exv10w31






Exhibit 10.31




CRO SERVICES AGREEMENT



This CRO Services Agreement (the “Master Agreement”) is entered into as of March 25th, 2010 (the
“Effective Date”) by and between Kips Bay Medical, Inc. with a principal place of business at 3405
Annapolis Lane North, Suite 200 Minneapolis, MN 55447(the “Sponsor”) and Symbios Clinical, Inc.
with a principal place of business at 3787 95th Ave. NE Suite 100 Blaine, MN 55014
(“Symbios”).



WHEREAS, the Sponsor desires to engage Symbios for the purpose of assisting the Sponsor in,
clinical activities, as described in the attached Project Agreement during the period of this
Agreement; and



WHEREAS, Symbios is a Contract Research Organization (CRO) supporting medical device research, and
is willing and able to provide consulting services to the Sponsor according to the terms and
conditions set forth herein.



NOW, THEREFORE, in consideration of the foregoing and the mutual promises and covenants contained
below, the parties agree as follows:



1. Engagement for CRO Services. Pursuant to the terms of this Agreement, the
Sponsor hereby engages Symbios and Symbios hereby accepts such engagement, to consult and provide
CRO services with the Sponsor with respect to its business upon the Sponsor’s request. Symbios is
an independent contractor, and unless specifically authorized in writing by Sponsor, Symbios shall
have no authority to act on behalf of or bind the Sponsor in any way by any promise,
representation, or agreement. Unless specifically authorized in writing by Symbios the Sponsor
shall have no authority to act on behalf of or bind Symbios in any way by any promise,
representation, or agreement. No employee or other person working for or on behalf of a party
shall be considered to be an employee of the other party under any circumstance or for any purpose,
including but not limited to, healthcare or other employee benefits, workmen’s compensation and
unemployment insurance; payment of Federal and State income taxes; estimated taxes; any sales, use
and services taxes; and all other Federal, State, local, and foreign taxes of any nature imposed
with respect to any services or payment under this Agreement.



2. Services to be Rendered




     2.1 Project Agreements. Symbios agrees to provide services to the Sponsor as
requested by the Sponsor in connection with activities to be specified during the period of each
individual Project Agreement. The CRO services to be performed by Symbios shall be set forth in a
Project Agreement executed by the parties and in the form attached to this Master Agreement. Each
Project Agreement shall set forth a description of the project; Study Assumptions, Deliverables,
Study Timeline, and Scope of Work; Study Budget and CRO Service Fees; Payment Terms, if different
than section 4.2 of this Master Agreement. Symbios may at its discretion subcontract work outlined
in the Project Agreement. Any such work shall involve an agreement between Symbios and the
subcontractor, and will not alter the terms of this Master Agreement. A Project Agreement shall be
valid and enforceable when signed by an authorized representative of both parties. Additional work
shall not be performed beyond the description, time and cost stated in the Project Agreement,
unless an additional or amended Project Agreement is executed by an authorized representative of
both parties.



     2.2 Ownership.



          (a) Symbios Documents and Other Technology. Unless otherwise set forth in the
relevant Project Agreement, all document templates used or developed by Symbios in performing the
services hereunder (“Symbios Documents”) shall at all times remain the sole and exclusive property
of Symbios, excluding any Confidential Information of Sponsor contained therein. Symbios hereby
grants to Sponsor a non-exclusive, royalty-free, limited license, to use the Symbios Documents
solely in conjunction with the Project Agreement. Any other technology or materials used by
Symbios in the



					
	 	 	 	 	 
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performance of any services hereunder shall be set forth in the relevant Project Agreement, and the
Project Agreement shall also set forth the ownership rights of the parties in such technology or
materials, as applicable to each individual project.




          (b) Ownership of Intellectual Property. Except for the portion of the Symbios
Documents not containing Confidential Information, Sponsor will own all right, title and interest
in and to any and all deliverables, specifications or other materials developed, originated or
conceived by Symbios in the performance of its obligations under this Agreement (including, but not
limited to, all inventions, ideas, processes, trade secrets, methods, formulas, algorithms, data,
programs, works of authorship, improvements, designs, devices, and techniques conceived or
originated by Symbios with use of Confidential Information or in the course of providing services
hereunder) regardless of the form in which it is provided to Sponsor. Subject to Symbios’
ownership rights in the Symbios Documents as set forth in Section 2.2(a), Symbios hereby assigns to
Sponsor all right, title and interest in and to such deliverables, Specifications and other
materials, whether or not patentable or registrable under copyright or similar statutes, made or
conceived or reduced to practice or learned by Symbios, either alone or jointly with others, as a
result of Symbios’ performance of this Agreement. Where applicable, original works of authorship
that are made by Symbios, either alone or jointly with others, as a result of Symbios’ performance
under this Agreement and which are protectable by copyright are “works made for hire,” pursuant to
the United States Copyright Act (17 U.S.C., §101).


3. Period of the Contract




     3.1 Term. The contract period shall extend five (5) years from the date of this
Agreement and shall renew automatically for a period of one year unless terminated as provided
herein.



     3.2 Termination. Either party may terminate the Agreement: (a) at any time upon
written notice, effective 30 days after receipt by the other party of the notice; (b) due to a
material breach of this Agreement by the other party, which is not cured within thirty (30) days of
receipt of written notice thereof; or (c) at any time effective immediately upon notice to the
other party if a party files a petition of any type as to its bankruptcy, is declared bankrupt,
becomes insolvent, makes an assignment for the benefit of creditors, goes into liquidation or
receivership, or otherwise loses legal control of its business.



     3.3 Effect of Termination.



          (a) Return of Confidential Information; Submission of Materials. Within thirty (30)
days of termination of this Agreement for any reason, Symbios will return or destroy all copies of
the Confidential Information (as defined in Section 5), and will provide written certification of
destruction, if requested by Sponsor. Upon termination of this Agreement for any reason, any work
undertaken by Symbios up to the date of termination, whether or not completed, will be submitted to
Sponsor within ten (10) days after the effective date of termination and Symbios shall not retain
any copies thereof except that Symbios may retain those portions of the Symbios Documents that do
not contain any Confidential Information.



          (b) Payment. Sponsor’s sole obligation on termination shall be the pro rata payment
to Symbios of fees earned and the entirety of any approved expenses incurred by Symbios as a result
of work actually performed prior to the effective date of the termination.



          (c) Survival. Sections 2.2, 3.3, and 5 through 11 will survive termination or
expiration of this Agreement for any reason.



					
	 	 	 	 	 
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4. Compensation




     4.1 Fees and Expenses. For the CRO services described herein, Symbios fees vary based
on the volume of work and the level of expertise required. The fees charged for specific projects
will be as expressly set forth in the applicable Project Agreement. Symbios shall be reimbursed by
the Sponsor for pre-approved expenses incurred by Symbios in performing duties under this
Agreement, including, without limitation travel, supplies, shipping, and third-party vendor
services expenses incurred by Symbios in rendering services. Reimbursement of such expenses shall
be made on the basis of itemized statements submitted by Symbios. Upon request, Symbios shall make
available any supporting documentation (e.g. receipts) for such expenses.



     4.2 Payment. Unless otherwise stated in the Project Agreement, Symbios will invoice
the Sponsor on a monthly basis for time and expenses incurred during the previous month. Upon
acceptance of the deliverables by Sponsor pursuant to the applicable Project Agreement, payment of
fees and reimbursement for expenses shall be made within thirty (30) days of receipt of an itemized
monthly invoice and evidence of expenditures from Symbios.


5. Confidential Information - The parties recognize that all of the Sponsor’s
proprietary and/or confidential information including, but not limited to, operating methods,
technology, ideas, data, devices, trade secrets, inventions, patents, patent applications,
trademarks, trademark applications, processes, improvements, know how, other works of authorship,
designs, marketing and regulatory strategy, customer lists, and any other proprietary or
confidential information (“Confidential Information”) of the Sponsor is unique and was developed or
acquired at great cost to and investment by the Sponsor. As such, any Confidential Information
obtained by Symbios from the Sponsor since the Effective Date, regardless of the form in which it
was disclosed, shall be kept secret and not revealed, divulged, used, or made known to anyone,
except as required by law (based on the opinion of Symbios’ legal counsel and provided that Symbios
provides the Sponsor with reasonable advance notice of such required disclosure, use, release or
divulgence) or to discharge Symbios’ duties described herein.




     5.1 Information is not confidential or proprietary if it is in the public domain at the time
the Sponsor discloses it to Symbios, was known to Symbios prior to the Effective Date and disclosed
under no duty of confidentiality, or becomes known to Symbios from a source independent of the
Sponsor and such source is under no duty of confidentiality to Sponsor.



     5.2 Symbios may disclose confidential and proprietary information acquired as a result of this
Agreement only to its employees, agents or affiliates who (a) have a need to know such information
for the purpose of Symbios’ performance hereunder, and (b) are subject to a confidentiality or
nondisclosure agreement substantially similar to the confidentiality and nondisclosure terms set
forth in this Agreement that protects as confidential any information disclosed as a result of this
Agreement.


6. Representations, Indemnification and Limitation of Liability.




     6.1 Representations. Symbios represents the following to Sponsor: (a) Symbios’
performance of the terms of this Agreement does not breach any other arrangement or agreement to
which Symbios or any of its employees are a party, or create any conflict of interest on the part
of Symbios or any of its employees whatsoever; (b) all deliverables will conform to the activities
and specifications detailed in the Project Agreement (the failure of the deliverables to so match
the specifications detailed in the Project Agreement will be promptly cured by Symbios at the
Sponsor’s request during the term of this Agreement).



					
	 	 	 	 	 
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     6.2 Indemnification. Symbios will indemnify, defend and hold Sponsor harmless against
any and all losses, damages, demands, costs and expenses, including reasonable attorney’s fees,
arising from any suit, claim or proceeding brought against Sponsor by a third party relating to:
(i) use of the Symbios Documents and other technology; and (ii) a breach by Symbios of its
obligations under this Agreement, including, without limitation, the representations described in
Section 6.1. The Sponsor will promptly notify Symbios of any such claim, and will provide
reasonable cooperation and assistance to Symbios in defending the action by providing, at Symbios’
expense, the information and assistance Symbios reasonably needs.


Sponsor agrees to defend, indemnify and hold Symbios harmless against any and all losses, damages,
demands, costs and expenses, including reasonable attorney’s fees, arising from any suit, claim or
proceeding brought against Symbios by a third party relating to: (i) implementation or use of the
Sponsor Documents (including but not limited to study protocol and case report forms) and other
technology; (ii) a breach by the Sponsor of its obligations under this Agreement and (iii) defect
or malfunction related to the Sponsor’s device. Symbios will promptly notify the Sponsor of any
such claim, and will assist Sponsor in defending the action by providing, at Sponsor’s expense, the
information and assistance Sponsor reasonably needs. except to the extent that such losses, costs,
claims, demands, judgments or liability are due to Symbios’s negligence or wrongful act(s).




     6.3 Limitation of Liability. Neither party will be liable to the other for any
special, incidental, consequential, indirect, or punitive damages (including, without limitation,
loss of profits), even if advised of the possibility thereof.


7. Waiver and Modification; Severability - No breach of any provision of this
Agreement by the parties can be waived unless it is in writing. Waiver of one breach shall not be
deemed a waiver of any other breach of the same or any other provision in the Agreement. This
Agreement can be modified only by written agreement of both parties. If any provision of this
Agreement is found unenforceable under any of the laws or regulations applicable thereto, that or
provision term will be deemed stricken from this Agreement, but such invalidity or unenforceability
will not invalidate any of the other terms or provisions of this Agreement.



8. Governing Law - The laws of the state of Minnesota will govern the validity,
construction, and performance of this Agreement.



9. Entire Agreement; Assignment; Binding Effect. - This document and all
attachments hereto constitute the entire Agreement of the parties. In the event of a conflict
between the terms of this Agreement and any Project Agreement, the terms of the Project Agreement
shall control. For the convenience of the parties hereto, this Agreement may be executed in any
number of counterparts, each of which shall be deemed an original for all purposes, and all of
which, taken together, shall upon execution and delivery of identical counterparts by both of the
parties, comprise a single agreement. This Agreement supersedes any and all prior oral or written
agreements, arrangements, or communications by and between the parties with respect to the subject
matter hereof. Symbios shall not assign any of its rights or obligations under this Agreement
without the prior written consent of Sponsor. This Agreement shall be binding on the parties
hereto and their respective successors and permitted assigns.



10. Force Majeure. Neither party shall be liable for its failure to perform any
of its obligations under this Agreement due to any circumstances beyond its reasonable control,
including, without limitation, acts of government, riots, disturbance, war, strikes, prolonged
shortage of supplies, fire, flood, and other natural disasters, provided that the party
experiencing the delay promptly notifies the other of the delay.



11. Notices. Any notice required or permitted to be given under this Agreement
will be in writing and will be deemed effective on the personal delivery of that notice, if mailed,
forty-eight (48) hours after being deposited in the United States mail, postage prepaid, and
addressed to the party to whom it is directed at the address set forth above (or such other address
provided in writing to the other party).




					
	 	 	 	 	 
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed for and on behalf
of each through their employee or agent duly authorized to execute this Agreement, to be effective
as of the date provided on the first page of this Agreement.




	 	 	 	 	 	 	 	 	 

	For:

	 	Symbios Clinical, Inc.
	 	For:
	 	Kips Bay Medical, Inc	 	 
	 
	 	 	 	 	 	 	 	 
	By:

	 	/s/ Ryan Wilson
 

	 	By:
	 	/s/ Michael P. Winegar
 

	 	 
	 
	 	 	 	 	 	 	 	 
	Name:

	 	Ryan Wilson
	 	Name:
	 	Michael P. Winegar	 	 
	 
	 	 	 	 	 	 	 	 
	Title:

	 	President and CEO
	 	Title:
	 	VP/COO	 	 
	 
	 	 	 	 	 	 	 	 
	Date:

	 	March 31, 2010
	 	Date:
	 	March 29, 2010	 	 






					
	 	 	 	 	 
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PROJECT AGREEMENT NO. 1

FOR: KIPS EMESH STUDY



This Project Agreement dated the 25th day of March 2010 (the “Effective Date”) is between Kips Bay
Medical, Inc (“Sponsor”) located at 3405 Annapolis Lane North, Suite 200 Minneapolis, MN 55447
(“Symbios”) located at 3787 - 95th Avenue NE, Suite 100, Blaine, MN 55014 is the first project
agreement issued to the Sponsor under the CRO Services Agreement dated March 25, 2010 (hereafter
referenced as the “Master Agreement”). Pursuant to the Master Agreement, Symbios has agreed to
perform certain Services in accordance with written Project Agreements, such as this Project
Agreement, entered into from time to time describing such Services. This Project Agreement sets
forth the obligations of the parties with regard to conducting the clinical research study entitled
“Kips eMESH Study” (“Study”).



The parties hereby agree as follows:





	1.	 	 Project Agreement. This document constitutes a “Project Agreement” under the
Master Agreement and this Project Agreement and the services contemplated herein are subject
to the terms and provisions of the Master Agreement and all amendments to the Master
Agreement.
	 
	2.	 	 Services and Payment of Fees and Expenses. The specific services contemplated
by this Project Agreement (the “Services”) and the related payment terms and obligations are
set forth on the following attachments, which are incorporated herein by reference:





	 	 	 	 	 	 	 

	 

	 	Exhibit
	 	A:
	 	Study Assumptions, Deliverables, Timeline, and Scope
	 

	 	Exhibit
	 	B:
	 	Study Budget & CRO Service Fees
	 

	 	Exhibit
	 	C:
	 	Payment Terms







	3.	 	 Term. The term of this Project Agreement shall commence on the Effective Date
hereof and shall continue study completion (i.e. all sites are closed), unless this Project
Agreement is terminated in accordance with section 3.2 of the Master Agreement.
	 
	4.	 	 Standard Operating Procedures. Symbios, in cooperation with Sponsor, shall
conduct the Study according to the formats and procedures set forth in Symbios’s Standard
Operating Procedures (“SOPs”) for data management related aspects of the Study.
	 
	5.	 	 Change in Scope Activities. With respect to any proposed change in work set
forth in Exhibit A through C (“Change in Scope”), the parties agree that prior written
approval by both parties is required. The prior written approval must include a full
description of effort, time and expense of the Change in Scope. The parties agree to use best
efforts to diligently negotiate in good faith a mutually acceptable budget for any revision to
the Change in Scope services in a timely manner.
	 
	6.	 	 Injunctive Relief. The parties acknowledge that damages for any actual or
anticipated breach of this agreement may be difficult or impossible to measure and therefore
agree that in addition to any other legal or equitable rights, either party shall be
entitled to obtain temporary or permanent injunctive relief to enforce the terms hereof, all
without notice or bond.





					
	 	 	 	 	 
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized
representatives as of the Effective Date stated above.




	 	 	 	 	 	 	 	 	 

	For:

	 	Symbios Clinical, Inc.
	 	For:
	 	Kips Bay Medical, Inc	 	 
	 
	 	 	 	 	 	 	 	 
	By:

	 	/s/ Ryan Wilson
 

	 	By:
	 	/s/ Michael P. Winegar
 

	 	 
	 
	 	 	 	 	 	 	 	 
	Name:

	 	Ryan Wilson
	 	Name:
	 	Michael P. Winegar	 	 
	 
	 	 	 	 	 	 	 	 
	Title:

	 	President and CEO
	 	Title:
	 	VP/COO	 	 
	 
	 	 	 	 	 	 	 	 
	Date:

	 	March 31, 2010
	 	Date:
	 	March 29, 2010	 	 






					
	 	 	 	 	 
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EXHIBIT A – STUDY ASSUMPTIONS, DELIVERABLES, TIMELINE, AND SCOPE




PROJECT AGREEMENT NO. 1

FOR: KIPS eMESH STUDY



	 	 	 	 	 
	 	 	Activity	 	Assumptions
	 

	 	IP and Consent Development	 	 
	 
	 	 	 	 
	 

	 	Monitoring Plan	 	 
	 
	 	 	 	 
	 

	 	Data Management Plan	 	 
	 
	 	 	 	 
	 

	 	Communication Plan	 	 
	 
	 	 	 	 
	 

	 	Case Report Form (worksheet development)	 	 
	 
	 	 	 	 
	 

	 	Edit Checks (development)	 	 
	 
	 	 	 	 
	Study Start-Up

	 	CRF and Edit Check End User Validation
	 	Estimated hours of 50 CPM hours per month and
	 
	 	 	 	 
	 

	 	CEC Manual of Operations	 	 
	 
	 	 	 	 
	 

	 	Start-Up Packet Template	 	 
	 
	 	 	 	 
	 

	 	Regulatory Binder Template	 	 
	 
	 	 	 	 
	 

	 	Patient Binder Template	 	 
	 
	 	 	 	 
	 

	 	Study Binder Preparation	 	 
	 
	 	 	 	 
	 

	 	Day-to-day management/oversight of all activities and team members, including site activation, ongoing site management, data management, project schedule, timelines	 	 
	 
	 	 	 	 
	 

	 	Coordination with internal functional groups, and other vendors	 	 
	 
	 	 	 	 
	 

	 	Protocol deviation and monitoring action item metrics and trending	 	 
	 
	 	 	 	 
	 

	 	Reporting on study progress including monitoring and data management metrics	 	 
	 
	 	 	 	 
	 

	 	Amend required documents as needed (monitoring plan and data management plan, IP in coordination with sponsor)
	 	14 months of enrollment
	 
	 	 	 	 
	Trial Management

	 	Maintain study project files
	 	12 months post-enrollment
	 
	 	 	 	 
	 

	 	Study team training	 	 
	 
	 	 	 	 
	 

	 	Submit SAE reports to sponsor	 	 
	 
	 	 	 	 
	 

	 	Coordination of investigator meetings	 	 
	 
	 	 	 	 
	 

	 	Management of CEC, management and coordination including scheduling and preparation for CEC meetings	 	 
	 
	 	 	 	 
	 

	 	Facilitate DSMB Meetings, and preparation for DSMB meetings	 	 
	 
	 	 	 	 
	 

	 	Create and distribute mailings (newsletter, study memos, etc.) Create annual and final reports	 	 








					
	 	 	 	 	 
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	 	 	Activity	 	Assumptions
	 

	 	Obtain all required documents for site activation (IRB approval, informed consent, contact, etc).	 	 
	 
	 	 	 	 
	 

	 	Obtaining and reviewing all required documents for ongoing site participation, including IRB renewals and consent changes.	 	 
	 
	 	 	 	 
	 

	 	Center training regarding protocol and data collection.	 	 
	 
	 	 	 	 
	 

	 	Communicate with sites to resolve queries.	 	 
	 
	 	 	 	 
	 

	 	Obtain SAE supporting documents.
	 	16 sites activated
	 
	 	 	 	 
	 

	 	Ensuring protocol compliance and protocol deviation completion.
	 	45 pre-activation site-months
	 
	 	 	 	 
	Site Management

	 	Follow-up with site to ensure completion of any monitoring action items.
	 	371 pre-activation site-months
	 
	 	 	 	 
	 

	 	Develop & implement plans to address site issues.	 	 
	 
	 	 	 	 
	 

	 	Site communications and study updates.	 	 
	 
	 	 	 	 
	 

	 	Ongoing training of new personnel.	 	 
	 
	 	 	 	 
	 

	 	Follow-up visit window reminder letters.	 	 
	 
	 	 	 	 
	 

	 	Track and replenish patient binders.	 	 
	 
	 	 	 	 
	 

	 	Maintain investigator/site files and patient files.	 	 
	 
	 	 	 	 
	 

	 	Review all data for accuracy and completeness.	 	 
	 
	 	 	 	 
	 

	 	Generate, communicate, and track queries with sites for resolution.	 	 
	 
	 	 	 	 
	Data Management /

	 	Track the progress of study data.
	 	12,810 pages of CRFs
	Review / Query Resolution

	 	

Data entry of CEC event classification.	 	 
	 
	 	 	 	 
	 

	 	Incorporate data from other sources (central laboratory).	 	 
	 
	 	 	 	 
	 

	 	On site qualification, initiation, interim and close out monitoring visits	 	 
	 
	 	 	 	 
	Monitoring

	 	Scheduling, pre and post visit letters
	 	55 monitoring visits
	 
	 	 	 	 
	 

	 	Completing monitoring report	 	 
	 
	 	 	 	 
	 

	 	Debriefing with site manager on outstanding action items.	 	 







					
	 	 	 	 	 
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	 	 	Activity	 	Assumptions
	 

	 	Training and management of monitors	 	 
	 
	 	 	 	 
	 

	 	Coordination of monitoring visits	 	 
	 
	 	 	 	 
	Monitoring

	 	Ensuring letters (pre and post visit) are completed on time
	 	55 monitoring trips
	Management
	 	 	 	 
	 

	 	Reviewing and approving monitoring reports	 	 
	 
	 	 	 	 
	 

	 	Design, program and validate database / edit checks.	 	 
	 
	 	 	 	 
	 

	 	Design, program and validate data entry screens.	 	 
	 
	 	 	 	 
	EDC Database

	 	Database monthly hosting.
	 	25 months of hosting
	 
	 	 	 	 
	 

	 	Database lock and final transfer of data.	 	 
	 
	 	 	 	 
	 

	 	Transfer of final datasets.	 	 
	 
	 	 	 	 
	Monitoring Travel Expenses

	 	Airfare/car mileage, hotel, parking, etc.
	 	55 monitoring visits






					
	 	 	 	 	 
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EXHIBIT B – STUDY BUDGET & CRO SERVICE FEES




PROJECT AGREEMENT NO. 1

FOR: KIPS eMESH STUDY


The following are the fees corresponding to this Project Agreement:





	 	•	 	Study Start-Up:






	 	o	 	$153 per hour for project management support, billed as actual hours until IDE approval
	 
	 	o	 	$100 per hour for CRA support, billed as actual hours until IDE approval






	 	•	 	Trial Management:






	 	o	 	$14,000 per month from IDE approval through completion of enrollment.
	 
	 	o	 	$9,000 per month from completion of enrollment through study completion
(all sites closed, not additional study activities).






	 	•	 	Site Management:






	 	o	 	$650 per month, per site will be invoiced starting the first month a
site is under Symbios management (i.e. site first approached), until the site is no
longer pursuing activation (e.g. site declines or Sponsor elects to drop the site),
or until the site is activated (e.g. approved by CRO on Sponsor’s behalf to begin
enrolling patients). Once the site is activated, the site management fee is
reduced to $500 per month per site until the site is closed and no more
communication / management is expected.






	 	•	 	Data Management:






	 	o	 	$15 per CRF page reviewed for each patient visit (includes all Case
Report Forms associated with the visit).
	 
	 	o	 	No data entry is required for this study due to the electronic Case Report Forms






	 	•	 	Monitoring Management:






	 	o	 	$300 per monitoring visit, per month (e.g. Qualification, Initiation,
Interim or Closeout visits, as applicable) effective from the date of the Project
Agreement execution.






	 	•	 	Monitoring:






	 	o	 	$120 per hour will be the agreed upon rate for protocol training,
monitoring time, travel time (portal to portal), administrative time (prep
follow-up etc.) and generation of monitoring report. The travel related costs will
be bill separately as a pass-through expense to the Sponsor.






	 	•	 	Pass Through Expenses:






	 	o	 	All expenses for ancillary services (e.g. pass through expenses such as
shipping charges for supplies to sites, travel costs for monitoring (including a
$45 per day per diem), and database vendor charges if applicable) that are
generated by Symbios at the request of Sponsor, will be considered pass-through
expenses with no mark-up.
	 
	 	o	 	All expenses related to the electronic data collection system,
including design, development, hosting, and help support, will be considered
pass-through expenses with no mark-up.






	 	•	 	Cost of Living Adjustments (COLA):






	 	o	 	Symbios will include Cost of Living Adjustments (COLA) to monthly
invoices (excluding pass through expenses), starting 12 months after a Project
Agreement is executed. The COLA adjustment (a measure of annual inflation
calculated based on changes to the Consumer Price Index) shall be determined by the
official website of the United States Social Security Administration
(www.ssa.gov/OACT/COLA). Symbios will review the
current COLA reference rate on an annual basis, in the last quarter of each calendar





					
	 	 	 	 	 
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	 	 	 	year, notify Sponsor in writing of the applicable adjustment, and apply the
adjustment to future invoices in the next calendar year.






	 	•	 	Changes in Scope:






	 	o	 	In the event that during the study, Sponsor requests that Symbios
Clinical provide services that differ significantly from the assumptions laid forth
in this Exhibit A, the parties agree that the monthly payment amount will be
adjusted to reflect the change in the level or timing of services. Such adjustments
must be agreed to by the parties in writing.






	 	•	 	Total Estimated Fees:






	 	o	 	Service Fees excluding Pass Through: $779,700
	 
	 	o	 	Pass Through Estimates (including EDC): $112,500






	 	•	 	Additional Services:






	 	o	 	Any work not included in the above activity-based quote is billed at
the hourly rate with pre-approval from the Sponsor.
	 
	 	o	 	Any additional clinical services for items not listed in Exhibit A are billed at $153 per hour
	 
	 	o	 	Statistical services are not included, but are provided at a rate of $175 per hour
	 
	 	o	 	Regulatory services are not included, but can be provided at a rate of $200 per hour





					
	 	 	 	 	 
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EXHIBIT C – PAYMENT TERMS




PROJECT AGREEMENT NO. 1

FOR: KIPS eMESH STUDY


The payment structure shall be in accordance with the study budget defined in Exhibit C and the
payment terms for the purposes of this Project Agreement will be as reflected in section 4.2 of the
Master Agreement (e.g. net 30 days from invoice receipt). Symbios will invoice Sponsor on a monthly
basis.




					
	 	 	 	 	 
	Version 1.0 
 March 21, 2010
	 	CONFIDENTIAL
	 	Page 13







 











 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	US Sites	 	US Sites	 	US Sites
	 	 	 	 	 	 	Pursuing	 	Activated	 	Activated
	Study Phase	 	Month	 	Milestone	 	Activation	 	(Incremental)	 	(cumulative)
	 
	Study Development
	 	Jan-10	 	 	 	 	16	 	 	 	 	 	 	 	 	 
	 
	 	Feb-10	 	 	 	 	16	 	 	 	 	 	 	 	 	 
	 
	 	Mar-10	 	 	 	 	16	 	 	 	 	 	 	 	 	 
	 
	 	Apr-10	 	 	 	 	16	 	 	 	 	 	 	 	 	 
	Study Development
	 	May-10	 	IDE Approval	 	 	16	 	 	 	 	 	 	 	 	 
	Study Development
	 	Jun-10	 	 	 	 	13	 	 	 	3	 	 	 	3	 
	Activation + Enrollment
	 	Jul-10	 	 	 	 	9	 	 	 	4	 	 	 	7	 
	Activation + Enrollment
	 	Aug-10	 	 	 	 	5	 	 	 	4	 	 	 	11	 
	Activation + Enrollment
	 	Sep-10	 	 	 	 	2	 	 	 	3	 	 	 	14	 
	Activation + Enrollment
	 	Oct-10	 	 	 	 	 	 	 	 	2	 	 	 	16	 
	Activation + Enrollment
	 	Nov-10	 	 	 	 	 	 	 	 	 	 	 	 	16	 
	Activation + Enrollment
	 	Dec-10	 	 	 	 	 	 	 	 	 	 	 	 	16	 
	Activation + Enrollment
	 	Jan-11	 	 	 	 	 	 	 	 	 	 	 	 	16	 
	Activation + Enrollment
	 	Feb-11	 	 	 	 	 	 	 	 	 	 	 	 	16	 
	Enrollment + Follow up
	 	Mar-11	 	 	 	 	 	 	 	 	 	 	 	 	16	 
	Enrollment + Follow up
	 	Apr-11	 	 	 	 	 	 	 	 	 	 	 	 	16	 
	Follow-up
	 	May-11	 	 	 	 	 	 	 	 	 	 	 	 	16	 
	Follow-up
	 	Jun-11	 	 	 	 	 	 	 	 	 	 	 	 	16	 
	Follow-up
	 	Jul-11	 	 	 	 	 	 	 	 	 	 	 	 	16	 
	Follow-up
	 	Aug-11	 	 	 	 	 	 	 	 	 	 	 	 	16	 
	Follow-up
	 	Sep-11	 	 	 	 	 	 	 	 	 	 	 	 	16	 
	Follow-up
	 	Oct-11	 	 	 	 	 	 	 	 	 	 	 	 	16	 
	Follow-up
	 	Nov-11	 	 	 	 	 	 	 	 	 	 	 	 	16	 
	Follow-up
	 	Dec-11	 	 	 	 	 	 	 	 	 	 	 	 	16	 
	Follow-up
	 	Jan-12	 	 	 	 	 	 	 	 	 	 	 	 	16	 
	Follow-up
	 	Feb-12	 	 	 	 	 	 	 	 	 	 	 	 	16	 
	Follow-up
	 	Mar-12	 	 	 	 	 	 	 	 	 	 	 	 	16	 
	Follow-up
	 	Apr-12	 	 	 	 	 	 	 	 	 	 	 	 	16	 
	Follow-up
	 	May-12	 	PMA Submission	 	 	 	 	 	 	 	 	 	 	16	 
	Final Cleaning / Final Report
	 	Jun-12	 	 	 	 	 	 	 	 	 	 	 	 	16	 






 









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Case Report Forms	 	 	 	Monitoring Trips	 	 	 	 	 
	Total Patients	 	 	 	 	Total Patients	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Enrolled	 	 	 	 	Enrolled	 	 	Baseline/lm	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	(Incremental)	 	 	 	 	(cumulative)	 	 	plant	 	 	Mon 1	 	 	Mon 9	 	 	 	Symblos	 	 	KPM	 	 	 	Hourly	 
	 	 	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	$	16,500	 
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	$	12,000	 
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	$	12,000	 
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	$	12,000	 
	 	6	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	1	 	 	 	 	 	 	 	 	 	 
	 	14	 	 	 
	 	 	14	 	 	 	14	 	 	 	 	 	 	 	 	 	 	 	 	1	 	 	 	1	 	 	 	 	 	 
	 	22	 	 	 
	 	 	36	 	 	 	22	 	 	 	14	 	 	 	 	 	 	 	 	1	 	 	 	1	 	 	 	 	 	 
	 	28	 	 	 
	 	 	64	 	 	 	28	 	 	 	22	 	 	 	 	 	 	 	 	 	 	 	 	1	 	 	 	 	 	 
	 	32	 	 	 
	 	 	96	 	 	 	32	 	 	 	28	 	 	 	 	 	 	 	 	 	 	 	 	1	 	 	 	 	 	 
	 	32	 	 	 
	 	 	128	 	 	 	32	 	 	 	32	 	 	 	 	 	 	 	 	 	 	 	 	1	 	 	 	 	 	 
	 	32	 	 	 
	 	 	160	 	 	 	32	 	 	 	32	 	 	 	 	 	 	 	 	 	 	 	 	1	 	 	 	 	 	 
	 	32	 	 	 
	 	 	192	 	 	 	32	 	 	 	32	 	 	 	 	 	 	 	 	 	 	 	 	2	 	 	 	 	 	 
	 	32	 	 	 
	 	 	224	 	 	 	32	 	 	 	32	 	 	 	 	 	 	 	 	 	 	 	 	2	 	 	 	 	 	 
	 	32	 	 	 
	 	 	256	 	 	 	32	 	 	 	32	 	 	 	 	 	 	 	 	 	 	 	 	2	 	 	 	 	 	 
	 	32	 	 	 
	 	 	288	 	 	 	32	 	 	 	32	 	 	 	14	 	 	 	 	 	 	 	 	2	 	 	 	 	 	 
	 	27	 	 	 
	 	 	315	 	 	 	27	 	 	 	32	 	 	 	22	 	 	 	 	 	 	 	 	2	 	 	 	 	 	 
	 	27	 	 	 
	 	 	342	 	 	 	27	 	 	 	27	 	 	 	28	 	 	 	 	 	 	 	 	2	 	 	 	 	 	 
	 	24	 	 	 
	 	 	366	 	 	 	24	 	 	 	27	 	 	 	32	 	 	 	 	 	 	 	 	2	 	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	24	 	 	 	32	 	 	 	 	 	 	 	 	2	 	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	32	 	 	 	 	 	 	 	 	2	 	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	32	 	 	 	 	 	 	 	 	2	 	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	32	 	 	 	 	 	 	 	 	2	 	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	32	 	 	 	 	 	 	 	 	2	 	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	32	 	 	 	 	 	 	 	 	2	 	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	27	 	 	 	 	 	 	 	 	2	 	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	27	 	 	 	 	 	 	 	 	2	 	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	24	 	 	 	 	 	 	 	 	5	 	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	6	 	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	5	 	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	TOTAL	 	 	$	52,500	 
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 





 









 






CRO Fees




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Project Mgt	 	 	 	 	Site Mgt	 	 	Data Mgt	 	 	Monitoring	 	 	 	 	 	 	 	 	 	 	Monitoring	 
	Fees	 	 	 	 	Fees	 	 	Fees	 	 	Mgt Fees	 	 	EDC Database	 	 	Monitoring Fees	 	 	Travel Expenses	 
	 
	$	14,000	 	 	 
	 	$	10,400	 	 	$	0	 	 	$	0	 	 	$	44,000	 	 	$	0	 	 	$	0	 
	$	14,000	 	 	 
	 	$	9,950	 	 	$	0	 	 	$	300	 	 	$	1,200	 	 	$	0	 	 	$	700	 
	$	14,000	 	 	 
	 	$	9,350	 	 	$	3,990	 	 	$	600	 	 	$	1,200	 	 	$	0	 	 	$	1,400	 
	$	14,000	 	 	 
	 	$	8,750	 	 	$	7,530	 	 	$	600	 	 	$	1,200	 	 	$	0	 	 	$	1,400	 
	$	14,000	 	 	 
	 	$	8,300	 	 	$	9,960	 	 	$	300	 	 	$	1,200	 	 	$	0	 	 	$	700	 
	$	14,000	 	 	 
	 	$	8,000	 	 	$	11,640	 	 	$	300	 	 	$	1,200	 	 	$	0	 	 	$	700	 
	$	14,000	 	 	 
	 	$	8,000	 	 	$	12,000	 	 	$	300	 	 	$	1,200	 	 	$	0	 	 	$	700	 
	$	14,000	 	 	 
	 	$	8,000	 	 	$	12,000	 	 	$	300	 	 	$	1,200	 	 	$	0	 	 	$	700	 
	$	14,000	 	 	 
	 	$	8,000	 	 	$	12,000	 	 	$	600	 	 	$	1,200	 	 	$	0	 	 	$	1,400	 
	$	14,000	 	 	 
	 	$	8,000	 	 	$	12,000	 	 	$	600	 	 	$	1,200	 	 	$	0	 	 	$	1,400	 
	$	14,000	 	 	 
	 	$	8,000	 	 	$	12,000	 	 	$	600	 	 	$	1,200	 	 	$	0	 	 	$	1,400	 
	$	14,000	 	 	 
	 	$	8,000	 	 	$	14,100	 	 	$	600	 	 	$	1,200	 	 	$	0	 	 	$	1,400	 
	$	14,000	 	 	 
	 	$	8,000	 	 	$	13,875	 	 	$	600	 	 	$	1,200	 	 	$	0	 	 	$	1,400	 
	$	14,000	 	 	 
	 	$	8,000	 	 	$	14,325	 	 	$	600	 	 	$	1,200	 	 	$	0	 	 	$	1,400	 
	$	9,000	 	 	 
	 	$	8,000	 	 	$	14,070	 	 	$	600	 	 	$	1,200	 	 	$	0	 	 	$	1.400	 
	$	9.000	 	 	 
	 	$	8,000	 	 	$	6,960	 	 	$	600	 	 	$	1,200	 	 	$	0	 	 	$	1,400	 
	$	9,000	 	 	 
	 	$	8,000	 	 	$	4,800	 	 	$	600	 	 	$	1,200	 	 	$	0	 	 	$	1,400	 
	$	9,000	 	 	 
	 	$	8,000	 	 	$	4,800	 	 	$	600	 	 	$	1,200	 	 	$	0	 	 	$	1,400	 
	$	9,000	 	 	 
	 	$	8,000	 	 	$	4,800	 	 	$	600	 	 	$	1,200	 	 	$	0	 	 	$	1,400	 
	$	9.000	 	 	 
	 	$	8,000	 	 	$	4,800	 	 	$	600	 	 	$	1,200	 	 	$	0	 	 	$	1,400	 
	$	9,000	 	 	 
	 	$	8,000	 	 	$	4,800	 	 	$	600	 	 	$	1,200	 	 	$	0	 	 	$	1,400	 
	$	9,000	 	 	 
	 	$	8,000	 	 	$	4,050	 	 	$	600	 	 	$	1,200	 	 	$	0	 	 	$	1,400	 
	$	9,000	 	 	 
	 	$	8,000	 	 	$	4,050	 	 	$	600	 	 	$	1,200	 	 	$	0	 	 	$	1,400	 
	$	9,000	 	 	 
	 	$	8,000	 	 	$	3,600	 	 	$	1,500	 	 	$	1,200	 	 	$	0	 	 	$	3,500	 
	$	9,000	 	 	 
	 	$	8,000	 	 	$	0	 	 	$	1,800	 	 	$	1,200	 	 	$	0	 	 	$	4,200	 
	$	9,000	 	 	 
	 	$	8,000	 	 	$	0	 	 	$	1,500	 	 	$	1,200	 	 	$	0	 	 	$	3,500	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	$	304,000	 	 	 
	 	$	214,750	 	 	$	192,150	 	 	$	16,500	 	 	$	74,000	 	 	$	0	 	 	$	38,500