EXHIBIT 10.1
DEVELOPMENT AND EXCLUSIVE
OPTION AGREEMENT
This
Development and Exclusive Option Agreement (this “
Agreement ”), effective as of February 1st, 2007 (the
“ Effective Date ”) is entered into by and
between HANESBRANDS INC. , having an address and
contact person at 1000 East Hanes Mill Road, Winston-Salem, North
Carolina 27105 (Attention: Mike Abbott) (“ HBI
”) and QUICK-MED TECHNOLOGIES, INC., having
an address and contact person at 3427 SW 42nd Way, Gainesville,
Florida 32608 (Attention: David Lerner, President) (“
Quick-Med ”). HBI and Quick-Med are sometimes referred
to herein individually as a “ Party ” and
collectively as the “ Parties ”.
RECITALS
WHEREAS, HBI
and Quick-Med are negotiating a license agreement, substantially in
the form of Exhibit A (the “ License Agreement
”), pursuant to which Quick-Med will grant to HBI a license
under certain of Quick-Med’s technology relating to the
control of ***** and ***** on clothing and apparel
products;
WHEREAS, HBI
desires to obtain an option to enter into the License Agreement and
obtain an exclusive license to the Quick-Med technology pursuant to
the terms and conditions thereof and Quick-Med desires to grant
such option to HBI upon the terms and conditions set forth
herein.
Now, therefore, in consideration of the mutual
promises contained herein, the parties agree as follows:
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1.1
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“
Confidential Information ” shall have the meaning set
forth in Section 5.1 of this Agreement.
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1.2
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“
Field ” shall mean the application of the Composition
(as defined in the License Agreement) and Process (as defined in
the License Agreement) to Underwear (as defined in the License
Agreement) for the purpose of controlling ***** and
*****.
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1.3
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“
Option ” shall have the meaning set forth in Section
3.1 of this Agreement.
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1.4
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“
Option Period ” shall mean the Term.
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1.5
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“
Licensed Products ” shall mean the apparel and
products identified in the definition of the Field.
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1.6
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“
Licensed Technology ” shall have the meaning set forth
in Section 1.14 of the License Agreement.
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1.7
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“
Term ” shall mean the life of this Agreement, which
shall commence on the Effective Date and shall remain in effect for
six months (the “ Term ”), unless earlier
terminated in accordance with the provisions of this
Agreement.
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1.8
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“
Territory ” shall have the meaning set forth in
Section 1.27 of the License Agreement.
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2.
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DEVELOPMENT AND FUNDING OF DEVELOPMENT
COSTS
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Development
Activities . Subject to
the terms and conditions of this Agreement, Quick-Med will use
commercially reasonable efforts during the Term to continue to
develop the Licensed Technology for use in the Field. HBI and
Quick-Med agree that HBI will be conducting a ***** test during the
Term. Quick-Med and HBI will reasonably cooperate on the
development of the ***** test.
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***** This
material has been omitted pursuant to a request for confidential
treatment and filed separately with the Securities and Exchange
Commission.
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Consulting
Work . To the extent that
during the Term HBI requires consulting work from Quick-Med in
connection with the wear tests or for other work due to requests
made by HBI (and accepted by Quick-Med) for development work, then
the rate for such work shall be at $1000 per day per person. In
addition, the reasonable out-of-pocket expenses for food, lodging,
travel, and consumables incurred and for third party expenses
(including, without limitation, independent third party consultants
and laboratory expenses) incurred by Quick-Med will be separately
billed as incurred and paid by HBI, subject to submission to HBI of
evidence of such out-of-pocket expenses in form and substance
reasonably satisfactory to HBI. All bills shall be issued on the
last day of the month in which the work is performed and paid
within fifty-five (55) days of the date thereof.
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Quick-Med
hereby grants to HBI an exclusive option (the “ Option
”) during the Option Period to enter into the License
Agreement in substantially the form attached hereto and, pursuant
to and subject to the terms and conditions thereof, to obtain an
exclusive license to use the Licensed Technology to make, sell,
offer to sell, and import Licensed Products. During the Term and so
long as this Agreement is not terminated, Quick-Med shall not enter
into negotiations or an agreement with a third party granting to
such third party an exclusive, royalty bearing license in the
Territory to use the Licensed Technology to make, sell, offer to
sell and import any apparel products in the Field utilizing the
Licensed Technology.
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In
consideration of this Option, HBI shall pay Quick-Med payments
(“ Option Payments ”) in the amount of $45,000
every three month period during the Term to maintain the Option,
commencing on the Effective Date, and payable no later than the
55th day following the first day of each three month period
thereafter during the Term (each, an “ Option Payment
Date "). All Option Payments due to Quick-Med and actually paid
by HBI shall be ***** to ***** of the first ***** payable to
Quick-Med under the License Agreement if and when such License
Agreement is executed. During the Term, HBI agrees to run and
complete three studies as follows and at the following time
periods:
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Study
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Period of
Study
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Execution
through February 28, 2007
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March 1, 2007
through April 30, 2007
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May 1, 2007
through end of Term
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Quick Med and
HBI shall cooperate on the design and execution of each study. The
results of each of these studies shall be reported to Quick-Med in
writing and shall be maintained as confidential information of both
HBI and Quick-Med. At the conclusion of the ***** Study, the *****
Study and the *****Study, HBI shall provide to QMT with notice of
“go/no-go” decision made in good faith as to whether
NIMBUS shall be the preferred solution for each product line within
the ***** Category as set forth in the attached License Agreement.
In such notice, HBI shall inform QMT if it is proceeding with
NIMBUS as a preferred solution for its ***** Longer program or not
and identify which product categories, it will not be proceeding
with to the next study, whereupon such product categories shall be
no longer subject to the exclusivity requirement set forth in this
Section 3. At the conclusion of the *****Study, the final
“go/no-go” decision shall be made by HBI as to all
product categories on or before the expiration of the
Term.
4.1
HBI may exercise the Option by
sending Quick-Med written notice of such exercise during the Option
Period.
***** This
material has been omitted pursuant to a request for confidential
treatment and filed separately with the Securities and Exchange
Commission.
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Upon
Quick-Med’s receipt of the written notice described in
Section 4.1, the parties shall complete, acting reasonably and in
good faith, and date the License Agreement with the date of the
Option Notice and execute and deliver to each other signed copies
of the License Agreement, whereupon the License Agreement shall
immediately become effective. Such terms to be completed include
the product lines selected by HBI
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