulations and that meets the
specifications of the official seed certifying agency of the jurisdiction in which the seed is/was
produced.



     1.16 “NON-CERTIFIED SEED” means seed produced from plants cultivated according to
certification regulations of the official seed certifying agency of the jurisdiction in which the
seed is/was produced; however, such seed does not meet the specifications of CERTIFIED SEED but may
be sold as LICENSED VARIETY.



     1.17 “COMMERCIAL SEED” means REGISTERED SEED, CERTIFIED SEED, or NON-CERTIFIED SEED, that is
sold for purposes other than seed production.



     1.18 “INTELLECTUAL PROPERTY RIGHTS” means all rights in any plant variety, patent, plant
breeders rights, registration or equivalent intellectual property protection, or any applications
thereof, for the LICENSED VARIETY, which may be filed in the United States of America or other
jurisdictions, with the exception of TRADE MARKS. INTELLECTUAL PROPERTY RIGHTS, when applied for or
granted, will be set forth in EXHIBIT A.



     1.19 “TRADEMARK” means any trademark, trade name or logo owned by CERES and intended for use
with a LICENSED VARIETY; provided however, it is recognized that U.S. regulations prohibit the
registration of any plant variety name as a trademark or trade name.



     1.20 “COMMERCIAL NAME” means the complete, preferred name of a LICENSED VARIETY under which a
specific LICENSED VARIETY will be marketed and sold.



     1.21 “NET SELLING PRICE” means the actual wholesale price for seeds of the LICENSED VARIETY
received by CERES or a SUBLICENSEE for the sale of such seed, excluding seed for further seed
production, less any (a) customary trade, quantity, or cash discounts; (b) amounts repaid or
credited by reason of rejection or return; (c) any sales, use, tariff, customs duties, V.A.T.
and/or other taxes, duties and similar governmental assessments (except taxes based on income); and
(d) outbound transportation, shipping, packing, costs of insurance in transit paid by CERES or a
SUBLICENSEE; subject in all cases to (a) to (d) being separately charged on customer invoices or
credit notes. Where there is no identifiable sale price or when a LICENSED VARIETY is sold to other
than bona fide, arms length customers of CERES or a SUBLICENSEE, CERES or the SUBLICENSEE shall be
deemed to have received the NET SELLING PRICE calculated based only on the final sale of the seed
(wholesale level) to an independent third party, otherwise referred to as net wholesale price
payable by dealers. If no such current price is available, a hypothetical fair market value price
will be determined by the parties jointly in good faith for the purpose of calculating NET SELLING
PRICE.




	 	 	 

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     1.22 “SUBLICENSE” means any sublicense by CERES to any third party, including any AFFILIATED
COMPANY (“SUBLICENSEE”), as authorized by this Agreement, to produce and sell a LICENSED VARIETY
(or LICENSED VARIETIES).



     1.23 “AFFILIATED COMPANY” means any company owned or controlled by, under common control with
or controlling CERES, “control” meaning in this context the direct or indirect ownership of fifty
percent (50%) or more of the voting stock/shares of a company, or the power to nominate at least
half of the directors.



     1.24 “EVALUATION PLAN” means a detailed written plan for evaluation of SWITCHGRASS to assess
performance and geographic range of NF/GA001, NF/GA002, NF/GA991, NF/GA992 and NF/GA993. The
EVALUATION PLAN should further include the performance objectives of the evaluation, including the
creation of standards and production protocol(s) for any BREEDER SEED. The EVALUATION PLAN shall be
attached as EXHIBIT B to this Agreement.



     1.25 “MARKETING PLAN” means a detailed written plan for production, distribution, selling and
promotion of each LICENSED VARIETY prepared by or on behalf of CERES and submitted to NOBLE. A
MARKETING PLAN may be (a) binding, i.e., the performance of CERES (through CERES and/or any
SUBLICENSEE) shall be reasonably compared to forecasts and/or projections therein, or (b)
non-binding, i.e., the performance of CERES (through CERES and/or any SUBLICENSEE) shall not be
compared by forecasts and/or projections therein and such forecasts and/or projections are merely
advisory. Each MARKETING PLAN, binding or non-binding, shall include at least the information
outlined in EXHIBIT C. Actual, adopted MARKETING PLANS shall be attached as further
exhibits to this Agreement as adopted and identified as “binding” or “non-binding” as agreed to by
the parties.



ARTICLE I — VARIETY EVALUATION, DEVELOPMENT AND VARIETY OPTIONS



2. EVALUATION, ASSESSMENT AND DEVELOPMENT.




     2.1 NOBLE shall develop an EVALUATION PLAN with defined, mutually agreed upon variety
performance objectives, which shall be reviewed and adopted by the MANAGEMENT COMMITTEE. Once
adopted, the EVALUATION PLAN shall be made a part of this Agreement and attached as EXHIBIT
B to this Agreement.




     2.1.1 Either party may propose modifications to the EVALUATION PLAN to achieve the
mutual goals of assessing the performance and/or range of NF/GA001, NF/GA002, NF/GA991,
NF/GA992 and NF/GA993.




     2.1.2 The MANAGEMENT COMMITTEE shall review the EVALUATION PLAN at least annually and
modify it as appropriate.



     2.2 The EVALUATION PLAN shall define specific testing and evaluation activities, including
timelines, for the testing, evaluation and development of NF/GA001, NF/GA002, NF/GA991, NF/GA992
and NF/GA993 (a) on NOBLE-owned land and (b) in certain other geographies with not-for-profit
research institutions (“SUBCONTRACTORS”) at locations under the control of such SUBCONTRACTORS.




	 	 	 

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     2.2.1 Each SUBCONTRACTOR shall be subject to and governed by a written agreement
consistent with the agreement form set forth in EXHIBIT D to this Agreement. NOBLE
shall provide CERES a true and correct copy of each SUBCONTRACTOR agreement, and any
modification or termination thereof, within thirty (30) days after execution, modification
or termination




     2.2.2 For approval, each SUBCONTRACTOR shall be named in the EVALUATION PLAN.



     2.3 NOBLE shall use reasonable efforts to execute the EVALUATION PLAN.



     2.4 NOBLE will voluntarily provide to CERES reports and information generated from execution
of the EVALUATION PLAN in accordance with such plan. NOBLE will regularly provide pictures of
SWITCHGRASS plants under evaluation to CERES, wherein the parties will discuss and agree to the
desired imagery, e.g., set-up, content and the like.



     2.5 In addition to the reports and transfer of information per Paragraph 2.4, NOBLE shall
report to the MANAGEMENT COMMITTEE quarterly concerning the progress of variety development. If any
significant event, either beneficial or detrimental, is observed then NOBLE will promptly report
the event to the MANAGEMENT COMMITTEE with recommended action to address the event.



     2.6 Upon the request of CERES, at any time, the parties will discuss the status, results of
the testing and evaluation activities and any relevant observations made; provided however, such
contacts and discussions shall be reasonable in frequency and duration so as not to be disruptive
to the research activities of NOBLE. Upon reasonable notice to NOBLE, CERES will have the right to
visit any location under the control of NOBLE or a SUBCONTRACTOR to review the testing and
evaluation activities. Any visits to SUBCONTRACTOR locations will be made together with NOBLE,
unless otherwise decided by NOBLE. CERES will comply with any reasonable safety and security
measures which may be imposed by NOBLE and/or a SUBCONTRACTOR when visiting any such location.



     2.7 Upon CERES’ request, NOBLE shall deliver to CERES seed, other biological material or
biomass material of NF/GA001, NF/GA002, NF/GA991, NF/GA992 and NF/GA993 used or grown for testing,
evaluation and development pursuant to the terms of this Agreement, and CERES shall reimburse all
reasonable costs for harvesting, treatment and shipping incurred in connection with such delivery
by NOBLE.


3. EVALUATION EXPENSES.




     3.1 NOBLE will pay any and all of NOBLE’s budgeted, direct cost and expense incurred in
furtherance of the specific testing, evaluation and development activities for NF/GA001, NF/GA002,
NF/GA991, NF/GA992 and NF/GA993 required by the EVALUATION PLAN and conducted on NOBLE-owned land.
NOBLE is responsible for providing adequate resources to enable it to satisfy its obligations under
the EVALUATION PLAN.



     3.2 CERES will pay any and all of NOBLE’S direct cost and expense incurred in furtherance of
the specific testing, evaluation and development activities for NF/GA001, NF/GA002,




	 	 	 

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NF/GA991, NF/GA992 and NF/GA993 required by the EVALUATION PLAN, which shall include a budget
approved by the MANAGEMENT COMMITTEE for such activities, and conducted through a SUBCONTRACTOR.
NOBLE will invoice CERES for such costs annually per SUBCONTRACTOR as such expenses are incurred.



4. VARIETY OPTIONS.




     4.1 NOBLE hereby grants to CERES an exclusive option to obtain an exclusive, world-wide
sublicense under its exclusive option and/or license from UGARF, and under any INTELLECTUAL
PROPERTY RIGHTS to NF/GA001, NF/GA002, NF/GA991, NF/GA992 and NF/GA993, to have:




	 	(a)	 	Exclusive access to BREEDER SEED;
	 
	 	(b)	 	The exclusive right to produce all seed of the LICENSED VARIETY in the LICENSED
PRODUCTION TERRITORY, excluding BREEDER SEED; and
	 
	 	(c)	 	The exclusive right to use, sell and commercially exploit the seed of the
LICENSED VARIETY in the LICENSED TERRITORY.





     4.2 The option(s) of Paragraph 4.1 shall be exercisable at any time but not later than twelve
(12) months after the respective RELEASE DATE of the subject variety. To exercise an option, CERES
shall deliver to NOBLE written notice and a preliminary MARKETING PLAN. Such MARKETING PLAN will be
reasonably commensurate with the MARKETING PLAN for prior LICENSED VARIETY and will be subject to
NOBLE’S review and acceptance, which will not be unreasonably withheld or delayed.




     4.2.1 Upon receipt of such written notice from CERES that it wishes to exercise its
option with respect to any or all of NF/GA001, NF/GA002, NF/GA991, NF/GA992 or NF/GA993,
NOBLE shall exercise its option with UGARF and negotiate a license under terms and
conditions which are mutually acceptable to the parties.




     4.2.2 CERES shall have no obligation to take a license to any of the aforementioned
varieties if the terms and conditions, in addition to those terms and conditions set forth
in Articles II and III to this Agreement, are not acceptable to CERES, in its sole
discretion. LICENSED VARIETIES licensed to CERES upon option exercise will be added to
EXHIBIT A to this Agreement through an amendment.




     4.2.3 If CERES declines to exercise an option or take a license to a variety for which
NOBLE has exercised its option for any one of NF/GA001, NF/GA002, NF/GA991, NF/GA992 and
NF/GA993, CERES acknowledges that UGARF shall have the right to directly produce and market
the seed of the subject variety, option and/or license the subject variety to a third party.



     4.3 All parties agree that the development of new varieties will not always result in
varieties that are commercially acceptable. Provided all parties execute their respective
obligations under an adopted EVALUATION PLAN in an appropriate and reasonable manner, no one party
shall be liable




	 	 	 

	CERES-NOBLE EVA, PROD & LIC Agreement

	 	Page 7 of 41





 









 




to the other for any refund or other recompense because no commercially acceptable new variety
is produced.




ARTICLE II — VARIETY LICENSE



5. LICENSE.




     5.1 Subject to exercise of a granted option of Paragraph 4, NOBLE hereby grants CERES:




	 	(a)	 	Exclusive access to BREEDER SEED;
	 
	 	(b)	 	The exclusive right to produce all seed of the LICENSED VARIETY in the LICENSED
PRODUCTION TERRITORY, excluding BREEDER SEED, under related INTELLECTUAL PROPERTY
RIGHTS, if any; and
	 
	 	(c)	 	The exclusive right to use, sell and commercially exploit the seed of the
LICENSED VARIETY in the LICENSED TERRITORY under related INTELLECTUAL PROPERTY RIGHTS,
if any.





     5.2 Notwithstanding Paragraph 5.1, NOBLE shall have an irrevocable, nonexclusive,
nontransferable, royalty-free right to produce, use and evaluate the LICENSED VARIETY for any
research, development, breeding, evaluation, demonstration and/or educational purpose or program
conducted by NOBLE in accordance with the terms of the MRA.



     5.3 Sublicenses. CERES shall have the right to grant SUBLICENSES within the LICENSED
TERRITORY provided that:




	 	(a)	 	Any such SUBLICENSE shall be personal to the SUBLICENSEE and shall not be
assignable unless to an affiliated company of that SUBLICENSEE, defined similarly as in
Paragraph 1.24.
	 
	 	(b)	 	The terms and obligations of any such SUBLICENSE shall be consistent with the
terms and obligations of this Agreement. Notwithstanding, CERES shall remain
responsible for the operations of its SUBLICENSEES relevant to this Agreement as if
such operations were conducted and carried out by CERES, including, but not limited to,
the payment of all fees and royalties due under this Agreement.
	 
	 	(c)	 	CERES further shall deliver to NOBLE (under an obligation of confidentiality) a
written summary of each SUBLICENSE, which shall include the name and address of the
SUBLICENSEE, scope of the SUBLICENSE, exclusive/non-exclusive status, territory,
remuneration, reporting and diligence obligations, if any. This summary shall be
provided within thirty (30) days after execution, modification or termination of the
summarized agreement.
	 
	 	(d)	 	CERES will use commercially reasonable efforts to collect any and all amounts
due to CERES under any SUBLICENSE for the sale of seed of the LICENSED VARIETY.






	 	 	 

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     5.4 CERES shall not sell or supply to any SUBLICENSEE, seed growing contractor or to any other
third party any BREEDER SEED or FOUNDATION SEED for the purpose of seed production without an
agreement obligating the recipient to sell or deliver the resultant seed to CERES, any AFFILIATED
COMPANY, a SUBLICENSEE or authorized distributor or retailers as directed by CERES.



     5.5 Nothing in this Agreement shall be construed as conferring by implication, estoppel, or
otherwise any license or rights under any INTELLECTUAL PROPERTY RIGHTS, whether owned by NOBLE or
licensed to NOBLE, other than the one(s) expressly set forth in this Agreement.



     5.6 Notwithstanding Paragraph 5.4, CERES may supply unlabelled (i.e., without certification
tag) COMMERCIAL SEED to a third party for the limited purposes of evaluating the agronomic
performance of the LICENSED VARIETY. The third party shall be obligated by a written agreement with
CERES that the seed supplied will not be used for further multiplication.


6. INTELLECTUAL PROPERTY RIGHTS.




     6.1 CERES agrees to prepare and file, or have prepared and filed, any and all applications for
plant variety rights or other forms of intellectual property protection for the LICENSED VARIETY in
the United States in the name of UGARF or UGARF and NOBLE and, at CERES’ discretion, plant variety
rights and/or other forms of intellectual property protection in any other jurisdiction.




     6.1.1 UGARF shall have a right to review any such filing made under this paragraph
prior to its submission and be informed of all actions relating to such filings.




     6.1.2 If CERES intends to abandon any plant variety rights, pending or granted in any
jurisdiction, CERES shall first give sufficient written notice to NOBLE to permit NOBLE or
UGARF the opportunity to assume such filing, examination and/or maintenance without
prejudice.




     6.1.3 Any application for plant variety rights shall reflect the COMMERCIAL NAME of the
LICENSED VARIETY (Paragraph 8).



     6.2 CERES and NOBLE will consult with regard to INTELLECTUAL PROPERTY RIGHTS.



     6.3 The obligations of this paragraph shall apply to the United States only and to any other
jurisdictions in which CERES has elected to apply for intellectual property protection. CERES and
NOBLE shall avoid carrying out any act that would prejudice the grant of INTELLECTUAL PROPERTY
RIGHTS. Without limitation, neither party shall make available reproductive material of the
LICENSED VARIETY at a date or in a manner that might jeopardize the right to seek INTELLECTUAL
PROPERTY RIGHTS protection for the LICENSED VARIETY. CERES, whether directly or through any
SUBLICENSEE, shall not sell any seeds of the LICENSED VARIETY until such time as the requirements
for INTELLECTUAL PROPERTY RIGHTS have been established.



     6.4 CERES shall use all reasonable endeavors to ensure in any sales jurisdiction of the
LICENSED TERRITORY in which INTELLECTUAL PROPERTY RIGHTS exist that all bags or containers supplied
by CERES and any SUBLICENSEE containing only seed of such LICENSED




	 	 	 

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	 	Page 9 of 41





 









 



VARIETY are clearly labeled to show that the LICENSED VARIETY is protected by INTELLECTUAL
PROPERTY RIGHTS.



7. LICENSED VARIETY CONSIDERATION.




     7.1 In partial consideration for the rights granted in Article II of this Agreement, CERES
shall be responsible for any and all fees and expenses incurred in filing, examining, certifying
and maintaining any INTELLECTUAL PROPERTY RIGHTS for the LICENSED VARIETY, subject to the
provisions of Paragraph 6.



     7.2 In partial consideration for the rights granted hereunder, CERES agrees to pay to NOBLE,
on behalf of CERES, and any SUBLICENSEE (subject to Paragraph 7.3), for the LICENSED VARIETY
NF/GA993, a royalty of:




	 	(a)	 	[***] of the NET SELLING PRICE for the naked seed weight (exclusive of any
coating materials that may be applied) of all COMMERCIAL SEED of the LICENSED VARIETY,
except that seed subject to Paragraph 7.2(e), sold in the United States in that
calendar year up to and including two million (2,000,000) lbs;
	 
	 	(b)	 	[***] of the NET SELLING PRICE for the naked seed weight (exclusive of any
coating materials that may be applied) of all COMMERCIAL SEED of the LICENSED VARIETY,
except that seed subject to Paragraph 7.2(e), sold in the United States in that
calendar year in excess of two million (2,000,000) lbs and up to three million (3,000,000) lbs;
	 
	 	(c)	 	[***] of the NET SELLING PRICE for the naked seed weight (exclusive of any
coating materials that may be applied) of all COMMERCIAL SEED of the LICENSED VARIETY,
except that seed subject to Paragraph 7.2(e), sold in the United States in that
calendar year in excess of three million (3,000,000) lbs and up to four and a half million (4,500,000) lbs; and
	 
	 	(d)	 	[***] of the NET SELLING PRICE for the naked seed weight (exclusive of any
coating materials that may be applied) of all COMMERCIAL SEED of the LICENSED VARIETY,
except that seed subject to Paragraph 7.2(e), sold in the United States in that
calendar year in excess of four and a half million (4,500,000) lbs.





     7.3 If CERES receives less than the agreed upon royalty (or other remuneration) from a
SUBLICENSEE (excluding any AFFILIATED COMPANY), CERES shall only be responsible to NOBLE for a
pro-rata amount of the royalty due to NOBLE. For clarification, an example will be provided
hereafter that assumes: the SUBLICENSEE NET SELLING PRICE is $1,000, the royalty due NOBLE from
CERES is [***] (Paragraph 7.2(a)) of the SUBLICENSEE NET SELLING PRICE, and the negotiated royalty
due CERES from its SUBLICENSEE is [***] of the SUBLICENSEE NET SELLING PRICE.




	 	(a)	 	If its SUBLICENSEE pays CERES the negotiated royalty, CERES would receive
[***], and CERES would pay NOBLE [***] when due.










	 	 	 

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Confidential Treatment Requested and the
Redacted Material has been separately filed with the Commission







 









 









	 	(b)	 	If its SUBLICENSEE pays CERES 50% of the negotiated royalty, CERES would receive
[***], and CERES would pay NOBLE [***] when due.
	 
	 	(c)	 	If CERES receives no payment from the SUBLICENSEE (e.g., SUBLICENSEE declares
bankruptcy), CERES would not be obligated to pay NOBLE.





     7.4. CERES shall have the right to sell, directly or through any SUBLICENSEE, limited
quantities of seed of the LICENSED VARIETY as “variety not stated” for inventory control and
disposal of seed that does not satisfy the standards of COMMERCIAL SEED. CERES agrees to pay to
NOBLE for sales made by CERES and any SUBLICENSEE a royalty determined in accordance with Paragraph
7.2 for annual seed of the LICENSED VARIETY sold in the United States.




     7.4.1 “Limited quantities” shall not exceed 10% of the annual production of COMMERCIAL
SEED in each year.




     7.4.2 “Variety not stated” seed cannot be associated with, directly or indirectly, any
COMMERCIAL NAME or include any other designations that identify such material as the
LICENSED VARIETY.



     7.5 Notwithstanding any other provision contained in this Agreement and irrespective of the
level of sales of seeds of the LICENSED VARIETY under this Agreement, CERES shall pay to NOBLE for
each calendar year of the term hereof a minimum royalty with respect to the designated LICENSED
VARIETY only, according to the following schedule. Payment of this minimum royalty shall be due on
or before March 31 of the succeeding year for which the payment is due.



Minimum Royalties for NF/GA993 ONLY:




	 	 	 
	Calendar Year	 	Minimum Royalty (USD)
	2009
	 	[***]
	2010
	 	[***]
	2011
	 	[***]
	2012
	 	[***]
	2013
	 	[***]
	2014
	 	[***]
	2015
	 	[***]
	2016
	 	$20,000
	2017
	 	$20,000
	2018
	 	$20,000






     7.6 The minimum royalty of Paragraph 7.5 shall not carry forward to subsequent calendar
years as royalty credit against future sales. For clarification, the following rules shall guide
the relationship between royalties and minimum royalties:









	 	 	 

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	 	Page 11 of 41






	 	 	 

	
Confidential Treatment Requested and the Redacted Material has been separately filed with the Commission







 









 






	 	(a)	 	if the royalty payments due under Paragraph 7.2 are less than the minimum
royalty of Paragraph 7.5 in a given year, then only the minimum royalty of Paragraph
7.5 shall be payable;
	 
	 	(b)	 	if the royalty payments due under Paragraph 7.2 exceed the minimum royalty of
Paragraph 7.5 in a given year, then the minimum annual royalty shall not be payable;
	 
	 	(c)	 	should there be a failure in NOBLE’S provision of the prescribed volumes of
BREEDER SEED to CERES (or its designee), then the minimum royalty will be paid pro-rata
to the extent of the BREEDER SEED actually delivered as compared to what should have
been delivered;
	 
	 	(d)	 	should there be a failure in production of seed of the LICENSED VARIETY where
CERES can evidence that sufficient acreage was established to produce adequate seed for
payment of the minimum royalty of Paragraph 7.5 and production of seed failed due to
circumstances beyond the control of CERES or CERES’ contract grower(s), then the
minimum royalty will be paid pro-rata to the extent of the failure of seed production;
and
	 
	 	(e)	 	NOBLE recognizes that there are many uncertain factors in the production and
potential use of the LICENSED VARIETY and agrees that the minimum royalties specified
in Paragraph 7.5 may, at the request of CERES, be readdressed by the parties after the
2010 calendar year.





     7.7 CERES shall be responsible for the collection and payment of royalties due to NOBLE for
all seed sold in the LICENSED TERRITORY.



     7.8 CERES shall, in addition to any payments due under Paragraphs 7.1 or 7.2, pay all goods
and service taxes (or other taxes) due on its commercial activity. Where any royalty payments are
subject to a withholding tax then:




	 	(a)	 	where the tax is reclaimable by CERES or any AFFILIATED COMPANY, then CERES
shall make the royalty payment without deduction; and
	 
	 	(b)	 	where the tax is non reclaimable by CERES or any AFFILIATED COMPANY, then CERES
shall pay the net royalty and shall provide to NOBLE proper certificates for such
withholding tax.





     7.9 All sums payable by CERES to NOBLE under this Agreement shall be payable in United States
dollars. Royalties shall be payable by March 31 of each year with respect to the NET SELLING PRICE
received by CERES and any SUBLICENSEE in the preceding calendar year. Payments shall be made by
check to the following address:


Vice President, General Counsel

The Samuel Roberts Noble Foundation, Inc.

2510 Sam Noble Parkway

Ardmore, Oklahoma 73401





	 	 	 

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	 	Page 12 of 41





 









 







Such payments shall be accompanied by a written report setting forth the production, sales by CERES
(and each SUBLICENSEE) of seed during the calendar year, permitted exclusions, NET SELLING PRICE,
the royalties due, and all uncollected amounts due CERES from all SUBLICENSEES. If no royalties are
due, CERES also shall so report.




     7.10 If LICENSED VARIETIES are commercialized in jurisdictions outside the United States or
CERES exercises its option for any variety of the group of NF/GA001, NF/GA002, NF/GA991 and
NF/GA992, the parties will jointly determine in good faith the applicable royalty rates and minimum
annual royalties (if any). Remuneration for each LICENSED VARIETY in addition to NF/GA993, if any,
in the United States will be reasonably commensurate with the remuneration for NF/GA993.


8. DENOMINATIONS, VARIETY NAMES, TRADE MARKS AND BRAND INTEGRITY.




     8.1 The parties acknowledge that denominations for the subject varieties are established as:
NF/GA001, NF/GA002, NF/GA991, NF/GA992 and NF/GA993.



     8.2 CERES shall use the denomination of the LICENSED VARIETY to identify that variety and
shall not associate any TRADEMARK or any tradename or similar indication with the denomination.



     8.3 CERES will determine a COMMERCIAL NAME for the LICENSED VARIETY under which the seed of
the LICENSED VARIETY will be marketed and sold.




     8.3.1 CERES will obtain the prior written approval of NOBLE prior to adopting and/or
submitting any (final or proposed) COMMERCIAL NAME for the LICENSED VARIETY for registration
and/or listing, wherein such approval will not be unreasonably withheld or delayed. The
parties acknowledge that NOBLE will notify UGARF of such name(s), in confidence, prior to
adoption or (registration) submission.



     8.4 CERES shall use all reasonable endeavors to ensure that all references made by CERES or
any SUBLICENSEE to the LICENSED VARIETY shall use the COMMERCIAL NAME for the LICENSED VARIETY, as
specified in applicable INTELLECTUAL PROPERTY RIGHTS, and shall use its best endeavors to ensure
that all references by other parties shall use the same COMMERCIAL NAME and shall use this name in
a manner which distinguishes it from any TRADEMARK. CERES, any AFFILIATED COMPANY or any
SUBLICENSEE shall not falsely represent that any seeds of another variety being sold or offered for
sale are seeds of the LICENSED VARIETY.



     8.5 CERES may determine TRADEMARK(s) associated or intended for use with a LICENSED VARIETY.
CERES shall be the owner of all rights in any such TRADE MARK, chosen, applied to, used or
registered in association with the LICENSED VARIETY.


9. PRODUCTION ACTIVITIES BY NOBLE.




     9.1 NOBLE shall at all times maintain adequate supplies of BREEDER SEED for CERES.




     9.1.1 The EVALUATION PLAN shall establish all volumes, delivery dates and any delivery
instructions for BREEDER SEED.





	 	 	 

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     9.1.2 NOBLE shall at all times maintain adequate supplies of germplasm for the
production of BREEDER SEED.



     9.2 NOBLE will take all necessary measures to ensure that all seed produced pursuant to this
Agreement by NOBLE is handled and stored in such manner as to prevent contamination, theft,
deterioration or unintentional destruction.


10. QUALITY AND PERFORMANCE REGULATIONS.




     10.1 Subject to NOBLE’S obligations under Paragraph 9, CERES shall be responsible for
multiplying seed of the LICENSED VARIETY within the LICENSED PRODUCTION TERRITORY and using
commercially reasonable efforts to produce, market and sell the resultant seed so as to ensure that
COMMERCIAL SEED of the LICENSED VARIETY is commercially available in the United States in
reasonable quantities and at a reasonable price no later than (a) four (4) years for the first
variety licensed under this Agreement and (b) three (3) years for any variety licensed under this
Agreement thereafter from the respective LICENSE COMMENCEMENT DATE of each LICENSED VARIETY.
Availability in foreign markets, if any, of each LICENSED VARIETY shall be determined by CERES no
later than three (3) years after U.S. commercialization of such LICENSED VARIETY.



     10.2 CERES shall meet its own cost of promotion, overseas trials and listing of the LICENSED
VARIETY in the LICENSED TERRITORY.



     10.3 CERES shall use reasonable endeavors to ensure that all seed of the LICENSED VARIETY
offered for sale by CERES, any AFFILIATED COMPANY or SUBLICENSEE shall meet the normally accepted
standards of the seed trade or certifying authorities relating to seed quality within the relevant
jurisdiction of the LICENSED TERRITORY.



     10.4 Where CERES wishes to dispose of seeds of the LICENSED VARIETY without identity, CERES
shall obtain prior written approval by NOBLE before disposing of any seed of the LICENSED VARIETY,
such approval not to be unreasonably withheld. In the event that no response is received within
five (5) working days of the request for approval being made then it shall be deemed that consent
has been granted.



     10.5 CERES shall advise NOBLE of any downgrading of FOUNDATION SEED of the LICENSED VARIETY.



     10.6 When performing activities pursuant to this Agreement, each party shall be responsible
for complying with all applicable laws, rules and regulations and obtaining any and all permits or
authorizations or proceed to any notifications which may be required by such laws, rules and
regulations.




     10.6.1 CERES shall at all times comply with and abide by any governing act, rules,
regulations, by-laws, plant variety rights legislation or the like and/or requirements
relating to the quality and sale of seeds of the LICENSED VARIETY in the relevant
jurisdictions of the LICENSED TERRITORY and shall use all reasonable commercial endeavors to
obtain any necessary regulatory approvals for the LICENSED VARIETY.





	 	 	 

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11. DILIGENCE.




     11.1 CERES will use commercially reasonable efforts to actively market the LICENSED VARIETY in
the LICENSED TERRITORY, wherein such efforts shall be appropriately reflected in the MARKETING
PLAN.



     11.2 CERES shall submit to NOBLE with its annual report under Paragraph 7.7 a report of
progress made by CERES (and any AFFILIATED COMPANY), directly or through its SUBLICENSEES, in
achieving marketing goals of previous years and meeting the objectives of the MARKETING PLAN
submitted and agreed upon for the LICENSED TERRITORY. The MANAGEMENT COMMITTEE will review the
report and may require CERES, from time to time, to amend the MARKETING PLAN.



     11.3 Minimum diligence requirements for each LICENSED VARIETY, if any, shall be satisfied by
the payment of the annual minimum royalty amounts for the prescribed years for only the specific
LICENSED VARIETY set forth in Paragraph 7.5.




     11.3.1 If CERES fails to pay to NOBLE the prescribed annual minimum royalty, NOBLE
shall have the right to convert the license granted to CERES with respect to such LICENSED
VARIETY to non-exclusive, by written notice to CERES, and NOBLE shall then have the ability
to license, on a non-exclusive basis, the right to use, sell and commercially exploit the
seed of the LICENSED VARIETY in the LICENSED TERRITORY under related INTELLECTUAL PROPERTY
RIGHTS, if any, to any third party.


12. BOOKS, RECORDS AND RIGHT OF AUDIT.




     12.1 CERES shall keep and shall cause any AFFILIATED COMPANY and any SUBLICENSEE to keep
accurate records of all production and sales of seeds of the LICENSED VARIETY in each country of
the LICENSED TERRITORY where such sales are made. These records should include, at least, the
number of acres of LICENSED VARIETY seed under production, the physical location of each LICENSED
VARIETY production field owned or controlled by CERES, any AFFILIATED COMPANY or any SUBLICENSEE,
the total amount of LICENSED VARIETY seed produced, the total amount of LICENSED VARIETY seed sold,
including specifically the amount of COMMERCIAL SEED sold and the amount of seed sold and/or
disposed of without identity (under Paragraph 10.4 and subject to royalties under Paragraph 7.2(e))
and all invoices or shipping documents relating to such sales.



     12.2 CERES shall allow an independent auditor, reasonably acceptable to CERES, appointed by
and paid for by NOBLE to inspect the records of CERES and any AFFILIATED COMPANY pertaining to the
LICENSED VARIETY for the exclusive purpose of verifying the accuracy of the reports provided. Any
such audit shall occur no more frequently than annually. Any such inspection shall occur during
normal business hours and after NOBLE has provided written notice at least ten business days prior
to the date of the intended inspection. NOBLE agrees that it and its representatives will hold the
information obtained from the inspection in confidence, and not use it for any purpose other than
verification of the royalties required to be paid hereunder.




	 	 	 

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ARTICLE III — GENERAL PROVISIONS



13. ABATEMENT OF INFRINGEMENT.




     13.1 Each party shall notify the other of any suspected infringement of any INTELLECTUAL
PROPERTY RIGHTS covering the optioned varieties of the group of NF/GA001, NF/GA002, NF/GA991,
NF/GA992 and NF/GA993 and any LICENSED VARIETY therefrom. During the term of this Agreement, CERES
and NOBLE shall have right, but shall not be otherwise required, to bring suit to abate such
infringement.




     13.1.1 CERES shall have the first option to bring suit alone for infringement of the
LICENSED VARIETY. If elected, in writing, CERES shall be responsible for taking those
actions necessary to enforce the parties’ rights, wherein the expenses and cost of any such
action shall be CERES’. CERES and NOBLE will consult with each other upon a course of action
and enforcement strategy. CERES will be responsible for the conduct of any such enforcement
action, and NOBLE will reasonably cooperate with CERES to effect the enforcement action, and
if appropriate, determine a settlement position. CERES shall be responsible for retaining
counsel and shall promptly notify NOBLE following retention of counsel, and NOBLE agrees to
be represented by such counsel as may be required for any enforcement action or settlement.
For purposes of settlement, CERES shall be the contact with the parties’ counsel as well as
the opposing party(ies) and shall have the right to enter into settlements. CERES shall keep
NOBLE advised as to all developments with respect to the enforcement action and settlement
discussions, which includes supplying to NOBLE copies of all papers received and filed in
sufficient time for NOBLE to comment thereon. NOBLE may attend any and all meetings with the
parties’ counsel and the opposing side for settlement purposes. NOBLE agrees to voluntarily
join in any action brought by CERES as a party plaintiff/defendant, if necessary, at the
expense of CERES. If necessary, NOBLE agrees to enter into a joint defense agreement. Any
damages received by CERES as a result of an enforcement action, after deduction of all
enforcement related costs incurred by CERES, shall be considered as NET SELLING PRICE for
the purpose of royalty payments to NOBLE; provided however that any award that exceeds
compensation for loss of revenue, costs and expenses incurred by CERES (e.g. punitive
damages), after deduction of all enforcement related costs incurred by CERES, will be shared
equally by the parties.




     13.1.2 NOBLE shall have the first option to bring suit alone for infringement of any
optioned varieties of the group of NF/GA001, NF/GA002, NF/GA991, NF/GA992 and NF/GA993 that
is yet to be licensed by CERES pursuant to the terms of this Agreement. If elected, NOBLE
shall solely be liable for all litigation costs.




     13.1.3 In the absence of CERES’ and/or NOBLE’S participation in any such action,
whether individually or jointly, UGARF reserves the right to bring such suit. In such
instance, UGARF shall bear the entire cost of such litigation, including defending any
counterclaims, and shall be entitled to retain the entire amount of any recovery of
settlement.




     13.1.4 Should either party bring suit under the provisions of this Paragraph 13, and
thereafter elects to abandon such action, then the party bringing suit shall give timely
notice to the other party who may, if it so desires, or UGARF may, if it so desires,
maintain the action.




	 	 	 

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Unless the parties agree otherwise at the time of withdrawal, the withdrawing party
shall have no further obligation for expenses for the subject action and shall not benefit
from any subsequent settlement or other financial benefit received as a result of the
subject action.


14. TERM AND TERMINATION.




     14.1 Subject to any other rights of termination under this paragraph, this Agreement shall
have a term equal to the longer of:




	 	(a)	 	on a jurisdiction-by-jurisdiction basis and variety-by-variety basis, fifteen
(15) years from the date of the first sale of a LICENSED VARIETY; or
	 
	 	(b)	 	on a jurisdiction-by-jurisdiction basis and variety-by-variety basis, the term
of the INTELLECTUAL PROPERTY RIGHTS in the respective jurisdiction covering the
LICENSED VARIETY.




Notwithstanding the foregoing, the parties may by mutual agreement, in writing, extend the term of
this Agreement by additional five (5) year periods.




     14.2 Each party shall have the right to terminate this Agreement unilaterally by giving
written notice of termination to the other party if such other party fails to satisfy its material
obligations, which shall include but are not limited to, making required reports and making
required payments, under this Agreement, and such party subsequently fails to cure such failure(s)
within (a) thirty (30) days for failures to remit payment for amounts due under this Agreement and
(b) ninety (90) days for all other obligations after receipt of written notice from the
non-breaching party specifying such failure.



     14.3 NOBLE will have the right to terminate this Agreement unilaterally with thirty (30) days’
written notice to CERES, (a) if CERES seeks protection under any bankruptcy, insolvency,
receivership, trust, deed, creditors arrangement or comparable proceeding or if any such proceeding
is instituted against CERES (and not dismissed within one hundred twenty (120) days); (b) in case
of dissolution or winding up of CERES (excluding any situation where all or substantially all of
CERES’ assets, stock or business to which this Agreement relates are acquired by a third party
(whether by sale, acquisition, merger, operation of law or otherwise)); or (c) with one hundred
twenty (120) days’ written notice to CERES, if the institutional mission, purpose or structure of
NOBLE would change substantially.



     14.4 CERES may, after consultation with NOBLE, terminate this Agreement by written notice if
in the commercially reasonable opinion of CERES the markets for the LICENSED VARIETY change or do
not develop as anticipated, so as to render the production, promotion and sale of the LICENSED
VARIETY uneconomical or impractical or if CERES decides to cease substantially all activities in
SWITCHGRASS; provided however, CERES shall terminate its promotion, marketing and sales of the
LICENSED VARIETY, whether directly or through an AFFILIATED COMPANY and/or SUBLICENSEES.



     14.5 The parties may terminate this Agreement at any time by mutual, written agreement.




	 	 	 

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     14.6 Termination of this Agreement for any reason will not relieve either party of any
obligation or liability accrued under this Agreement before termination or rescind any payments
made or due before termination. Paragraphs 12, 14, 16, 19, 20, 21, 22, 23 and 24 will survive any
termination of this Agreement.



     14.7 Upon termination by CERES pursuant to Paragraph 14.2 or by NOBLE pursuant to Paragraph
14.3(c), NOBLE will promptly deliver to CERES any and all BREEDER SEED in its possession and
promptly upon harvesting, any of the aforementioned seed from plants which are in the field on the
termination date, and NOBLE will grant CERES access to facilities and fields under its control for
the purpose of collecting germplasm of each LICENSED VARIETY other than seed. Moreover, NOBLE will
provide for the orderly transfer of CERES’ rights under this Agreement directly to UGARF; provided
however, CERES seeks to assume such relationship directly. NOBLE represents that each license
agreement between UGARF and NOBLE under which NOBLE grants options to CERES in this Agreement
contains, or will contain when executed, a provision that if such agreement is terminated UGARF
will directly grant a license to CERES under the same terms and conditions as agreed between NOBLE
and CERES subject to CERES acceptance of such license.



     14.8 If NOBLE terminates this Agreement under the provisions of Paragraph 14.3(a) or 14.3(b)
prior to the RELEASE DATE of a variety from the group of NF/GA001, NF/GA002, NF/GA991, NF/GA992 and
NF/GA993, NOBLE shall be relieved of its obligation to offer an option under Paragraph 4.1 and such
variety (or varieties) will be treated as if CERES declined to exercise its option.



     14.9 Immediately upon termination of this Agreement, except termination by CERES on the basis
of Paragraph 14.2 or termination by NOBLE on the basis of Paragraph 14.3(c):




	 	(a)	 	CERES shall either destroy or return all BREEDER SEED and all FOUNDATION SEED
to NOBLE. No compensation shall be due for any seed destroyed or returned pursuant to
this paragraph.
	 
	 	(b)	 	CERES may continue to sell LICENSED VARIETY seed in the ordinary course of
business for a period of one (1) year after the termination date; provided however, the
royalties on such sales are paid in the amounts and in the manner provided in this
Agreement. Following such one (1) year period, all remaining inventory of LICENSED
VARIETY seed must be destroyed, and CERES shall notify NOBLE of the same.





     14.10 Upon termination of this Agreement, no existing sublicenses granted by CERES shall be
affected by such termination, and all such sublicenses shall remain in effect according to their
terms, pursuant to the election of each SUBLICENSEE. Except in case of termination by CERES
pursuant to Paragraph 14.2 or by NOBLE pursuant to Paragraph 14.3(c) and the establishment of a
direct relationship by and between CERES and UGARF, NOBLE shall continue to be entitled to payments
under such sublicenses pursuant to this Agreement, and such SUBLICENSEES, pursuant to the election
of each SUBLICENSEE, shall be become a sublicensee of NOBLE.



     14.11 Termination of this Agreement shall not prevent:




	 	(a)	 	NOBLE from recovering any royalties due as of termination (or thereafter,
pursuant to Paragraph 14.9(b)); and






	 	 	 

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	 	(b)	 	either party from obtaining a remedy for any breach of the provisions of this
Agreement.




15. MANAGEMENT COMMITTEE.




     15.1 The parties will establish a MANAGEMENT COMMITTEE to supervise the implementation,
execution and progress of this Agreement, including the establishment of appropriate RELEASE DATES.



     15.2 The MANAGEMENT COMMITTEE will consist of four (4) members, two (2) to be appointed by
each party and will meet at least once every six months, in person or by telephone, on dates and at
locations to be mutually agreed. The representatives of each party may invite other employees of
that party to the meeting on an as-needed basis, subject to prior notification of the other party.



     15.3 Decisions of the MANAGEMENT COMMITTEE shall be made by unanimous agreement and recorded
in a manner prescribed by the MANAGEMENT COMMITTEE as a true record of the decisions. If the
MANAGEMENT COMMITTEE cannot come to a unanimous agreement on any matter then the status quo shall
apply.


16. CONFIDENTIALITY AND PUBLICATIONS.




     16.1 As used in this Agreement, the term “Confidential Information” shall mean (a) all
non-public-information received by one party from the other in the framework of this Agreement and
(b) any and all information, results (including materials) and observations generated by NOBLE in
the performance of this Agreement. Confidential Information can include, but is not limited to,
information concerning the disclosing party’s operations, research, processes, techniques, data,
and non-public materials.



     16.2 From receipt to five (5) years after the disclosure of the relevant CONFIDENTIAL
INFORMATION, the receiving party shall not use, except (a) for the benefit of the parties’
collaboration, or (b) such use as is expressly allowed by this Agreement, and/or disclose any
Confidential Information to any third party without the prior written consent of the disclosing
party if the Confidential Information was received from the other party, or the prior written
consent of both parties if the Confidential Information was generated during the performance of
this Agreement, excepting that information described in Paragraph 16.3. Confidential Information
shall only be made accessible to each party’s employees or students on a need-to-know basis.
Manuscripts and papers published in scientific journals and presentations made at public meetings
that include Confidential Information are exempt from the conditions of this paragraph, provided
the parties followed the procedure set forth in Paragraph 16.4.



     16.3 The receiving party shall have no obligations of confidentiality for information that:
can be established through written evidence to be in the possession of the receiving party prior to
the disclosure by the disclosing party; is or becomes public knowledge through no fault of the
disclosing party; is acquired from others not under an obligation of confidentiality to the
disclosing party. In addition, CERES shall have the right to proceed to disclosures of Confidential
Information (a) as required to file for INTELLECTUAL PROPERTY RIGHTS or registration, (b) as
required to exercise its commercialization rights granted in or on the basis of this Agreement and
for related marketing





	 	 	 

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activities, (c) as required by laws, rules or regulation or court ordering such as, without
limitation, SEC regulations, or (d) in CERES’ reasonable judgment, to (potential) investors and
business partners.




     16.4 The parties agree that the researchers involved in the development of SWITCHGRASS
described herein are permitted to present methods and/or results of the development activities at
symposia and professional meetings and to publish the same in journals or the like, subject to the
obligations of this paragraph. If either party wishes to present results of the evaluation
activities set forth in this Agreement at symposia and professional meetings or publish the same in
journals or the like, the disclosing party must furnish copies of any proposed publication,
presentation, or disclosure (collectively “Disclosure”) to the other party at least thirty (30)
days in advance of the specific submission, presentation, or other disclosure. If the
non-disclosing party raises an objection within such thirty (30) day period with respect to any
part of the proposed Disclosure, the parties will diligently cooperate to modify the objected
matter. The non-disclosing party’s consent will be required for such Disclosure, but such consent
will not unreasonably be withheld. If no objection is raised within the aforementioned thirty (30)
day period, the disclosing party may proceed with the Disclosure.



     16.5 Each party shall be responsible for requiring any and all of its employees or students
who will perform activities under this Agreement to be bound by a written agreement(s) that commits
their inventions, discoveries, and other intellectual property to the party-employer and requires
confidential treatment of party and third-party confidential information. Each party shall further
notify each such employee, in writing, of their obligations and responsibilities under the terms of
this Agreement, including but not limited to the provisions of this Article.


17. PAYMENTS (GENERALLY).




     17.1 Payments required under this Agreement shall, if overdue, bear interest at a per annum
rate of one percent (1%) above the prime interest rate in effect on the due date, as reported in
the Wall Street Journal, from the date the payment is due until it is received.



     17.2 All amounts other than royalties due by CERES to NOBLE pursuant to this Agreement shall
be paid within thirty (30) days after the invoice date.


18. NOTICES.




     Any notices required to be given or which shall be given under this Agreement shall be in
writing and delivered by first class mail or overnight (trackable) courier addressed to the Parties
as follows:


Vice President of Product Development

Ceres, Inc.

1535 Ranch Conejo Blvd.

Thousand Oaks, California 91320



Vice President, General Counsel

The Samuel Roberts Noble Foundation, Inc.

2510 Sam Noble Parkway

Ardmore, Oklahoma 73401






	 	 	 

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	 	Page 20 of 41







 









 







In the event that notices under this Agreement are sent by certified or registered mail (or
alternatively, by overnight courier) by one party to the other party at its above address, they
shall be deemed to have been given or made as of the date so mailed.



19. WARRANTIES.




     NOBLE represents and warrants that it has the right, under its agreement(s) with UGARF, to
grant rights to CERES as set forth in this Agreement. Copies of relevant agreements by and between
UGARF and NOBLE that concern or relate, directly or indirectly, to the rights transferred to NOBLE
to test, evaluate, produce, use, sell and/or commercially exploit SWITCHGRASS varieties NF/GA001,
NF/GA002, NF/GA991, NF/GA992 and NF/GA993 are included in EXHIBIT E. NOBLE will notify
CERES within ten (10) days, in writing, of any modification to, or notice of termination or
termination of its agreement(s) with UGARF.


20. DISCLAIMERS.




     20.1 EXCEPT AS SET FORTH IN PARAGRAPH 19, THE PARTIES ACKNOWLEDGE AND AGREE THAT NEITHER PARTY
HAS MADE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO,
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.



     20.2 IN NO EVENT SHALL EITHER PARTY BE HELD RESPONSIBLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL
OR CONSEQUENTIAL DAMAGES OR LOSS OF PROFIT ARISING OUT OF THE USE OF ANY INTELLECTUAL PROPERTY
RIGHTS COVERED BY THIS AGREEMENT, OR THE IMPLEMENTATION OF THIS AGREEMENT, EVEN IF SUCH PARTY IS
ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.



     20.3 NOBLE shall not be liable under any circumstances, whether in contract, in tort, under
any warranty, in negligence or otherwise, for any incidental, indirect, special or consequential
damages resulting from the exercise of CERES’ rights under the option and/or license granted
pursuant to this Agreement or from the production, sale, storage, use or attempted use of the
LICENSED VARIETY, including, but not limited to, damage to real or personal property, including
land, livestock, crops, plants, seed or feed crop.



     20.4 Nothing in this Agreement shall be construed as:




	 	(a)	 	a warranty or representation by either party as to the validity
or scope of any INTELLECTUAL PROPERTY RIGHTS, patent rights or plant variety
rights;
	 
	 	(b)	 	a warranty or representation by either party that anything made,
used, sold or otherwise disposed of pursuant to any license granted under this
Agreement is or will be free from infringement of patents of third parties;






	 	 	 

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	 	Page 21 of 41





 









 












	 	(c)	 	any obligations by either party to bring or prosecute actions or
suits against third parties for patent infringement; and
	 
	 	(d)	 	a grant by implication, estoppel, or otherwise of any licenses
under any intellectual property rights of NOBLE or other persons other than as
provided in Paragraph 5.1 hereof.




21. INDEMNIFICATION.




     Excluding those acts directly attributable to the negligence or willful misconduct of NOBLE,
CERES agrees to indemnify, hold harmless and defend NOBLE and UGARF, its trustees, officers,
employees and agents and the breeders (as named in the INTELLECTUAL PROPERTY RIGHTS, if any)
against any and all liability and/or damages with respect to any claims, suits, demands, judgments
or causes arising out of (a) the production, development, storage, sale or any other use of the
LICENSED VARIETY seed and/or exercise of rights granted hereunder by CERES, its SUBLICENSEES,
distributors, agents, representatives or AFFILIATED COMPANIES; (b) the use by end-users and other
third parties of LICENSED VARIETY seed; and/or (c) any representation, warranty or statement by
CERES, its SUBLICENSEES, distributors, agents, representatives or AFFILIATED COMPANIES, concerning
NOBLE, UGARF, LICENSED VARIETY seed or any INTELLECTUAL PROPERTY RIGHTS. In the event any such
claims, demands or actions are made, CERES shall defend NOBLE and/or UGARF at CERES’ sole expense
by counsel selected by CERES and reasonably acceptable to NOBLE. NOBLE shall promptly notify CERES,
in writing, of any such claims, suits or demands upon discovery and shall cooperate with CERES in
the defense, provided that CERES shall have the right to lead the defense including entering into
any settlement. CERES will keep NOBLE informed about the conduct of the defense and consult NOBLE
regarding any settlement proposals.


22. PUBLICITY AND USE OF NAMES.




     22.1 Neither party shall publicize or disclose the terms of this Agreement without the prior
written approval of the other party, subject to the same exceptions as set forth in Paragraph 16.3,
last sentence, (a) through (d).



     22.2 Neither party shall use the names, trademarks, design marks or any markings of UGARF, the
Board of Regents or UGA in any publicity, advertising or news release without the prior written
approval of an authorized representative of UGARF.



     22.3 The parties intend to issue joint press releases regarding this collaboration. Any such
press release and any press release by either party will be subject to the prior written approval
of both parties; provided however, that (a) CERES shall have the right to otherwise disclose
information as may be required in CERES’ judgment to comply with SEC regulations or other laws,
rules or regulations governing disclosure of information and (b) NOBLE shall have the right to
otherwise disclose information as may be required in NOBLE’S judgment to comply with IRS or state
regulations or other laws, rules or regulations governing disclosure of information.
Notwithstanding the unilateral disclosure rights provided for in this paragraph, the disclosing
party shall provide the other party a copy of any such unilateral disclosure preferably prior to
its release.




	 	 	 

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     22.4 CERES, any AFFILIATED COMPANY and any SUBLICENSEE may make known in promotional materials
and technical literature that the LICENSED VARIETY was evaluated and developed for
commercialization at NOBLE and seed is produced, marketed, and sold under a license from NOBLE;
provided, however, that such use shall not state or otherwise imply that NOBLE has any relationship
with CERES outside its publicized relationships (e.g., licensor-licensee, etc.). NOBLE shall have
the right to review and must pre-approve, in writing, any and all such promotional materials and
technical literature that references NOBLE or its employees prior to its public release.



     22.5 CERES, any AFFILIATED COMPANY and any SUBLICENSEE shall include on (or affix to) the seed
packaging (e.g., bag or other container) and promotional materials the NOBLE mark set forth in
EXHIBIT F to this Agreement in accordance with the terms and conditions set forth therein.
NOBLE shall have the right to review and must pre-approve, in writing, any and all materials,
including seed packaging, that includes or is intended to include the mark of EXHIBIT F.


23. DISPUTE RESOLUTION AND APPLICABLE LAW.



All disputes, differences or questions arising out of or in connection with this Agreement or its
EXHIBITS, or related to the alleged breach, termination, validity, interpretation or violation
thereof, shall be submitted to the MANAGEMENT COMMITTEE for resolution, which shall convene,
whether in person or otherwise, to resolve such dispute in a timely manner. Either party may
initiate a resolution procedure by providing written notice (“Dispute Notice”) to the other party,
and any such Dispute Notice must set forth the subject matter of the dispute, difference or
question. If after sixty (60) days the dispute remains unresolved, the presidents of CERES and
NOBLE shall seek to resolve the dispute through negotiation or mediation. If negotiation is
elected, the parties agree that at least eight (8) cumulative hours of negotiations between the
presidents will be undertaken. If mediation is elected, the presidents will meet at a neutral site
for mediation. Unless agreed to otherwise, the neutral site shall be Denver, Colorado. The
mediation shall be conducted in accordance with the then existing Commercial Mediation Rules of the
American Arbitration Association (AAA). The mediator shall be selected by mutual agreement of the
parties. If the parties cannot agree on a mediator, AAA shall designate a mediator at the request
of either party. Any mediator so designated must be acceptable to both parties. Fees for the
mediation will be shared equally, and the parties will responsible for their respective expenses.
Settlement reached in mediation or negotiation will not be binding until the parties have signed a
written settlement agreement.



Any dispute, controversy, or claim arising out of or in connection with this Agreement or its
EXHIBITS, or related to the alleged breach, termination, validity, interpretation or violation
thereof, not settled by negotiation or mediation in accordance with the terms hereof, shall be
finally settled and determined by arbitration administered by the AAA under its then current
Commercial Arbitration Rules and Mediation Procedures (including Procedures for Large, Complex
Commercial Disputes) (the “Rules”). The written reasoned award of the arbitrators shall be final
and binding upon the parties, and judgment on or enforcement of the award so rendered may be
sought, had or entered in any court having jurisdiction.





	 	(a)	 	Initiation of Arbitration. Any party may initiate arbitration by filing
a written request for arbitration with the AAA. A copy of the request shall be
furnished to all other parties in accordance with the provisions of the Rules and the
provisions in the agreement between the parties concerning notices. For all purposes
the “commencement of the






	 	 	 

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	 	 	 	arbitration” shall be deemed to be the date on which any party issues a written
demand for arbitration in accordance with the requirements of Article 18.






	 	(b)	 	Appointment of Arbitrators. Each party shall appoint an arbitrator,
and the two arbitrators so appointed shall appoint the third arbitrator. The party
initiating the arbitration shall appoint its arbitrator at the commencement of the
arbitration. The other party shall appoint its arbitrator within thirty (30) days of
the commencement of the arbitration. If the arbitrators appointed by the parties fail
to appoint the third arbitrator within sixty (60) days of the commencement of the
arbitration, the AAA shall appoint the third arbitrator following consultation with the
parties.
	 
	 	(c)	 	Qualifications of Arbitrators. Each arbitrator so appointed shall have
a reputation as being experienced in the legal and technical matters related to the
dispute, shall be required to disclose, among other disclosures, any prior involvement
with the legal and technical matters related to the dispute and any involvement with a
competitor of any party, and shall not be presently nor in the past have been
affiliated with any party or a competitor of any party. Notwithstanding the method of
their appointment, each arbitrator shall be required to meet the standards contained in
the Rules with respect to impartiality, independence and neutrality.
	 
	 	(d)	 	Location of the Arbitration. The seat of arbitration shall be Denver,
Colorado. The arbitrators may hold hearings at such other locations as the arbitrators
shall determine, after consultation with the parties.
	 
	 	(e)	 	Language of Arbitration. The arbitral proceedings and all pleadings and
written evidence shall be in the English language. Any written evidence originally in a
language other than English shall be submitted in English translation accompanied by
the original or true copy thereof.
	 
	 	(f)	 	Procedural Requirements. The arbitrators shall, after consultation with
the parties, make appropriate provision in the arbitration process for rules specific
to this arbitration which:






	 	(i)	 	require the disclosure of all exhibits expected to be used by the
parties at the arbitration, and the exchange of complete copies of all such
exhibits in advance of the arbitration;
	 
	 	(ii)	 	determine the dates for the exchange of said written disclosures
and copies of said exhibits;
	 
	 	(iii)	 	require the written disclosure of the identity of all witnesses
whom the parties expect to call at the arbitration;
	 
	 	(iv)	 	determine the dates for the exchange of the written disclosures
of the identity of witnesses which the parties expect to call at the
arbitration;
	 
	 	(v)	 	determine the dates for the exchange of sworn narrative
statements containing the testimony of all witnesses whom the parties expect to
call at the arbitration;






	 	 	 

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	 	(vi)	 	require that the sworn narrative testimony of witnesses be
submitted in substitution for the direct examination of the witness, and that
all witnesses whose sworn testimony is submitted for consideration by the
arbitrators must present him or herself for cross examination at the time and
place of the arbitration hearing, unless some other procedure providing the
parties with a full and complete opportunity for cross-examination has been
established and provided by the arbitrators, the parties and the witness:
	 
	 	(vii)	 	prohibit, except upon a showing of good cause, or for purposes
of rebuttal, the receipt into evidence of any exhibit not disclosed by the
parties, nor shall the arbitrators permit a party to present the testimony of
any witness whose identity and testimony was not exchanged prior to the
arbitration;
	 
	 	(viii)	 	permit discovery as reasonable and necessary for the orderly preparation of
the dispute for hearing and determination of the dispute (said discovery may
include requests for production of documents and depositions of witnesses who
cannot be summoned to the arbitration or are otherwise unavailable to attend the
arbitration); and
	 
	 	(ix)	 	require all parties and experts to maintain all information and
documents they have received , reviewed, exchanged or given testimony about in
confidence pursuant to an appropriate confidentiality undertaking and order.






	 	(g)	 	Limitation on Remedies. The arbitrators are precluded from awarding
punitive or exemplary damages. In no event shall the arbitrators have the powers of an
amiable compositeur.
	 
	 	(h)	 	Resort to the Courts. Nothing in this Agreement prohibits any party
from seeking interim or conservatory relief in any court of competent jurisdiction;
provided however, that neither the filing of an application for a
temporary restraining order, preliminary injunction or other interim or conservatory
relief, as necessary, nor the granting of such relief, shall be deemed to be a waiver
of the obligation of the party to have the dispute heard and determined solely and
exclusively by arbitration.
	 
	 	(i)	 	Survival. The rights and obligations of the parties as described
herein shall survive the termination, expiration, non-renewal or rescission of the
Agreement between the parties.




24. GENERAL.




     24.1 Entire Agreement/Modifications. This Agreement together with its EXHIBITS
constitutes the entire agreement between the parties hereto with respect to the subject matter
hereof, and there are no representations, warranties, covenants or obligations except as set forth
herein. This Agreement supersedes all prior and contemporaneous agreements, understandings,
negotiations and discussions, written or oral, of the parties hereto relating to the subject matter
hereof. This Agreement may only be amended, modified or superseded by a writing executed by the
authorized representative of the parties hereto. Pursuant to the obligations of this Agreement, the
parties anticipate that EXHIBITS will be attached to and become part of this Agreement during its
term.




	 	 	 

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     24.2 Severability. This Agreement, to the greatest extent possible, shall be
construed so as to give validity to all of the provisions hereof. If any provision of this
Agreement is or becomes invalid, is ruled illegal by a court of competent jurisdiction or is deemed
unenforceable under the current applicable law from time to time in effect during the term of this
Agreement, the remainder of this Agreement will not be affected or impaired thereby and will
continue to be construed to the maximum extent permitted by law. In lieu of each provisions which
is invalid, illegal or unenforceable, there will be substituted or added as part of this Agreement
by mutual written agreement of the parties, a provision which will be as similar as possible, in
economic and business objectives as intended by the parties to such invalid, illegal or
unenforceable provision, but will be valid, legal and enforceable.



     24.3 Waiver. No failure or delay by either party in exercising any right or remedy
under this Agreement will waive any provision of this Agreement. Nor will any single or partial
exercise by either party of any right or remedy under this Agreement preclude it from otherwise or
further exercising any rights or remedies which it may have, or any other rights or remedies
granted by any law or any related document.



     24.4 Enforcement. In the event an action is commenced by either party against the
other to enforce any of the provisions of this Agreement, the prevailing party shall be entitled to
recover from the other party reasonable attorneys’ fees, court costs and necessary disbursements
incurred in connection with such action.



     24.5 Licensor-Licensee Relationship.The relationship of the parties is that of
independent contractors and licensor-licensee. Nothing herein is intended or will be construed to
establish any agency, partnerships, or joint ventures. Neither party has any authority to act for
and/or to bind the other party in any way or to represent that either is in any way responsible for
the acts of the other, except as may be explicitly provided for herein or authorized by the
non-acting party in writing. Neither party is authorized or empowered to act as an agent for the
other party for any purpose, nor shall either party be bound by the acts or conduct of the other
party.



     24.6 Assignablility. This Agreement binds and enures to the benefit of the parties,
their successor or assigns, but may not be assigned by either party without the prior written
consent of the other party; provided however, that CERES shall have the right to assign its rights
and obligations under this Agreement to any AFFILIATED COMPANY and either party shall have the
right to assign its rights and obligations under this Agreement to a third party in conjunction
with the transfer to the third party of substantially all of the assets of that party associated
with performance under this Agreement without prior consent.



     24.7 Force Majeure. No party shall be responsible to the other party for delay or
failure in performance of any the obligations imposed by this Agreement, provided such failure
shall be occasioned by fire, flood, explosion, lightning, wind storm, hailstorm, earthquake,
subsidence of soil, failure of machinery or equipment or supply of materials, discontinuity in the
supply of power, court order or governmental interference, terrorist attacks, civil commotion,
riot, war, strikes, labor disturbances, transportation difficulties, labor shortage, natural
genetic variation of any living matter or by any other cause of like or unlike nature beyond the
reasonable control and without fault or negligence of such party.




	 	 	 

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     24.8 Choice of Law. This Agreement shall be governed by, and construed and
interpreted in accordance with, the laws of the State of Delaware without regard to the principles
of conflicts of law thereof.



     IN WITNESS WHEREOF, CERES and NOBLE have caused this Agreement to be duly executed as
indicated below.



	 	 	 	 	 	 	 

	THE SAMUEL ROBERTS NOBLE FOUNDATION, INC.	 	CERES, INC.
	 
	 	 	 	 	 	 
	By:
	 	/s/ Michael A. Cawley	 	By:	 	/s/ Richard Flavell
	 
	 	 	 	 	 	 
	Name:
	 	Michael A. Cawley	 	Name:
	 	Richard Flavell, CBE, FRS
	Title:
	 	President
	 	Title:	 	Chief Scientific Officer
	Date:
	 	19 May 2006	 	Date:	 	19 May 2006
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	By:	 	/s/ Richard Hamilton
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Richard Hamilton
	 

	 	 	 	Title:
	 	President & Chief Executive Officer
	 

	 	 	 	Date:	 	 
	 

	 	 	 	 	 	 







	 	 	 

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EXHIBIT A — LICENSED VARIETY

(Paragraph 1.8)




	 	 	 	 	 
	 	 	LICENSE COMMENCEMENT	 	INTELLECTUAL PROPERTY
	LICENSED VARIETY	 	DATE	 	RIGHTS
	NF/GA993	 	 	 	 






	 	 	 

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EXHIBIT B — EVALUATION PLAN

(Paragraph 1.24)




SEED PRODUCTION PLAN: PRE-BREEDER AND BREEDER SEED




	•	 	Establish a two (2) acre breeder field at NOBLE’s Dupy Farm and one-quarter (0.25) acre
breeder field at the University of Georgia (UGA), Athens, GA of NF/GA993. Goal: to
produce 300 lbs of breeder seed per year for 2006, 2007, and 2008.






	•	 	Harvest seed from the pre-breeder field of NF/GA001 at Athens, GA. Goal: to produce 15
lbs of pre-breeder seed per year for 2006 and 2007.






	•	 	Establish a 1/16 acre pre-breeder field of NF/GA002 at Ardmore, OK. Goal: to produce 5
lbs of pre-breeder seed per year for 2006, 2007, and 2008.






	•	 	Establish breeder fields of NF/GA991, NF/GA992, NF/GA001, and NF/GA002 as directed by
the MANAGEMENT COMMITTEE.





PLANTING / MANAGEMENT PLAN FOR

NOBLE/CERES SWITCHGRASS BIOMASS PERFORMANCE TRIAL





	•	 	The NOBLE/CERES Switchgrass Performance Trial is a multi-location trial coordinated by
NOBLE.






	•	 	Goal: to determine the biomass yield of NF/GA switchgrass experimentals compared to the
standard checks ‘Alamo’, ‘Kanlow’, and ‘Cave-in-Rock’ at multiple locations throughout the
southern USA and the Southern great plains region.






	•	 	The test locations to be established in 2006 are: Athens, GA, Starkville, MS, Overton,
TX, Ardmore, OK, and Stillwater, OK. NOBLE shall be responsible for contracting with each
site, excluding Ardmore, OK, pursuant to the terms and obligations of this Agreement.






	•	 	At each location, multiple entries will be planted as replicated small plots. Plot size
is 5’ X 15’ with 6 replications (randomized complete block design). However, if the
investigator at each test location prefers wider plots, seed can be supplied to accommodate
plot sizes of 7.5’ X 15’ or 10’ X 15’. The site-investigator and NOBLE will discuss this
matter prior to establishment of the plot and provision of any seed.






	•	 	The core entries that will be evaluated at all test locations are NF/GA991, NF/GA992,
NF/GA993, NF/GA001, NFSG05-1 (NOBLE), Alamo (commercially available), Cave-in-Rock
(commercially available) and Kanlow (commercially available).






	•	 	In addition to the baseline evaluations reference above, the entries Trialblazer (Univ
of Nebraska), Shawnee (Univ of Nebraska), NSL 2001-1 (Oklahoma State Univ), and SL93 2001-1
(Oklahoma State Univ) also will be evaluated at Overton, TX, Ardmore, OK, and Stillwater,
OK.






	•	 	A seeding rate of 5lbs per acre pure live seed (PLS).






	•	 	Below is the NOBLE protocol, developed internally, that will apply to all test locations
for the establishment and management of these trials.






	 	1.	 	Clean-till as soon as possible (April).
	 
	 	2.	 	Roller pack after clean-till.
	 
	 	3.	 	Wait for rain or irrigate to germinate annual weeds (4-5 weeks).






	 	 	 

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	 	4.	 	After weeds, seed switchgrass no-till at depth of 0.25”.
	 
	 	5.	 	Roller pack again if planter does not have heavy press wheels.
	 
	 	6.	 	Immediately after planting, spray glyphosate within three (3) days to
kill existing weeds.
	 
	 	7.	 	Take notes on seedling emergence (e.g., each week score plots from 1 to 5
with 1=no emergence and 5=excellent emergence). Promptly send such raw data
available to NOBLE for statistical analysis.
	 
	 	8.	 	After the majority of the switchgrass plots reaches 2-3 leaf stage, then
spray 0.15oz Cimarron (Ally) for broadleaf weed control and 1.3pt Dual + Atrazine
for PRE weed control, do not apply crop oil with Atrazine.
	 
	 	9.	 	Fertilize with 125 lbs N per acre as complete fertilizer (P and K amounts
applied to soil test).
	 
	 	10.	 	After switchgrass plants show good tillering, apply 2,4-D as needed.
	 
	 	11.	 	Harvest (dry matter yield) in first year during September — October
period. Promptly send such raw data available to NOBLE for statistical analysis.
	 
	 	12.	 	In the two subsequent years (2007 and 2008), the plan will be the same
from #8 onward with the following exceptions: mow off plants in April and then
apply 0.15oz Cimarron (Ally) for broadleaf weed control and 1.3pt Dual + Atrazine;
apply 125 lbs of N fertilizer per acre (April); harvest again in September-October
period.





DATA ANALYSIS AND REPORTING





	 	i.	 	Statistical analysis of the results will be carried out using standard statistical
analysis of variance procedures.
	 
	 	ii.	 	Noble will provide to the MANAGEMENT COMMITTEE:






	 	1.	 	Reports summarizing the results of the Performance Trial annually
	 
	 	2.	 	Raw data generated during the performance of the trial annually
	 
	 	3.	 	Samples of breeders seed after the first year






	 	•	 	Noble will report to the MANAGEMENT COMMITTEE on a quarterly basis on the status of the
trial.





COSTS AND EXPENSES




Seed Production:





	 	•	 	All expenses will be paid by NOBLE.





Biomass Performance Trials





	 	•	 	Initial number of locations is five (5).
	 
	 	•	 	Direct cost per (non-NOBLE) location is [***] per annum.
	 
	 	•	 	NOBLE will assume any and all expense for any NOBLE site.
	 
	 	•	 	CERES cost per annum (4 test sites): [***].
	 
	 	•	 	Number of years: 3.
	 
	 	•	 	CERES total cost: [***].







	 	 	 

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Confidential Treatment Requested and the Redacted Material has been separately filed with the Commission






 









 








EXHIBIT C — NON-BINDING MARKETING PLAN FOR NF/GA993

(Paragraph 1.25)





	1.	 	TIMING
	 
	 	 	This MARKETING PLAN is to cover NF/GA993 for a five year period and shall be reviewed
annually with adjustments made for further five (5) year periods in line with market
conditions and the agronomic performance of NF/GA993. Production and sales shown below are
estimates based on switchgrass as a forage grass and as a feedstock for bioconversion.
Market conditions may improve if biorefineries are constructed. Construction of such
biorefineries is expected to occur during the next 5 years. (see attached tentative
projections for biomass market)
	 
	2.	 	POSITIONING
	 
	 	 	NF/GA993 will be positioned in the highly productive pasture grass segment with claims of
higher biomass and faster stand establishment than other available switchgrass varieties,
NF/GA993 will also be positioned as the premier feedstock for bioconversion in the vicinity
of any biorefinery using cellulosic biomass as a feedstock around which NF/GA993
demonstrates superior agronomic performance. NF/GA993 may also be positioned as a viable
alternative forage in geographies where agronomic performance is adequate.











	 	 	Sales of NF/GA993 is likely to be best adapted in the southern US from Oklahoma, southern
Kansas, southern Missouri to the east coast and south. CERES and NOBLE will test NF/GA993
farther north into Kansas, Colorado, Missouri, and Nebraska. Testing sites may also be
established in California and Idaho. CERES will work with NOBLE to identify the range of
adaptation for NF/GA993. States colored in blue in the figure have the highest potential
acreage. States in green and red have significant potential but relatively small current
grass acreage based on USDA data as shown in the table below. These areas have significant
biomass yield potential and potential for construction of biorefineries, and it will be
important to evaluate NF/GA993 to determine whether it is adapted to these growing areas.





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Winter	 	 	 	 
	 	 	Hay	 	Wheat	 	Sorghum	 	Total
	State	 	(x1000)	 	(x1000)	 	(x1000)	 	(x1000)
	KS
	 	 	2,200	 	 	 	9,600	 	 	 	2,650	 	 	 	14,450	 
	TX
	 	 	4,700	 	 	 	3,200	 	 	 	2,000	 	 	 	9,900	 
	OK
	 	 	2,700	 	 	 	3,900	 	 	 	230	 	 	 	6,830	 





 
	 	 	 

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	 	 	 	 	 	 	Winter	 	 	 	 
	 	 	Hay	 	Wheat	 	Sorghum	 	Total
	State	 	(x1000)	 	(x1000)	 	(x1000)	 	(x1000)
	MO
	 	 	3,700	 	 	 	570	 	 	 	120	 	 	 	4,390	 
	KY
	 	 	2,200	 	 	 	300	 	 	 	 	 	 	 	2,500	 
	TN
	 	 	1,850	 	 	 	170	 	 	 	 	 	 	 	2,020	 
	ID
	 	 	300	 	 	 	730	 	 	 	 	 	 	 	1,660	 
	AR
	 	 	1,330	 	 	 	165	 	 	 	 	 	 	 	1,495	 
	VA
	 	 	1,190	 	 	 	170	 	 	 	 	 	 	 	1,360	 
	NC
	 	 	680	 	 	 	440	 	 	 	13	 	 	 	1133	 
	CA
	 	 	520	 	 	 	260	 	 	 	12	 	 	 	877	 
	GA
	 	 	650	 	 	 	160	 	 	 	30	 	 	 	840	 
	MS
	 	 	700	 	 	 	90	 	 	 	28	 	 	 	818	 
	AL
	 	 	760	 	 	 	50	 	 	 	6	 	 	 	816	 
	LA
	 	 	400	 	 	 	120	 	 	 	95	 	 	 	615	 
	SC
	 	 	330	 	 	 	170	 	 	 	6	 	 	 	506	 
	FL
	 	 	265	 	 	 	14	 	 	 	 	 	 	 	279	 







	3.	 	PROMOTION
	 
	 	 	Promotional activities will include:






	 	•	 	Articles and advertising in relevant magazines
	 
	 	•	 	Advertising and promotions on the web
	 
	 	•	 	On farm testing and testimonials
	 
	 	•	 	Bulletins of results of state yield trials
	 
	 	•	 	Grower meetings






	4.	 	DISTRIBUTION
	 
	 	 	Several distribution channels are under consideration. Sales and marketing activities are
planned to begin in 2007 and increase as production ramps up:






	 	•	 	Establishment of a sales force and distribution network and/or distribution
through existing distribution systems such as retail outlets and regional seed
companies. This activity is planned to begin in 2006 and expand as needed.
	 
	 	•	 	Direct sales to farmers. This is particularly likely in the vicinity of biomass
conversion facilities
	 
	 	•	 	Web based direct sales






	5.	 	EVALUATION
	 
	 	 	The EVALUATION PLAN is described in detail in Exhibit B.
	 
	6.	 	PROTECTION
	 
	 	 	US PVP filing is planned for 2008 pending data acquisition described in Exhibit B.
	 
	7.	 	SEED SALES
	 
	 	 	All current sales projections are for US sales. Activities will begin in 2008 to determine
whether switchgrass seed can be sold ex-US and in which markets. Sales plans for any
selected markets will be established in 2009. Projections are for COMMERCIAL SEED.
Discounted, unbranded (i.e., variety not stated) sales may occur in case of low purity or
low germination quality.







	 	 	 

	CERES-NOBLE EVA, PROD & LIC Agreement

	 	Page 32 of 41





 









 











	 	 	The following table summarizes estimated COMMERCIAL SEED production acreage and royalties
based on sales of the LICENSED VARIETY as a forage grass assuming a four (4) pound seeding
rate, wholesale price of $3.00 per pound and a royalty rate of [***]:





	 	 	 	 	 	 	 	 	 	 	 
	Production	 	Planting	 	Certified	 	Pounds	 	 	 	Projected
	Season	 	Season	 	Acres	 	of Seed	 	Sales	 	Royalty
	2008

	 	2009
	 	[***]
	 	[***]
	 	[***]
	 	[***]
	2009
	 	2010
	 	[***]
	 	[***]
	 	[***]
	 	[***]
	2010
	 	2011
	 	[***]
	 	[***]
	 	[***]
	 	[***]
	2011
	 	2012
	 	[***]
	 	[***]
	 	[***]
	 	[***]
	2012
	 	2013
	 	[***]
	 	[***]
	 	[***]
	 	[***]
	2013
	 	2014
	 	[***]
	 	[***]
	 	[***]
	 	[***]
	2014
	 	2015
	 	[***]
	 	[***]
	 	[***]
	 	[***]
	2015
	 	2016
	 	[***]
	 	[***]
	 	[***]
	 	[***]
	2016
	 	2017
	 	[***]
	 	[***]
	 	[***]
	 	[***]
	2017
	 	2018
	 	[***]
	 	[***]
	 	[***]
	 	[***]







	8.	 	ROYALTY INCOME
	 
	 	 	See table above for non-binding estimated royalty payments and commencement date of payment.
	 
	9.	 	SEED PRODUCTION
	 
	 	 	See table above for non-binding estimated COMMERCIAL SEED production for the pasture grass
segment, land area to be sown, estimated production and harvest date. The attached table
shows non-binding estimates for biomass for bioconversion facilities. CERES will:






	 	•	 	Identify growers and establish grower contracts by spring 2008
	 
	 	•	 	Lease, build or buy a production facility by fall 2008
	 
	 	•	 	Establish quality testing capability by fall 2008








	 	 	 

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Confidential Treatment Requested and the Redacted Material has been separately filed with the Commission






 









 







Tentative projections for biomass market




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	2005	 	2006	 	2007	 	2008	 	2009	 	2010	 	2011	 	2012	 	2013	 	2014
	 	 	Fall	 	Spring	 	Fall	 	Spring	 	Fall	 	Spring	 	Fall	 	Spring	 	Fall	 	Spring	 	Fall	 	Spring	 	Fall	 	Spring	 	Fall	 	Spring	 	Fall	 	Spring	 	Fall
	Pounds of breeders seed
	 	 	15	 	 	 	 	 	 	 	300	 	 	 	 	 	 	 	300	 	 	 	 	 	 	 	540	 	 	 	 	 	 	 	513	 	 	 	 	 	 	 	487	 	 	 	 	 	 	 	463	 	 	 	 	 	 	 	440	 	 	 	 	 	 	 	418	 	 	 	 	 	 	 	397	 
	Percent breeders production
	 	 	 	 	 	 	50	%	 	 	 	 	 	 	0	%	 	 	 	 	 	 	0	%	 	 	 	 	 	 	0	%	 	 	 	 	 	 	0	%	 	 	 	 	 	 	0	%	 	 	 	 	 	 	0	%	 	 	 	 	 	 	0	%	 	 	 	 	 	 	0	%	 	 	 	 
	Percent

foundation 

production
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	80	%	 	 	 	 	 	 	0	%	 	 	 	 	 	 	0	%	 	 	 	 	 	 	0	%	 	 	 	 	 	 	0	%	 	 	 	 	 	 	0	%	 	 	 	 	 	 	0	%	 	 	 	 	 	 	0	%	 	 	 	 
	Percent R&D
	 	 	 	 	 	 	50	%	 	 	 	 	 	 	20	%	 	 	 	 	 	 	20	%	 	 	 	 	 	 	5	%	 	 	 	 	 	 	5	%	 	 	 	 	 	 	5	%	 	 	 	 	 	 	5	%	 	 	 	 	 	 	5	%	 	 	 	 	 	 	5	%	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Pounds of foundation seed
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	28,000	 	 	 	 	 	 	 	28,000	 	 	 	 	 	 	 	56,000	 	 	 	 	 	 	 	56,000	 	 	 	 	 	 	 	56,000	 	 	 	 	 	 	 	56,000	 	 	 	 	 	 	 	56,000	 	 	 	 	 	 	 	56,000	 
	Percent registered production
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	1	%	 	 	 	 	 	 	0	%	 	 	 	 	 	 	0	%	 	 	 	 	 	 	0	%	 	 	 	 	 	 	0	%	 	 	 	 	 	 	0	%	 	 	 	 	 	 	0	%	 	 	 	 
	Percent commercial production
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	74	%	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Percent marketing
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	25	%	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Pounds of registered seed
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	32,667	 	 	 	 	 	 	 	62,067	 	 	 	 	 	 	 	94,733	 	 	 	 	 	 	 	71,050	 	 	 	 	 	 	 	46,183	 	 	 	 	 	 	 	20,782	 	 	 	 	 	 	 	20,782	 
	Percent commercial production
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	10	%	 	 	 	 	 	 	0	%	 	 	 	 	 	 	25	%	 	 	 	 	 	 	35	%	 	 	 	 	 	 	55	%	 	 	 	 	 	 	0	%	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Pounds of commercial seed
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	2,417,333	 	 	 	 	 	 	 	3,523,644	 	 	 	 	 	 	 	3,855,538	 	 	 	 	 	 	 	4,300,828	 	 	 	 	 	 	 	6,954,512	 	 	 	 	 	 	 	10,713,995	 	 	 	 	 	 	 	9,078,784	 
	Percent marketing
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	10	%	 	 	 	 	 	 	10	%	 	 	 	 	 	 	10	%	 	 	 	 	 	 	10	%	 	 	 	 	 	 	10	%	 	 	 	 	 	 	10	%	 	 	 	 
	Percent commercial sale
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	60	%	 	 	 	 	 	 	60	%	 	 	 	 	 	 	60	%	 	 	 	 	 	 	60	%	 	 	 	 	 	 	60	%	 	 	 	 	 	 	60	%	 	 	 	 
	Percent carryover
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	30	%	 	 	 	 	 	 	30	%	 	 	 	 	 	 	30	%	 	 	 	 	 	 	30	%	 	 	 	 	 	 	30	%	 	 	 	 	 	 	30	%	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Pounds breeders seed production
	 	 	 	 	 	 	 	 	 	 	350	 	 	 	 	 	 	 	350	 	 	 	 	 	 	 	350	 	 	 	 	 	 	 	0	 	 	 	 	 	 	 	0	 	 	 	 	 	 	 	0	 	 	 	 	 	 	 	0	 	 	 	 	 	 	 	0	 	 	 	 	 	 	 	0	 
	Pounds foundation seed production
	 	 	 	 	 	 	 	 	 	 	0	 	 	 	 	 	 	 	28,000	 	 	 	 	 	 	 	28,000	 	 	 	 	 	 	 	28,000	 	 	 	 	 	 	 	0	 	 	 	 	 	 	 	0	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	0	 	 	 	 	 	 	 	0	 
	Pounds registered seed production
	 	 	 	 	 	 	 	 	 	 	0	 	 	 	 	 	 	 	0	 	 	 	 	 	 	 	32,667	 	 	 	 	 	 	 	32,667	 	 	 	 	 	 	 	32,667	 	 	 	 	 	 	 	0	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	0	 
	Pounds commercial seed production
	 	 	 	 	 	 	 	 	 	 	0	 	 	 	 	 	 	 	0	 	 	 	 	 	 	 	2,417,333	 	 	 	 	 	 	 	2,798,444	 	 	 	 	 	 	 	2,798,444	 	 	 	 	 	 	 	3,144,167	 	 	 	 	 	 	 	5,664,264	 	 	 	 	 	 	 	8,627,641	 	 	 	 	 	 	 	5,864,585	 
	Total pounds used for marketing
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	7,000	 	 	 	 	 	 	 	241,733	 	 	 	 	 	 	 	352,364	 	 	 	 	 	 	 	385,554	 	 	 	 	 	 	 	430,083	 	 	 	 	 	 	 	695,451	 	 	 	 	 	 	 	1,071,399	 	 	 	 	 
	Total pounds used for R&D
	 	 	 	 	 	 	7.5	 	 	 	 	 	 	 	60	 	 	 	 	 	 	 	60	 	 	 	 	 	 	 	27	 	 	 	 	 	 	 	26	 	 	 	 	 	 	 	24	 	 	 	 	 	 	 	23.149125	 	 	 	 	 	 	 	22	 	 	 	 	 	 	 	21	 	 	 	 	 
	Total pounds for commercial sale
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	1,450,400	 	 	 	 	 	 	 	2,114,187	 	 	 	 	 	 	 	2,313,323	 	 	 	 	 	 	 	2,580,497	 	 	 	 	 	 	 	4,172,707	 	 	 	 	 	 	 	6,428,397	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Total new acreage
	 	 	 	 	 	 	4	 	 	 	 	 	 	 	100	 	 	 	 	 	 	 	8,420	 	 	 	 	 	 	 	339,525	 	 	 	 	 	 	 	493,319	 	 	 	 	 	 	 	547,678	 	 	 	 	 	 	 	610,413	 	 	 	 	 	 	 	982,106	 	 	 	 	 	 	 	1,499,966	 	 	 	 	 
	Breeder’s production acres
	 	 	 	 	 	 	1	 	 	 	 	 	 	 	0	 	 	 	 	 	 	 	0	 	 	 	 	 	 	 	0	 	 	 	 	 	 	 	0	 	 	 	 	 	 	 	0	 	 	 	 	 	 	 	0	 	 	 	 	 	 	 	0	 	 	 	 	 	 	 	0	 	 	 	 	 
	Foundation production acres
	 	 	 	 	 	 	0	 	 	 	 	 	 	 	80	 	 	 	 	 	 	 	0	 	 	 	 	 	 	 	0	 	 	 	 	 	 	 	0	 	 	 	 	 	 	 	0	 	 	 	 	 	 	 	0	 	 	 	 	 	 	 	0	 	 	 	 	 	 	 	0	 	 	 	 	 
	Registered production acres
	 	 	 	 	 	 	0	 	 	 	 	 	 	 	0	 	 	 	 	 	 	 	93	 	 	 	 	 	 	 	0	 	 	 	 	 	 	 	0	 	 	 	 	 	 	 	0	 	 	 	 	 	 	 	0	 	 	 	 	 	 	 	0	 	 	 	 	 	 	 	0	 	 	 	 	 
	Commercial production acres
	 	 	 	 	 	 	0	 	 	 	 	 	 	 	0	 	 	 	 	 	 	 	6,907	 	 	 	 	 	 	 	1,089	 	 	 	 	 	 	 	0	 	 	 	 	 	 	 	7,894	 	 	 	 	 	 	 	8,289	 	 	 	 	 	 	 	8,467	 	 	 	 	 	 	 	0	 	 	 	 	 
	Marketing acres
	 	 	 	 	 	 	0	 	 	 	 	 	 	 	0	 	 	 	 	 	 	 	1,400	 	 	 	 	 	 	 	48,347	 	 	 	 	 	 	 	70,473	 	 	 	 	 	 	 	77,111	 	 	 	 	 	 	 	86,017	 	 	 	 	 	 	 	139,090	 	 	 	 	 	 	 	214,280	 	 	 	 	 
	R&D acres
	 	 	 	 	 	 	3	 	 	 	 	 	 	 	20	 	 	 	 	 	 	 	20	 	 	 	 	 	 	 	9	 	 	 	 	 	 	 	9	 	 	 	 	 	 	 	8	 	 	 	 	 	 	 	8	 	 	 	 	 	 	 	7	 	 	 	 	 	 	 	7	 	 	 	 	 
	Commercial acres
	 	 	 	 	 	 	0	 	 	 	 	 	 	 	0	 	 	 	 	 	 	 	0	 	 	 	 	 	 	 	290,080	 	 	 	 	 	 	 	422,837	 	 	 	 	 	 	 	462,665	 	 	 	 	 	 	 	516,099	 	 	 	 	 	 	 	834,541	 	 	 	 	 	 	 	1,285,679	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Total acreage
	 	 	 	 	 	 	4	 	 	 	 	 	 	 	104	 	 	 	 	 	 	 	8,524	 	 	 	 	 	 	 	348,047	 	 	 	 	 	 	 	841,286	 	 	 	 	 	 	 	1,381,961	 	 	 	 	 	 	 	1,991,265	 	 	 	 	 	 	 	2,971,951	 	 	 	 	 	 	 	4,125,587	 	 	 	 	 
	Breeder’s production acres
	 	 	 	 	 	 	1	 	 	 	 	 	 	 	1	 	 	 	 	 	 	 	1	 	 	 	 	 	 	 	0	 	 	 	 	 	 	 	0	 	 	 	 	 	 	 	0	 	 	 	 	 	 	 	0	 	 	 	 	 	 	 	0	 	 	 	 	 	 	 	0	 	 	 	 	 
	Foundation production acres
	 	 	 	 	 	 	0	 	 	 	 	 	 	 	80	 	 	 	 	 	 	 	80	 	 	 	 	 	 	 	80	 	 	 	 	 	 	 	0	 	 	 	 	 	 	 	0	 	 	 	 	 	 	 	0	 	 	 	 	 	 	 	0	 	 	 	 	 	 	 	0	 	 	 	 	 
	Registered production acres
	 	 	 	 	 	 	0	 	 	 	 	 	 	 	0	 	 	 	 	 	 	 	93	 	 	 	 	 	 	 	93	 	 	 	 	 	 	 	93	 	 	 	 	 	 	 	0	 	 	 	 	 	 	 	0	 	 	 	 	 	 	 	0	 	 	 	 	 	 	 	0	 	 	 	 	 
	Commercial production acres
	 	 	 	 	 	 	0	 	 	 	 	 	 	 	0	 	 	 	 	 	 	 	6,907	 	 	 	 	 	 	 	7,996	 	 	 	 	 	 	 	7,996	 	 	 	 	 	 	 	8,983	 	 	 	 	 	 	 	16,184	 	 	 	 	 	 	 	24,650	 	 	 	 	 	 	 	16,756	 	 	 	 	 
	Marketing acres
	 	 	 	 	 	 	0	 	 	 	 	 	 	 	0	 	 	 	 	 	 	 	1,400	 	 	 	 	 	 	 	49,747	 	 	 	 	 	 	 	120,220	 	 	 	 	 	 	 	197,330	 	 	 	 	 	 	 	283,347	 	 	 	 	 	 	 	421,037	 	 	 	 	 	 	 	586,970	 	 	 	 	 
	R&D acres
	 	 	 	 	 	 	3	 	 	 	 	 	 	 	23	 	 	 	 	 	 	 	43	 	 	 	 	 	 	 	52	 	 	 	 	 	 	 	60	 	 	 	 	 	 	 	66	 	 	 	 	 	 	 	53	 	 	 	 	 	 	 	41	 	 	 	 	 	 	 	39	 	 	 	 	 
	Commercial acres
	 	 	 	 	 	 	0	 	 	 	 	 	 	 	0	 	 	 	 	 	 	 	0	 	 	 	 	 	 	 	290,080	 	 	 	 	 	 	 	712,917	 	 	 	 	 	 	 	1,175,582	 	 	 	 	 	 	 	1,691,681	 	 	 	 	 	 	 	2,526,223	 	 	 	 	 	 	 	3,521,822	 	 	 	 	 







	 	 	 

	CERES-NOBLE EVA, PROD & LIC Agreement
	 	Page 34 of 41













 






EXHIBIT D — (MODEL) SUBCONTRACTOR EVALUATION AGREEMENT

(Paragraph 2.2.1)





	A.	 	Recipient:
	 
	B.	 	Address:
	 
	C.	 	Plant Material:





	 	 	 	 	 
	SPECIES	 	CODE/DESCRIPTION	 	WEIGHT
	 
	 	 	 	 






	D.	 	Research Purpose: Variety production evaluation and
performance testing with          .
	 
	E.	 	Location for Conduct of Research:




The <<INSTITUTION>> (“Provider”) will provide the Recipient the Plant Material subject
to the following terms and conditions:




     1. The Recipient shall use the Plant Material solely for the Research Purpose.



     2. Provider is (i) owner of all or a portion of the intellectual property rights in the Plant
Material and/or (ii) licensee of all or a portion of the intellectual property rights in the Plant
Material.



     3. Without the prior written consent of Provider, the Recipient shall not use the Plant
Material, seed, or any product derived therefrom in any form of reselection, breeding, sexual
crossing, seed production, back crossing, tissue culturing, mutagenesis, genetic transformation or
any biotechnological process, except as specifically approved in this Agreement.



     4. The Recipient shall not supply or otherwise transfer the Plant Material or any products or
progeny derived therefrom, be it seed or vegetative material, to any other person or entity without
the prior written permission from an authorized representative of Provider.



     5. The Recipient shall take all precautions to prevent theft or pilferage of any material
related to and including the Plant Material.



     6. The Recipient shall voluntarily provide Provider the results of any evaluation using this
Plant Material, including any proposed publication concerning the Plant Material.



     7. The Recipient will be free to publish the research results from the evaluation contemplated
by this Agreement; provided however, the Recipient must provide Provider any proposed publication
at least thirty (30) days prior to submission. Provider will review such proposed publication for
the need of intellectual property protection and/or to identify any inadvertent disclosure of
proprietary information. If necessary, the Recipient agrees to (i) delay publication by no more
than sixty (60) days to enable the filing of an application for intellectual property protection
and/or (ii) remove any proprietary information identified by Provider.



     8. Provider represents that it has the right to transfer the Plant Material under this
Agreement.




	 	 	 

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     9. At the end of the evaluation trial, the Recipient shall, at the option of Provider, (i)
return to Provider all unused Plant Material supplied by Provider and all materials, regardless of
type, produced from the Plant Material or (ii) destroy all unused Plant Material supplied by
Provider and all materials, regardless of type, produced from the Plant Material. The Recipient
agrees that all such unused Plant Material and all materials, regardless of type, produced from the
Plant Material are the property of Provider.



     10. The Recipient acknowledges and agrees that Provider shall not be liable for any damages or
loss that may arise from testing of the Plant Material.



     11. The Recipient acknowledges and accepts that the Plant Material is being supplied with no
warranties, expressed or implied. In particular, as the use of the Plant Material is limited to the
furtherance of the Research Purpose, there is no basis for and no warranty given for fitness for a
particular purpose or merchantability.



Organization:

Recipient:




                                                            

                                        Date





	 	 	 

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EXHIBIT E — COPIES OF UGARF-NOBLE LICENSE AGREEMENTS 

FOR THE LICENSED VARIETY

(Paragraph 19)






	 	 	 

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	 	Page 37 of 41






 









 







License Agreement





     THIS AGREEMENT, dated the 15th day of May, 2006 (“Effective Date”), is made between
the UNIVERSITY OF GEORGIA RESEARCH FOUNDATION, INC., a Georgia nonprofit corporation with an office
located in the Boyd Graduate Studies Research Center, Athens, Georgia 30602-7411 (hereinafter
referred to as “UGARF”), and THE SAMUEL ROBERTS NOBLE FOUNDATION, INC., an Oklahoma nonprofit
corporation with principal offices at 2510 Sam Noble Parkway, Ardmore, Oklahoma 73401 (hereinafter
referred to as “NOBLE”).



WITNESSETH



     WHEREAS, UGARF and NOBLE are parties to a Material Transfer, Testing, and Parental Crossing
Agreement, dated May 1, 2004 (“MTA”), which permitted the initial transfer to NOBLE of seed for
certain cultivars (“Selections”), which included a switchgrass Selection hereinafter referred to as
“GA993”; and



     WHEREAS, UGARF is the assignee of all right, title, and interest in inventions, including the
Selections, developed by employees of The Board of Regents of the University System of Georgia
(hereinafter “Board of Regents”) working at The University of Georgia (“UGA”) and is responsible
for the protection and commercial development of such inventions; and



     WHEREAS, UGA researcher(s), during the course of their employment at UGA, developed GA993,
which is suitable as a forage, range management crop and/or biomass crop; and



     WHEREAS, NOBLE, through its facilities and experience, has the ability to produce, evaluate
and improve GA993 and, through its market relationships, has the ability to market GA993 in the
appropriate marketplaces; and



     WHEREAS, NOBLE wishes to obtain certain exclusive rights to use, produce and sell GA993 seed
directly and/or indirectly through a Sublicensee(s); and



     WHEREAS, UGARF desires to grant such rights through this Agreement, subject to the terms and
obligations set forth herein, which supersedes any prior or contemporaneous representations,
understandings and agreements, whether oral or written relating to the subject matter hereof;



     NOW, THEREFORE, in consideration of the mutual promises contained herein, the parties hereto
agree as follows:



ARTICLE I. DEFINITIONS



     1.1 “Licensed Variety” means the GA993 switchgrass variety developed at UGA, a sample of which
seed will be submitted to the Plant Variety Protection Office of the United






	 	 	 

	CERES-NOBLE EVA, PROD & LIC Agreement

	 	Page 1 of 13








 









 





States Department of
Agriculture, wherein this provision will be amended by letter agreement
after the Effective Date to reflect the date of such submission and the related application number
for any plant variety rights (e.g., United States plant variety protection certificate).




     1.2 “Breeder Seed” means seed of Licensed Variety that is identified by the breeder as being
of a suitable standard of physical and genetic purity to produce Foundation Seed.



     1.3 “Foundation Seed” means that seed produced from plants grown directly from Breeder Seed,
cultivated according to certification regulations and meets the specifications of the official seed
certifying agency of the state in which said seed is/was produced.



     1.4 “Registered Seed” means that seed produced from plants grown directly from Foundation
Seed, cultivated according to certification regulations and meets the specifications of the
official seed certifying agency of the state in which said seed is/was produced.



     1.5 “Certified Seed” means that seed produced from plants grown directly from Foundation Seed
or Registered Seed, cultivated according to certification regulations and that meets the
specifications of the official seed certifying agency of the state in which said seed is/was
produced.



     1.6 “Non-certified Seed” means seed produced from plants cultivated according to certification
regulations of the official seed certifying agency of the state in which said seed was grown, but
which such seed does not meet the specifications of Certified Seed but may still be sold as the
Licensed Variety.



     1.7 “Commercial Seed” means Registered Seed, Certified Seed or Non-certified Seed produced
directly from Foundation Seed or Registered Seed that is sold for purposes other than seed
production.



     1.8 “Sublicenses” mean licenses granted by NOBLE to third parties (“Sublicensees”), as
authorized by this Agreement.



     1.9 “Indemnitees” mean UGARF, UGARF’s officers and directors, the Board of Regents, and the
Board of Regents’ employees at UGA.



     1.10 “Licensed Sales Territory” shall mean the United States and all other countries of the
world.



     1.11 “Licensed Production Territory” shall mean the United States and all other countries of
the world.



     1.12 “Affiliate” means any entity that controls, is controlled by or is under common control
with Licensee, where “control” means beneficial ownership of more than fifty percent (50%) of the
outstanding shares or securities or the ability otherwise to elect a majority of the board of
directors or other managing authority.



     1.13 “Net Selling Price” means the actual wholesale price for seeds of the Licensed Variety
received by NOBLE or a Sublicensee for the sale of such seed, excluding seed for








	 	 	 

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further seed
production, less any (a) customary trade, quantity, or cash discounts; (b) amounts
repaid or credited by reason of rejection or return; (c) any sales, use, tariff, customs
duties, V.A.T. and/or other taxes, duties and similar governmental assessments (except taxes based
on income); and (d) outbound transportation, shipping, packing, costs of insurance in transit paid
by NOBLE or a Sublicensee; subject in all cases to (a) to (d) being separately charged on customer
invoices or credit notes. Where there is no identifiable sale price or when a Licensed Variety is
sold to other than bona fide, arms length customers of NOBLE or a Sublicensee, NOBLE or the
Sublicensee shall be deemed to have received the Net Selling Price calculated based only on the
final sale of the seed (wholesale level) to an independent third party, otherwise referred to as
net wholesale price payable by dealers. If no such current price is available, a hypothetical fair
market value price will be determined by the parties jointly in good faith for the purpose of
calculating Net Selling Price.




     1.14 “Marketing Plan” means a detailed written plan for production, distribution, selling and
promotion of each Licensed Variety prepared by or on behalf of NOBLE and submitted to UGARF. A
Marketing Plan may be (a) binding, i.e., in lieu of the payment of minimum royalties, the
performance of NOBLE (through NOBLE, any Affiliated Company and any Sublicensee) shall be
reasonably compared to forecasts and/or projections therein, or (b) non-binding, i.e., the
performance of NOBLE (through NOBLE, any Affiliated Company and any Sublicensee) shall not be
compared by forecasts and/or projections therein and such forecasts and/or projections are merely
advisory. Each Marketing Plan shall include at least the information outlined in EXHIBIT A, and the
actual, adopted Marketing Plans shall be attached as further exhibits to this Agreement as adopted.



ARTICLE II. GRANT OF LICENSE




     2.1 License. Subject to compliance with the obligations of this Agreement, UGARF
hereby grants NOBLE:




     (a) The exclusive right to produce all seed of the Licensed Variety in the Licensed
Production Territory, including Breeder Seed and Foundation Seed; and




     (b) The exclusive right to use, sell and commercially exploit the seed of the Licensed
Variety in the Licensed Sales Territory.



     2.2 Sublicenses. NOBLE shall have the right to grant Sublicenses within the Licensed
Sales Territory for the production, use, sale and commercial exploitation of the seed of the
Licensed Variety, provided that:




     (a) The terms and obligations of any such Sublicense shall be consistent with the terms
and obligations of this Agreement. Notwithstanding, NOBLE shall remain responsible for the
operations of its Sublicensees relevant to this Agreement as if such operations were
conducted and carried out by NOBLE, including, but not limited to, the payment of all fees
and royalties due under this Agreement.




     (b) NOBLE further shall deliver to UGARF for informational purposes (and under an
obligation of confidentiality) a true and correct copy of each Sublicense granted






	 	 	 

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by NOBLE,
and any modification or termination thereof, within thirty (30) days after execution,
modification or termination.




     (c) NOBLE shall use commercially reasonable effort to collect any and all amounts due
to NOBLE under any Sublicense for the sale of seed of the Licensed Variety.



     2.3 No Implied License. Nothing in this Agreement shall be construed as conferring by
implication, estoppel, or otherwise any license or rights under any plant variety rights by, or
licensed to, UGARF other than the one(s) reference in Paragraph 1.1 and any foreign counterparts.



ARTICLE III. SEED PRODUCTION



     3.1 NOBLE agrees to use its reasonable efforts to produce Breeders Seed of the Licensed
Variety for seed production, whether directly or through its Sublicensees.



     3.2 Production and processing of seed of the Licensed Variety shall be under the supervision
of NOBLE, and such production and processing shall be available for inspection by UGARF
representatives.



ARTICLE IV. CONSIDERATION FOR LICENSE



     4.1 In partial consideration for the rights granted hereunder, NOBLE agrees to prepare and
file, or have prepared and filed, any and all applications in the name of UGARF for plant variety
rights for the Licensed Variety in the United States and, at NOBLE’s discretion, in any other
jurisdiction.




     4.1.1 UGARF shall have a right to review any such filing made under this paragraph
prior to its submission and be informed of all actions relating to such filings.




     4.1.2 NOBLE shall be responsible for any and all fees and expenses incurred in filing,
examining, certifying and maintaining any such plant variety rights.




     4.1.3 If NOBLE intends to abandon any plant variety rights, pending or otherwise in any
jurisdiction, NOBLE shall first give sufficient written notice to UGARF to permit UGARF the
opportunity to assume such filing, examination and/or maintenance without prejudice.




     4.1.4 Any application for plant variety rights shall reflect the complete name of the
Licensed Variety. In consultation with UGARF, a preferred name for the Licensed Variety will
be determined under which the seed will be marketed and sold. NOBLE shall be responsible for
any and all fees and expenses in obtaining any trademarks or other registrations to secure
or reserve such preferred name. NOBLE shall be responsible for the registration or
reservation of such preferred name, wherein NOBLE and/or the primary marketer of the
Licensed Variety shall be the owner(s) of the same.





	 	 	 

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     4.2 In partial consideration for the rights granted hereunder, NOBLE agrees to pay to UGARF
[***] of any and all remuneration it receives from its Sublicensees, excluding royalties based on
the Net Selling Price.



     4.3 In partial consideration for the rights granted hereunder, NOBLE agrees to pay to UGARF
for any sales made by NOBLE, any Affiliated Company, and any Sublicensees for seed of the LICENSED
VARIETY, a royalty of:




     (a) [***] of the Net Selling Price for the naked seed weight (exclusive of any coating
materials that may be applied) of all Commercial Seed of the Licensed Variety sold in the
United States in that calendar year up to and including two million (2,000,000) lbs;




     (b) [***] of the Net Selling Price for the naked seed weight (exclusive of any coating
materials that may be applied) of all Commercial Seed of the Licensed Variety sold in the
United States in that calendar year in excess of two million (2,000,000) lbs and up to three
million (3,000,000) lbs;




     (c) [***] of the NET SELLING PRICE for the naked seed weight (exclusive of any coating
materials that may be applied) of all Commercial Seed of the Licensed Variety sold in the
United States in that calendar year in excess of three million (3,000,000) lbs and up to
four and a half million (4,500,000) lbs; and




     (d) [***] of the Net Selling Price for the naked seed weight (exclusive of any coating
materials that may be applied) of all Commercial Seed of the Licensed Variety sold in the
United States in that calendar year in excess of four and a half million (4,500,000) lbs.



     4.4. NOBLE shall have the right to sell, directly or through any Affiliated Company and any
Sublicensee, limited quantities of seed of the Licensed Variety as “variety not stated” for
inventory control and disposal of seed that does not satisfy the standards of Commercial Seed.
NOBLE agrees to pay to UGARF for sales made by NOBLE, any Affiliated Company, and any Sublicensee a
royalty determined in accordance with Paragraph 4.3 for annual seed of the Licensed Variety sold in
the United States.




     4.4.1 “Limited quantities” shall not exceed 10% of the annual production of Commercial
Seed in each year.




     4.4.2 “Variety not stated” seed cannot be associated with, directly or indirectly, any
Commercial Name or include any other designations that identify such material as the
Licensed Variety.



     4.5 Notwithstanding any other provision contained in this Agreement and irrespective of the
level of sales of seeds of the Licensed Variety under this Agreement, NOBLE shall pay to UGARF for
each calendar year of the term hereof a minimum royalty with respect to the Licensed Variety,
according to the following schedule. Payment of this minimum royalty shall be due on or before
March 31 of the succeeding year for which the payment is due.







	 	 	 

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Confidential Treatment Requested and the Redacted Material has been separately filed with the Commission





 









 







	 	 	 
	Minimum Royalties:
	Calendar Year	 	Minimum Royalty (USD)
	2009
	 	[***]
	2010
	 	[***]
	2011
	 	[***]
	2012
	 	[***]
	2013
	 	[***]
	2014
	 	[***]
	2015
	 	[***]
	2016
	 	[***]
	2017
	 	[***]
	2018
	 	[***]






     4.6 The minimum royalty of Paragraph 4.5 shall not carry forward to subsequent calendar years
as royalty credit against future sales. For clarification, the following rules shall guide the
relationship between royalties and minimum royalties:




     (a) If the royalty payments due under Paragraphs 4.2 and 4.3 are less than the minimum
royalty of Paragraph 4.4 in a given year, then only the minimum royalty of Paragraph 4.4
shall be payable;




     (b) If the royalty payments due under Paragraphs 4.2 and 4.3 exceed the minimum royalty
of Paragraph 4.4 in a given year, then the minimum annual royalty shall not be payable;




     (c) Should there be a failure in production of seed of the Licensed Variety where NOBLE
can evidence that sufficient acreage was established to produce adequate seed for payment of
the minimum royalty of Paragraph 4.5 and production of seed failed due to circumstances
beyond the control of NOBLE, NOBLE’S contract grower(s) or its Sublicensees then the minimum
royalty will be paid pro-rata to the extent of the failure of seed production; and




     (d) UGARF recognizes that there are many uncertain factors in the production and
potential use of the Licensed Variety and agrees that the Minimum Royalties specified in
Paragraph 4.5 may, at the request of NOBLE, be readdressed by the parties after the 2010
calendar year.



     4.7 NOBLE shall be responsible for the collection and payment of royalties due to UGARF for
all seed sold in the Licensed Sales Territory.







	 	 	 

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Confidential Treatment Requested and the Redacted Material has been separately filed with the Commission






 









 






     4.8 NOBLE shall, in addition to any payments due under Paragraph 4.2, pay all goods and
service or other taxes due hereon.



     4.9 Payments, payable in U.S. dollars, for each calendar year (ending December 31) shall be
delivered to UGARF on or before the following April 15 at the following address:


Director, TCO

The University of Georgia Research Foundation, Inc.

Boyd Graduate Studies Research Center

6th Floor

Athens, Georgia 30602-7411




     Such payments shall be accompanied by a written report setting forth the production and sales
by NOBLE (and each Sublicensee) of seed during the calendar year and the royalties due. If no
royalties are due, NOBLE also shall so report.



     4.10 Payments required under this Agreement shall, if overdue, bear interest at a per annum
rate of one percent (1%) above the prime interest rate in effect on the due date, as reported in
the Wall Street Journal, from the date the payment is due until it is received.



ARTICLE V. BOOKS AND RECORDS



     5.1 NOBLE shall keep, and require each Sublicensee to keep, accurate records of all production
and sales of seed of the Licensed Variety. These records should include, at least, the number of
acres of seed of the Licensed Variety under production, the physical location of each Licensed
Varity production field owned or controlled by NOBLE or a Sublicensee(s), the total amount of
Licensed Varity seed produced, the total amount of seed of the Licensed Variety sold, and all
invoices or shipping documents relating to such sales.



     5.2 NOBLE shall allow UGARF (and/or its representatives or agents) to inspect NOBLE’s records
pertaining to the Licensed Variety for the exclusive purpose of verifying the accuracy of the
reports provided pursuant to Article IV. Any such inspection shall occur during normal business
hours and after UGARF has provided written notice at least ten business days prior to the date of
the intended inspection. UGARF agrees that it and its representatives will hold in confidence, and
not use for any purpose other than verification of the royalties required to be paid hereunder, any
and all information derived from NOBLE’s records.



ARTICLE VI. DILIGENCE



     6.1 NOBLE shall use commercially reasonable efforts to actively market, whether directly or
through its Sublicensees, the seed of the Licensed Variety in the Licensed Sales Territory.



     6.2 On or before February 28 of each year of this Agreement, NOBLE shall provide UGARF a copy
of a Marketing Plan and related forecasts for the current year.



     6.3 Minimum diligence requirements for the Licensed Variety shall be satisfied by the payment
of the annual minimum royalty amounts set forth in Paragraph 4.4.






	 	 	 

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     6.4 NOBLE shall be responsible for all activities of this Article being conducted in
compliance with applicable state and federal regulations.



     6.5 NOBLE shall be responsible for all bags or containers supplied by the NOBLE (or its
Sublicensees) using the approved name for the Licensed Variety. Further, NOBLE shall use best
endeavors that all references made by NOBLE (or its Sublicensees) to the Licensed Variety shall use
the approved, complete name of the Licensed Variety.



ARTICLE VII. ABATEMENT OF INFRINGEMENT



     7.1 NOBLE and UGARF shall each inform the other party of any suspected infringement of any
plant variety rights covering the Licensed Variety. During the term of this Agreement, NOBLE/UGARF
shall have right, but shall not be otherwise required, to bring suit to abate such infringement.




     7.1.1 NOBLE shall have the first option to bring suit alone. If elected, NOBLE shall
solely be liable for litigation costs. After recovering all enforcement related costs from
any and all amounts received as a result of an enforcement action, NOBLE agrees to pay to
UGARF [***] of any and all remaining amounts from such recovered damages.




     7.1.2 If NOBLE elects not to bring such suit alone, the parties may jointly bring such
suit. In such event, NOBLE shall promptly notify UGARF of its desire to bring such action so
that UGARF may have the opportunity to participate in and equally share costs and recoveries
from said suit. If jointly pursued, NOBLE shall be responsible for retaining counsel and
overseeing the action. NOBLE shall be required to notify UGARF following retention of
counsel. For purposes of settlement, NOBLE shall be the primary contact with the opposing
party(ies). NOBLE shall keep UGARF advised as to all developments with respect to the
enforcement action and settlement discussions, which includes supplying to UGARF copies of
all papers received and filed in sufficient time for it to comment thereon. UGARF may
participate in any and all meetings with the parties’ counsel and the opposing side for
settlement purposes.




     7.1.3 In the absence of NOBLE’s participation in any such action, whether individually
or jointly, UGARF may bring such suit. UGARF shall bear the entire cost of such litigation,
including defending any counterclaims brought against NOBLE and paying any judgments
rendered against NOBLE, and shall be entitled to retain the entire amount of any recovery of
settlement.




     7.1.4 Should either UGARF or NOBLE bring suit under the provisions of Paragraphs 7.1.1,
7.1.2 or 7.1.3, and thereafter elect to abandon such action, the abandoning party shall give
timely notice to the other party who may, if it so desires, maintain the action. Unless the
parties agree otherwise at the time of withdrawal, the withdrawing party shall have no
further obligation for expenses for the subject action and shall not benefit from any
subsequent settlement or other financial benefit received as a result of the subject action.



     7.2 Except as provided in Paragraph 8.1, nothing in this Agreement shall be construed as a
warranty or representation as to the validity or scope of any plant protection rights.





	 	 	 

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	 	Page 8 of 13








	 	 	 

	

Confidential Treatment Requested and the Redacted Material has been separately filed with the Commission







 









 





ARTICLE VIII. WARRANTIES




     8.1 UGARF warrants that it is the sole owner of all right, title, and interest in the Licensed
Variety, it will be the sole owner of all right, title, and interest in any related plant variety
rights for the Licensed Variety, and it has the right to enter into this Agreement.



     8.2 UGARF warrants that it has no knowledge of any claim, or that the basis for any claim
exists, that the Licensed Variety, or the possession, production, marketing, or sale thereof,
infringes upon the rights of any person or entity or that the exercise by NOBLE of its rights
hereunder will violate the rights of any person or entity.



ARTICLE IX. DISCLAIMERS



     9.1 Disclaimer of Specific Warranties. Nothing in this Agreement is or shall be
construed as:




     (a) A warranty or representation by UGARF as to the validity or scope of any plant
variety protection certificate;




     (b) A warranty or representation that anything made, used, sold or otherwise disposed
of under any license granted in this Agreement is or will be free from infringement of the
intellectual property rights of third parties;




     (c) An obligation to bring or prosecute actions or suits against third parties for
infringement, except to the extent and in the circumstances described in Article VII; or




     (d) A grant by implication, estoppel, or otherwise of any licenses under any
intellectual property rights of UGARF or other persons other than as provided in Paragraph
2.1 hereof.



     9.2 Disclaimer of Other Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT,
UGARF MAKES NO REPRESENTATION AND EXTENDS NO WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPIED,
INCLUDING WARRANTIES AS TO TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.



     9.3 Disclaimer of Liability. In no event will UGARF be liable for any incidental,
special or consequential damages resulting from the exercise of NOBLE’s rights under the license
granted pursuant to this Agreement or the use or attempted use of the Licensed Variety.



ARTICLE X. INDEMNIFICATION



     NOBLE agrees to indemnify, hold harmless and defend the Indemnitees against any and all
liability and/or damages with respect to any claims, suits, demands, judgments or causes arising
out of (a) the production, development, storage, sale or any other use of the Licensed Variety seed
and/or exercise of rights granted hereunder by NOBLE, its Affiliates or Sublicensees, distributors,
agents or representatives; (b) the use by end-users and other third parties of Licensed Variety
seed; and/or (c) any representation, warranty or statement by NOBLE or its Affiliates,
Sublicensees, distributors, agents or representatives, concerning UGARF, Licensed Variety seed or
the related plant variety protection certificates. In the event any such








	 	 	 

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	 	Page 9 of 13








 









 






claims, demands or actions
are made, NOBLE shall defend UGARF at NOBLE’s sole expense by counsel agreeable to UGARF.




ARTICLE XI. TERM AND TERMINATION



     11.1 Subject to any other rights of termination under this paragraph, this Agreement shall
have a term (the “Term”) equal to the longer of:




     (a) On a jurisdiction-by-jurisdiction basis, fifteen (15) years from the date of the
first sale of a Licensed Variety; or




     (b) On a jurisdiction-by-jurisdiction basis, the term of any plant variety rights in
the respective jurisdiction covering the Licensed Variety.



     11.2 Subject to the procedural requirements of Paragraph 11.3, UGARF shall have the right to
terminate this Agreement upon the occurrence of any one or more of the following events:




     (a) Failure of NOBLE to make full payment required under this Agreement when due;




     (b) Failure of NOBLE to render written reports as required under this Agreement when
due;




     (c) Failure of NOBLE to comply with Article VI of this Agreement; or




     (d) Failure of NOBLE to comply with any of its other material obligations under this
Agreement.



     11.3 UGARF may exercise its right to terminate for cause by giving NOBLE thirty (30) days
prior written notice of their election to terminate and the basis for such election. Upon
expiration of such notice period, this Agreement shall automatically terminate unless NOBLE cures
the state basis for the termination within the 30-day notice period.



     11.4 In the event this Agreement is terminated by UGARF, Noble shall destroy all production
fields and all seed of Licensed Variety and notify UGARF of such action.



     11.5 NOBLE may terminate this Agreement upon written notice of termination if in the
reasonable opinion of the NOBLE the markets for the Licensed Variety changes so as to render the
production, promotion, and sale of the Licensed Variety uneconomical or commercially impractical.



     11.6 In the event this Agreement is terminated by NOBLE, NOBLE shall destroy all production
fields of Licensed Variety seed and notify UGARF of such action. NOBLE may continue to sell
Licensed Variety seed in the ordinary course of business for a period of one (1) year after the
termination date; provided however, the royalties on such sales are paid in the amounts and in the
manner provided in this Agreement. Following such one (1) year period, all remaining inventory of
Licensed Variety seed must be destroyed, and NOBLE shall notify UGARF of the same.





	 	 	 

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     11.7 Upon termination of this Agreement, no existing Sublicense granted by NOBLE shall be
affected by such termination, and all such Sublicenses shall remain in effect according to their
terms, pursuant to the election of each Sublicensee to become a Licensee of UGARF.



     11.8 The provisions of Articles VIII, IX and X and Paragraph 11.6 shall remain in full force
and effect notwithstanding the termination of this Agreement.



     11.9 Termination of this Agreement shall not prevent: (a) UGARF from recovering any royalties
due as of termination (or thereafter, pursuant to Paragraph 11.6); and (b) either party obtaining a
remedy for any breach of the provisions of this Agreement.



ARTICLE XII. NOTICES



     Any notices required to be given or which shall be given under this Agreement shall be in
writing and delivered by first class mail or overnight (trackable) courier addressed to the parties
as follows:



	 	 	 
	UGARF:	 	NOBLE:
	Director, TCO

	 	General Counsel
	University of Georgia Research Foundation, Inc.

	 	The Samuel Roberts Noble Foundation
	Boyd Graduate Studies Research Center

	 	2510 Sam Noble Parkway
	6th Floor

	 	Ardmore, Oklahoma 73401
	Athens, Georgia 30602-7411

	 	Facsimile: 580.224.6208
	Facsimile: 706.542.5638
	 	 





In the event that notices, statements, and payments required under this Agreement are sent by
certified or registered mail (or alternatively, by overnight courier) by one party to the other
party at its above address, they shall be deemed to have been given or made as of the date so
mailed.




ARTICLE XIII. PUBLICITY AND USE OF NAMES



     NOBLE shall not use the names, trademarks, design marks or any markings of UGARF, the Board of
Regents or UGA in any publicity, advertising or news release without the prior written approval of
an authorized representative of UGARF.



ARTICLE XIV. GENERAL



     14.1 Entire Agreement/Modifications. This Agreement constitutes the entire agreement
between the parties hereto with respect to the license of certain rights in the Licensed Variety,
and there are no representations, warranties, covenants or obligations except as expressly set
forth herein. This Agreement supersedes all prior and contemporaneous agreements, understandings,
negotiations and discussions, written or oral, of the parties hereto relating to the subject matter
hereof. This Agreement may only be amended, modified or superseded by a writing executed by the
authorized representative of the parties hereto.



     14.2. Severability. This Agreement, to the greatest extent possible, shall be
construed so as to give validity to all of the provisions hereof. Any provisions of this Agreement
found to be





	 	 	 

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invalid, illegal, unenforceable, or otherwise prohibited by law shall be ineffective to
the extent of such prohibition without invalidating any other part of this Agreement.




     14.3. Waiver. No failure or delay by either party in exercising any right or remedy
under this Agreement will waive any provision of this Agreement. Nor will any single or partial
exercise by either party of any right or remedy under this Agreement preclude it from
otherwise or further exercising any rights or remedies which it may have, or any other rights or
remedies granted by any law or any related document.



     14.4 Assignability. This Agreement is personal to NOBLE, and the NOBLE shall not
assign, mortgage or otherwise dispose of the rights granted hereunder without the prior written
consent of UGARF; provided however, NOBLE may assign its rights and obligations hereunder to any
person that acquires all or substantially all of the assets and business of NOBLE. This Agreement
shall be assignable by UGARF to the Board of Regents or any other legal entity that promotes
education or research at UGA. No such assignment shall release UGARF from their respective
obligations hereunder unless so agreed in writing by NOBLE.



     14.5 Licensor-Licensee Relationship. No partnership, agency, or other joint
relationship is created by this Agreement. Neither party has any authority to act for and/or to
bind the other party in any way or to represent that either is in any way responsible for the acts
of the other, except as may be explicitly provided for herein or authorized by the non-acting party
in writing.



     14.6 Governing Law. This Agreement and all amendments, modifications, alterations, or
supplements hereto, and the rights of the parties hereunder, shall be construed under and governed
by the laws of the State of Georgia applicable to agreements made and fully performed within the
State of Georgia.



     IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be executed in
duplicate by its duly authorized officers or representatives:


THE UNIVERSITY OF GEORGIA RESEARCH FOUNDATION, INC.




	 	 	 	 	 
	 	 
	By:  	                 /s/ David Lee
 	 
	 	David Lee, Executive Vice President 	 


Date: 5/16/06



THE SAMUEL ROBERTS NOBLE FOUNDATION, INC.




	 	 	 	 	 
	 	 
	By:  	                     /s/ Michael A. Cawley
 	 
	 	Michael A. Cawley, President 	 


Date:






	 	 	 

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EXHIBIT A




MARKETING PLAN

(Paragraph 1.14)




	1.	 	TIMING
	 
	 	 	The Marketing Plan is to cover a five year period and shall be reviewed annually with
adjustments made for further five year periods in line with market conditions (or
projections of the same) and the agronomic performance of the Licensed Variety.






	2.	 	POSITIONING
	 
	 	 	An assessment of the potential of the Licensed Variety in an identified market.






	3.	 	PROMOTION
	 
	 	 	Details of all project promotional activities, plus anticipated, related expenditures, that
are intended to the Licensed Variety achieves its maximum market potential.






	4.	 	DISTRIBUTION
	 
	 	 	Details of the proposed distribution network and activities for supporting the distributor
or retailer plus anticipated promotion activities of the distributor/retailer. NOTE: If the
anticipated distribution network includes the creation of a new seed company, details
regarding this important component should be included here.






	5.	 	EVALUATION
	 
	 	 	Details of planned evaluation and demonstration, if any.






	6.	 	PROTECTION
	 
	 	 	Anticipated intellectual property protection requirements.






	7.	 	SEED SALES
	 
	 	 	Estimated sales including grade of seed, volume and price and country of destination.






	8.	 	ROYALTY INCOME






	 	a.	 	Estimated royalty payments; and
	 
	 	b.	 	Commencement date of payment.






	9.	 	SEED PRODUCTION
	 
	 	 	Estimated production, including grade of seed, land area to be sown, estimated production
and harvest date.







	 	 	 

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TESTING AND EVALUATION

AGREEMENT




     THIS AGREEMENT, dated the 15th day of March, 2006 (“Effective Date”), is made
between the UNIVERSITY OF GEORGIA RESEARCH FOUNDATION, INC., a Georgia nonprofit corporation with
an office located in the Boyd Graduate Studies Research Center, Athens, Georgia 30602-7411
(hereinafter referred to as “UGARF”), and THE SAMUEL ROBERTS NOBLE FOUNDATION, INC., an Oklahoma
nonprofit corporation with principal offices at 2510 Sam Noble Parkway, Ardmore, Oklahoma 73401
(hereinafter referred to as “NOBLE”).


WITNESSETH




     WHEREAS, UGARF and NOBLE are parties to a Material Transfer, Testing, and Parental Crossing
Agreement, dated May 1, 2004 (“MTA”), which permitted the initial transfer to NOBLE of seed for the
cultivars defined in Exhibit A to this Agreement (individually and collectively the
“Selections”);



     WHEREAS, UGARF is the assignee of all right, title, and interest in inventions, including the
Selections, developed by employees of The Board of Regents of the University System of Georgia
(hereinafter “Board of Regents”) working at The University of Georgia (“UGA”) and is responsible
for the protection and commercial development of such inventions; and



     WHEREAS, the Selections have not been released by UGA; and



     WHEREAS, NOBLE wishes to exclusively test and evaluate the Selections for possible
commercialization and to use the Selections as parents in its crossing programs; and



     WHEREAS, UGARF wishes to provide NOBLE, for a defined period, an exclusive option to license
one or more Selections and a license to certain cross-progeny incorporating one or more of the
Selections;



     NOW, THEREFORE, it is agreed, as follows:




	1.	 	UGARF hereby grants NOBLE an exclusive license for the term of this Agreement to test and
evaluate the Selections with an exclusive option to obtain an exclusive, world-wide license to
have access to, produce, use, sell and commercially exploit seed of one or more Selections, as
elected by NOBLE, wherein this grant is subject to the following conditions:






	 	a.	 	Selections are provided solely for testing and evaluation purposes, and NOBLE
will not make use of Selections for direct commercial purposes.
	 
	 	b.	 	NOBLE may undertake limited propagation of Selections solely to facilitate
multi-site testing and evaluation to assess the geographic scope and useful range of
the Selections.








	 	 	 

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	 	c.	 	NOBLE may provide, without approval of UGARF, a limited quantity of material
to:






	 	(i)	 	Third party, not-for-profit institutions for the limited
purposes of gaining performance and yield data as part of a multi-site testing
and evaluation program. The transfer of any such material to such third parties
shall be subject to written agreements including terms and obligations
consistent with the form set forth in Exhibit B to this Agreement.
	 
	 	(ii)	 	Third parties for the limited purposes of analyzing the
relative quality, composition and/or functional value of the material, wherein
NOBLE shall take reasonable efforts to render the provided material incapable
of propagation and any such transfer shall be governed by a written agreement
(a) preventing further transfer and (b) destruction of any material not used in
such analysis.






	 	d.	 	All plant material from a Selection must be destroyed unless the option of
Paragraph 2 is exercised for such Selection.
	 
	 	e.	 	NOBLE shall be solely responsible for the expense and cost of testing and
evaluating the Selections, which the parties acknowledge could be considerable. In
consideration of the exclusive option granted by this Agreement, NOBLE will report the
results of all evaluations to UGARF on an annual basis, by January 31 of each year (for
the prior year’s activities), as long as any Selection is under evaluation.






	2.	 	NOBLE may exercise its option to license any Selection at any time within the term of this
Agreement. This exclusive option shall be exercised, in writing, to UGARF specifying the
Selection(s), and UGARF and NOBLE shall negotiate in good faith an exclusive, world-wide
license/commercialization agreement, including the right to sublicense, for such Selection.
The license/commercialization agreement may contain the normal terms and considerations and
shall be commensurate with other similar license/commercialization agreements between the
parties for such crops, such terms and considerations including but not being limited to:






	 	a)	 	A license fee, if applicable; and
	 
	 	b)	 	A sales royalty and, if applicable, an annual minimum royalty; and
	 
	 	c)	 	Term and termination of the license/commercialization agreement.






	3.	 	Consistent with the terms of the MTA, UGARF grants NOBLE the right to use the Selections in
NOBLE crossing programs.
	 
	4.	 	NOBLE is granted a royalty-free license to make cross-progeny using the Selections.






	 	a.	 	In the event any such resulting cross-progeny contains less than twenty-five
percent (25%) Selections by pedigree, NOBLE may use and commercially exploit such
cross-progeny without further obligation, including any royalty obligation, to UGARF
for the same.







	 	 	 

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	 	b.	 	In the even any such resulting cross-progeny contains twenty-five percent (25%)
or more Selections by pedigree, UGARF and NOBLE shall jointly own such cross-progeny.
For clarification, progeny resulting from a cross containing 25% Selection and another
25% Selection will be deemed to contain 50% total Selections contribution by pedigree.
	 
	 	c.	 	NOBLE shall not commercialize or release any cross-progeny containing
twenty-five percent (25%) or more Selections by pedigree without a separate
license/commercialization agreement with UGARF.






	 	(i)	 	Any such license/commercialization agreement may contain the
normal terms and considerations and shall be commensurate with other similar
license/commercialization agreements between the parties for such crops, such
terms and considerations including but not being limited to, the consideration
to be paid to UGARF for an exclusive license to NOBLE of UGARF’s rights and
interest in the cross-progeny.
	 
	 	(ii)	 	UGARF hereby grants NOBLE an exclusive license to test and
evaluate any cross-progeny produced pursuant to the terms of this Agreement
with an exclusive option to obtain an exclusive, world-wide license to have
access to, produce and sell seed any such cross-progeny consistent with the
terms and obligations of Paragraph 1 and its subparagraphs.






	5.	 	NOBLE assumes all responsibility to comply with all applicable laws and regulations,
including current guidelines relating to the growing of a crop comprised of or containing the
Selections and the disposition of product produced from said crop.
	 
	6.	 	No partnership, agency, or other joint relationship is created by this Agreement. Neither
party has any authority to act for and/or to bind the other party in any way or to represent
that either is in any way responsible for the acts of the other, except as may be explicitly
provided for herein or authorized by the non-acting party in writing.
	 
	7.	 	UGARF MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY SELECTION, INCLUDING ANY
WARRANTY OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE HEREBY EXPRESSLY
DISCLAIMED.
	 
	8.	 	NOBLE IS SOLELY RESPONSIBLE FOR ANY CLAIMS OR LIABILITIES WHICH MAY ARISE AS A RESULT OF ITS
EVALUATION OF SELECTIONS AND THE CROSS-PROGENY CONTAINING SELECTIONS AND THE PRODUCTS PRODUCED
FROM SELECTIONS AND CROSS-PROGENY CONTAINING SELECTIONS. NOBLE AGREES TO HOLD UGARF, ITS
OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, HARMLESS AGAINST ANY AND ALL LIABILITIES RESULTING
FROM OR ARISING OUT OF NOBLE’S USE OF SELECTIONS.
	 
	9.	 	No license or right in a Selection(s) is conveyed or granted hereunder by UGARF to NOBLE
under any proprietary rights owned or controlled by UGARF, except as provided in this
Agreement.








	 	 	 

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	10.	 	NOBLE will not use UGARF or UGA’s name for any advertising or product labeling without prior
written authorization from UGARF.
	 
	11.	 	The term of this Agreement shall be thirty-six (36) months from the Effective Date.






	 	a.	 	NOBLE shall have the right to request the extension of this Agreement and all
rights granted hereunder for twelve (12) months if NOBLE (i) continues to fulfill all
its obligations and requirements provided herein during such extension period and (ii)
provides a written request for extension to UGARF after thirty (30) months from the
Effective Date but at least thirty (30) days prior to the original date of termination
of this Agreement. The decision to extend the term of this Agreement shall be in
UGARF’s sole discretion and will depend on the status of the UGA switchgrass breeding
program at the time of the request for extension.
	 
	 	b.	 	UGARF has the right to terminate this Agreement upon breach by NOBLE. UGARF
will send notice to NOBLE of the breach and NOBLE will have sixty (60) days to affect a
cure.
	 
	 	c.	 	The parties may mutually agree, in writing, to terminate this Agreement at any
time.






	12.	 	If this Agreement expires or is terminated pursuant to the terms of Paragraph 11, NOBLE shall
be subject to the obligations of and entitled to the rights and privileges granted in the MTA.
	 
	13.	 	If any provision of this Agreement is found to be invalid, in whole or in part, the other
provisions or the remaining portion of such provisions shall not be affected and shall remain
in full force and effect.
	 
	14.	 	This Agreement contains the entire understanding of the parties and shall be amended only in
writing agreed to by both parties.
	 
	 	 	IN WITNESS WHEREOF, the parties have executed this AGREEMENT the day and first year written
above.








	 	 	 	 	 	 	 	 	 	 	 
	UNIVERSITY OF GEORGIA	 	THE SAMUEL ROBERTS NOBLE
	RESEARCH FOUNDATION, INC.	 	FOUNDATION, INC.
	 
	By:

	 	/s/ David Lee
	 	By:
	 	/s/ Michael A. Cawley
	 

	 	Name:
	 	Dr. David Lee
	 	 	 	Name:
	 	Michael A. Cawley
	 

	 	Title:
	 	Executive Vice President
	 	 	 	Title:
	 	President
	 

	 	Date:
	 	5/16/06
	 	 	 	Date:	 	 









	 	 	 

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EXHIBIT A




SWITCHGRASS



GA991

GA992

GA001

GA002




	 	 	 

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EXHIBIT B




PREFERRED FORM OF VARIETY EVALUATION AGREEMENT




	 	A.	 	Recipient:
	 
	 	B.	 	Address:
	 
	 	C.	 	Plant Material:





	 	 	 	 	 

	SPECIES
	 	CODE/DESCRIPTION
	 	WEIGHT







	 	D.	 	Research Purpose: Variety production evaluation and performance testing with .
	 
	 	E.	 	Location for Conduct of Research:




The <<INSTITUTION>> (“Provider”) will provide the Recipient the Plant Material subject
to the following terms and conditions:





     1. The Recipient shall use the Plant Material solely for the Research Purpose.




     2. Provider is (i) owner of all or a portion of the intellectual property rights in
the Plant Material and/or (ii) licensee of all or a portion of the intellectual property
rights in the Plant Material.




     3. Without the prior written consent of Provider, the Recipient shall not use the
Plant Material, seed, or any product derived therefrom in any form of reselection,
breeding, sexual crossing, seed production, back crossing, tissue culturing,
mutagenesis, genetic transformation or any biotechnological process, except as
specifically approved in this Agreement.




     4. The Recipient shall not supply or otherwise transfer the Plant Material or any
products or progeny derived therefrom, be it seed or vegetative material, to any other
person or entity without the prior written permission from an authorized representative
of Provider.




     5. The Recipient shall take all precautions to prevent theft or pilferage of any
material related to and including the Plant Material.




     6. The Recipient shall voluntarily provide Provider the results of any evaluation
using this Plant Material, including any proposed publication concerning the Plant
Material.




     7. The Recipient will be free to publish the research results from the evaluation
contemplated by this Agreement; provided however, the Recipient must




	 	 	 

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provide Provider any proposed publication at least thirty (30) days prior to
submission. Provider will review such proposed publication for the need of intellectual
property protection and/or to identify any inadvertent disclosure of proprietary
information. If necessary, the Recipient agrees to (i) delay publication by no more than
sixty (60) days to enable the filing of an application for intellectual property
protection and/or (ii) remove any proprietary information identified by Provider.




     
8. Provider represents that it has the right to transfer the Plant Material under
this Agreement.




     
9. At the end of the evaluation trial, the Recipient shall, at the option of
Provider, (i) return to Provider all unused Plant Material supplied by Provider and all
materials, regardless of type, produced from the Plant Material or (ii) destroy all
unused Plant Material supplied by Provider and all materials, regardless of type,
produced from the Plant Material. The Recipient agrees that all such unused Plant
Material and all materials, regardless of type, produced from the Plant Material are the
property of Provider.




     
10. The Recipient acknowledges and agrees that Provider shall not be liable for any
damages or loss that may arise from testing of the Plant Material.




     
11. The Recipient acknowledges and accepts that the Plant Material is being
supplied with no warranties, expressed or implied. In particular, as the use of the
Plant Material is limited to the furtherance of the Research Purpose, there is no basis
for and no warranty given for fitness for a particular purpose or merchantability.



Organization:

Recipient:



 



Date





	 	 	 

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EXHIBIT F — NON-EXCLUSIVE LICENSE TO AND TERMS OF USE FOR “NOBLE RESEARCH” MARK




(Paragraph 22.5)




Terms and Conditions for Non-exclusive License Agreement



for







     1. Recitals.




     1.1 NOBLE owns and uses the trademark NOBLE Research (the “Mark”) in connection with
plants, plant seed, plant material and research tools developed by or improved directly
through NOBLE research efforts (“Qualifying Products”).




     1.2 NOBLE acknowledges and intends that the LICENSED VARIETY be promoted, marketed and
sold under one or more primary marks specific to CERES and/or the LICENSED VARIETY.



     2. Grant of License. NOBLE hereby grants to CERES a non-exclusive, world-wide,
royalty-free license to use the Mark in connection with the LICENSED VARIETY to promote, market,
sell and deliver LICENSED VARIETY to SUBLICENSEES, distributors and consumers.



     3. Reservation of Rights. NOBLE hereby reserves any and all rights not expressly and
explicitly granted in these terms and conditions, including NOBLE’S right to authorize or license
use of the Mark or any other trademarks or names containing NOBLE, to any third party for use in
connection with any goods and services. Without limiting the rights reserved in this paragraph,
NOBLE hereby reserves any and all rights to use, authorize use or license use of the Mark or any
other trademarks or names containing the Marks in any geographic territory and in any language.



     4. Ownership of Mark. CERES hereby acknowledges that NOBLE is the owner of the Mark,
and any trademark applications and/or registrations thereto, agrees that it will not challenge the
validity of or NOBLE’S ownership of the Mark, and agrees that all use of the Mark by CERES shall
inure to the benefit of NOBLE. CERES agrees that nothing in these terms and conditions shall give
CERES any right, title or interest in the Mark other than the right to use the Mark in accordance
with this Agreement and as permitted by law. CERES agrees not to register or attempt to register or
use the Mark, or the term NOBLE, as a trademark, service mark, Internet domain name, trade name
excepted as permitted herein.




	 	 	 

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     5. Use of the Mark; Protection of the Mark.




     5.1 Proper Use.




     5.1.1 CERES may use the Mark in connection with the promotion, marketing and
selling of the LICENSED VARIETY, and CERES agrees that all use of the Mark shall only
occur in connection with the LICENSED VARIETY and shall be in compliance with the
terms of this EXHIBIT.




     5.1.1 CERES may only use the Mark as a collective whole (as shown above) and
shall not separately use any element or elements of the Mark. Notwithstanding the
foregoing, CERES may make fair uses of specific terms (e.g., “research”) comprising
the Mark.




     5.1.2 The Mark is not to be altered and must be reproduced from the supplied
artwork as provided by NOBLE from time to time. The Mark is not to be used in
conjunction with any other mark or design, i.e., the Mark must stand alone in terms
of its commercial impression generated by the particular usage; provided however, the
parties acknowledge and agree that the Mark will appear on packaging and other
related promotional material with other trademarks, service marks, and/or trade names
(e.g., the CERES mark).




     5.1.3 CERES has no right to sublicense the use of the Mark other than as
described herein.




     5.1.4 CERES may not use the Mark in connection with or for the benefit of
non-Qualifying Products, whether CERES’ or another third party’s.




     5.1.5 CERES must not use as its own trademark any word(s) or design(s)
confusingly similar to the Mark.




     5.1.6 NOBLE shall have the right to review and must pre-approve, in writing, any
and all materials, including seed packaging, that includes or is intended to include
the Mark.




     5.2 Monitoring. CERES acknowledges that NOBLE has the right to monitor CERES’
use of the Mark in conjunction with the LICENSED VARIETY. Upon reasonable request by NOBLE,
CERES shall provide NOBLE with representative samples of each CERES use of the Mark. If
NOBLE determines in good faith that CERES is using the Mark improperly, NOBLE shall notify
CERES, and CERES shall use reasonable efforts to remedy the improper use within thirty (30)
days following receipt of such notice.




     5.3 Legend. CERES must identify the Mark as a trademark of NOBLE with each
usage in the following format:



     “NOBLE Research is a trademark of The Samuel Roberts Noble Foundation, Inc.”
 



	 	 	 

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CERES must exercise care in the use of the Mark so as not to indicate to the public: that
CERES is more than a licensee of NOBLE (i.e., not a part or affiliate of NOBLE or otherwise
related to NOBLE) or that the LICENSED VARIETY is produced or has been tested or approved by
NOBLE.



     6. Protection of Interests. In the event CERES becomes aware of any unauthorized use
of the Mark by a third party, CERES agrees to promptly notify NOBLE and to cooperate fully, at
NOBLE’S expense, in the enforcement of NOBLE’S rights against such a third party. Nothing
contained in this paragraph of this EXHIBIT shall be construed as to require NOBLE to enforce any
rights against a third party or to restrict NOBLE’S rights to license or consent to such a third
party’s use of the Mark.



     7. Indemnification. NOBLE agrees to indemnify and hold CERES, and its officers,
agents, directors employees, attorneys, shareholders, subsidiaries, affiliates, distributors, and
licensees, harmless from any and all liability, loss, damages, claims or causes of action,
including reasonable legal fees and expenses, that may be incurred by CERES or one of the foregoing
parties arising out of assertions or claims by a third party that CERES’ use of the Mark in
accordance with the license granted in this EXHIBIT infringes such third party’s rights in the
Mark. CERES shall provide NOBLE with prompt written notice of any claim for which indemnification
is sought, and shall cooperate fully with and allow NOBLE to control the defense and settlement of
such claim at NOBLE’S sole expense. NOBLE shall have the exclusive right to settle any such claim.



     8. Termination; Suspension.




     8.1 Term of Agreement. Unless sooner terminated under the provisions of this
Paragraph of this EXHIBIT, the license granted in this EXHIBIT shall remain in effect until
such time as (a) the termination of the Agreement or (b) NOBLE provides written notice of
its intent to terminate no less than ninety (90) days prior to the intended termination
date. Termination pursuant to this Paragraph may be for any reason or no reason.




     8.2 Termination for Default or Action. Either party shall have the right to
terminate the license grant in this EXHIBIT if (a) the other party materially defaults on
any of its obligations under the terms of this EXHIBIT, including without limitation a
material breach by CERES of its obligations under Paragraphs 5.2 unless (i) such breach is
cured within the thirty (30) days following receipt of written notice of such breach from
NOBLE or (ii) CERES provides NOBLE, within such thirty (30) day period, a written plan to
remedy such breach that is acceptable to NOBLE, in its sole discretion; (b) CERES decides
not to develop and launch the LICENSED VARIETY pursuant to the terms of the MRA and/or this
Agreement; or (c) the LICENSED VARIETY is discontinued and removed from the marketplace.




     8.3 Effect of Termination. Upon termination of the license granted in this
EXHIBIT, CERES shall immediately cease use of the Mark. In the event of termination in
accordance with Paragraph 8.1 or Paragraph 8.2(a) of this EXHIBIT, CERES may continue to use
the Mark to deplete any stock of packaging and promotional materials it has on hand at the
time of such termination, so long as such use is in compliance with the terms of this
EXHIBIT.




     8.4 Suspension. Notwithstanding Paragraph 8.2 of this EXHIBIT, if in its
reasonable discretion, NOBLE determines that as a result of a breach of the terms set forth
in




	 	 	 

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this EXHIBIT that NOBLE will be materially and adversely affected in a substantial manner
by failing to immediately suspend the license granted in this EXHIBIT, NOBLE may suspend the
licenses hereunder until such breach is appropriately cured, in the sole determination of
NOBLE.





	 	 	 

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