Constitution of the legally not responsible foundation under public law

“Stiftung Deutsches Konsortium für Translationale Krebsforschung – DKTK”

Constitution of the legally not responsible foundation under public law “Stiftung Deutsches Konsortium für Translationale Krebsforschung – DKTK”

concomitantly

Master Contract relating to the Agreement to Joint Support of the German Consortium for Translational Cancer Research

Recitals

I. Background

Cancer disease is one of the most common causes, both in Germany and worldwide, of mortality and costly morbidity. The transition of results of cancer research from the laboratory to improved prevention, diagnosis, and therapeutic possibilities is a particular challenge. The development of innovative diagnostics and treatments has so far failed to keep pace with the rapid advances made in basic scientific research.

Accordingly, with the establishment of the ”Stiftung Deutsches Konsortium für Translationale Krebsforschung – DKTK”, hereinafter referred to as the Foundation, the goal is to concentrate the available expertise currently spread among individual non- university research institutes, universities, and university medical centers and to translate it into clinical practice. Thereby, the results of basic scientific research shall be more rapidly rendered exploitable for the diagnosis, therapy, early detection, and prevention of cancer.

II. Definitions

1. Partner

The Foundation, represented by the Foundation Trustee, shall enter into implementation agreements with non-university research institutes, universities, and university medical centers to promote the objectives of the Foundation. Those partner entities so contractually bound to the Foundation shall hereinafter be referred to uniformly as “Partner”. A complete list of partners is included in the appended, updated where appropriate, Declaration of Intent dated from 23.10.2017 (hereafter referred to as Declaration of Intent, Appendix 1).

2. Partner Sites

The Translation Centers are located at various “partner sites” within Germany. The term “partner site” refers in a geographical sense in each instance to a particular region. A “partner site” may be located in a single city or extend to a number of cities, even if they lie in different states (Länder).

The Declaration of Intent contains a complete list of “partner sites” (Appendix 2).

3. Core Center

The German Cancer Research Center (DKFZ), a foundation under public law, is referred to as the “Core Center”. The “Core Center” acts at numerous Translation Centers.

4. Translation Centers

The Partner located at a partner site together with the Core Center constitutes in each instance a “Translation Center”. There are as many “Translation Centers” as partner sites.

§1 Name, Legal Structure, Business Year, Rights and Obligations of the Foundation Trustee (Trusteeship Agreement)

(1)  The Foundation will bear the name “Stiftung Deutsches Konsortium für Translationale Krebsforschungen – DKTK”.

(2)  The Foundation is a foundation under public law and legally not responsible. It is managed by the Foundation Trustee, the German Cancer Research Center (DKFZ). The registered office of the Foundation is in Heidelberg, Germany.

(3)  The Foundation Trustee is obliged to manage the Foundation in accordance with this Constitution and to conduct the business affairs of the Foundation with fiduciary care and diligence. The Trustee will implement the decisions of the Foundation Council and the other Foundation bodies within the frame of the fiduciary administration of the endowment fund. The Trustee will not receive any remuneration for its activities other than due recompense of necessary, appropriate, and substantiated costs thereby incurred.

(4)  The Foundation’s business year is the calendar year. 2

§2 Foundation Purpose and Objectives

(1) The Foundation will pursue in the public interest long-term research and educational objectives of the state and society. The purpose of the Foundation is to promote the sustained development of innovative clinical approaches in the diagnosis, therapy, screening, and prevention of cancer disease based on robust scientific research, the initiation and co-ordination of clinical studies, analysis of introduction of new clinical approaches, and assessment of their efficacy and benefit in clinical care

2)  For this purpose, the Foundation is charged in particular with the following tasks:

   a)  Development and implementation of a research strategy encompassing all partner   sites within the framework of collaborative research programs and platforms,

   b)  Initiation and co-ordination of innovative clinical and epidemiological studies based on excellent basic scientific research,

   c)  Promotionandimplementationofprogramsacrossallpartnersites,

   d)  Establishment of strategic alliances also with third parties, in particular with private sector companies,

   e)  Collaboration with external scientific institutions and shared use of structures,

   f)  Entering and promoting national and international co-operations, e.g. within the framework of joint projects, studies or researcher exchanges, particularly those of junior scientists,

   g)  Development of concepts across all partner sites to promote junior researchers, gender equality, compatibility of family life with a career in science, personnel exchanges between partner sites, and training and educational programs across all sites,

   h)  Establishment of a public relations operation encompassing all sites for patients, medical professionals, and interested members of the public.

(3)  The purpose of the Foundation shall be fulfilled primarily through the financing of research activities and personnel at the Core and Translation Centers. In addition, the Foundation will ensure the broad dissemination of research results using an efficient public relations operation aligned with the Partners. No part of the financial contribution made by the DKFZ to the Foundation may be passed to a Partner; expenses will be reimbursed in justified situations.

(4) This Constitution does not bestow legal entitlement upon third parties, including the Foundation partners, to the granting of resources.

§3 Financing of the Foundation

(1)  An agreement has been signed between the Federal Republic of Germany and the states of Baden Wuerttemberg, Bavaria, Berlin, Hesse, North Rhein Westphalia, Rheinland Palatinate and Saxony to jointly fund the German Consortium for Translational Cancer Research (hereinafter referred to as Agreement; Appendix 3). The arrangements of the Agreement are unaffected by this Constitution and claim unconditional validity in regard to the Foundation.

(2)  In addition to the previously cited states, other states may also participate in financing the Foundation if a significant contribution to furtherance of Foundation objectives is anticipated and if the Agreement (Appendix 3) is signed. The participation of other states requires a resolution by the Foundation Council.

§4 Translation Centers and Partners

(1) The Foundation promotes and supports the activities of the Core Center and those of the Partners at the Translational Centers in Berlin, Dresden, Essen/Dusseldorf, Frankfurt/Main, Freiburg, Heidelberg, Munich, and Tubingen.

(2)  The Foundation shall not participate in patient care. In as far as intended Foundation research involves treatment of patients, this remains the sole responsibility of the individual Partner(s).

(3)  The further details of co-operation between the Foundation and Partner remain the subject of separate implementation agreements between the Foundation and one or more Partners, particularly the inclusion of appropriate and partner-like rules relating to the exploitation, staffing, and naming of Translation Centers. The completion, amendments, and notice to terminate an implementation agreement require the internal approval of the Foundation Council and the Steering Committee.

(4)  Designation as Partner follows submission of the Declaration of Intent (Appendix 2) and signing of the implementation agreement in accordance with subparagraph 3.

(5)  Collaboration with a Partner ceases following notice to terminate the Implementation Agreement in accordance with subparagraph 3.

§5 Non-profit Status

(1)  The Foundation is a non-profit organization. It does not primarily pursue objectives to its own economic advantage.

(2)  Foundation resources may only be applied in pursuance of the aims and objectives of the Foundation. Federal and state entities as described in accordance with § 3 will not receive any allocation of Foundation funds.

(3)  No person may be the beneficiary of expenses unrelated to the purpose of the Foundation or of disproportionately high remuneration.

§6 Endowment Fund

(1)  The Foundation is funded on the basis of the Agreement (Appendix 3) by the Federal Republic and the states (Länder) according to § 3.

(2)  All Foundation funds are to be managed in trust by the Foundation Trustee and held separately from the assets thereof.

(3)  The Foundation assets including all IP and exploitation rights, as well as other legal rights, acquired within the framework of the Foundation shall be managed in trust with all due diligence by the Foundation Trustee to permanently preserve their undiminished value. Further details are set out in binding directives passed by the Foundation Council.

(4)  No bonds, loans, or any assumption of guarantees, sureties, and other warranties shall be issued or taken at the expense of the Foundation.

(5)  Asset reallocation is permissible. Profit from such actions may be completely or partially used to fulfill Foundation objectives, placed in reserve, or following prior resolution of the Foundation Council, permanently passed to the endowment fund.

§7 Donations, Reserves

(1) Donations made to the Foundation are permissible subject to § 3 subparagraph 2. Donations other than money or donations carrying conditions or other stipulations require the prior approval by the Foundation Council and the Foundation Trustee.

(2)  Donations accrue to the endowment fund provided they are expressly designated for this purpose (donations). Legacies, bequests, income from rented real estate assets, shares in corporate equity and limited companies, and other such donations deemed to belong to the endowment fund are permissible in the absence of a contrary determination. The same is applicable to contributions following fundraising undertaken by the Foundation provided such appeals are irrefutably in the cause of increasing the endowment fund.

(3)  Within the legally compliant tax and funding framework it is permissible to build reserves and feed them into the endowment fund.

(4)  The revenues from Foundation assets as well as donations which are not in reserves or part of the endowment fund must be used in fulfillment of the aims and objectives of the Foundation. This applies subject to other individual agreements or stipulations, in particular to those grants made to support the Foundation Trustee by the Federal Republic and state administrations in accordance with § 3.

§8 Financial Planning and Accounting Practice

A special sector financial plan, within the overall DKFZ financial plan, and the relevant annual financial accounts and management report shall be drawn up for the Foundation and serve as a guide to the finance and accounting departments and business planning within the Foundation.

§9 Foundation Bodies

The Foundation bodies are

a)  Foundation Council,

b)  Steering Committee and

c)  Scientific Advisory Board.

§ 10 Reimbursement of Expenses

The members of the Steering Committee and the Scientific Advisory Board are entitled to reimbursement of necessary, appropriate, and substantiated expenses.

§ 11 Limitation of Liability

(1)  A member of any Foundation body is liable to the Foundation and other members for any damages incurred in pursuance of Foundation business only in cases of intent or gross negligence or. A claim must be made within a limited period of 12 months beginning from the date at which the claimant becomes aware of such damage. The prescribed time limit is deemed to be kept upon institution of legal action or a written claim being made.

(2)  Should a member be required to compensate a third party for damages incurred in pursuance of Foundation business by said member, the member may apply to the Foundation to be exempted from liability. The latter does not apply in cases of damage caused with intent or by gross negligence.

§ 12 Constitution, Chairmanship, Convocation, and Resolution Procedure of the Board of Trustees

(1)  The Foundation Council is comprised of the Federal Republic and the states (Länder) according to § 3, each represented by one member.

(2)  The chair is held by the Federal Republic, the deputy chair by the State of Baden Wurttemberg as the Foundation’s domicile.

(3)  The Foundation Council shall meet when required, but in any event not less than twice per calendar year when convened by the chairperson with at least six weeks’ notice. It must be convened upon request of at least two state representatives or two members of the Steering Committee. Notice to convene will be transmitted by hard copy, facsimile machine, or email.

(4)  The Foundation Council constitutes a quorum if more than half of all members are represented. The Federal Republic and the individual states (Länder) are each represented by a member of their respective administrations. The state representatives each have one vote. The Federal Republic representative has the same number of votes as those of all states combined. All votes of the Federal Republic will be cast unanimously. Resolutions will be passed by a simple majority of votes unless stipulated otherwise by this Constitution. In the event of a voting tie, the chairperson has the casting vote. Voting rights can be transferred in written form to another member.

(5)  Decisions relating to § 3 subparagraph 2 sentence 2, § 4 subparagraph 3 sentence 2, § 6 subparagraph 3 sentence 2 and subparagraph 5 sentence 2, §12 subparagraph 8, § 13 subparagraph 1 a) to c), subparagraph 2 a), § 14 subparagraph 8 sentence 2, and subparagraph 9 as well as § 20 subparagraph 1 and 2 sentence 1 require a majority of at least three quarters of all votes cast.

(6)  Decisions may be made by a written procedure providing all members are in agreement with this. § 20 subparagraph 4 sentence 2 remains unaffected thereby.

(7)  Members of the Steering Committee and the Foundation Trustee may be invited to meetings of the Foundation Council. They do not have voting rights. The chairperson of the Scientific Advisory Board has permanent guest status without voting rights on the Foundation Council.

(8)  The Foundation Council agrees to its own bylaws.

§ 13 Responsibilities of the Foundation Council

(1) The Foundation Council decides on the tasks specifically assigned to it in this Constitution in addition to the following:

   a)  Expulsion of a member of the Foundation Council for cause following a hearing. For cause is deemed to be established in particular when a member fails to fulfill his/her financial obligations in accordance with the Agreement on Joint Support of the German Consortium for Translational Cancer Research even after an appropriate set time period or resigns from the above cited Agreement;

   b)  Assessment of the special sector financial plan and the Core Center progress report as presented by the Foundation Trustee;

   c)  Formal approval of the audited financial statement including the management report as presented by the Foundation Trustee;

   d)  Formal approval of the actions of the Steering Committee;

   e)  Appointment of an auditor.

(2) The following activities and affairs require prior approval by the Foundation Council:

   a)  Guidelines submitted by the Steering Committee regarding the strategic planning of research activities and the provision of funding in accordance with the aims and objectives of the Foundation;

   b)  Principles established by the Steering Committee applicable to the control of success and to the use of research and development results;

   c)  Legaltransactionsandstepsexceedingtheordinary,ongoingbusinessactivities that could significantly affect the status and work of the Foundation, e.g. significant agreements to undertake collaboration with other national and international firms or entities;

   d)  Measures or legal transactions of substantial financial importance.

§ 14 Steering Committee

(1)  The Steering Committee in its capacity as executive and central steering body within the Foundation directs the business of the Foundation in accordance with this Constitution and its own bylaws. It particularly has to ensure that the aims and objectives of the Foundation are fulfilled in a continuous and sustainable manner.

(2)  Thereof unaffected remains the function of the Foundation Trustee which in relation to third parties will be solely entitled and obligated to the exclusion of the other bodies and persons named in this Constitution. As between parties, the Foundation Trustee acts for account of the Foundation.

(3). The Steering Committee is constituted of the DKFZ as Core Center, which delegates two members of its management board as well as spokespersons of the Translation Centers. Each Translation Center will appoint one spokesperson and its deputy for this purpose.

(4)  The members of the Steering Committee elect from its midst a DKTK spokesperson and its deputy for a term of up to three years respectively. Re-election is permitted.

(5)  The Steering Committee meets at least once a month and upon request of not less than two of its members. The Invitation to the meetings of the Steering Committee is issued by the Foundation Trustee in accordance with the DKTK spokesperson and may be transmitted by post, facsimile machine, or email subject to a term of seven days.

(6)  Resolutions may be reached in a written procedure to which all members have 9 given their consent.

(7)  The Steering Committee constitutes a quorum if more than half of all votes are represented. Both DKFZ representatives and the spokesperson for the Heidelberg Translation Center together have two votes. The remaining members of the Steering Committee each have one vote. The Steering Committee will strive to achieve consensual decisions. Steering Committee resolutions require a two-thirds majority of all submitted votes. The respective deputy may represent the Translation Center spokesperson if the former is impeded. The two DKFZ representatives may deputize for each other.

(8)  The two DKFZ representatives cannot be outvoted in budgetary matters. Should the majority of the votes nevertheless decide otherwise and therefore a decision is not reached, any member of the Steering Committee may call upon the Foundation Council that shall then make a binding decision.

(9)  The Steering Committee shall draw up its own bylaws that require approval by the Foundation Council.

(10)  The Steering Committee may allocate own designated areas of responsibility. Further details shall be regulated by the Steering Committee’s bylaws.

(11)  The Steering Committee, with approval of the Foundation Council, may appoint a full-time scientific director to lead the scientific management of the Foundation. This director will report to the Steering Committee. Further details as to the extent of the duties and powers of the scientific director are the responsibility of the Steering Committee.

(12)  The Foundation Trustee will establish an office for the central administration of the Foundation and administrative support of the Translation Centers. Following a Steering Committee resolution, a full-time administration officer may lead the office. The incumbent shall support the Foundation Trustee by the implementation of the decisions reached by the Steering Committee and the Foundation Council.

§ 15 Tasks of the Steering Committee

(1) In addition to the rights and duties outlined in other parts of this Constitution, the Steering Committee has the following tasks:

   a) Monitoring of the Foundation Trustee’s work and management of Foundation funds; for this purpose it may request to be informed about the financial situation and outcomes of the management of funds and require the Foundation Trustee to furnish all necessary documentation; the Foundation Trustee shall comply without delay to any such request by the Steering Committee;

   b)  Resolution on the use of Foundation funds following a hearing of the Foundation Trustee and in accordance with the special sector financial plan passed by the Foundation Council;

   c)  Support of the Translation Centers in accordance with the concluded implementation agreements;

   d)  Specification of guidelines for the strategic planning of research activities and granting of funds compliant with the research objectives of the Foundation based upon the recommendations of the Scientific Advisory Board;

   e)  Decisions as to sponsorship of drug studies by the Foundation according to the German drug law;

   f)  Preparation of a special sector financial plan for the Foundation and presentation of same to the Foundation Trustee for further action;

   g)  Preparation of the center progress report and presentation of same to the Foundation Trustee for further action;

   h)  Contribution to the requisite annual financial statement and management report to be made by the Foundation Trustee without delay upon conclusion of the fiscal year;

   i)  Public relations activities of the Foundation.

(2) The Steering Committee is furthermore responsible for all matters not otherwise allocated to other Foundation bodies in this Constitution.

§ 16 Scientific Advisory Board

(1)  The scientific work of the Foundation will be accompanied by a high level international scientific panel (“Scientific Advisory Board”). It advises the Foundation Council and the Steering Committee in scientific matters and, at regular intervals between evaluations pursuant to § 18, gives its opinions on the scientific plans and achievements of the research and development programs of the Translation Centers.

(2)  It co-ordinates with the Scientific Committee of the DKFZ. 11

(3)  It is comprised of up to ten honorary members appointed by the Steering Committee for a term of four years. A singular re-election is permitted. The Scientific Advisory Board elects a chairperson and a deputy chairperson from its ranks.

(4)  It adopts its own bylaws.

§ 17 Documentation

(1)  Minutes of resolutions taken must be prepared within one week. They are to be signed by the respective chairperson or DKTK spokesperson, in their absence by the respective deputy.

(2)  Within one further week, the minutes from the Foundation Council shall be sent to the DKTK spokesperson, those of the Steering Committee to the Foundation Trustee as well as to the chairperson of the Foundation Council, and those of the Scientific Advisory Board to the DKTK spokesperson as well as the chairperson of the Foundation Council, for further instigation.

§ 18 Evaluation

At regular intervals – at least once every five years – the German Consortium for Translational Cancer Research shall be evaluated by an external, international panel of experts in respect of its scientific excellence and the strategic goals. The evaluation process and appointment of the panel will be agreed upon by the Federal Republic and the states (Länder) representatives.

§ 19 Audit Rights by the Court of Auditors

The relevant courts of auditors are granted the right to audit pursuant to § 111 of the German Federal Budget Code (BHO) and the regulatory codes of the individual states.

§ 20 Constitutional Amendments, Adjustments by the Foundation to Changing Circumstances and Dissolution

(1)  Amendments to this Constitution are made by Foundation Council resolution.

(2)  Where sustained fulfillment of the Foundation objectives is deemed by the Board of Trustees to be no longer possible or reasonable, the Foundation Council can, with approval of the Foundation Trustee and following a hearing of the Steering Committee, pass a resolution stipulating new objectives or the dissolution of the Foundation. Any new Foundation purpose must be one within the area of health research.

(3)  The Foundation Council may also decide dissolution of the Foundation for cause. For cause is deemed to be established if insolvency proceedings are instituted with regard to Foundation funds or if such proceedings are abandoned due to insufficient capital, if Foundation funds have been seized due to liabilities of the Foundation Trustee unrelated to the Foundation and if such actions have not been revoked within a three month period, or if the Foundation Trustee has adequately grossly violated its responsibilities. In such cases, the Foundation Council after prior hearing of the Steering Committee and the Foundation Trustee decides to dissolve the Foundation by simple majority.

(4)  Resolutions in accordance with subparagraph 1 to 3 may only be enacted in meetings specially convened for this explicit purpose. A written procedure is not permissible.

§ 21 Devolution of Funds

In the event of liquidation or dissolution of the Foundation the funds

  • proportionately to the contribution made by each state are equally distributed to the relevant Partner(s) domiciled therein. The recipient is obligated to use such capital directly and exclusively for non-profit purposes;

  • proportionately to the contribution made by the Federal Republic to the joint support of the Foundation and to the contributions according to § 7 subparagraph 2 transfers to the DKFZ, obligated to be used immediately and exclusively for non-profit purposes.

§ 22 Final Provisions

(1)  This Constitution serves as a master contract for the DKTK in accordance with § 5 of the Agreement to Joint Support of the German Consortium for Translational Cancer Centers.

(2)  It takes effect upon signing by the Foundation Trustee and subsequent approval by the States of Baden Wurttemberg, Bavaria, Berlin, Hesse, North Rhein Westphalia, Rheinland Palatinate, Saxony, and the Federal Republic. The Foundation Trustee waives the requirement in accordance with § 151 BGB (German Civil Code) for receipt of declarations of acceptance by the Federal Republic and the states (Länder). Where any doubt exists acceptance is presumed upon first discharge of their respective obligations stipulated in the Agreement (Appendix 3)