EXHIBIT 10.5
MASTER AGREEMENT FOR PROFESSIONAL SERVICES
THIS MASTER AGREEMENT ("the Agreement"), which sets forth the terms and
conditions of services to be provided by Symbion Research International, Inc., a
California corporation with its principal place of business located at ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, hereinafter referred to as
"Symbion". CytoDyn, Inc., a Colorado corporation, with its principal place of
business located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇. #▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ hereinafter
referred to as, "CytoDyn", is made effective as of the 1st day of October, 2003
by and between Symbion and CytoDyn.
NOW THEREFORE, for and in consideration of the mutual covenants and obligations
by the parties hereto, it is agreed as follows:
1. Scope of Services
Symbion, pursuant to the pro visions of this Agreement, as retained by
CytoDyn to perform consulting and contract research services in support of
CytoDyn's interests in developing its product(s) for potential therapeutic,
diagnostic, and/or other reasonable application(s).
2. Responsibility of CytoDyn
CytoDyn is responsible for determining whether the services to be provided
meet its requirements. CytoDyn shall provide Symbion with all information
and data required to complete the work requested. CytoDyn shall act in good
faith to fulfill its responsibilities ▇▇▇▇ which timely completion of
Symbion's tasks depends and. to provide reasonable and timely reviews of
work as agreed by both Parties.
3. Responsibility of Symbion
Symbion agrees that the conduct of services performed hereunder shall be
undertaken in full compliance with this Agreement, other written
instructions from CytoDyn that have been agreed to by Symbion, and
according to all applicable laws and regulations. Symbion shall not publish
the results of the work conducted under this Agreement except by mutual`
agreement with CytoDyn, but selected representative(s) of Symbion, with
Symbion's agreement, may be included as co-author(s) on publication(s) by
CytoDyn or its representatives or collaborators.
4. Financial Arrangements - Payment Schedule and Terms
Symbion will ▇▇▇▇ CytoDyn for consulting services at a rate of $175 per
hour for associate director and director level staff and $225 per how for
vice president and president/CEO level staff. These rates may be reviewed
annually and renegotiated if necessary to cover increases in
salaries/professionaI fees resulting from cost-of-living/periodic
salary/fee increases.
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Symbion and CytoDyn
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An advance payment will be made to Symbion in the amount of $25,000; of
this amount, $5,000 will serve as a retainer and $20,000 will be applied
against billing for services executed under this Agreement. The final
invoice(s) for services rendered and expenses incurred will reconcile the
advance payment balance, if applicable with balance due from CytoDyn. Upon
the termination of this Agreement; in the event that the sum of payments
received by Symbion exceeds the cost of all services completed and
associated expenses (due to advance payment), CytoDyn will be reimbursed
the difference.
CytoDyn shall reimburse Symbion for all out of pocket expenses (including
but not limited to airfare, ground transportation, hotel, meals, etc.)
reasonably incurred by Symbion or any officers, employees, or agents of
Symbion in -connection with performing services under this Agreement and
with the prior approval of CytoDyn. CytoDyn shall reimburse Symbion other
reasonable expenses incurred which are incidental to the services performed
hereunder and which have been approved in advance by CytoDyn. Travel costs
and other expenses claimed must be itemized. The invoice must be
substantiated by receipts for transportation and lodging ane. all other
items for expenses amounting to more than $25.00 where receipts are
normally issued. Payments for services and reimbursement for expenses
incurred will be made within fifteen (15) days after receipt by CytoDyn of
an invoice from Symbion.
For contract research services, as those performed for clinical trial
conduct, Symbion will ▇▇▇▇ CytoDyn at rates that will be fully set forth in
Project Agreement(s) which will be attached hereto; each such Project
Agreement will be numbered individually and in sequence beginning with "No.
1" and will become a part of and subject to this Agreement. Each Project
Agreement shall be agreed upon by both parties and shall set forth with
specificity the following: (a) description of the project; (b) services and
deliverables to be provided by Symbion; (c) the budget and projected
timeline for completion of the Project; and (d) the payment schedule for
such services and deliverables. Any changes or modifications to a Project
Agreement shall be mutually agreed upon in writing, and attached as an
amendment to the applicable Project Agreement and thereby incorporated
herein. Symbion and CytoDyn shall sign each mutually accepted Project
Agreement and any modification or change thereto. There shall be no minimum
or maximum limit to the number of Project Agreements that the Parties may
incorporate under this Agreement. In the event that the terms of Project
Agreement conflict with the terms of this Agreement, the term of this
Agreement shall govern unless the Project Agreement specifically references
this Agreement and indicates that the terms of the Project Agreement shall
govern. CytoDyn will be billed for services completed and associated
expenses on either a biweekly or monthly schedule.
5. Term and Termination of Agreement
This Agreement shall start on the effective date set forth above and end
when terminated in accordance with the following.
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Symbion and CytoDyn
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Either CytoDyn or Symbion may terminate this Agreement for any reason, by
providing Sixty (60) days written notice to the other Party. In such event,
a mutually agreeable schedule will be drawn up to facilitate the transition
of responsibilities and, transfer of information between the Parries. In
the event of termination, Symbion shall be entitled to payment for any
portion of services completed and for expenses incurred up to the date
termination is effective. Additionally, Symbion shall be reimbursed any and
all properly incurred non-cancelable costs and expenses which cannot be
mitigated through Symbion's reasonable efforts and fees reasonably incurred
to close-out Symbion's participation in services undertaken for CytoDyn.
Payment is due twenty (20) days after receipt by CytoDyn of an invoice from
Symbion. In the event of termination, concurrent with final payment,
Symbion will provide to CytoDyn all the work completed. In the event that
the payments received by Symbion exceed the cost of the work completed,
CytoDyn will be reimbursed the difference within twenty (20) days of the
effective date of termination.
6. Default
Should either Party default in the performance of this Agreement or
materially breach any of its provisions, the other party may terminate this
Agreement if the breaching Party fails to cure the breach within thirty
(30) days after receipt of written notice from the non-breaching Party,
such notice specifying in writing the breach. For purposes of this section,
material breach of the Agreement shall include, but not be limited to,
failure to meet upon milestones, destruction of property, dishonesty,
theft, or any actions which would tend to disparage the business reputation
of eithier Party in the community.
7. Force Majeure
A Party shall not be liable for its delay in performance or failure to
perform this Agreement if such delay or failure is due to an act of God or
any other occurrence beyond the control of such Party, including, without
limitation, fire, earthquake, explosion, disease, war, invasion, terrorism,
government acts, weather, flood, civic unrest, emargos, or strikes,
provided however that the Party whose performance is affected uses and
continues to use commerically reasonable efforts to overcome such
occurrence.
8. Symbion/CytoDyn Relationship
8.1. Independent Contractor
Symbion shall perform all of the work under this Agreement as an
independent contractor. Neither Symbion or any officer, employee, or agent
of Symbion is an employee, partner, representative, or joint venturer of,
of with, CytoDyn, and nothing in this Agreement shall be construed to
create such a relationship. Neither Party shall have the power or right to
bind or obligate the other. Both Parties acknowledge that neither Symbion
nor any officer, employee, or agent of Symbion is an employee of CytoDyn
for state or federal tax purposes.
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Symbion and CytoDyn
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8.2 Advisory Capacity
Symbion will provide its best efforts and-opinions. CytoDyn is responsible
for final decisions concerning the use of the work provided.
8.3 Work with Computers
Symbion and CytoDyn agree that during the term of this Agreement, or ay
extension or renewal thereof, Symbion may contract for work with other
persons, firms, or corporations engaged in the same or similar business as
that of CytoDyn, provided that Symbion does not disclose or use the
confidential information of CytoDyn.
8.4 Employment
During the tern of this Agreement and for one (1) year after thetermination
of this Agreement, CytoDyn agrees that it will not hire, offer employment
to, or otherwise employ or retain as an independent contractor any of
Symbion's officers, employees, or agents without the prior written consent
of Symbion.
8.5 Confidentiality
Each party agrees to treat any confidential or proprietary information
provided by the disclosing party as the confidential and exclusive property
of the disclosing party, provided that this information (a) is not already
in the public domain, (b) is not previously known to the receiving party
has evidenced by its written records (c) not consist of computer
programming, statistical methods of analysis, or clinical research methods
developed by Symbion in completing this Agreement or independently from any
work performed under this Agreement; (d) not consist of information,
inventions, discoveries, ideas, data, concepts, methods, know-how, and/or
techniques developed before independently from any work performed under
this Agreement (e) is not furnisdhed by a third party not bound to
confdentiality with the disclosing pary, or: (f) is not required by law to
be disclosed (but only to the of such requirement). The receiving party may
disclose confidential and proprietary information of the disclosing party
to its officers employees or agents, or to the disclosing party's officers,
employees or authorized agents/representatives, as may be neccssary to
perform its obligations hereunder. To that end, the receiving party agrees
to take all reasonable steps to ensure that confidential and proprietary
information shall not be used by its officers, employees, and agents except
on like terms of confidentiality as aforesaid, and that it shall be kept
fully private and confidential by them. The terms in this Paragraph survive
the the termination or expiration of this Agreement.
8.6 Ownership
All materials provided by CytoDyn are deemed to be owned by CytoDyn and
shall be returned at the conclusion of the work covered by this Agreement
of upon the request of CytoDyn. Except for Background Technology (defined
below), all information and
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Symbion and CytoDyn
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inventions generated by Symbion under this Agreement for CytoDyn shall be
owned by CytoDyn upon receipt of payment for said information and
inventions in full by Symbion, except as specified following in this
paragraph. However, nothing in this Agreement shall prohibit or limit
Symbion's use of ideas, concepts, know-how, methods, code, techniques,
skill, knowledge and experience that were used, developed or gained in
connection with this Agreement or any Project Agreement, except with regard
to any confidential information of CytoDyn. "Background technology" is
defined as all computer programming methods, statistical mehtods of
analysis, clinical research and other methodoloies, objects, subroutines
and other programs, data and materials developed or licensed outside of
this Agreerment and the Profject Agreement hereunder. Symbion shall retain
all rights and interest to its confidential and proprietary information,
including the Background Technology. All information by Symbion for CytoDyn
under this Agreement shall be delivered to CytoDyn according to the terms
of this Agreement at the completion of this Agreement, or upon CytoDyn's
request, provided that Symbion is in receipt of full payment for services
performed to generate said information. Symbion reserves the rights to
information, inventions, discoveries, improvements, ideas, data, concepts,
methods, know-how, and techniques propriety to Symbion or that have been
developed by Symbion before the effective date of this Agreement.
8.7 Indemnification
CytoDyn shall indemnify and hold harmless Symbion and Symbion's officers,
employees, and agents from and against any obligations, costs, claims,
judgments, attorney's fees, and attachments arising from or in any way
connected with the services rendered hereunder, including, but not limited
to, loss of data or loss of revenue unless Symbion is guilty of gross
negligence, reckless disregard of duties, or willful miscondent.
Symbion shall idemnify and hold harmless CytoDyn, its officer, employees,
and agents from and against any an all liability, loss, costs, claims,
judgments, and attorneys' fees on account of injuries (including death) to
Symbion or any of Symbion's officers, employees, agents, or, loss ofor
damage to their or Symbion's property arising out of or resulting in any
manner from or occurring in connection with Symbion's performance of
services hereunder unless caused by the gross negligence, reckless
disregard of duties, or willful misconduct of CytoDyn.
9. Previous Agreement
This Agreement institutes the entire agreement between the Parites hereto
relating to the subject matter hereof, an supersedes all previous oral,
written, and all contermporaneous oral agreements or understandings between
the Parties. This Agreement may not be modified or amended except by a
written agreement signed by both Symbion and CytoDyn.
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Symbion and CytoDyn
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10. Severance
If any one or more provisions of this Agreenient shall be found to be
illegal or unenforceable in any respect, the validity, legality, and
enforceability of the remaining provisions shall not in any way be affected
or imparied thereby, provided the surviving Agreement materially compares
with the original Parties' intent.
11. No Assignment
The rights and obligatins of each party under this Agreement shall bind and
inure to the benefit of its succesors, if applicable. Neither party may
assign this Agreement or any rights or duties hereunder to any other party
without prior written consent of the other party.
12. Governing Law
Symbion and CytoDyn agree that any dispute arising under this Agreement or
as a result of the relationship created by this Agreement shall be
submitted to binding arbitration in Los Angeles, California. This Agreement
shall be deemed entered into and performed by both Paries in the State of
California and sha11 be construed and interpreted in accordance with the
laws of the State of California
13. Headings
The heading of this Agreement are intended solely for convenience of
reference and shall be given no effect in the construction interpretation
of this Agreement.
14. Counterparts
This Agreement may be executed simultaneously in multiple counterparts,
each of which shall be deemed to be an original but all of which together
shall constitute one and the same Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
duly authorized representatives.
SYMBION CYTODYN
Symbion Research International Inc. CytoDyn, Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇. Ph.D. By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇. Ph.▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President & CEO Title: Chairman, President & CEO
Date: February 24, 2004 Date: January 10, 2004
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