Exhibit 10.8
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MASTER AGREEMENT BETWEEN COLLABORATIVE AND QMT
FOR PRODUCT DEVELOPMENT, MANUFACTURING AND DISTRIBUTION
This Master Agreement for Product Development, Manufacturing and
Distribution (the "Agreement") is made on this 15th day of August, 2002, ("the
Effective Date") by and between The Collaborative Group, Ltd. ("Collaborative"),
with a principal place of business at 00 Xxxx Xxxx Xxxx, Xxxxx Xxxxx, Xxx Xxxx
00000 and Quick-Med Technologies, Inc. ("QMT") with a principal place of
business at 0000 XX 00xx Xxx, Xxxxxxxxxxx, Xxxxxxx 00000, together ("Parties").
WHEREAS QMT desires to retain Collaborative for Product Development,
Manufacturing and Distribution Services in relation to the products as described
below;
WHEREAS Collaborative has the expertise and experience to assist QMT in
developing such products to point of readiness for regulatory body approval and
commercial distribution and desires to perform said Product Development,
Manufacturing and Distribution Services for QMT;
NOW THEREFORE, in consideration of the obligations and covenants
described in this Agreement, the Parties mutually agree as follows:
Article I - Definitions
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1.1 Intellectual Property: Intellectual Property means certain
patented and patent pending technologies and chemical agents and proprietary
know-how that Collaborative or QMT will and/or may use in connection with its
formulation services in developing the Products. Collaborative Intellectual
Property shall remain the sole property of Collaborative. QMT Intellectual
Property shall remain the sole property of QMT. Relevant Intellectual Property
of Collaborative is listed on SCHEDULE A attached hereto and relevant
Intellectual Property of QMT is listed on SCHEDULE B attached hereto.
1.2 Products: Products shall mean XX0000, Xxxxxxxxx,xxxxxxxx and
their derivatives and analogs (including all inhibitors of matrix
metalloproteases and serine proteases) and the Ilomastat-based
Anti-Aging/Anti-Wrinkle Topical Cream and derivations thereof, and finished
commercial formulations thereof.
1.3 Research and Development Services: Services shall mean Research &
Development Services, Formulation Services, Microbiological Stability Testing
Services and in vivo / in vitro Efficacy Testing and any other research and
development services that Collaborative reasonably performs as part of its
normal business.
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1.4 Distribution Services: Distribution services shall mean any or
all of manufacturing, marketing, sales and distribution services for Products in
whatever combination or priority the parties determine are required for a
particular product. Distribution Services shall refer to sale of Products and
not to sale of QMT intellectual property or rights thereto.
1.5 Manufacturing Services: Manufacturing services shall mean
formulation of raw materials into a finished product, performed either by
Collaborative or an outside third party, whichever is more economically
feasible, with appropriate containment and marking in a form ready for
commercial distribution.
1.6 Territory: Territory shall mean the Global World Wide Civilian
Market.
1.7 Field of Use: The over-the-counter and prescription Personal Care
Market including cosmetic skincare, feminine care and baby care; and
over-the-counter market for deodorants and sun care.
1.8 Trade Secrets: Trade Secrets mean certain chemical formula, data,
processes, information, sample, know-how and show-how used to develop the
Product. Collaborative Trade Secrets shall be the sole property of
Collaborative. QMT trade secrets will remain the sole property of QMT.
1.9 Separate Service Agreement: Separate Service Agreements shall
mean addendum contracts for specific services that Collaborative will provide
for QMT . Certain pricing , rights of refusal, and other terms pertinent to such
contracts will be governed by this Master Agreement. Any discrepancy between
such Separate Service Agreements and this Master Agreement shall be resolved
where possible in accordance with the terms of this Master Agreement. Separate
Service Agreements will typically be identified in connection with Product
Development Plans.
1.10 Work Plan: A Work Plan is a statement of work that the parties
will develop and maintain over time stating the specific work product each party
will perform to fulfill their obligations under this Agreement , Product
Development and Distribution Agreements or Separate Service Agreements,
including Addendums to this Agreement.
1.11 Product Development and Distribution Agreement: A Product
Development and Distribution Agreement is a Work Plan, possibly including
Separate Service Agreements, and schedule of Milestones or other obligations or
activities that pertain to a particular Product or Products to which the Parties
have agreed to in writing.
1.12 Option to Distribute: Option to Distribute is an option to
acquire the exclusive right to Distribution Services for a particular Product as
defined by this agreement. Collaborative may exercise their Option to Distribute
a Product by providing QMT with a corresponding Product Development and
Distribution Agreement that is mutually agreed upon and executed by the Parties
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1.13 Windfalls: A Windfall shall mean any significant gain to one of
the parties of this agreement that is not attributable to the work products
outlined in a Product Development and Distribution Agreement and performed by
that party over time, which is disproportionately large relative to time and
resources invested by that party. Unless otherwise defined by agreement, the
parties agree to confer in good faith with respect to any potential Windfall
situation and to agree on appropriate compensation short of that described
further herein had Collaborative assisted in full product development,
manufacturing and distribution services as defined herein.
1.14 Milestones: Milestones are defined objectives that either party
is expected to meet within their obligations under this agreement. Milestones
that are specific to particular Products will be identified in Product
Development and Distribution Agreements or Separate Service Agreements. Failure
to meet milestones defined in this Master Agreement by either party shall be
considered a material breach of this Agreement by that party. Failure to meet
Milestones defined under Product Development and Distribution Agreements or
Separate Service Agreements, including Addendum Agreements to this Master
Agreement shall likewise be considered a material breach of this Master
Agreement. As the parties understand that the economic success of the Products
is important to their respective firms, but also that new Product Development
Plans will be written over time, the parties may require meaningful but not
unreasonable Milestones (or other obligations) of the other.
Article II - Research and Development Services and Manufacturing Services
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2.1 In exchange for Grants to Collaborative under this Agreement, and
as defined in Product Development and Distribution Agreements, Collaborative
shall provide Research and Development Services to QMT at an agreed upon price
which should approximate a cost of no more than fifteen (15%) percent over
Collaborative's cost, how is cost calculated and on a timely basis to be defined
by the parties on a project and product-by-product basis. Specific definition
and costs of such services will be provided in Separate Service Agreements
including Addendums to this Agreement. Research and Development Services will
include all such services that Collaborative reasonably performs as part of its
normal business. QMT has the right to have the Research and Development Services
performed by another company if Collaborative is unable to perform equivalent
services on a timely or substantially equal economic basis.
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2.2 In exchange for grants to Collaborative under this agreement, QMT
has the right to require that Collaborative will manufacture finished Products
for distribution, including appropriate containers and labeling for the finished
product, provided that such Product manufacturing falls reasonably within
Collaborative's normal business. Manufactured products will be provided at
actual or transferred in cost in the event of a third party. In the event that
such manufacturing is sub-contracted to third parties, such sub-contracting
arrangement shall be in writing and subject to the prior written approval of
both QMT and Collaborative. Neither party will unreasonably withhold approval.
2.3 The parties understand that Research and Development Services and
Manufacturing Services are to be performed by Collaborative on the indicated
financial basis in exchange for Distribution rights granted by this agreement.
However, the parties wish to confer or require additional rights as part of an
overall business relationship:
Additional Rights of Collaborative
2.31 Within its authority to do so, QMT will grant to Collaborative a
right of first refusal to manufacture and earn a fair margin on Products to be
sold outside of the Territory provided that Collaborative is able to do so on a
competitive basis.
2.32 In instances where Collaborative is not obligated to perform
Research and Development Services as provided in a Product Development and
Distribution Agreement, Collaborative shall have the right of first refusal to
provide such services for QMT. QMT shall notify Collaborative in writing,
describing with particularity the Research and Development Services required.
Collaborative shall have fifteen (15) calendar days from the date of disclosure
by QMT to exercise its right to provide such services. Upon electing to provide
such services, Collaborative is obligated to provide such Research and
Development Services for the Products defined in this agreement that can
reasonably be performed as part of its normal business and to meet milestones
defined by mutual consent of the parties in Separate Service Agreements.
Additional Rights of QMT
2.33 QMT has the right to request and receive, at fair pricing used in
Collaborative's normal business, Research and Development Services for Products
contemplated by this agreement, but whose end markets are outside the Territory
or Field of Use defined in this agreement, such as the Military market, when
such services are reasonable extensions of previous or agreed upon work
performed by Collaborative for QMT.
2.34 Collaborative will make reasonable efforts to provide Research
and Development Services to QMT for products not included in this agreement, but
for which similar services apply, at fair pricing used in Collaborative's normal
business.
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Article III - Distribution Services
-----------------------------------
3.1 QMT grants to Collaborative the divisible Option to Distribute
its Products within the Territory and Field of Use for a period of five (5)
years commencing on the effective date of this agreement.
3.2 The parties will work to agree on an initial Work Plan (for each
party) and on an initial Product Development and Distribution Agreement for one
or more Products. Upon executing a mutually acceptable Product Development Plan
and Distribution Agreement with QMT, Collaborative will exercise its Option to
distribute those Products.
3.3 For any other Product(s), Collaborative may exercise its Option
to Distribute by providing to QMT Product Development and Distribution
Agreements that are acceptable to QMT, including product Milestones. QMT will
not unreasonably withhold approval.
3.4 If Collaborative has not exercised its Option to Distribute with
respect to a particular product, and QMT can demonstrate the opportunity to
otherwise develop or distribute the Product, then QMT has the right to require
that Collaborative exercise its Option to Distribute within ninety (90) days or
relinquish such option.
3.5 The parties will work constructively together over time and
continue to negotiate in good faith to realize the objectives of this agreement.
Disputes that cannot be resolved through negotiation will be submitted to
arbitration.
3.6 If Collaborative exercises its Option to Distribute a particular
Product, then QMT grants Collaborative an exclusive license to manufacture,
distribute and sell such Product (this includes the finished products as well as
any formulae for the product, but not intellectual property pertaining to the
Products) developed by QMT under Product Development and Distribution Agreements
with Collaborative, for distribution within the Territory for a period of five
(5) years, commencing when the first such Product has been developed. Except as
the parties agree in writing, QMT agrees to not appoint any other or different
person, firm, or corporation to sell such Product within the Territory during
said five (5) year exclusive. The right to distribute any Product developed as
defined herein by QMT and Collaborative may be renewed on an annual basis under
terms and conditions mutually agreed to by the parties at least sixty (60) days
prior to the expiration of any pre-existing period.
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3.7 Except as QMT may authorize in writing, Collaborative shall not
sell any Product outside of the Territory nor will it sell such Product to any
third party who intends to sell the Product outside the Territory.
3.8 QMT shall continue to market the Product within the boundaries of
the Territory. However, QMT agrees to direct all sales of the Product within the
Territory to Collaborative over the duration of the Agreement.
3.9 If QMT distributes the Product, then QMT will be entitled to a
distribution fee or commission comparable to any other distribution arrangements
that Collaborative has with third parties.
3.10 If either QMT or Collaborative manufacture the Product,
Collaborative has the right to purchase the Product for distribution at actual
cost.
3.11 Collaborative shall xxxx all customers and shall remunerate back
to QMT 50% of the profit contribution generated from the collected sales or from
any monies collected on a license agreement. For this purpose, profit
contribution shall be determined by subtracting the costs of goods sold and any
direct selling expenses incurred in connection with the sale from the derived
revenue. Such selling expense will include commission, distributor fees,
advertising, trade shows, travel and entertainment and other usual and customary
sales and marketing costs. Collaborative shall disburse such funds at least
quarterly.
3.12 Division of responsibilities that are specific to a particular
Product will be defined by Collaborative and QMT in the associated Product
Development and Distribution Agreements.
3.13 Subject to the definitions in this agreement, Collaborative and
QMT will further define Windfalls connected with the sale of a particular
Product in the associated Product Development and Distribution Agreements. The
parties understand that in such event, an even distribution of profits may not
be appropriate, and a one-time finders fee or the like may be more appropriate.
3.14 Collaborative shall provide quarterly reports showing total
revenues, any deductions for costs of product development, marketing, regulatory
costs and the like, and the division of profit. QMT shall have the right to an
annual audit, during regular business hours and with the prior notice and
consent of Collaborative, of the financial records of Collaborative as they
pertain to these calculations. In the event of underpayment of five percent (5%)
or more to QMT of profits as revealed by any such audit, Collaborative shall pay
the costs of such audit.
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Article IV - Protection of Intellectual Property
------------------------------------------------
4.1 Use of Intellectual Property: Each party agrees not to use the
other's Intellectual Property apart from manufacturing, selling, distributing
the Product , or in fulfilling their obligations under this agreement.
4.2 Ownership of New Intellectual Property: New intellectual property
created under Separate Service Agreements will be owned by QMT. The parties will
work to agree on the ownership of any new intellectual property arising out of
joint ventures of the parties that is developed independent of Separate Service
Agreements.
4.3 Transfer of Formulation and Related Research Information:
Collaborative agrees to transfer to QMT the research or other findings developed
under Product Development and Distribution Agreements or Separate Service
Agreements on a timely basis or upon demand.
4.4 Cooperation Requirement and Enforcement of Intellectual Property
Rights: Collaborative further agrees to assist and cooperate with QMT in
preparing and executing any and all documents, applications, assignments, and
any other legal instruments which QMT shall deem necessary for the protection of
Formula in the United States and/or in any foreign country, and to render aid
and assist in all proceedings pertaining to the protection of Formula at sole
cost and expense of QMT. Both parties agree to advise each other to the extent
that either party becomes aware of unauthorized activity by any third party
which infringes or is believed to infringe on the Intellectual Property rights
of either party to this Agreement. In the event that it is agreed that there is
a mutual interest in enforcing such rights, the parties agree to negotiate in
good faith to develop an enforcement strategy that will maximize the mutual
benefits of this Agreement, while at the same time limiting the exposure of each
party to economic hardship that may be incurred as a result of such enforcement
efforts.
4.5 Handling & Security: Parties will hold each other's Trade
Secrets, Formulation, Intellectual Property, and other confidential business
information in trust and confidence, and will not, directly or indirectly,
disclose, report, publish, license, transfer or otherwise use such information
without the written consent and authorization of the disclosing party or the
owner of said information. Parties shall apply the highest standards to guard
the secrecy of each other's described information and shall take such steps as
are necessary to guard against unauthorized transfer, disclosure, destruction,
duplication, or use of said information.
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4.6 Confidential Information: Confidential Information shall mean any
information or documents in connection with and relating to the Parties, each
other's products and proprietary information or documents relating to know-how,
show-how, concepts, ideas, techniques, business and marketing plans, financial
and market data and information, research data and information, customer and
perspective customer list, vendor list, employee and agent list, and other
proprietary information, whether or not reduced to writing, or reduced to
tangible or intangible medium, that the parties provided to each other under
this Agreement, except if such information:
(a) was already known to the receiving party;
(b) was made available to the receiving party on a non-confidential
basis when received;
(c) was lawfully obtained by the receiving party from a third-party
whereby the third-party obtained such information lawfully and
without violating any agreement of confidentiality or
non-disclosure; or
(d) was disclosed by the disclosing party in any document filed with
any government agency or authority and was lawfully available to
public for inspection.
4.7 Parties may disclose each other's disclosed information to any
full-time employees who are authorized to receive said information and whose
duties reasonably require such information; and
4.8 Parties may disclose each other's disclosed information pursuant
to a final, unappealable, governmental or court order if the receiving party
immediately notifies the disclosing party to allow the disclosing party to seek
a protective order.
4.9 Non-Compete: The Parties hereby agree not to use each other's
disclosed information, developed Formulation, or Product, directly or
indirectly, in competition with each other's business. Furthermore, the Parties
agree to confer with respect to other areas of their endeavors to ensure that in
zones unrelated to disclosed information, they will minimize or avoid directly
competing activities.
Article V - Representations & Warranties
----------------------------------------
5.1 Collaborative's Warranties and Representations: Collaborative
warrants that: the Product, developed Formulation, and Collaborative
Intellectual Property used and/or referenced herein do not infringe or violate
upon any third party's patent rights, trade secrets, confidentiality, and other
proprietary rights, with respect to and so far as the composition and procedures
used, adopted, and applied by Collaborative in connection with the development
of Formulation and/or Product.
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5.2 Collaborative's and QMT's Disclaimer: There are no other
warranties, express or implied, whether arising by operation of law, or usage of
trade, as to the condition, formulation, design, operation, merchantability,
quality of the material or workmanship, or the fitness of the products for
particular purpose, non-infringement of any patents or any other representations
or warranty whatsoever, unless such warranty is expressly described herein.
Article VI - Termination Procedure
----------------------------------
6.1 Cure Period: Parties shall provide each other a notice of breach
in advance of termination and provide the breaching party an opportunity to cure
said breach within 30 days from the date of the notice. If such breach continues
beyond the said cure period, the injured party may seek termination of this
Agreement pursuant to the procedures described herein.
6.2 Termination:
6.2.1 Good Cause: Subject to the Cure Period described under this
Agreement, either Party may cancel this Agreement with good cause by providing
the other with thirty (30) days written notice. Good Cause includes, but is not
limited to, non-performance that Party's obligations under this Agreement ,
under Product Development and Distribution Agreements or under Separate Service
Agreements in timely manner, including but not limited to, the failure to
achieve Milestones or failure to provide best efforts to execute defined Work
Plans on a timely basis, insolvency of either party, uncured material breach,
failure to meet product development or distribution milestones, or a change in
control of either QMT or Collaborative. Unless by mutual consent, termination of
this agreement will be in its entirety.
6.2.2 Without Good Cause: A party terminating this Agreement without
good cause, as described herein, shall be subject to all legal and equitable
liabilities and damages arising from this Agreement.
6.3 Upon Expiration or Termination of the Agreement: Upon expiration
of this Agreement, Parties will deliver to each other, except for maintaining
backup copies of the same in confidence, any and all documents, whether they are
in printed, chemical or electronic form, or tangible materials containing or
embodying, in whole or in part, each other's Trade Secrets and Confidential
Information, including but not limited to originals, copies, excerpts or
summaries, whether prepared by QMT or by Collaborative. Upon expiration or
termination of this Agreement, Parties shall cease using each other's Trade
Secrets, Intellectual Property and Confidential Information, apart from the
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permitted use under this Agreement. Upon termination of this Agreement, QMT may
require a smooth and orderly transition to an alternative manufacturer and
distributor, including the appropriate transfer of manufacturing technology and
interim supply agreements.
Article VII - Indemnification & Limitations of Liability
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7.1 Indemnification: Parties will indemnify, protect and hold
harmless each other against all suits, and from all damages, claims, demands,
costs and expenses, including counsel's fees, for (1) actual or alleged patent
infringements arising out of each other's representations and warranties, and
their respective negligence, (ii) any actual or alleged third-party claim
arising out of sale, distribution, or use of any products developed under this
Agreement.
7.2 Limitations of Liability: Each Party's sole liability and
exclusive remedies against each other shall be the amount QMT paid to
Collaborative under this Agreement. In no event shall the Parties be liable to
each other for special, direct, indirect, consequential or incidental damages.
7.3 Security Interest in Formulation: TBA
7.4 Attorneys' Fees and Costs: In the event of a dispute arising from
this Agreement, the prevailing party shall be entitled to recover reasonable
attorneys' fees, expert fees and other costs of enforcement. The parties agree
that in the event of any dispute, they shall confer in a good-faith effort to
resolve such dispute amongst themselves. In the event that such good-faith
efforts do not resolve the dispute, the parties agree to submit the dispute to a
mutually acceptable mediator, and the parties agree to equally share the cost of
such mediation. Failing resolution of such dispute at mediation, the parties
agree to submit the dispute to non-binding arbitration by a single, mutually
acceptable arbitrator, prior to initiation of any litigation.
Article VIII - General Provisions
---------------------------------
8.1 Governing Law: This Agreement shall be governed by and construed
under the laws of the State of New York, without regard to its conflict of laws
or choice of law rules.
8.2 Notice: All notices required or permitted by this Agreement shall
be in writing and shall be telecopied, and be deposited in a federal express or
in any express mail, postage prepaid, addressed to the party to whom such notice
is being given at the following addresses:
To QMT: Xxxxx Xxxxxx
President
Quick-Med Technologies, Inc.
000 X.X. 00xx Xxxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Facsimile: 000-000-0000
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To Collaborative: Xxxxx X. Xxxxxxx
President and CEO
The Collaborative Group, Ltd.
00 Xxxx Xxxx Xxxx
Xxxxx Xxxxx, XX 00000
(000) 000-0000
IN WITNESS WHEREOF, the Parties hereto have signed this Agreement as of
the date first above written.
THE COLLABORATIVE GROUP, LTD.
/s/ XXXXX XXXXXXX
---------------------------
Xxxxx X. Xxxxxxx
President and CEO
Date: August 14, 2002
QUICK-MED TECHNOLOGIES, INC.
/s/ XXXXXXX XXXXXXX Subject to completing workplans as acceptable to
--------------------------- QMT and Collaborative
Xxxxxxx X. Xxxxxxx
Chairman
Date: August 21, 2002
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SCHEDULE A
COLLABORATIVE INTELLECTUAL PROPERTY SUBJECT TO THIS AGREEMENT
TBA
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SCHEDULE B
QMT INTELLECTUAL PROPERTY SUBJECT TO THIS AGREEMENT
TBA
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PRODUCT DEVELOPMENT AND DISTRIBUTION AGREEMENT FOR ILOMASTAT
AS FORMLATED FOR SPECIFIC PERSONAL CARE PRODUCTS
This Product Development and Distribution Agreement ("the Agreement") is made
this 15th day of August, 2002 ("the Effective Date") by and between The
Collaborative Group, Ltd. ("Collaborative"), with a principal place of business
at 00 Xxxx Xxxx Xxxx, Xxxxx Xxxxx, Xxx Xxxx 00000 and Quick-Med Technologies,
Inc. ("QMT") with a principal place of business at 0000 XX 00xx Xxx,
Xxxxxxxxxxx, Xxxxxxx 00000, (together "the Parties").
WHEREAS QMT owns certain intellectual property rights ("QMT IP Rights") with
respect to certain matrix metalloproteinase inhibitory compounds ("the
Technology") which QMT wishes to develop into one or more commercial products;
and
WHEREAS Collaborative has experience in the fields of cosmetic and personal care
product development, has had experience working with the Technology, including
but not limited to experience with QMT's lead compound known as Ilomastat, and
based on this experience, believes that significant potential exists for the
development of one or more successful commercial products incorporating the
Technology; and
WHEREAS Collaborative wishes to specifically develop and distribute for QMT
commercial products addressing the following needs: Ilomostat and derivative
products with application in/as skincare, depilatories,
antiperspirant/deodorants, suncare, self-tanning, anti-aging, hair care, wound
care, topical disinfectants, topical analgesics, skin whitening, and shave
products in the fields of use detailed in the Master Agreement ("the Products");
and
WHEREAS Collaborative and QMT have identified their intention to work together
and abide by the terms and provisions of the master agreement between the
parties that, where applicable, governs this agreement ("the Master Agreement");
NOW, THEREFORE, for good and valuable consideration, the adequacy and
sufficiency of which is hereby acknowledged, the Parties hereby agree as
follows:
I. Research and Development Program
1.1 QMT grants to Collaborative an exclusive license for a period of one
year ("the Research and Development License Period") commencing with the
Effective Date of this Agreement to make, use and test certain compositions
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comprising the Technology in an effort to successfully develop the Products. QMT
agrees to pay Collaborative the sum of $125,000.00 within 45 days of execution
of this Agreement, with subsequent payments of $108,333.00 to be made at the end
of each ensuing quarter for a total of up to $450,000.00 less any funding
received from perspective licensee's. Extensions of the License Period or
changes in amounts to be paid by QMT must be agreed to in writing by both
Parties.
1.2 The parties will make Best Efforts to execute the Work Plan provided in
Schedule A outlining the specific tasks associated with product development and
distribution. For each Product, Collaborative's Work Plan shall include, but not
be limited to: (i) formulations to be tested; (ii) commercially relevant
benchmarks that will be used as comparators to formulations comprising the
Technology; (iii) appropriate descriptions of tests to be conducted; (iv) a
checklist of scientific, regulatory and market requirements ("the Checklist")
that need to be addressed in order to successfully commercialize the product;
(v) an analysis showing how the expected results from the Work Plan will address
the requirements defined in the Checklist ; and (vi) an initial distribution
plan ("the Distribution Plan"), that outlines marketing and distribution
activities that will be undertaken based on the available product
characteristics data.
1.3 Each party will provide to the other a written quarterly report of
their activities within fifteen (15) days of the end of each quarter. Topics to
be covered in Collaborative's quarterly reports shall contain, but not be
limited to, the following elements: For each Product, (i) a compilation and
analysis of data that is generated according to the Work Plan ; (ii) an
evaluation of the degree of completion of the Work Plan and any contingencies
encountered ; (iii) a discussion of remaining work to be completed; (iv) any
proposed changes of the Work Plan , Checklist or Distribution Plan as necessary
or appropriate from experience gained following the Effective Date of this
agreement; and (v) an overall assessment of whether the objectives of the
product development effort are being met, inclusive of associated timelines.
Topics to be covered in QMT's quarterly reports shall contain, but not be
limited to, the following elements: NAME REQUIREMENTS.
1.4 By providing to QMT this mutually acceptable Product Development and
Distribution Agreement, Collaborative is deemed to have exercised its Option to
Distribute the Product, (such Option to Distribute as defined in the Master
Agreement), and is therefore subject to its obligations to QMT under that Master
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Agreement. However, if at any time during the Research and Development License
Period defined herein, the parties mutually agree that a particular Product
cannot be successfully commercialized, or that further pursuit of an associated
Work Plan would not be productive, then both parties are relieved of further
obligation under this Product Development and Distribution Agreement with
respect to that Product. If the parties fail to agree with respect to a
particular Product, then resolution of such dispute will be governed by the
relevant terms of the Master Agreement.
II. Product Manufacturing, Marketing and Distribution
2.1 Based on data and analysis gathered during the Research and Development
License Period, if the parties mutually agree that a particular Product is
commercially viable, then the manufacturing, marketing and distribution of that
product will be governed by the Master Agreement between the parties. The
effective date for commencing Collaborative's distribution rights under that
agreement ("the Effective Distribution Date") will be the earlier of the ending
date of the Research and Development License Period or the date on which the
parties mutually agree that the first such Product has been developed. Within
thirty (30) days of such date, Collaborative will provide QMT with an initial
detailed Distribution Plan for commercializing the Product, including
manufacturing, marketing and distribution, as appropriate. The Parties will work
together to define a similar long term Distribution Plan that meets the
requirements of this Agreement and the Master Agreement.
2.2 Pursuant to their rights and obligations under the Master Agreement,
the Parties shall be bound by financial and other Milestone obligations and
treatment of Windfalls as defined in Schedule B. The Parties also acknowledge
that the outcome of product research and development cannot be known with
certainty, and therefore, reasonable expectations for financial or other
Milestones may evolve based an information gathered during the Research and
Development License Period. Based on such information, and no later than thirty
(30) days following the ending date of that Period, the Parties may negotiate in
Good Faith with respect to the financial or other Milestones or treatment of
Windfalls as defined in Schedule B. Milestones or treatment of Windfalls may be
then changed by mutual agreement of the Parties. If the Parties fail to agree,
then resolution of such dispute will be governed by the relevant terms of the
Master Agreement.
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IN WITNESS WHEREOF, the Parties hereto have signed this Agreement as of
the date first above written.
THE COLLABORATIVE GROUP, LTD.
/s/ XXXXX XXXXXXX
---------------------------
Xxxxx X. Xxxxxxx
President and CEO
Date: August 14, 2002
QUICK-MED TECHNOLOGIES, INC.
/s/ XXXXXXX XXXXXXX Subject to completing workplans as acceptable to
--------------------------- QMT and Collaborative
Xxxxxxx X. Xxxxxxx
Chairman
Date: August 21, 2002
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SCHEDULE A: WORK PLAN
TBA
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SCHEDULE B: MILESTONES AND WINDFALLS
B.1 MILESTONES FOR COLLABORATIVE
---------------------------------
B1.1 Collaborative will complete all relevant research and development work
necessary to begin commercializing each Product within the associated Product
Development License Period.
B1.2 Collaborative will develop an initial Distribution Plan for each
Product within thirty (30) days of the effective date for commencing its
distribution rights under the Master Agreement ("the Effective Distribution
Date") and ,working with QMT, Collaborative will develop a long term
Distribution Plan within ninety (90) days of that date that defines a
comprehensive program for manufacturing, marketing and distributing the
Product(s).
B1.3 Collaborative will develop at least one significant contract for sale
of each Product within one year of the Effective Distribution Date.
B1.4 QMT will realize a combined annualized run rate of net profit, from all
Products defined in this Agreement, of at least $1 million/yr within two years
of the Effective Distribution Date, with that annualized run rate increasing by
at least $750,000.00/yr with each succeeding year beyond the Effective
Distribution Date.
B.2 WINDFALLS FOR COLLABORATIVE
--------------------------------
B2.1 As the Parties agree that Collaborative's unique capabilities
substantially entail adding value to the Technology through its proprietary
intellectual property, the sale of Products that have not been enhanced through
Collaborative's unique product development or manufacturing capabilities are
construed as Windfalls. Collaborative shall be entitled to 25% (rather than 50%)
of the net profits derived from such sales.
B2.2 The proceeds of a sale by QMT of a Technology or Product or any other
payment for conveyance of rights to QMT intellectual property during the period
of this Agreement or the Master Agreement are not part of this Agreement or the
Master Agreement insofar as these agreements pertain to sale of Products but not
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sale of intellectual property. If Collaborative has provided a significant role
in securing such a transaction, then the Parties will negotiate in Good Faith to
determine an appropriate compensation for Collaborative.
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