definiens: means all products ( a ) made, used, imported or sold by or on behalf of [COMPANY] or any of its Affiliates as of the Effective Date of this Agreement ( ) solely for use in the Spine Field of Use, and ( b ) made, used, imported or sold by or on behalf of [COMPANY] or any of its Affiliates after the Effective Date of this Agreement solely for use in the Spine Field of Use and that are not Materially Different ( as defined herein ) from the Current [COMPANY] Spine Products . For purposes of this Agreement, means any change to a Current [COMPANY] Spine Product that is nClfinsuDstantial . The following examples are only intended to assist the Parties and any arbitrator(s ) under this Agreement in assessing whether a product is Materially Different . The examples SEITLEMENT / LICENSE AGREEMENT 6 FINAL SIGNATURE COPY 9 - 2 - 05 --_.-highlighted = confidential treatment requested • are not intended to act as a limitation on the stated definition of :, By way of example only and not limitation, cnangeg'!TilTColor::TSlzej sha ~ aterlal : vi'Ch ~ io,,!uSe .. a';'OlfferenfICombinatfOfi1of;Jeatures;that!'are ~1r;a ~ y'~f i, n'(;()rporate(j ~ ji ntoJ~,tll'rren.tlAfttlro ~ a ~ e'~s ~ jne ~ lpr()du ~ t~')Wandlo'rl;small, charl'e~(less ~ tha'\~nd / othf6Htt : Je : r'robel ff''-,'----''{01 _ _ -o/>'Dt ', { ; I:.-<CW'1 - 7Ji .,;~~ges,~~ ! r ~,!'1'1J jllJ ~the ~nulilb ~ r ; ofl ~ l ~ ctrornu1bplf\l;acbve ~lectrodeJicontammg eYlce, would not be considered Materially Different Initially, Current Subject [COMPANY] Spine Products include the products listed in Exhibit C - L of the Settlement and License Agreement attached hereto, 1.29 means ( a ) all U, S, and foreign patents and patent applications issued or pending as of the Effective Date ( b ) all U, S. and foreign patent applications filed after the Effective Date, and all, patents issuing thereon, that claim or derive any right of priority from any of the patents or patent applications included within subclause ( a ) above, but only to the extent that such patent applications and patents derive such right of priority and ( c ) with respect to all patents and patent applications included within subclauses ( a ) and ( b ) above, only such patents and patent applications that ( i ) claim invention(s ) having application(s ) related to the Spine Field of Use or claiming an apparatus or method which can be used in the Spine Field of Use and ( ii ) are owned by Smith & Nephew or any of its Affiliates or licensed to Smith & Nephew or any of its Affiliates with a right to enforce, including all divisionals, continuations, continuations - in - part, continuing prosecution applications, substitutions, reissues, reexaminations, renewals, extensions and all foreign counterparts of all of the foregoing . The Smith & Nephew Subject Spine Patents specifically include all patents and patent applications listed in Exhibit D - L of the Settlement and License Agreement Smith & Nephew believes that Exhibit D - L is a complete list of Smith & Nephew Subject Spine Patents as of the Effective Date, and the parties agree that any omissions from Exhibit D - L will be deemed to be inadvertent and will not be deemed a material breach of this Agreement